Opinion
B226127
01-24-2012
FRANCISCO PITA, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE et al., Defendants and Respondents.
Frank Francisco Pita, in pro. per., for Plaintiff and Appellant. Stone & Hiles, Frank L. Kurasz and Scott D. Zonder for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. LC082586)
APPEAL from a judgment of the Superior Court of Los Angeles County, James A. Kaddo, Judge. Affirmed.
Frank Francisco Pita, in pro. per., for Plaintiff and Appellant.
Stone & Hiles, Frank L. Kurasz and Scott D. Zonder for Defendants and Respondents.
INTRODUCTION
Plaintiff Francisco Pita appeals from a judgment of dismissal entered after the court granted a motion for terminating sanctions in favor of defendants Farmers Insurance Exchange and Mid-Century Insurance Co. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed his complaint against defendants on September 4, 2008. It was apparently based on an alleged failure to pay claims under an insurance policy. The claims were for water damage to plaintiff's home.
Plaintiff failed to include a copy of the complaint, as well as most of the pertinent documents, in his designated record on appeal. Defendants included many of these documents in their motion to augment the record on appeal. To the extent the documents provided to us are inadequate to review plaintiff's claims of error, those claims will be deemed forfeited, as it is plaintiff's burden to provide us with an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Additionally, rule 8.204(a)(1)(C) of the California Rules of Court requires that a party's briefs support any reference to a matter in the record by a citation to the record. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) To the extent plaintiff makes reference to factual or procedural matters without record references, we will disregard such matters. (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545- 546.)
We acknowledge a selfrepresented litigant's understanding of the rules on appeal is, as a practical matter, more limited than that of an experienced appellate attorney. Whenever possible, we do not strictly apply technical rules of procedure in a manner that deprives litigants of a hearing. However, "mere selfrepresentation is not a ground for exceptionally lenient treatment." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984985.)
On June 24, 2009, defendants filed a motion for an order compelling appraisal under the terms of the insurance policy and staying the litigation pending the outcome of the appraisal. The hearing on the motion was scheduled for July 23. On July 14, defendants filed a notice of non-receipt of plaintiff's opposition to the motion. Plaintiff failed to appear at the hearing, and the trial court granted the motion.
On August 14, plaintiff filed an ex parte application to stay the July 23 order on the ground he was going to seek relief from the order under Code of Civil Procedure section 473, subdivision (b), or reconsideration under Code of Civil Procedure section 1008. The request for relief or reconsideration would be based on his former counsel's failure to file opposition to defendants' motion. The trial court denied plaintiff's request for relief.
Plaintiff then filed his motion for relief from or reconsideration of the July 23 order. Thereafter, he filed a second ex parte application for a stay of the July 23 order. Defendants opposed the application and requested an award of sanctions. The trial court denied plaintiff's application and set a hearing on defendants' request for sanctions.
On October 14, the trial court denied plaintiff's motion for relief from or reconsideration of the July 23 order. In so doing, it noted that the July 23 order was correct because plaintiff, "through his former attorneys, accepted the appraisal process," as evidenced by a letter from defendants to the attorneys accepting their request "'that the disputed settlement be finalized through the appraisal process.'" Additionally, plaintiff presented no evidence supporting his claim of attorney mistake, inadvertence or excusable neglect. The trial court denied defendants' request for sanctions, however, finding that plaintiff's motion was not frivolous.
A status conference was held on March 16, 2010. At the conference, the court noted that they had "continued this case from January 12 to allow time to complete the appraisal process. I indicated at that time I will not allow any further continuances." Counsel for the parties informed the court that they had not completed the appraisal process and would require another continuance. According to defendants' counsel, he had correspondence from the appraiser stating that plaintiff's counsel had asked the appraiser to postpone the appraisal, and then plaintiff refused to allow the appraiser access to his home for an inspection.
