Chapman v. Saraatje

Filed 1/6/10 Chapman v. Saraatje CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MEMORANDUM OPINION*

This is a dispute over purported ownership of a new Oakland nightclub. Plaintiff Derrick Chapman sued defendant Naef Dagmar Saraatje, individually and doing business as At Seventeen. His first amended complaint alleged that defendant granted him half ownership of the club in exchange for his capital investment, but then excluded him from ownership and management of the club and reneged on an agreement to return his investment. Plaintiff sought an accounting, as well as damages for breach of contract, breach of the covenant of good faith and fair dealing, promissory fraud and estoppel, and money had and received.

Defendant was forced to move to compel responses to discovery. Plaintiff did not oppose the motion. The trial court granted the motion to compel on November 7, 2007. The courts order (November 7 Order) advised plaintiff that failure to comply with this order or further discovery misuse may result in the imposition of future sanctions, including evidentiary, monetary, contempt or terminating sanctions.^[1]

On January 14, 2008, defendant moved for discovery sanctions for plaintiffs failure to respond to discovery and failure to comply with the trial courts November 7 Order. Plaintiff did not oppose the motion. On February 7, 2008, the trial court granted the motion, imposing evidentiary sanctions (February 7 Order). Plaintiff was precluded, inter alia, from asserting (1) the existence of a contractual relationship with defendant or a breach thereof; and (2) that he was a partner or had an ownership interest in the nightclub.^[2]

Trial commenced on May 30, 2008. After opening argument, defendant moved for judgment of nonsuit. Without going into detail, it suffices to say that defendant argued that, in light of the evidentiary preclusions imposed by the February 7 Order, plaintiff could not prove his case. Plaintiff did not oppose the motion. The trial court granted the motion for nonsuit and entered judgment thereon for defendant.

Plaintiff appeals. He challenges only the November 7 Order and the February 7 Order, and does not specifically challenge the judgment.

1. The judgment, of course, is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As the party claiming error on appeal, it is incumbent upon plaintiff to demonstrate why the judgment should be reversed, i.e., why the challenged discovery orders operated to his prejudice. While it appears that the net effect of the orders may have been to prevent plaintiff from proving his case, plaintiff is obligated to discuss that in some detail for purposes of appellate review, and clearly establish his right to relief. Instead, plaintiff has (1) presented pages of facts with virtually no citation to the record; and (2) simply made the conclusory statements that the orders effectively gave [d]efendant an unfair advantage and effectively caused [plaintiff] to lose his case.

The discovery orders do not exist in a vacuum. Plaintiff has not met his burden of showing why the judgment should be disturbed.

2. Of at least equal significance, the judgment is based on a motion for nonsuit which plaintiff did not oppose. The failure to oppose the motion amounts to a waiver of the right to challenge the resultant judgment on appeal. (Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602; Cummings v. Cummings (1929) 97 Cal.App. 144, 149; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal,  396, pp. 453−454.)

3. Finally, plaintiff did not oppose the motions which led to the November 7 Order and the February 7 Order. Under the authorities cited in the preceding paragraph, this constitutes a waiver of the right to challenge the discovery orders on appeal.

The judgment is affirmed.

______________________

Marchiano, P.J.

We concur:

______________________

Dondero, J.

______________________

Banke, J.

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* We resolve this case by Memorandum Opinion pursuant to California Standards of Judicial Administration, section 8.1.

[1] On December 17, 2007, plaintiff filed a motion for relief from the November 7 Order. The trial court denied the motion for six separate procedural deficiencies.

[2] Plaintiff filed a motion for reconsideration of the February 7 Order. The trial court denied reconsideration.