Opinion
NOT TO BE PUBLISHED
City and County of San Francisco, Super. Ct. No. 459078
Haerle, J.
I. INTRODUCTION
The trial court granted judgment in favor of plaintiff New York Chocolate & Confections Company (NY3C), a Delaware corporation, and struck a cross-complaint by defendant Hausmann-Alain Banet (Banet) (a.k.a. Ousmanne Gbane) as sanctions (Code Civ. Proc., § 2023.030, subds. (d)(1) & (d)(4)) for Banet’s willful noncompliance with discovery orders. Banet appeals, raising numerous arguments. We affirm the sanctions order and ensuing judgment, holding that the briefing provided by Banet fails, for want of authority or record citation, to establish abuse of discretion.
Banet’s notice of appeal, file stamped “August” 19, 2007, but hand-corrected to read “September,” challenges an “order and judgment . . . entered on September 12, 2007 and September 17, 2007.”
II. FACTUAL AND PROCEDURAL BACKGROUND
An appellant’s appendix initially filed by Banet does not provide an adequate overview of the case, but NY3C has furnished a four-volume appendix of its own that fills many voids. The pleading history is not directly relevant to the terminating sanctions Banet appeals but, as will be seen, seems to explain some of the “issues” he presents.
In December 2006, NY3C filed an original complaint against Banet (sued as Ousmanne Gbane, with other specified aliases), and Delaware entities Lion Capital Management, LLC (Lion) and Lion Capital Management Group, LLC (LCM). In a single count for conversion, the complaint alleged that Banet was associated with LCM and the president and chief executive officer (CEO) of Lion, that he received at Lion’s offices in San Francisco a State of New York tax refund check to NY3C for $565,479, that he deposited the check in an account that was not NY3C’s, and that, despite interim removal as an NY3C director by NY3C’s board of directors, he refused to relinquish the funds. Damages were sought for the amount of the check plus prejudgment interest. NY3C’s counsel was the law firm of Reed Smith LLP (Reed Smith). Banet and his codefendants secured counsel and, in April 2007, filed an answer.
Lions, in a pleading describing Banet as its president and CEO and itself as registered to do business in California as LCM, then cross-complained against NY3C, the Fonds de Regulation et de Controle Café-Cacao (FRC) (a government agency in the Republic of Ivory Coast), and individuals allegedly appointed by the FRC to the board of NY3C. It charged breaches of fiduciary duty regarding NY3C’s formation and capitalization, with rights of alleged minority shareholders asserted in causes of action labeled “ shareholder derivative action.” The Ivory Coast cross-defendants appeared specially to challenge personal jurisdiction. They prevailed, in June 2007, on a motion to quash, but the cross-complaint was not ordered quashed until August 21, 2007.
Meanwhile, in late May 2007, NY3C filed a first amended complaint (FAC), and five days later, on May 29, the court granted a motion by counsel for Banet, Lion and LCM to withdraw from representation. That motion had been pending since mid-April.
On July 27, 2007, NY3C noticed a motion for terminating sanctions. The motion cited over four months of discovery noncompliance and violations of court orders.
On August 15, six days before the court would order his first cross-complaint quashed, Banet filed a nearly identical new cross-complaint, this time acting in propria persona. This ignored the court’s June ruling of no personal jurisdiction over these same cross-defendants.
On September 13, the court granted NY3C’s motion for terminating sanctions, finding “willful, tactical, egregious and inexcusable” discovery violations and striking the answer filed by Banet, Lion and LCM. A judgment consistent with that order was filed on September 17. (See fn. 1, ante.)
Notice of entry of judgment issued on September 17, and Banet filed a notice of appeal on September 19, 2007.
NY3C calls our attention to post-judgment events. These are not relevant to our review of the correctness of the order and default judgment, for “ ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics added.)
However, NY3C argues that these events cast doubt on our appellate jurisdiction in that, after the September 17 judgment, Banet continued to pursue his newly-filed cross-complaint, a pleading that added allegations of ethical breaches and misrepresentation by the law firm Reed Smith and two of its member attorneys. The Reed Smith defendants demurred and moved to strike based on litigation-privilege and anti-SLAPP grounds, and the Ivory Coast cross-defendants had to specially appear on a motion to quash, once again, for lack of personal jurisdiction. The court granted the motion to quash, and it sustained the Reed Smith defendants’ demurrer, but with leave to amend.
