Opinion
D058064 Super. Ct. No. 37-2008-00066253-CU-OR-EC
11-15-2011
SAMUEL HOWARD, JR., et al., Plaintiffs and Respondents, v. VIRGINIA HOWARD, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.
I.
INTRODUCTION
Samuel Howard, Jr., Samueletta Howard, and Bobbie J. Tinsley-Howard (collectively respondents) filed a complaint for the partition of certain real property owned by the respondents and defendant, Virginia Howard (Virginia). Ten days prior to the date scheduled for the commencement of the trial, the trial court denied Virginia's ex parte application to continue the trial. At the time set for trial, Virginia, who was representing herself, appeared in court, and waived the presence of a court reporter. Prior to the commencement of the presentation of testimony, Virginia left the courtroom. The trial court permitted the respondents to present their case in Virginia's absence. The court subsequently entered an interlocutory judgment ordering partition of the property. Virginia appeals from the interlocutory judgment (Code Civ. Proc., § 904.1, subd. (a)(9)).
Unless otherwise specified, all subsequent statutory references are to the Code of Civil Procedure.
In her brief on appeal, Virginia raises a series of claims that are either without adequate support in the record, lack legal authority, and/or are unintelligible. We conclude that Virginia has failed to demonstrate that the trial court committed any reversible error. We affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2008, the respondents filed a complaint seeking the partition of certain real property owned by the respondents and Virginia. The respondents alleged that Samuel, Samueletta, Bobbie, and Virginia each owned an undivided one-fourth interest in the property as tenants in common. The respondents requested that the court order the partition to be accomplished by means of sale of the property rather than physical division because "[t]he subject property is a single family residence and cannot be divided."
In March 2009, Virginia filed a motion for summary judgment. In June 2009, the trial court denied the motion. In July 2009, Virginia filed a motion for reconsideration of the trial court's order denying her motion for summary judgment. In September 2009, the trial court denied the motion for reconsideration. Virginia filed a second motion for reconsideration, which the trial court also denied.
On October 2, 2009, the trial court confirmed that trial of the matter would commence on October 23. On October 9, Virginia filed an ex parte application seeking to continue the trial on the ground that she had "been ill with tooth pain and [needed] ongoing dental care and treatment." On October 13, the trial court denied Virginia's request to continue the trial.
On October 23, the parties appeared in court. Virginia waived the presence of a court reporter. Prior to the commencement of the trial, Virginia left the courtroom. The court determined that the trial would proceed in Virginia's absence. At the conclusion of the trial, the court appointed a referee to oversee the partition.
In February 2010, the trial court entered an interlocutory judgment of partition. In its judgment, the court found that the respondents were the owners of three-fourths of the subject property and that Virginia owned one-fourth of the property. The court appointed a referee and specified that the referee was empowered to set the sale price of the property. The court also stated, "[Respondents] shall have ninety (90) days from the day the price is set to purchase [Virginia's] interest in the real property by depositing that amount with the referee." The court indicated that the referee was to sell the property to the public if the respondents did not purchase Virginia's share of the property. In addition, the judgment specified that the parties were to each receive one-fourth of the proceeds of any sale after deduction for certain costs associated with the sale and the costs of partition. The court retained jurisdiction of the matter to review the referee's report on the sale of the property and to order any other equitable adjustments as the court deemed necessary.
In April 2010, Virginia, who was now represented by counsel, filed a motion to set aside the judgment pursuant to section 473, subdivision (b). In her motion, Virginia stated, "[Virginia] now knows and admits she was wrong to leave the court at the commencement of the trial of this matter but because of her lack of knowledge of the trial process and misunderstandings of the applicable rules of procedure did not realize that by leaving the [courtroom] she was abandoning any opportunity for her to have her position heard by the court in the determination of the matter."
The respondents filed an opposition to the motion to set aside. In May 2010, the court held a hearing on the motion. At the hearing, the court stated in relevant part, "It took me years to get this case moved along, and we finally get it to trial." The court continued:
"So we finally get to trial day. I said, okay, we're going to go to trial. Bring your witnesses. I do that on every case where there's a pro per [i.e., a party representing herself]. I try to be as considerate as I can. And then trial day comes, and [Virginia] makes an appearance, and she just leaves. And I'm going, what? So it's not like she didn't know. No. No. She was in my courtroom, asked for a continuance, which I denied, because having said on all of the other hearings we're going to trial. And then she just walked out and left. And that's not fair to that side of the table."
The court denied the motion to set aside the judgment.
In August 2010, Virginia filed a notice of appeal from the February 2010 interlocutory judgment.
