Guttridge v. Aurora Capital CA3 ( 2022 )

Filed 12/5/22 Guttridge v. Aurora Capital CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
MICHAEL J. GUTTRIDGE, C086358
Plaintiff, Cross-defendant and (Super. Ct. Nos. 34-2012-
Respondent, 00129930-CU-MC-GDS &
34201300156423)
v.
AURORA CAPITAL, LLC, et al.,
Defendants, Cross-complainants and
Appellants;
RYAN VOORHEES,
Cross-defendant and Respondent.
In their appeal from the judgment entered in consolidated cases, appellants Aurora
Capital, LLC, and Chun Mei Dodge request that we vacate the judgment pursuant to
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Code of Civil Procedure section 128, subdivision (a)(8).1 They assert this relief is
appropriate following the parties’ execution of a postjudgment stipulation for settlement.
However, as respondents Michael J. Guttridge and Ryan Voorhees emphasize, that
stipulation for settlement, the very basis on which appellants seek to vacate the judgment,
is not part of the record on appeal, and Guttridge and Voorhees do not agree the judgment
should be vacated.2 Moreover, appellants have failed to make any showing of
entitlement to the relief they seek. Their factual assertions are unsupported by citation to
the record or by facts in the record. The extent of their citation to legal authority in their
opening brief is a single citation to section 128, subdivision (a)(8). In short, they assert
their entitlement to relief rather than establishing it. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We need not set forth the underlying background of this matter to resolve this
appeal. Nor could we, for that matter, given the sparse record appellants have provided
in their appendix. That appendix consists solely of an amended judgment filed on June
25, 2018, and the notice of appeal. For purposes of resolving this appeal, it is sufficient
to state that this matter consists of two cases consolidated in the trial court. Very
generally, one case involved the dissolution of Aurora Capital LLC and the validity of a
land purchase agreement between Aurora Capital LLC and Voorhees. The other case
involved Dodge’s claims asserted against Guttridge individually and as manager of
Aurora Capital LLC seeking damages and other relief. In the amended judgment, the
trial court, among other things, ordered Aurora Capital LLC dissolved with its funds,
after satisfaction of certain obligations, distributed to Guttridge, and ordered that Dodge
1 Further undesignated statutory references are to the Code of Civil Procedure.
2 Appellants insist Voorhees is not a proper respondent on this appeal. Whether
Voorhees is or is not a proper respondent, and the arguments Voorhees made before this
court, do not affect our determinations.
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shall recover nothing on her claims and cross-claims against Guttridge and Aurora
Capital LLC.3
DISCUSSION
Appellants do not seek reversal or modification of the amended judgment. Rather,
they assert the “parties have reached a complete agreement upon all the issues that would
have been tried, neither party has a need for the trial that would come from Appellant[s]
prevailing in the appeal,” and they “have no wish to litigate further . . . .” According to
appellants, “[a]ll that remains is for this Court to vacate the Judgment entered on
September 14, 2017.” According to appellants, the only action they seek is that the
judgment be vacated “per the stipulated settlement agreement. Once that occurs
Appellant[s] will request a dismissal of the appeal with prejudice.”
I
The Stipulation for Settlement
The rules of appellate procedure “require an appellate brief to support each point
by argument and, if possible, by citation to authority and to provide a citation to the
record for a factual assertion.” (County of Sacramento v. Rawat (2021) 65 Cal.App.5th
3 During oral argument, counsel stated that the litigation has been going on a long
time and this appeal has been pending for five years. In response, we provide the
following history of the appeal process for this case. Appellants filed their notice of
appeal in January 2018. In September 2019, efforts at mediation were terminated as
unsuccessful, resuming the schedule for designating the record on appeal and briefing.
Appellants designated the record on appeal in October 2019. The reporter’s transcript
was not filed until April 2021. Between May 2021 and February 2022, we granted five
requests by appellants for extensions of time to file their appendix and opening brief. In
March 2022, we returned appellants’ opening brief for nonconformance with the
California Rules of Court. After appellants filed their conforming opening brief and
appendix, we granted respondents two extensions of time to file their respondent’s briefs.
