Opinion
C082821
06-28-2018
DAN DELLINGER, Plaintiff and Appellant, v. JOE HARN, as Auditor-Controller, etc., et al., Defendants and Respondents.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PC20150251)
After failing to timely appeal the orders dismissing his suit under Code of Civil Procedure section 425.16 (the anti-SLAPP statute), plaintiff Dan Dellinger seeks to reverse the orders awarding defendants, El Dorado County and its auditor Joe Harn, attorney fees arguing that the fees flowed from an improperly dismissed complaint and that the anti-SLAPP statute does not allow dismissal of his federal civil rights claim. Defendants argue we should not reach the merits of plaintiff's claims because he failed to oppose the attorney fee awards in the trial court and because he has not supplied an adequate record or complied with the California Rules of Court in arguing for reversal.
We agree with defendants and affirm.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff, a government relations and political consultant, sued defendants for money owed to him for consulting he performed under contract with the Pioneer Fire District to pass a parcel tax initiative. Defendants had paid plaintiff $10,000 of the $22,000 owed to him, but refused to pay the remaining $12,000 after the Placer County District Attorney filed a complaint against plaintiff alleging misuse of public funds and seeking return of the $10,000 already paid to him. Although plaintiff won a subsequent jury trial and did not have to return the $10,000, defendants still refused to pay him his remaining fee under the contract.
In response to plaintiff's complaint seeking recovery of the $12,000, defendants both filed motions to strike under the anti-SLAPP statute seeking dismissal of every cause of action alleged in the complaint, including plaintiff's seventh cause of action alleging "Violation Of Civil Rights Pursuant To Section 1983 Of Title 42 Of The United States Code." Plaintiff filed a one-page opposition arguing that defendants' motions were frivolous because Harn, as the county auditor, had a mandatory duty to pay him. On March 2, 2016, the trial court granted Harn's motion to strike and dismissed all of plaintiff's claims against him. On March 7, 2016, the trial court granted El Dorado County's motion to strike on the same grounds.
Following dismissal of plaintiff's case, both defendants sought attorney fees. Plaintiff did not oppose these motions. On May 4, 2016, judgment was entered awarding El Dorado County attorney fees and costs in the amount of $14,392.42. On June 7, 2016, judgment was entered awarding Harn attorney fees and costs in the amount of $16,289.11.
Plaintiff failed to designate defendants' motions for attorney fees for inclusion in the record on appeal.
Plaintiff filed a notice of appeal on August 4, 2016, seeking to challenge "[a]n order of dismissal under [the anti-SLAPP statute]." An order granting an anti-SLAPP motion, however, is an immediately appealable order. (Code Civ. Proc., §§ 425.16, subds. (i), (j), 904.1, subd. (a)(13).) While the notice of appeal was timely as to the orders granting attorney fees, it was filed beyond the 60 days to challenge the order dismissing plaintiff's case pursuant to the anti-SLAPP statute. (Cal. Rules of Court, rule 8.104(a)(1).) We dismissed plaintiff's appeal insofar as it sought relief from the orders striking his complaint, and plaintiff's surviving issues seek reversal only of the attorney fee awards.
DISCUSSION
Plaintiff admits he missed the time to appeal the orders granting defendants' motions to strike, and thus cannot attack the dismissal of his complaint. He instead challenges the orders awarding defendants attorney fees contending the court improperly struck his causes of action under the anti-SLAPP statute, thus improperly found defendants to be prevailing parties entitled to attorney fees under the same statute. He also argues the anti-SLAPP statute is inapplicable to his federal civil rights claim, and thus did not provide a basis to award attorney fees. Defendants argue plaintiff has forfeited his claims, not only by failing to oppose their attorney fee motions in the trial court, but also because he failed to provide an adequate record on appeal and has not complied with the California Rules of Court when presenting his arguments in his opening brief. We agree with defendants.
"Failure to register a proper and timely objection to a ruling or proceeding in the trial court forfeits the issue on appeal." (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602, citing Sabella v. Southern Pacific Co. (1969) 70 Cal.2d 311, 318 [failure to object to misconduct]; Cummings v. Cummings (1929) 97 Cal.App. 144, 149 [failure to oppose motion].) Having failed to oppose defendants' motions for attorney fees in the trial court, plaintiff has forfeited his right to do so for the first time on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265 [the purpose of the forfeiture rule is to encourage parties to bring errors to the attention of the superior court " ' "so that they may be corrected or avoided and a fair trial had" ' "].)
