Wofford v. Thompson CA2/5

Filed 5/4/15 Wofford v. Thompson CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

SECOND APPELLATE DISTRICT

DIVISION FIVE

SEAN WOFFORD, B253216

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC481892)
v.

BENJAMIN THOMPSON,
ORDER MODIFYING OPINION
Defendant and Respondent. [NO CHANGE IN JUDGMENT]

THE COURT:
It is ordered that the opinion filed herein on April 7, 2015 be modified as follows:
1. On page 9, delete the last paragraph in its entirety and replace it with the
following paragraph:
As the trial court found, “Here, Plaintiff was stopped because he was not wearing
a seatbelt and was issued a Notice to Appear for an alleged violation of Vehicle Code
§ 27315(d)(1) [requiring seatbelts to be worn] and other code sections. Plaintiff was in
fact found guilty of this offense. For the Plaintiff to prove that he was falsely arrested
and imprisoned, Plaintiff would have to show that he was arrested without authority.”
Although plaintiff alleged in his complaint that “[d]efendents, and each of them,
unlawfully arrested plaintiff without a warrant or any other legal process,” as peace
officers, defendants were authorized to arrest plaintiff without a warrant for Vehicle Code
violations committed in their presence.1 (Pen. Code, § 836, subd. (a)(1).) Accordingly,

1
The complaint also alleges that the defendants’ arrest of plaintiff was “without
legislative authorization from chapter 2 of division 17 of the Vehicle Code; . . . without
cause in that they were not enforcing the violation of anyone’s legal rights, or protecting
anyone from injury, loss, or harm; . . . when plaintiff was not exercising a privilege.”
Contrary to the premise of these allegations, Penal Code section 836, subd. (a)(1)
in order for plaintiff to establish that the officers were without authority to arrest him, he
would have to prove that they did not have probable cause to arrest him without a warrant
because he did not commit the violations, including driving without a seatbeat, in the
officers’ presence. However, were plaintiff to prove this contention and thus establish
the officers’ lack of authority for the arrest, he would thereby establish that he was in fact
wearing a seatbelt, which finding would “necessarily imply the invalidity of his
conviction.” (Heck, supra, 512 U.S. at p. 487.) Because plaintiff has not alleged that his
conviction has been overturned, the cause of action for false arrest is barred by the rule
set forth in Heck, supra.
2. On page 10, delete the first paragraph in its entirety.
3. On page 11, delete the two full paragraphs under the heading, “4. Ruling
on plaintiff’s demurrer to defendant’s first amended complaint,” and insert in their place
the following four paragraphs:
Plaintiff demurred to the sixth affirmative defense of defendants’ first amended
answer to the complaint. Plaintiff did not appear at the August 6, 2013 hearing on his
demurrer. The minute order of that date indicates that the court overruled the demurrer,
but does not state the basis for the ruling.
Defendants’ the sixth affirmative defense states: “Defendants’ conduct was
privileged and based upon probable cause. Defendants are informed and believe[] and on
that basis state, under a totality of circumstances there was reasonable cause to stop
Plaintiff and to issue a citation based upon the fact that Plaintiff was not wearing a seat
belt, did not have a front license plate (VC 5200) and violated VC 26708. [¶]
Defendants are further informed and believe Plaintiff would not promptly show valid
identification and delayed/initially refused to sign a notice to appear.”
In his demurrer to the foregoing affirmative defense, plaintiff contended that
“Defendants did not state facts sufficient to constitute a defense for probable cause to
arrest in that defendants did not allege the existence of the corpus delicti by making a
factual showing that harm, loss, or injury occurred to someone through a criminal
agency.”
For a police officer lawfully to arrest an individual,2 the officer must have
probable cause. (People v. Hughes (2002) 27 Cal.4th 287, 327–328.) “Probable cause to
arrest exists when the facts and circumstances known to the arresting officer ‘“‘warrant a

provided the officers with the legal authority to arrest plaintiff under the circumstances of
this case.
2
Here, plaintiff signed a notice to appear and, as a consequence, was not subject to
a custodial arrest. However, because plaintiff alleges that he was falsely arrested, we will
accept his terminology for purposes of this discussion.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

