City of Temple City v. Gabriel

Filed 7/16/07 City of Temple City v. Gabriel CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from orders of the Superior Court of Los Angeles County. Joesph De Vanon, Judge. Dismissed.

Dapeer, Rosenblit & Litvak, William Litvak, Lisa A. Vidra and Kenneth Ohashi for Plaintiff and Respondent.

Philip L. Nadler for Defendants and Appellants.

__________________________

Isaac Gabriel and Mounira Gabriel (collectively the Gabriels) appeal from two post-judgment orders concerning the execution of duties by a court appointed receiver to tear down a structure on the Gabriels property in Temple City. Notwithstanding the fact the judgment which declared the structure a public nuisance was affirmed on appeal, the Gabriels use this appeal to attack the validity of the underlying judgment. This appeal cannot be sustained for a number of reasons. The Gabriels briefs are deficient -- they lack appropriate citation to the record and a statement of appealability. In addition, the appeal from one of the orders is untimely. But even if we overlooked the defects in the briefs and considered the timely filed appeal from the second order, we must reject the appeal. The Gabriels fail to assert any pertinent legal argument relating to the order from which they timely appeal and their claims with respect to the underlying judgment are not properly before this court. Consequently, this appeal is dismissed.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, respondent, City of Temple City, filed a complaint for injunctive relief against the Gabriels seeking to have a rear structure built on their property in Temple City declared a public nuisance and an order to require the Gabriels to fix the back structure to abate the nuisance or to tear it down. In May 1999 after a trial on the merits, the trial court entered judgment in favor of respondent. The Gabriels appealed. In 2002, the judgment was affirmed on appeal and a subsequent petition for review by the California Supreme Court was denied.

In 2004, after the Gabriels failed to abate the nuisance, respondent sought and the court ordered the appointment of a receiver to enforce the terms of the judgment. The Gabriels appealed the order appointing the receiver, but that appeal was dismissed.

In March 2005, the receiver filed an application with the court for an order allowing the receiver to enter: (1) into a loan agreement to pay for the demolition of the structure; (2) an agreement with a construction firm to perform the demolition, and (3) an order allowing the receiver to discard or sell personal property which remained in the structure. The hearing on the application was continued a number of times.

In the meantime in May 2005, the Gabriels filed a motion for an order directing the receiver to return the keys to the structure. On June 22, 2005, the Gabriels motion was heard and denied. On June 24, 2005, respondent mailed the Gabriels a notice of the ruling.

On July 12, 2005, the court held the hearing on the receivers March 2005 application for the order authorizing the receiver to enter the loan and construction agreements and dispose of property. The court granted the application and respondent mailed notice of the ruling the same day.

On September 9, 2005, the Gabriels filed a notice of appeal from the June 22, 2005, order denying their motion for the return of the keys and the July 12, 2005, order.

DISCUSSION

The Gabriels appeal focuses only on the validity of the underlying 1999 judgment which declared the rear structure on their property a nuisance. They argue the judgment was obtained by substantial, multiple intrinsic frauds and extrinsic frauds, alleging respondent concealed evidence in the underlying case as well as various acts of misconduct and misfeasance by their former counsel during the trial. In this court they are seeking equitable relief from the enforcement of the judgment based on extrinsic fraud. As we shall explain, this appeal suffers from a number of defects which preclude us from reaching the merits and require that we dismiss the appeal.

Preliminarily, we note a significant obstacle in examining the merits of the appeal is the Gabriels failure to cite to the record, and failure to provide an adequate record pertinent to their claims.

Notwithstanding the designation of two volumes of appellate record (over 350 pages in length) the Gabriels account of the procedural and factual history in their opening brief does not contain any citations to the record. This is so, even though rules of the California Rules of Court require a brief to support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(C); see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)[1]

The Gabriels fact statement refers to matters, such as the alleged frauds committed by the respondent, their former counsel and refers to details about their personal histories, but none of these assertions is supported by a reference to the record from the lower court. We do not detail the balance of the factual and procedural assertions that are made in the Gabriels brief. Suffice it to say that they are just that -- assertions, which we disregard because they are not supported by references to the record. (Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 292, fn. 1; see Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant is required to provide a summary of significant facts limited to matters in the record].) We are not required to search the record on our own seeking a basis for the claimed errors. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246.) For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him. This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary. (People v. Green (1979) 95 Cal.App.3d 991, 1001.)

In some situations deficiencies in a partys brief may warrant an order striking the brief, rather than dismissing the appeal. Such circumstances, however, are not present here because other errors exist that are fatal to the appeal.

First, the September 9, 2005, appeal from the June 22, 2004, order is untimely under the California Rules of Court. With exceptions not applicable here, a notice of appeal must be filed within 60 days after service of the notice of the entry of judgment or the appealable order. (Cal. Rules of Court, rule 8.104(a)(1), (2).) The appellate court has no jurisdiction to review an untimely appeal, and must dismiss it. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Hughes v. City of Pomona (1998) 63 Cal.App.4th 772, 777.)

Second, the Gabriels concede they do not assert any error with respect to the order timely appealed fromthe July 12, 2005, order authorizing the receiver to take certain actions to carry out the judgment. (See Reply Brief p. 1.) Instead, all of the arguments in this appeal concern the underlying judgment affirmed five years ago. There being no pertinent legal argument or challenge to the order appealed from, this court has nothing upon which to base our review. Failure to assert relevant arguments as to the orders appealed from may result in the court deeming the appeal abandoned and a dismissal of the appeal. (See Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120 [court dismissed appeal where appellant failed to support issue stated on appeal by pertinent legal argument].)

Finally, we have no authority to review the arguments actually asserted in the briefs. The Gabriels attack on the 1999 judgment may constitute a collateral attack because the time period for a direct attack has long since passed. An untimely or collateral attack on a judgment is barred unless the party establishes: (1) the judgment is void on its face; or (2) the judgment resulted from extrinsic fraud. (See Aerojet-General Corp. v. American Excess Ins. Co. (2002) 97 Cal.App.4th 387, 398, fn. 3; Estate of Buck (1994) 29 Cal.App.4th 1846, 1854; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, 222-223, pp. 726-728.) The Gabriels assert the underlying judgment resulted from extrinsic fraud. But this assertion and the request for equitable relief from prior judgment are not properly before this court. Such a direct attack should have been brought first in the trial court upon an appropriate motion or by way of a separate action attacking the judgment, not on appeal from an unrelated order. (See 8 Witkin, Cal. Procedure, supra, Attack on Judgment in Trial Court, 214-223, pp. 718-728.)

DISPOSITION

The appeal is dismissed. Respondent is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WOODS, J.

We concur:

PERLUSS, P.J.

JOHNSON, J.

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[1] In addition, the opening brief does not contain a statement of appealability as required by the rules of court. (Cal. Rules of Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 557.)