Beltz v. Brown





















Filed 2/27/13 Beltz v. Brown CA1/4

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
FOUR




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ELLIN BELTZ, Plaintiff, Cross-Defendant, Respondent. v. JUSTIN HOBART BROWN, Defendant, Cross-Complainant, Appellant.

A132047 (Humboldt County Super. Ct. No. DR080097)

I.

Introduction

In
this real estate dispute, respondent Ellin Beltz (Beltz) filed a complaint
against appellant Justin Hobart Brown (Brown) for specific performance of a
contract for sale of real property.
Brown answered and filed a cross-complaint against Beltz alleging
numerous causes of action, including one to recover the fair rental value of
the real property which he claimed Beltz “wrongfully occupied.” Brown appeals from a judgment following a
court trial in which the court declined to rule in favor of either party, and
concluded that each party should bear his or her own attorney fees and costs.

On
appeal, Brown makes numerous contentions, challenging both the trial court’s
procedural and substantive rulings. We conclude Brown has waived
his contentions on appeal because he has: (1) not provided an adequate
record for us to review his contentions; (2) not provided required
citations to the record on appeal in support of his assertions of fact and
procedure; and (3) made insufficient substantive legal analysis in support
of his contentions. Consequently we
affirm the judgment.

II.

Facts
and Procedural History

We
first point out that this court has no reporter’s transcript of the proceedings
below. Instead, Brown has decided to
proceed by settled statement, which was received by this court on December 14, 2011. (See California Rules of Court, rule
8.137.) The settled statement does not
contain a factual summary; therefore, we have attempted to piece together the
facts pertinent to Brown’s contentions on appeal from various documents
provided in the clerk’s transcript.

On
November 21, 2007, the
parties executed a document entitled “Real Estate and Business Purchase
Contract” (the contract) for the sale/purchase of real property, personal
property and intellectual property. The
real property is the Hobart Brown Gallery (the Gallery) at 393
Main Street, Ferndale, href="http://www.adrservices.org/neutrals/frederick-mandabach.php">California. The contract price was $225,000. Brown is the son of Hobart Brown, deceased,
and he signed the contract as trustee of the Hobart Brown Living Trust. Brown’s sister, Emily Thompson, signed the
contract as a beneficiary of the trust.
The contract specifically grants to Beltz possession of the property in
return for her operation of the Gallery and payment of the “existing first
mortgage . . . current property taxes, insurance, repairs and
maintenance.” In the event of a dispute,
the contract also contains a standard attorney fees provision. When the Gallery was sold to Beltz, it was
encumbered by substantial liens, including $13,000 in past due realty taxes and
$57,000 owed to the Small Business Administration.

Pursuant
to the contract, Beltz took possession of the Gallery and operated it
commencing November 24, 2007. However, when it came time to execute the
required escrow documents, Brown refused because of a disagreement about
specified artwork and personal property that had been in Beltz’s possession due
to her operation of the Gallery. These
items are listed in a document referred to as Exhibit A.

On
January 31, 2008, Beltz
filed a suit for specific performance of the parties’ contract. On September
8, 2008, Brown filed a cross-complaint against Beltz seeking, among
other things, the fair rental value of the property, which he claimed was being
“wrongfully occupied” by Beltz.

Trial
commenced on January 20, 2009. However, on January 8, 2009, shortly before trial, the real property
which was the subject of the parties’ dispute was foreclosed upon by
third-party creditors. On January 28, 2009, the trial court granted
Beltz’s motion, over Brown’s objection, to consolidate the complaint and
cross-complaint for trial.

Trial
resumed on May 11, 2010,
almost 18 months later. The delay was
caused by Brown’s attempt to retain new counsel, among other reasons. At trial, Beltz presented evidence that she
operated the Gallery to the best of her ability and that she made all of the
payments required under the contract.
Nevertheless, she sustained a financial loss in her operation of the
Gallery. When the property was foreclosed
upon, she vacated the premises and did not take any of the personal property or
art owned by the Brown trust.

After
a nonjury trial, the court issued a statement of decision. Although the statement of decision addressed
a myriad of issues, we highlight only those findings that are pertinent to the
issues Brown raises on appeal.

First,
the court found Beltz’s complaint for specific performance was moot. The court reasoned: “Due to no fault of [Beltz], on January 8,
2009, the property which was the subject of the Complaint for Specific
Performance was foreclosed and acquired at foreclosure by [a third-party
purchaser], rendering that issue moot.
The duty of the court is to decide actual controversies, not to give
opinions on moot questions or abstract issues [citation].”

