Haramis v. Superior Court

Filed 2/2/09 Haramis v. Superior Court CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT:*

Petitioner James Haramis (Haramis) is the defendant and appellant to a pending appeal in this court (Case Number A123117). A dispute has arisen concerning the record of the written documents from the superior court proceedings. . . . (See Cal. Rules of Court, rule 8.120(a).)[1] 

It is undisputed that Haramis failed to timely serve and file a notice designating the record on appeal. (Rule 8.121(a).) Instead, Haramis belatedly (by four days) served and filed his designation of the record, in which he elected to proceed by way of appendix. (Rules 8.120(a)(1)(B), 8.121(b)(1)(B), 8.124.) This prompted plaintiff/respondent/real party in interest Pacific Pejiu Wu Restaurant Partners, L.P. (Pacific) to file a motion to strike Haramis notice of election to proceed by appendix. At the conclusion of the hearing on Pacifics motion, the superior court sustained its tentative ruling granting Pacifics motion on the ground that Haramis notice of election was not timely filed. The court then indicated that the parties must proceed by way of clerks transcript in the appeal.

Haramis asserts that the superior courts order is legally unsupported. We agree.

The rules of court specify the consequence for an appellants untimely designation of the record on appeal. Rule 8.140(a) states that [i]f a party fails to timely do an act required to procure the record, the superior court clerk must promptly notify the party by mail that it must do the act specified in the notice within 15 days after the notice is mailed, and that if it fails to comply, the reviewing court may impose one of the following sanctions: [] (1) If the defaulting party is the appellant, the court may dismiss the appeal. Subdivision (b) of rule 8.140 requires the superior court clerk to promptly notify the reviewing court if the appellant fails to take the action specified in a notice given under subdivision (a), and the reviewing court is then permitted to dismiss the appeal. Additionally, rule 8.140(c) provides that [i]f the superior court clerk fails to give a notice required by (a), a party may serve and file a motion for sanctions under (b) in the reviewing court, but the motion must be denied if the defaulting party cures the default within 15 days after the motion is served. Notably, rule 8.140 does not permit the striking of an untimely notice designating the record on appeal.

In this case, there is no indication that the superior court clerk issued a notice under rule 8.140(a), or that Pacific served and filed a motion for sanctions under rule 8.140(c). Pacific argues that rule 8.140(a) does not apply since it governs when a party fails to timely do an act required to procure the record, and here, Haramis was not required to elect to proceed by way of appendix. It is true that Haramis was not required to elect to proceed by way of appendix. As an appellant, Haramis was permitted to choose between a clerks transcript, an appendix, the original superior court file (if otherwise permitted by rule), an agreed statement, or a settled statement. (Rules 8.120(a)(1), 8.121(a), (b)(1)(B).) But appellant was required, within 10 days after the filing of the notice of appeal, to serve and file a notice designating the record on appeal [s]pecify[ing] which form of the record of the written documents from the superior court proceedings listed in rule 8.120(a)(1) the appellant elects to use. (Rule 8.121(a), (b)(1)(B).) A failure to timely comply with the foregoing requirements of rule 8.121 amounts to a fail[ure] to timely do an act required to procure the record within the meaning of rule 8.140(a).

In its motion to strike, Pacific relied on Code of Civil Procedure section 436, subdivision (b), which permits a court to [s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. However, we do not believe a notice of election to proceed by appendix meets the definition of a pleading under Code of Civil Procedure section 420, which defines pleadings as the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court.

Pacific defends the superior courts order as being authorized under rule 8.124(a)(1), which provides: If in the notice designating the record on appeal under rule 8.121, the appellant elects to use an appendix under this rule this rule governs unless the superior court orders otherwise on a motion served and filed within 10 days after the notice of election is served. We do not agree that rule 8.124(a)(1) permitted the striking of Haramis notice of election to proceed by way of appendix. While rule 8.124(a)(1) permits the superior court to order[] otherwise, its range of options is limited; the superior court must act within the mandates of the rules of court, and cannot ignore other applicable rules. In this case, the superior court could not have properly stricken Haramis notice of election as untimely under rule 8.124(a)(1), since that action would have run afoul of the provisions of rule 8.140, which specifies the consequences for a partys failure to do acts required to procure the record. To endorse Pacifics interpretation of rule 8.124(a)(1) would render rule 8.140 surplusage, and we are exceedingly reluctant to attach an interpretation to a particular [rule] which renders other existing provisions unnecessary. (People v. Olsen (1984) 36 Cal.3d 638, 647.)[2]

In accordance with our notification to the parties that we might do so, we will direct issuance of a peremptory writ in the first instance. (See Palmav.U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) Petitioners right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewisv.Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.)[3]

Let a peremptory writ of mandate issue directing the superior court to vacate its November 19, 2008 order striking petitioners notice of election to proceed by appendix, and to issue a new and different order denying the motion to strike petitioners notice of election to proceed by appendix.

Each party shall bear its own costs. (Rule 8.493(a)(1)(B).) The previously issued stay shall dissolve upon issuance of the remittitur. (Rule 8.490(c).) This decision shall be final as to this court within five (5) court days. (Rule 8.490(b)(3).)[4]

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* Before Simons, Acting P.J., Needham, J. and Stevens, J. (Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)

[1] All further rule references are to the California Rules of Court.

[2] Pacifics motion to strike urged the superior court to strike Haramis notice of election (1) as untimely and (2) on the independent ground that an appendix is purportedly an inappropriate method for designating the record in any event due to the volume of the superior court record and the cost of preparing the appendix justifying a different order under rule 8.124(a)(1). As we previously explained, the superior court expressly struck Haramis notice of election as untimely, and did not grant the motion to strike on the second ground urged by Pacific. Nevertheless, nothing in this opinion shall be construed as precluding the superior court from addressing the second ground of Pacifics motion at the conclusion of these proceedings.

[3] We find no merit to Pacifics contention that the petition was not properly verified under Code of Civil Procedure section 1086 and rule 8.486(a)(4). (See Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424, 428.) We also disagree with Pacifics claim that Haramis possesses an adequate remedy at law, precluding writ review. Assuming, arguendo, that these issues could be addressed on appeal, we could not grant meaningful relief at that stage of the appellate proceedings. In light of our conclusions, we find it unnecessary to address Pacifics contentions regarding Haramis designating documents to be included in the clerks transcript.

[4] The Clerk shall file a copy of this opinion in the related appeal in Case Number A123117.