Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2009-00117379 Glenda Sanders, Judge.
Malcolm Cisneros, Kevin Hahn and John Ward for Plaintiffs and Respondents.
Law Office of Timothy J. Donahue and Timothy J. Donahue for Defendants and Appellants.
OPINION
ARONSON, J.
Defendants Gil Kim and Judy Kim appeal from a default judgment after the trial court imposed terminating sanctions against them for flouting the discovery process. Two brothers, Sung Ok and Jae Ok, and their corporation, Sojo, Inc., (collectively, plaintiffs) sued the Kims for fraud, conversion, breach of contract and related causes of action for misappropriating plaintiffs’ $1 million capital contribution to a business partnership. In the default judgment entered following the terminating sanctions, the trial court awarded plaintiffs just over $1 million, including more than $800,000 in compensatory damages, and the remainder in prejudgment interest, attorney fees, and costs.
Defendants include virtually none of the record in their appellate appendix, excluding even the judgment from which they appeal. (Cal. Rules of Court, rule 8.124(b)(1)(A) [appellant’s appendix must include judgment or order appealed from] & (B) [appellant’s appendix must include “any item that the appellant should reasonably assume the respondent will rely on”].) Nor do they provide the required summary of significant facts limited to matters in the record, nor record citations to trace their arguments to the proceedings below. (Cal. Rules of Court, rule 8.204(a)(1)(C) & (2)(C).)
To the extent defendants’ appellate challenges are not forfeited by these violations, their substantive contentions are almost indecipherable. They argue, ironically, that certain trial court “orders” were “vague” and “incomprehensible, ” but they identify only a single order and do not explain how its specific language or purpose was indefinite or unclear. They assert certain “declarations from plaintiffs’ attorney” were inadmissible “at both hearings, ” but do not identify the hearings or the declarations, and they provide no argument or authority to support the claim their unspecified “objections should have been sustained and upheld....” They appear to raise a factual contention that no “proper” statement of damages was served, “on the basis of no proof of service etc.” And, untethered to any required heading or subheading, they assert their “responses/objections” to one among many discovery requests “were timely served, ” but they do not include in the appellate record their allegedly timely response. (Cal. Rules of Court, rule 8.224(a)(1) & (3) [party must arrange for transmittal of exhibits to reviewing court].) Defendants also assert “the default judgment is void... because it exceeds damages demanded in the complaint, ” but they do not include the complaint in the record on appeal. On this showing, none of defendants’ contentions has merit, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
According to plaintiffs, they entered a contract with defendants to form a partnership in January 2008. In exchange for their $1 million capital contribution, Sung and Jae Ok would receive 1.25 million stock options in a holding company, and each would receive 10 percent of the profits of a company known as Health Wealth Beauty, Inc. (HWB), and a $10,000 monthly salary as corporate officers at HWB. Defendants specifically agreed not to lend, advance, or otherwise withdraw capital from the venture for personal use, to maintain accounting records and allow for their inspection, and to provide an annual partnership report. According to plaintiffs, defendants began misappropriating funds within hours of receiving the Oks’ $1 million, spending over $100,000 on a Bentley automobile, buying other luxury goods, paying a $7,500 home mortgage, and wiring more than $300,000 to pay for Gil Kim’s legal bills defending against Securities and Exchange Commission criminal charges. The parties’ relationship soured and plaintiffs’ suspicions grew when defendants failed to pay $90,000 in overdue salary. Plaintiffs demanded their funds back and, when defendants returned only $200,000, plaintiffs filed this suit in January 2009. Defendants answered the complaint and filed a cross-complaint for breach of contract, fraud, and defamation.
Plaintiffs first served notice to depose defendants in February 2009 and propounded written discovery in March 2009. Defendants were never available to be deposed. Defense counsel and substitute defense counsel insisted on multiple occasions they would make Gil Kim available only if the deposition took place in Korea, despite the Kims’ residence in, and familial and business ties to, Orange County, including the HWB contract negotiated with plaintiffs. The parties scheduled Judy Kim’s deposition for April 2009, but defense counsel changed the location and then determined she too could only be deposed in Korea. Defendants ignored plaintiffs’ written discovery requests. Defense counsel unilaterally extended the written discovery deadline a month, but defendants missed that date, too, and failed to respond at all.
Plaintiffs filed a motion to compel discovery and impose sanctions in June 2009, which was postponed a month to allow defendants time to respond, and then reset another month later, allowing defendants further time to comply. Following a hearing on August 7, 2009, the trial court entered an order (the enforcement order) requiring defendants, within 20 days, to: (1) “appear for their deposition in California”; (2) “provide verified and complete responses and to produce requested documents, without objection” in response to plaintiffs’ form interrogatories, special interrogatories, and document production requests; and (3) “to sign and provide to Plaintiffs’ counsel consent forms sufficient for the release and production of” documents from defendants’ finance corporation and from their e-mail provider. The enforcement order also imposed $3,500 in sanctions on defendants and their counsel, Timothy Donahue, to be paid within 20 days, and deemed plaintiffs’ admission requests admitted.
Twenty days passed. After a month, plaintiffs’ counsel sent defense counsel a letter in early September outlining defendants’ noncompliance, including failure to specify their availability for a deposition. Counsel warned that plaintiffs would seek terminating sanctions absent immediate compliance. Defense counsel replied by mail challenging, on unspecified grounds, the validity of the trial court’s enforcement order and asserting a general right to object to discovery despite the trial court’s order. The letter made no mention of defendants’ availability for deposition. At Jae Ok’s deposition in mid-September, plaintiffs’ counsel reminded opposing counsel of defendants’ discovery obligations and defense counsel responded by refusing to enter a standard stipulation to allow Ok to review and sign his deposition transcript from home.
