Beltz v. Brown CA1/4

Filed 2/27/13 Beltz v. Brown CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION FOUR

ELLIN BELTZ,

Plaintiff, Cross-Defendant,

Respondent. A132047

v. (Humboldt County

JUSTIN HOBART BROWN, Super. Ct. No. DR080097)

Defendant, Cross-Complainant,

Appellant.

I.

INTRODUCTION

In this real estate dispute, respondent Ellin Beltz (Beltz) filed a complaint against

appellant Justin Hobart Brown (Brown) for specific performance of a contract for sale of

real property. Brown answered and filed a cross-complaint against Beltz alleging

numerous causes of action, including one to recover the fair rental value of the real

property which he claimed Beltz “wrongfully occupied.” Brown appeals from a

judgment following a court trial in which the court declined to rule in favor of either

party, and concluded that each party should bear his or her own attorney fees and costs.

On appeal, Brown makes numerous contentions, challenging both the trial court’s

procedural and substantive rulings. We conclude Brown has waived his contentions on

appeal because he has: (1) not provided an adequate record for us to review his

contentions; (2) not provided required citations to the record on appeal in support of his

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assertions of fact and procedure; and (3) made insufficient substantive legal analysis in

support of his contentions. Consequently we affirm the judgment.

II.

FACTS AND PROCEDURAL HISTORY

We first point out that this court has no reporter’s transcript of the proceedings

below. Instead, Brown has decided to proceed by settled statement, which was received

by this court on December 14, 2011. (See California Rules of Court, rule 8.137.) The

settled statement does not contain a factual summary; therefore, we have attempted to

piece together the facts pertinent to Brown’s contentions on appeal from various

documents provided in the clerk’s transcript.

On November 21, 2007, the parties executed a document entitled “Real Estate and

Business Purchase Contract” (the contract) for the sale/purchase of real property,

personal property and intellectual property. The real property is the Hobart Brown

Gallery (the Gallery) at 393 Main Street, Ferndale, California. The contract price was

$225,000. Brown is the son of Hobart Brown, deceased, and he signed the contract as

trustee of the Hobart Brown Living Trust. Brown’s sister, Emily Thompson, signed the

contract as a beneficiary of the trust. The contract specifically grants to Beltz possession

of the property in return for her operation of the Gallery and payment of the “existing

first mortgage . . . current property taxes, insurance, repairs and maintenance.” In the

event of a dispute, the contract also contains a standard attorney fees provision. When

the Gallery was sold to Beltz, it was encumbered by substantial liens, including $13,000

in past due realty taxes and $57,000 owed to the Small Business Administration.

Pursuant to the contract, Beltz took possession of the Gallery and operated it

commencing November 24, 2007. However, when it came time to execute the required

escrow documents, Brown refused because of a disagreement about specified artwork and

personal property that had been in Beltz’s possession due to her operation of the Gallery.

These items are listed in a document referred to as Exhibit A.

On January 31, 2008, Beltz filed a suit for specific performance of the parties’

contract. On September 8, 2008, Brown filed a cross-complaint against Beltz seeking,

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among other things, the fair rental value of the property, which he claimed was being

“wrongfully occupied” by Beltz.

Trial commenced on January 20, 2009. However, on January 8, 2009, shortly

before trial, the real property which was the subject of the parties’ dispute was foreclosed

upon by third-party creditors. On January 28, 2009, the trial court granted Beltz’s

motion, over Brown’s objection, to consolidate the complaint and cross-complaint for

trial.

Trial resumed on May 11, 2010, almost 18 months later. The delay was caused by

Brown’s attempt to retain new counsel, among other reasons. At trial, Beltz presented

evidence that she operated the Gallery to the best of her ability and that she made all of

the payments required under the contract. Nevertheless, she sustained a financial loss in

her operation of the Gallery. When the property was foreclosed upon, she vacated the

premises and did not take any of the personal property or art owned by the Brown trust.

After a nonjury trial, the court issued a statement of decision. Although the

statement of decision addressed a myriad of issues, we highlight only those findings that

are pertinent to the issues Brown raises on appeal.

First, the court found Beltz’s complaint for specific performance was moot. The

court reasoned: “Due to no fault of [Beltz], on January 8, 2009, the property which was

the subject of the Complaint for Specific Performance was foreclosed and acquired at

foreclosure by [a third-party purchaser], rendering that issue moot. The duty of the court

is to decide actual controversies, not to give opinions on moot questions or abstract issues

[citation].”

