Opinion
NOT TO BE PUBLISHED
CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County No. GIS 20077, William S. Cannon, Judge.
O'ROURKE, J.
Randlett T. Lawrence (plaintiff) sued Lantz E. Arnell for personal injury. The trial court issued terminating sanctions against Arnell. Following a prove-up hearing held on May 15, 2007, a default judgment was entered in favor of plaintiff on December 4, 2007. Arnell contends: (1) Plaintiff did not file a statement of damages as required by Code of Civil Procedure, § 425.11, subd. (c). (2) Arnell "did not beat [plaintiff] or harm him in any way." (3) "[Plaintiff] brought this action in bad faith violating both state and federal constitutional provisions" because plaintiff entered Arnell's driveway in violation of Arnell's privacy. (4) "This is a case involving a conspiracy to disrupt commerce by violence, extortion and attempted murder." (5) The trial court abused its discretion because the default judgment "was obtained because [Arnell] could not give documents that were not in his possession or control;" and "there was no attempt to resolve the financial disclosure issues or to court or to find less invasive ways to get the same information." (6) "Examples [of] extrinsic fraud in this case involve [Arnell's] attorneys [sic] failure to represent their client allowing [sic] terminating sanctions they could easily have prevented, and false statements made under oath by [plaintiff] during the prove[-]up after terminating sanctions." (7) The trial court committed intrinsic fraud by refusing to hear Arnell's motion for reconsideration of the denial of summary judgment. We affirm.
On June 14, 2007, Arnell filed a first notice of appeal before the default judgment was entered (D051102). After the judgment was entered, Arnell filed a second notice of appeal on January 31, 2008 (D052464). Arnell filed a motion to consolidate the appeals, which we granted.
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2005, plaintiff filed a first amended complaint against Arnell, alleging causes of action for assault, battery, and elder abuse under Welfare and Institutions Code section 15600 et seq.
On May 19, 2006, the court granted plaintiff's "motion for an order deeming the requests for admissions admitted," ruling, "Because of [Arnell's] failure to provide the discovery as ordered by the court on February 17, [Arnell] . . . is prohibited from asserting any affirmative defense; and [Arnell] is prohibited from asserting that plaintiff was not injured. . . . [¶] . . . Requests 1, 2, and 9 through 14 of plaintiff's Requests for Admissions are deemed admitted."
The record on appeal does not include a copy of the requests for admissions. However, plaintiff's memorandum of points and authorities opposing summary judgment sets forth the following requests for admissions that plaintiff propounded on Arnell, and which the trial court deemed admitted: "11. Admit that YOU willfully caused [plaintiff] to suffer pain and suffering. 12. Admit that YOU willfully inflicted unjustifiable physical pain on [plaintiff]. 13. Admit YOU used force and violence against [plaintiff]."
On May 26, 2006, the trial court granted plaintiff's motion for sanctions against Arnell for costs plaintiff incurred because Arnell failed to timely comply with the court's discovery order.
In July, 2006, Arnell moved for summary judgment. The trial court denied the motion, ruling, "To the court's understanding, the gist of the motion is that the plaintiff cannot establish he suffered physical injury or economic damages. As the court previously explained, the plaintiff's requests for admissions 1, 2 and 9-14 were deemed admitted. Consequently, for purposes of this litigation, it is established [Arnell] assaulted and battered [the plaintiff and caused him] to suffer pain and suffering. Additionally, even if there were no witnesses to the incident other than the parties that would not preclude the trier of fact from accepting as true plaintiffs' testimony that he was hurt, even in the absence of any blood or broken bones. The fact that a portion of plaintiff's medical bills were paid by third parties is irrelevant, barred by the collateral source rule and impliedly admits that plaintiff incurred some medical bills." (Emphasis added.)
On December 15, 2006, the trial court granted plaintiff's "fourth motion for terminating sanctions and monetary sanctions" under section 2023.030, subd. (d). The trial court's ruling noted the court previously "ordered [Arnell] to provide verified responses to the request for production of documents by September 5, 2006. . . . On September 15 the court denied plaintiff's motion for terminating sanctions because [Arnell] indicated he would fully comply with the production of all documents requested. Unfortunately, [Arnell's] October 7 response still does not comply with the Code of Civil Procedure provisions regarding format or content. For example, the response that documents 'don't exist' is insufficient. [Citation.] When asked to provide any documents of title for real estate [Arnell's] response was, '[Plaintiff's attorney] was given instructions on how to obtain the information without violating anyone's constitutional right to privacy.' There is no reasonable expectation of privacy regarding deeds; the reason for recording them is to put the world on notice of the party's interest. When asked to produce bank statements, tax returns, evidence of earnings, etc. [Arnell] provided two documents [that] have been so redacted that one cannot tell what institutions they are from, the date, and whether they even apply to [Arnell]. [Arnell] provided what appears to be self-generated income statements that end in October rather than December as requested, and they show less than $2,000.00 in annual income, which is improbable. [Arnell's] action of telling plaintiff['s] counsel that he could get the documents himself, producing documents that are so redacted as to be useless, and refusing to produce documents that almost certainly exist such as bank statements and tax returns are obstreperous and demonstrate an unwillingness to comply with his discovery obligations. The court has extended deadlines and accommodated [Arnell] many times. Lesser sanctions which the court has imposed have not had their intended effect of persuading [Arnell] to fully cooperate in responding to discovery." The trial court also struck Arnell's answer and ordered a prove-up hearing.