Plaintiffs moved for terminating sanctions on October 5, 2009, unless defendants complied with their discovery obligations. The trial court found defendants’ had not complied by the date of the hearing, on November 6, and therefore struck defendants’ answer and cross-complaint, and entered defendants’ default. The trial court subsequently entered a default judgment in plaintiffs’ favor for $ 1, 006, 297.73, and defendants now appeal.
II
DISCUSSION
Defendants contend the trial court violated their constitutional rights by entering the default judgment. They label the default a “technicality” and contend they “were deprived of due process and deprived of a trial on the merits... on the basis of an illegal/unenforceable court order.” They assert the trial court abused its discretion in entering the discovery enforcement order and in entering terminating sanctions. They argue rhetorically, “How are Mr. and Mrs. Kim suppose[d] to comply, if the orders do not make any sense or are legally unenforceable?”
But, assuming defendants are attacking the trial court’s August enforcement order, they do not suggest they sought clarification of the order or otherwise viewed it as vague at the time, let alone fatally so. Now they complain they “were ordered to appear for deposition but the depositions were never scheduled. How is that a violation? They were not required to notice their own depositions.” The challenge is specious given the history of the proceedings before and after the enforcement hearing, which defendants omit from their appendix. The cardinal rule of appellate review is that “[a] judgment or order of the lower court is presumed correct” and appellants must affirmatively demonstrate error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics (Denham); see also Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record”].) Defendant’s challenge falters on this basis alone.
Moreover, the history developed by respondents and shown in their appendix demonstrates the trial court had ample reason to conclude defendants violated the enforcement order. Defendants bore the burden to comply with the order within 20 days, but counsel made no effort to secure or make known defendants’ availability, and ignored plaintiffs’ direct inquiry on the subject. Given defendants’ history of avoiding or scuttling scheduled depositions, ample evidence supports the trial court’s conclusion defendants violated the enforcement order.
Defendants complain the enforcement order required them “to sign authorizations, ” presumably referring to the requirement that they comply in enabling discovery of their e-mail communications from their e-mail provider, Microsoft Hotmail. They now assert “[t]here was no legal authority supporting that.” Defendants raised no such challenge below to the trial court’s discovery order. (Denham, supra, 2 Cal.3d at p. 564.) In any event, the authority plaintiffs cited on the record at the enforcement hearing expressly states, in interpreting federal law governing e-mail communications, that such authorization must be obtained from the party. “[I]t would be far from irrational for Congress to conclude that one seeking disclosure of the contents of email, like one seeking old-fashioned written correspondence, should direct his or her effort to the parties to the communication[, ]” who may be required to provide “consent to disclosure” by a third party e-mail provider “on pain of discovery sanctions.” (O’Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1446.)
Defendants also complain concerning the required e-mail authorization that plaintiffs’ “attorneys sent authorizations... to be signed under penalty of perjury” and “also contain[ing] indemnity provisions.” Defendants now demand, “What for? Is that necessary — ‘sufficient to release[’]” the e-mail? Although defendants furnish none of the record necessary to assess this claim, and it is therefore forfeited, respondent’s appendix shows that Microsoft indeed required the perjury and indemnity provisions, having drafted the releases. Accordingly, defendants’ challenge is meritless.
Defendants assert they “objected, in writing, and at both hearings, regarding inadmissible declarations from plaintiffs’ attorney.” But they do not identify the attorney, the declarations, the hearings, or their objections. They merely assert, without explanation or citation to authority, “Those objections should have been sustained and upheld, which would have resulted in denial of the motion(s).” We reject this argument. “Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] waived.” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99.) An appellant is not at liberty to make arguments by “mere[] refer[ence]” or to tax the reviewing court to formulate or piece together an argument for reversal. (People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) The standard of review is to the contrary. (Denham, supra, 2 Cal.3d at p. 564.) Consequently, defendants’ unsupported claim of reversible error based on a bare allusion to unspecified objections made on unspecified grounds and without argument or authority is forfeited.
Similarly, defendants assert “there was no question of fact but a pure question of law, regarding the request for admissions, ” which “were timely responded to before August 7, 2009, ” “[y]et the court deemed all of those admitted, and ignored... that [they] were timely served.” But defendants do not furnish a record adequate to review their timeliness claim. They do not provide their responses to the request for admissions, or proof of timeliness. They rely on the rule that exhibits are deemed part of the record on appeal (Cal. Rules of Court, rule 8.124(b)(4)), but they overlook that it remains the party’s responsibility to have the exhibit transmitted to the reviewing court, which defendants failed to do (rule 8.224(a)(1) & (3)). (See Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 291 [“Where exhibits are missing we will not presume they would undermine the judgment”].) Accordingly, there is no basis for reversal (Denham, supra, 2 Cal.3d at p. 564), and we presume the judgment is correct not only with respect to timeliness, but because defendants fail to address the trial court’s implied conclusion any discovery responses they may have made were incomplete, evasive, or otherwise noncompliant.
Defendants also assert “the default judgment is void... because it exceeds damages demanded in the complaint, ” but they do not include the complaint in the record on appeal. On the record defendants present to meet their burden for reversal, none of their contentions has merit, and we therefore affirm the judgment.
III
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on this appeal.
WE CONCUR: BEDSWORTH, ACTING P. J., IKOLA, J.