III.
DISCUSSION
A. The appeal is timely
While this appeal was pending, the respondents filed a motion to dismiss the appeal on the ground that it is untimely. The respondents also requested that we impose sanctions on Virginia for her prosecution of an untimely appeal. We deny the motion to dismiss and deny the request for sanctions because the appeal is timely.
The trial court entered the interlocutory judgment that is the subject of this appeal on February 18, 2010. Although the respondents contend in their brief in support of their motion to dismiss that "a notice of entry of judgment was filed by the Superior Court clerk and served on all parties," the record does not indicate that the clerk served such a notice of entry of judgment. (See Cal. Rules of Court, rule 8.104(a)(1)). Nor does the record indicate that Virginia served a notice of entry of judgment or that a party served her with such a notice. (See rule 8.104(a)(2).) Thus, pursuant to rule 8.104(a)(3), Virginia had 180 days after entry of judgment to file a notice of appeal. Virginia filed a notice of appeal on August 12, 2010, 175 days after February 18. The appeal is therefore timely.
Unless otherwise specified, all subsequent rule references are to the California Rules of Court.
We reject respondents' argument that Virginia's appeal is untimely under rule 8.108, which extends the time to appeal in certain cases in which a motion for new trial or motion to vacate judgment is filed. Rule 8.108(a) provides, "This rule operates only to extend the time to appeal otherwise prescribed in rule 8.104(a); it does not shorten the time to appeal." For the reasons stated in the text, Virginia's appeal is timely under rule 8.104(a)(3), and rule 8.108 did not operate to shorten her time to appeal.
Accordingly, we deny the respondents' motion to dismiss and deny their request for sanctions. B. Virginia has not demonstrated that the trial court committed any reversible error
Virginia raises 19 separately captioned claims on appeal. Certain fundamental rules govern this court's consideration of Virginia's claims:
"Our review is governed by well-settled principles. As with any civil appeal, we must presume the judgment is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the judgment. [Citations.]" (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.)
Virginia has failed to refute the presumption of correctness with respect to any of her claims because all of her claims lack adequate support in the record, legal authority, and/or intelligible legal argument. With respect to claims that lack adequate factual support in the record, Virginia raises a series of arguments that are foreclosed by her failure to have the trial transcribed. For example, she argues that the trial court erred in failing to "consider the repairs [to the subject property] done by [Virginia]," failing to find that respondents "did not repair [the] property," and failing to order an allotment for improvements that she made to the property. These claims, and other similar claims, all fail for lack of a reporter's transcript:
"Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Virginia also makes a series of arguments that cite no legal authority. For example, she argues that the judgment must be reversed because the trial court did not serve her with a copy of the judgment, the court did not make an order permitting an appraiser to enter the property, and two of the respondents do not live in San Diego. Absent legal authority indicating that these purported facts support reversal of the judgment, we deem such contentions forfeited. (See People ex rel. Reisig v. Acuna (2010) 182 Cal.App.4th 866, 879 [" 'An appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as [forfeited], and pass it without consideration." [Citation.]' [Citation.]"].)
Finally, Virginia makes a series of arguments that do not state a cognizable legal argument. For example, the entirety of one of her claims states:
"ARGUMENT # 14 DISCOVERY
"Appellant/ defendants Discovery was filed in a timely manner
"Response to Interrogatories-General and Responses to Request for Admissions
"Refer to CT (vol 1) pgs 000052-00060
"Respondent Andrew Griffin for the Plaintiffs had no Disovery Available Proof of Service letter requesting Discovery refer to
"CT (vol 1) pg 00150
"CT (vol 1) pgs 00052-00060
"CT (vol 1) p s 000148-00150
"CT (vol 1) pg 00195
"A. The Standard or Review De Novo (from the beginning) and
"B. The elements of the action
"CCP 2030.290 (Plaintiffs failure to produce Discover)
"CCP 2023.010"
We have reprinted the argument exactly as it appears in Virginia's brief.
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This court is not "obligate[d] . . . to cull the record for the benefit of the appellant." (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.) In addition, "Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, [they are] . . . waived. [Citations.]" (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) It is not this court's role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness.
In sum, Virginia failed to present this court with a brief that provides a legal or factual basis for reversing the trial court's judgment. Further, Virginia "is not exempt from the . . . rules [of appellate procedure] because [s]he is representing [her]self on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch 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. [Citation.]' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Accordingly, we conclude that Virginia has not demonstrated that the trial court committed any error in ordering the partition of the property.
IV.
DISPOSITION
The judgment is affirmed. Respondents are entitled to costs on appeal.
AARON, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.