Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 26-38293
McGuiness, P.J.
Appellant Matthew Shaun Martin appeals from an order directing enforcement of a judgment requiring him to vacate a residence owned by a trust of which respondent Jim Nord is the trustee. Appellant does not argue against enforcement of the judgment. Instead, he contends the trial court violated his due process rights by striking the filing of an unrelated petition he brought with him to the hearing on respondent’s motion to enforce the judgment. We dismiss the appeal.
Factual and Procedural Background
We note at the outset that appellant has failed to provide this court with a complete and comprehensible summary of significant facts as required by rule 8.204(a)(2)(C) of the California Rules of Court. We have therefore conducted our own review of the record to obtain the necessary background for this appeal. The significant facts, as we can discern them, are as follows.
All further references to rules are to the California Rules of Court.
In 1998, Stephan Arthur Williams created a living, revocable trust referred to as the Stephan Arthur Williams Living Trust (the trust). The trust provides that the remainder of the trust estate shall be distributed upon Williams’s death to his three stepchildren—Kimberly Mechelle Martin, Timothy Shane Martin (Shane), and appellant Matthew Shaun Martin. After Williams died in June 2007, the trust became irrevocable and respondent Jim Nord became trustee of the trust.
Appellant had been residing at Williams’s Napa residence—referred to in the record as a “ranch”—since Williams died. Williams’s three stepchildren agreed in writing that it was their goal to sell the Napa ranch “when [the] market bounces back in 2-3 years but hopefully by 12/31/10.”
In a petition filed on November 18, 2008, respondent sought court instructions with respect to the occupancy of the Napa ranch. Respondent indicated the agreement among the three stepchildren “has not worked” and that there had been “insufficient progress in... arranging the real property for sale.” Respondent proposed that the beneficiary selected to live at the ranch be given a deadline to clean up the property and prepare it for sale. Respondent also proposed that appellant vacate the property in 30 days in order to allow appellant’s brother, Shane, to take possession of the ranch and perform the tasks necessary to prepare the property for sale.
At a hearing conducted on December 12, 2008, counsel for respondent recited the terms of a stipulated agreement regarding occupancy of the Napa ranch. It was agreed that appellant and Debora Lynn Olmstead, who were then the only occupants of the property, would vacate the residence by January 15, 2009, at the latest. Rent would be calculated at $50 per day beginning January 1, 2009, for each day they remained in possession of the ranch. Respondent would pay appellant $10,000 in compensation for work he had done at the property, with $5,000 paid upon the signing of the agreement and $5,000 paid at the time he surrendered possession of the property. It was further agreed that appellant’s brother, Shane, would enter into possession of the property. Appellant and Olmstead agreed to be bound by the terms of the stipulation.
Appellant and Olmstead subsequently refused to sign the stipulated agreement concerning occupancy of the Napa ranch. After appellant refused to sign the stipulated agreement, respondent sought a court order confirming the parties’ on-the-record stipulation. On January 30, 2009, the trial court entered an order
attaching a transcript of the parties’ stipulation entered in open court on December 12, 2008, and directed that “each party to the stipulation shall perform as set forth in the attached transcript.” Accordingly, appellant and Olmstead were required to leave the Napa ranch pursuant to their agreement, as reflected in the court’s order. Respondent served notice of entry of the order on February 2, 2009.
Neither appellant nor Olmstead vacated the Napa ranch by January 15, 2009, as required by their stipulation. On February 19, 2009, respondent brought a motion seeking enforcement of the court’s order requiring appellant and Olmstead to vacate the property. The motion was set to be heard on March 17, 2009.
There is no indication in the record before us that appellant filed an opposition to the motion seeking to enforce the court’s order. Instead, as reflected in the court’s minutes, appellant appeared at the hearing on March 17, 2009, and requested to file a number of documents “regarding the previous settlement of this matter,” including a document entitled “Petition for Removal of Trustee.” The court ordered the documents filed and continued the matter for one week. In a response filed March 18, 2009, respondent stated that the “Notice of Petition for Removal of Trustee,” along with the other documents submitted by appellant, “[did] not apply to the issue before the court.”
