Dobard v. Tai

Filed 12/12/08 Dobard v. Tai CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

INTRODUCTION

Plaintiff Barbara Dobard appeals in propria persona from a judgment of the Alameda County Superior Court dismissing her action for Rescission of Sale [of] Alcatraz Avenue Properties against defendants and respondents Steven Tai, New Pacific Foreclosure Investments LLC, Rockridge Foreclosure Investments LLC, and JB Franklin Realty. In briefing that is virtually incomprehensible, appellant appears to challenge the action of the court as denying her a fair trial. She describes the nature of the case as follows: Defendants and their attorney violated the Civil Rights Acts against Discriminatory action against Blacks Afro-American individuals by entering into a conspiracy while using (Company Public Storage) performing a public auction Defendants conducted racial acts against the race of: Blacks-Afro Americans. Denying them equal participation in a publicly held open auction at the public storage establishment in the City of Berkeley, California. Unruh Civil Rights Act Section 51 (a)-(b).

In her appellate brief, appellant does not present a comprehensible argument as to how the trial court erred in dismissing her action. Rather, insofar as we can discern, she challenges the actions of the defendants and their attorney below in the conduct of a foreclosure sale and auction on property owned by her father and the asserted refusal of defendants to allow appellant to retrieve valuable items of personal property from the premises.

We cannot tell from the record before us why the court dismissed the action below.^[1] Key portions of the record are missing or were never transcribed. Critically, no reporters transcript of the case management conference and hearing on order to show cause of October 22, 2007, from which the dismissal order emanated, is included in the record. We have only the clerks minutes, which indicate that appellant had failed to appear at a hearing for an order to show cause, and the actual order dismissing the case with prejudice. Appellant challenges the actions of the parties and counsel below in conducting the foreclosure auction on the property, but does not formulate an argument challenging the courts dismissal of the action at the case management conference. She does not discuss the case management conference at all. We shall conclude appellant has failed to show that the court abused its discretion or otherwise erred in dismissing her action.

STATEMENT OF THE CASE

The clerks transcript and the domain case summary appearing at the end of the clerks transcript provide an overview of the pleadings and court actions:

On November 20, 2006, appellant filed a complaint to quiet title to property located at 1864-1866 and 1868 Alcatraz Avenue, in Berkeley, California, following a foreclosure sale on July 5, 2005. An amended complaint for rescission of the sale was filed on November 22, 2006. On January 31, 2007, the court sustained a demurrer to the first amended complaint with leave to amend and also entered an order expunging a lis pendens filed by appellant. That same day, appellant apparently filed a second notice of pendency of action as to the property. On February 21, 2007, appellant filed a second amended complaint. On February 28, 2007, the superior court heard and granted defendants motion to expunge the second notice of pending action due to appellants failure to obtain leave of court to file a lis pendens as a pro per party. On March 13, 2007, the court heard and denied defendants motion to declare appellant a vexatious litigant. On May 3, 2007, the court sustained a demurrer to the second amended complaint, in part, without leave to amend. On August 16, 2007, defendants filed an answer to the second amended complaint. A case management conference was held on September 17, 2007. An order to show cause re: contempt for failure to appear at the case management conference was entered on that date. (Although the docket does not indicate which party did not appear, the later order indicates the missing party was appellant, as defendants assert.) On October 22, 2007, a case management conference was held. It appears from the minutes of the proceeding that appellant did not appear at the hearing for the order to show cause. At that time, the complaint was dismissed. This timely appeal by appellant followed.

On December 6, 2007, we dismissed the appeal due to appellants failure to procure the record on appeal within the time allowed and for failure to apply for relief from default. Thereafter, we granted appellants motion to vacate our order dismissing appeal and reinstated the appeal. (Order filed January 3, 2008, vacating our previous order of December 6, 2007).

DISCUSSION

We reiterate some of the basic rules governing appellate review: As a general rule, an appealed judgment or order is presumed to be correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. [Citations.] (Eisenberg et al., Civil Appeals and Writs (The Rutter Group 2008)  8:15, p. 8-5 (Eisenberg), citing, among others, Denham v. Superior Court (1970) 2 Cal.3d 557, 564; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Also, [a]ppellant has the burden of overcoming the presumption of correctness and, for this purpose, must provide an adequate appellate record demonstrating the alleged error. (Eisenberg,  8:17, p. 8-5; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Appellants burden also includes the obligation to present argument and legal authority on each point raised. This requires more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate courts role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness. [Citation.] (Eisenberg,  8:17.1 pp. 8-5 to 8-6.) When appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration. [Citations.] (Eisenberg,  8:17.1, p. 8-6.)

Appellant has failed to present an argument sufficient to overcome the presumption of correctness and does not support her general assertion that the court erred in dismissing her action with reasoned argument. Moreover, the record provided by appellant is patently inadequate to support any claim of error. In such circumstances, we must uphold the judgment.

DISPOSITION

The judgment is affirmed. Each side will bear its own costs on appeal.

_________________________

Kline, P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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^[1]Respondents state in their brief that the court dismissed the underlying action in response to a failure of Appellant to appear before it on [October 22, 2007] for the hearing on a continued Case Management Conference and for a hearing on and Order To Show Cause issued and directed at Appellant ordering her to appear after she failed to appear at a 9-17-2007 Case Management Conference.