Utz v. Aureguy

California Court of Appeal Mar 19, 1952 No. Civ. 14726Published

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Holding. The court affirmed the judgment of dismissal because the appellant failed to provide an adequate record to demonstrate error and failed to present argument or authority in the opening brief challenging the dismissal.

Issues

Whether a judgment of dismissal can be reversed when the appellant fails to provide a record of the evidence considered by the trial court.
Whether an appellant abandons an appeal by failing to present argument or authority in the opening brief regarding the grounds for dismissal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is incumbent upon the appellant to make it affirmatively appear that error was committed by the court below.”

“The superior court has inherent power to dismiss actions which are made to appear fictitious and sham.”

[805]

THE COURT.

This is an appeal on the judgment roll from a judgment dismissing the action.

The record consists of the third amended complaint; notice of motion to amend the same, and the amendment; motion to dismiss; demurrer to third amended complaint and to the amendment thereto; points and authorities; order of substitution ; judgment; notice of appeal, and request for transcript.

The motion to dismiss the action was made on the grounds that “As originally begun with the filing of the complaint herein, the action was sham and based on false allegations” and the first, second and third amended complaints were “likewise sham and based upon false allegations”; that the filing of the third amended complaint and its amendment, and the maintenance of the action, “were and are an abuse of the process of the court by the plaintiff,” and that “the interests of justice will be served by the dismissal ...” The motion was based on four affidavits theretofore filed by defendants, and all the records, papers and pleadings, including the original complaint, the first, second and third amended complaints, the amendment to the latter, the demurrers and answers thereto, the motions to strike, and a deposition of the plaintiff.

Appellant, an attorney at law, sued for damages arising from being deprived of what she claimed to be her share in attorney fees recovered by respondents, from certain heirs of the late Michael P. O ’Dea, whose estate—of large value—was in probate.

The judgment recites that after full argument on the motion and demurrer, the motion was granted and the demurrer sustained without leave to amend.

The Record on Appeal

Although the motion to dismiss was based on (a) defendants’ four affidavits, (b)

all

the pleadings in the ease, and (c) a deposition of the plaintiff, this record contains none of them save the third amended complaint and its amendment and the demurrer thereto. Indeed the request for a transcript called for none of them; it called for the notice of appeal, the notice of motion and the motion to substitute a party, the order granting such motion, and for nothing else.

Utz v. Aureguy

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THE COURT.

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