Opinion
2d Civ. B328262
06-17-2024
GERARDO AYALA GARCIA, Cross-Complainant and Appellant, v. ARTHUR PAUL CHAVEZ et al., Cross-Defendants and Respondents.
Law Office of David A. Esquibias, Christopher A. Fortunati, for Cross-Complainant and Appellant. Manning & Kass, Ellrod, Ramirez, Trester, Frederic W. Trester, Christopher Kanjo, and Mark Wilson, for CrossDefendants and Respondents, Arthur Paul Chavez, Michael Sipes, and RGC Services, Inc.
NOT TO BE PUBLISHED
Superior Court County of Ventura No. 56-2018-00511654-CU-BC-VTA Honorable Henry J. Walsh, Judge
Law Office of David A. Esquibias, Christopher A. Fortunati, for Cross-Complainant and Appellant.
Manning & Kass, Ellrod, Ramirez, Trester, Frederic W. Trester, Christopher Kanjo, and Mark Wilson, for CrossDefendants and Respondents, Arthur Paul Chavez, Michael Sipes, and RGC Services, Inc.
CODY, J.
Gerardo Ayala Garcia (appellant) was the prevailing party in an action for specific performance brought by Abolfazi A. Shajari (Shajari) and Rasoul Mohamadi (Mohamadi), (collectively, plaintiffs). Appellant cross-complained against Arthur Paul Chavez (Chavez), Michael Sipes (Sipes), and RGC Services, Inc. (RGC) (collectively, respondents) who had served plaintiffs and appellant as their dual listing/selling agent and brokers for the sale of real property. When the trial court entered judgment for appellant and against plaintiffs, it dismissed appellant's cross-complaint against respondents as moot.
Erroneously sued as "Geraldo Ayala Garcia"
Sipes was dismissed from this action without prejudice.
Appellant challenges the trial court's dismissal of his crosscomplaint asserting it was a prejudicial error depriving him of his constitutional right to a jury trial. We must reject his arguments because he does not provide an adequate record or support his contentions with relevant legal analysis. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs agreed to purchase appellant's auto body repair business and real property for $825,000. Appellant agreed to finance the purchase price through a seller carry-back loan. The written agreement provided: "Upon opening of escrow buyers will furnish proper California I.D. to Sellers to conduct a credit check. Buyers will furnish proof of funds and Pre-qualification letter." Escrow was set for 90 days. The Seller Financing Addendum authorized appellant to cancel escrow if he was not provided the financial information within five days of the date of the Addendum. The agreement between plaintiffs and appellant was executed on November 7, 2017.
On March 1, 2018, plaintiffs issued a demand to close escrow, but then agreed to extend escrow's closing date to March 9. Between March 1 and March 6, plaintiffs provided Chavez with copies of their drivers licenses, social security numbers, an authorization to obtain credit information, copies of bank statements, and tax returns. They did not provide a prequalification letter.
On March 11, 2018, plaintiffs issued a second demand to close escrow within ten days. Two months later, they sued appellant for specific performance alleging they had performed all conditions precedent and were ready, willing, and able to pay consideration to appellant, who was refusing to convey the subject property.
Appellant answered the complaint and cross-complained against respondents. In his first amended cross-complaint, he named four causes of action: (1) apportionment of fault, (2) general negligence for breach of fiduciary duty, (3) fraud in the inducement, and (4) concealment of material facts. He claimed (1) respondents were responsible for any injuries suffered by plaintiffs, (2) respondents owed appellant a duty of care they breached by failing to supervise Chavez, who purportedly had little experience handling commercial real property transactions, was operating under a restricted license, and required close supervision, (3) respondents willfully and in conscious disregard of appellant's rights breached their fiduciary duty by failing to inform appellant that Chavez was operating under a restricted license, and had little experience handling commercial transactions, and needed supervision, and (4) Chavez fraudulently induced appellant to enter into the listing agreement, repeatedly lied to him, and forged his signature on transaction documents.
Appellant's prayer for relief sought judgment in a proportionate share from each respondent, a judicial determination that respondents were the legal cause of any injuries or damages sustained by plaintiff, compensatory damages according to proof, attorney fees, costs, and punitive damages. He did not claim damages in a definite amount or assert a cause and effect relationship between the fraud and damages.
The parties stipulated to strike the request for attorney fees from appellant's complaint. Respondent's motion to strike appellant's request for punitive damages was denied.