An appellate court can exercise its discretion to excuse forfeiture. (See In re S.B. (2004) 32 Cal.4th 1287, 1293, People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.) We decline to do so here because plaintiff has not presented his claims in a way that allows for meaningful review.
"Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) To carry this burden, the appellant must provide an adequate record on appeal. " 'For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him.' " (People v. Clifton (1969) 270 Cal.App.2d 860, 862.)
In addition to providing a record that shows the error the appellant is claiming, the appellant must direct the reviewing court to the parts of the record that show the claimed error. "An appellate court is not required to search the record to determine whether or not [it] supports [the] appellant['s] claim of error. It is the duty of counsel to refer the reviewing court to the portions of the record which support [the] appellant['s] position." (Green v. City of Los Angeles (1974) 40 Cal.App.3d 819, 835.) Under the California Rules of Court, each 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." (Cal. Rules of Court, rule 8.204(a)(1)(C).) "If no citation 'is furnished on a particular point, the court may treat it as [forfeited].' " (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)
Furthermore, because a citation must be provided for "any reference to a matter in the record" (Cal. Rules of Court, rule 8.204(a)(1)(C)), it is not enough for the appellant to provide citations to the record in the " 'Factual Background' " portion of the opening brief; the appellant must also provide pertinent citations to the record in the " 'Argument' " portion of the brief. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16.) This "is the only construction consistent with the purpose of the citation requirement, which is to enable appellate justices and staff attorneys to locate relevant portions of the record expeditiously without thumbing through and rereading earlier portions of a brief." (Ibid.)
To demonstrate error, however, the appellant must do more than make a bald assertion of error with a supporting citation to the part of the record where the error allegedly occurred. "While formal assignments of error are a thing of the past" (Zalk v. General Exploration Co. (1980) 105 Cal.App.3d 786, 795), the California Rules of Court still require a brief to "[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" (Cal. Rules of Court, rule 8.204(a)(1)(B)). " '[E]very 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 [forfeited], and pass it without consideration.' " (People v. Stanley (1995) 10 Cal.4th 764, 793.) " 'Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.' " (Estate of Randall (1924) 194 Cal. 725, 728-729.)
Plaintiff's first contention seeks reversal of the trial court's orders awarding attorney fees because the court's finding that defendants were prevailing parties was based on the court's improper dismissal of his complaint under the anti-SLAPP statute. Plaintiff's second contention seeks reversal of the attorney fee awards for his civil rights claim arguing the trial court was precluded from dismissing his federal claim pursuant to a state anti-SLAPP statute. In both arguments plaintiff asserts he acted in good faith when bringing his suit and should not be found liable for attorney fees.
As noted, plaintiff did not designate defendants' attorney fees motions for inclusion in the appellate record. Although we have the trial court's orders granting attorney fees, we do not have defendants' arguments for why they were proper or the declarations and calculations justifying the amount awarded to them. This makes resolving plaintiff's second claim particularly difficult considering resolution in his favor would necessitate a reduction in part of the attorney fees awards -- a part which we cannot quantify without defendants' moving papers and calculations. Because plaintiff has not provided us with an adequate record to resolve his claims, we must resolve them against him. (People v. Clifton, supra, 270 Cal.App.2d at p. 862.)
Neither does plaintiff adequately cite to the record when stating the facts or when making his argument. Plaintiff's statement of facts includes three citations to the record, two of which are the same. He cites to 12 lines in his opposition to defendants' anti-SLAPP motions, wherein he relates the facts of his suit. The other citation is to the first two pages of the ruling on Harn's anti-SLAPP motion to strike. At no point does plaintiff direct us to the trial court's orders he now argues should be reversed.