When the court took up the matter again on March 24, 2009, it granted respondent’s motion in part, ordering enforcement of the court’s January 30, 2009 order, and requiring appellant and Olmstead to vacate the Napa ranch. In addition, the court made the following ruling: “All documents and pleadings filed on March 17 and 23, 2009, are hereby ordered stricken as not filed in conformity with the law. Although the court allowed [appellant’s] voluminous late documents to be filed in open court on March 17, after having an opportunity to review them, the court deems them untimely and non-responsive.”
Appellant filed a notice of appeal on March 27, 2009. His notice of appeal identified the court’s March 24, 2009, order as the subject of the appeal.
Discussion
Initially, we observe that appellant’s briefs suffer from a number of deficiencies that make it difficult to assess his claims on appeal. Among other things, his opening brief lacks a summary of significant facts and fails to contain any citations to the record. The California Rules of Court require not only that an appellant provide a summary of significant facts but also that any reference to a matter in the record be supported by a proper citation. (Rule 8.204(a)(1)(C) & (2)(C).) “It is the duty of [the parties] to refer the reviewing court to the portion of the record which supports appellant’s contentions on appeal. [Citation.]” (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; see also Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 503, fn. 1 [failure to comply with California Rules of Court requiring summary of material facts supported by appropriate reference to the record may constitute waiver of error].)
In addition, the opening brief does not contain a statement of appealability as required by the California Rules of Court. (Rule 8.204(a)(2)(B); see Lester v. Lennane (2000) 84 Cal.App.4th 536, 557 [failure to include statement of appealability may justify striking brief or dismissal if not corrected].) Instead, the opening brief contains a “statement of jurisdiction” in which appellant cites the United States Constitution and asserts this case comes under the court’s “[a]dmiralty jurisdiction.”
We are not required to search the record on our own seeking trial court error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) This basic rule is a corollary to the equally fundamental principle that a judgment is presumed correct on appeal, “and a party attacking the judgment, or any part of it, must affirmatively demonstrate prejudicial error. [Citation.]” (People v. Garza (2005) 35 Cal.4th 866, 881.)
We are aware that appellant brings this appeal without the benefit of legal representation, but his status as an in propria persona (pro. per.) litigant does not exempt him from the rules of appellate procedure or relieve him of his burden on appeal. (See Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.) We treat pro. per. litigants like any other party, affording them “ ‘the same, but no greater consideration than other litigants and attorneys.’ ” (Ibid.)
Appellant’s opening brief, while lengthy, essentially contains a single argument—that the trial court violated his due process rights by refusing to hear his petition to remove respondent as trustee. However, appellant fails to acknowledge that the issue before the court was not whether the trustee should be removed; the issue was whether the court’s order requiring appellant to vacate the Napa ranch should be enforced. Appellant does not mention, much less discuss, the stipulation in which he agreed to vacate the Napa ranch, the order memorializing the stipulation, or respondent’s motion to enforce that order. His opening brief contains no legal analysis of the trial court’s March 24, 2009, order enforcing the terms of the parties’ stipulation. Indeed, his brief utterly fails to mention the substance of the court’s order or the motion that preceded it. Instead, he simply complains that the court refused to consider his petition to remove the trustee. He has provided no pertinent or intelligible argument suggesting the filing of his belated petition to remove respondent as trustee would have been in any way relevant to the court’s ruling on respondent’s motion to enforce the stipulation. Under the circumstances, we may deem the failure to articulate any relevant legal argument as an abandonment of the appeal justifying dismissal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)
Because the court ordered the filing of appellant’s petition stricken, the petition is not contained in the record on appeal. Although appellant attached the petition to his opening brief, the petition is nonetheless not properly before this court. (See Castaneda v. Holcomb (1981) 114 Cal.App.3d 939, 946 [exhibit to brief that is not part of record on appeal disregarded]; see also rule 8.204(d) [attachments to briefs must consist of materials in the record or relevant regulations, rules, statutes, or other similar citable materials].)
