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MATSUMOTO v. PORSCHE CARS NORTH AMERICA, INC., B223349. (2011)

Court: Court of Appeals of California Number: incaco20110729054 Visitors: 2
Filed: Jul. 29, 2011
Latest Update: Jul. 29, 2011
Summary: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS MOSK, J. INTRODUCTION Plaintiff and appellant Motoaki Matsumoto (plaintiff) appeals from the trial court's judgment dismissing his claims against all defendants. As explained below, plaintiff has failed to comply with procedural requirements on appeal. We therefore affirm the judgment. PROCEDURAL BACKGROUND Plaintiff filed a first amended complaint against defendants Porsche Cars of North America, Inc. (Porsche), Beverly Hills Porsche/Audi dba Cra
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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MOSK, J.

INTRODUCTION

Plaintiff and appellant Motoaki Matsumoto (plaintiff) appeals from the trial court's judgment dismissing his claims against all defendants. As explained below, plaintiff has failed to comply with procedural requirements on appeal. We therefore affirm the judgment.

PROCEDURAL BACKGROUND

Plaintiff filed a first amended complaint against defendants Porsche Cars of North America, Inc. (Porsche), Beverly Hills Porsche/Audi dba Crandbook Partners, Inc. (Beverly Hills) and Pacific Porsche (Pacific) in an action filed December 30, 2008.1 Plaintiff, in his first amended complaint, asserted seven causes of action against all defendants and two additional causes of action against Beverly Hills only, all arising from plaintiff's 2001 purchase of an allegedly defective Porsche automobile. Porsche responded to the first amended complaint with a demurrer and motion to strike in which Beverly Hills subsequently joined. After hearing oral argument and taking under submission the demurrer, motion to strike, and motion for joinder, the trial court issued a minute order granting Beverly Hills joinder motion and sustaining the demurrer without leave to amend. Thereafter, the trial court entered a dismissal order on Porsche's demurrer that disposed of the first seven causes of action in the complaint, effectively terminating the action as to Porsche.

Following a separate demurrer to the first amended complaint by Beverly Hills that challenged the two remaining causes of action against it, plaintiff filed a second amended complaint to which Beverly Hills again demurred. On March 15, 2010, the trial court entered a minute order sustaining Beverly Hills's demurrer, thereby effectively terminating the action against that defendant.2 Plaintiff filed a notice of appeal from the "[j]udgment of dismissal entered after an order sustaining a demurrer" dated March 18, 2010. The trial court entered a judgment of dismissal in favor of Porsche on April 2, 2010. The trial court entered an amended judgment of dismissal in favor of all the defendants on April 28, 2010.

Plaintiff elected to proceed on appeal by filing an appellant's appendix. That appendix, however, did not contain several necessary documents, such as a copy of Porsche's demurrer to the first amended complaint, plaintiff's opposition to that demurrer, or Porsche's reply brief. Porsche, however, subsequently filed a respondent's appendix that included those documents. Plaintiff also did not include in his appendix Beverly Hills's demurrer to his second amended complaint or its reply brief in support of that demurrer. In addition, plaintiff included in his appendix copies of documents, such as repair bills, automotive industry articles, discovery responses, portions of deposition transcripts, and mediation and settlement conference briefs, which documents Porsche asserts were not before the trial court at the respective hearings on the parties' demurrers. And plaintiff did not designate any of the reporter's transcripts for the demurrer hearings.

DISCUSSION

Plaintiff was represented in the trial court by an attorney, but he appears on appeal in propria persona. Although he appears without representation, he nevertheless must follow all requirements of the law. "`When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants . . . . Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney.' [Citation.]" (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126.)

On appeal, this court only considers whether the appellant has demonstrated that reversible error occurred in the trial court. To show such error, the appellant must comply with various requirements. Among the requirements is the "`fundamental principle of appellate practice . . . that an appellant "`must affirmatively show error by an adequate record. . . . Error is never presumed. . . . "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent . . . ."'"' [Citation.]" (Bianco v. California Highway Patrol, supra, 24 Cal.App.4th at p. 1125.)

