Filed 2/18/20 Smart v. San Dieguito Union High School District 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MERCEDES SMART,

Plaintiff and Appellant,

v.

SAN DIEGUITO UNION HIGH SCHOOL DISTRICT, et al.,

Defendants and Respondents.

D074775

(Super. Ct. No. 37-2018-00008696- CU-PO-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Affirmed.

Mercedes Smart, in pro. per., for Plaintiff and Appellant.

Winet Patrick Gayer Creighton & Hanes, Randall L. Winet and David A. Veljovich for Defendants and Respondents.

Plaintiff Mercedes Smart (Plaintiff) appeals from a judgment in favor of defendants San Dieguito Union High School District (District), Torrey Pines High School (School), Robert Coppo, Michael Santos, Robert Shockney, Sally Gervasini, Jayme Cambra (erroneously sued as Jaime Cambra), Sarah Kaye, Sarah Schirripa, and Simone Swift (together Defendants).

An appeal is not a “do over,” a “second chance,” or “another bite at the apple.” It is the appellant’s opportunity to explain specific legal errors the appellant contends the trial court committed. To this end, there are rules and procedures that must be followed—by the parties and this appellate court—for the proper and orderly disposition of civil appeals. Where an appellant fails to follow the most basic requirements of appellate briefing, the respondent is prejudiced and the court is unable to reach the merits of the appeal.

As we explain, because Plaintiff’s briefing in this appeal fails to comply with the minimum requirements under the California Rules of Court—in particular, citation to the record and the presentation of argument and supporting legal authority under California Rules of Court, rule 8.204(a) (subsequent rule references are to the California Rules of Court)—we will affirm the judgment.

I. INTRODUCTION

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); Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

Plaintiff represented herself throughout the trial court proceedings and now on appeal. In both the trial and appellate courts, the procedural rules apply the same to a self-represented party as to a party represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 (Rappleyea) [“the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation”].) “The same burdens are imposed uniformly and equally on all appellants, and self-represented parties are ‘ “held to the same restrictive procedural rules as an attorney.” ‘ ” (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344-345; accord, Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205 [“The same rules apply to a party appearing in propria persona as to any other party.”].) The fact that a party is representing herself is not a basis for special treatment that would be unfair to the other litigant(s). (Rappleyea, supra, 8 Cal.4th at pp. 984-985; McClain v. Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8).)

Thus, while Plaintiff’s self-represented status no doubt contributed to certain procedural and substantive deficiencies in both the trial and appellate courts, it does not excuse them.

II. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff initiated this action by filing a complaint against Defendants in February 2018. Plaintiff alleges that, at all relevant times, she was a student at the School, the School was “under the jurisdiction and control” of the District, and the remaining defendants were employees of the School and the District, acting within the scope of this employment.

The complaint is difficult to understand and at times incomprehensible. The first three pages are a Judicial Council form complaint for personal injury, property damage, and wrongful death. It indicates that Plaintiff is seeking money damages, according to proof, based on the following five causes of action, which are alleged in 239 numbered paragraphs contained on 39 attached typewritten pages: (1) negligence against the District, the School, Parker, and Does 1-20, based on a knee injury Plaintiff allegedly suffered at an April 1, 2016 gymnastics meet; (2) negligence against the District, the School, Parker, and Doe 1, based on an ankle injury Plaintiff allegedly suffered at a February 27, 2017 gymnastics practice; (3) slander against the District, the School, Coppo, Shockney, Cambra, and Does 1-20, based on a May 23, 2017 report to the 911 operator that allegedly communicated medical information regarding Plaintiff and a false statement that Plaintiff ” ‘HAD A LIST’ “; (4) conversion against the District, the School, Coppo, and Santos, based on these defendants’ alleged refusal, during the October 2016 – June 2017 time period, to return to Plaintiff a homework assignment she had submitted in September 2016; and (5) intentional infliction of emotional distress against the District, the School, Coppo, Gervasini, Schirripa, Parker, Kaye, and Swift, based on their allegedly “unfair treatment,” “retaliatory conduct,” and “harassing conduct” to Plaintiff.