Appellant appears to take the position that the ruling striking his petition to remove the trustee is appealable as a separate and distinct order. He is mistaken. The ruling was in the context of the court’s consideration of respondent’s motion to enforce the judgment requiring appellant to vacate the Napa ranch. The court’s action merely reflected that the petition was nonresponsive and irrelevant to the motion that was before the court. The court ordered the petition stricken because it was not a proper or authorized response to respondent’s motion. The court was under no obligation to consider a newly submitted motion—seeking entirely different relief—that was not properly filed, served, or set for argument in compliance with applicable rules of procedure. (See Code Civ. Proc., § 1005, subd. (b) [describing procedure for noticed motions].) Nothing in the court’s ruling striking his petition prevented appellant from later serving and filing it as a separately noticed motion.
In any event, even if we were to consider the ruling striking appellant’s petition as a separate and distinct order, we would have no jurisdiction to consider an appeal from that order. “ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations.]” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) The Probate Code provides the exclusive grounds for taking an appeal in probate proceedings such as this one. (Code Civ. Proc., § 904.1, subd. (a)(10); Estate of Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126.) With respect to proceedings involving a trust, the Probate Code authorizes an appeal from “[a]ny final order” falling under Probate Code section 17200. (Prob. Code, § 1304, subd. (a).) A “final order” generally is one that ends the litigation on the merits. (See Northern Trust Bank v. Pineda (1997) 58 Cal.App.4th 603, 607.) Because Probate Code section 17200, subdivision (b)(10) authorizes a proceeding to remove a trustee, a “final order” on a motion to remove a trustee would be appealable under Probate Code section 1304, subdivision (a).
Here, the ruling striking the filing of appellant’s petition was not a final order. The court did not address or even consider the merits of the petition. Instead, the court’s ruling merely reflected that the petition was not an authorized or proper response to respondent’s motion. As noted above, nothing prevented appellant from serving and filing his petition to remove the trustee as a separate, noticed motion in accordance with applicable rules of civil procedure. Because the challenged ruling does not qualify as a “final order,” we lack jurisdiction to consider a direct appeal from that ruling. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 695 [court has jurisdiction in direct appeal only from appealable orders or judgments].)
Therefore, dismissal is warranted here for a number of reasons. First, appellant has offered no pertinent legal argument why this court should reverse the trial court’s order of March 24, 2009, directing enforcement of the court’s earlier order requiring appellant to vacate the Napa ranch. He has thus effectively abandoned his appeal of that order, meriting dismissal. Second, even if, as appellant presents it, this appeal were limited to the lower court’s ruling striking his petition to remove the trustee, that ruling is not a final order and therefore cannot be the proper subject of an appeal. We are duty bound to dismiss an appeal that we lack jurisdiction to hear. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.)
Respondent urges that we direct the trial court upon issuance of the remittitur to impose sanctions against appellant. The authority upon which respondent relies, Code of Civil Procedure section 907, provides that “[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” (See also rule 8.276(a)(1).) Respondent argues that appellant’s motive in appealing was simply to cause delay, presumably to extend the time he would be permitted to reside at the Napa ranch.
Under the circumstances presented here, respondent’s request for sanctions is not unreasonable. However, “because of the disciplinary flavor of the proceedings and the punitive nature of any decision to award sanctions, we view it as well advised to require proof of an intent to delay by clear and convincing evidence, well beyond a mere preponderance and approaching the criminal standard of beyond a reasonable doubt.” (San Bernardino Community Hospital v. Meeks (1986) 187 Cal.App.3d 457, 470, fn. omitted.) Applying this standard, the imposition of sanctions is not justified. We cannot say the evidence is clear that appellant pursued this meritless appeal solely for delay. Accordingly, we reject respondent’s request for sanctions.
As a final matter, we note that appellant has requested oral argument in response to a notice sent by the court’s clerk, as a matter of course, when the appeal was fully briefed. A party’s right to oral argument exists in any appeal considered on the merits and decided by written opinion. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871; accord Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1254.) Because we dismiss the appeal without reaching the merits, appellant does not have a right to oral argument, which we deem unnecessary to our procedural dismissal of the appeal.
Disposition
The appeal is dismissed. Respondent shall recover its costs on appeal.
We concur: Pollak, J. Siggins, J.