Lagos v. City and County of San Francisco

Filed 3/20/07 Lagos v. City and County of San Francisco CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I.

This appeal is presently before the court by way of a renewed motion for expedited dismissal of appeal filed by respondents on February 23, 2007. Opposition was filed by petitioner and appellant Julian P. Lagos (appellant) on March 12, 2007. For the reason set forth below, the motion is granted, and this appeal is hereby dismissed.

II.

Appellants original opening brief on appeal was filed on November 27, 2006. Respondents brief was filed on December 22, 2006. On the same day, respondents filed a motion for expedited dismissal of appeal. On January 11, 2007,[1] the presiding justice of this division entered an order, on the courts own motion (Cal. Rules of Court, rule 8.204(e)), which included the following:

. . . [A]ppellant is hereby ordered to file an amended opening brief that complies fully with rule 8.204 (formerly Cal. Rules of Court, rule 14), specifically including, but not limited to, rule 8.204(a)(1)(C). . . . Among other matters addressed, the order also denied respondents motion without prejudice to renewing the motion should appellant fail to comply fully with this order.

An amended appellants opening brief was filed on February 13. On February 23, respondents filed a renewed motion for expedited dismissal of appeal. Among other things, respondents renewed motion contends that appellant violated this courts January 11 order by filing an amended brief not in compliance with the requirements of rule 8.204(a)(1)(C) of the California Rules of Court. We agree.

Rule 8.204(a)(1)(C) provides: []  (a) Contents [] (1) Each brief must: . . . [] (C) Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. If any part of the record is submitted in an electronic format, citations to that part must identify, with the same specificity required for the printed record, the place in the record where the matter appears.

This is an administrative mandamus action challenging a decision by respondents not to require an environmental impact report in connection with a proposed multiple unit housing development in San Francisco. Appellant contends on appeal that the trial court erred in eight separate respects in denying the relief sought by the petition below.

It is the duty of [the parties] to refer the reviewing court to the portion of the record which supports appellants contentions on appeal. [Citation.] (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; see also Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 503, fn. 1 [failure to comply with California Rules of Court requiring summary of material facts supported by appropriate reference to the record may constitute waiver of error].)

The obvious purpose of this rule is to enable the justices and court staff to locate the relevant portions of the record expeditiously. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) The appellate court is not required to search the record on its own seeking error. (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1; see also Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.)

Appellants amended brief utterly fails to meet the rules requirement that factual assertions in appellate briefs be supported by citations to the record. The amended briefs introduction, statement of the case, and summary of material facts are 15 pages in length, and contain numerous factual assertions, while there are only a total of 11 citations to the record. Given the factual and legal complexities of the issues raised on appeal, the amended brief manifestly does not comply with rule 8.204(a)(1)(C). Where appellants original brief was stricken because it was defective, the filing of a subsequent, defective brief is sufficient ground upon which to dismiss the appeal. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 557; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1118-1119.)

The fact that appellant is not a lawyer and is self-represented does not excuse his noncompliance with the applicable rules governing this appeal. As our Supreme Court has instructed, an appellant in propria persona is held to the standard of conduct as that an attorney on appeal. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

III.

The motion to dismiss the appeal is granted.

_________________________

Ruvolo, P. J.

We concur:

_________________________

Sepulveda, J.

_________________________

Rivera, J.

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[1] All further dates are in the calendar year 2007, unless otherwise indicated.