With
respect to the allegations made in Brown’s cross-complaint that Beltz was in
“wrongful and unlawful possession” of the property, entitling Brown to damages
equivalent to “the value of such lost use,” the court made the following
pertinent findings: “Beltz was entitled
to possession of the property (“Gallery”) between November 24, 2007 and January
23, 2008 [sic]^{[href="#_ftn1" name="_ftnref1" title="">[1]]} because
Beltz was put into possession by permission of the then owners of the property,
Brown as Trustee and Brown and his sister, Emily Thompson, as beneficiaries of
the Hobart Brown Living Trust.” (CT 328)~
The court went on to find that “[t]heir permission did not require
payment of rent and Beltz met the conditions of their permission such as
payments for repairs, insurance, utilities, mortgage, property taxes, and
Gallery management.”

The
court entered a judgment on November
16, 2010, concluding that Beltz “shall have and recover nothing on
her Complaint” and that Brown “shall have and recover nothing on his Cross-Complaint.” The court further stated that “there is no
prevailing party in this action and all parties shall bear their own attorney’s
fees and costs.” This appeal followed.

III.

Discussion

In his appeal, Brown raises
four issues. The first two issues are
procedural. As to the procedural
challenges, Brown claims the court erred in: (1) consolidating the
complaint and cross-complaint for trial; and (2) refusing Brown’s request
that the court address a number of specified issues in its statement of decision. As to the two substantive issues raised,
Brown claims the court erred in: (3) finding that the issue of the
enforceability of the contract was rendered moot by the foreclosure and that
Brown had no right to recover the rental value of the real property; and
(4) failing to declare Brown the prevailing party entitled to attorney
fees.

However, in advancing these arguments, Brown’s opening and href="http://www.mcmillanlaw.com/">reply briefs demonstrate a profound
misunderstanding of the function and power of a reviewing court. As has been explained numerous times: “It is a fundamental rule of appellate review
that the judgment appealed from is presumed correct and ‘ “ ‘all
intendments and presumptions are indulged in favor of its correctness.’ ” [Citation.]’
[Citation.] An appellant must
provide an argument and legal name="SR;2778">authority to support his contentions. This burden requires more than a mere
assertion that the judgment is wrong.
‘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.’
[Citation.]
It is not our place to construct theories or arguments
to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument
and citations to authority, we
treat the point as waived. [Citation.]” (Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852; accord, Dietz v. Meisenheimer & Herron
(2009) 177 Cal.App.4th 771, 799.) It is
also incumbent upon the appellant, by citation to
admissible evidence in the record, to establish error by the trial court. (Guthrey v. State of California (1998)
63 Cal.App.4th 1108, 1115 (Guthrey).) Furthermore, it is the duty of counsel to
refer the reviewing court to the portions of the record that support
appellant’s contentions on appeal, failing which the court may treat the point
as waived. (Sakaguchi v. Sakaguchi
(2009) 173 Cal.App.4th 852, 862.)

Brown first claims the court’s consolidation of the
complaint and cross-complaint for trial, over his objection, “was untimely and
an abuse of discretion.” The quoted
portion of this sentence comprises the sum total of Brown’s argument on this
point. We conclude Brown has waived this
contention. (See McComber v. Wells
(1999) 72 Cal.App.4th 512, 522 [“ ‘[E]very brief should contain a name="SR;1238">legal argument with citation of name="SR;1243">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’ ”]; Landry v. Berryessa Union
School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“[w]hen an issue is name="SR;1292">unsupported by pertinent or cognizable legal
argument it may be deemed abandoned and discussion by the
reviewing court is unnecessary”]; Ochoa v. Pacific Gas & Electric Co.
(1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention deemed waived because
“[a]ppellant did not formulate a coherent legal name="SR;1341">argument nor did she cite any supporting authority”];
Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301,
fn. 2 [“[t]he dearth of true legal analysis in her name="SR;1374">appellate briefs amounts to a waiver
of the [contention] and we treat it as such”].)

Brown next
complains that the trial court abused its discretion in refusing to resolve
specified issues posed by Brown when the court rendered its final statement of
decision. By way of background, after
the court issued its tentative statement of decision on September 28, 2010,
Brown served a request for statement of decision on October 7, 2010. In his request, Brown asked that the court
address 20 specified issues. Most of
these issues involved the testimony of particular witnesses, with Brown asking
the court to make individual credibility determinations on specified portions
of their testimony. The court denied
Brown’s request, finding “[i]t is unnecessary and improper for the court to
make findings of evidentiary facts in a Statement of Decision.”