With respect to the allegations made in Brown’s cross-complaint that Beltz was in

“wrongful and unlawful possession” of the property, entitling Brown to damages

equivalent to “the value of such lost use,” the court made the following pertinent

findings: “Beltz was entitled to possession of the property (“Gallery”) between

November 24, 2007 and January 23, 2008 [sic][1] because Beltz was put into possession

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As Brown acknowledges, the date should be January 2009, not 2008.

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by permission of the then owners of the property, Brown as Trustee and Brown and his

sister, Emily Thompson, as beneficiaries of the Hobart Brown Living Trust.” (CT 328)~

The court went on to find that “[t]heir permission did not require payment of rent and

Beltz met the conditions of their permission such as payments for repairs, insurance,

utilities, mortgage, property taxes, and Gallery management.”

The court entered a judgment on November 16, 2010, concluding that Beltz “shall

have and recover nothing on her Complaint” and that Brown “shall have and recover

nothing on his Cross-Complaint.” The court further stated that “there is no prevailing

party in this action and all parties shall bear their own attorney’s fees and costs.” This

appeal followed.

III.

DISCUSSION

In his appeal, Brown raises four issues. The first two issues are procedural. As to

the procedural challenges, Brown claims the court erred in: (1) consolidating the

complaint and cross-complaint for trial; and (2) refusing Brown’s request that the court

address a number of specified issues in its statement of decision. As to the two

substantive issues raised, Brown claims the court erred in: (3) finding that the issue of the

enforceability of the contract was rendered moot by the foreclosure and that Brown had

no right to recover the rental value of the real property; and (4) failing to declare Brown

the prevailing party entitled to attorney fees.

However, in advancing these arguments, Brown’s opening and reply briefs

demonstrate a profound misunderstanding of the function and power of a reviewing

court. As has been explained numerous times: “It is a fundamental rule of appellate

review that the judgment appealed from is presumed correct and ‘ “ ‘all intendments and

presumptions are indulged in favor of its correctness.’ ” [Citation.]’ [Citation.] An

appellant must provide an argument and legal authority to support his contentions. This

burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not

have a life of their own: If they are not raised or supported by argument or citation to

authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or

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arguments to undermine the judgment and defeat the presumption of correctness. When

an appellant fails to raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as waived. [Citation.]” (Benach v.

County of Los Angeles (2007) 149 Cal.App.4th 836, 852; accord, Dietz v. Meisenheimer

& Herron (2009) 177 Cal.App.4th 771, 799.) It is also incumbent upon the appellant, by

citation to admissible evidence in the record, to establish error by the trial court.

(Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 (Guthrey).)

Furthermore, it is the duty of counsel to refer the reviewing court to the portions of the

record that support appellant’s contentions on appeal, failing which the court may treat

the point as waived. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 862.)

Brown first claims the court’s consolidation of the complaint and cross-complaint

for trial, over his objection, “was untimely and an abuse of discretion.” The quoted

portion of this sentence comprises the sum total of Brown’s argument on this point. We

conclude Brown has waived this contention. (See McComber v. Wells (1999) 72

Cal.App.4th 512, 522 [“ ‘[E]very brief should contain a legal argument with citation of

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’ ”]; Landry v. Berryessa Union

School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“[w]hen an issue is unsupported by

pertinent or cognizable legal argument it may be deemed abandoned and discussion by

the reviewing court is unnecessary”]; Ochoa v. Pacific Gas & Electric Co. (1998) 61

Cal.App.4th 1480, 1488, fn. 3 [contention deemed waived because “[a]ppellant did not

formulate a coherent legal argument nor did she cite any supporting authority”]; Colores

v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 [“[t]he dearth of true legal

analysis in her appellate briefs amounts to a waiver of the [contention] and we treat it as

such”].)

Brown next complains that the trial court abused its discretion in refusing to

resolve specified issues posed by Brown when the court rendered its final statement of

decision. By way of background, after the court issued its tentative statement of decision

on September 28, 2010, Brown served a request for statement of decision on October 7,

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2010. In his request, Brown asked that the court address 20 specified issues. Most of

these issues involved the testimony of particular witnesses, with Brown asking the court

to make individual credibility determinations on specified portions of their testimony.

The court denied Brown’s request, finding “[i]t is unnecessary and improper for the court

to make findings of evidentiary facts in a Statement of Decision.”

