Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00102762, Franz E. Miller, Judge.
Ruth Ann Clark, in pro. per., for Plaintiff and Appellant.
Russo & Duckworth and J. Scott Russo for Defendants and Respondents.
OPINION
BEDSWORTH, ACTING P. J.
Ruth Ann Clark, representing herself in propria persona, appeals from a judgment which rejected her efforts to void the sale of a home previously owned by a trust established for her benefit. As she states in her opening brief, she believes that defendant and respondent Brad Dacus, whom she refers to as a “crooked Lawyer/Christian Minister” was “in ‘co-hoots’” (capitalization omitted) with her family, and used “the system” to defraud her out of her home. And while she acknowledges that the court concluded that Dacus and her family were not “in ‘co-hoots, ” she believes that no “reasonable person” could come to that conclusion if they read all of the evidence she believes is pertinent to the issue.
We affirm the judgment. Unfortunately, Clark’s brief reflects an apparent misunderstanding of the appellate court’s function. She uses her brief simply as a vehicle to reargue her own view of the facts – without any citation to either legal authority or the record of the proceedings below – in the apparent belief that we can simply reconsider the merits of the issue and overrule the trial court’s decision. We cannot. Our role is limited to assessing whether the court committed an error of law or made a factual determination without any evidence to support it. Clark has demonstrated neither in this case, and thus we must affirm the court’s decision.
FACTS
Although the parties have supplied us with a substantial and fairly lengthy record of the proceedings below, Clark never cites to it in her opening brief, and tells us almost nothing about either the facts leading up to this dispute, or the procedural history of the case. Luckily for her, Dacus has provided us with a detailed explanation of both in his respondents’ brief, and we have relied upon it significantly in understanding the case before us.
Although not technically related, this case is arguably born of Balboa Island Village Inn, Inc. v. Ann Lemen (2007) 40 Cal.4th 1141, in which our Supreme Court upheld a modified injunction against Clark (then known as Ann Lemen) for defamatory speech. Clark had waged a passionate campaign against the Balboa Island Village Inn, a business entity adjacent to her property on Balboa Island, which she believed was engaged in and fostered immoral behavior that both diminished her property value and impacted the ability to quietly enjoy it.
In April of 2007, just as the litigation with the Balboa Island Village Inn was drawing to a close, Clark formed a trust with the encouragement and assistance of family members. The purpose of the trust was to utilize Clark’s Balboa property, and more specifically the proceeds from its sale, to provide for her needs. The proceeds from the property sale would be invested and used to fund Clark’s cost of living. Clark designated her brother, John Clark, Jr., to act as trustee of the trust, and also executed a durable power of attorney and a special power of attorney so that he had broad powers to effect the purposes of the trust, including the sale of the subject property. Clark’s father would later become the trustee when her brother resigned.
On May 2, 2007, the Balboa property was deeded into the trust.
Dacus, an attorney who heads the Pacific Justice Institute, a not for profit legal defense fund, had become acquainted with the Clarks through church activities. When Clark’s father began soliciting offers to purchase the subject property, Dacus made a fair market value offer of $1,000,000, which was the appraised value. As evidenced by an audio tape of a voicemail Clark left for her father on May 9, 2007, she approved the sale to Dacus for $1,000,000. Clark’s brother, as trustee of Charitable Trust, accepted Dacus’ offer. The sale closed escrow on June 29, 2007, and the subject property was deeded to Dacus. Clark’s father, who was by that time trustee, signed the deed on behalf of the trust.
On February 15, 2008, Clark filed her original complaint. The complaint sought to rescind Charitable Trust’s sale to Dacus and get the property back.
The case was assigned to the Honorable Franz E. Miller, who retained the case through trial. On June 27, 2008, Clark filed a first amended complaint for fraud, negligence, rescission, declaratory relief and unjust enrichment. On July 28, 2008, Dacus filed the operative answer. On September 22, 2008, trial was scheduled to commence on February 23, 2009.