The court’s
ruling is supported by law. Code of
Civil Procedure section 632 requires the court to explain the factual and legal
basis for each of the principal controverted issues involved in the case. (Muzquiz v. City of Emeryville (2000)
79 Cal.App.4th 1106, 1124.) However, to
fulfill its obligation under Code of Civil Procedure section 632, “a trial
court rendering a statement of decision is required only to set out ultimate
findings rather than evidentiary ones.”
(Id. at p. 1125.) Consequently, the court is “>not required to address how it resolved
intermediate evidentiary conflicts, or respond point by point to the various
issues posed in appellant’s request for a
statement of decision.
[Citations.]” (>Id. at p. 1126, original italics.)

The trial
court’s statement of decision dealt with the principal
issues presented in Brown’s complaint and in Beltz’s cross-complaint, and the
ultimate facts relevant to the court’s findings. With respect to the issues identified by
Brown that the trial court did not
address, Brown makes no effort to show how these issues were material in light
of the court’s express findings. Brown
also has failed to provide any argument or authority to show that the trial
court’s failure to address these issues constituted reversible error. Therefore, the argument is forfeited. (Guthrey,
supra, 63 Cal.App.4th at
pp. 1115-1116 [appellate court may deny claim on appeal that is
unsupported by argument which applies general legal principles to the
particular facts of the case on appeal].)

Next, Brown
makes a wide-ranging challenge to a number of the court’s substantive
findings. The challenged findings are as
follows: That “[d]ue to no fault” on
Beltz’s part “the property which was the subject of the Complaint for Specific
Performance was foreclosed and acquired at foreclosure by [a third party],
rendering [Beltz’s claim for specific performance] moot.” The court also found that Beltz fulfilled all
of her obligations under the contract “such as payments for repairs, insurance,
utilities, mortgage, property taxes, and Gallery management” and that she was under
no obligation to pay rent.

Contrary to
the trial court’s findings, Brown claims that the foreclosure was >indeed Beltz’s fault because she failed
to fulfill certain obligations under the parties’ contract, including her
agreement to “pay the monthly payment for the existing first mortgage” and to
“manage all aspects of the property.”
Brown further claims that because Beltz “could not prove the existence
of a contract, her occupancy and control of the real property was wrongful, and
she owes [Brown] rent for her 13 months in occupancy and attorneys’
fees . . . .”
Additionally, Brown argues that he should have been declared the
prevailing party entitled to attorney fees “for having to defend [Beltz’s] bad
faith, frivolous action.”

However,
these arguments are perfunctorily set forth in a conclusory fashion, with no
attempted development through factual and legal analysis. Such practice runs afoul of the requirement
under California Rules of Court, rule 8.204(a)(1)(B) that an appellant support
each point by argument and, if possible, citation
to authority. (In
re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence
of cogent legal argument or name="SR;3175">citation to authority allows this
court to treat the contentions as waived”]; see T.P.
v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline
to consider argument that “is not stated under a separate
heading, is not sufficiently developed, and is unsupported
by citation to authority”].)

Moreover, a reviewing court begins with the presumption that
the record contains evidence of every finding of fact by the trial court. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Appellants arguing the lack of substantial
evidence “ ‘are required to set forth in their brief all the material
evidence on the point and not merely their own evidence.’ ” (Ibid., original italics; Clark v. Superior Court (2011) 196
Cal.App.4th 37, 53, original italics.) A
failure to set forth all the material evidence is a forfeiture of the
point on appeal. (Clark v. Superior Court at p. 53.)

Brown here
presents only one side of the facts and issues.
While he assures us that “[a]mple evidence was placed before [the] trial
court to support [his] contentions,” he has failed to provide this court with a
reporter’s transcript or the exhibits presented at trial. The appellant has the burden to provide an
adequate record on appeal to allow the reviewing court to assess the purported
error. (Maria P. v. Riles (1987)
43 Cal.3d 1281, 1295; Gee v. American Realty & Construction, Inc.
(2002) 99 Cal.App.4th 1412, 1416.) If
the record on appeal does not contain all of the evidence submitted to the
trial court, a reviewing court will “decline to find error on a silent record,
and thus infer that substantial evidence” supports the trial court’s
findings. (Haywood v. Superior Court
(2000) 77 Cal.App.4th 949, 955.) Without
a reporter’s transcript or the exhibits presented at trial, we cannot undertake
a meaningful argument of Brown’s arguments on appeal challenging the trial
court’s substantive findings; and we must infer they are fully supported by the
evidence. (See, e.g., >Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal.App.4th 181, 186-189.)

IV.

Disposition

The
judgment is affirmed. Beltz is awarded
her costs on appeal.











_________________________

RUVOLO,
P. J.





We concur:





_________________________

REARDON, J.





_________________________

RIVERA, J.