Williams v. Bobadilla

Filed 1/23/08 Williams v. Shaker CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Respondents Sarah Shaker and Instituto Laboral de la Raza (collectively, Shaker) move to dismiss the appeal of Joseph L. Williams for his failure to file an opening brief in compliance with California Rules of Court, rules 8.204(a)(1)(C) and 8.204(a)(2)(B). Despite three opportunities, Williams has failed to file an opening brief in conformance with the California Rules of Court, most glaringly by failing to support matters in the brief with citations to the record. Accordingly, Shakers motion to dismiss, which was unopposed, is granted. The appeal is hereby dismissed.

FACTUAL BACKGROUND

Although the record concerning the underlying dispute is incomplete, it appears that Maria Bobadilla, who was represented by Shaker, filed a labor claim against Williams as the purported owner of Dublin Tire. Bobadilla prevailed on her claim.

Williams subsequently filed two separate lawsuits against Bobadilla and Shaker, both alleging that Bobadilla and Shaker had filed the labor claim in order to extort money from him. Bobadilla and Shaker moved to strike the complaints as SLAPP suits[1] pursuant to Code of Civil Procedure section 425.16. On October 6, 2006 and November 9, 2006, the court granted Shakers and Bobadillas motions, respectively. After unsuccessful motions for reconsideration by Williams and successful motions for attorneys fees and costs by Shaker and Bobadilla, Williamss complaints were dismissed.

Williams timely filed a notice of appeal in each case, but the notices failed to specify from which judgment or order he was appealing. His civil case information statements, however, appended the orders granting the motions to strike, denying his motions for reconsideration, and granting the motions for attorneys fees.

On August 10, 2007, Williams filed his opening briefs. On the courts own motion, the briefs were returned for failure to comply with California Rules of Court, rules 8.40(b)(1), 8.44(b)(1), 8.204(c)(1), 8.204(d), 8.208(c)(1), 8.212 (c)(1) & (c)(2), and 8.224(a)(1). Williams was afforded the opportunity to correct his opening briefs in compliance with the Rules of Court.

On August 23, 2007, Williams filed his corrected opening briefs. Again, the court returned the briefs on its own motion, stating that Williams had complied with the rules noted above, but that his briefs failed to comply with rule 8.204(a)(1)(C), which governs citation to the record on appeal. Williams was afforded another opportunity to submit corrected opening briefs in compliance with the Rules of Court.

On November 21, 2007, Williams filed his second corrected opening briefs, which the court accepted for filing.

On December 20, 2007, Shaker and Bobadilla filed motions to dismiss, arguing that Williamss opening briefs still do not comply with the rules. Specifically, they submit that the briefs do not comply with rule 8.204(a)(1)(C), which requires citation to the volume and page number of the record to support each fact, and rule 8.204(a)(2)(B), which requires the appellant to state that the judgment appealed from is final or explain why the order appealed from is appealable. Arguing that Williams has now filed three non-compliant briefs, they seek dismissal of his appeals.

Williams has not opposed the motions.

DISCUSSION

In Berger v. Godden (1985) 163 Cal.App.3d 1113 (Berger) we dismissed the appeal of an attorney acting in propia persona for three independent reasons: (1) the failure of appellant to file a brief in conformity with the rules after his initial brief was stricken for noncompliance with the rules; (2) the failure of appellant to address in his second brief the two issues specified by this court; and (3) the failure of appellant to advance any pertinent or intelligible legal argument, which we deem to constitute an abandonment of the appeal. (Id. at p. 1117.) Berger contains an exhaustive discussion of the governing rules supporting our fundamental conclusion that we had the inherent discretionary power to dismiss the appeal there, following the filing of the second defective brief. (Id. at p. 1113.) Berger is a fortiori applicable here where Williams has filed three such briefs.

Additionally, rule 8.204(a)(1)(C) provides in pertinent part that a brief must [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.  It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citations.] If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citations.] (Duarte v. ChinoCommunityHospital(1999) 72 Cal.App.4th 849, 856. Accord, 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 589, p. 624; id.,  594, p. 627 [if no citation is furnished on a particular point, the court may treat it as waived.]; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) 9:36, pp. 9-11 to 9-12 [Any statement in a brief concerning matters in the appellate recordwhether factual or procedural and no matter where in the brief the reference to the record occursmust be supported by a citation to the record; failure to do so may result in the offending portions of the brief (or even the entire brief) being disregarded.].)

Williamss opening briefs contain two and one-half pages of alleged facts, some without any citation in support thereof and others with citation to 10/24/06 followed by a specific page and/or paragraph number. This evidently refers to a Memorandum of Points and Authorities dated October 24, 2006.[2] As Shaker and Bobadilla correctly note, There is no such document in the clerks transcript for this case. Nor did Williams designate any document called Memorandum of Points and Authorities 10/24/06 in his designation of record. Consequently, all of Williamss factual allegations lack citation to the record. The facts are therefore stricken, and his arguments deemed waived. Since that amounts to the entirety of his opening briefs, his appeals are dismissed.

Finally, rule 8.204(a)(2)(B) mandates that an opening brief [s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable. Williamss briefs contain no such statement.

We note in closing that Williams is representing himself in propria persona. He is, however, held to the same restrictive procedural rules as an attorney (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193, and must follow the correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98.)

DISPOSITION

Shakers motion to dismiss the appeal is granted. The appeal is hereby dismissed.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

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Lambden, J.

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[1] SLAPP is an acronym derived from strategic lawsuit against public participation. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85.)

[2] The opening brief in Williams v. Bobadilla identifies the document as a Memorandum of Points and Authorities. The brief in Williams v. Shaker does not identify the document.