On January 22, 2009, Clark moved ex parte to continue the trial. Dacus opposed the request. The hearing was continued to January 27, 2009. However, on January 23, 2009, Clark’s attorney filed a motion to be relieved as counsel, and at the hearing on January 27, Clark executed a substitution of attorney, relieving her counsel and substituting in herself, acting in propria persona. Clark then informed the court that she did not want a continuance so trial remained scheduled for February 23, 2009.
However, on February 11, 2009, Clark again moved ex parte to continue the trial. Dacus again opposed the request. The court continued the matter to February 19, 2009. On that date, a different attorney appeared for Clark and informed the court that he was considering representing Clark and needed the trial continued so he could consider it further. The court granted the attorney’s request and continued the trial to June 8, 2009.
On June 4, 2008, Clark again moved ex parte to continue the trial, and also sought to join the trust as a coplaintiff. Clark explained to the court that yet another attorney would be substituting in, but would need a trial continuance. Dacus again opposed the request. The court continued the hearing to June 8, 2009, which was the scheduled trial date.
On June 8, 2009, the scheduled trial date, yet another attorney appeared for Clark, and argued the request for a continuance. The motion was granted, and the trial was continued to July 20, 2009.
On July 16, 2009, Attorney Derek L. Tabone substituted in as counsel for Clark, and on July 17, 2009, Clark again moved ex parte to continue the trial and also sought to reopen discovery. Dacus opposed the requests. The motion was denied and the parties were advised that trial would commence on July 22, 2009.
At the commencement of trial, the court granted Clark’s oral motion to amend the first amended complaint to add the trust as a coplaintiff. Clark, the trust, and Dacus then all expressly waived trial by jury.
At trial, all of Clark’s exhibits were admitted into evidence without objection. It was established that the trust had used a portion of the proceeds from its sale of the property to Dacus to pay Clark’s living expenses and another portion was invested in what turned out to be a crashing stock market. As Clark testified, “it immediately went down to half a million.” At the time of trial, the trust only had $500,000. Clark conceded that, even if the court granted her demands, neither she nor the trust had the resources to refund the purchase price for the property.
After hearing the evidence and the arguments of the parties, the court announced that judgment would be rendered in favor of Dacus on all causes of action. That judgment was entered on August 25, 2009. On September 2, 2009, Clark filed another substitution of attorney form by which she substituted herself in propria persona again.
Clark then moved to set aside the judgment and for a new trial, which was set for hearing on October 27, 2010. In support of that motion, Clark argued that she had been wrongfully denied a jury trial, that she was denied a reporter’s transcript, and that Dacus’ attorney was “Mafia” and had tampered with witnesses. The court denied the motion, finding that there had been a valid jury waiver, there was no evidence the transcript could not be prepared, and there was no evidence to support the allegations against Dacus’ attorney.
I
In support of her appeal, Clark filed both an opening brief and, approximately two weeks later, a “motion and notice of motion to file addendum to appellants [sic]opening brief.” The latter document is largely a compilation of Clark’s own factual assertions relating to the case, as well as various statements by third parties relating to the conduct of parties involved in this case. Neither of these documents includes any citation to the record in this case, and there is no indication that the third party statements can be found in the record.
However, “the general rule [is] that ‘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.’ (In re James V. (1979) 90 Cal.App.3d 300, 304, italics added.) This rule reflects an ‘essential distinction between the trial and the appellate court... that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law....’ (Tupman v. Haberkern (1929) 208 Cal. 256, 262-263.) The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal.” (In re Zeth S. (2003) 31 Cal.4th 396, 405.)
In light of this rule, we cannot consider the statements – essentially unsworn opinions and impressions of third parties relating to Clark’s property, her unwavering attachment to it, and the purportedly suspicious circumstances surrounding its placement in the trust and subsequent sale to Dacus – appended to Clark’s second brief. If these letters are not included in the record of proceedings below – and Clark does not claim they were – they can play no part in our consideration of the appeal. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1220, fn. 4. [“We disregard Richard’s factual assertions based on matters that are not contained in the record.”].)
