Piechuta v. Hernandez
Filed 12/17/12 Piechuta v. Hernandez CA1/1
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opinion has not been certified for publication or ordered published for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
ONE
ROBERT
PIECHUTA et al.,
Plaintiffs and Respondents,
v.
LELIA
HERNANDEZ,
Defendant and Appellant.
A132220
(Alameda
County
Super. Ct.
No. RG-08-424051)
A
neighborhood dispute concerning the application of the Oakland View Ordinance
(Oakland Mun. Code, § 15.52.010 et. seq.) led to litigation. Defendant Lelia Hernandez allegedly engaged
in obstructive litigation tactics, including failing to comply with the trial
court’s discovery orders. The court
ultimately issued terminating sanctions and entered a
injunction in favor of plaintiffs Robert Piechuta, Lynn Derderian, and Virginia
Lew. As defendant’s appeal raises no
cognizable legal issues, we affirm.
FACTUAL
BACKGROUND AND PROCEDURAL HISTORY
Lew
purchased her home on Leimert Boulevard
in Oakland in 1975. At the time, the home had a 180-degree
unobstructed view of the San Francisco
Bay. Piechuta and Derderian bought a home next
door to Lew in 1989. The couple was
attracted to the area by the bay view.
Also in 1989, defendant bought a house situated on the down-slope from
plaintiffs’ properties. When Lew
purchased her home, the property defendant now owns did not have trees or
vegetation blocking her view. Most of
the trees that are currently on defendant’s property were planted in the 1980’s
and 1990’s.
Over
time, the parties developed a hostile relationship, with much of the hostility
centering on the plaintiffs’ desire to trim certain trees growing on
defendant’s property in order to maintain their unobstructed views. Eventually, plaintiffs contacted an attorney.
On
September 24, 2008,
plaintiffs’ attorney wrote defendant a letter describing the View Ordinance
and detailing the issues created by her trees.
Included with the letter was a report prepared by a consulting
arborist. Defendant did not respond to
the letter.
On
November 13, 2008,
plaintiffs’ attorney telephoned defendant regarding the issues. Defendant indicated she was not interested in
resolving the matter and said she welcomed litigation.
On
December 8, 2008,
plaintiffs filed a complaint against defendant for
well as damages. The complaint alleges
defendant’s property was not in compliance with the View Ordinance and that her
trees constituted a spite fence under Civil Code section 841.4.
On
February 17, 2009,
plaintiffs filed their proof of service of the summons and complaint. The document indicates service was not
achieved until after the process server had made multiple unsuccessful service
attempts.
On
March 5, 2009, plaintiffs’
attorney responded to a telephone call from defendant and sent her courtesy
copies of the summons and complaint,
and extended the time to answer the complaint to March 16, 2009.
On
March 17, 2009, plaintiffs
requested and received an entry of default from the trial court.
On
April 22, 2009, defendant
filed a motion to vacate the default.
On
July 28, 2009, defendant’s
motion to set aside the default was denied.
Defendant subsequently retained legal counsel. Counsel sought reconsideration, which the
trial court granted.
On
December 21, 2009, defendant
filed a cross-complaint against plaintiffs, alleging causes of action for
intentional infliction of emotional distress and intentional interference with
contractual relations.
Also
on December 21, 2009,
defendant answered the complaint.
On
March 29, 2010, the parties
engaged in mediation and arrived at a tentative settlement. Thereafter, defendant’s attorney did not
respond to plaintiffs’ attorneys’ efforts to finalize the agreement.
On
July 29, 2010, defendant’s
attorney substituted out of the case, leaving her in pro per status.
In
preparation for litigation, plaintiffs served discovery requests on
defendant. She did not respond to their
requests. Specifically, she failed to
respond to written discovery requests, did not appear for her deposition, and
failed to allow an inspection of her property.
On
October 8, 2010, plaintiffs
filed a motion to compel discovery and for monetary, evidentiary and terminating
sanctions. The motion also requested
that defendant’s cross-complaint be dismissed.
