Filed 5/23/13 Kenner v. Powell CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Placer)
DAVID KENNER,
Cross-complainant and Respondent,
v.
KELVIN POWELL,
Cross-defendant and Appellant.
C068740
(Super. Ct. No.
SCV23915)
After
David Kenner was sued for breach of contract
by Time Payment Corporation, he cross-complained for breach of contract, fraud,
and common counts against Kelvin Powell and others. Following an unreported court trial, the
court entered judgment in Kenner’s favor.
Cross-defendant Powell, appearing in
pro se as he did in the trial court, appeals on the judgment roll. He contends the trial court erroneously
admitted some evidence, refused to admit other evidence, misinterpreted the
parties’ contract, and erred in computing the amount of
affirm the judgment.
BACKGROUND
We treat this case as an appeal on
the judgment roll, because it reaches us based on a clerk’s transcript. ( ADDIN BA xc <@ru> xl 31 s
CZQMDD000001 xpl 1 l "Cal. Rules of Court, rule
8.832" Cal. Rules of Court,
rule 8.832 (further references to rules are to the Cal. Rules of Court;
hereafter Rule or Rules); cf. ADDIN
BA xc <@cs> xl 40 s CZQMDD000002 xhfl Rep xpl 1 l "Dumas v. Stark
BA xc <@cs> xl 52 s CZQMDD000003 xhfl Rep xpl 1 l "Allen v. Toten
posture, we presume that the trial court's findings of fact are supported by
evidence, and its conclusions of law are binding
upon us unless error appears on the face of the record. ( ADDIN BA xc <@cs> xl 63 s
CZQMDD000004 xhfl Rep xpl 1 l "
924.)
On this extremely limited appellate
record, we cannot discern the precise nature of the parties’ dispute. Neither the complaint nor the cross-complaint
appears in the record. Powell’s answer
to the cross-complaint identifies the causes of action raised by Kenner, and states various
defenses.
The cross-complaint was tried to the
court; the trial was unreported. Kenner, Powell, and cross-defendant Katanya Maina
testified. Fifteen documentary exhibits
were admitted into evidence; four appear in the record on appeal. At the close of trial, the court took the
matter under submission and directed all parties to submit a written “summary
of their evidence and argument presented to the court†and proposed
judgment. Powell’s summary of argument,
summary of evidence, and proposed judgment are the only ones that appear in the
appellate record.
The trial court ultimately entered
judgment in favor of Kenner and against all cross-defendants -- including Powell -- in the
amount of $76,636.44, including prejudgment interest, costs, and attorney fees.
DISCUSSION
I. Applicable Standards of Review
On appeal, we must presume the trial
court's judgment is correct. In service
of that rule, we adopt all intendments and inferences to affirm the judgment or
order unless the record expressly contradicts them. (See ADDIN
BA xc <@cs> xl 49 s CZQMDD000005 xhfl Rep xpl 1 l "Denham v. Superior
Court
Denham v. Superior Court (1970) 2 Cal.3d 557, 564; ADDIN
BA xc <@cs> xl 49 s CZQMDD000006 xhfl Rep xpl 1 l "Nielsen v.
Gibson
Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)
It is the burden of the party
challenging a judgment on appeal to provide an adequate record to assess
error. ( ADDIN BA xc <@cs> xl 50 s CZQMDD000007
xhfl Rep xpl 1 l "
24 Cal.4th 1122" Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Thus, an appellant must not only present an
analysis of the facts and legal authority on each point made, but must also
support arguments with appropriate citations to the material facts in the
record. If he fails to do so, the
argument is forfeited. ( ADDIN BA xc <@$cs> xl 53 s
CZQMDD000006 xhfl Rep xpl 1 Nielsen
v. Gibson, supra, 178 Cal. App. 4th at p. 324; ADDIN
BA xc <@cs> xl 65 s CZQMDD000008 xhfl Rep xpl 1 l "Duarte v. Chino Community
Hospital
Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849,
856.)
