Cosenza v. Kramer

[1102]

Opinion

KING, J.

Dr. Barry Kramer appeals from a judgment in favor of James Cosenza arising from Cosenza’s performance of roofing work on Kramer’s residence, which was completed in February of 1978. When Kramer refused to pay Cosenza the balance owing of $1,450, Cosenza, on September 21, 1978, sued Kramer in municipal court. Kramer filed a cross-complaint for breach of contract and fraud alleging damages in excess of the jurisdiction of the municipal court, which required the case to be transferred to the superior court. After trial, a judgment was entered in favor of Cosenza on the complaint and against Kramer on the cross-complaint.

Kramer’s appeal is on a partial clerk’s transcript. He contends that the evidence established his entitlement to judgment as a matter of law. This contention is not cognizable on an appeal on a partial clerk’s transcript; the evidence is conclusively presumed to support the judgment.

(Ford

v.

State of California

(1981) 116 Cal.App.3d 507, 513 [172 Cal.Rptr. 162]; 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 240, 400, pp. 4232, 4368.)

Kramer also claims that he was entitled to judgment because Cosenza failed to plead and prove that he was a licensed contractor (see Bus. & Prof. Code, § 7031). This claim also is not cognizable, as Kramer has not included in the clerk’s transcript a copy of the complaint showing the alleged pleading defect, and the alleged failure of proof is not shown in a reporter’s transcript. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 373, p. 4345.) Further, any pleading defect was almost certainly waived and/or cured by subsequent pleadings and proof. (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, §§ 653, 837, pp. 2278-2279, 2443.)

The foregoing discussion demonstrates that this appeal “indisputably has no merit” and was taken solely for delay.

(In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 650 [183 Cal.Rptr. 508, 646 P.2d 179].) On our own motion we issued to both Kramer and his counsel an order to show cause why sanctions should not be imposed pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 26(a).