Plaintiff's counsel told the court that the appraisal was now scheduled for March19. The court asked the reason for the delay from the July 23 stay order. Plaintiff's counsel responded that "unfortunately, I'm not the handling attorney on this case. My understanding is that there's just been some delay trying to get the appraisers to come to some sort of meeting." The court responded, "It seems to me that somebody is dragging their feet." Defendants' counsel reiterated that he had "correspondence from the appraisers which confirms the fact that at first plaintiff's counsel was instructing his appraiser to hold off on proceeding with the appraisal. . . . And then there's correspondence that they were unable to gain access because [plaintiff] would not allow them access to appraise the property . . . ."
The court expressed its unhappiness and "asked Defendants to file and serve a motion for terminating and monetary sanctions against Plaintiff for delaying the appraisal process and violating the court's appraisal order." It set a hearing on the motion for April 12.
Defendants promptly filed their motion for terminating and monetary sanctions. It was supported by the declaration of Jeff Caulkins (Caulkins), defendants' appraiser. Caulkins recited that on September 30, 2009, he received notification from David Spiegel (Spiegel) that Spiegel had been retained as plaintiff's appraiser. Since that time, he had been working with Spiegel in an attempt to inspect plaintiff's property and complete the appraisal, with no success. Spiegel initially told him that plaintiff's attorney had requested that Spiegel "hold off on the appraisal." In December 2009, Spiegel said he would call Caulkins back in January 2010 to set up an inspection. Spiegel did not call in January and did not respond to Caulkins' calls until March 9, when Spiegel advised Caulkins "that he had received authority from Plaintiff to allow for us to inspect the property on March 19, 2010."
Plaintiff filed opposition to the motion, supported by the declaration of his attorney, Dennis P. Riley (Riley). After recounting all the procedural aspects of the case, including his attempts to set aside the July 23 order, he stated: "Plaintiff retained David Spiegel as an appraiser in this matter. Over the next several months, various efforts were made to schedule a time for both Defendants' appraiser and Plaintiff's appraiser to meet. However, due to the nature of the case including multiple water intrusion claims, and the fact that [plaintiff] in his efforts to resolve the matter had obtained several estimates that all needed to be analyzed, additional time was needed to gather all the information necessary for Plaintiff's appraiser to complete his work before meeting with the appraiser for [Defendants]. This additional time also caused delay in scheduling a time for both appraisers to meet and conduct an inspection at the property." Riley added that "[a]t no time after October 14, 2009 did Plaintiff or his attorneys instruct the appraiser not to work on the appraisal process."
In a supplemental declaration, Riley stated that when the appraisers went to plaintiff's home on March 19, Caulkins "indicated that he had not been provided with the architectural plans for [plaintiff's] house." Riley believed that defendants and their adjusters had those plans since the summer of 2009, and their "delay in providing those plans to [their] appraiser has now caused delay in the appraisal process." Following the inspection, the appraisers made an appointment for March 31 to conduct the appraisal. Caulkins cancelled the appraisal on March 31, explaining that he needed to re-inspect the property with his experts. Riley concluded, "Now it is [defendants who are] delaying the appraisal and I question whether they are doing so due to the fact that the Court asked them to file a motion for sanctions and they are awaiting the outcome of that motion before proceeding with the appraisal."
Plaintiffs filed a supplemental declaration by Caulkins in response. Caulkins explained that he had "set a tentative meeting with" Spiegel for March 31 to discuss his findings after the inspection, not to conduct the appraisal. On March 26, he wrote to Spiegel requesting a second inspection with his experts in engineering and construction. He had not heard back with a date for the second inspection. He cancelled the March 31 meeting, because there was no point in discussing the matter with Spiegel until after his experts had inspected the property. He added that he had a copy of the architectural plans for the property, and that was not the cause for any delay.
