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Burton v. Jenkins

California Court of Appeals, Second District, Second Division
Feb 2, 2011
No. B221527 (Cal. Ct. App. Feb. 2, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No. BC416737, Rita J. Miller, Judge.

Harrison L. Burton, in pro. per., for Plaintiff and Appellant.

No appearance for Defendant and Respondent.


ASHMANN-GERST, J.

Plaintiff and appellant Harrison L. Burton (plaintiff) appeals from a trial court order dismissing his action.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On June 26, 2009, plaintiff, who is incarcerated, initiated this lawsuit against defendant and respondent Sandra Jenkins (defendant) for breach of contract and fraud. On August 5, 2009, plaintiff filed a request for entry of defendant’s default. The clerk rejected his request because “[t]he original Proof of Service [had] not been filed.”

In response, on August 10, 2009, plaintiff filed a declaration attesting to the service of the summons and complaint on defendant. Specifically, he stated that the summons and complaint were mailed to defendant.

On August 25, 2009, plaintiff filed another request for entry of default against defendant. The clerk rejected his request for entry of default because (1) “The Declaration of mailing does not have the separate address of each defendant/attorney of record, ” and (2) “Notice & acknowledgement of receipt must be signed and dated by defendant.” (Capitalization omitted)

On September 15, 2009, plaintiff filed a third request for entry of default against defendant. Again, the request was rejected because the “notice and acknowledgement of receipt [were] not signed by defendant.” (Capitalization omitted)

A case management conference was scheduled for October 26, 2009, and plaintiff filed a notice of intent to appear by telephone. According to plaintiff’s request for the sheriff or marshall to personally serve the complaint on defendant, the trial court continued the matter because plaintiff had not attempted to serve defendant by personal service.

On November 5, 2009, plaintiff filed a declaration indicating that defendant’s address was unknown; therefore he was serving papers, which may have included an application for entry of default and an acknowledgment of receipt, on the clerk.

Plaintiff filed a fourth request for entry of default on November 20, 2009. It was rejected because “[t]he original Proof of Service [had] not been filed” and because the proof of service had not been completed by the server.

On November 24, 2009, the trial court held a case management conference and a hearing on an order to show cause re: sanctions against plaintiff for failure to obtain personal service. The case was called at 10:30 a.m., and there were no appearances or calls. Accordingly, the trial court dismissed the entire action pursuant to Code of Civil Procedure sections 575.2 and 583.150, Los Angeles County Superior Court Local Rule 7.13, and Government Code sections 68607, 68608, and 68609.

Government Code section 68609 was repealed in 1992.

Plaintiff’s timely appeal ensued.

DISCUSSION

The major problem with plaintiff’s appeal lies in his opening brief. It is largely unintelligible and even a cursory review of the opening brief reveals that it does not provide us with the basic information we need to determine what is being challenged by plaintiff. As another court observed in describing a similarly inadequate brief, “[i]ndeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to ‘guess what is wrong with this picture.’” (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)

“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, in challenging a judgment, the appellant must raise claims of reversible error or other defect, and “present argument and authority on each point made.” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) “[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal.” (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)

Moreover, “‘[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. It is entitled to the assistance of counsel [or the litigant if, as here, the litigant chooses to represent himself]. Accordingly every 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 waived, and pass it without consideration.’ [Citation.] [¶] It is the duty of [an appellant], not of the courts, ‘by argument and the citation of authorities to show that the claimed error exists.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)

Since the issues as raised in plaintiff’s opening brief are not properly presented or sufficiently developed to be cognizable, we decline to consider them and treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re David L. (1991) 234 Cal.App.3d 1655, 1661; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.) Nor does plaintiff’s election to act as his own attorney on appeal entitle him to any leniency as to the rules of practice and procedure; otherwise, ignorance unjustly is rewarded. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208–209.)

For the sake of completeness, we note the following: Plaintiff filed the complaint on June 26, 2009. By November 24, 2009, he still had not properly served the summons and complaint upon defendant, even though the trial court had so advised him at least five times prior. Under these circumstances, we readily conclude that the trial court did not abuse its discretion in dismissing plaintiff’s action. (Scarzella v. DeMers (1993) 17 Cal.App.4th 1762, 1768–1771; see also Wantuch v. Davis (1995) 32 Cal.App.4th 786, 794–795 [“In order to facilitate the expeditious processing of civil cases, parties may be sanctioned for failure to comply with delay-reduction rules or court orders. [Citations.] These sanctions may include terminating sanctions, such as the striking of pleadings. [Citation.] In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the delay-reduction rules”].)

From what we can glean from plaintiff’s opening brief, he contends that the trial court’s order must be reversed because he was denied access to the courts. The appellate record does not support plaintiff’s assertion. Rather, plaintiff was given the opportunity to file all of the appropriate paperwork and was specifically told what was wrong with his numerous requests for entry of default and how to cure the defects. It follows that he was not deprived of meaningful access to the civil courts. (Wantuch v. Davis, supra, 32 Cal.App.4th at p. 792.)

For the same reasons, to the extent plaintiff claims that his action was dismissed because he failed to appear at the November 24, 2009, hearing, we are not convinced. The action was dismissed because the complaint had not been served; it was not dismissed for plaintiff’s failure to appear.

Finally, we reject plaintiff’s theory that the trial court’s order should be reversed because he was unable to obtain relevant information from the prison law library. The appellate record does not support plaintiff’s claim that he was unable to obtain requisite information to prosecute his action against defendant. Rather, as noted above, the trial court advised plaintiff numerous times what he needed to do in order to proceed with this action.

DISPOSITION

The order of the trial court is affirmed. Defendant is entitled to costs on appeal.

We concur: BOREN, P. J., DOI TODD, J.


Summaries of

Burton v. Jenkins

California Court of Appeals, Second District, Second Division
Feb 2, 2011
No. B221527 (Cal. Ct. App. Feb. 2, 2011)
Case details for

Burton v. Jenkins

Case Details

Full title:HARRISON L. BURTON, Plaintiff and Appellant, v. SANDRA JENKINS, Defendant…

Court:California Court of Appeals, Second District, Second Division

Date published: Feb 2, 2011

Citations

No. B221527 (Cal. Ct. App. Feb. 2, 2011)