Martin v. Barber

Filed 10/12/06 Martin v. Barber CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of Imperial County, Barrett J. Foerster, Judge. Affirmed.

Plaintiff Gerald Martin appeals an order awarding $10,000 in sanctions to defendants Morgan Barber, Hairette [sic] Barber, Barbara Fisher, West Credit Inc., Jim Sciarani, and Current Wisdom, a California corporation (collectively Defendants) for Martin's discovery abuses in his breach of contract action against Defendants. On appeal, Martin contends the trial court abused its discretion by awarding that amount of sanctions because: (1) his failure to comply with discovery rules was not willful; and (2) the court, in awarding that amount, improperly intended to punish him.

DISCUSSION

On November 2, 2005, the trial court heard Defendants' motion for sanctions against Martin and found:

"Counsel for [Defendants] indicates there have been problems in getting [Martin] to respond to the moving papers. After filing the Motion to Compel, [Martin] did finally respond, but the Court struck it because it was late. The court then granted [Martin's] request to continue the Request for Interrogatories filed by [Defendants], but no response to them was received from [Martin]. Any documents that were submitted by [Martin] had changes in the answer[s] or did not provide the information needed. Counsel did finally get a deposition from [Martin] and got some of the answers, but not all."

Accordingly, the court awarded Defendants the sum of $10,000 for Martin's discovery abuses.^[1]

Although Martin asserts the trial court abused its discretion by imposing the sanctions award against him, his appellate briefs do not contain any citations to the appellate record to support the factual, procedural, and legal assertions set forth in the briefs. Furthermore, his briefs contain many factual and procedural assertions that, based on our cursory review of his truncated appellate record, are outside of the record on appeal. California Rules of Court, rule 14(a)(1)(C)^[2] states that an appellate 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." Rule 14(a)(2)(C) also states that an appellant's opening brief must "[p]rovide a summary of the significant facts limited to matters in the record."

On March 22, 2006, we returned, unfiled, Martin's initial opening brief because it did not "comply with California Rules of Court, rule 14(a)(b)(c)&(d), rule 15(c), and rule 44(b)(2)(a)&(c)." We enclosed a copy of those cited rules along with Martin's initial opening brief. Despite our rejection of his initial opening brief for noncompliance with, inter alia, rule 14(a), on May 16 Martin nevertheless filed a new opening brief that wholly omitted any supporting citations to the appellate record and provided a summary of facts which, for the most part, referred to matters outside the record on appeal. In Defendants' respondents' brief, they assert Martin's appeal should be dismissed based on his opening brief's failure to include any citations to the record in support of his statements of fact and argument. In Martin's reply brief, he does not address Defendants' assertion and, instead, makes further statements of fact unsupported by any citations to the record or outside the record on appeal.

Statements of fact that are not part of, or supported by citations to, the record on appeal are improper and cannot be considered on appeal. (Rule 14(a)(2)(C); Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Accordingly, we disregard any statements of fact set forth in Martin's briefs that are outside of the record on appeal. (Pulver, at p. 632; Kendall, at p. 625; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.)

Furthermore, to the extent his assertions of fact and procedure ostensibly refer to matters within the record on appeal, his briefs in violation of rule 14 (a)(1)(C) do not contain any citations to the appellate record. As in Nwosu v. Uba (2004) 122 Cal.App.4th 1229, at page 1246, Martin's briefs "are devoid of citations to the [record on appeal] and are thus in dramatic noncompliance with appellate procedures." "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." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) "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. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Because Martin's briefs do not contain any citations to the record on appeal to support his assertions of fact and procedure and contentions, we consider his contentions on appeal waived. (Nwosu, at p. 1247; City of Lincoln, at p. 1239; Duarte, at p. 856; Guthrey, at p. 1115.)

Furthermore, because Martin's record on appeal consists of only two documents (i.e., the clerk's minutes and reporter's transcript from the November 2, 2005 hearing) and we disregard any reference to matters outside that record, Martin has not satisfied his burden to provide an adequate record to assess the purported error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) He has not provided us with a record that includes the moving and opposing papers on the sanctions issue or the court-appointed referee's findings and recommendations. Because the appellate record provides us with an insufficient basis on which to assess the merits of Martin's contentions, we must presume the trial court's order was correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; In re Marriage of Gabriel (1975) 50 Cal.App.3d 556, 558.) "Where the party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. [Citations.]" (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal.App.4th 28, 46.)

We note that Martin filed this appeal in propria persona ("pro. per."). However, appearing in propria persona does not exempt him from compliance with established appellate rules. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247 [pro. per. litigants must follow the same procedural rules as attorneys].) Accordingly, we conclude Martin has not carried his burden on appeal to show the trial court abused its discretion by awarding Defendants $10,000 in sanctions for his discovery abuses.^[3]

DISPOSITION

The order is affirmed.

McDONALD, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.

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^[1] Martin's designated record on appeal consists of only the clerk's minutes and reporter's transcript from the November 2, 2005 hearing. The record on appeal does not contain any other documents relating to Martin's breach of contract action, which apparently include his complaint, Defendants' motion for discovery abuse sanctions, or the court-appointed referee's findings and recommendations regarding Martin's discovery abuses.

^[2] All further rule references are to the California Rules of Court.

^[3] Because we dispose of Martin's appeal based on the procedural grounds discussed ante, Defendants' request for judicial notice is moot and we therefore deny it.