Filed 3/17/20 Hamilton v. Spears 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ALBERT J. HAMILTON,

Plaintiff and Appellant,

v.

ALAN SPEARS,

Defendant and Respondent.

D073488

(Super. Ct. No. 37-2016-000-17626)

APPEAL from a judgment of the Superior Court of San Diego County, Kenneth J. Medel and Joel M. Pressman, Judges. Dismissed.

Albert J. Hamilton, in pro. per. for Plaintiff and Appellant.

No appearance by Defendant and Respondent.

Plaintiff Albert J. Hamilton, appearing in propria persona, appeals the court’s dismissal without prejudice of his malpractice action against his former appellate attorney, defendant Alan Spears. The court dismissed the complaint because, despite having multiple opportunities to do so, plaintiff failed to properly serve the summons and complaint on defendant. The defendant did not appear in the trial court and has not appeared on this appeal.

Plaintiff has failed to address the single issue before this court—the dismissal of his complaint due to lack of service. He instead asks us to independently review his conviction in the Los Angeles County superior court of a crime he committed in 2012 and the appeal of that conviction. We have no jurisdiction to review that case. Because plaintiff has failed to follow the most basic requirement of an appeal—to identify and discuss any errors of the court order from which he appeals—we dismiss this appeal.

BACKGROUND

Plaintiff filed a complaint on June 29, 2016, alleging defendant provided ineffective assistance of counsel in representing him in a criminal appeal in the Second District Court of Appeals, People v. Hamilton (Jan. 25, 2016, B260657) [nonpub. opn.] (Hamilton I). Plaintiff sought $10 million in compensatory and punitive damages.

The trial court dismissed plaintiff’s complaint without prejudice on November 9, 2017, because despite admonishment of the need to serve the complaint and continuances to do so, plaintiff had failed to file a valid proof of service of the summons and complaint. The order of dismissal is appealable as a judgment. (Code Civ. Proc., § 581d [order of dismissal constitutes judgment]; E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736, 743, fn. 6, disapproved of on other grounds by J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 655.)

Plaintiff filed his notice of appeal on January 19, 2018.

DISCUSSION

The only issue before us is the propriety of the court’s dismissal of the complaint. Plaintiff has not discussed or pointed out any error in the order of dismissal. Instead, he asks us to independently examine the entire record of his prior criminal conviction and appeal from the Los Angeles County superior court. (See Hamilton I.) We have no jurisdiction to conduct a review of his Los Angeles conviction. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5; Levinson Arshonsky & Kurtz LLP v. Kim (2019) 35 Cal.App.5th 896, 903.) And, in any event, even if that were possible, the record, trial transcripts, and appeal in the Los Angeles case are not before us and were not included in the record of the case before us. ” ‘ ” ‘ [I]t is fundamental that a reviewing court will ordinarily not consider claims . . . [that] were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court.’ ” ‘ ” (Quiles v. Parent (2018) 28 Cal.App.5th 1000, 1013.)

The trial court’s judgment is presumed correct, and plaintiff, as the appellant, has the burden to demonstrate reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) In addition to failing to present the record of the Los Angeles case, plaintiff has provided no description, argument, record citations, or legal citations to the single appealable issue of the sufficiency of service of the summons and complaint on defendant. He has not provided any reference to a valid proof of service of the summons and complaint on the defendant. California Rules of Court, rule 8.204(a)(1)(C) requires all appellate briefs to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Appellate courts may disregard any contention that is not supported by a proper citation to the record. (Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5.) We are not required to, and decline to, search through the record to determine the sufficiency of any service on the defendant. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 156; Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 181 [“It is not our responsibility to act as counsel”].) Any contention about the correctness of the trial court’s order of dismissal has been forfeited. (United Grand, at p. 156 [” ‘ “[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived” ‘ “].)

DISPOSITION

The appeal is dismissed. Plaintiff shall bear his own costs on appeal.

BENKE, Acting P. J.

WE CONCUR:

O’ROURKE, J.

IRION, J.