Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Imperial County, Christopher W. Yeager, Judge, Super. Ct. No. ECU02108
NARES, J.
As the factual background is not pertinent to the issues presented on appeal, we need not address it.
Plaintiff Gerald Martin appeals in propria persona the court's September 7, 2006 order granting summary judgment in favor of respondents Current Wisdom, West Credit, Inc., and Harriet Barber Trust (collectively defendants) on Martin's amended complaint for breach of contract and other claims. Martin did not file any opposition to the motion and did not appear personally or through counsel at the September 7, 2006 hearing on the motion.
"[A]n order granting summary judgment is not itself appealable . . .; appeal lies from the judgment entered on the order declaring the ultimate rights of the parties." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 2:69.1, p. 2-41 (rev. #1 2006).) We treat the appeal as having been taken from the amended judgment entered against Martin on May 29, 2007. (See Ung v. Koehler (2005) 135 Cal.App.4th 186, 192, fn. 2.)
In his two-page appellant's opening brief, without any citation to authority or the appellate record, Martin contends he did not receive notice of the September 7, 2006 summary judgment hearing. Martin also challenges on unspecified grounds what he characterizes as an award of "$209,000.00 in attorney fees," but which the record shows is an award of sanctions, costs and attorney fees against him in the amount of $209,607.87.
Appended to Martin's appellant's opening brief is a five-page declaration executed by him. We do not consider Martin's declaration as our review is limited to the record on appeal.
We conclude that Martin has waived his contention he did not receive proper notice of the summary judgment hearing and, even if he had not waived it, that he has failed to meet his burden of showing he did not receive such notice. We also conclude this court lacks jurisdiction to review the portion of the amended judgment awarding $209,607.87 against him. Accordingly, we affirm the judgment.
DISCUSSION
I.
APPEAL OF THE PORTION OF THE AMENDED JUDGMENT GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS
In challenging the summary judgment granted in favor of defendants, Martin contends without any citations to authority or the appellate record that he did not receive notice of the September 7, 2006 summary judgment hearing. Martin has waived this contention.
California Rules of Court, rule 8.204(a)(1)(B) provides that an appellant's opening brief must "[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation to authority." Rule 8.204(a)(1)(C) provides in part that the brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "As a general rule, 'The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' [Citations.]" (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115.)
All further rule references are to the California Rules of Court.
Martin is not exempt from the foregoing rules because he is representing himself on appeal in propria persona. A party who chooses to act as his or her own attorney is to be treated like any other party and is entitled to the same, but no greater, consideration accorded to other litigants and attorneys. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.)
Martin has filed an opening brief that wholly omits any supporting arguments or citations to the appellate record and legal authority. We take judicial notice of the fact that in one of his prior appeals in this matter─Martin v. Barber et al. (Oct. 12, 2006, D047655)─this court affirmed an order awarding $10,000 in discovery abuse sanctions against Martin and in favor of the defendants based on similar appellate procedure violations. In an unpublished opinion, this court explained the appellate procedures he had violated and why his contentions on appeal were deemed waived. This court admonished Martin that his appearance in propria persona did not exempt him from compliance with established appellate rules.
We thus conclude Martin has waived his contention on appeal. We further conclude that even if he had not waived it, he has failed to meet his burden of showing he did not receive proper notice of the summary judgment hearing. Code of Civil Procedure section 437c, subdivision (a) provides that notice of a summary judgment and supporting papers "shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California."
Here, the record shows that defendants served Martin by mail with their notices of motion and supporting papers on June 13, 2006, and the summary judgment hearing was noticed for, and held on, September 7, 2006, 86 days later. The proofs of service indicate the motion papers were mailed to Martin at the same address that appeared on his amended complaint and also appears on his appellant's opening brief in this appeal: 62021 Plaza Road, Joshua Tree, California 92252.
II.
APPEAL OF THE PORTION OF THE AMENDED JUDGMENT AWARDING $209,607.87 IN SANCTIONS, COSTS AND ATTORNEY FEES AGAINST MARTIN
Martin also challenges on unspecified grounds the portion of the amended judgment awarding what he characterizes as an award against him of "$209,000.00 in attorney fees." Martin misrepresents the record, which shows the court awarded defendants the sum of $209,607.87, which is a combined award of (1) reasonable attorney fees and costs in favor of Current Wisdom, Inc., in the amount of $183,930.72, as ordered by the court in its May 29, 2007 order (hereafter the May 2007 order) granting Current Wisdom, Inc.'s motion for fees and costs; plus (2) discovery abuse sanctions against Martin in the amount of $10,000, which this court upheld as shown by this court's unpublished opinion in case No. D047655 filed on October 12, 2006 (discussed, ante); and (3) two additional awards of sanctions against Martin in the amounts of $350 and $12,725.37, plus accrued interest in the amount of $2,601.78. This combined award of $209,607.87 ($183,930.72 + $10,000 + $350 + $12,725.37 + $2,601.78 = $209,607.87) is incorporated into the amended judgment.
This court has no jurisdiction to review either the May 2007 order or the portion of the amended judgment ordering Martin to pay the sum of $209,607.87. Although rule 8.100(a)(2) provides that "[t]he notice of appeal must be liberally construed," it also provides that "[t]he notice is sufficient if it identifies the particular judgment or order being appealed. . . ." (Italics added.) "The rule of liberal construction does not permit appellate review of an unspecified portion of the judgment where the notice of appeal unambiguously evidences an intent to appeal from only part of the judgment or one of several separate appealable orders or judgments." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, [¶] 3:130.5, pp. 3-54 to 3-55 (rev. #1 2006); see Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624-625 [an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal]; see also Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46-47 [no appellate jurisdiction to review a separately appealable post-judgment order granting litigation costs and attorney fees where the notice of appeal unambiguously designated only a previously filed amended judgment].)
Here, we cannot construe Morris's notice of appeal as applying under the foregoing rule of liberal construction (rule 8.100(a)(2)) to either the May 2007 order or the portion of the amended judgment awarding $209,607.87 in reasonable attorney fees, costs and sanctions. Because the notice of appeal in this case unambiguously identified only the September 7, 2006 order granting summary judgment in favor of defendants, we conclude this court has no jurisdiction to review any portion of the $209,607.87 award. Accordingly, we do not reach Morris's contentions regarding that award.
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal. (Rule 8.278(a).)
WE CONCUR: McCONNELL, P. J., BENKE, J.