Jiang v. Liu CA2/8 ( 2013 )

Filed 6/20/13 Jiang v. Liu CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JACK F. JIANG, B244212
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. KC063603)
v.
QIAN LIU,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert A. Dukes. Affirmed.
Jack F. Jiang, in pro. per., for Plaintiff and Appellant.
Law Offices of Jie Ci Ding and Jie Ci Ding for Defendant and Respondent.
**********
Plaintiff Jack F. Jiang appeals from the judgment of dismissal entered after the
court sustained defendant Qian Liu’s demurrer to his complaint, without leave to amend.
Because his appellate briefs and appendices suffer various fundamental defects, and fail
to adequately address the bases of the claimed errors, plaintiff has not satisfied his burden
on appeal. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We are able to glean the following facts from plaintiff’s briefs and appellate
appendices: On April 17, 2012, plaintiff sued defendant (his ex-wife), asserting causes of
action for constructive fraud, deceit, intentional infliction of emotional distress,
negligence, and negligent infliction of emotional distress. The complaint alleged
defendant made misrepresentations during the parties’ earlier divorce proceeding.
Specifically, plaintiff alleged defendant fabricated an appraisal report for real estate in
China, and accordingly “misled the court.” This, he alleged, resulted in an inequitable
division of marital assets.
Defendant demurred, contending the judgment in the divorce is res judicata,
barring plaintiff’s claims, and that any claim of fraud should have been addressed in the
divorce proceeding or in an appeal from that judgment. In opposition, plaintiff contended
res judicata was inapplicable. In reply, defendant contended the fraud issue had been
raised in the divorce proceeding, and that plaintiff submitted his own evidence of
valuation, and therefore, plaintiff was barred from relitigating the division of marital
assets. A transcript from the trial in the divorce proceeding, submitted in support of the
demurrer, shows plaintiff argued defendant’s appraisal was “wrong” and that the
appraisers were “liar[s].”
The trial court’s tentative ruling on the demurrer concluded “this action is barred
by collateral estoppel. The issue presented in the Complaint (whether the Appraisal
Consulting Report was fabricated) was already litigated and necessarily decided in the
prior divorce proceedings. The court transcript demonstrates that Plaintiff argued in the
trial that Defendant’s ‘appraisal is wrong,’. . . ; Plaintiff submitted his own appraisal of
the subject property . . . ; and . . . the court considered [the] difference in the value of the
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subject property before entering judgment.” Accordingly, the trial court’s tentative ruling
was to sustain the demurrer without leave to amend. Although there is no minute order in
the record adopting the tentative as its ruling, an August 15, 2012 notice of ruling
prepared by defendant gave notice that the demurrer was sustained without leave to
amend. After the notice of ruling on the demurrer was filed and served, plaintiff filed a
request for dismissal of the entire action, without prejudice. The dismissal was entered
by the clerk on October 26, 2012.1
It is at this point that plaintiff’s appendices become hopelessly confusing.
Following the complaint, demurrer, opposition, reply, tentative ruling, and request for
dismissal are a bevy of documents, which may or may not have been filed in the divorce
proceeding, and according to the superior court’s case summary (which was not provided
by plaintiff, but procured by this court), were not filed in the case being appealed. Many
of these documents bear no file stamps, and many contain no page numbers. Among
these documents is a declaration that plaintiff appears to have submitted before trial in the
divorce proceeding, contending defendant’s appraisal report is “wrong [and] invalid.”
1 Plaintiff did not include the notice of appeal in his appellate appendices.
However, the September 24, 2012 notice of appeal was transmitted to this court by the
superior court. (Cal. Rules of Court, rule 8.100(e).) Plaintiff’s appellate appendices also
did not include the trial court’s judgment of dismissal. Plaintiff only included in the
appendices his request for dismissal, without prejudice. Neither a ruling on a demurrer
nor a voluntary dismissal is an appealable order. (Associated Convalescent Enterprises v.
Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120.) However, we later received a
copy of the judgment of dismissal, which was entered on January 31, 2013. Because
plaintiff’s notice of appeal was filed before the judgment of dismissal, it was premature.
However, we may treat a premature appeal from a nonappealable order sustaining a
demurrer without leave to amend as an appeal from the subsequent judgment of
dismissal. (Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353, fn. 5.) We note
that plaintiff’s voluntary dismissal does not divest this court of jurisdiction over his
appeal. (Bell v. Hummel (1982) 136 Cal.App.3d 1009, 1015.) Plaintiff did not address
any of these jurisdictional issues in his appellate briefs.
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There is also a motion for “retrial” dated December 8, 2011, that plaintiff apparently filed
after the trial court entered judgment in the divorce action on November 28, 2011.
Plaintiff’s table of contents lists the names of various documents with page
numbers, but only the pages in the first volume of the appendices are numbered. The
second volume contains no page numbers, and consists almost entirely of uncertified
reporter’s transcripts of proceedings in the divorce case.