2
[person] of reasonable caution in the belief that’ an offense has been or is being
committed [by the person to be arrested].”’ (Dunaway v. New York (1979) 442 U.S. 200,
208, fn. 9, quoting Carroll v. United States (1925) 267 U.S. 132, 162.)” (People v. Souza
(1994) 9 Cal.4th 224, 230.) Defendants’ affirmative defense asserted that, under the
totality of the circumstances, the officers had reasonable grounds to believe that plaintiff
had violated three sections of the Vehicle Code, including section 27315, subdivision
(d)(1), which requires the driver of a car to be “properly restrained by a safety belt.”
Thus, defendants stated facts sufficient to constitute a defense to the claim of false arrest,
that is, that they had probable cause to arrest plaintiff.
There is no change in the judgment. Petition for rehearing is denied.

_______________________________________________________________________
MOSK, Acting P.J. KRIEGLER, J. GOODMAN, J.*

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Filed 4/7/15 Wofford v. Thompson CA2/5 (unmodified version)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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

SECOND APPELLATE DISTRICT

DIVISION FIVE

SEAN WOFFORD, B253216

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC481892)
v.

BENJAMIN THOMPSON et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Mary H. Strobel, Judge. Affirmed.

Sean Wofford, in pro. per., for Plaintiff and Appellant.

Michael N. Feuer, City Attorney, Amy Jo Field, Assistant City Attorney and
Blithe S. Bock, Deputy City Attorney, for Defendants and Respondents.
 Plaintiff Sean Wofford appeals the trial court’s judgment of dismissal following
the successful demurrer of the City of Los Angeles and others to plaintiff’s cause of
action for false arrest. The trial court found that, pursuant to the reasoning of Heck v.
Humphrey (1994) 512 U.S. 477 (Heck), plaintiff was barred from bringing the action
since he was convicted of the Vehicle Code violations leading to his arrest, which
convictions have not been overturned on appeal, expunged, or otherwise invalidated.
Plaintiff also challenges the trial court’s rulings on plaintiff’s motion to strike portions of
defendants’ demurrer, defendants’ request for judicial notice, and plaintiff’s demurrer to
defendants’ first amended answer.
We conclude that the trial court properly applied Heck to rule that plaintiff’s false
arrest cause of action was barred due to the absence of an allegation that his traffic
convictions had been invalidated, and that the additional rulings of the court were proper.
We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND
Los Angeles Police Officers Thompson and Velasco conducted a traffic stop of
plaintiff’s vehicle on March 12, 2011, for his failure to wear a seatbelt. Plaintiff objected
to the stop; he was pulled from the vehicle, handcuffed and searched. Officer Thompson
stated, “We were going to cite you, but now that you’ve given us a hard time you’re
going to spend the weekend in jail.” The officers issued a notice to appear for a violation
of Vehicle Code sections 27315, subdivision (d)(1),1 5200, subdivision (a),2 and 26708,

1
“A person shall not operate a motor vehicle on a highway unless that person and
all passengers 16 years of age or over are properly restrained by a safety belt.” (Veh.
Code, § 27315, subd. (d)(1).)
2
“When two license plates are issued by the department for use upon a vehicle, they
shall be attached to the vehicle for which they were issued, one in the front and the other
in the rear.” (Veh. Code, § 5200, subd. (a).)