We returned Voorhees’s initial respondent’s brief for nonconformance and subsequently
returned appellants’ initial reply brief for nonconformance. The matter was fully briefed
and assigned to this panel in August 2022. We conducted oral argument on November
18, 2022, after which the case was deemed submitted.
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858, 861 (County of Sacramento), citing Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).)
“ ‘[W]e may disregard factual contentions that are not supported by citations to the record
[citation] or are based on information that is outside the record [citation]. We may
disregard legal arguments that are not supported by citations to legal authority [citation]
or are conclusory [citation].’ [Citations.] Further, we may treat a point that is not
supported by cogent legal argument as forfeited.” (County of Sacramento, at p. 861.)
Appellants elected to use an appendix to prosecute their appeal. (Cal. Rules of
Court, rule 8.124.) Their appendix consists only of the amended judgment and the notice
of appeal. Appellants’ opening brief contains three citations to the appellate record, two
to the amended judgment and one to the notice of appeal. They refer to the stipulation for
settlement on three occasions in their opening brief. However, this stipulation for
settlement upon which appellants rely in asking us to vacate the judgment—the very
basis for their request—is not included in the appendix. “ ‘[W]e may disregard factual
contentions that are not supported by citations to the record [citation] or are based on
information that is outside the record.’ ” (County of Sacramento, supra, 65 Cal.App.5th
at p. 861.) Thus, we could disregard appellants’ contention that we should vacate the
judgment based on the stipulation for settlement, as that contention is both not supported
by citation to the record and is based on information outside the record. (Ibid.)
Respondents both oppose vacating the judgment and note there is no stipulation or
agreement to vacate the judgment. After the respondents each pointed out that the
stipulation for settlement is not part of the record on appeal, appellants assert in their
reply brief that respondents’ “assertion that [the] Stipulation is not before this Court is
nonsense.” In their reply brief, appellants reveal that the stipulation for settlement was an
attachment to an application for an extension of time to file their opening brief. There is
a stipulation for settlement attached to appellants’ application for an extension of time,
filed November 17, 2021. However, appellants chose not to include that stipulation for
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settlement in their appendix, which they filed five months later, on April 15, 2022. 4
Therefore, it is not part of the record on appeal. The fact that it was an attachment to an
application for an extension of time to file a brief does not render the stipulation part of
the record on appeal. Appellants could have sought to augment the record to include the
stipulation. (See Cal. Rules of Court, rule 8.155.) They did not. Nor have they
requested that we take judicial notice of the stipulation for settlement.5 (See Evid. Code,
§§ 450, 451, 452, 459.)
Because the very basis for appellants’ request that we vacate the judgment—the
stipulation for settlement—is not part of the record on appeal, we could dispose of the
appeal on this ground alone. Their foundational contention, that the stipulation for
settlement justifies vacating the judgment, is without any support in the record on
appeal.6 However, we shall briefly address appellants’ contentions pursuant to section
128.
4 In their notice designating the record on appeal (Cal. Rules of Court, rule 8.121),
appellants designated an appendix under California Rules of Court, rule 8.124 as their
record on appeal. Appellants also designated a reporter’s transcript under California
Rules of Court, rule 8.130. No party cites or refers to the reporter’s transcript.
5 At oral argument before this court, appellants orally requested leave to augment
the record. We deny appellants’ belated request.
6 We note appellants state that an “integral part” of the stipulation “and a major
condition was the dismissal of this appeal by Dodge . . . .” Of course, seeking to
voluntarily dismiss an appeal (Cal. Rules of Court, rule 8.244(c)) and seeking vacatur of
an underlying judgment are not one and the same and do not have the same effect. It
appears the complete relief appellants desire is vacatur of the judgment, to which they
have not established their entitlement, followed by their voluntary dismissal of the
appeal, which would not be possible after we had decided the appeal.