The matter proceeded to trial. Respondents moved to bifurcate plaintiffs' complaint for specific performance under the equity first rule. Their motion was apparently granted. A two-day court trial commenced, after which the court issued a written ruling by minute order. The court found plaintiffs failed to perform all the conditions precedent to the sale and determined the testimony of Shajari was not credible. It found appellant's testimony credible, ruling in favor of appellant and against plaintiffs. It awarded appellant his statutory costs of suit as the prevailing party and dismissed his cross-complaint "for indemnity" as moot. A judgment prepared by appellant's trial counsel was entered on January 4, 2022. The judgment stated "[t]he court finds and orders that the cross-complaint . . . for negligence and fraud is moot as a consequence of its ruling, and that the cross-complaint is dismissed." Appellant timely appealed.
The minute order does not state the motion was granted but does reflect the setting of "a court trial on the specific performance/equitable issues" without objection.
DISCUSSION
Appellant contends the trial court erred in dismissing his cross-complaint as moot. He claims the court failed to consider his second, third, and fourth causes of action for general negligence (breach of fiduciary duty), intentional tort (fraud in the inducement) and intentional tort (fraud), respectively. He argues these issues are "based in law and gave [him] the right to a jury trial." On these grounds, he claims the judgment is reversible per se. But we reject appellant's arguments because they are not supported by relevant authority or analysis and the record on appeal is inadequate for review.
An Inadequate Record on Appeal Precludes a Determination that the Trial Court Abused its Discretion
The rules of appellate review require we presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is appellant's burden to affirmatively demonstrate error (id., at p. 566), accomplished in part by providing an adequate record. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) If there is no error revealed in the record, we must presume in the court's favor. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.)
Typically, appellants in civil appeals must provide a reporter's transcript at their own expense. (City of Rohnert Park v. Superior Court (1983) 146 Cal.App.3d 420, 430-431.) Instead of a reporter's transcript, an appellant may submit an agreed or settled statement. (Leslie v. Roe (1974) 41 Cal.App.3d 104; Cal. Rules of Court, rules 8.134 &8.137.) While a reporter's transcript "may not be necessary if the appeal involves legal issues requiring de novo review," when a case involves substantial evidence or abuse of discretion, "a reporter's transcript or an agreed or settled statement of the proceedings will be indispensable." (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.)
We generally review issues of mootness de novo (Robinson v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 319), but declining to decide a case lacking in controversy is an exercise of judicial discretion. (Consumer Cause, Inc. v. Johnson &Johnson (2005) 132 Cal.App.4th 1175, 1183.) The party asserting abuse of discretion has the burden of establishing error. "'[U]nless a clear case of abuse is shown and unless there has been a miscarriage of justice, a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
Appellant chose to proceed without a record of the oral proceedings at trial. The 297-page clerk's transcript consists of select pleadings, minute orders, witness lists, trial exhibits, the judgment, and a register of actions. These documents do not facilitate our review of witness testimony, the court's reasoning, relevant objections, or any other factor pertinent to reviewing for abuse of discretion. Nor can we ascertain if appellant preserved his claims for appeal by raising them below because the record does not include any objections to the trial court's ruling. Appellant's trial counsel prepared the judgment to dismiss his cross-complaint "for negligence and fraud" as moot, so we might presume appellant made no objections at all, thus waiving his claims on appeal. (See People v. Boyette (2002) 29 Cal.4th 381, 459 [failure to object at trial is a failure to preserve the issue for appellate review].) Regardless, the absence of a record of oral proceedings precludes us from determining if the trial court abused its discretion. (Gee v. American Realty &Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [if a record is "'inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed'"].)
An appellant must also provide a reviewing court with persuasive arguments supported by legal analysis and record citations. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287.) Conclusory arguments unsupported by relevant legal authority and analysis may be disregarded. (Id. at p. 287.)
Appellant's brief fails to set forth colorable legal arguments, analysis, or relevant authority. His argument consists of four irrelevant case citations and seven conclusory sentences. The arguments are improperly made, undeveloped claims, and will be rejected on that basis. (People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; Cal. Rules of Court, rule 8.204(a)(1)(B) [appellant must "support each point by argument and, if possible, by citation of authority"]; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived"].)
DISPOSITION
Judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: YEGAN, Acting P.J. BALTODANO, J.