2
subdivision (a)(1).3 Officer Thompson informed plaintiff that he would arrest plaintiff
and take him to jail if he did not sign the notice to appear. Consequently, plaintiff signed
the notice to appear. On August 23, 2011, plaintiff was convicted of the foregoing
charges and ordered to pay a fine of $518.
Plaintiff filed a Government Code section 910 claim for personal injuries dated
September 12, 2011; the claim was denied on September 30, 2011. On April 2, 2012,
plaintiff filed a complaint against the arresting officers, the City of Los Angeles, and the
Chief of Police (together, defendants), alleging causes of action for false arrest and false
imprisonment;4 violation of civil rights “as guaranteed by Civil Code section 51.1;”
assault; battery; intentional infliction of emotional distress; and conspiracy.
Defendants demurred to the complaint, asserting that an individual who is
convicted of a crime may not then maintain a civil rights action for false arrest or
imprisonment unless the conviction has been reversed on appeal, expunged, or otherwise
declared invalid. Defendants further argued that plaintiff’s additional claims all flowed
from his allegations of false arrest, and were therefore also barred by his criminal
convictions under a theory of primary rights.
In conjunction with the demurrer, defendants filed a request for judicial notice,
seeking judicial notice of the court records demonstrating plaintiff’s conviction for the
charges arising from his arrest. Plaintiff moved to strike the demurrer and filed 10
separate requests for judicial notice of a broad array of facts (such as “that the West Los
Angeles Court does not handle criminal matters”) and documents (such as a 1967 Judicial
Council Report and the Minutes of a hearing before an Oregon Committee on March 6,

3
“A person shall not drive any motor vehicle with any object or material placed,
displayed, installed, affixed, or applied upon the windshield or side or rear windows.”
(Veh. Code, § 26708, subd. (a)(1).)
4
“‘“‘[F]alse arrest” and “false imprisonment” are not separate torts. False arrest is
but one way of committing a false imprisonment. . . .’ [Citation.]” (Asgari v. City of Los
Angeles (1997) 15 Cal.4th 744, 752, fn. 3.)’ [Citation.]” (Levin v. United Air Lines, Inc.
(2008) 158 Cal.App.4th 1002, 1016, fn. 16.)

3
1974). The court granted judicial notice of the trial docket from plaintiff’s traffic case as
well as of each of his 10 requested documents.
After hearing arguments on October 17, 2012, the trial court denied plaintiff’s
motion to strike and sustained, without leave to amend, defendants’ demurrer to the first
cause of action. It ruled that pursuant to Heck, supra, 512 U.S. 477, plaintiff may not sue
for false arrest and false imprisonment since he was convicted of violations charged as a
result of the traffic stop incident, which convictions had not been reversed on appeal,
expunged or otherwise invalidated. The court overruled the demurrer as to plaintiff’s
remaining causes of action. The matter was set for trial for September 24, 2013.
Defendants filed their first amended answer on April 26, 2013. Plaintiff demurred
and moved to strike it. The motions were called for hearing on August 6, 2013; plaintiff
failed to appear. The trial court overruled plaintiff’s demurrer and denied his motion to
strike defendants’ first amended answer.
During discovery, defendants filed a motion to compel plaintiff’s appearance at
deposition and a motion to dismiss. On September 23, 2013, at a hearing at which
plaintiff appeared, the motion to dismiss was denied, but plaintiff was ordered to appear
for deposition on the following day, that is, on the original trial date of September 24,
2013. The trial was then trailed to September 26, 2013.
On September 26, 2013, the trial court called the case for trial; defense counsel
was present, but plaintiff was not. Defendants moved to dismiss the case. After
confirming that plaintiff had not contacted court staff regarding his absence, the court
granted the motion and dismissed the case without prejudice.
Plaintiff timely filed a notice of appeal.

CONTENTIONS
Because he did not appear for trial, plaintiff cannot and does not challenge the
dismissal of his causes of action based on Civil Code section 52.1, assault, battery,
intentional infliction of emotional distress, and conspiracy. Rather, plaintiff claims that
the trial court erred in sustaining the demurrer to his first cause of action for false arrest

4
based on the holding of Heck, supra, 512 U.S. 477. Plaintiff also maintains that the trial
court erred by taking judicial notice of certain superior court records, by denying his
motion to strike the demurrer, and by overruling his demurrer to the first amended
answer. We consider these contentions below.

