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Ray v. Kent

California Court of Appeals, Second District, Second Division
Feb 7, 2011
No. B217771 (Cal. Ct. App. Feb. 7, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BS120226 David Cunningham, Judge.

Danny Ray, in pro. per., for Plaintiff and Appellant.

Angela Berry-Jacoby for Defendant and Respondent.


BOREN, P.J.

The trial court denied Danny Ray’s petition for an order to stop harassment. The ruling is supported by substantial evidence. The court later exercised its discretion and awarded respondent Rahel Kent $1,000 in attorney fees incurred in defending against the petition. Ray has not shown an abuse of discretion. We affirm, and impose sanctions of $1,000 for filing a frivolous appeal.

FACTS

On April 20, 2009, pro. per. litigant Danny Ray filed a “Request for Orders to Stop Harassment” against Rahel Kent, an attorney. The parties live in the same condominium complex. Ray alleged that Kent verbally abused and threatened him in the parking lot, and made a false call about him to the police department. Ray wanted a restraining order “[b]ecause I fear for my own well-being in regards to the threats she continues to use and also continues to cause me to have to put out more money.”

In her answer, Kent denied the alleged wrongdoing. She claimed that Ray assaulted her with a closed fist as she was driving out of their common garage. Kent asserted that Ray’s petition is in retaliation for Kent’s legal representation of her brother in an earlier action for a restraining order against Ray.

A hearing on Ray’s petition was conducted on May 12, 2009. In his opening statement, Ray told the court, “this all stems from... the false orders that [Kent] tried to get for a restraining order.” He testified that Kent called him names in the parking garage, and reversed from her parking space so quickly that he had to jump out of the way to avoid being hit. Also, her dog jumped on him, snagged his suit, and scratched his hand.

Kent testified that she backed out of her parking spot “nowhere near Mr. Ray”: he was “at least 12 feet away.” As she drove by, she told Ray he was a bad person. He ran up to the open window of the car and tried to strike Kent with a closed fist, so she sped away to elude him. Kent denied that her dog ever jumped on Ray, or scratched him, or touched him. Kent mentioned that she represented her brother in litigation involving Ray. After hearing the testimony, the court denied Ray’s request for an order to stop harassment.

Kent requested an award of attorney fees. Ray objected to the request. Kent’s motion for attorney fees was heard on June 9, 2009. The court rebuffed Ray’s attempt “to retry the underlying matter.” Ray stated that Kent should not receive attorney fees “[b]ecause she answered fraudulently, and I didn’t do this maliciously and I didn’t do this in retaliation.” The court awarded Kent $1,000 in attorney fees and $20 in costs.

DISCUSSION

Ray appeals from the order of June 9, 2009, awarding attorney fees. The notice of appeal also states, ambiguously, “Judge ordered and refused trial without due process. There is no civil case.” In his opening brief, Ray identifies the June 9 attorney fees order as the order under appeal. He writes, “Mr. Ray is appealing the order awarding attorney fees.”

The trial court’s award of attorney fees to Kent is appealable as a postjudgment order. (Code Civ. Proc., § 904.1, subd. (a)(2); Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 800, fn. 4.) After the trial court rules on a petition to stop harassment, the “prevailing party... may be awarded court costs and attorney’s fees, if any.” (Code Civ. Proc., § 527.6, subd. (i).) The decision to award attorney fees “is a matter committed to the discretion of the trial court.” (Krug v. Maschmeier, supra, 172 Cal.App.4th at p. 802.)

The argument portion of Ray’s brief does not address why the trial court’s award of attorney fees was an abuse of discretion. Every brief must contain a legal argument with citation to authorities. If none is furnished, the court may treat the claim as abandoned, forfeited, or waived, and pass it without consideration or discussion, because it is not the reviewing court’s responsibility to develop an argument on behalf of the appellant. (Long v. Cal-Western States Life Ins. Co. (1955) 43 Cal.2d 871, 883; Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4th 64, 79-80; R.A. Stuchbery & Others Syndicate 1096 v. Redland Ins. Co. (2007) 154 Cal.App.4th 796, 801-802, fn. 3.) Ray has abandoned his challenge to the attorney fees order by failing to present argument on the point.