On
November 4, 2010, the trial
court granted, in part, plaintiffs’ motion to compel. Defendant was ordered to appear for her
deposition and answer plaintiffs’ interrogatories by November 29, 2010. The court imposed
refusal to cooperate could result in further consequences, including imposition
of terminating sanctions.
On
December 7, 2010,
plaintiffs sought an order terminating the case. The trial court denied, without prejudice,
their request for shortening of time.
On
December 9, 2010, defendant
announced she had retained new counsel who agreed to try the matter provided
the trial was continued. The trial court
agreed to vacate the existing trial date and reopen discovery. The order notes: “A copy of this order shall
be mailed to attorney Michael Williams, who
will represent Defendant.†(Italics
added.)
Plaintiffs’
counsel contacted Williams to facilitate discovery, but made no progress. Subsequently, Williams stated in a
declaration that he and defendant had been “unable to reach mutually acceptable
terms of representation for [him] to represent her in this action.†Thereafter, defendant provided responses to
the discovery that were unverified and, allegedly, “devoid of any information.â€
On
January 13, 2011, plaintiffs filed a motion
for sanctions, including terminating sanctions.
On
March 23, 2011, the trial court filed its order granting plaintiffs’
motion. The court struck defendant’s
answer, dismissed her cross-complaint, and reinstated her default.
On
April 19, 2011, plaintiffs filed their default prove-up package.
On
April 28, 2011, the trial court entered a default judgment in the form of a
permanent injunction. The judgment
includes an award of $132,516.80 in attorney fees and costs. This appeal followed.
DISCUSSION
We
begin by setting forth the basic principles of appellate review. First, “A judgment or order of a lower court
is presumed to be correct on appeal, and all intendments and presumptions are
indulged in favor of its correctness.†(
Cal.3d 1130, 1133.) Because error is
never presumed, it is every appellant’s duty to demonstrate error in the record
the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 628, p. 704.)
Second,
“error alone does not warrant reversal.
‘It is a fundamental principle of appellate jurisprudence in this state
that a judgment will not be reversed unless it can be shown that a trial court
error in the case affected the result.’
[Citation.] ‘ “The burden is on
the appellant, not alone to show error, but to show injury from the error.â€
’ [Citation.] ‘Injury is not presumed from error, but
injury must appear affirmatively upon the court’s examination of the entire
record.’ [Citation.] ‘Only when an error has resulted in a
miscarriage of justice will it be deemed to be prejudicial so as to require
reversal.’ [Citation.] A miscarriage of justice is not found ‘unless
it appears reasonably probable that, absent the error, the appellant would have
obtained a more favorable result.’
[Citation.]†(
(2008) 164 Cal.App.4th 814, 822–823.)
Third,
“It is incumbent upon the parties to an appeal to cite the particular portion
of the record supporting each assertion made.
It should be apparent that a reviewing court has no duty to search
through the record to find evidence in support of a party’s position.†(Williams
v. Williams (1971) 14 Cal.App.3d 560, 565.)
To that end, California Rules of Court, rule 8.204(a)(1)(C), provides
that a brief must “Support any reference to a matter in the record by a
citation to the volume and page number of the record where the matter appears.â€
Fourth,
every argument presented by an appellant must be supported by both coherent
argument and pertinent legal authority. (Berger
v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate
court may treat the issue as forfeited.
(Ibid.)
We
observe that defendant’s arguments on appeal are frequently unaccompanied by
citations to the record or to legal authority.
Well over half of her brief consists of factual allegations that are not
supported by any citation to the record.
It is not this court’s responsibility to wade through the record in search
of the bases for defendant’s contentions.
Nor are we required to engage in legal research to locate cases that
support her arguments. That defendant
appears in pro per does not alter any of these principles, as pro per litigants
must comply with the same procedural rules that apply to represented
parties. (People v. $17,552.08 United States Currency (2006) 142 Cal.App.4th
1076, 1084.)
