Filed 10/19/17 San Francisco Christian University & Seminary v. Oh CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

MEMORANDUM OPINION^[1]

BY THE COURT:^[2]

Defendant In Hwan Oh, acting in propria persona, appeals from an order granting plaintiff San Francisco Christian University & Seminary (SFCUS) a preliminary injunction.

SFCUS moved for the preliminary injunction to require Oh, its former president, to stop holding himself out and acting as a university recruiter or member of its faculty or administration; return control of all university finances and bank accounts to the current administration; and turn over all university records and personal property including its keys, enrollment roster, and corporate seal. The university alleged and adduced evidence that Oh continued to hold himself out as an officer, teacher and recruiter for the university, causing damage to its reputation, after its board of directors validly removed him from office on December 27, 2014. Following argument, the superior court granted the preliminary injunction as requested.[3]

Based on the opening brief, we must dismiss Oh’s appeal. The trial court’s judgment is presumed to be correct on appeal, and it is the burden of the party challenging it to affirmatively demonstrate prejudicial error. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125) “ ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. It is entitled to the assistance of counsel [or the litigant if, as here, the litigant chooses to represent himself]. Accordingly, every brief should contain a legal argument with citation to the authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ [Citation.]” (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) An appellant’s failure to articulate intelligible legal arguments in the opening brief may be deemed an abandonment of the appeal justifying dismissal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Likewise, a failure to present arguments with adequate and comprehensible references to the record on appeal and citation to legal authority can result in forfeiture of any contention that could have been raised on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B) &(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)[4]

Oh has failed to carry his burden. His brief is difficult to understand but appears to rely on a combination of documents that were filed in the superior court and additional documents that were not, with no evident distinction indicated between those that were and those that were not. “Documents not presented in the trial proceeding cannot be included as part of the record on appeal and thus must be disregarded on appeal as beyond the scope of appellate review. [Citations.] [¶] . . . Likewise, the parties’ briefs cannot make arguments relying on facts outside the record or improperly included in the record; statements in the briefs based on improper matter are disregarded by the appellate court.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter group 2016) ¶¶ 8:172 to 8:173, p. 8-152.) Moreover, none of the factual references in Oh’s brief cite to the volume and page in the record where the matter appears, which is both necessary for this court to conduct a meaningful review and mandatory under rule 8.204(a)(1)(C).

Oh’s opening brief also lacks minimally adequate legal argument. It contains four sections entitled “I. The Gaps and Contradictions in Plaintiff’s Evidence are so Overwhelming as to render the Granting of a Preliminary Injunction an Abuse of Discretion[;] [¶] II. It was an Abuse of Discretion for the Court to grant a Preliminary Injunction which, instead of Preserving the Status Quo, put a Stamp of Approval on an unlawful Coup d’Etat within the SFCUS academy[;] [¶] III. It was an Abuse of Discretion for the Trial Court to [grant] Plaintiff the Preliminary Injunction, because of the nominal Plaintiff’s unclean hands[;] [¶] IV. The Court particularly abused its discretion granting a Mandatory Injunction in the Absence of any Overwhelming Necessity.” These sections contain a collection of unfocused and all but unintelligible characterizations of various documents that may or may not be part of the record. Oh’s primary claims appear to be that not all of the directors who voted to remove him as president were authorized to do so, that the vote was conducted improperly, and that the criticism of his presidency were invalid, but there is neither adequate citation to the record nor intelligible legal analysis to support these assertions. Since the issues raised in Oh’s opening brief are not properly or sufficiently developed to be cognizable and his brief does not conform to appellate court rules, we decline to consider them and they are forfeited.

We are sympathetic to the fact that Oh is representing himself without the benefit of an attorney and that his understanding of English is limited, but his status as a self-represented litigant does not exempt him from the rules of appellate procedure or relieve his obligation to present intelligible argument supported by the record and legal authority. (Nwosu, supra, 122 Cal.App.4th at pp. 1246–1247.) In this case, Oh’s failure to articulate relevant legal argument supported by adequate references to the record warrants dismissal of the appeal.

As a final matter, we note that Oh sought to file an untimely request for oral argument in response to a notice sent by the clerk of this court after the appeal was fully briefed. A party’s right to oral argument exists in any appeal considered on the merits and decided by written opinion. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871; accord, Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1254.) Because we dismiss the appeal without reaching the merits, Oh does not have a right to oral argument, and we consider it unnecessary to our procedural dismissal of this appeal.

DISPOSITION

The appeal is dismissed. Each party shall bear its own costs on appeal.