At the hearing on the sanctions motion, which was continued to April 26, the court gave its tentative ruling to grant defendants' motion. It noted that plaintiff did "not provide any substantive details to explain why the appraisal has not moved forward. [1] Simply, and to be brief, this plaintiff has gone beyond dragging his feet. He dug a hole and refuses to move forward. He refuses to obey court orders. I need cooperation. The defendants need cooperation."
In response, Riley pointed out that plaintiff designated his appraiser in a timely manner. He added that plaintiff had complied with the July 23 "order, everything under the contract. You won't hear . . . that my client has done anything against the procedures in the policy for appraisal." When Riley attempted to review the procedural aspects of the case, the trial court returned to the issue of the appraisal, explaining, "The point I'm making is I've bent over backwards, counsel. I've done everything for this plaintiff. [1] . . . [1] . . . What more can I do? He doesn't want to cooperate."
Riley argued that plaintiff was cooperating, and there was a new meeting scheduled by the appraisers. He asked that plaintiff be given another chance, because dismissing the case would do nobody any good. The parties would still have to go through the appraisal process, and a decision by the appraisers would still need to be confirmed by the court.
The trial court, however, was not swayed. It noted that "the purpose of this whole procedure, three volumes of documents, is not to punish your client. The whole purpose was to get him to cooperate with his insurance carrier to see if he can be fairly compensated . . . ." The court had before it "a very simple matter which has . . . gone completely out of control and I'm sorry, it appears because of your client's stubbornness and his refusal to comply with the contract. . . . [A]ll he had to do was cooperate with the appraisal."
Riley attempted to frame the matter as one of a slow process, rather than noncompliance with the court's order. The trial court disagreed, believing that plaintiff had acted unreasonably and showed disrespect for the law.
Defendants' counsel then pointed out that Riley "in his opposition papers admits that this lawsuit is premature and should never have been filed." Yet defendants had been forced to expend time and money to litigate the matter, and for that reason terminating and monetary sanctions were appropriate.
Riley continued his attempt to keep the court from terminating the action and imposing monetary sanctions, but he was unsuccessful. The court even granted a brief recess to allow counsel for the parties to try to work out a resolution of the case acceptable to both sides. They were unable to do so.
The court then dismissed the matter with prejudice. It explained that plaintiff had not given a satisfactory explanation as to the delay in complying with the July 23 order. It later concluded that an award of attorney's fees as monetary sanctions in the amount of $11,520 was reasonable. Judgment was entered accordingly on May 25, 2010.
DISCUSSION
Failure to Comply With the Federal Rules of Civil Procedure
Plaintiff first contends that the trial court erred in dismissing the case with prejudice as a sanction pursuant to rule 41(b) of the Federal Rules of Civil Procedure (28 U.S.C.). The federal rules do not apply in state court proceedings. (Siegel v. Prudential Ins. Co. (1998) 67 Cal.App.4th 1270, 1281-1282.)
Plaintiff's citations to the discovery statutes and various other statutes and case law are similarly inapposite. The applicable law is Government Code section 68608, subdivision (b), part of the Trial Court Delay Reduction Act (id., § 68600 et seq.), which gives judges "all the powers to impose sanctions authorized by law, including the power to dismiss actions . . . , if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case. Judges are encouraged to impose sanctions to achieve the purposes" of the Act.
Plaintiff's arguments as to why the imposition of sanctions was inappropriate here are replete with references to facts not in the record and/or unsupported by citations to the record. In addition, he makes assumptions without citing any support for them in the record, and he misconstrues the trial court's ruling.
For example, he argues: "It's important to note that there was never any failure to comply, or any disobedience to the court. It was unreasonable for The Court to have expected the appraisal process to be completed between the March 16, 2010 hearing when The Court orders defense counsel to file a motion for terminating sanctions and the next hearing on March 26, 2010 when the case was dismissed with prejudice and sanctions. The appraisal process was proceeding, and The Court never set a date by which the appraisal process was to be completed. Thus, it was unreasonable for the court to expect the appraisal to have been completed by then because of the complexity of this process involving two large claims, line by line comparison of the estimates, as demanded by Farmers Insurance, which amounted to between three to four hundred thousand dollars; and would involve multiple structural engineering reports, testimony of multiple experts, etc. and in light of the fact that such a lengthy process could take over a year to complete."
