Filed 8/29/18 Czternasty v. Vereker CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LES CZTERNASTY,

Plaintiff and Appellant,

v.

LORI VEREKER,

Defendant and Respondent.

D071887

(Super. Ct. No.

37-2012-00068094-CU-PA-EC)

APPEAL from a judgment of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed.

Les Czternasty, in pro. per., for Plaintiff and Appellant.

McDougal, Love, Boehmer, Foley, Lyon & Canlas and John E. Petze for Defendant and Respondent.

Les Czternasty, who is self-represented, appeals a judgment awarding him no damages in his personal injury action. Czternasty contends (1) without his knowledge, the special verdict form submitted to the jury was changed from the one he approved; (2) the jury engaged in guesswork in reaching its award; and (3) the judge who presided over the trial erred by receiving the verdict without requiring the jury to deliberate further. We affirm the judgment.

STATEMENT OF FACTS

Following an automobile accident, Czternasty sued Vereker, and the matter proceeded to trial. The judge who presided at trial (Judge Styn) was unavailable when the jury reached its verdict, and therefore, by the parties’ prior agreement, the special verdict form was presented to a different judge (Judge Pollack). He told the jury: “Ladies and gentlemen, we have got a little bit of a problem here. I have looked at your verdict and I see question No. 2, you state that Lori Vereker’s negligence was a substantial factor in causing harm. Then I looked at your third—the answer to your third question and you put the loss of business at zero. I am concerned about potentially the inconsistency between those two answers. So, my inclination would be to send you back to deliberate to take a look at those questions again. [¶] But, we ordinarily stop at 5:00 o’clock and it’s now two minutes of 5:00.” Afterwards, one juror told Judge Pollack, “We might have questions for Judge [Styn about] how we’re answering the questions. It might not have been clear to us. We might need to do that tomorrow.” Judge Pollack left the matter for Judge Styn to resolve the next day.

The following day, Judge Styn addressed the matter, and concluded the verdict was consistent, telling the parties outside of the jury’s presence: “The harm—the harm [the jurors] found was not the loss of business. They may have found some other harm, like—you’re right, personal injury or something, but you had the burden of proof to show that you lost the business and the value, and apparently they found otherwise. I don’t find it to be inconsistent.”

Judge Styn subsequently explained his reasoning to the jury: “Normally if you find that there was negligence and the negligence caused harm, it would follow there would be some damage. In this case, because there was no medical bill and no pain and suffering, which would kind of automatically follow, and the only claim was loss of business, it is consistent. I am not saying—I don’t make [an] opinion whether that’s the right or wrong decision, but it’s a consistent decision based on the way the evidence came in that one could find a failure to prove the value of the business or a failure to connect the injury with the loss of business. Those would be both ways one could look at the facts or you could look at it differently. But you voted 11-1 the way you did. I find that consistent. [¶] Judge Pollack, not knowing anything about the case, said it’s a little strange they found this, so there was some confusion. And, anyway, so that’s now resolved.”

I. Applicable Law

Under California Rules of Court, rule 8.204 (a)(1)(B), each brief is required to “support each point by argument and, if possible, by citation of authority.” As a general rule, “[a] judgment or order of the lower court is presumed correct [with] [a]ll intendments and presumptions . . . indulged to support it on matters as to which the record is silent.” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) To obtain reversal, the appellant must affirmatively demonstrate error on the record before the court. (Ibid.) Further, an appellate court is not required to independently search the record for errors, or “consider alleged errors where the appellant merely complains without a pertinent argument.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) “When an appellant fails to raise a point, or asserts it but fails to support it with a reasoned argument and citations to authority, we treat the point as waived.” (Benach, at p. 852.)

II. Analysis

Nowhere in Czternasty’s appellate briefs does he discuss the standard of review or applicable law regarding his contentions. In fact, the only legal citation that appears anywhere in his opening brief is to CACI No. 3900, which stated, “Les Czternasty does not have to prove the exact amount of damages that will provide reasonable compensation for harm. However, you must not speculate or guess in awarding damages.” Czternasty also fails to point to any record citation for evidence of his damages at trial. We deem his contentions forfeited for failure to support his contentions as required by the applicable rules of appellate review.

An appellate argument is not merely a rehash of arguments unsuccessful at trial, but a carefully honed assertion of legal error and resulting prejudice. The job of the appellant is to demonstrate to this court the trial court erred in specific ways that resulted in identifiable prejudice to the parties. This court will not presume prejudice; it is Czternasty’s obligation to demonstrate prejudice through reasoned arguments. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106 [“[O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice.”].) We conclude Czternasty has not overcome the presumption of the correctness of the court’s judgment. He is not excused from his obligations on appeal as a self-represented litigant. “[T]he rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985); litigants proceeding without counsel are “entitled to the same, but no greater, consideration than other litigants and attorneys.” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056.)

DISPOSITION

The judgment is affirmed. Lori Vereker is entitled to costs on appeal.

O’ROURKE, Acting P. J.

WE CONCUR:

IRION, J.

DATO, J.