DISCUSSION
1. Ruling on plaintiff’s motion to strike portions of defendants’ demurrer
Plaintiff moved to strike portions of defendants’ demurrer to the complaint. The
trial court denied the motion. On appeal, plaintiff contends that the trial court erred in
denying the motion to strike as to two of the four grounds stated in the motion, to wit:
“That portion of page four, lines 18 through 20, reading as follows: ‘Allowing such a
claim would . . . reopen the issue of reasonableness of Defendant officers’ arrest, which
has already been determined in the criminal proceeding.’ . . . That portion of page five,
lines 26 through 28, reading as follows: ‘[T]he reasonableness of the officers’ conduct
has already been determined in the criminal proceeding.’” The motion stated that both of
the foregoing allegations “are false and unsupported by any facts or evidence in the
record.”
Any party may move to strike all or any part of a pleading, including a demurrer.
(Code Civ. Proc., § 435.) Upon such a motion, the court may strike out any false matter
contained in any pleading. (Code Civ. Proc., § 436.) The grounds for a motion to strike
are limited to matters appearing on the face of the challenged pleading or matters of
which judicial notice must or may be taken. (Code Civ. Proc., § 437, subd. (a); Evid.
Code, §§ 451, 452.) “Thus, a court may strike false, i.e. untrue, matters contained in a
pleading whenever their falsity or untruthfulness is revealed by facts which are judicially
noticed. [Citation.]” (Garcia v. Sterling (1985) 176 Cal.App.3d 17, 21-22.)
In support of his motion to strike, plaintiff argued that defendants had misapplied
Heck, supra, 512 U.S. 477, to the facts of this case: “In Heck, the United States Supreme
Court held that ‘in order to recover damages . . . for harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a plaintiff must prove that

5
the conviction or sentence has been [invalidated].’ (Heck, supra, 512 U.S. at pp. 486-
487.) The court clarified, however, that if a ‘plaintiff’s action . . . will not demonstrate
the invalidity of any outstanding criminal judgment against the plaintiff, the action should
be allowed to proceed . . . .’ (Id. at p. 487, fn. omitted, italics added.)” Plaintiff further
argued that a Vehicle Code infraction is not a “crime,” is not adjudicated in a “criminal
proceeding,” and does not result in a “criminal judgment.” Thus, according to plaintiff,
defendants’ statement in their demurrer that the reasonableness of the officers’ arrest of
plaintiff had been determined in a prior criminal proceeding was “false and unsupported
by any facts or evidence in the record.”
The contention lacks merit. As the trial court stated in its tentative decision, the
reasonableness of the officers’ arrest and whether the issue of reasonableness had been
determined in the prior proceedings “are not ‘false’ within the meaning of CCP § 436.
These contentions are just that—contentions or arguments. They are not facts which may
be proven to be false.” Rather, as noted by the trial court, plaintiff’s motion to strike was
more in the nature of an opposition to the defendants’ demurrer, and indeed, the court
considered these arguments in ruling on the demurrer. We concur with the trial court’s
analysis of plaintiff’s motion to strike defendants’ demurrer, and conclude the court
properly denied the motion.

2. Ruling on demurrer to plaintiff’s cause of action for false arrest
“Because the function of a demurrer is to test the sufficiency of a pleading as a
matter of law, we apply the de novo standard of review in an appeal following the
sustaining of a demurrer without leave to amend. (Holiday Matinee, Inc. v. Rambus, Inc.
(2004) 118 Cal.App.4th 1413, 1420.) We assume the truth of the allegations in the
complaint, but do not assume the truth of contentions, deductions, or conclusions of law.
(Aubry v. Tri–City Hospital Dist. (1992) 2 Cal.4th 962, 967.) It is error for the trial court
to sustain a demurrer if the plaintiff has stated a cause of action under any possible legal
theory, and it is an abuse of discretion for the court to sustain a demurrer without leave to
amend if the plaintiff has shown there is a reasonable possibility a defect can be cured by

