Jackson v. City of Lynwood

Filed 10/15/08 Jackson v. City of Lynwood CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from an order of the Superior Court of Los Angeles County. Malcolm H. Mackey, Judge. Affirmed.

Ivie McNeill & Wyatt, Rickey Ivie and Kendall E. James for Third Party Claimant and Appellant.

No Appearance for Plaintiff and Respondent.

Lewis Brisbois Bisgaard & Smith, Gordon J. Calhoun and Douglas R. Irvine for Defendants and Respondents.

____________________

Appellant Ivie, McNeill & Wyatt, former counsel for plaintiffs Laverne Jackson (Jackson) and Bevan Thomas (Thomas)[1]in their action against defendants and respondents City of Lynwood and Lynwood Redevelopment Agency, challenges two trial court orders imposing monetary sanctions against it. Regarding the first order imposing monetary sanctions, appellant claims that it was improper because appellant could not respond to respondents discovery requests; it feared the threat of criminal liability communicated by the U.S. Attorneys Office. As for the second order imposing monetary sanctions, appellant asserts that the trial court lacked jurisdiction to award further sanctions given appellants appeal from the first order; in other words, according to appellant, its appeal of the first sanctions order automatically divested jurisdiction from the trial court to issue any further orders.

Appellants arguments are unfounded, unsound, and wholly lack merit. Accordingly, we affirm the trial courts order.

FACTUAL AND PROCEDURAL BACKGROUND

Although the 20-page clerks transcript is sparse, we have prepared this summary of the factual and procedural background from what we were able to glean from the record and our opinion issued in a prior appeal (Thomas v. City of Lynwood (Mar. 24, 2005, B175469) [nonpub. opn.].)

In separate actions filed on January 8, 2003, plaintiffs sued respondents for termination of certain contracts. (Thomas v. City of Lynwood, supra, B175469 [nonpub. opn.].) They were each represented by appellant.

Subsequently, a grand jury indicted Thomas. (Thomas v. City of Lynwood, supra, B175469 [nonpub. opn.].) However, plaintiffs civil actions continued to be litigated.

On May 15, 2007, respondents filed motions to compel written discovery responses. The trial court granted those motions on June 18, 2007 (the first sanctions order). Monetary sanctions in the amount of $2,000 were imposed against plaintiffs and their counsel, jointly and severally.

When plaintiffs apparently failed to comply with the first sanctions order, respondents filed a second motion on July 19, 2007.

After respondents second motion was filed, on August 8, 2007, appellant filed a notice of appeal from the first sanctions order.

While appellants appeal was pending, the trial court heard and granted respondents second motion for sanctions on August 13, 2007 (the second sanctions order). Appellant filed a notice of appeal from the second sanctions order on October 18, 2007.

On May 29, 2008, this court denied appellants motion to consolidate the two appeals, and on June 5, 2008, this court dismissed appellants appeal from the second sanctions order because appellant failed to timely file an opening brief.

DISCUSSION

I. Appellants purported appeal from the second sanctions order

As a preliminary matter, we must dispose of appellants arguments in its opening brief regarding the second sanctions order. Appellants challenges to the second sanctions order fail for at least two reasons.

First, the second sanctions order is not before us. Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from. [Citation.] (Soldate v. Fidelity National Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) A notice of appeal that unambiguously designates a specific judgment or order from which the appeal has been taken is limited to that judgment or order. (See Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.) Moreover, when several orders occurring close in time are separately appealable, each appealable order must be expressly specified. (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.)

Although California Rules of Court, rule 8.100(a)(2) provides that a notice of appeal must be liberally construed in favor of its sufficiency, that rule of liberality does not generally attach when the appellant lists one order in its notice of appeal, then proceeds to challenge a different order in its briefs. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 4142.) In other words, the clear meaning of rule 8.100(a) of the California Rules of Court is that the party is, by means of that notice, presently appealing from some specified thing. . . .  An unexpressed intention or desire to appeal from [a different order] should not be read into that notice under the guise of a liberal construction. (Estate of Roberson (1952) 114 Cal.App.2d 267, 270, overruled in part on other grounds in Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22, fn. 1; see also Norman I. Krug Real Estate Investments, Inc. v. Praszker, supra, 220 Cal.App.3d at p. 47 [The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders].)

Here, appellants notice of appeal indicates appellants intent to appeal only from the first sanctions order: [Appellant] hereby appeals to the Court of Appeal of the State of California, Second Appellate District from the Courts Order entered on June 19, 2007. Nor could the notice of appeal be construed to include the second sanctions order; that order was issued after appellant filed its notice of appeal of the first sanctions order.

Second, any appeal regarding the second sanctions order has been resolved. Appellant filed a notice of appeal regarding that order and its appeal was dismissed. There is nothing for us to review.

II. Appellants failure to provide an adequate record

A judgment or order of the lower court is presumed 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. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, in challenging a judgment, the appellant must raise claims of reversible error or other defect, and present argument and authority on each point made. (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; accord, In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) [F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)

Quite simply, appellant has not met its burden on appeal. The record presented wholly is inadequate. It consists solely of the trial court case summary, the trial courts first sanctions order, the notice of appeal, and the notice designating the record on appeal. Conspicuously absent are copies of the underlying motion papers, including, for example, respondents first motion to compel, plaintiffs opposition thereto, and respondents reply brief. Likewise, appellant did not provide us with the motion papers pertaining to respondents second motion arising out of plaintiffs apparent failure to comply with the first sanctions order. Appellant did not even bother to provide us with a copy of the second sanctions order.

Under these circumstances, we readily conclude that appellant has not overcome the presumption of the correctness of the trial courts judgment because it has not presented an adequate record. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 13201321.)

On this ground alone, we could affirm the trial courts order.

III. The trial court did not abuse its discretion in awarding monetary sanctions against appellant

Setting aside the procedural defects of this appeal, we find that the trial court did not abuse its discretion in imposing monetary sanctions against appellant. (20th Century Ins. Co. v. Choong (2000) 79 Cal.App.4th 1274, 1277.)

Appellant claims that monetary sanctions were improper because it had no ability to facilitate compliance with the discovery requests by virtue of the unavailability of . . . Thomas due to his incarceration. Aside from the fact that appellant neglects to cite to the record or offer any evidence that Thomas was in fact incarcerated, appellant does not and cannot explain why counsel could not contact Thomas in custody. Nor is there any indication that appellant objected to the discovery requests or sought a protective order on the grounds that Thomas was unable to respond to discovery requests.[2] And, appellant makes no effort to explain why Jackson did not respond at all. Under these circumstances, the trial court acted well within its discretion in awarding monetary sanctions against appellant.

IV. Respondents request for sanctions on appeal

In their appellate brief, respondents ask that we exercise our discretion under California Rules of Court, rule 8.276 and order sanctions against appellant. As respondents did not comply with the requirements of rule 8.276(b), we decline respondents request.

DISPOSITION

The order is affirmed. Respondents are entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_____________________, J.

ASHMANN-GERST

We concur:

_____________________, P. J.

BOREN

_____________________, J.

DOI TODD

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[1] Thomas and Jackson are referred to collectively as plaintiffs.

[2] There is no indication that appellant raised this argument with the trial court.