The California Rules of Court
provide an appellant with a choice of several types of records upon which to
take an appeal. The choices include a
reporter’s transcript, a clerk’s transcript, an agreed statement, and a settled
statement. ( ADDIN BA xc <@ru> xl 46 s
CZQMDD000009 xpl 1 l "Rules 8.120, 8.122, 8.128,
8.129, 8.134, 8.137" Rules 8.120, 8.122, 8.128, 8.129, 8.134,
8.137.) Powell has elected to
proceed with the clerk’s transcript.
CZQMDD000010 xpl 1 l "
transcript, we “ ‘must conclusively presume that the evidence is ample to
sustain the [trial court's] findings . . . .’ †( ADDIN BA xc <@cs> xl 47 s
CZQMDD000011 xhfl Rep xpl 1 l "
126 Cal.App.3d 147" Ehrler
v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether
any error “appears on the face of the record.â€
(
ADDIN BA xc <@cs> xl 78 s CZQMDD000012 xhfl Rep xpl 1 l "National Secretarial
Service, Inc. v. Froehlich
210 Cal.App.3d 510, 521; ADDIN
BA xc <@ru> xl 10 s CZQMDD000013 xpl 1 l "rule 8.163" Rule 8.163.)
II. Powell’s Opening Brief Fails to Comply With
the
of Court
Pursuant to ADDIN
BA xc <@ru> xl 19 s CZQMDD000014 l "rule 8.204(a)(1)(C)" Rule 8.204(a)(1)(C),
a party must provide a citation to evidence in the record supporting any matter
asserted in a brief. In his 13-page
“Statement of Facts,†Powell provides only a handful of citations to evidence
in the record, leaving several pages without a single evidentiary
reference. He also cites in several
instances to the original superior court file, which is not in the record on
appeal. His failure to identify evidence
in the record is doubtless due in large part to his decision not to arrange for
a court reporter or, lacking a reporter’s transcript as part of the record, to
proceed on appeal by agreed or settled statement. Whatever the reason for his failures, to the
extent that his conclusory assertions lack evidentiary support and proper
citation to the record, we are compelled to disregard them. ( ADDIN BA xc <@cs> xl 50 s
CZQMDD000015 xhfl Rep xpl 1 l "
Cal.App.4th 1007" Paiva
v. Nichols (2008) 168 Cal.App.4th 1007, 1037; ADDIN
BA xc <@cs> xl 42 s CZQMDD000016 xhfl Rep xpl 1 l "In re S.C.
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 madeâ€]; ADDIN
BA xc <@cs> xl 88 s CZQMDD000017 xhfl Rep xpl 1 l "Regents of University of
California v. Sheily
122 Cal.App.4th 824" Regents
of University of California v. Sheily (2004) 122 Cal.App.4th 824,
826-827, fn. 1 [“It is not the task of the reviewing court to search the
record for evidence that supports the party's statement; it is for the party to
cite the court to those references. Upon
the party’s failure to do so, the appellate court need not consider or may
disregard the matter.â€].)
We are mindful that Powell appears
without the benefit of counsel. However,
“mere self-representation is not a ground for exceptionally lenient
treatment. Except when a particular rule
provides otherwise, the rules of civil procedure must apply equally to parties
represented by counsel and those who forgo attorney representation.†( ADDIN BA xc <@cs> xl 51 s
CZQMDD000018 xhfl Rep xpl 1 l "
like any other party and is entitled to the same, but no greater, consideration
than other litigants and attorneys. ( ADDIN BA xc <@cs> xl 51 s
CZQMDD000019 xhfl Rep xpl 1 l "
122 Cal.App.4th 1229" Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see ADDIN
BA xc <@cs> xl 75 s CZQMDD000020 xhfl Rep xpl 1 l "Leslie v. Board of Medical
Quality Assurance
234 Cal.App.3d 117" Leslie
v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121
[self-represented parties are held to the “the same ‘restrictive procedural
rules as an attorney’ â€].)