Further, plaintiff's arguments include no citations to the record whatsoever. He argues the court erred in striking his complaint, yet does not direct us to the portions of the record containing the orders striking his complaint. He also argues his initial suit was brought in good faith based on a jury finding that he did not commit illegal activity and was entitled to the remaining fee under his contract. Plaintiff, however, does not direct us to the jury's verdicts or any supporting evidence to show the jury's findings equated to a finding that he was entitled to the outstanding contract fee. Nor does he direct us to portions of the record supporting his argument that he and defendants already litigated the issue before the trial court, thus estopping defendants from arguing against payment of the contract fee. Finally, plaintiff fails to direct us to his complaint and the allegations contained in his civil rights claim, which he now argues could not be struck under the anti-SLAPP statute. Instead, we are left to search the record for evidence supporting plaintiff's claims of error, a task we are not required to engage in. (Green v. City of Los Angeles, supra, 40 Cal.App.3d at p. 835; see Cal. Rules of Court, rule 8.204(a)(1)(C).)
Plaintiff's legal arguments are also lacking. To support his claim that the trial court improperly struck his complaint under the anti-SLAPP statute, plaintiff does not cite to the anti-SLAPP statute or any case law to support his argument that the trial court's interpretation of the anti-SLAPP statute was overbroad. Instead, he cites to a Government Code section and two Penal Code sections for the proposition that Harn was required to pay him his valid government claim and is not immune from liability for failing to do so. Plaintiff does not address the trial court's reasoning for dismissing his complaint. In fact, just like in the trial court, "plaintiff has failed to address any of the arguments raised" by defendants for why his claims arise out of defendants' protected conduct.
Similarly, plaintiff fails to cite sufficient authority for the claim that the anti-SLAPP statute does not apply to his federal civil rights claim. The authority plaintiff does cite stands for the broad proposition that state law does not apply to federal claims if the state law unduly burdens the claim for relief. He does not describe how or cite authority for the proposition that the state anti-SLAPP statute unduly burdens his civil rights claim. Plaintiff also does not cite or address well-established authority contradicting this claim. (See Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117-1118 [rejecting a claim that it would "violate[] federal substantive law" to apply the anti-SLAPP statute to a federal civil rights action brought in state court]; see also Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1392, fn. 4 [relying on Bradbury to apply the anti-SLAPP statute to a civil rights claim]; Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1055-1056 [citing Bradbury and Vergos for the general proposition that the anti-SLAPP statute applies to federal civil rights claims].)
Finally, the thrust of plaintiff's arguments is that he had a legitimate basis to believe that his suit against Harn and El Dorado County would be successful. Because of his good faith belief, he explains, the attorney fee awards were improper. Again, plaintiff fails to provide supporting authority for his bald assertions. Plaintiff does not attempt to support this claim with any citations to case law or statutory authority, and he has not explained what the relevance of his subjective belief when filing a lawsuit is to a mandatory attorney fee determination. (See Code Civ. Proc., § 425.16, subd. (c)(1) ["a prevailing defendant on a special motion to strike [under the anti-SLAPP statute] shall be entitled to recover his or her attorney's fees and costs"].) Plaintiff has also not presented this argument under a descriptive heading, further contravening the California Rules of Court. (Cal. Rules of Court, rule8.204(a)(1)(B).) Plaintiff's lack of coherent argument and citations to supporting authority lead us to conclude his claims are without foundation. (See People v. Stanley, supra, 10 Cal.4th at p, 793; see also Estate of Randall, supra, 194 Cal. at pp. 728-729.)
Given plaintiff's failure to oppose defendants' motions for attorney fees in the trial court and his disregard for the California Rules of Court when presenting his claims for appellate review, we conclude plaintiff has forfeited his challenge to the orders granting attorney fees.
Plaintiff's claim is without merit, even if it was not forfeited. Plaintiff's appeal of the order awarding attorney fees is based solely on the merits of the order granting the anti-SLAPP motion. Plaintiff does not claim the amount of the fee award was excessive or improperly calculated, only that the fees were improperly imposed because the motion to strike was improperly granted. Because plaintiff did not timely appeal the order striking his complaint under the anti-SLAPP statute, we cannot determine its propriety. Accordingly, the award of attorney fees must be affirmed. (Code Civ. Proc. § 425.16, subd. (c); see Maranatha Corrections, LLC v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1075, 1091.) --------
DISPOSITION
The orders granting attorney fees are affirmed. As the prevailing parties on the special motions to strike, defendants are entitled to recover from plaintiff the reasonable amount of attorney fees and costs incurred on appeal pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1). (See Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 489.) We remand the matter to the trial court to determine the reasonable amount of such attorney fees and costs.
/s/_________
Robie, Acting P. J. We concur: /s/_________
Murray, J. /s/_________
Duarte, J.