Opinion
G051914
03-21-2017
THAN LONG HUA, Plaintiff, Cross-defendant and Respondent, v. XAVIER VELASCO et al., Defendants, Cross-complainants and Respondents; TAE JIN KIM, Defendant, Cross-defendant and Appellant.
Tae Jin Kim, in pro. per.; LK Professional Law Group and Jamie Jiyoon Kim for Defendant, Cross-defendant and Appellant. Duringer Law Group, Stephen C. Duringer and Edward L. Laird II for Plaintiff, Cross-defendant and Respondent. Bidna & Keys and Richard D. Keys for Defendants, Cross-complainants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2013-00663095) OPINION Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed. Tae Jin Kim, in pro. per.; LK Professional Law Group and Jamie Jiyoon Kim for Defendant, Cross-defendant and Appellant. Duringer Law Group, Stephen C. Duringer and Edward L. Laird II for Plaintiff, Cross-defendant and Respondent. Bidna & Keys and Richard D. Keys for Defendants, Cross-complainants and Respondents.
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Introduction
Tae Jin Kim (Appellant) appeals from a judgment under which he is liable to pay unpaid rent on a house or to indemnify another party to the extent that party makes the payment. We conclude that Appellant, who provided no legal authority or record citations in his appellate brief, has failed to meet his burden of demonstrating error. We therefore affirm.
Facts and Procedural History
Than Long Hua leased a home in Huntington Beach to Xavier Velasco and Lisa Velasco (the Velascos). The Velascos subleased the home to Jessica Nguyen and Appellant. Nguyen and Appellant breached the lease by keeping a dog on the premises without Hua's consent. Hua brought an unlawful detainer action. Hua obtained a default against the Velascos and summary judgment against Nguyen and Appellant. Judgment was entered in the unlawful detainer action, and that judgment was not challenged.
Hua then sued the Velascos, Nguyen, and Appellant to recover rent due for the balance of the lease term. Nguyen filed a chapter 7 bankruptcy petition and was dismissed. The Velascos and Appellant cross-complained against each other.
A bench trial was conducted on January 5, 6, 7, and 8, 2015. The trial court found in favor of Hua and against Appellant and the Velascos, and awarded Hua damages in the amount of $31,971.83. The trial court found in favor of the Velascos on their cross-complaint against Appellant and found against Appellant on his cross-complaint against the Velascos. Judgment was entered on March 12, 2015. The judgment provides that the Velascos are entitled to indemnity from Appellant for all amounts the Velascos pay to Hua pursuant to the judgment. Appellant filed a notice of appeal in May 2015.
Discussion
1.
We Deem the Notice of Appeal to Be from the Judgment.
After the appeal was docketed, we sent the parties a notice stating we were considering dismissal of the appeal because it appeared to be taken from a nonappealable order. Appellant filed a Judicial Council form notice of appeal on May 11, 2015. Item 1 of the form notice of appeal prepared by Appellant reads: "NOTICE IS HEREBY GIVEN that (name): TAE JIN KIM [¶] appeals from the following judgment or order in this case, which was entered on (date): 01/05/2015." Appellant checked the box for "Judgment after court trial." January 5, 2015 was the first day of trial. The judgment was entered on March 12, 2015.
We liberally construe the notice of appeal. (Cal. Rules of Court, rule 8.100(a)(2).) "It is axiomatic that notices of appeal will be liberally construed to implement the strong public policy favoring the hearing of appeals on the merits. [Citation.] This policy is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal. [Citation.]" Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961.) The appellant in Yolo County Dept. of Child Support Services v. Lowery (2009) 176 Cal.App.4th 1243, 1246, filed a notice of appeal in August 2008 that appealed from the judgment entered on June 17, 2008. The date of entry of judgment was July 28, 2008. (Ibid.) The Court of Appeal liberally construed the notice of appeal to deem it an appeal from the judgment. (Ibid.)
The notice of appeal in this case identifies the judgment after court trial as the subject of the appeal. There is only one judgment in this case, and it was entered before the notice of appeal; therefore, the wrong date could not have led to prejudice or confusion regarding the scope of the appeal. As was the case in Yolo County Dept. of Child Support Services v. Lowery, we liberally construe the notice of appeal to deem it an appeal from the judgment entered on March 12, 2015.
2.
Appellant Failed to Meet His Burden of Proving Error.
Appellant's opening brief appears to argue the judgment against him is in error because there was sufficient evidence presented to the trial court to prove all of the elements of a fraud claim against "Respondent" (Appellant does not identify which one).
To meet the burden of affirmatively demonstrating error, an appellant must raise issues for review and support each issue raised with argument, legal authority, and citations to the record. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 367-368; In re S.C. (2006) 138 Cal.App.4th 396, 406.) If an appellant fails to raise an issue, or fails to adequately support an issue raised, the appellate court may deem the issue forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Founding Members of the Newport Beach Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 964.)
Any reference to a matter in the record must be supported by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) "When an appellant's brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made." (In re S.C., supra, 138 Cal.App.4th at p. 406.) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
In Appellant's opening brief, Appellant argues there was sufficient evidence presented to the trial court to prove "all of the elements of the action" and "Respondent clearly made false representations with the intent to deceive the Court which caused injury to the Appellant." He does not identify to which "Respondent" he is referring. Appellant does not support this argument with any legal authority or citations to the record. There is not a single record citation in Appellant's brief. Although Appellant was representing himself when he prepared his brief, he is held to the same standard of proving error as a litigant represented by counsel. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Attached to Appellant's opening brief as exhibit 2 is a printed copy of e-mail communications. Appellant argues the trial court did not consider this exhibit. Appellant does not supply record citations to show when this exhibit was identified and offered into evidence at trial. He does not explain whether the exhibit was admissible or how it would have proved his claims. Appellant therefore has not met his burden of demonstrating error.
3.
Issue Raised at Oral Argument
At oral argument, Appellant's counsel argued the trial court erred by failing to consider the "Nguyen declaration." No such declaration appears in the appellate record. At trial, Cindy Nguyen and Jessica Nguyen testified. The trial court considered their testimony and in the statement of decision found, "[t]he testimony of Jessica Nguyen and Cindy Nguyen demonstrated that the dog was still on the Premises after expiration of the three days."
Disposition
The judgment is affirmed. Respondents shall recover costs incurred on appeal.
FYBEL, J. WE CONCUR: BEDSWORTH, ACTING P. J. IKOLA, J.