Jiang v. Liu
Filed 6/20/13 Jiang v. Liu CA2/8
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opinion has not been certified for publication or ordered published for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
EIGHT
>
JACK F. JIANG, Plaintiff and Appellant, v. QIAN LIU, Defendant and Respondent. | B244212 (Los Angeles County Super. Ct. No. KC063603) |
APPEAL
from a judgment of the Superior Court
of
County. Robert A.
Dukes. Affirmed.
Jack
F. Jiang, in pro. per., for Plaintiff and Appellant.
Law
Offices of Jie Ci Ding and Jie Ci Ding for Defendant and Respondent.
* *
* * * * * * * *
Plaintiff Jack F.
Jiang appeals from the judgment of
dismissal entered after the court sustained defendant Qian Liu’s demurrer
to his complaint, without leave to amend.
Because his appellate briefs and appendices suffer various fundamental
defects, and fail to adequately address the bases of the claimed errors, plaintiff has not satisfied
his burden on appeal. Accordingly, we
affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
We are able to
glean the following facts from plaintiff’s briefs and appellate
appendices: On April 17, 2012, plaintiff sued defendant (his
ex-wife), asserting causes of action for constructive fraud, deceit,
intentional infliction of emotional distress, negligence, and negligent
infliction of emotional distress. The
complaint alleged defendant made misrepresentations during the parties’ earlier
divorce proceeding. Specifically,
plaintiff alleged defendant fabricated an appraisal report for real estate in China,
and accordingly “misled the court.â€
This, he alleged, resulted in an inequitable division of marital
assets.
Defendant
demurred, contending the judgment in the divorce is res judicata, barring
plaintiff’s claims, and that any claim of fraud should have been addressed in
the divorce proceeding or in an appeal from that judgment. In opposition, plaintiff contended res
judicata was inapplicable. In reply,
defendant contended the fraud issue had been raised in the divorce proceeding,
and that plaintiff submitted his own evidence of valuation, and therefore,
plaintiff was barred from relitigating the division of marital assets. A transcript from the trial in the divorce
proceeding, submitted in support of the demurrer, shows plaintiff argued
defendant’s appraisal was “wrong†and that the appraisers were “liar[s].â€
The trial court’s
tentative ruling on the demurrer concluded “this action is barred by collateral
estoppel. The issue presented in the
Complaint (whether the Appraisal Consulting Report was fabricated) was already
litigated and necessarily decided in the prior divorce proceedings. The court transcript demonstrates that
Plaintiff argued in the trial that Defendant’s ‘appraisal is
wrong,’. . . ; Plaintiff submitted his own appraisal of the subject
property . . . ; and . . . the court considered [the]
difference in the value of the subject property before entering judgment.†Accordingly, the trial court’s tentative
ruling was to sustain the demurrer without leave to amend. Although there is no minute order in the
record adopting the tentative as its ruling, an August 15, 2012 notice of ruling prepared by defendant
gave notice that the demurrer was sustained without leave to amend. After the notice of ruling on the demurrer
was filed and served, plaintiff filed
a request for dismissal of the entire action, without prejudice. The dismissal was entered by the clerk on October 26, 2012.
It is at this
point that plaintiff’s appendices become hopelessly confusing. Following the complaint, demurrer,
opposition, reply, tentative ruling, and request for dismissal are a bevy of
documents, which may or may not have been filed in the divorce proceeding, and
according to the superior court’s case summary (which was not provided by
plaintiff, but procured by this court), were not filed in the case being
appealed. Many of these documents bear
no file stamps, and many contain no page numbers. Among these documents is a declaration that
plaintiff appears to have submitted before trial in the divorce proceeding,
contending defendant’s appraisal report is “wrong [and] invalid.†There is also a motion for “retrial†dated December 8, 2011, that plaintiff
apparently filed after the trial court entered judgment in the divorce action
on November 28, 2011.
Plaintiff’s table
of contents lists the names of various documents with page numbers, but only
the pages in the first volume of the appendices are numbered. The second volume contains no page numbers,
and consists almost entirely of uncertified reporter’s transcripts of
proceedings in the divorce case.
Additionally,
plaintiff’s opening brief contains a “certificate of interested entities or
persons,†which has numerous Chinese language attachments without certified
translations. Plaintiff’s brief contends
these documents “prove†that defendant provided misleading information during
the divorce proceeding. These documents
bear dates of October 2011 and November 2011, which predate entry of judgment
in the divorce, and defendant’s motion for “retrial.â€
DISCUSSION
It
appears that plaintiff has attempted to prove the merits of his case on appeal
by submitting evidence in support of his claims. Plaintiff’s “Statement of Facts†in his
opening brief consists largely of arguments about how he was prejudiced in the
divorce case by the fraudulent appraisal, with few citations to the appellate
appendices. He argues the “ruling
granting respondent’s demurrer . . . was wrong.†He contends “[t]he divorce case trial judge
accepted the respondent’s asset appraisal report. No [sic]
this report fraudulent issues were brought up during the trial. Besides, no [sic] any evidences [sic]
about this report fraudulent were available or provided to the court during the
trial. [¶] Appellant knew nothing about the respondent’s
appraisal fraudulent activities or evidences [sic] before, during or after the trial until Nov. 15, 2011.â€
Plaintiff’s briefs do set out some basic principles of law, but then
fail to apply the law to the facts.