6
amendment. (Ibid.)” (California Logistics, Inc. v. State of California (2008) 161
Cal.App.4th 242, 247.)
“‘A cause of action for false imprisonment based on unlawful arrest is stated
where it is alleged that there was an arrest without process, followed by imprisonment
and damages. Upon proof of those facts the burden is on the defendants to prove
justification for the arrest. [Citations.]’ [Citation.] A police officer who makes an arrest
without a warrant and without justification may be held civilly liable for false arrest and
imprisonment. [Citations.]” (Collins v. Los Angeles County (1966) 241 Cal.App.2d 451,
456-457.) Probable cause to arrest is a complete defense to a civil action for false arrest.
(White v. Martin (1963) 215 Cal.App.2d 641, 643.)
In their demurrer, defendants relied on Heck, supra, 512 U.S. 477, to argue that a
claim for false arrest cannot be maintained when the arrest resulted in a conviction which
has not been reversed, expunged or otherwise declared invalid. The trial court agreed,
and sustained defendants’ demurrer to plaintiff’s first cause of action.
In Heck, supra, 512 U.S. 477, an inmate brought an action under 42 United States
Code section 1983 (§ 1983) against county prosecutors and a state police investigator,
alleging that his conviction violated his civil rights. The court compared § 1983 claims to
the common law tort of malicious prosecution, the first element of which is favorable
termination of the prior proceeding, and determined that both were implicated by the
“hoary principle that civil tort actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments. . . . (Id. at p. 486.) In recognition of this
principle, the court ruled that “to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus, . . . Thus, when a state
prisoner seeks damages in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction

7
or sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated. But if the
district court determines that the plaintiff’s action, even if successful, will not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the
action should be allowed to proceed, in the absence of some other bar to the suit.” (Id. at
pp. 486-487, fn. omitted.)
Plaintiff argued in the court below, and contends here, that Heck does not apply to
the facts of this case. His argument is as follows: Heck applies only to criminal
convictions; traffic infractions are not crimes or public offenses; therefore his convictions
for the traffic infractions are not criminal convictions. Plaintiff posits the following in
support of his assertion that traffic infractions are not crimes:5 “The California
Constitution guarantees trial by jury to all criminal defendants and an infractor does not
have access to trial by jury;” plaintiff did not have access to a jury trial, yet “Penal Code
section 683 confines conviction of a public offense to trial by jury or waiver thereof;” in
1967, “the Judicial Council of California sponsored legislation making minor traffic
violations ‘noncriminal infractions’ and boasts it to be a ‘milestone’ and a ‘historical
highlight’ in its ensuing annual reports;” and the West Los Angeles Courthouse in which
plaintiff’s trial was held does not handle criminal matters. The argument lacks merit.
Penal Code section 16 defines crimes and public offenses as felonies,
misdemeanors and infractions. In other words, felonies, misdemeanors and infractions
are crimes and public offenses. “An infraction is a criminal matter subject generally to
the provisions applicable to misdemeanors, except for the right to a jury trial, the
possibility of confinement as a punishment, and the right to court-appointed counsel if
indigent. (Pen. Code, §§ 16, 19.6.)” (People v. Simpson (2014) 223 Cal.App.4th Supp.
6, 9.) While plaintiff argues at length as to why an infraction should not be considered a
crime, he cites no legal authority which supports his position.

