Calhoon v. Elite Show Services
Filed 1/29/13 Calhoon v. Elite Show Services CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
E. CALHOON,
Plaintiff and Appellant,
v.
ELITE SHOW SERVICES, INC., et
al.,
Defendants and Respondents.
D058688
(Super. Ct.
No.
2008-00086793-CU-PO-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Richard E.L. Strauss, Judge. Affirmed.
Plaintiff
Ernest Calhoon appeals a judgment entered after the trial court granted a
motion for summary judgment filed by
defendant Elite Show Services, Inc. (Elite) in his action against Elite and
other defendants. On appeal, Calhoon
appears to contend the trial court erred by: (1) rejecting his substitution of
attorney form and denying him representation by his counsel; (2) not scheduling
a hearing on his ex parte application to continue the hearing on Elite's motion
for summary judgment; (3) denying him his right to be heard on important
issues, including discovery and sanctions issues; and (4) denying his motion to
compel discovery and related sanctions request.
with established rules for appellate briefing, we conclude he has waived or
forfeited all of his contentions on appeal.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref2" title="">[2]
In July
2008, Calhoon filed a complaint against Elite and other defendants arising out
of an incident that occurred at Petco
Park on July 1, 2006.
Following demurrers by Elite to his subsequent amended complaints,
Calhoon filed a fourth amended complaint, alleging causes of action against
Elite and other defendants for several causes of action, including
and defamation. The trial court
granted in part Elite's motion to strike the fourth amended complaint, leaving
only Calhoon's causes of action for intentional infliction of emotional
distress and defamation.
In May
2010, Elite filed a motion for summary
judgment. On August 17, the trial
court issued an order granting Elite's motion for summary judgment. On September 28, the court entered judgment
for Elite and against Calhoon. Calhoon
timely filed a notice of appeal challenging any and all judgments and orders in
this matter.
DISCUSSION
I
Burden on Appeal
A trial court's judgment or order is
presumed to be correct. In
557, the court stated:
"[I]t
is settled that: 'A judgment or order of the lower court is
to support it on matters as to which the record is silent, and error must be
affirmatively shown [by the appellant].
This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible
error.' " (
"The
burden of affirmatively demonstrating error is on the appellant." (Fundamental
Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) "An appellant must provide an argument
and legal 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." (Benach
v. County
836, 852, italics added.)
"Where
a point is merely asserted by [appellant] without any [substantive] argument of
or authority for its proposition, it is deemed to be without foundation and
requires no discussion." (
783, disapproved on another ground in People
v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.)
"Issues do not have a life of their own: if they are not raised or
supported by [substantive] argument or citation to authority, we consider the
issues waived." (
Cal.App.4th 92, 99; see also Landry v.
Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700
["[w]hen an issue is 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 was
deemed waived because "[a]ppellant did not formulate a coherent legal
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 appellate briefs amounts to
a waiver of the [contention] and we treat it as such"];
Department of Transportation (1993) 21 Cal.App.4th 561, 571.) Appellants acting in
standards as those represented by counsel.
(See, e.g., City of Los Angeles v.
Glair (2007) 153 Cal.App.4th 813, 819.)
II
Elite
asserts, and we agree, that Calhoon has waived his appellate contentions by not
presenting any coherent or comprehensible, substantive legal arguments
supported by citations to the record and legal authorities. Calhoon has not presented any coherent,
substantive arguments or analyses supported by citations to the record and
legal authorities showing the trial court erred by: (1) rejecting his
substitution of attorney form and denying him representation by his counsel;
(2) not scheduling a hearing on his ex parte application to continue the
hearing on Elite's motion for summary judgment; (3) denying him his right to be
heard on important issues, including discovery and sanctions issues; and (4)
denying his motion to compel discovery and related sanctions request. To the extent Calhoon makes other contentions
on appeal, his briefing is incoherent and incomprehensible and we cannot
discern their substance. Accordingly, we
need not discuss the merits of each contention and conclude Calhoon has waived
his appellate contentions. (
v. Superior Court, supra, 26
Cal.App.4th at p. 99; Landry v. Berryessa
Union School Dist., supra, 39
Cal.App.4th at pp. 699-700; Ochoa v.
Pacific Gas & Electric Co., supra,
61 Cal.App.4th at p. 1488, fn. 3; Colores
v. Board of Trustees, supra, 105
Cal.App.4th at p. 1301, fn. 2; Bayside
Auto & Truck Sales, Inc. v. Department of Transportation,
1113, 1119-1120.)