On April 3, 2018, all Defendants except Schirripa, responded to the complaint.

In a demurrer, the District argued that the complaint and each cause of action fail to state a cause of action. More specifically, the District argued that, because it is a public entity, it cannot be sued for the five nonstatutory tort claims alleged by Plaintiff in her complaint. In addition, for the third (slander), fourth (conversion), and fifth (intentional infliction of emotional distress) causes of action, the District argued that Plaintiff failed to plead a necessary element of the cause of action being asserted. For the first cause of action (negligence, knee injury), the District also argued that Plaintiff failed to timely file with the District the statutorily required notice of the tort claim. Finally, the District also argued that, although the complaint alleges the District is a public entity, the complaint does not allege Plaintiff timely filed with the School the statutorily required notice of tort claim.

In a motion to strike, the District argued that Plaintiff erroneously sued the School, which is not an entity separate from the District, and that punitive damages cannot be recovered from a public agency like the District. More specifically, the District sought to dismiss the School as a defendant and to strike all punitive damages allegations against the District.

In a demurrer, all of the individual Defendants except Schirripa argued that the complaint and each cause of action in which they are named fail to state a cause of action. More specifically, these parties argued that, as to the first cause of action (negligence, knee injury), Plaintiff did not timely file a notice of the tort claim against the employees of the District, a public entity; and as to the third (slander), fourth (conversion), and fifth (intentional infliction of emotional distress) causes of action, Plaintiff failed to plead all of the necessary elements of the respective claim.

In a motion to strike, all of the individual Defendants except Schirripa argued that the complaint does not contain allegations of the elements necessary to recover for punitive damages. More specifically, these parties argued that all references to punitive damages should be stricken.

Finally, in a special motion to strike the third cause of action (slander), the District, Coppo, Shockney, and Cambra argued that the complaint implicates these parties’ free speech rights under the state and federal constitutions, the subject speech at issue involves a matter of public interest, and Plaintiff cannot establish the requisite probability of prevailing on the merits of her claim. More specifically, these parties argued that Plaintiff’s cause of action for slander is a SLAPP and should be stricken pursuant to Code of Civil Procedure section 425.16.

Plaintiff filed an opposition to these five responsive pleadings. It consists of six typewritten pages and 18 exhibits on 36 pages. Within the six typewritten pages, Plaintiff does not mention either of the three motions to strike (including the anti SLAPP statute), and her argument provides in full:

“Judicial policy favors resolving cases on their merits rather than through technical challenges to the pleadings. A demurrer raises issue of law, not fact, regarding the opposing party’s pleading. A court is to assume all facts pled in the complaint are true and may not consider facts asserted in memorandum supporting demurrer. [¶] . . . [¶] As described above, the Complaint in this matter is detailed and complete. Defendants[‘] reinterpretation of past events creates clear issues of fact that should be decided on their merits rather than inappropriate technical challenges to the pleadings. Accordingly, this Court should overrule Defendants’ demurrer.”

The remainder of the six typewritten pages contains 35 numbered paragraphs, each one or two sentences long, segregated by cause of action. The 35 numbered paragraphs are mostly taken directly from the complaint, and some refer to the attached exhibits. For example, under the heading for the cause of action for negligence related to the alleged ankle injury, Plaintiff’s entire opposition to the five responsive pleadings provides as follows:

“7. On February 27, 2017 MERCEDES SMART was at practice with JENNIFER PARKER and DOES l; MERCEDES SMART under the instruction of JENNIFER PARKER rolled her ankle.

“8. JENNIFER PARKER and DOES 1 walked by MERCEDES SMART as she sat on the floor in pain.

“9. JENNIFER PARKER made MERCEDES SMART continue practice on a rolled ankle. ·

“10. ROBERT COPPO was notified. ROBERT COPPO did not respond back. EXHIBIT ‘B’ ‘C’ ‘D'[ ]

“11. On August 9, 2017 MRI showed fluid in the ankle.” (Sic.)

