Pacific Business Capital v. Transwestern Publishing
Filed 3/22/07 Pacific Business Capital v. Transwestern Publishing CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
PACIFIC BUSINESS CAPITAL CORPORATION, Plaintiff and Appellant, v. TRANSWESTERN PUBLISHING COMPANY, LLC, Defendant and Respondent. | G036434 (Super. Ct. No. 04CC03743) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Mary Fingal Erickson, Judge. Affirmed.
Bruce B. Osterstrom for Plaintiff and Appellant.
DLA Piper Rudnick Gray Cary US, DLA Piper US, Brian L. Behmer, M. Ray Hartman III and Tim L. Laske for Defendant and Respondent.
* * *
The assignee of accounts receivable filed suit against the assignor and the assignors purported debtor. The purported debtor filed a motion for summary judgment, which was granted. The assignee appeals, claiming the trial court erred in granting certain evidentiary sanctions that precluded it from raising a triable issue of material fact in opposition to the motion for summary judgment.
We affirm. The assignee has waived its argument for failure to cite to the record.
I
FACTS
Pacific Business Capital Corporation (Pacific) filed a complaint against American Distribution Service Corporation (ADS), TransWestern Publishing Company, LLC (TransWestern), and others. In that complaint, Pacific described itself as a finance lender and the assignee of all of the accounts receivable of ADS. In its fifth through ninth causes of action, Pacific alleged that TransWestern was liable to it for goods sold and delivered, services rendered, open book account, account stated, and quantum meruit. Pacific asserted that TransWestern owed at least $66,875.20 for goods, wares, and merchandise sold and delivered to TransWestern by ADS, and for work, labor, and services rendered by ADS at TransWesterns request.
TransWestern filed a motion for summary judgment, or in the alternative, summary adjudication, on the fifth through ninth causes of action. In the motion, TransWestern stated that it was entitled to summary judgment on the fifth and sixth causes of action, for goods sold and delivered and services rendered, because no services had been rendered and there was no evidence of indebtedness. It asserted that it was entitled to summary judgment on the seventh cause of action, for open book account, because ADS had not recorded any amounts TransWestern allegedly owed. With respect to the eighth cause of action, for account stated, TransWestern contended that it was entitled to summary judgment because it was not liable to ADS under any of the disputed invoices. Finally, TransWestern claimed to be entitled to summary judgment on the ninth cause of action, for quantum meruit, because neither ADS nor Pacific had provided any benefit to TransWestern with respect to the disputed invoices.
In its opposition to the motion for summary judgment, Pacific claimed that TransWestern was liable on 16 invoices that had been produced during discovery. It also claimed that TransWestern had admitted to the authenticity and accuracy of those invoices.
As to what happened next, Pacific, in its opening brief on appeal, gives its version of events as follows: In its reply [with respect to the motion for summary judgment], TRANSWESTERN, for the first time, objected to the Courts consideration of any evidence concerning twelve (12) of the sixteen (16) invoices at issue, claiming that they had not been disclosed in discovery and, therefore, could not be considered by the Court in ruling upon TRANSWESTERNs motion for summary judgment. In essence, counsel for TRANSWESTERN, without any legal or factual support, sought (in its reply papers) and obtained an evidentiary sanction that resulted in the granting of TRANSWESTERNs Motion for Summary Judgment.
Pacific further narrates: As of the date of the hearing on TRANSWESTERNs Motion for Summary Judgment, it had been determined that those unpaid accounts receivable due and owing by TRANSWESTERN were represented by sixteen (16) separate invoices. The amounts due on each of those invoices [were] properly put before the trial court by declaration. However, the trial court improperly refused to consider any evidence with respect to twelve (12) of those invoices on the grounds that they had not been listed in [Pacifics] Responses to TRANSWESTERNs Special Interrogatory No. 1, which response was served by [Pacific] on July 16, 2004, some seven (7) months before TRANSWESTERN filed its Motion for Summary Judgment. TRANSWESTERN never served any supplement[al] interrogatories nor did TRANSWESTERN ever make any demand upon [Pacific] to provide amended or supplemental responses to any interrogatory. Likewise, TRANSWESTERN never brought any discovery motion before this Court that resulted in the entry of an order requiring the amendment or supplementation of a response to any interrogatory propounded by TRANSWESTERN. Copies of each of the twelve (12) invoices at issue were produced to TRANSWESTERN during the course of discovery and before TRANSWESTERN filed its Motion for Summary Judgment. Under these circumstances, it was totally improper for the trial court to impose an evidentiary sanction, particularly when that evidentiary sanction severely prejudiced the interests of [Pacific], denying it due process and the right to have its claims determined on the merits.
TransWesterns version of events is different. In its respondents brief on appeal, TransWestern says that Pacific mischaracterized the courts evidentiary ruling as an evidentiary sanction. According to TransWestern, TransWestern objected to the declaration of [Pacifics] designated person most knowledgeable and the invoices [Pacific] improperly attempted to put into evidence. The evidence was not disclosed during discovery, either in response to written interrogatories or in sworn deposition testimony. More importantly, the objectionable portions of the declaration (and attached documentation) at issue lacked foundation, [were] not based on personal knowledge and contained blatant hearsay.
The court granted TransWesterns motion for summary judgment. Pacific filed a new trial motion and the motion was denied. Pacific appeals.[1]
II
DISCUSSION
Pacific insists that the trial court erroneously imposed an evidentiary sanction against it and that the improper exclusion of evidence deprived Pacific of its ability to raise a triable issue of material fact in opposition to the motion for summary judgment. Pacific urges this court to reverse the summary judgment and remand the case for reconsideration of the motion for summary judgment, taking into consideration the disputed invoices.
We decline to do so, inasmuch as Pacific has waived its argument. Pacific has failed to support its argument with apposite citation to the record. In the pertinent portion of Pacifics opening brief, as quoted above, Pacific fails to cite any portion of the record showing what objections TransWestern made to the invoices in question. True enough, Pacific cites pages 24 to 117 of the appellants appendix in support of its statement that TransWestern filed and served a motion for summary judgment, and cites pages 211 to 392 of the appellants appendix in support of its statement that TransWestern filed and served a reply. However, Pacific never provides a page point reference, within that 274-page span, with respect to TransWesterns purported request for evidentiary sanctions.
In addition to the foregoing, Pacific has provided no record references with respect to its assertions that: (1) a declaration properly put the 16 disputed invoices before the court; (2) the trial court refused to consider the invoices because they had not been identified in Pacifics responses to TransWesterns Special Interrogatory No. 1; and (3) copies of the invoices in question were produced to TransWestern before it filed its motion for summary judgment. Likewise, Pacific has provided no record references with respect to its various assertions regarding discovery.
Counsel is admonished that . . . the failure to provide citation to the record is a violation of California Rules of Court, rule 15(a). A violation of the rules of court may result in the striking of the offending document, the waiver of the arguments made therein, the imposition of fines and/or the dismissal of the appeal. [Citations.] In addition, it is counsels duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own seeking error. Again, any point raised that lacks citation may, in this courts discretion, be deemed waived. [Citation.][2] (Del Real v. City of Riverside(2002) 95 Cal.App.4th 761, 768.) Pacific has waived its argument here.
III
DISPOSITION
The judgment is affirmed. TransWestern shall recover its costs on appeal.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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[1] Pacific states that it appeals from both the summary judgment and the order denying its new trial motion. However, it provides no discussion of its new trial motion in its opening brief, other than to mention that it filed one. The appeal from the new trial motion, to the extent it is encompassed in the notice of appeal at all, is waived. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.)
[2] See now California Rules of Court, rule 8.204(a)(1)(C).