We further
note Calhoon's opening brief does not contain any summary of significant facts
and its assertions of fact are not supported by any citations to the record on appeal, violating California Rules
of Court, rule 8.204(a)(2)(C).
name="_ftnref3" title="">[3] Statements of fact not part of, or supported
by citations to, the record on appeal are improper and cannot be considered on
appeal. (Rule 8.204(a)(2)(C);
182 Cal.App.3d 622, 632; Kendall v.
Barker (1988) 197 Cal.App.3d 619, 625.)
We disregard any statements of fact set forth in Calhoon's brief outside
the record on appeal. (
v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.) Furthermore, to the extent his assertions of
fact and procedure refer to matters within the record on appeal, his brief does
not contain adequate
violation of rule 8.204(a)(1)(C).
name="_ftnref4" title="">[4] Any reference to a matter in the record must
be supported by a citation to the volume and page number of the record. (Rule 8.204(a)(1)(C).) Like in Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, at page 1246, Calhoon's brief is almost
entirely "devoid of citations to the [record on appeal] and are thus in
dramatic noncompliance with appellate procedures." "It is the duty of a party to support
the arguments in its briefs by appropriate reference to the record, which
includes providing exact page citations."
(Bernard v. Hartford Fire Ins. Co.
(1991) 226 Cal.App.3d 1203, 1205.)
"If a party fails to support an argument with the necessary
citations to the record, that portion of the brief may be stricken and the
argument deemed to have been waived."
(Duarte v. Chino Community
Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239;
Cal.App.4th 1108, 1115.) To the extent
Calhoon's contentions do not contain adequate supporting citations to the
record on appeal, we consider those contentions to have been waived. (Nwosu,
at p. 1247; City of Lincoln, at p.
1239; Duarte, at p. 856;
this appeal in propria persona does not exempt him from compliance with
established appellate rules. (
persona litigants must follow the same procedural rules as attorneys];
[same].)
In any event, assuming arguendo
Calhoon has not waived his appellate contentions, we conclude his appellate
arguments are incoherent, incomprehensible, vague and/or conclusory and
therefore he has not carried his
burden on appeal to present persuasive
substantive argument and analysis showing the trial court prejudicially
erred. (Denham v. Superior Court, supra,
2 Cal.3d at p. 564; Fundamental
Investment etc. Realty Fund v. Gradow, supra,
28 Cal.App.4th at p. 971; Paterno v.
State of California (1999) 74 Cal App.4th 68, 105 [conclusory claims did
not persuade appellate court].)
Calhoon's entire legal
discussion and argument section in his brief is as follows:
"[Calhoon] argues: 1. that the court has erred in
not processing his default requests timely; 2. in denying him his counsel for
various stages of the proceeding including Summary Judgment; 3. rejecting that
counsel's Request to Enter Default because the court's staff incorrectly
decided [Calhoon's] counsel of record was not his counsel of record putting
[Calhoon] back at the beginning of a many month process; 4. in failing to
schedule [Calhoon's] ex-parte application to continue hearing on a Summary
Judgment motion even prior to the hearing on the Motion on the date of the
motion as has been done with other motions over [Calhoon's] objection; 5. [i]n
failing to allow [Calhoon] to be heard regarding important issues in the case
including discovery and sanctions; and 6. in hearings where [Calhoon] was not
allowed to be heard[,] making erroneous rulings per his court staff including
not allowing [Calhoon] his discovery from the opposition he was entitled to,
not affording plaintiff[']s attorney fees as sanctions without any required
findings, and not allowing [Calhoon] to be heard regarding compelling orders
for discovery he had already provided and sanctions against him in spite of the
fact that Elite gave him a 28 page meet and confer letter explicitely [sic]
giving [Calhoon] a week to respond, and then instead filed their motion to
compel the very next day without a proper Separate Statement as required by the
Rules of Court."
By so arguing, Calhoon has not carried his burden on appeal
to present persuasive substantive argument and analysis showing the trial court
prejudicially erred.
DISPOSITION
The
judgment is affirmed. Elite is entitled
to costs on appeal.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
name="_ftn1" title="">[1] Calhoon also argues the trial court erred by not timely
entering defaults as to defendants other than Elite. However, because he appeals only the judgment
entered in Elite's favor and related orders preceding that judgment, he cannot
appeal any error by the trial court in not timely entering defaults as to
defendants other than Elite.
Furthermore, as to those defendants, Calhoon does not cite any appealable
orders or judgments.
name="_ftn2" title="">[2] Because Calhoon's
appellant's opening brief does not contain any summary of facts and procedure
with citations to the record on appeal, we provide only a brief background
based on our independent review of the record.