To affirmatively show that error occurred, an appellant must not only provide an adequate record, but also "present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] . . . [Citations.] . . . [C]onclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) In other words, it is simply not sufficient for an "appellant to point to the error and rest there." (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.)

California Rules of Court, rule 8.204(a)(1) prescribes the manner in which legal authority and facts in the record must be cited. Each appellate brief must "support each point by argument and, if possible, citation of authority; and [¶] 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." (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)

Plaintiff did not provide the reporters transcripts of the hearings on Porsche's demurrer to the first amended complaint or Beverly Hills's demurrer to the second amended complaint. That omission prevents us from determining what, if any, documents—beyond the face of the first and second amended complaints—the trial court considered in determining the demurrers. That omission also prevents us from determining plaintiff's contention that the trial court abused its discretion by denying plaintiff leave to amend because, without the reporters transcripts of the hearings, we have no way of knowing whether plaintiff proposed amendments to the trial court and, if so, the nature and extent of those proposed amendments. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [when a demurrer is sustained without leave to amend, appellate court must decide whether there is a reasonable possibility that the defect can be cured by amendment; and the burden of proving such reasonable possibility "is squarely on the plaintiff"].)

Although his opening brief contains citations to the appellant's appendix, the vast majority of those citations are to documents other than the first or second amended complaints, and we cannot ascertain which, if any, of those other documents were before the trial court at the demurrer hearings. Moreover, his brief contains only two citations to case authority3 and does not adequately raise or argue his contentions on appeal. For example, plaintiff cites to Krieger v. Nick Alexander Imports, Inc., supra, 234 Cal.App.3d 205, a case dealing with the discovery rule in the statute of limitations context, and concludes that he did not and could not have discovered the alleged defects in the subject automobile until 2008 when the transmission failed.4 Plaintiff does not, however, develop that argument or provide citations to the record that would support it. Nor does he explain why—given the multiple repairs to and problems with his automobile that occurred before his alleged discovery of the alleged defect—a reasonable person in his position would not or should not have discovered the defect earlier. He asserted an action based on the purchase of a defective automobile, including all of the defects dealt with shortly after the acquisition of the automobile and not an action focused on a defective transmission (which allegedly triggered the late discovery). As the court explained in People v. Stanley (1995) 10 Cal.4th 764, 793, it is not the role of a reviewing court to independently seek out support for appellant's conclusory assertions, and such contentions may be rejected without consideration. (See also Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 ["An appellate court is not required to examine undeveloped claims, nor to make arguments for parties"].)

It is well established that failure to present reasoned argument with references to the record and citation to legal authority results in a forfeiture of any contention that could have been raised on appeal. (People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37; Building Etc. Assn. v. Richardson (1936) 6 Cal.2d 90, 102; In re Estate of Randall (1924) 194 Cal. 725, 728-729; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240; and Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004 & fn. 2.) We understand the difficulties encountered by those not represented by counsel on appeal. We are nevertheless bound to apply the procedural requirements on appeal to everyone, whether or not a party is represented by counsel. In doing so, we conclude that based on the deficiencies discussed above, we should affirm the judgment of the trial court.

DISPOSITION

The judgment of dismissal as to all defendants is affirmed. No costs awarded.

We concur:

TURNER, P. J.

ARMSTRONG, J.

FootNotes


1. Although named in the notice of appeal, Pacific has not made an appearance on appeal. And plaintiff did not include in his appellant's appendix documents necessary to determine his claims of error as to Pacific, including Pacific's demurrer, his opposition, and Pacific's reply brief.
2. On January 5, 2010, the trial court entered an order sustaining Pacific's separate demurrer to the first amended complaint without leave to amend, effectively terminating the action against that defendant.
3. Plaintiff cites to Krieger v. Nick Alexander Imports, Inc. (1991) 234 Cal.App.3d 205 and Baker v. Beech Aircraft Corp. (1974) 39 Cal.App.3d 315.
4. See Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 132.
Source:  Leagle

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