In late December 2007, Banet filed the same claims, this time in a first amended cross-complaint, and cross-defendants brought the same defensive motions. The court granted the motions, entered judgment for all defendants, and additionally declared Banet a vexatious litigant.
NY3C argues that Banet’s actions in pressing further claims rendered the action non-final, and thus Banet’s appeal from the terminating sanctions premature, at least to the extent that he persisted in pressing claims against NY3C, or perhaps tried to raise claims derivatively on behalf of minority shareholders, when NY3C, as a corporation, has no legal ability to appeal except through an agent (see Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730). The implicit but unspoken premise for this view seems to be the one-final-judgment rule (see generally Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701), but we are troubled by the practical implications of what NY3C proposes.
Most troubling is the notion that a losing party can render an otherwise final judgment non-final by persisting in serial post-judgment filings that, on their face, are invalid or already decided. This seems like a dubious proposition that might fuel serial precautionary appeals as a trial court wrestled with further filings—filings that, as here, were ultimately deemed meritless and in bad faith.
We are not advised by either party that Banet has appealed or attempted to appeal from the post-judgment orders.
Moreover, whatever the wisdom of such arguments, NY3C’s interests are fully protected here by affirming the terminating sanctions based on rudimentary law that an appellant who fails to show error fails to overcome a presumption that the appealed-from order or judgment is deemed correct. (Walling v. Kimball (1941) 17 Cal.2d 364, 373.) Accordingly, we do not pass on NY3C’s alternative arguments.
III. DISCUSSION
An appealed-from judgment or order is presumed correct. “Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and ‘present argument and authority on each point made’ [citations].” (In re Sade C. (1996) 13 Cal.4th 952, 994.) He must also show error by an adequate record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575). Failure to show error results in the appellate court’s dismissal of the appeal (In re Sade C., supra, 13 Cal.4th at p. 994) or affirmance of the judgment or order, without need “to consider further the merits” of the appeal (Ballard v. Uribe, supra, 41 Cal.3d at p. 575). These general requirements apply, of course, to an appeal from an order or judgment of terminating sanctions for willful noncompliance with orders or other discovery abuses. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 487.)
Banet’s burden on the merits of the sanctions imposed here is also settled. “ ‘ “ ‘The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be willful . . . .’ ” ’ [Citation.]” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)
Banet’s briefing contains a flood of arguments, stated and restated variously. His opening brief initially enumerates eight issues. Then it states the issues eight pages later as these: “The discovery court’s ruling is contrary to the facts in this unlawful complaint. Specifically: (i) ReedSmith did not have legitimate standing as counsel to NY3C; (ii) ownership of alleged plaintiff NY3C was not presented to the Superior Court; (iii) the people involved in the unlawful lawsuit were not a party to the underlying process so the litigation privilege does not apply to this illegal complaint.; (iii) [sic] the parties to this unlawful complaint suit not clearly disclosed to defendants’ attorney; (iv) the client-counsel representation right claimed by ReedSmith to litigate this case on behalf of NY3C by an unknown party that has not proved its ownership in NY3C to the Court and to ReedSmith; (v) the alleged complaint was nothing but an orchestrated material misrepresentations by alleged plaintiff’s counsel and its unknown party that has not proved its identity to the Court. Thus, undermined the entire proceeding. Therefore, this Court should overrule the trial court’s order in its entirety.”
“1. Did attorney firm Reed Smith LLP (ReedSmith) and its associates Donald Rubenstein and Euna Kim have proper authority and legal standing to be counsels of NY3C, a Delaware corporation solely created and operated by LCM since October 3rd, 2003?
These arguments have no apparent bearing on whether the court abused its discretion in imposing the terminating sanctions. At best, they go to the merits of the stricken answer or the cross-complaint, and those arguments ceased to be material once the sanctions disposed of those matters. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823-824.)
We appreciate that Banet is acting as his own counsel and might not comprehend this distinction as an attorney would, but it makes no difference. “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.)
The only issues before us are whether the sanctions and supporting finding of willful violation of court orders are erroneous. Banet fails to make any showing in that regard. He states in his briefing, here and there, that the ruling was “excessive,” imposed without “due process,” “contrary to the facts in this unlawful complaint,” and not based on willful conduct because his derelictions were his former counsel’s fault. Not once, however, does he cite a statute or case on point. His only legal citation of any kind is a case governing review of a dismissal following a demurrer. (Silberg v. Anderson (1990) 50 Cal.3d 205, 210.) There is no demurrer ruling properly before us; this appeal is from the sanctions (see fn. 1, ante). Banet’s failure to furnish pertinent legal argument leaves his challenge waived. (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 139.)
