Filed 9/27/13 Arista v. Mule Creek State Prison CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Amador)


ALFRED ARISTA,                                                                               C068541

                   Plaintiff and Appellant,                                      (Super. Ct. No. 09CV6221)

         v.

MULE CREEK STATE PRISON et al.,

                   Defendants and Respondents.




         Plaintiff and appellant Alfred Arista brings this pro se appeal from the judgment
following a grant of summary judgment in favor of defendants Michael Martel, warden,
Mule Creek State Prison, and California’s Department of Corrections and Rehabilitation
(CDCR).
         Because Arista has failed to provide an adequate record on appeal, we cannot
conclude the trial court erred in granting summary judgment. Moreover, Arista does not
dispute he failed to comply with the claims presentation requirements of the Government
Claims Act (Gov. Code, § 810 et seq.; hereafter Act), a prerequisite to his maintaining
this action. Accordingly, we shall affirm the judgment.




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                                      BACKGROUND
       In October 2008, Arista, an inmate at Mule Creek State Prison, was a passenger in
a van owned and operated by CDCR. The van was struck by another state-owned
vehicle. Arista claims to have suffered physical injuries in the collision.
       Arista filed the underlying personal injury action in August 2009; the complaint is
not in the record on appeal. In his appellate brief, Arista suggests the complaint alleges
the state is liable for injuries he suffered as a result of the failure of CDCR personnel to
fasten his seatbelt prior to the accident.
       In November 2010, defendants Martel, Mule Creek State Prison, and CDCR
moved for summary judgment on the ground Arista failed to comply with the Act, in that
he failed to file a claim with the Victim Compensation and Government Claims Board
(Board) within six months of the accident. Although defendants appear to have filed with
their motion a statement of undisputed facts and declarations of counsel, these documents
are not in the record on appeal.
       Arista filed no opposition to defendants’ motion for summary judgment. Instead,
he responded by filing a written request for appointment of counsel to represent him in
this action.
       Arista was also prompted by defendants’ motion to submit a claim to the Board in
December 2010, for $15 million as compensation for injuries he claims to have sustained
in the October 2008 accident, and to request that the Board accept his belated filing.
       Following a reported hearing at which Arista appeared by telephone, the trial court
denied plaintiff’s request for the appointment of counsel. It granted defendants’ motion
for summary judgment, on the ground defendants demonstrated there are no triable issues
of material fact as to whether plaintiff failed to timely file a government claim.




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                                       DISCUSSION
       I. Arista Has Not Shown Summary Judgment Was Improperly Granted
       “Summary judgment provides a court with a procedure to pierce pleadings in order
to determine whether a trial is truly necessary to resolve the dispute between the parties.
[Citation.]” (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1492.)
Summary judgment is properly granted where “all the papers submitted” show there are
no triable issues of fact and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) We review a trial court’s decision granting a
summary judgment de novo. In doing so, we liberally construe all conflicting facts in the
light most favorable to the party opposing the motion. (Estate of Molino (2008)
165 Cal.App.4th 913, 921.)
       A defendant moving for summary judgment has the initial burden of showing that
a cause of action lacks merit because one or more elements of the cause of action cannot
be established or there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the
moving papers make a prima facie showing that justifies a judgment in the defendant’s
favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of
a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic
Richfield Co., supra, 25 Cal.4th at pp. 849, 860.)
       On appeal, however, the appellant -- here, Arista -- has the burden of
demonstrating by an adequate record that there is prejudicial error in the trial court’s
ruling. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Ballard v. Uribe (1986)
41 Cal.3d 564, 574 (lead opn. of Grodin, J.).) We never presume the existence of error:
in fact, we are required by the rules of appellate review to presume that the trial court’s
ruling was correct. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d
557, 564; Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88.) Although it is said
that our review of a summary judgment is de novo, that does not mean we engage in a

