Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 378232, Roger M. Beauchesne, Judge.
Antonio Alcaraz Diaz, in pro. per., for Plaintiff and Appellant.
Caulfield, Davies & Donahue, James R. Donahue and John C. Adams for Defendant and Respondent.
OPINION.
Hill, J.
STATEMENT OF THE CASE
On February 21, 2006, appellant Antonino Alcaraz Diaz, acting in propria persona, filed a contract complaint in Stanislaus County Superior Court. Appellant named respondent John Lee as defendant and prayed for $60,950 in damages, interest, and attorney fees according to proof. Although the complaint did not set forth formal causes of action, the accompanying civil case cover sheet identified causes of action for auto tort, asbestos property damage, unfair business practices, breach of contract, inverse condemnation, and commercial unlawful detainer, among other things.
In the superior court, appellant referred to himself by the surname “Alcaraz.” In this court, appellant generally refers to himself by the surname “Diaz.” We will use the surname “Diaz” for purposes of this appeal.
On April 20, 2006, the court filed a formal order sustaining respondent’s demurrer to complaint for failure to state facts sufficient to constitute a cause of action and granting 20 days leave to amend.
On May 2, 2006, appellant filed a first amended contract complaint and again prayed for $60,950 in damages, interest, and attorney fees according to proof.
On May 18, 2006, respondent filed a motion to dismiss the action for appellant’s failure to amend the complaint within the time allowed by the court.
On August 18, 2006, the court filed a formal order granting respondent’s motion to strike first amended complaint.
On August 31, 2006, the court denied appellant’s motion for change of venue to San Mateo County.
On October 25, 2006, appellant filed a second amended complaint alleging one cause of action for general negligence and praying for loss of income of approximately $60,950 or according to proof.
On October 26, 2006, appellant filed a substitution of attorney-civil to act in propria persona in place and stead of attorney David F. Anderson.
On November 13, 2006, respondent filed an answer generally denying the allegations of appellant’s second amended complaint and setting forth six affirmative defenses.
On May 11, 2007, appellant filed a settlement conference statement seeking $180,000.
On July 9, 2007, respondent filed a motion for summary judgment alleging he could not be held personally liable for the conduct of Valley Plaza, Inc. and that the underlying fire was caused by arson and not by respondent’s alleged negligence.
On September 28, 2007, the court granted respondent’s unopposed motion for summary judgment.
On October 15, 2007, the court filed formal orders granting respondent’s motion to compel responses to interrogatories and request for sanctions and motion for summary judgment.
On the same date, the court filed a separate judgment following order granting summary judgment.
On October 24, 2007, appellant filed a timely notice of appeal from the formal summary judgment (Code Civ. Proc., § 437c).
A summary judgment entered under Code of Civil Procedure section 437c is an appealable judgment as in other cases. (Code Civ. Proc., § 437c, subd. (m)(1).)
On January 31, 2008, this court granted respondent’s motion to augment the record with a supplemental clerk’s transcript to include numerous pleadings in the case that were not included in the clerk’s transcript on appeal.
STATEMENT OF FACTS
Respondent John Lee is the controlling shareholder and president of Valley Plaza, Inc., a California corporation. Valley Plaza, Inc. owns the Valley Plaza Shopping Center (center) on Kansas Avenue in Modesto. The center is a one-story, L-shaped strip mall with multiple businesses. Wayne R. Yoder, of Yoder Property Management, is the manager of center. Effective February 1, 2003, the center entered into a five-year commercial lease with one Phu Dinh Pham for 900 Kansas Avenue, suite E, a unit of the center. Pham subsequently operated a billiard parlor in suite E under the name “Pham’s Billiards.”
Effective July 31, 2004, Pham, appellant, and Valley Plaza, Inc. executed an assignment of the February 1, 2003 lease and consent to assignment. Pursuant to the assignment, Pham assigned and transferred to appellant all of his right, title, and interest in the lease. Appellant in turn assumed and agreed to perform all of the provisions of the lease as a direct obligation to the landlord. Valley Plaza, Inc. consented to the assignment. Paragraph 8.2 of the lease required the lessee to maintain commercial general liability insurance. Paragraph 8.4 of the lease required the lessee to maintain insurance coverage on all personal property, trade fixtures, and lessee-owned alterations and utility installations. Paragraph 8.8 of the lease provided that lessor was not liable for any damages arising from any act or neglect of any other lessee of the lessor nor from the lessor’s failure to enforce the provisions of any other lease in the center. The lease further provided that, notwithstanding lessor’s negligence or breach of lease, lessor was “under no circumstances . . . liable for injury to Lessee’s business or for any loss of income or profit therefrom.”