In an “insert argument” in his opening brief, Ray challenges the court’s denial of his request for an order to stop harassment. Ray’s notice of appeal does not specifically reference the underlying judgment. Nevertheless, we have authority to review any intermediate ruling, proceeding, order or decision involving the merits or necessarily affecting the order being appealed. (Code Civ. Proc., § 906.) We review an order relating to harassment under a substantial evidence standard. In assessing whether substantial evidence supports the order, we resolve all factual conflicts and questions of credibility in favor of the prevailing party and indulge all legitimate inferences to uphold the trial court’s findings. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.)

Respondent has had an opportunity to be heard: she addresses the merits of the trial court’s denial of the harassment order on pages 16 to 19 of her brief.

Ray’s “insert argument” states that Kent “did not tell the truth. Therefore, Mr. Ray’s request for protection was denied, resulting in a judgment against Mr. Ray. Mr. Ray did tell the truth.” (Citations omitted.) The trial court heard the testimony from Ray and Kent and observed their demeanor on the witness stand. The court did not believe Ray’s testimony; therefore, it denied his petition. The court’s determination is supported by substantial evidence: Kent testified that she was “at least 12 feet away” from Ray when she backed out of her parking spot, and her dog did not touch Ray. Kent’s testimony was sufficient to justify the trial court’s denial of Ray’s petition.

REQUEST FOR SANCTIONS ON APPEAL

By way of a separately filed motion, Kent requests the imposition of sanctions, costs and attorney fees in the amount of $6,375. She contends that appellant Ray’s appeal is frivolous and was brought for purposes of annoyance, delay and harassment. On June 23, 2010, appellant submitted written opposition to Kent’s request for sanctions on appeal. A reviewing court may impose sanctions for an appeal that is prosecuted for an improper motive-either to harass the respondent, or delay the effect of an adverse judgment-or when the appeal “indisputably has no merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

The record shows that appellant filed for multiple extensions of time, missed filing deadlines, and ultimately filed a three-page brief that is utterly devoid of merit. The court clerk sent appellant a letter on October 13, 2009, advising him that his opening brief was due in 30 days (i.e., brief to be filed by November 12, 2009). No brief was filed. Instead, on November 16, 2009, appellant asked for and received an extension until January 12, 2010. No brief was filed by the due date, and appellant was sent a warning letter from the court clerk on January 21, 2010, notifying him that his appeal would be dismissed unless he filed his opening brief within 15 days. On February 3, 2010, appellant asked for another extension, which was granted until March 2, 1020. On March 3, 2010, appellant sought and received an extension ending April 1, 2010. On April 5, 2010, appellant sought another extension, over respondent’s opposition. The extension was granted until May 7, 2010, the day that appellant finally submitted his opening brief. Appellant received four extensions for a total of 152 days.

The existence of the four extensions of time, without more, is not sanctionable. What is sanctionable is seeking four extensions of time to file an opening brief, then filing a three-page brief (1) that does not address the sanctions order referenced in the notice of appeal; (2) that addresses an underlying order that was not referenced in the notice of appeal; and (3) that is utterly deficient because it does not contain proper headings; does not state why the order is appealable; does not state the standard of appellate review; contains no citations to legal authority; does not set forth all of the relevant facts; and is completely incoherent.

We conclude that Danny Ray’s appeal is completely devoid of merit. In addition, the appeal was taken for an improper motive; specifically, for purposes of delay and harassment. Appellant Ray is directed to pay to respondent Rahel Kent $1,000 in sanctions for filing a frivolous appeal.

DISPOSITION

The judgment is affirmed. Appellant Danny Ray is directed to pay respondent Rahel Kent $1,000 for filing a frivolous appeal.

We concur: DOI TODD, J., CHAVEZ, J.


Summaries of

Ray v. Kent

California Court of Appeals, Second District, Second Division
Feb 7, 2011
No. B217771 (Cal. Ct. App. Feb. 7, 2011)
Case details for

Ray v. Kent

Case Details

Full title:DANNY RAY, Plaintiff and Appellant, v. RAHEL KENT, Defendant and Respondent

Court:California Court of Appeals, Second District, Second Division

Date published: Feb 7, 2011

Citations

No. B217771 (Cal. Ct. App. Feb. 7, 2011)