Filed 6/23/26 Lozano v. City of Bakersfield CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
NICHOLAS R. LOZANO et al.,
F089703
Plaintiffs and Appellants,
(Super. Ct. Nos. BCV-23-102278,
v. BCV-23-102277)
CITY OF BAKERSFIELD,
OPINION
Defendant and Respondent.
THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
Nicholas R. Lozano, in pro. per, for Plaintiff and Appellant Nicholas R. Lozano.
Frank F. Lozano, in pro. per, for Plaintiff and Appellant Frank F. Lozano.
Marderosian & Cohen, Michael G. Marderosian and Heather S. Cohen, for
Defendant and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Snauffer, J.
Frank and Nicholas Lozano filed separate actions against the City of Bakersfield
(the City) that were subsequently consolidated.1 The trial court eventually granted the
City’s motion for terminating sanctions based on the Lozanos’s repeated failure to
provide requisite discovery responses and dismissed both underlying cases with
prejudice. The Lozanos appealed. We affirm.
BACKGROUND
The clerk’s transcript in the record on appeal contains only the trial court’s one-
page order granting the City’s motion for terminating sanctions and dismissing the
underlying cases, along with the court’s register of actions for this matter. In addition,
there is no reporter’s transcript in the record on appeal.
Given the scanty record, we can glean only a very limited snapshot of the
proceedings in the trial court. As for the Lozanos’s briefing, it does not provide an
appropriate factual and procedural summary, supported by citations to the record.
As noted, this is a consolidated matter comprising separate civil actions filed by
Frank Lozano and Nicholas Lozano against the City; it appears the complaints were filed
on July 21, 2023. Eventually, the matter was set for trial, for September 2, 2025.
However, following a hearing on April 7, 2025, the trial court granted a motion for
terminating sanctions filed by the City and dismissed both underlying cases.
The trial court’s rationale is memorialized in the minutes from the April 7, 2025
hearing, as reflected in the register of actions. The court noted in the minutes:
“Defendant’s Motion for Terminating Sanctions – GRANTED IN ITS ENTIRETY …
Case Dismissed with Prejudice in its Entirety. Order signed and endorsed copy mailed to
all parties by clerk. No written opposition had been filed to the motion. The [c]ourt
announced that it had read Plaintiff[s]’ latest attempt to file [discovery] responses and
agrees with Defendant’s characterization as essentially re-serving the same unverified
1 Frank and Nicholas Lozano are father and son.
2.
responses that have previously been ruled deficient. As the [c]ourt has discussed with
Plaintiffs on numerous occasions, while it is sympathetic with the handicaps they suffer
as non-lawyers, it would be unfair to other litigants to create special rules for the
Lozanos. Ultimately, Plaintiffs have to meet the same standards and requirements as any
litigant (most of whom are represented by attorneys).”
The trial court further stated: “The [c]ourt has given Plaintiffs many additional
opportunities and many additional months that normally would not be given to
represented parties, 2[n]d and 3rd and multiple opportunities to get things right along
with very specific instructions [as to] what they need to do. This has all been done over
the strenuous objections of Defendant who makes a logical argument that it is being
prejudiced and being denied relief they would be given in any other case. Defendant
argues and has argued previously that it is being unfairly treated because the [c]ourt is, in
fact, giving special treatment to the Lozanos. Defendant has repeatedly argued that this
cannot continue indefinitely, that there has to be an end to the additional special chances
given to Plaintiffs and that the City is entitled to the relief the law provides if Plaintiffs
persistently demonstrate that they cannot comply with their legal requirements. The
[c]ourt has to agree.”
The trial court also noted:
“Whether Plaintiffs are unable or unwilling really doesn’t make a
difference after so many opportunities. At this point, after so many
opportunities and so many directions as to what they need to do, it appears
that all Plaintiffs are willing or able to do is to re[-]serve responses that
have already been determined to be deficient with no attempt to even
address specific deficiencies previously identified for them. The City
makes a good point that the allegations supporting Plaintiffs claim for $24
million are as difficult to understand now as they were at the inception of
this case and we are now only a few months before trial. The [c]ourt has no
reason to believe that anything will change if Plaintiffs are given even more
chances or even more months. The only thing that would be accomplished
would be further delay and forcing the City to stay in this case and incur
3.
additional expense when it has already made a good record that it was
entitled to dismissal.”