Under the heading for the cause of action for intentional infliction of emotional distress, Plaintiff’s entire opposition consists of one numbered paragraph and reads as follows: “35. SEE EXHIBIT ‘R’.” (Sic.) Plaintiff does not attempt to authenticate or provide a foundation for any of the 18 exhibits; and some are not self-explanatory, even to the point of knowing who created the document.

In response to Plaintiff’s opposition, each group of moving defendants filed a reply. In essence, the three replies in support of the three motions to strike emphasized that Plaintiff did not file any opposition to the motions; and the two replies in support of the two demurrers argued that Plaintiff’s omnibus opposition (quoted in full, ante) was not meaningful because it suggested only that cases should be resolved on their merits without mentioning any of the substantive legal issues raised in the demurrers or the trial court’s rulings.

Following hearing on August 3, 2018, the trial court sustained with leave to amend all demurrers, granted the anti SLAPP special motion to strike the third cause of action for slander, and ruled that the traditional motions to strike were moot in light of having sustained the demurrers. The court gave Plaintiff until August 20, 2018, in which to file and serve an amended complaint. For purposes of any amended complaint, the court directed: Plaintiff may not allege punitive damages against a public entity (citing Gov. Code, § 818); Plaintiff should include as exhibits Plaintiff’s notice(s) of tort claim(s) and any response(s); and Plaintiff should plead each element of each cause of action with supporting facts.

Prior to the expiration of the deadline in which to file her amended complaint, Plaintiff timely appealed from the August 3, 2018 minute order.

The District, Coppo, Shockney, and Cambra filed a motion for prevailing defendant attorney fees under the anti SLAPP statute, Code of Civil Procedure section 425.16, subdivision (c)(1). Plaintiff filed an opposition, but did not mention or discuss the section 425.16, subdivision (c)(1), or a prevailing defendant’s entitlement to attorney fees under anti SLAPP law. The record on appeal does not contain an order on this motion, but as we explain at the end of this part II. of the opinion, post, the court ruled on the attorney fees motion in December 2018.

In mid-September 2018—almost a month after the court-ordered deadline for amending the complaint—Defendants filed an ex parte application for entry of a judgment of dismissal on the basis that Plaintiff had not filed an amended complaint. The record on appeal contains Plaintiff’s “reply” to an August 6, 2018 letter defense counsel sent to Plaintiff, although there is no indication whether Plaintiff intended this reply to be in opposition to Defendants’ ex parte application. The reply discusses notices of Plaintiff’s government tort claims and the District’s responses in this action and contains copies of such documents, but was nonresponsive to the pending ex parte application. At a hearing in late September 2018, the court granted Defendants’ ex parte application and directed entry of judgment in favor of Defendants.

Consistent with its minute order from the ex parte hearing, the court filed a judgment of dismissal with prejudice as to Defendants on September 25, 2018. On October 2, 2018, Plaintiff timely filed an amended notice of appeal from both the August 3 minute order on Defendants’ responses to Plaintiff’s complaint and the September 25 judgment of dismissal.

The record on appeal contains a December 28, 2018 amendment to the September 2018 judgment. The amendment indicates that, in mid-December the court granted in part the motion for prevailing defendant attorney fees under anti SLAPP law, awarding the moving parties $7,000. The amendment was filed almost three months after Plaintiff’s amended notice of appeal.

III. DISCUSSION

The rules found in Division 1 of Title 8 of the California Rules of Court—i.e., chapters 1 – 12, which contain rules 8.1 – 8.717—are “the Appellate Rules” (rule 8.1) and apply to “[a]ppeals from the superior courts” (rule 8.4(1)) like Plaintiff’s appeal here. Because Plaintiff’s briefs do not comply with the minimum required standards under these rules, we, as an appellate court, are unable to review the trial court’s rulings in order to determine whether the court prejudicially erred. Thus, Plaintiff has not met her burden of establishing reversible error, and we will affirm the judgment.

A. Rules 8.204(a)(2)(C) & 8.204(a)(1)(C)

Under rule 8.204(a)(2)(C), an appellant is required to provide in her opening brief “a summary of the significant facts limited to matters in the record.” Consistently, under rule 8.204(a)(1)(C), all appellate briefs must “[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.”