At the May 15, 2007 prove-up hearing, plaintiff's attorney stated, "Your honor, just for the record, I'd like you to take judicial notice of the fact that the court has ruled that [Arnell] is deemed to have violated Penal Code section 242, [Arnell] is prohibited from asserting any defense, and [Arnell] is prohibited from asserting that plaintiff is not injured. And that was the court's ruling on [May 19, 2006]. [¶] On request for admissions Nos. 1, 2 and 9 through 14 were deemed admitted. That includes that defendant assaulted [plaintiff], battered [plaintiff] and used force and violence against [plaintiff], and that he willfully inflicted unjustifiable physical pain on [plaintiff]." Three witnesses testified at the hearing, and exhibits were admitted into evidence. The trial court ruled in plaintiff's favor and awarded punitive damages, stating, "There is no question that the assault was unprovoked on an elderly gentleman that could not walk well in the first place."
The trial court ordered Arnell to pay plaintiff a total of $53,675.22 as follows: $1,515.00 in special damages; $10,000.00 in general damages; $15,000.00 in punitive damages; $2,652.75 in costs and $24,507.47 in attorneys' fees for elder abuse under Welfare and Institutions Code, section 15657.
Arnell filed a "motion to set aside default judgment as void and dismiss action due to fraud upon the court." The trial court denied the motion on November 15, 2007 for lack of jurisdiction because Arnell had filed a notice of appeal in June 2007.
DISCUSSION
I.
We reject Arnell's claim that the entry of default judgment was void because plaintiff did not serve on Arnell a statement of damages that set forth the nature and amount of damages sought.
Section 425.11, subdivision (C) requires a plaintiff to serve a statement of damages before default may be taken in personal injury or wrongful death actions. The purpose of this section is to protect the defendant's due process rights by providing the defendant with actual notice of his exact potential liability. (Garamendi v. Golden Eagle Ins. Co. (2004) 116 Cal.App.4th 694, 704.) Section 580 states, "The relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint [or] in the statement required by Section 425.11 . . . but in any other case, the court may grant the plaintiff any relief consistent with the case made by the complaint and embraced within the issue. The court may impose liability, regardless of whether the theory upon which liability is sought to be imposed involves legal or equitable principles." The California Supreme Court has held, "[I]n all default judgments, the demand sets a ceiling on recovery." (Greenup v. Rodman (1986) 42 Cal.3d 822, 824.)
Here, the first amended complaint sought "general damages in the sum of $100,000.[00]", punitive damages in an unspecified amount, medical and related expenses according to proof, attorney fees and costs. Arnell does not raise the point, but we note that section 425.10, subdivision (b) prohibited plaintiff from stating in the complaint the amount of damages claimed. "Right or wrong, the complaint filed and served herein did contain a recitation of the damages sought and the judgment did not exceed the amount requested." (Uva v. Evans (1978) 83 Cal.App.3d 356, 360 (footnote omitted); accord, Cummings Medical Corp. v. Occupational Medical Corp. (1992) 10 Cal.App.4th 1291, 1297.) The complaint provided Arnell with sufficient notice of his potential liability; moreover, the total judgment was less than the amount sought in the first amended complaint. Accordingly, we conclude that the entry of default was not void.
Section 425.10, subdivision (b) states, "[W]here an action is brought to recover actual or punitive damages for personal injury or wrongful death, the amount demanded shall not be stated."
II.
We reject Arnell's second through fourth contentions which, in essence, challenge both the trial court's May 19, 2006, discovery ruling and the denial of the summary judgment motion that had deemed admitted Arnell's use of force and violence to inflict harm on plaintiff, and prohibited Arnell from contesting these matters. "[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein." (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) On the merits, we conclude substantial evidence presented at the prove-up hearing supported the trial court's finding that Arnell committed assault and battery.
We dispose of Arnell's remaining contentions by applying the following principles of appellate review: "[I]t is settled that '[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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) " 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
It is "counsel's duty by argument and citation of authority to show in what respects rulings complained of are erroneous." (Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265.) All litigants are bound by the rule that "[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel. Accordingly, every 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." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.) Issues cannot be raised for the first time on appeal. (Yeung v. Soos (2004) 119 Cal.App.4th 576, 583.) Arnell's remaining contentions are conclusory statements presented in a perfunctory and disjointed manner. He does not support his arguments with adequate citations to the record as required by California Rules of Court, Rule 8.204, subd. (a)(1)(C).
Specifically, Arnell's fifth contention is that the documents plaintiff sought through discovery were not in his possession and control, and the court failed to order plaintiff to obtain the information through a less invasive way. In reviewing a motion for terminating sanctions, "the test on appeal is whether the lower court abused its discretion, and each case must be decided on its own facts, with the appellant having the burden of showing an abuse." (Scherrer v. Plaza Marina Coml. Corp. (1971) 16 Cal.App.3d 520, 524, superseded by statute on other grounds as stated in Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581.) Arnell does not cite to the record to show that he raised this issue in the trial court. He also does not provide evidence that the terminating sanctions were improperly ordered. Arnell's sixth contention states his attorneys failed to represent him because they could easily have prevented terminating sanctions; and, they did not stop the admission of perjured testimony during the prove-up hearing. Again, Arnell provides no citations to the record to substantiate his claims, and fails to point us to legal authority to support this contention. Finally, Arnell contends the trial court abused its discretion in denying his November 6, 2006 motion that was captioned, "Objection to court ruling on defendant's second motion for summary judgment and motion for reconsideration." Arnell has not pointed us to the court's minute order or the record transcript in which the court addressed this issue, and we do not find them in the record on appeal. We cannot evaluate the merits of these contentions on the record before us, and because of Arnell's deficient briefing. Accordingly, Arnell's remaining contentions are waived.
We recognize that Arnell is not represented by an attorney on this appeal, but point out that under the law he is not exempt from the foregoing rules on that basis. Rather, Arnell is " 'to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' . . . Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.