Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Mendocino County Super. Ct. No. 03-89762
Lambden, J.
Plaintiff Michael Dunn, appearing in propria persona, appeals from the judgment after bench trial. We affirm the judgment.
BACKGROUND
This is the third appeal we have reviewed regarding the same petition filed by plaintiff in March of 2003 in Mendocino County Superior Court. We quote from our previous nonpublished opinion in Dunn v. County of Mendocino (May 11, 2006, A111098), for background regarding the first two appeals:
“On March 12, 2003, Dunn filed a rambling and confusing ‘handwritten ‘petition’ [fn omitted] in Mendocino County Superior Court. The legal basis for Dunn’s petition is unclear. The records in Dunn’s two appeals to this court do not contain any complaint or summons filed or served prior to the petition. Dunn . . . fails to identify a single cause of action, or explain the legal authority for the court's jurisdiction over this matter and the named defendants, Mendocino County, District Attorney Norman L. Vroman, and Sheriff Tony Craver (collectively, defendants), upon his filing of a ‘petition’ alone. Nonetheless, it appears that the court assigned a new case number to Dunn’s petition, and scheduled a hearing on it.
“Dunn’s statements in his petition indicate that he is concerned with personal property belonging to him that was purportedly seized improperly by the Ukiah Police Department and ‘COMET’ (a reference to the ‘County of Mendocino Marijuana Eradication Team’) around the time Dunn was arrested on criminal charges in 1993, and purportedly held by the Mendocino County District Attorney in five different matters, Nos. 93-0897, 93-F-043, CV66858, CV67033 and CV67034. He contends government authorities are wrongfully holding, or have wrongfully disposed of or distributed, property that was unrelated to any crime, without regard for his rights to notice and a hearing. Dunn contends there were no convictions relating to the property seized, and that he had repeatedly asked for return of property held by the sheriff's department that has not returned.
“Dunn seeks the return of, or unspecified equitable relief regarding, his property, although he states that ‘much of my property was held for civil forfeiture but was destroyed/dispersed by Jan 2000 court order . . . .’ In his petition, Dunn does not seek money damages for the personal property (although he does seek the return of certain monies that were seized, along with interest). Fn. omitted. He states:
“ ‘Movant will not just accept cash for wrongfully disposed/distributed items as many can be legally owned by movant but cannot be purchased anymore and many are unigue [sic] items (which the noble people of COMET most likely took home). The process of non discriminatory seizure and then disposition without a hearing is simple looting. “ ‘Disposition without a hearing, reckless same cause of actions which must be abated, failure to notify movant of actions affecting forfeiture, violation of [Health & Safety] rules, disposition of items not related to any crime and failure to respond to repeated requests for the return of property demands more than simple cash compensation. A court may provide equitable relief where the laws state no penalty for malfeasance by authorities.’
“In July 2003, the Mendocino County Superior Court dismissed Dunn's petition as barred under the principles of res judicata and collateral estoppel. Dunn appealed that dismissal to this court in Dunn v. Mendocino County, et al. (Dec. 23, 2004, A105280 [nonpub. opn.]). We reversed the trial court’s dismissal and remanded the matter for further proceedings because the court relied solely on the prior dismissal of one of the matters referred to in Dunn's petition, a forfeiture action that had been filed by the People in 1993, case No. SCUK-CVG-93-67033 (CV67033). That case, along with another forfeiture action filed by the People in 1993, case No. SCUK-CVG-93-67034 (CV67034), was dismissed on December 20, 2002, at an order to show cause re dismissal hearing. As we explained in the prior opinion, [case No. A105280] such a dismissal is not a proper basis for the application of the principles of res judicata or collateral estoppel.”
On March 18, 2005, the Mendocino County District Attorney filed a motion for summary judgment, which the trial court granted, and Dunn appealed. (Case No. A111098.) In this second appeal, we concluded that “defendants have failed to meet their initial burden of making a prima facie showing that Dunn had no right to equitable relief with regard to the firearms that the sheriff’s department has retained, such as relief affording Dunn with the opportunity to arrange transfer pursuant to [Penal Code] sections 12021.3, 12028, subdivision (d)(2) and section 12021, subdivision (b)(2).” (Case No. A105280.) We reversed the matter for further proceedings consistent with our opinion. (Id. at p. 19.)
Following remand, the matter was tried in May and June 2007 before the trial court, after which the trial court issued a tentative decision in July 2007. The court concluded that if Dunn's action had been properly pleaded, “the relevant action would have been for claim and delivery[.]” The court rejected certain procedural defenses asserted by the defendants, but found that the relevant statute of limitations was a bar to any property that the district attorney sought to forfeit under case No. CV66858, to which Dunn withdrew his claim in 1994. The court then stated as follows:
“As to the items that are no longer in the custody of the Mendocino County, the plaintiff’s claim runs into the problem that, to the extent he is requesting money damages for the missing items, he never filed an administrative claim with a public entity. A tort claim is not subject to tolling so he had six months to file for any compensable injury. In addition, presentation of a claim to the public employer is a prerequisite for a legal action against the public employee for acts or omissions within the scope of employment. Failure to file a claim for this period of time is fatal to a cause of action for damages.