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“ground-up” analysis of the summary judgment motion independent of the arguments
made by the appellant in his opening brief. Even on review of a summary judgment,
“[t]he appellant has the burden of showing error occurred.” (Byars v. SCME Mortgage
Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.)
       Here, we are prevented by the state of the appellate record provided by Arista
from assessing whether summary judgment should have been granted because we have
not been provided with “all the papers” relevant to the motion. (See Code Civ. Proc.,
§ 437c, subd. (c).) The record on appeal does not contain the separate statement filed by
defendants, or any of the supporting evidence filed in support of the motion, including
attorney declarations. Nor is there a transcript of the reported oral argument. The
absence of a complete record of the summary judgment motion precludes us from
determining whether the trial court erred in entering summary judgment in defendants’
favor. (See Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)
       In addition to failing to provide an adequate record of the proceedings in the trial
court, Arista’s appellate brief fails to identify error(s) made by the trial court in granting
the motion. The trial court granted summary judgment on the ground Arista’s “own
deposition testimony [showed] that [Arista] did not file a timely claim with the Victim’s
Compensation and Government Claims Board.” Arista did not oppose the motion for
summary judgment, and has not shown on appeal how the trial court erred. The trial
court correctly reasoned that persons filing tort claims against a governmental agency
must comply with the Act. Under the Act, a person wishing to sue a public entity for
damages arising from the actions of its employees must first submit a claim to the entity
within six months of the date the cause of action accrued. (Gov. Code, §§ 911.2, 945.4.)
“The claim presentation requirement serves several purposes: (1) it gives the public entity
prompt notice of a claim so it can investigate the strengths and weaknesses of the claim
while the evidence is still fresh and the witnesses are available; (2) it affords opportunity
for amicable adjustment, thereby avoiding expenditure of public funds in needless

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litigation; and (3) it informs the public entity of potential liability so it can better prepare
for the upcoming fiscal year.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767,
1776.) The failure to timely present a claim for money or damages to a public entity bars
a plaintiff from filing a suit against the public entity. (State of California v. Superior
Court (2004) 32 Cal.4th 1234, 1239.) Arista is mistaken to suggest on appeal that his
belated presentation of a claim, more than two years after the accident, satisfies the Act’s
requirement.
       Because nothing in the appellate record indicates Arista ever presented a claim to
the Board before he filed the complaint, we cannot conclude the court erred in concluding
Arista never complied with the Act’s claims presentation requirements, and his failure to
do so warranted summary judgment against him.
       II. Other Contentions
       Arista appears to suggest in his brief on appeal the court ruled against him because
he lacked understanding of the law and thus failed to comply with court rules or proper
procedure, a condition that the court could have remedied because it “had discretion . . .
to appoint counsel” to represent him in this action. But, while a trial court may appoint
counsel for an inmate plaintiff in a civil action as one available method of ensuring “an
indigent prisoner’s right to . . . prosecute bona fide civil actions,” (Wantuch v. Davis
(1995) 32 Cal.App.4th 786, 792-793; Payne v. Superior Court of Los Angeles County
(1976) 17 Cal.3d 908, 924), an inmate plaintiff in a civil action may not compel the court
to appoint counsel on his or her behalf. (Wantuch v. Davis, supra, at p. 793; Apollo v.
Gyaami (2008) 167 Cal.App.4th 1468, 1484.) Arista does not argue the trial court abused
its discretion in denying his motion for appointment of counsel, and we see no basis for
concluding it did so.
       Arista also asserts he should have been notified of his right to file declarations and
evidence in opposition to defendants’ motion, or notified that his failure to respond would
result in the entry of summary judgment against him. This amounts to an assertion the

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trial court should have complied with the rule derived from the federal case in Hudson v.
Hardy (D.C. Cir. 1968) 412 F.2d 1091 (Hudson) that, “as a bare minimum,” a pro. per.
inmate be provided “with fair notice of the requirements of the summary judgment rule.”
(Id. at p. 1094.) The Ninth Circuit has declared its support for the Hudson rule, requiring
that a prisoner pro se plaintiff receive “fair notice” of the requirements of rule 56 of the
Federal Rules of Civil Procedure (28 U.S.C.), and that he be notified of his right to
oppose a motion for summary judgment by submitting counter-affidavits or other
responsive evidentiary materials, and alerted to the fact that the failure to do so might
result in the entry of summary judgment against him. (See Rand v. Rowland (9th Cir
1998) 154 F.3d 952, 960-961; Klingele v. Eikenberry (9th Cir. 1988) 849 F.2d 409, 411.)
But Arista cites no authority, and we have found none, for the proposition that the
Hudson rule or anything similar has been adopted or is required in California. Nor has he
cited any authority, or logical basis, for this court to create an enlarged version of the
Hudson rule to require that the superior court have provided him “with fair notice of the
requirements of filing a Board of Control claim . . . .”
                                       DISPOSITION
       The judgment is affirmed. The parties shall bear their own costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(5).)



                                              BLEASE                     , Acting P. J.


We concur:


         BUTZ                       , J.


         MAURO                      , J.



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