Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV050726
Premo, J.
Plaintiff Fiona Tonumaipea sued defendant Sammy Sulufaiga Pea, her father, for personal injuries arising from sexual assaults committed over a period of seven years. Following a court trial, the trial court awarded plaintiff $2,094,412.90. On appeal, defendant presents a deficient, an unfocussed, and a barely coherent discourse that essentially challenges us to find error. We therefore affirm the judgment.
For the underlying acts, a jury convicted defendant of three counts of incest and the trial court convicted defendant of one count of rape. We affirmed the judgment. (People v. Pea (Aug. 30, 2007) H030507 [nonpub. opn.].)
BACKGROUND
At trial, defendant was absent due to his incarceration but represented by counsel. The parties stipulated to plaintiff’s past medical expenses, past wage loss, defendant’s net worth, and a punitive-damage limit of 25 percent of net worth. The trial court rendered a judgment against defendant for $1,530,000 in general damages, $112,000 in special damages, $31,250 in punitive damages, $420,000 in attorney’s fees, and $1,162.90 in costs.
Code of Civil Procedure section 1021.4 allows an award of attorney’s fees against a defendant in an action for damages based upon the defendant’s commission of a felony for which he or she was convicted.
DISCUSSION
On appeal, defendant is representing himself and advances a 14-point litany of what he terms issues and argument. He contends that (1) he was not timely served with the summons, (2) the jury in his criminal case did not hear relevant evidence, (3) he received ineffective assistance of counsel in this case because trial counsel failed to contact or advise him, (4) the evidence in his criminal case was insufficient, (5) a mistrial on a rape count in the criminal case should collaterally estop plaintiff in this case, (6) the police in the criminal case interrogated him without advising him of his rights under Miranda v. Arizona (1966) 384 U.S. 436, (7) he received ineffective assistance of counsel in this case because trial counsel improperly waived jury trial, (8) he received ineffective assistance of counsel in this case because trial counsel failed to challenge plaintiff’s expert witness, (9) he received ineffective assistance of counsel in this case because trial counsel failed to protect his private financial information from disclosure, (10) plaintiff abused the discovery process by filing motions to harass him, (11) we improperly vacated, upon plaintiff’s motion, our grant of his application for waiver of court fees, (12) he was not liable for attorney’s fees, (13) he did not know “what was happening with [this] case,” and (14) the judgment is inappropriate because of violations of his constitutional rights.
We agree with plaintiff that the record defendant has presented is inadequate and defendant’s briefs are deficient in form and substance.
We acknowledge that defendant is representing himself on appeal. Under the law, one may act as his or her own attorney if he or she chooses. But when a litigant appears in propria persona, he or she is held to the same restrictive rules of procedure and evidence as an attorney--no different, no better, no worse. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)
A rule that applies to all litigants is that “The 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 (5th ed. 2008) Appeal, § 701, p. 769.) “The purpose of requiring headings and coherent arguments in appellate briefs is ‘to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.’ ” (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1831, fn. 4.)
The first problem with defendant’s appeal is that he attempts to support his cognizable contentions without providing a reporter’s transcript of the relevant proceedings or any other adequate statement of the evidence. The entire record consists of a clerk’s transcript that includes only selected pleadings of which the complaint itself is noticeably absent. Generally, appellants in ordinary civil appeals must provide a reporter’s transcript at their own expense. (City of Rohnert Park v. Superior Court (1983) 146 Cal.App.3d 420, 430-431.) In lieu of a reporter’s transcript, an appellant may submit an agreed or settled statement. (Leslie v. Roe (1974) 41 Cal.App.3d 104; Cal. Rules of Court, rules 6, 7.)
Pursuant to California Rules of Court, rule 8.121, defendant filed a notice to proceed on his appeal with a clerk’s transcript only.