“As to the weapons and ammunition that are still in possession of defendant Mendocino County, the court finds based on the evidence that they cannot be returned to him because he has at least a federal felony conviction, if not a state conviction, also. The evidence showed that Mr. Dunn was convicted of a felony in federal court in 1994, and the weight of the admissible evidence indicated that Mr. Dunn's conviction in state court in 1973 was also a felony.
“To the extent that Mr. Dunn might seek the return of weapons to some other party pursuant to Penal Code Section 12028, the court finds that, based on the testimony of Lt. Noe, all of the remaining weapons are prohibited from private ownership by the federal prohibition against automatic weapons or the state prohibition against private ownership of certain semi-automatic weapons.
“There is one item in CV 676034 that the defendant Mendocino County still has in some form—the $1000 that was listed as part of that forfeiture complaint. Partly on equitable grounds, the court orders the return of that $1000 to the plaintiff with interest from December 20, 2002, the date on which the forfeiture action was dismissed.”
Subsequently, the court clarified its ruling regarding the $1,000 to be returned to Dunn in a further ruling on its tentative decision: “The court's tentative decision related to the $1,000 in CV 67034. This forfeiture action (CV 67034) specified four items—$1,000.00, two Honda generators and a wire feed welder. It was not dismissed until 2002. Evidence indicated that one of the generators and the wire feed welder were returned to Mr. Dunn on October 30, 2000. The other generator was lost somewhere in the shuffle. The letter from Mr. Dunn's lawyer attached to his original petition (Exhibit A) infers that there were two separate seizures of cash in the range of $1,000.”
The trial court then issued a judgment which stated in relevant part:
“2. As to any property seized on . . . March 11, 1993, that was not the subject of one of those forfeiture actions, the statute of limitations now bars any claim for return of property in this action by plaintiff.
“3. As to any property seized by plaintiffs on or about March 11, 1993, plaintiff is barred from receiving monetary damages for those items of property that were not returned, that may have been damaged or destroyed, or which cannot be returned to plaintiff because of his status as a convicted felon, because of his failure to file a claim under the Tort Claims Act within six months of the County’s seizure of the property.
“4. The only non-cash items in the possession of defendants seized on or about March 11, 1993, and not previously returned to plaintiff are eight weapons and assorted ammunition in the possession of defendant Mendocino County Sheriff’s Office. As to the weapons and ammunition, the court found the plaintiff suffered a felony conviction in 1973 in Mendocino County Superior Court and a second felony conviction in the United States District Court in 1994. Plaintiff is barred by 18 U.S.C.A. [section] 921 et seq. from owning or possessing firearms or ammunition by virtue of those convictions.
“5. To the extent that plaintiff might seek return of these weapons to a third party under Penal Code [section] 12028, all of the weapons in the possession of the defendants are either automatic weapons that may not [lawfully be] in private ownership under federal law, or are semi-automatic weapons that fall within the State prohibition on private ownership of certain semi-automatic weapons under the Roberti-Roos Assault Weapons Control Act of 1989 (Pen. Code, § 12275 et seq.) Furthermore, plaintiff testified that he had not attempted to register any of the semi-automatic firearms prior to March 1993 as provided for in Penal Code[, section] 12285 et seq.
“6. Defendants seized $1,000 in cash from plaintiff that was listed in case No. CV 67034 that was not successfully forfeited because that forfeiture case was dismissed. Partly on equitable grounds, the court ordered that defendants return to plaintiff that $1,000 together with interest from December 20, 2002, the date on which case No. CV 67034 was dismissed, until it is returned to plaintiff.”