The court’s ruling is supported by law. Code of Civil Procedure section 632

requires the court to explain the factual and legal basis for each of the principal

controverted issues involved in the case. (Muzquiz v. City of Emeryville (2000) 79

Cal.App.4th 1106, 1124.) However, to fulfill its obligation under Code of Civil

Procedure section 632, “a trial court rendering a statement of decision is required only to

set out ultimate findings rather than evidentiary ones.” (Id. at p. 1125.) Consequently,

the court is “not required to address how it resolved intermediate evidentiary conflicts, or

respond point by point to the various issues posed in appellant’s request for a statement

of decision. [Citations.]” (Id. at p. 1126, original italics.)

The trial court’s statement of decision dealt with the principal issues presented in

Brown’s complaint and in Beltz’s cross-complaint, and the ultimate facts relevant to the

court’s findings. With respect to the issues identified by Brown that the trial court did

not address, Brown makes no effort to show how these issues were material in light of the

court’s express findings. Brown also has failed to provide any argument or authority to

show that the trial court’s failure to address these issues constituted reversible error.

Therefore, the argument is forfeited. (Guthrey, supra, 63 Cal.App.4th at pp. 1115-1116

[appellate court may deny claim on appeal that is unsupported by argument which applies

general legal principles to the particular facts of the case on appeal].)

Next, Brown makes a wide-ranging challenge to a number of the court’s

substantive findings. The challenged findings are as follows: That “[d]ue to no fault” on

Beltz’s part “the property which was the subject of the Complaint for Specific

Performance was foreclosed and acquired at foreclosure by [a third party], rendering

[Beltz’s claim for specific performance] moot.” The court also found that Beltz fulfilled

all of her obligations under the contract “such as payments for repairs, insurance, utilities,

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mortgage, property taxes, and Gallery management” and that she was under no obligation

to pay rent.

Contrary to the trial court’s findings, Brown claims that the foreclosure was

indeed Beltz’s fault because she failed to fulfill certain obligations under the parties’

contract, including her agreement to “pay the monthly payment for the existing first

mortgage” and to “manage all aspects of the property.” Brown further claims that

because Beltz “could not prove the existence of a contract, her occupancy and control of

the real property was wrongful, and she owes [Brown] rent for her 13 months in

occupancy and attorneys’ fees . . . .” Additionally, Brown argues that he should have

been declared the prevailing party entitled to attorney fees “for having to defend [Beltz’s]

bad faith, frivolous action.”

However, these arguments are perfunctorily set forth in a conclusory fashion, with

no attempted development through factual and legal analysis. Such practice runs afoul of

the requirement under California Rules of Court, rule 8.204(a)(1)(B) that an appellant

support each point by argument and, if possible, citation to authority. (In re Marriage of

Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or

citation to authority allows this court to treat the contentions as waived”]; see T.P. v. T.W.

(2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that

“is not stated under a separate heading, is not sufficiently developed, and is unsupported

by citation to authority”].)

Moreover, a reviewing court begins with the presumption that the record contains

evidence of every finding of fact by the trial court. (Foreman & Clark Corp. v. Fallon

(1971) 3 Cal.3d 875, 881.) Appellants arguing the lack of substantial evidence “ ‘are

required to set forth in their brief all the material evidence on the point and not merely

their own evidence.’ ” (Ibid., original italics; Clark v. Superior Court (2011) 196

Cal.App.4th 37, 53, original italics.) A failure to set forth all the material evidence is a

forfeiture of the point on appeal. (Clark v. Superior Court at p. 53.)

Brown here presents only one side of the facts and issues. While he assures us

that “[a]mple evidence was placed before [the] trial court to support [his] contentions,” he

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has failed to provide this court with a reporter’s transcript or the exhibits presented at

trial. The appellant has the burden to provide an adequate record on appeal to allow the

reviewing court to assess the purported error. (Maria P. v. Riles (1987) 43 Cal.3d 1281,

1295; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

If the record on appeal does not contain all of the evidence submitted to the trial court, a

reviewing court will “decline to find error on a silent record, and thus infer that

substantial evidence” supports the trial court’s findings. (Haywood v. Superior Court

(2000) 77 Cal.App.4th 949, 955.) Without a reporter’s transcript or the exhibits

presented at trial, we cannot undertake a meaningful argument of Brown’s arguments on

appeal challenging the trial court’s substantive findings; and we must infer they are fully

supported by the evidence. (See, e.g., Foust v. San Jose Construction Co., Inc. (2011)

198 Cal.App.4th 181, 186-189.)

IV.

DISPOSITION

The judgment is affirmed. Beltz is awarded her costs on appeal.

_________________________

RUVOLO, P. J.

We concur:

_________________________

REARDON, J.

_________________________

RIVERA, J.

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