5
Plaintiff makes addition assertions which are repetitive of the listed matters or
irrelevant on their face (such as his reliance on the “hearing minutes of the State of
Oregon’s Committee on Judiciary, Decisional and Public Statutory Law”).
8
 Moreover, we concur in the trial court’s conclusion that “Heck applies to any type
of conviction.” As the court below noted, “the Court in Heck based its ruling on the fact
that the Court ‘has long expressed similar concerns for finality and consistency and has
generally declined to expand opportunities for collateral attack.’ (Heck, supra, 512 U.S.
at pp. 484-485.) Thus, the rationale for this holding was to avoid parallel litigation over
the issues of probable cause and guilt, to avoid conflicting resolutions arising out of the
same or identical transaction, and to deny opportunities for collaterally attacking
convictions through civil suits. (Id. at pp. 484-485.) Again, nothing in this rationale or in
the Heck Court’s opinion would tend to indicate that the rule should not apply to bar a
collateral attack of a traffic infraction.”
The sole issue remaining is whether plaintiff’s claims “necessarily imply the
invalidity of his conviction or sentence.” (Heck, supra, 512 U.S. at p. 487.)
California law makes it illegal to drive a car unless “properly restrained by a safety
belt.” (Veh. Code, § 27315, subd. (d)(1).) “A peace officer may arrest a person . . .
without a warrant . . . whenever . . . [¶] the officer has probable cause to believe that the
person to be arrested has committed a public offense in the officer’s presence.” (Pen.
Code, § 836, subd. (a)(1).) “Public offenses” include felonies, misdemeanors and
infractions. (Pen. Code, § 16; see also People v. Hamilton (1986) 191 Cal.App.3d Supp.
13, 18.)
As the trial court found, “Here, Plaintiff was stopped because he was not wearing
a seatbelt and was issued a Notice to Appear for an alleged violation of Vehicle Code
§ 27315(d)(1) [requiring seatbelts to be worn] and other code sections. Plaintiff was in
fact found guilty of this offense. For the Plaintiff to prove that he was falsely arrested
and imprisoned, Plaintiff would have to show that he was arrested without authority. In
this case, that would mean proving that the officer did not see him driving without his
seatbelt on. This cause of action would therefore necessarily require the Plaintiff to
prove the unlawfulness of his conviction for driving without a seatbelt on. Because the
Plaintiff has not shown that his conviction has been overturned, this cause of action is
barred by the rule set forth in Heck.”

9
 We agree with the trial court’s reasoning, and hold that, pursuant to Heck, supra,
512 U.S. 477, the allegations of plaintiff’s first cause of action do not state a claim for
false arrest or false imprisonment.

3. Judicial notice of superior court records
Plaintiff maintains that the trial court erred when it took judicial notice of all three
pages of Exhibit A to defendants’ request for judicial notice, since only the first page
contained a certification that the document was a true and correct copy of the original.
Plaintiff argues, “These documents are clearly separate and require independent
certification. The trial court’s erroneous admission of the matter attached as Exhibit A
. . . prejudiced [plaintiff] because the matter formed the basis of the court’s decision to
sustain the demurrer to the first . . . cause of action.”
The first page of Exhibit A is the August 23, 2011 minute order in plaintiff’s
traffic court case (case No. B428776) which indicates that plaintiff was adjudged guilty
of violating Vehicle Code sections 27315, subdivision (d)(1); 5200, subdivision (a) and
26708, subdivision (a)(1). The second page of Exhibit A is a “Court Compliance Slip”
which states: “YOU ARE ORDERED TO SATISFY THE FOLLOWING,” and includes
instructions for paying the $518 fine imposed by the court to the clerk’s office of the
West Los Angeles Courthouse by September 14, 2011. Page three of Exhibit A is a
correspondence sheet which discusses a possible appeal of plaintiff’s convictions.
Judicial notice “may be taken of,” among other things, the “[r]ecords of . . . any
court of this state.” (Evid. Code, § 452, subd. (d)(1).) As plaintiff acknowledges, page
one of Exhibit A is a certified copy of a record of the superior court. It is therefore
properly subject to judicial notice. (Evid. Code, § 452, subd. (d)(1).)6 That document
reflects plaintiff’s conviction for violating three sections of the Vehicle Code, and upon
which the trial court relied in its ruling on defendants’ demurrer to the false arrest claim.
The additional pages of Exhibit A had no bearing on the court’s ruling, since the fact of

6
Accordingly, we take judicial notice of this document pursuant to Evidence Code
sections 452, 459.
10
plaintiff’s convictions was evident from the minute order. Consequently, plaintiff has
failed to establish prejudicial error in the court’s ruling on defendants’ request for judicial
notice.