On August 10, 2004, Pham and his wife, Buong T. Nguyen, sold the billiard business to appellant and his wife, Rafaela Alcaraz, who renamed the business “El Aguila Billiards.” Pursuant to the written agreement of sale, appellant and his wife agreed “to take over and transfer the existing lease into Buyers’ names which lease shall be in effect from date Buyers assumes control of Business and until January 2, 2008.” On November 13, 2004, a fire occurred at Club Suave, another tenant in the center. Club Suave was located at the apex of the L-shaped center. Samuel J. Campbell, a private forensic fire investigator, examined the Club Suave premises and conferred with Modesto Fire Department investigators and Fire Captain Bill Wallace.
Based on his personal observations and consultations, Campbell noted the restroom area at Club Suave was heavily damaged by the fire. The attic space over the men’s restroom sustained the most fire damage. The odor of gasoline was very noticeable in samples taken from the wall dividing the men’s and women’s restrooms at Club Suave. Campbell collected a sample of drywall from the ceiling above the men’s restroom and submitted it to Great Lakes Analytical Laboratory for examination. The sample tested positive for gasoline. Campbell and Captain Wallace concluded the fire was intentionally set and that gasoline was the accelerant. Captain Wallace noted that a vent over the men’s restroom had been removed before the fire was set. In Campbell’s view, the gasoline was poured into the premises through the roof vent over the men’s restroom. Some of the gasoline traveled through the exhaust system into the restroom while the rest remained in the attic space above that restroom.
Respondent’s insurer hired Coit Restoration Company to repair structural damage in appellant’s unit after the fire. Despite these repairs, appellant alleged in his second amended complaint:
“Defendant, John Lee and Does 1 through 20, are negligent with respect to those areas under their control and/or legal responsibility, including common areas, in that they failed to inspect the premises, failed to properly maintain and repair the premises, failed to warn of the dangers in the premises, as well as failed to control those individuals on the premises, which resulted in the fire that occurred on or about November 14, 2004, in and about the premises located at 900 Kansas Avenue, Suite E, Modesto, California 95350, a portion of which is leased to Plaintiff by Defendant Lee. As a result of the fire, plaintiff’s business known as El Aguila Billiards, was unable to open for business for approximately 33 days. The resulting loss of income, and failure to abate rent was due to the conduct of Defendants.”
In a settlement conference statement filed May 11, 2007, appellant maintained the repairs to his premises were negligent and that he sustained damages to his floor and his pool tables, among other things.
On July 9, 2007, respondent filed a motion for summary judgment alleging, among other things: (1) respondent was not the owner of the leased property; Valley Plaza, Inc. was the lessor; (2) even if respondent was the owner of the leased property, there was no evidence to show he was personally responsible for the fire or for appellant’s claimed damages; (3) the lease required each tenant to maintain general commercial liability insurance at certain minimum levels but appellant failed to do so; and (4) the lease further provided that lessor was not responsible for the tenant’s damaged property or lost income.
According to a March 1, 2005 letter from Wayne R. Yoder and his son, Jason W. Yoder, appellant did not have a current proof of insurance certificate on file in their office as required by the lease agreement that appellant assumed.
Appellant failed to file written opposition to the motion for summary judgment and did not appear at the September 28, 2007 hearing on respondent’s motion. The court summarily concluded respondent established his prima facie showing based upon undisputed facts that “he has no liability for the negligence alleged in the second amended complaint.” On October 15, 2007, the court filed an order granting the motion and a formal judgment to similar effect.
DISCUSSION
In his brief on appeal, respondent also addresses his sustained demurrer to appellant’s original complaint and his successful motion to strike appellant’s first amended complaint. Appellant fails to address these issues in his opening brief on appeal and the issues may be deemed forfeited. (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125.)
In a two-page opening brief with numerous attachments, appellant sets forth his version of the facts underlying the fire, the restoration efforts, the damages to his premises and business, his relationship with respondent Lee and property manager Yoder, and the conduct of the four counsel he retained to assist him in this matter. Appellant does not specifically address the grant of the motion for summary judgment.
A. Procedural Concerns
We initially address the form of appellant’s brief. Under the law, a party may choose to act as his or her own attorney. Such a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. Thus, as is the case with attorneys, in propria persona litigants such as appellant must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
The judgment of the trial court is presumed to be correct and it is the appellant’s burden to affirmatively show error. To demonstrate error, the appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. When a point is asserted without argument and authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court. Hence, conclusory claims of error will fail. In addition, an appellant’s brief must state each point under a separate heading or subheading summarizing the point. This is not a mere technical requirement. Rather, it is designed to lighten the labors of appellate tribunals by requiring litigants to present their cause in a systematic manner for adjudication. Under California law, it is not the role of an appellate court to carry out this burden. (In re S.C. (2006) 138 Cal.App.4th 396, 410-412; Wallace v. Thompson (1954) 129 Cal.App.2d 21, 22.)