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II
Code of Civil Procedure Section 128, Subdivision (a)(8)
Appellants’ opening brief contains but one citation to authority, specifically
section 128, subdivision (a)(8). That subdivision provides that every court has the power
to “amend and control its process and orders so as to make them conform to law and
justice. An appellate court shall not reverse or vacate a duly entered judgment upon an
agreement or stipulation of the parties unless the court finds both of the following: [¶]
(A) There is no reasonable possibility that the interests of nonparties or the public will be
adversely affected by the reversal. [¶] (B) The reasons of the parties for requesting
reversal outweigh the erosion of public trust that may result from the nullification of a
judgment and the risk that the availability of stipulated reversal will reduce the incentive
for pretrial settlement.” (§ 128, subd. (a)(8).)
Appellants assert the “reasons for the reversal are sound and significant and
outweigh any potential [e]ffect on the public trust as there is no aspect of public reliance
on this Judgment remaining.” However, appellants do no more than merely advance this
assertion. They offer neither analysis nor proof that there is “is no reasonable possibility
that the interests of nonparties or the public will be adversely affected by” vacating the
judgment, or that the reasons they seek vacatur “outweigh the erosion of public trust that
may result from the nullification of a judgment and the risk that the availability of
stipulated reversal will reduce the incentive for pretrial settlement.” (§ 128, subd. (a)(8);
see Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999, 1007 [“parties must now
submit memoranda of points and authorities and declarations and other documentary
evidence persuasively demonstrating that reversal of the judgment in question will not
adversely affect nonparties or the public, erode public trust, or reduce the incentive for
pretrial settlement, and the courts must now fully consider and weigh these factors on a
case-by-case basis”].)
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Appellants assert it is “immaterial” that Voorhees could be negatively affected by
vacating the judgment. They assert Voorhees “did not act in reliance on this Judgment as
his relevant actions preceded the trial and were not dependent upon the trial outcome.”
They then go on to refer to Voorhees’s purchase of property and cite a related
Sacramento County Superior Court case involving the parties. In the following
paragraph, appellants recite additional factual and procedural background. However,
throughout, appellants cite to nothing in the record. Again, “ ‘[w]e may disregard factual
contentions that are not supported by citations to the record [citation] or are based on
information that is outside the record.’ ” (County of Sacramento, supra, 65 Cal.App.5th
at p. 861.)
According to appellants, the proposed vacatur of the judgment “is not a stipulated
reversal but rather the Court respecting an agreement whereby Guttridge will not oppose
or contest the set aside Appellant is requesting. Overturning the trial result is the proper
outcome. It is the avoidance of a new trial, which would occur when Appellant succeeds
on appeal, but only after further delay for the aging parties (late seventies and mid
eighties) a situation for which the parties have bargained. The stipulation into which
Guttridge and Dodge entered in October 2021 also resolves their differences in the two
other cases, stayed while this appeal is being reviewed. Appellants’ requested result, an
immediate ruling vacating the Judgment, rather than a future ruling and a long off trial,
will facilitate the removal of the stays so those other matters can proceed to a timely
Superior Court trial.” Once again, appellants neither cite the record nor cite to applicable
legal authority.
Thus, in advancing their arguments, appellants cite to nothing in the record to
support their factual claims, refer to facts not in the record, rely on the stipulation that
does not appear in the record on appeal, and simply assert their entitlement to relief in
conclusory fashion without any support in the record or citation to legal authority beyond
citing section 128, subdivision (a)(8) once. Appellants have failed to establish any
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factual or legal basis entitling them to have the judgment vacated pursuant to section 128,
subdivision (a)(8). Additionally, while not determinative here, it is clear Guttridge does
indeed “oppose or contest the set aside [of the judgment] Appellant is requesting.”
“ ‘A judgment or order of the lower court is presumed correct.’ ” (Denham v.
Superior Court of Los Angeles (1970) 2 Cal.3d 557, 564.) “It is the appellant’s burden to
demonstrate the existence of reversible error.” (Del Real v. City of Riverside (2002)
95 Cal.App.4th 761, 766.) Because appellants have neither established their entitlement
to vacatur of the judgment nor established reversible error, we shall affirm.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1), (2).)
/s/
HOCH, J.
We concur:
/s/
DUARTE, Acting P. J.
/s/
RENNER, J.
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