As discussed
filed in lieu of a clerk’s transcript, do not contain the notice of appeal, the
judgment of dismissal, or the notice electing to proceed by appendix on
appeal. Although we are in possession of
these documents, from various sources, it was plaintiff’s burden to furnish
them, and to have the record augmented to include them. Moreover, the appendices contain numerous
extraneous documents of unknown origin which are not file-stamped, and are not
in any discernible order.
It is not feasible
for us to meaningfully review the trial court proceedings with this record, and
therefore, plaintiff’s
appeal is fatally defective. (Cal. Rules
of Court, rules 8.122(b) [appendix must contain the notice of appeal and any
order appealed from], 8.124(b) [appendix must contain any item that is
“necessary for proper consideration of the issuesâ€], 8.124(b)(1)(C) [appendix
must contain the notice of election to proceed by appendix], 8.124(b)(3)(A),
(B) [an appendix must not contain
“documents or portions of documents filed in superior court that are
unnecessary for proper consideration of the issues†or “transcripts of oral
proceedings that may be designatedâ€], 8.144(a) [the appendix must be arranged
chronologically, and the pages numbered], 8.155 [procedure for augmentation of
the record on appeal].) It was
plaintiff’s burden to provide an adequate record on appeal. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564; Altman v. Poole
(1957) 151 Cal.App.2d 589, 593.) This
burden was clearly not satisfied.
Moreover, plaintiff’s briefs
are confusing and do not comply with the California Rules of Court. (See rules 8.204(a) [appellate briefs must
include argument and citation to authority and “[p]rovide a summary of the
significant facts limited to matters in the recordâ€], 8.204(d) [an appellate
brief must not include attachments exceeding 10 pages without leave from the
presiding justice].) The briefs consist
largely of accusations which are outside the record that was before the trial
court. It appears that plaintiff would
have this court consider new evidence in ruling on his appeal, without seeking
leave from the court. (Rule
8.252(c).) Moreover, few citations to
plaintiff’s deficient appendices were provided.
“ ‘The reviewing court is not required to make an independent,
unassisted study of the record.’
[Citation.]†(
512, 522.) This rule is the same for
self-represented litigants. (
Plaintiff’s failure to
provide a complete and accurate record and coherent arguments makes meaningful
appellate review impossible. (See
975, 984-985.) We therefore treat the
issues raised on appeal as waived.
To the extent we can discern
the issues despite the glaring deficiencies in the appeal, it does not appear
to us the trial court erred. A
demurrer tests the legal sufficiency of the complaint. We review the complaint de novo to determine
whether it alleges facts sufficient to state a cause of action. For purposes of review, we accept as true all
material facts alleged in the complaint, but not contentions, deductions or
conclusions of fact or law. We also
consider matters that may be judicially noticed. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.)
When a demurrer is sustained without leave to amend, “ ‘we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court
has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.’
[Citation.]†(
740, 745.) “The plaintiff bears the burden of proving there is a
reasonable possibility of amendment.†(
Here, the complaint alleges
defendant made misrepresentations in the underlying divorce proceeding, and
claims marital property was not equitably divided because of the
misrepresentations. However,
relitigating any issues necessarily
included in a prior, final judgment. (
735.) From the materials before this
court, it appears plaintiff litigated his fraud claims in the divorce
proceedings. He claimed the appraisal
was “wrong†and consisted of lies during trial, and again when he sought
“retrial†following the final judgment.
Moreover, the purported fraud was discovered before the judgment was
entered in the divorce, and before plaintiff made his motion for retrial. If the divorce court had erred in ruling on
that motion, plaintiff’s sole remedy was to file an appeal, not a new case.
DISPOSITION
judgment is affirmed.
GRIMES,
J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
name="_ftn1" title="">[1] Plaintiff did not include the notice of
appeal in his appellate appendices.
However, the September 24, 2012 notice of appeal was transmitted to this
court by the superior court. (Cal. Rules
of Court, rule 8.100(e).) Plaintiff’s
appellate appendices also did not include the trial court’s judgment of
dismissal. Plaintiff only included in
the appendices his request for
dismissal, without prejudice. Neither a
ruling on a demurrer nor a voluntary dismissal is an appealable order. (Associated Convalescent Enterprises v. Carl
Marks & Co., Inc. (1973)
33 Cal.App.3d 116, 120.) However, we later received a copy of the
judgment of dismissal, which was entered on January 31, 2013.
Because plaintiff’s notice of appeal was filed before the judgment of
dismissal, it was premature. However, we
may treat a premature appeal from a nonappealable order sustaining a demurrer
without leave to amend as an appeal from the subsequent judgment of
dismissal. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353, fn. 5.) We note that plaintiff’s voluntary dismissal
does not divest this court of jurisdiction over his appeal. (Bell v. Hummel (1982) 136 Cal.App.3d 1009, 1015.) Plaintiff did not address any of these
jurisdictional issues in his appellate briefs.