Appellant’s brief on appeal fails to comply with the requirements of California Rules of Court, rule 8.204 (contents and form of briefs), particularly the requirements of a table of authorities, separately stated points, citations to the record, statement of the nature of the action, statement of the finality of the judgment, and summary of significant facts limited to matters in the record (Cal. Rules of Court, rule 8.204(a)). If, as here, the brief is filed, the reviewing court may on its own motion without notice (a) order the brief returned for corrections and refilling within a specified time; (b) strike the brief with leave to file a new brief within a specified time; or (c) disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e).) In view of the press of court business, the scarcity of judicial resources, and the fact this appeal has been pending for nine months, the most reasonable course of action is to disregard the noncompliance.
B. The Summary Judgment
Appellant implicitly contends the trial court erroneously granted respondent’s motion for summary judgment.
The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72.) A motion for summary judgment should be granted if the submitted papers show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant meets the burden of showing a cause of action has no merit if he or she shows that one or more elements of the cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show a triable issue of material fact exists. (Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 229.)
On appeal, the reviewing court first identifies the issues raised by the pleadings. Second, the reviewing court determines whether the moving party has established entitlement to summary judgment, i.e., whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, the reviewing court considers whether the opposition raised triable issues of fact. The appellate court reviews these matters de novo. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) In other words, we exercise our independent judgment deciding whether undisputed facts negate plaintiff’s claims as presented in the complaint or state a complete defense. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 865.)
As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues that have been adequately raised and briefed. (Christoff v. Union Pacific Railroad Co., supra, 134 Cal.App.4th at p. 126.)
In the instant case, appellant essentially offers a one-page recitation of facts underlying the November 13, 2004 fire and its aftermath. Appellant’s brief does not cite to the record, state separate points of contention, or set forth supporting legal authorities. Thus, we cannot say that any issue has been adequately raised and briefed under California Rules of Court, rule 8.204. Even on de novo review from a summary judgment, issues not raised in an appellant’s brief are deemed waived or abandoned. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Moreover, we note appellant failed to file any written opposition to respondent’s motion for summary judgment. We specifically note appellant failed to file a separate statement of undisputed facts in the trial court (Code Civ. Proc., § 437c, subd. (b)(3)). Without a separate statement of undisputed facts—with references to supporting evidence in the form of affidavits or declarations—it is impossible for the opposing party to demonstrate the existence of disputed facts. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) The failure of the opposing party to submit a separate statement of disputed and undisputed facts corresponding to the moving party’s separate statement may, in the trial court’s discretion, constitute sufficient grounds for granting the motion for summary judgment. (Code Civ. Proc., § 437c, subd. (b); Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179.)
In sum, on appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers, except that to which objections have been made and sustained. Nevertheless, the appellant has the burden of showing error occurred. He or she must support the argument in the briefs by appropriate references to the record, which includes providing exact page citations. An appellate court is not required to search the record to determine whether or not it supports appellant’s claim of error. Under California law, it is the duty of counsel—or, in this case, the appellant acting in propria persona—to refer the reviewing court to the portions of the record that support appellant’s position. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141.)
Here, there are no express claims of error, no articulated arguments, no citations to the record, and no references to supporting case or statutory authorities. Appellant’s challenge to the grant of summary judgment must be deemed waived or abandoned.
Assuming arguendo appellant somehow preserved his contention for appeal, he fails to demonstrate that reversible error occurred. The second amended complaint alleged respondent was negligent by failing to inspect the leasehold premises, properly maintain and repair those premises, warn of the dangers in the premises, and failing to control individuals on the premises “which resulted in the fire that occurred on or about November 14, 2004.” As respondent notes, the basic elements of negligence are (1) a defendant with a legal duty to conform to a standard of conduct to protect the plaintiff; (2) the defendant’s failure to meet this standard of conduct; (3) the defendant’s failure as the legal cause of the resulting injury; and (4) damages to the plaintiff. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.) Forensic fire investigator Campbell filed a declaration in support of motion for summary judgment that concluded “[t]here is simply no other explanation for this fire other than arson.” Respondent filed a supporting declaration in which he stated: “I did not cause the fire at Club Suave. I was not even in Modesto on November 13, 2004. I am unaware of how I could have prevented an arson fire.” Appellant did not dispute these declarations in the superior court. A person may not recover damages based upon the violation of a criminal statute or ordinance unless he or she is one of the class of persons for whose benefit the statute or ordinance was enacted. (Richards v. Stanley (1954) 43 Cal.2d 60, 62.)
DISPOSITION
The judgment is affirmed. Costs on appeal to respondent.
WE CONCUR: Vartabedian, Acting P.J., Dawson, J.