III. Powell Fails to Show Reversible Error
Powell argues the trial court erred
in (1) admitting two agreements -- a lease and a promissory note -- over his
objection at trial, and in (2) in excluding correspondence proffered as
evidence by codefendant Maina. Powell’s
failure to provide a transcript or settled statement of the trial prevents our
entertaining either argument, and they are forfeited. ( ADDIN BA xc <@$cs> xl 53 s
CZQMDD000006 xhfl Rep xpl 1 Nielsen
v. Gibson, supra, 178 Cal. App. 4th at p. 324.) Without any means of evaluating these matters
for ourselves, we must assume the trial court did the right thing when it
admitted evidence and/or ruled on evidentiary objections because we must
presume on appeal that official duties have been regularly performed ( ADDIN BA xc <@st> xl 17 s
CZQMDD000021 xpl 1 l "Evid. Code, § 664"
Evid. Code, § 664),
and this presumption extends to the actions of trial judges. ( ADDIN BA xc <@cs> xl 55 s
CZQMDD000022 xhfl Rep xpl 1 l "
97 Cal.App.4th 1448" People
v. Duran (2002) 97 Cal.App.4th 1448, 1461, fn. 5; ADDIN
BA xc <@cs> xl 45 s CZQMDD000023 xhfl Rep xpl 1 l "Olivia v. Suglio
invalidity does not appear on the face of the record, it will be presumed that
what ought to have been done was not only done but rightly doneâ€].)
Nor can we consider Powell’s
contention that the trial court “misinterpreted†the parties’ contract. Powell acknowledges that contract
interpretation involves questions of fact; without any means of discerning the
evidence adduced at trial, we must conclusively presume that the evidence
presented was ample to sustain the trial court’s findings. ( ADDIN BA xc <@$cs> xl 49 s
CZQMDD000011 xhfl Rep xpl 1 Ehrler
v. Ehrler, supra, 126 Cal.App.3d at p. 154.) For example, prior to entering judgment, the
trial court expressly and “carefully reviewed†all of the evidence in the case,
which included testimony by Kenner, Powell, and Maina. We must conclusively defer to the trial
court’s implicit determination on issues of credibility (See ADDIN
BA xc <@cs> xl 58 s CZQMDD000024 xhfl Rep xpl 1 l "Lenk v. Total-Western, Inc.
and, as the trial court entered judgment for Kenner on his cross-complaint, we
must conclude the evidence supports that judgment.
Finally, Powell contends the trial
court erred in “computing the amount of damages†because no damages are proper
“in respect of an unenforceable contract.â€
The trial court apparently credited Kenner’s contract claim and, as we
have explained, we must assume the evidence adduced at trial supported the
judgment. We likewise decline to
consider Powell’s assertion that the trial court erred in awarding costs and
attorney fees because “[Powell] did not agree to pay for costs and attorney’s
fees in case of a lawsuit.†The trial
court’s award of fees and costs against all cross-defendants implies its
finding that there exists a legal basis for awarding them. In this judgment roll appeal, we presume the
evidence supports that finding.
In sum, Powell has not demonstrated
error “on the face of the record†sufficient to warrant reversing the
judgment. (Cf. ADDIN
BA xc <@$ru> xl 10 s CZQMDD000013 xpl 1 Rule 8.163.)
DISPOSITION
The judgment is affirmed. Kenner is awarded his costs on appeal. ( ADDIN BA xc <@ru> xl 17 s
CZQMDD000025 xpl 1 l "Rule 8.278 (a)(2)"
Rule 8.278(a)(2).)
BLEASE , Acting
P. J.
We concur:
MURRAY , J.
DUARTE , J.
name="_ftn1" title="">[1] When Powell prepared his appellate brief, he
apparently intended instead to provide the original superior court file in lieu
of a clerk’s transcript.