Plaintiff cites nothing in the record to support his statements as to what the appraisal process would entail. Moreover, the imposition of terminating sanctions was not based on the failure to complete the appraisal between March 16 and March 26, 2010. It was based on the unexplained delays in even beginning the appraisal process between the July 23, 2009 order to have an appraisal and the March 16, 2010 request that defendants file a motion for terminating and monetary sanctions.
It is well established that in addressing an appeal, we begin with the presumption that the judgment of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) The appealing party "has the burden of showing reversible error by an adequate record." (Ballard v. Uribe, supra, 41 Cal.3d at p. 574; Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 318.) Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1); Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) It also requires citation to relevant authority and argument. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.) The failure to meet this burden forfeits the issues on appeal. (Ibid.) Plaintiff has failed to meet his burden to demonstrate the claimed error.
Lack of Fault
Plaintiff next contends that the imposition of a terminating sanction is an abuse of discretion where the failure to perform is not the fault of the party against whom the sanction is imposed. The only factual support for his contention which plaintiff supports with citations to the record is that at one point after October 14, 2009, Riley was involved in a three-week jury trial, and at about the same time, his partner retired and left him with his caseload. This fails to explain the delay from July 23, 2009 to March 19, 2010.
Additionally, plaintiff provided no declaration of his own showing that he was without fault in the delay of the appraisal process. His unsupported claim that he was not at fault is insufficient to overturn the trial court's judgment.
Plaintiff further claims that defendants were responsible for the delay due to their "deceitful tactics and their improper use [of] the appraisal process." His claim is based mainly on speculation, unsupported by any citation to the record. To the extent the claim is based on Caulkins' postponement of his meeting with Spiegel and his need for further inspection of the property, these facts are irrelevant to the trial court's judgment.
Lack of Jurisdiction
Plaintiff asserts that the court lacked jurisdiction to make the sanctions order while the July 23 stay order was in effect. He relies on cases which hold that once a matter has been referred for arbitration and the trial proceedings stayed pursuant to Code of Civil Procedure section 1281.4, the trial court is without jurisdiction to dismiss the case for delay in the arbitration proceedings; rather, the power to dismiss the arbitration for delay belongs to the arbitrator alone. (Finley v. Saturn of Roseville (2004) 117 Cal.App.4th 1253, 1259; Blake v. Ecker (2001) 93 Cal.App.4th 728, 737-738, disapproved on another ground in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, fn. 5.)
Plaintiff asserts that a stay of court proceedings to allow an appraisal "is identical to when parties are compelled to arbitration," but he cites no authority for this assertion. In fact, while there are similarities between the two types of proceedings (see Safeco Ins. Co. v. Sharma (1984) 160 Cal.App.3d 1060, 1063), there is a crucial difference. Unlike arbitrators, who can decide both questions of law and fact, appraisers can decide only a limited question of fact—the actual cash value of an insured item or loss. (Ibid.) It follows that they have no authority to dismiss the appraisal for delay in the proceedings. The trial court therefore did not lose jurisdiction to impose sanctions for delaying the appraisal.
Adequacy of Notice
Plaintiff contends he was not given adequate notice of the hearing on the motion for terminating and monetary sanctions. He relies on provisions applicable to a discretionary dismissal for delay in prosecution, Code of Civil Procedure section 583.410, subdivision (b), and California Rules of Court, rules 3.1340(b) and 3.1342. They have no application to proceedings under Government Code section 68608.
Merits of Plaintiff's Complaint
Plaintiff finally contends that his complaint is meritorious and not premature. Inasmuch as he has not seen fit to provide us with a copy of that complaint, and he provides no citations to the record or to relevant authority to support his contention, we deem it forfeited. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.