Pursuant to these rules, “appellate courts may ‘ “disregard any factual contention not supported by a proper citation to the record” ‘ ” and may ” ‘ “ignore” ‘ factual statements without record references.” (Fierro v. Landry’s Restaurant Inc. (2019) 32 Cal.App.5th 276, 281, fn. 5, citing rule 8.204(a)(1)(C) (Fierro); accord, City of Hesperia v. Lake Arrowhead Community Services Dist. (2019) 37 Cal.App.5th 734, 740, fn. 1; McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947 (McOwen) [“Statements of fact that are not supported by references to the record are disregarded by the reviewing court.”].) That is because ” ‘ “[t]he appellate court is not required to search the record on its own seeking error.” ‘ ” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 156 (United Grand).)

To the extent that a party’s argument is thereafter unsupported by sufficient facts, we deem the argument to be forfeited. (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 28 (Stover); United Grand, supra, 36 Cal.App.5th 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” ‘ “]; Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 248 [same]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589 (Alki Partners) [“An appellant who fails to cite accurately to the record forfeits the issue or argument on appeal that is presented without the record reference.”].)

Plaintiff’s opening brief on appeal consists of an Introduction, a Statement of the Case, a Statement of Appealability, a Statement of Facts, an Argument, and a Conclusion.

The Introduction contains eight pages and tells the story of Plaintiff’s four-year high school experience at the School—in particular, related to Plaintiff’s participation in dance, gymnastics, and track. The only record references are in the last paragraph, and there are only three. Two of the references are to one page of the complaint; and the third reference is to 46 pages of the clerk’s transcript that contain exhibits B-D of Plaintiff’s response to defense counsel’s declaration in support of Defendants’ ex parte application to enter a judgment of dismissal.

The Statement of the Case is eight and a half pages. It summarizes the allegations in the complaint (four pages) with an occasional record reference—some to the complaint, some to later documents. It describes conversations (almost five pages) among and between the court, Plaintiff, her mother, and defense counsel without any record references for the communications. It contains Plaintiff’s editorial comments to events in the litigation without any record references.

The Statement of Appealability is one paragraph and contains no record references.

The Statement of Facts consists of one page of single-spaced typing. It contains some record references but, with two exceptions, they do not cite to the complaint or to any of the evidence or pleadings that were before the court at the time it sustained the demurrers with leave to amend and granted in part the motions to strike.

The Argument is three pages and contains two one-page record references. The documents located at those references are copies of two of the District’s August 2017 responses to Plaintiff’s notices of tort claims. One refers to and rejects Plaintiff’s July 31, 2017 notice of the claim related to Plaintiff’s ankle injury, and the other refers to and returns as untimely Plaintiff’s August 21, 2017 notice of claim. They are exhibits to Plaintiff’s September 2018 reply in opposition to Defendants’ ex parte application for entry of a judgment of dismissal.

The Conclusion is one page and understandably does not contain any record references.

We agree with Defendants; they have been prejudiced by Plaintiff’s failure to provide sufficient and accurate record references. Likewise, as a result of this deficiency, we have no verification of what preceded the judgment on appeal. Accordingly, we have disregarded all of Plaintiff’s factual statements that are not supported by a proper record reference. (Fierro, supra, 32 Cal.App.5th at p. 281, fn. 5; McOwen, supra, 153 Cal.App.4th at p. 947.) By therefore leaving us with virtually no proper presentation of any facts, Plaintiff has necessarily forfeited any argument she has attempted to make. (United Grand, supra, 36 Cal.App.5th at p. 156; Stover, supra, 12 Cal.App.5th at p. 28; Alki Partners, supra, 4 Cal.App.5th at p. 589.)

B. Rule 8.204(a)(1)(B)

Pursuant to rule 8.204(a)(1)(B), all appellate briefs must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.”

