Wilber v. Manzer CA2/6

Filed 1/3/23 Wilber v. Manzer CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX
RON WILBER, 2d Civil No. B315149
(Super. Ct. No. 56-2020-
Plaintiff and Appellant, 00544758-CU-PO-VTA)
(Ventura County)
v.
DAN MANZER et al.,
Defendants and
Respondents.
Ron Wilber appeals in propria persona from a judgment
dismissing his first amended complaint with prejudice.
Appellant submitted an opening brief but not a reply brief.
Because his opening brief completely fails to comply with the
rules of appellate procedure, we affirm.
Factual and Procedural Background
In his opening brief appellant states, “This is a
commercial/industrial, tenant v. landlord case . . . .” Appellant
was the tenant and respondents were the landlord. The lease
describes the premises as “[a]n approximate 1,375 square foot
industrial unit which is part of a larger multi-tenant industrial
building.”
In November 2020 appellant filed a first amended
complaint against respondents. It consists of eight causes of
action: fraud, assault, negligence, intentional/negligent infliction
of emotional distress, elder abuse, unlawful attempt to evict,
defamation, and pursuing eviction proceedings during
California’s Covid-related eviction moratorium.
Respondents filed an anti-SLAPP motion to strike all eight
causes of action. (Code Civ. Proc., § 425.16.)1 The trial court
granted the motion as to some of appellant’s claims. As to the
remaining claims, the court granted respondents’ motion for
judgment on the pleadings with leave to amend. But appellant
never filed an amended pleading.
Respondents moved to dismiss the action pursuant to
section 581, subdivision (f)(2), which provides, “The court may
dismiss the complaint . . . when . . . after a demurrer to the
complaint is sustained with leave to amend, the plaintiff fails to
amend it within the time allowed by the court and either party
moves for dismissal.” Respondents’ motion for judgment on the
pleadings was “equivalent to a demurrer.” (Kapsimallis v.
Allstate Ins. Co. (2002) 104 Cal.App.4th 667, 672.) The court
dismissed the action with prejudice.
Rules of Appellate Procedure
“‘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, and error
must be affirmatively shown. . . .’” (Denham v. Superior Court
1All statutory references are to the Code of Civil
Procedure.
2
(1970) 2 Cal.3d 557, 564 (Denham).) “To demonstrate error,
appellant must present meaningful legal analysis supported by
citations to authority and citations to facts in the record that
support the claim of error. [Citations.]” (In re S.C. (2006) 138
Cal.App.4th 396, 408.) “When an issue is unsupported by
pertinent or cognizable legal argument it may be deemed
abandoned and discussion by the reviewing court is unnecessary.
[Citations.]” (Landry v. Berryessa Union School Dist. (1995) 39
Cal.App.4th 691, 699-700; see also Gunn v. Mariners Church, Inc.
(2008) 167 Cal.App.4th 206, 217-218 [“‘an appellant must present
a factual analysis and legal authority on each point made or the
argument may be deemed waived’”].) “Hence, conclusory claims
of error will fail.” (In re S.C., supra, at p. 408.)
The California Rules of Court (Rules) provide: “An
appellant’s opening brief must . . . [p]rovide a summary of the
significant facts limited to matters in the record.” (Rule
8.204(a)(2)(C).) Each factual reference must be supported “by a
citation to the volume and page number of the record where the
matter appears.” (Rule 8.204(a)(1)(C).)
The Rules require that a brief “[s]tate each point under a
separate heading or subheading summarizing the point . . . .”
(Rule 8.204(a)(1)(B).) “This is not a mere technical requirement;
it is ‘designed to lighten the labors of the appellate tribunals by
requiring the litigants to present their cause systematically and
so arranged that those upon whom the duty devolves of
ascertaining the rule of law to apply may be advised, as they
read, of the exact question under consideration, instead of being
compelled to extricate it from the mass.’ [Citations.]” (In re S.C.,
supra, 138 Cal.App.4th at p. 408.) “The failure to head an
argument as required by California Rules of Court, rule
3
[8.204(a)(1)(B)] constitutes a waiver. [Citations.]” (Opdyk v.
California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830,
fn. 4.)
Appellant’s Failure to Comply with
Rules of Appellate Procedure
Appellant’s opening brief includes a 13-page statement of
facts. The statement does not “[p]rovide a summary of the
significant facts limited to matters in the record.” (Rule
8.204(a)(2)(C).) The great bulk of the facts are outside of the
record. “In reaching a decision on appeal an appellate court is
governed by the record; [it] will not consider facts having no
support in the record; and will disregard statements of such facts
set forth in a brief.” (Oldenkott v. American Electric, Inc. (1971)
14 Cal.App.3d 198, 207.)
Appellant’s argument consists of approximately one page.
The only heading is “ARGUMENT.” Appellant does not “[s]tate
each point under a separate heading or subheading summarizing
the point.” (Rule 8.204(a)(1)(B).) There is no “meaningful legal
analysis supported by citations to authority and citations to facts
in the record that support [appellant’s] claim of error.” (In re
S.C., supra, 138 Cal.App.4th at p. 408.) The only authority cited
is section 425.16. The argument does not contain a single
citation to the record. “We are not bound to develop appellant[’s]
arguments for [him]. [Citation.] The absence of cogent legal
argument or citation to authority allows this court to treat the
contentions as waived.” (In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 830.)
“[Appellant] is not exempt from the foregoing rules because
he is representing himself on appeal in propria persona. Under
the law, a party may choose to act as his or her own attorney.
4
[Citations.] ‘[S]uch a party is to be treated like any other party
and is entitled to the same, but no greater consideration than
other litigants and attorneys. [Citation.]’ [Citation.] Thus, as is
the case with attorneys, pro. per. litigants must follow correct
rules of procedure. [Citations.]” (Nwosu v. Uba (2004) 122
Cal.App.4th 1229, 1246-1247.)
Because appellant failed to comply with the rules of
appellate procedure, he has not overcome the presumption that
the judgment is correct. (Denham, supra, 2 Cal.3d at p. 564.)
Disposition
The judgment is affirmed. Respondents shall recover their
costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
5
Mark S. Borrell, Judge
Superior Court County of Ventura
______________________________
Ron Wilber, in pro. per., for Plaintiff and Appellant.
The Safarian Firm and Harry A. Safarian, Christina S.
Karayan, Kitty Xie, for Defendants and Respondents.