Klure v.
Jimenez
Filed 7/20/12 Klure v. Jimenez CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
ROBERT KLURE,
Defendant,
Cross-complainant and Appellant ,
v.
FERNANDO JIMENEZ,
Cross-Defendant
and Respondent.
H037183
(Santa Clara
County
Super. Ct.
No. CV086862)
In this case, June Stough filed
suit against Appellant Robert Klure for financial fraud. Appellant filed a cross-complaint against
Respondent Fernando Jimenez. The trial
court dismissed respondent from the case, and entered judgment in favor of
respondent.
In this appeal, appellant asserts
the court erred in dismissing Jimenez from the case.
Statement of the Case
In May
2007, Ms. Stough filed a complaint against appellant for misappropriation of
funds. Appellant filed a cross-complaint
against respondent and others alleging respondent was part of a
belonging to him and Ms. Sough.
In January
2011, on request from respondent, the trial
court dismissed him from the case. A
month later, appellant requested the court reconsider its decision to dismiss
respondent from the case. In March 2011,
the court granted appellant’s motion for reconsideration, however, appellant
did not serve respondent with the motion until after the date it was heard in
court.
In July
2011, respondent filed a motion to vacate
the order granting appellant’s motion for reconsideration based on
appellant’s failure to timely serve the motion on respondent. The court granted respondent’s motion to
vacate, and entered a judgment of dismissal in favor of respondent.
Discussion
Here,
appellant is challenging the trial court’s order vacating its grant of
appellant’s motion for reconsideration, and entering a judgment of dismissal in
favor of respondent.
Other than make factual statements
and assertions of error, appellant does not provide reasoned
in his appeal.
One of the
fundamental rules of appellate review is that an appealed judgment 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.”
(Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) The appellant
has the burden of overcoming the presumption of correctness. “To demonstrate
error, appellant must present meaningful legal analysis supported by citations
to authority and citations to facts in the record that support the claim of
error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) California Rules of Court, rule 8.204(a)(1)
provides in relevant part that on appeal, “(1) Each brief must: . . . [¶] (B) [s]tate each point under a separate
heading or subheading summarizing the point, and support each point by argument
and, if possible, by citation of authority; and
[¶] (C) [s]upport any reference to a matter in the record by a citation
to the volume and page number of the record where the matter appears.”
These requirements apply with
equal force to parties, like appellant, who represent themselves. (Rappleyea
v. Campbell (1994) 8 Cal.4th 975, 984.)
“When a litigant is appearing in propria persona, he [or she] is
entitled to the same, but no greater, consideration than other litigants and
attorneys. [Citations.] Further, the in propria persona litigant is
held to the same restrictive rules of procedure as an attorney [citation].” (Nelson
v. Gaunt (1981) 125 Cal.App.3d 623, 638, fn. omitted.)
The appellant’s burden on
appeal 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 court’s role to construct theories or arguments
that would undermine the judgment and defeat the presumption of
correctness.” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:17.1, p.
8-6, citing Niko v. Foreman (2006)
144 Cal.App.4th 344, 368.) When the
appellant asserts a point but fails to support it with reasoned argument and
citations to authority, the appellate court may treat it as waived and pass it
without consideration. (
793.)
It appears the basis of
appellant’s argument in this case is that the trial court violated the
principals of stare decisis in vacating its grant of a motion for
reconsideration. However, appellant does
not cite any legal authority to support this argument, nor does he cite to the
record.
We conclude that appellant has not
met his burden on appeal of presenting “meaningful legal analysis supported by
citations to authority and citations to facts in the record that support the
claim of error” with regard to her case.
(In re S.C., supra, 138
Cal.App.4th at p. 408.) Because error
has not been affirmatively shown, the judgment is presumed correct, and will be
affirmed. (Denham v. Superior Court,
supra, 2 Cal.3d at p. 564.)
The judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
premo, J.
____________________________________
DUFFY, J.
Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