Even if Banet had raised pertinent legal argument, he has not provided an adequate record for review. An initial appendix filed with his opening brief contains pleadings and attachments, but no motion, opposition, or any showing of what was before the trial court when it ruled on the motion for terminating sanctions. NY3C has filed, with its respondent’s brief, a four-volume appendix of its own that includes the motion matters. NY3C does this in the interest of “trying to sort out Banet’s submissions” and “in the event the court reaches the merits,” but urges that we not reach the merits or use its own appendix to “excuse Banet’s non-compliance.” Banet’s failure to provide a record of the motion and opposition means that he fails to carry his burden on appeal. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
For his reply brief, Banet had the advantage of an adequate record provided by NY3C. Nevertheless, he fails to cite any of it. Rather, he cites to a further appendix—captioned “Appellant’s Appendix, Volume 1 of 1”—that he filed for the first time with his reply brief. NY3C, of course, has had no opportunity to offer briefing on this new appendix, but we see that it contains pleadings and other matters evidently going to the merits of the action and, again, apparently nothing regarding the sanctions matters at issue on this appeal. Banet also cites to his appendix only by exhibit, without any page references. His appendix does contain two depositions, but those appear to be from an action filed in Delaware by one of the Ivory Coast cross-defendants. Banet offers no explanation as to how those transcripts were pertinent to the sanctions ruling we are asked to review, or whether the trial court ever considered them. We cannot consider on appeal matters that were not presented to the trial court when it ruled. (In re Zeth S., supra, 31 Cal.4th at p. 405; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.)
Similarly misguided is a post-briefing letter from Banet. It properly requests oral argument but then goes on to apprise us of a then-recent meeting in New York City and of “unpaid arrears invoiced in the amount of $157,476.93 as of March 26, 2008, thus making this request for an oral argument a necessity.” None of this could have been before the court below when it ruled. Moreover, an appellant cannot offer new matters for the first time at oral argument. (Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 5; In re Marriage of Reyes (1979) 97 Cal.App.3d 876, 880.)
A judgment is presumed correct on appeal (Walling v. Kimball, supra, 17 Cal.2d at p. 373), and Banet fails to show error by adequate briefing or an adequate record.
IV. DISPOSITION
The order for terminating sanctions and the ensuing judgment are affirmed.
We concur: Kline, P.J., Lambden, J.
An “Order Granting [New York Chocolate’s] Motion for Terminating Sanctions,” dated September 12, 2007, but filed the next day, grants the motion, finding Banet’s conduct to be “willful, tactical, egregious and inexcusable.” The order strikes Banet’s answer and grants judgment on NY3C’s First Amended Complaint in the amount of $606,299.00, comprised of the amount of a disputed tax rebate check ($565,479), prejudgment interest ($37,700), and sanctions ($3,120) remaining unpaid from a prior order.
A “Judgment Upon Court’s Order for Terminating Sanctions” was filed on September 17, 2007, with notice of entry filed the following day.
“2. Did ReedSmith has proper authority and legal standing to be counsels of NY3C?
“3. Did ReedSmith knew well in advance that the Fond de Regulation Café Cacao (FRC), a government agency of the Republic of Ivory Coast has not paid LCM for its 80% ownership interest it had offer to buy on May 2004? []
“4. ReedSmith knew that no board of directors of NY3C ever hired them for representation in the above case against owner LCM and Banet.
“5. Did ReedSmith knew well in advance that LCM is and has been at all time the sole guarantor of NY3C’s vendors and that LCM owns, fully operates and paid for NY3C’s invoices. Therefore, LCM and its chief executive officer did not caused any usurpation of business opportunity for NY3C nor failing to pay for ReedSmith’s alleged subscription price in NY3C.
“6. Did ReedSmith knew well in advance that they are representing the FRC, not NY3C because they cannot provide any legitimate representation standing for NY3C in the above case against owner LCM and Banet.
“7. Whether substantial evidence supports the ReedSmith and its allege client NY3C’s claim that LCM and Banet intentionally inflicted any damage on NY3C?
“8. Whether the damage decision of Commissioner Chan awarded against LCM and Banet has followed proper due process?”