Opinion
D057630
12-13-2011
BEEJAY, LLC, Plaintiff, Cross-defendant and Respondent, v. PAMELA LYNN ORTEGA et al., Defendants, Cross-complainants and Appellants; JON WILLIS et al., Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2007-00070836-CU-BC-CTL)
APPEAL from a judgment of the Superior Court of San Diego County, David B. Oberhotlzer, Judge. Affirmed.
In this action arising out of the sale of a business, the plaintiff Beejay LLC (Beejay) recovered $118,177.95 following a court trial against defendants Pamela Lynn Ortega and Sean Michaels Ortega (the Ortegas) on its claim for breach of a promissory note. The Ortegas recovered $64,000 on their breach of contract cross-complaint against Beejay, Jon Willis and Lynda Willis (the Willises). The Ortegas' fraud claim was dismissed. Thereafter, the court entered a judgment for Beejay in the net amount of $54,277.95.
On appeal, the Ortegas, appearing in propria persona, assert the court erred in awarding damages to Beejay because no evidence was presented that Beejay fulfilled its contract with the Ortegas.
For reasons we shall explain, we conclude that the Ortegas have forfeited their claims on appeal. Accordingly, we affirm the judgment.
FACTUAL BACKGROUND
In July 2007 Beejay filed a complaint alleging that the Ortegas had defaulted on a promissory note given as part of the sale of Amazing Comics and Collectibles. The Ortegas filed a cross-complaint for breach of contract and fraud against Beejay and its principals, the Willises. The Ortegas asserted that the Willises had "refused to turn over 90 [percent] of the value of the business at close of escrow, had stolen over $30,000.00 from the Ortega family, and left the business with damages totaling over $1,500,000.00 . . . ."
As stated above, following a court trial, Beejay was awarded a net recovery of $54,277.95.
DISCUSSION
A. Applicable Legal Principles
The legal principles that guide our analysis are clear. Because a trial court's decision is presumed to be correct, it is the appellant's burden on appeal to show the court prejudicially erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632.) 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 of authority." (All further rule references are to the California Rules of Court.) 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." Furthermore, an appellant's opening brief must "[p]rovide a summary of the significant facts limited to matters in the record." (Rule 8.204(a)(2)(C).)
"As a general rule, '[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.' " (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, 1245, fn. 14; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey, supra, 63 Cal.App.4th at p. 1115.)
B. Analysis
Here, the Ortegas' opening brief is devoid of legal arguments and citations to legal authority, which are generally required under rule 8. 204(a)(1)(B).
More significantly, in violation of rule 8.204(a)(1)(C), the Ortegas' opening brief fails to support any of their factual assertions with relevant citations to the appellate record. We note that by order dated January 20, 2011, this court returned the Ortegas' original opening brief to them on the ground that their brief did not contain citations to the record as required by rule 8.204(a)(1)(A)-(C).
The Ortegas then filed a new opening brief that contains handwritten citations to the clerk's transcript. However, virtually all of these citations do not support the facts and arguments made in the opening brief. The vast majority of the Ortegas' discussion concerns testimony at trial. However, the Ortegas did not include the reporter's transcript as part of the record on appeal.
The record reflects that the parties stipulated to not have the trial proceedings reported. At oral argument, Sean Michael Ortega explained that the Ortegas could not afford to pay for a court reporter. While we sympathize with the Ortegas' plight, we cannot determine if error occurred during the trial without a record of that proceeding.
The Ortegas could have requested a "settled statement" to replace the reporter's transcript in such a situation. (Rule 8.137.) This is allowed where the oral proceedings were not reported. (Rule 8.137(a)(2)(B).) Appellants who elect to proceed in this manner must file a motion with the superior court to use a settled statement at the same time as the notice designating the record on appeal. (Rule 8.137(a)(1).) If the court grants the motion, the appellant then files a proposed statement that contains a "condensed narrative of the oral proceedings that the appellant believes necessary for the appeal." (Rule 8.137(b)(1).) The respondent then has an opportunity to propose amendments to the statement. (Rule 8.137(b)(4).) The trial judge will thereafter hold a hearing to "settle" the statement. In doing so, the trial judge may rely on its recollection of the proceedings, notes taken during the trial, and may even retake witness testimony to assist in settling the statement. (Rule 8.137(c)(1) & (2); Western States Const. Co. v. Municipal Court of San Francisco (1951) 38 Cal.2d 146, 150.)
Unfortunately, this procedure was not utilized, and we have no record of the trial proceedings from which to review the Ortegas' claims of error. Accordingly, the Ortega's claims of error on appeal must be considered forfeited as they cannot demonstrate the evidence does not support the judgment. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002-1003 [appellant's claim considered abandoned where appellant failed to provide reporter's transcript of relevant proceeding]; In re Angel L. (2008) 159 Cal.App.4th 1127, 1136-1137 [absent a record of pertinent oral proceedings, "a reviewing court will presume the evidence supports the judgment"].)
In reaching the foregoing conclusions, we are mindful that the Ortegas represent themselves on appeal. However, their status as a parties appearing in propria persona does not provide a basis for preferential consideration. "A party proceeding in propria persona 'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' [Citation.] Indeed, ' "the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.(First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; see also Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.)
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
_________________
NARES, J.
WE CONCUR:
_________________
McCONNELL, P. J.
_________________
HALLER, J.