Dunn subsequently filed at timely notice of appeal. We have previously granted appellant’s request that we augment the record of this appeal to include the record of the first two appeals, case Nos. A105280 and A111098. Respondent refers to our two previous nonpublished opinions regarding Dunn’s petition, which we construe as a request for judicial notice, and which we grant pursuant to Evidence Code section 452, subdivision (d). (See Conlan v. Shewry (2005) 131 Cal.App.4th 1354, 1364.) Also, by order filed on Mazy 20 2008, we granted respondent’s request that we take judicial notice of certain documents
DISCUSSION
Dunn appeals from a judgment issued by the trial court after trial. However, his arguments do not sufficiently explain the particular trial errors he appeals from, or the bases for any errors. To the extent he may be arguing trial errors, he does not provide a sufficient discussion of facts contained in the record or legal authority sufficient for us to analyze his arguments. After several pages of references to various grievances, which appear to be reiterations of his complaints about defendants’ wrongdoing rather than presentations of trial errors, Dunn summarizes the relief he seeks as follows:
“As defendants violated a fiduciary trust by not returning the $1014.76 and the property held by CV67033, 34 and other property [supposedly] held for evidence and unethically charged [appellant] with felon in possession even though 79 order was in the file (returning .44mag pistol) which resulted in 93-FO43 not having a claim filed by [appellant’s] attorney and [appellant] does not have a prior felony record from 73 and the Feds had no jurisdiction in 93 over intrastate activities and the Jan 2000 order was illegal – [appellant] wants property disappeared by the [sheriff’s department] returned, replaced, substituted or new cash value (or current replacement value—whichever is greater).
“[Appellant] is still of interest on $1000 from 93 and $1014.76 plus interest from 93.
“If guns and ammo are not ultimately ordered returned [appellant] has the right by [Penal Code section 12028] (and they were bought legally with a state background check) to determine disposition of guns including new cash value or replacement value—whichever is greater as the [sheriff’s department] has used them for eight years. Disappeared guns+ ammo must also be replaced or new value.
“If guns +ammo are not ordered returned [appellant] wishes a bifurcated judgment providing for prompt settlement on all other property while [appellant] pursues relief in higher courts on 2nd amend issues. Note that the U.S. Sup Ct has a 2nd Amend case pending. Defendants should be banned [res judicata] and [collateral estoppel] from contesting 89762.”
There are several problems with Dunn’s appellate arguments. First, they are insufficient pursuant to black-letter laws and principles regarding appellate review. We may disregard issues not properly addressed in the briefs, and may treat them as having been abandoned or waived. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793; Tiernan v. Trustees of California State University & Colleges (1982) 33 Cal.3d 211, 216.) “ ‘[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 waived, and pass it without consideration. [Citations.]’ [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence.” (People v. Stanley, supra, at p. 793.) Furthermore, “ ‘ “[i]t is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.” ’ ” [Citation.] Because ‘[t]here is no duty on this court to search the record for evidence’ [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citation].” (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [noting that the California Rules of Court require factual assertions to be supported by citations to the record].) Pursuant to the California Rules of Court, rule 8.204(a)(1)(B), an appellate 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.”
Furthermore, “ ‘[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.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to affirmatively show error. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1189.) If he fails to do so, we must affirm the trial court’s judgment.
In addition, “[i]n reaching a decision on appeal an appellate court is governed by the record; will not consider facts having no support in the record; and will disregard statements of such facts set forth in a brief.” (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198, 207.) “It is improper for an appellant to attempt to bring before the appellate court alleged facts which do not appear in the record on appeal.” (Id. at p. 207, fn. 1.)
Dunn’s arguments, while they contain certain factual and legal assertions, and some legal citations, fail pursuant to these black-letter rules. We cannot properly evaluate the issues he raised on appeal regarding any trial error, as he fails to provide headings, summaries, or other references regarding such claimed errors. Furthermore, his arguments as made are deficient in numerous respects. For example, he argues that defendant is banned by the res judicata doctrine from opposing his appeal without further explanation; that his right to bear arms is protected by the Second, Tenth and Fourteenth Amendments of the federal Constitution, without arguing their significance to the trial court’s judgment; invokes the “doctrine of lenity” without sufficient explanation; argues that “the preponderance of evidence” is that disappeared property was “taken home/looted” and is under the “constructive possession” of the sheriff’s department without sufficient explanation; invokes Health and Safety Code section 11488.5, subdivision (g) and case law for his contention that certain property should have been held and returned to him without explaining their relationship to any error below, arguing only that he was not required to file anything and that “insistence on a claim is bolderdash;” cites certain case law without explaining their relevance to the trial court’s findings or an appellate issue; claims he is due certain principal and interest without explaining the basis for his assertion; makes certain factual contentions that cannot be followed; makes certain factual assertions, such as regarding a 1973 conviction, without sufficiently explaining where these facts can be found in the record, or how they relate to trial error; states that he “will take” certain money for items “which by [collateral estoppel] and [res judicata] cannot be confiscated now as Jan 2000 order was illegal and state has dismissed all charges,” without further explanation; refers to a discrepancy between an oral and written judgment without explaining its relationship to any trial error; refers to a Ninth Circuit finding regarding certain guns, a “93 law” on unregistered assault guns, and “no conviction on possession” without explaining their relationship to any trial error; and that California “has no right to recognize the Fed felony conviction as there is no interstate connection to [appellant’s] activity” without citation to any legal authority, or relating the argument to any trial error.