In addition, the trial court observed:
“Plaintiffs Lozano (as they have done in previous appearances) claimed to
have brought new allegedly compliant responses to court. The [c]ourt this
time advised Plaintiffs that they were well aware of the procedure to file
and serve appropriate responses, and they were well-aware of deadline
dates. The [c]ourt reminded Plaintiffs that, from past experiences, they
were aware that claiming at the hearing to have responses that they had not
served was not an appropriate or effective delaying tactic. Based on past
history, the [c]ourt had no reason to believe that whatever Plaintiffs
proposed to serve would be any different than what was most recently
served or what was previously served. If Plaintiffs were capable of
understanding their obligations and preparing appropriate responses, they
would have done so in the previous responses which were submitted as part
of Defendant’s motion. Having given Plaintiffs more than adequate
opportunities to comply with requirements and even after having given
Plaintiffs specific instructions as to deficiencies and how to cure some of
the deficiencies, the [c]ourt now concludes that Defendant City is entitled
to the relief it seeks for the reasons set forth in its motion. Accordingly, the
motion is granted and all causes of action in the consolidated action are
dismissed with prejudice. In light of the grant of terminating sanction[s],
the [c]ourt declines to award monetary sanctions.”2
This appeal followed. (See Code Civ. Proc., § 581d.)3
DISCUSSION
I. The Lozanos Have Not Raised Any Cognizable Claims
The Lozanos’s brief does not contain an appropriate argument section or any
properly developed or cognizable arguments.
2 The City had sought monetary sanctions in addition to terminating sanctions.
3 Code of Civil Procedure section 581d provides: “All dismissals ordered by the
court shall be in the form of a written order signed by the court and filed in the action and
those orders when so filed shall constitute judgments and be effective for all purposes.”
The requirements of this provision are satisfied here.
4.
The City, in its responsive brief, emphasizes: “Appellants’ incoherent Opening
Brief and exiguously designated record on appeal are so completely deficient that there is
no way that this [c]ourt could render any decision based on what the Appellants have
submitted.” The City adds: “The most that can be gleaned from the record designated by
the [Lozanos] is that the [t]rial [c]ourt dismissed the underlying consolidated action after
having given the [Lozanos] numerous opportunities to respond to discovery. A [t]rial
[c]ourt is well within its right to dismiss a case with prejudice in such circumstances;
nothing in [the Lozanos’s] brief challenges that issue.” The City continues: “While the
[Lozanos] designated the [o]rder terminating the action, they failed to designate any
pleading or evidence which the [t]rial [c]ourt considered in making its [o]rder dismissing
the actions and simply designated the [t]rial [c]ourt’s docket. [Citation.] In addition, the
[Lozanos] did not designate a [r]eporter’s [t]ranscript.”
The City also posits: “In addition to having failed to designate or provide an
adequate record, [the Lozanos] fail to comply with basic appellate rules regarding
briefing. Their opening brief lacks proper legal arguments, lacks citations to any record,
fails to comply with basic formatting rules, and is essentially incomprehensible.” The
City notes: “Given the lack of record and inadequate brief, [the Lozanos] have forfeited
whatever contentions they may be attempting to assert on appeal.”
We agree that the Lozanos have forfeited any challenge to the trial court’s order
granting the City’s motion for terminating sanctions, and any other appellate argument.
(In re S.C. (2006) 138 Cal.App.4th 396, 408 [“ ‘failure of [an] appellant to advance any
pertinent or intelligible legal argument … constitute[s] an abandonment of the [claim of
error]’ ”]; Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817 [points asserted on appeal
but not supported by “ ‘adequate factual or legal analysis’ ” are forfeited]; A.G. v. C.S.
(2016) 246 Cal.App.4th 1269, 1281 [it is axiomatic that “ ‘ “[a] judgment or order of the
lower court is presumed correct … and error must be affirmatively shown” ’ ”]; County
5.
of Sacramento v. Rawat (2021) 65 Cal.App.5th 858, 861 [a propria persona litigant “must
follow the rules of appellate procedure]; see Cal Rules of Court, Rule
8.204(a)(1)(B)&(C).) Accordingly, we affirm the court’s order.
DISPOSITION
The trial court’s order is affirmed. The City of Bakersfield is awarded its costs on
appeal.
6.