In numerous situations, appellate courts have refused to reach the merits of an appellant’s claims because no reporter’s transcript of a pertinent proceeding or a suitable substitute was provided. (Walker v. Superior Court (1991) 53 Cal.3d 257, 273-274 [transfer order]; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [attorney fee motion hearing]; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 (lead opn. of Grodin, J.) [new trial motion hearing]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [hearing to determine whether counsel was waived and the minor consented to informal adjudication]; Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447 [trial transcript when attorney fees sought]; Estate of Fain (1999) 75 Cal.App.4th 973, 992 [surcharge hearing]; Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [nonsuit motion where trial transcript not provided]; Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [monetary sanctions hearing]; Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [reporter’s transcript fails to reflect content of special instructions]; Buckhart v. San Francisco Residential Rent etc., Bd. (1988) 197 Cal.App.3d 1032, 1036 [hearing on Code Civ. Proc., § 1094.5 petition]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [motion to dissolve preliminary injunction hearing]; Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 713-714 [demurrer hearing]; Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 71-73 [transcript of argument to the jury]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462 [failure to secure reporter’s transcript of settled statement].)
The reason for this follows from the cardinal rule of appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. ‘[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.’ ” (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) This general principle of appellate practice is an aspect of the constitutional doctrine of reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) “ ‘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.) “Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
The absence of a reporter’s transcript renders impossible any meaningful review of defendant’s cognizable issues.
The inadequacy of the appellate record leads to the second problem with defendant’s appeal. Defendant’s briefs are necessarily deficient for failing to cite appropriate references in the record. Not one of the factual assertions in the opening brief refer to evidentiary support. The citations that defendant does provide are citations to trial court exhibits.
It is well established that any statement in an appellate brief concerning matters in the record--whether factual or procedural, and no matter where in the brief the reference occurs--must be supported by a citation to the record. (Cal. Rules of Court, rule 8.204(a)(2)(C)); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 & fn. 16; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29-30.) When an opening brief fails to make appropriate references to the record in connection with the points urged on an appeal, the appellate court may treat those points as having been waived, and may disregard the accompanying arguments. (Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1560-1561; City of Lincoln v. Barringer, supra, 102 Cal.App.4th at p. 1239; Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1301; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Moreover, defendant’s briefs are devoid of any analysis or discussion, supported by pertinent authority, which discloses to us the course of logical or legal reasoning by which defendant came to the conclusions he wants us to adopt. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007; Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448 [“[P]arties are required to include argument and citation to authority in their briefs, and the absence of these necessary elements allows this court to treat appellant’s [contentions] as waived”]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [appellate court “will not develop the appellants’ arguments for them”]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported by “argument and, if possible, by citation of authority”]; see also Eisenberg et al. Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 9:21, p. 9-6 (rev.# 1 2008) [“appellate court can treat as waived any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority”].)
For example, several of defendant’s points stand out in the sense of being patently (1) without merit (ineffective assistance of counsel in a civil case), (2) beyond the scope of appellate review (irregularities in the criminal case), or (3) in need of pertinent authority (collateral estoppel). And defendant also advances incoherencies such as, “The dinner didn’t’ [sic] turn out good. Appellant/Defendant felt so embarrassed when the Fiona at the dinner that when it comes to credit cards her fiancé stands tall.”
Defendant’s briefs are also deficient because they neither cite the applicable scope of review nor tailor any argument to the applicable scope of review. As we have illustrated above, at best, defendant argues points in conclusory fashion.
“Arguments should be tailored according to the applicable standard of appellate review.” (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.) Failure to acknowledge the proper scope of review is a concession of a lack of merit. (James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) “ ‘[I]t is an attempt to place upon the court the burden of discovering without assistance from appellant any weakness in the arguments of the respondent. An appellant is not permitted to evade or shift his [or her] responsibility in this manner.’ ” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.)
Finally, to the extent that defendant attacks the evidence in this case, the attack is entitled to no consideration because defendant fails to acknowledge the substantial amount of evidence that was received on behalf of plaintiff. (Estate of Palmer (1956) 145 Cal.App.2d 428, 431.)
To her credit, plaintiff provides a comprehensible background and attempts to ferret out the merits of defendant’s claims after pointing out the deficiencies in defendant’s presentation. But we decline to frame issues and search for error. Defendant has failed to affirmatively show error. We therefore presume that the judgment is correct.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.