A
trial court’s decision to impose sanctions for discovery abuse is reviewed for
abuse of discretion. (
174 Cal.App.4th 967, 991.) The “question
before this court is not whether the trial court should have imposed a lesser
sanction; rather, the question is whether the trial court abused its discretion
by imposing the sanction it chose.†(
Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36–37.)
Defendant
first claims the default should be reversed “so that [she] can have her day in
court.†We observe that defendant
attorneys having represented her (or having purported to represent her) at
various times during the pendency of this litigation. The trial court was more than understanding
of her circumstances, vacating an existing trial date based on her assurance
that the second attorney would be representing her. Yet at crucial points in the process (both
after mediation and just before trial) her attorneys disappeared, and
thereafter defendant refused to cooperate with opposing counsel in meeting
important deadlines necessary to achieve a resolution of the underlying
dispute. The above chronology amply
demonstrates her manipulative litigation strategy, which has done a disservice
to the plaintiffs as well as to the trial court. We see no abuse of discretion in the court’s
decision to impose terminating sanctions.
Moreover,
her appellate brief fails to provide any basis to overturn the default or the
default judgment. She claims the choice
of terminating sanctions in this case was “particularly harsh†because it was
based on her failure to adequately respond to written discovery requests and
her failure to appear for her deposition.
She asserts defendants could have moved to compel her to file new or
more complete responses and that defendant’s counsel preferred to try to
default her rather than to schedule a deposition. She also contends defendants failed to make
any showing as to why it was necessary to take her deposition at all. She concludes, remarkably: “There was no
showing that plaintiffs could not proceed with their case without the discovery, including a deposition, they claimed was so
vital.â€
Defendant
fails to note plaintiffs did file a motion to compel her discovery responses at
one point, and that she incurred sanctions for her failure to comply with
multiple discovery requests. She fails
to make any argument as to why plaintiffs should be required to continuously
file such motions. Her briefing also
fails to reflect the fundamental principle that all orders and judgments of the
trial court are presumed correct. Thus,
plaintiffs do not have the burden on appeal to demonstrate why discovery was
necessary to prove their case at trial.
Defendant also fails to note she had filed a cross-complaint against
plaintiffs and that, without any discovery, they would have been placed at an
unfair disadvantage in defending against her claims.
Defendant
urges that we should reverse the remedy imposed by the trial court because it
is “inconsistent with the Oakland view ordinance.†This argument is completely unsupported by
any citations to the record. As we have
noted above, “When an appellant’s brief makes no reference to the pages of the
record where a point can be found, an appellate court need not search through
the record in an effort to discover the point purportedly made. [Citations.]
We can simply deem the contention to lack foundation and, thus, to be
forfeited.†(In re S.C. (2006) 138 Cal.App.4th 396, 406–407.) Accordingly, we deem this argument to be
forfeited.
Finally,
defendant complains that the trial court awarded excessive fees to the
plaintiffs.
title="">[3] The entire argument is stated in a single
sentence: “The court also gave plaintiffs approximately $132,000 in fees and
costs, an amount that will mean that [defendant] will lose her home.†Again, this is exactly the kind of argument
that we, as a court of review, simply cannot address.
DISPOSITION
The
judgment is affirmed.
__________________________________
Dondero, J.
We concur:
__________________________________
Marchiano, P. J.
__________________________________
Margulies, J.
name="_ftn1" title="">[1]
The View Ordinance was enacted “to establish
standards for the resolution of view obstruction claims so as to provide a
reasonable balance between tree and view related values for both private views
and protected public views corridor.â€
(Oakland Mun. Code, § 15.52.010.)
name="_ftn2" title="">[2] Civil Code section 841.4 provides: “Any fence or other
structure in the nature of a fence unnecessarily exceeding 10 feet in height
maliciously erected or maintained for the purpose of annoying the owner or
occupant of adjoining property is a private nuisance. Any owner or occupant of
adjoining property injured either in his comfort or the enjoyment of his estate
by such nuisance may enforce the remedies against its continuance prescribed in
Title 3, Part 3, Division 4 of this code.â€