Additionally, plaintiff’s opening brief contains a “certificate of interested entities
or persons,” which has numerous Chinese language attachments without certified
translations. Plaintiff’s brief contends these documents “prove” that defendant provided
misleading information during the divorce proceeding. These documents bear dates of
October 2011 and November 2011, which predate entry of judgment in the divorce, and
defendant’s motion for “retrial.”
DISCUSSION
It appears that plaintiff has attempted to prove the merits of his case on appeal by
submitting evidence in support of his claims. Plaintiff’s “Statement of Facts” in his
opening brief consists largely of arguments about how he was prejudiced in the divorce
case by the fraudulent appraisal, with few citations to the appellate appendices. He
argues the “ruling granting respondent’s demurrer . . . was wrong.” He contends “[t]he
divorce case trial judge accepted the respondent’s asset appraisal report. No [sic] this
report fraudulent issues were brought up during the trial. Besides, no [sic] any evidences
[sic] about this report fraudulent were available or provided to the court during the trial.
[¶] Appellant knew nothing about the respondent’s appraisal fraudulent activities or
evidences [sic] before, during or after the trial until Nov. 15, 2011.” Plaintiff’s briefs do
set out some basic principles of law, but then fail to apply the law to the facts.
As discussed ante, plaintiff’s appellate appendices, filed in lieu of a clerk’s
transcript, do not contain the notice of appeal, the judgment of dismissal, or the notice
electing to proceed by appendix on appeal. Although we are in possession of these
documents, from various sources, it was plaintiff’s burden to furnish them, and to have
the record augmented to include them. Moreover, the appendices contain numerous
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extraneous documents of unknown origin which are not file-stamped, and are not in any
discernible order.
It is not feasible for us to meaningfully review the trial court proceedings with this
record, and therefore, plaintiff’s appeal is fatally defective. (Cal. Rules of Court, rules
8.122(b) [appendix must contain the notice of appeal and any order appealed from],
8.124(b) [appendix must contain any item that is “necessary for proper consideration of
the issues”], 8.124(b)(1)(C) [appendix must contain the notice of election to proceed by
appendix], 8.124(b)(3)(A), (B) [an appendix must not contain “documents or portions of
documents filed in superior court that are unnecessary for proper consideration of the
issues” or “transcripts of oral proceedings that may be designated”], 8.144(a) [the
appendix must be arranged chronologically, and the pages numbered], 8.155 [procedure
for augmentation of the record on appeal].) It was plaintiff’s burden to provide an
adequate record on appeal. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Altman
v. Poole (1957) 151 Cal.App.2d 589, 593.) This burden was clearly not satisfied.
Moreover, plaintiff’s briefs are confusing and do not comply with the California
Rules of Court. (See rules 8.204(a) [appellate briefs must include argument and citation
to authority and “[p]rovide a summary of the significant facts limited to matters in the
record”], 8.204(d) [an appellate brief must not include attachments exceeding 10 pages
without leave from the presiding justice].) The briefs consist largely of accusations
which are outside the record that was before the trial court. It appears that plaintiff would
have this court consider new evidence in ruling on his appeal, without seeking leave from
the court. (Rule 8.252(c).) Moreover, few citations to plaintiff’s deficient appendices
were provided. “ ‘The reviewing court is not required to make an independent,
unassisted study of the record.’ [Citation.]” (McComber v. Wells (1999) 72 Cal.App.4th
512, 522.) This rule is the same for self-represented litigants. (Id. at p. 523.)
Plaintiff’s failure to provide a complete and accurate record and coherent
arguments makes meaningful appellate review impossible. (See Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 984-985.) We therefore treat the issues raised on appeal as waived.
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To the extent we can discern the issues despite the glaring deficiencies in the
appeal, it does not appear to us the trial court erred. A demurrer tests the legal
sufficiency of the complaint. We review the complaint de novo to determine whether it
alleges facts sufficient to state a cause of action. For purposes of review, we accept as
true all material facts alleged in the complaint, but not contentions, deductions or
conclusions of fact or law. We also consider matters that may be judicially noticed.
(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When a demurrer is sustained without
leave to amend, “ ‘we decide whether there is a reasonable possibility that the defect can
be cured by amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.’ [Citation.]” (Hahn
v. Mirda (2007) 147 Cal.App.4th 740, 745.) “The plaintiff bears the burden of proving
there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’
Service (2000) 81 Cal.App.4th 39, 43.)
Here, the complaint alleges defendant made misrepresentations in the underlying
divorce proceeding, and claims marital property was not equitably divided because of the
misrepresentations. However, collateral estoppel bars a party from relitigating any issues
necessarily included in a prior, final judgment. (Rice v. Crow (2000) 81 Cal.App.4th 725,
735.) From the materials before this court, it appears plaintiff litigated his fraud claims in
the divorce proceedings. He claimed the appraisal was “wrong” and consisted of lies
during trial, and again when he sought “retrial” following the final judgment. Moreover,
the purported fraud was discovered before the judgment was entered in the divorce, and
before plaintiff made his motion for retrial. If the divorce court had erred in ruling on
that motion, plaintiff’s sole remedy was to file an appeal, not a new case.
DISPOSITION
The judgment is affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J. RUBIN, J.
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