Moreover, “An appellate court ‘“must presume that the record contains evidence to support every finding of fact....”’ (In re Marriage of Fink (1979) 25 Cal.3d 877, 887, italics added; see Brown v. World Church (1969) 272 Cal.App.2d 684, 690 [‘“a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact”’].) It is the appellant’s burden, not the court’s, to identify and establish deficiencies in the evidence. (Brown v. World Church, supra, 272 Cal.App.2d 684, 690.) This burden is a ‘daunting’ one. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-329.) ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.]” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.)
Here, Clark has made no effort to demonstrate that the judgment entered in this case was unsupported by the evidence admitted at trial, let alone made the significant and detailed showing that would be required to demonstrate that no reasonable person could have determined, as the court here did, that Dacus did not collude with members of Clark’s family or otherwise act wrongfully in connection with the agreement to purchase her Balboa property. We must consequently presume the evidence sufficiently supported that determination.
Stated another way, Clark is obligated to prove something beyond her personal belief, and perhaps the belief of others who support her, that the court’s decision was unwise, or that evidence exists which would have supported a different decision, to justify a reversal. Instead, she was obligated to establish that the court’s decision was entirely unsupported by any evidence presented at trial. She did not.
Clark has also failed to demonstrate that the court committed any legal errors or abused its discretion in any way. Just as we must presume the court’s decision is supported by the evidence – and the appellant must affirmatively prove otherwise – we must also presume the decision was legally correct. “A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it.... [Citation.] It is the appellant’s burden to affirmatively demonstrate error. [Citations.]” (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978, italics added.)
While Clark does list many complaints about decisions made and actions taken by the court in the course of the proceedings below, she does not develop any of these bare contentions into legal arguments, supported by any analysis or citations to authority. “Where a point is merely asserted... without any argument of or authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court.” (Atchley v. City of Fresno (1984) 151 Cal.App.3d 635, 647.) This rule applies to those litigants who represent themselves on appeal just as it does to litigants represented by attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Barton v. New United Motor Mfg., Inc. (1996) 43 Cal.App.4th 1200, 1210 [“[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.”].)
Clark asserts, for example, that she was “denied a fair trial, right to have witnesses, discovery, interrogatories, and introduction of evidence to the court.” She also contends the trial judge was “rhetorical, biased, [and] bullied counsel and plaintiffs.” (Capitalization omitted.)
The only argument which Clark makes any significant attempt to develop is a claim that her attorney at trial, who had substituted in to represent her only a week prior to trial, “committed malfeasance, ” failed to subpoena witnesses, committed malpractice, and “may be part of the conspiracy to defraud” her. Clark also asserts that the trial would have had a “completely different outcome” if her attorney had obtained a continuance so he would have had a better understanding of the case, and more time to obtain witnesses, prior to trial.
There are several problems with Clark’s effort to blame her attorney. First, while Clark did make an effort to articulate specific complaints about her trial attorney, she still failed to support those complaints with any citations to the record, analysis, or legal authority. Second, Clark’s complaints are internally inconsistent – most obviously, her suggestion that he was part of the conspiracy against her is entirely inconsistent with her assertion that the case would have come out in her favor if only he’d had more time to prepare. And finally, and most importantly, even if Clark’s attorney committed malpractice or malfeasance in representing her (and we hasten to make clear we see no evidence he did) that would not constitute grounds for reversing the judgment in this case. It was Clark, and not Dacus, who hired her attorney, and it is she, and not he, who bears the consequences of that attorney’s conduct. If the rule were otherwise, a defendant could conspire with her own attorney for the commission of “malpractice, ” as a means of creating grounds for reversal on appeal and delaying finality of an adverse judgment. That is not the law.
The judgment is affirmed. Dacus is to recover his costs on appeal.
WE CONCUR: MOORE, J., FYBEL, J.