4. Ruling on plaintiff’s demurrer to defendants’ first amended answer
Plaintiff challenges the trial court’s order overruling his demurrer to defendants’
first amended answer. However, the record on appeal does not contain a copy of this
pleading. We therefore cannot assess the merits of plaintiff’s demurrer.
“It is the burden of appellant to provide an accurate record on appeal to
demonstrate error. Failure to do so precludes an adequate review and results in
affirmance of the trial court’s determination. (Denham v. Superior Court (1970) 2 Cal.3d
557, 564.)” (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.)

5. Motion for sanctions
Finally, we address plaintiff’s motion for sanctions against defendants based on
four separate grounds: defendants (1) “failed to address almost every material issue and a
multitude of controlling published authority in Mr. Wofford’s Opening Brief;” (2) “failed
to serve their Brief on the California Solicitor General as required by Civil Code section
51.1 and comply with the format provisions of rule 8.29 (a) and (b) of the California
Rules of Court;” (3) filed a frivolous motion to dismiss the appeal; and (4) “unreasonably
violated the policies governing extensions of time under rule 8.63(a) of the California
Rules of Court because their Brief and their Motion to Dismiss were not accurate and
complete submissions that assist the court.”
Rule 8.276 of the California Rules of Court provides in part: “(a) On motion of a
party or its own motion, a Court of Appeal may impose sanctions, including the award or
denial of costs under rule 8.278, on a party or an attorney for: [¶] (1) Taking a frivolous
appeal or appealing solely to cause delay; [¶] (2) Including in the record any matter not
reasonably material to the appeal’s determination; [¶] (3) Filing a frivolous motion; or [¶]

11
(4) Committing any other unreasonable violation of these rules.” (Cal. Rules of Court,
rule 8.276(a).)
As to plaintiff’s first stated ground for sanctions, there is no requirement that a
respondent address all issues raised in an opening brief; indeed, a respondent may elect to
not file a brief on appeal. With regard to the second ground, because plaintiff did not
appear for trial and thus abandoned his Civil Code section 51.1 claim, that claim is not
before us on this appeal. Consequently, defendants were not required to serve their
respondents’ brief on the Solicitor General. And we do not agree that defendants
unreasonably violated the policies governing extensions of time under rule 8.63(a) of the
California Rules of Court.
A more substantial ground for plaintiff’s sanctions motion is the assertion that
defendants filed a frivolous motion to dismiss the appeal. In that motion, defendants
argued that plaintiff had appealed from an unsigned minute order, which is neither an
appealable order nor a judgment. This was factually incorrect, as the trial court had
signed the minute order dismissing the action. As defendants subsequently
acknowledged, the signed order of dismissal constituted an appealable judgment. (Code
Civ. Proc., §§ 581d, 904.1.) The motion to dismiss was also based on the fact that
plaintiff’s opening brief on appeal did not address the dismissal order. Defendants
claimed that plaintiff had therefore waived his right to challenge the trial court’s order
dismissing the action. As we explain above, by failing to challenge the dismissal order,
plaintiff waived all of his causes of action which had survived demurrer. He did not,
however, waive his right to challenge his false arrest cause of action, which was
dismissed as a result of defendants’ successful demurrer.
While the foregoing establishes that defendants’ motion to dismiss was factually
and legally infirm, plaintiff has failed to establish that the motion was made in bad faith
for the purpose of harassment or delay. We note as well that plaintiff’s actions in

12
prosecuting this lawsuit have not been above reproach: plaintiff failed to appear for trial
without notice to defendants, thereby delaying the conclusion of this litigation for many
months. Under these circumstances, we deny plaintiff’s request for sanctions.

DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GOODMAN, J.
We concur:

MOSK, Acting P.J.

KRIEGLER, J.


Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
13