Smith v. Hance 11/10/2009—Motions to Augment

Shortly before filing their brief on appeal, respondents moved to augment the appellate record with (1) the reporter's transcript of the trial court's decision in San Diego Superior Court Case No. GIC 847788; (2) the January 6, 2007 recusal letter from JAMS; and (3) our May 4, 2007 opinion in Smith v. Hance, supra, D047471. In an accompanying declaration, respondent Jennifer Hance states the documents are needed to support their claims and to provide background of the case. Respondents argue this case is complex and "involving years of litigation, and the issues can only be fully understood with the documents cited to in the respondent's brief." (Ibid.) Steven opposes the request on both procedural and substantive grounds.

Under California Rules of Court, rule 8.155(a)(1), at any time, on motion of a party or its own motion, the reviewing court may order the record augmented to include any document filed or lodged in the case in superior court. Augmentation of the record is not a matter of right and lies within the appellate court's discretion. (Russi v. Bank of America (1945) 69 Cal.App.2d 100, 102.) Here, respondents do not state that any of the documents attached to their request were before the superior court when it considered Steven's section 425.16 special motion to strike, or that the items were mistakenly omitted from the appellate record.

With respect to the reporters' transcript and January 6, 2007 letter from JAMS, there is no indication they were part of the record considered by the trial court in ruling on Steven's motion. We therefore deny respondents' request to augment the record on appeal with these items. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 ["Augmentation does not function to supplement the record with materials not before the trial court"]; In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1209 ["[A]ugmentation may be used only to add evidence that was mistakenly omitted when the appellate record was prepared"]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 ["As a general rule, documents not before the trial court cannot be included as a part of the record on appeal"].) Our conclusion would not change even if we were to construe respondents request as one asking this court to take new evidence on appeal. That power is to be used "`sparingly,'" and is only appropriately exercised when required by "`the interests of justice.'" (Conservatorship of Hart (1991) 228 Cal.App.3d 1244, 1257, 1259; see also Vons Companies, at p. 444, fn. 3 [requiring exceptional circumstances to take evidence under Code of Civil Procedure section 909].) Respondents have not shown exceptional circumstances exist.

As for our prior opinion in Smith v. Hance, supra, D047471, the trial court's order indicates it had that opinion before it when reaching its decision. Even if that were not the case, we may still consider it. On our own motion we take judicial notice of that opinion as it involves a related case having the same parties and some of the same underlying conduct identified in the cross-complaint at issue here. (Evid. Code, §§ 452, subd. (d) [judicial notice may be taken of court records], 459; see In re Christy L. (1986) 187 Cal.App.3d 753, 755 [court may take judicial notice of prior unpublished opinion in related appeal].) This court's unpublished opinion in case No. D047471 provides an account of the prior procedural history of the parties' disputes, and our holding in that case — that the Smiths' photograph taking of respondents and their family satisfied the elements of the civil harassment statute, section 527.6 — is directly relevant to some of the conduct underlying respondents' challenged cross-complaint in the present matter.

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!