” ‘[T]he provisions of this rule are not mere technical requirements, but are prescribed for the purpose of facilitating disposition of cases upon appeal and directing the court’s attention to the specific errors of law alleged to have been committed by the trial court. Not only must an appellant raise the point in his brief properly but he must point out the error specifically showing accurately wherein the lower court’s action is deemed erroneous.” (Devers v. Greenwood (1956) 139 Cal.App.2d 345, 352 [under former rule 15(a)].) Where an appellate party fails to comply with these requirements, the party has not properly briefed its contentions on appeal; and ” ‘we need not address contentions not properly briefed.’ ” (Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248, fn. 6 (Winslett).)

” ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment.’ ” (Horowitz v. Noble (1978) 79 Cal.App.3d 120, 139 (Horowitz); Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 181 (Pizarro) [“It is not our responsibility to act as counsel . . . and attempt to arrange his arguments coherently.”].) For this reason, ” ‘every brief should contain a legal argument with citation of authorities on the points made’ “; and ” ‘[i]f none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’ ” (Horowitz, at p. 139; accord, Pizarro, at p. 181 [“failure to provide coherent organization to [appellant’s] arguments forfeits consideration of those arguments on appeal”]; County of Butte v. Emergency Medical Services Authority (2010) 187 Cal.App.4th 1175, 1196, fn. 7 [where a “contention is not supported by citation to any legal authority,” it “is thus forfeited as improperly presented”].)

As we introduced at part III.A., ante, the Argument section in Plaintiff’s opening brief is three pages and repeats Plaintiff’s version of the facts as to how Defendants mistreated her without presenting a single legal argument that supports a claim of reversible error by the trial court. Although Plaintiff includes what appear to be the titles of three court cases in this section of her brief, she does not provide any case citations. Moreover, two of them follow statements of fact, and the third follows an issue—”privacy rights”—that have nothing to do with the causes of action alleged in the complaint:

• “[Plaintiff] gave her senior speech on how [the] School staff members torment her for 4 years and [the] District allowed it. (Tinker v Des Moines Independent School District (1969).” (Sic.)
•
• “Judge Sturgeon granted the anti-slapp and order [Plaintiff] to pay [D]efendants . . . $7,000. (Ingraham v Wright (1977)” (Sic.)
•
• “[Defendants] violated [Plaintiff’s] privacy rights when they conduct an investigation in which they knew without any doubt as not true and pulled [Plaintiff’s] medical records. (New Jersey v T.L.O).” (Sic.)
•
Absent the benefit of a legal argument with the citation of applicable legal authorities, we have nothing to consider in this appeal. We are not Plaintiff’s counsel, and we have no obligation to search the record for potential prejudicial error. (Pizarro, supra, 10 Cal.App.5th at p. 181; Horowitz, supra, 79 Cal.App.3d at p. 139.) Having presented no legal arguments and having cited no potentially applicable legal authority, Plaintiff forfeited any right she otherwise may have had to appellate consideration of her position. (Winslett, supra, 26 Cal.App.5th at p. 248, fn. 6; Pizarro, at p. 181; Horowitz, at p. 139.)

C. Conclusion

Due to Plaintiff’s failure both to provide the required summary of facts with accurate record references and to present a coherent legal argument supported by applicable authority as required by rule 8.204(a), Plaintiff forfeited appellate review of the trial court’s judgment. Stated differently, by the briefs she submitted in support of her appeal, Plaintiff did not meet her burden of establishing reversible error. (See Jameson, supra, 5 Cal.5th at p. 609.)

This decision is not intended to punish Plaintiff because she is not a lawyer. However, Defendants as the opposing parties and we as the court are entitled to know exactly what happened in the trial court and why, based on applicable law, Plaintiff contends the trial court erred. There are rules and procedures for the resolution of such appeals, but Plaintiff did not follow them here. In short, we know that Plaintiff does not like the judgment, but we do not know on what basis Plaintiff believes the court committed prejudicial error.

IV. DISPOSITION

The judgment is affirmed. In the interests of justice, the parties shall bear their own costs on appeal. (Rule 8.278(a)(5).)

IRION, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DATO, J.