Qiu v. S.F. Police Department CA1/3

Filed 7/27/21 Qiu v. S.F. Police Department CA1/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
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been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
HAIQING QIU,
Plaintiff and Appellant,
A160022
v.
SAN FRANCISCO POLICE (San Francisco City & County
DEPARTMENT, Super. Ct. No. CGC19580947)
Defendant and
Respondent.
Plaintiff Haiqing Qiu, acting in propria persona, appeals
after the trial court sustained a demurrer to his complaint
without leave to amend. In essence, Qiu’s complaint alleged the
San Francisco Police Department “mistakenly” issued an
emergency protective order prohibiting him from, among other
things, coming within 100 yards of his wife, children, and the
family home. The City and County of San Francisco (the City,
erroneously sued as the San Francisco Police Department)
successfully demurred on the bases of governmental immunity
and Qiu’s failure to identify a valid theory of liability or allege
compliance with the Government Tort Claims Act (Gov. Code,
§ 810 et seq.).
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Qiu filed a notice of appeal from the order sustaining the
City’s demurrer1 and subsequently submitted an opening brief in
this court. His brief failed to comply with a number of the
California Rules of Court2 that prescribe requirements for
appellate briefs. Among other things, it contained no citations to
the record (rule 8.204(a)(1)(B) & (C)), lacked any pertinent or
intelligible legal argument (rule 8.204(a)(1)(B)), contained an
attachment that did not appear to be part of the record on appeal
(rule 8.204(d)), and did not include a certificate of interested
parties (rule 8.208). We therefore rejected it and permitted Qiu
to file a corrected, rule-compliant brief within 20 days. Our order
explicitly instructed him that the corrected brief must contain
pertinent legal argument and adequate citations to the record
and legal authority, and that failure to comply could result in
dismissal.
Qiu’s timely filed amended brief fails to correct significant
errors identified in our order. Critically, it fails to identify any
legal error in the trial court’s ruling or articulate any intelligible
legal argument supported with citation to the record and
pertinent authority. “ ‘The reviewing court is not required to
1 Although orders sustaining demurrers are not appealable,
in the interest of providing the parties with an expedient
resolution to their dispute, we exercise our discretion to deem the
order at issue to incorporate a judgment of dismissal. (See
Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013,
1019.)
2All further references to rules are to the California Rules
of Court.
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make an independent, unassisted study of the record in search of
error or grounds to support the judgment. It is entitled to the
assistance of counsel [or the litigant if, as here, the litigant
chooses to represent himself]. Accordingly, every brief should
contain a legal argument with citation to the authorities on the
points made. If none is furnished on a particular point, the court
may treat it as waived, and pass it without consideration.’ ”
(Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.) An
appellant's failure to articulate intelligible legal arguments in the
opening brief may be deemed an abandonment of the appeal
justifying dismissal. (Berger v. Godden (1985) 163 Cal.App.3d
1113, 1119.) Likewise, a failure to present arguments with
adequate and comprehensible references to the record on appeal
and citation to legal authority can result in forfeiture of any
contention that could have been raised on appeal. (Rule
8.204(a)(1)(B) & (C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229,
1246 (Nwosu).)
Qiu's brief consists largely of a subjective narrative of the
underlying events and the harm he alleges they caused,
untethered to citations to the record or legal argument. It
expresses his views, unsubstantiated in the record, that a report
he struck his wife was a “fictional plot”; that he, not his wife, was
the victim of domestic violence; and that City employees
threatened and intimidated his wife, illegally interviewed her at
their apartment, possibly falsified her signature on the protective
order, rejected her subsequent request to cancel it, and
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threatened that the government would “take over and adopt” the
couple’s children unless she renewed it.
These assertions are not supported with legal argument
and authority or citation to the record, so we decline to consider
them, and they are forfeited. We are sympathetic to the fact that
Qiu is representing himself without the benefit of an attorney
and that his understanding of English is limited, but his status
as a self-represented litigant does not exempt him from the rules
of appellate procedure or relieve his obligation to present
intelligible argument supported by the record and legal
authority. (Nwosu, supra, 122 Cal.App.4th at pp. 1246–1247.)
The trial court's judgment is presumed to be correct on appeal,
and it is the appellant’s burden to affirmatively show prejudicial
error. (Bianco v. California Highway Patrol (1994)
24 Cal.App.4th 1113, 1125.) In this case, Qiu's failure to make
such a showing through relevant legal argument supported by
adequate references to the record requires dismissal of the
appeal.
DISPOSITION
The appeal is dismissed. Each party shall bear its own
costs on appeal.
WISEMAN, J.*
WE CONCUR:
PETROU, J., ACTING P.J.
JACKSON, J.
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* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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