Monday, November 14, 2016

A cornucopia of useful citations

Image result for cornucopiaHow often are you looking for citations to basic appellate doctrines, especially when dealing with a woefully deficient (often pro-per) brief? Well, 4/1's Justice Nares provides a wealth of useful phrasings and citations in an unpublished decision today here. Enjoy the bounty of the season:

    Image result for cornucopia
  • An appellant must support the claim of error by providing an adequate record that supports the appellant's assertions of error. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
  • "It is not our place to construct theories or 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." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
  • Statements of fact not part of, nor supported by citations to, the record are improper and cannot be considered on appeal. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625, superseded on other grounds by Code Civ. Proc., § 473, subd. (b).) Accordingly, we disregard any statements of alleged fact stated in [a] brief that are not supported by a record citation. (Pulver, at p. 632; Kendall, at p. 625; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.)
  • (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [" ' "the in propria persona litigant is held to the same restrictive rules of procedure as an attorney" ' "].)
  • To the extent we are unable to discern any of her arguments because of her failure to provide a cogent statement of facts or cite to legal authority, that argument is deemed waived. (Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109.)
  • Based on this inadequate record, we cannot address the merits of this claim; therefore, [Appellant] has not carried her burden on appeal. (In re Kathy P. (1979) 25 Cal.3d 91, 102 ["appellant . . . has not met her burden of showing error by an adequate record"]; Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 ["[w]e cannot presume error from an incomplete record"]; Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955 [because "the record does not contain all the documents . . . we decline to find error on a silent record"].)
  • "Issues do not have a life of their own: if they are not raised or supported by [substantive] argument or citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 (Landry) ["[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 was deemed waived because "[a]ppellant did not formulate a coherent legal argument nor did she cite any supporting authority"].)
  • (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 ["[A]n appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record. If [s]he fails to do so, the argument is forfeited."].)
  • "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [reviewing court may disregard contentions unsupported by citation to the record]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [if no citation is furnished on a particular point, the court may treat it as waived].)
  • Absent a reporter's transcript or other record to support [Appellant's] claim of error, we must presume official duties have been regularly performed (Evid. Code, § 664), and this presumption applies to the actions of trial judges. (People v. Duran (2002) 97 Cal.App.4th 1448, 1461-1462, fn. 5; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 ["If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done."].)
  • "The burden of affirmatively demonstrating error is on the appellant." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)
  • [Appellant's] arguments are so vague and conclusory that [she] has not carried her burden on appeal to present persuasive substantive argument and analysis showing the trial court prejudicially erred. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 [conclusory claims did not persuade appellate court].)
  • We emphasize that an appellant's obligation to present legal analysis and relevant supporting authority for each point asserted are not merely technical requirements. These are important rules of appellate procedure designed to alleviate the burden on the court by requiring litigants to present their case systematically. (Landa v. Steinberg (1932) 126 Cal.App. 324, 325.)
  • " 'Where a point is merely asserted by [appellant] without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion.' " (People v. Allen (1993) 20 Cal.App.4th 846, 858.) By failing to provide an adequate record, [Appellant] cannot meet her burden to show error. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187 [argument on appeal forfeited where appellant included only selected excerpts from clerk's transcript and failed to include reporter's transcript or exhibits, preventing meaningful review].)
Also, on the topic of filing a precisely specific and accurate notice of appeal, see here.