Health and Safety Code section 11488.5, subdivision (g) states: “All seized property which was the subject of the forfeiture hearing and which was not forfeited shall remain subject to any order to withhold issued with respect to the property by the Franchise Tax Board.”
For example, on page three of his opening brief, defendant cites to Lathon v. City of St. Louis (2001) 242 F.3d 8, 41, reversing grant of summary judgment because a constitutional claim regarding police failure to return property was not defeated by the fact the seizure occurred pursuant to a valid search warrant; People v. Superior Court (1972) 28 Cal.App.3d 600, 607-612, regarding the trial court’s authority to rule regarding the return of certain materials seized pursuant to a search warrant; and National Automobile & Cas. Ins. Co. v. Pitchess (1973) 35 Cal.App.3d 62, sheriff receiving money from a construction company against whom insurance company held a judgment was holding the money as trustee, giving the insurance company a cause of action in equity or contract.
This summary demonstrates the insufficiency of Dunn’s arguments. Accordingly, we deny him appellate relief based on the laws and principles we have outlined above. In doing so, we point out that a pro per “litigant is restricted to the same rules of procedure as is required of those qualified to practice before our courts.” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055.)
Second, “ ‘[i]t is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact.’ ” (Foreman & Clark Corp. v. Fallo (1971)3 Cal.3d 875, 881.) When a party contends there is no substantial evidence to support the challenged findings, its recitation of only its own evidence “is not the ‘demonstration’ contemplated.” (Ibid.) If a party contends that “ ‘some particular issue of fact is not sustained, they are required to set forth in their brief all of the material evidence on the point and not merely their own evidence. Unless this is done the error is waived.’ ” (Ibid., followed in Benson v. Kwikset Corp., 152 Cal.App.4th 1254, 1273 and Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 755.) Thus, an appellant will not prevail by filing a brief that is a “ ‘mere challenge to [respondent] to prove that the court was right.’ ” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 101-102.) Dunn’s briefing fails to explain any of the evidence that supports defendant’s position, and his evidentiary arguments also are rejected for this separate and independent reason.
Third, to the extent that we can discern Dunn’s claims in his appellate brief, he appears to ask this court to reweigh the evidence, when our role is strictly limited to a review of the trial court’s determinations. To the extent he appears to be attacking, at least implicitly, the trial court’s factual determinations, we bear in mind that “[a] challenge in an appellate court to the sufficiency of the evidence is reviewed under the substantial evidence rule. [Citations.] ‘ “Where findings of fact are challenged on a civil appeal, we are bound by the ‘elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.” ’ ” (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) Furthermore, “[w]here statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.)
Fourth, when a court issues a statement of decision (see Code Civ. Proc., § 632), Code of Civil Procedure section 634 requires that we infer from that statement of decision that the court decided in favor of the prevailing party on all controverted issues not expressly resolved in the statement of decision, or regarding omissions and ambiguities in it, to the extent these matters were not brought to the attention of the trial court prior to entry of judgment or in conjunction with a motion made pursuant to Code of Civil Procedure sections 657 or 663. (Code Civ. Proc., § 634.) Therefore, to the extent Dunn may argue that the trial court failed to address certain factual issues at trial, we must presume the court did so and resolved them in favor of respondent, since the record does not show he made any objection to the court’s statement of decision.
We also address three specific issues that we have been able to glean from the papers. First, Dunn challenges the legal effect of his 1974 conviction for cruelty to animals as a felony, apparently contending that the Allen declaration and actions by the superior court in 1979 undermine that conclusion (and making factual allegations that do not appear in the record and, therefore, which we disregard). However, the trial court stated in its statement of decision that “Mr. Dunn was convicted of a felony in federal court in 1994, and the weight of the admissible evidence indicated that Mr. Dunn’s conviction in state court was also a felony.” The court also determined that, based on the facts before it and federal and state law, it could not order weapons returned to anyone besides Dunn, which it explained further in its judgment. Dunn does not sufficiently explain why the court’s analysis was not supported by substantial evidence or legal authority.
Second, Dunn appears to challenge the trial court’s ruling that he could not recover money damages because he never filed a government tort claim pursuant to the Tort Claims Act. As respondent points out, the record contains an acknowledgment by Dunn that he never filed a claim for damages under the Act regarding property seized in 1993 or for the destruction of property in 1999 to 2000. Dunn fails to explain why the court’s legal determination was in error in light of his acknowledgment.
Third, Dunn contends that he is entitled to the return of $1,014.76, which trial court determined could not be recovered by him because the subject statute of limitations barred his claim. Again, Dunn fails to explain why the court’s ruling was in error.
For each and all of these reasons, we reject Dunn’s appellate claims.
DISPOSITION
The trial court judgment is affirmed. Respondent is awarded costs of appeal.
We concur: Kline, P.J. Richman, J.