Schulz v. Wulfing

California Court of Appeal Jun 14, 1967 No. Civ. 11339Published

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Holding. The court affirmed the judgment for defendants, holding that the appellant's failure to provide appropriate record references in his brief as required by California Rules of Court constituted a waiver of the assigned errors. The court further imposed a monetary sanction on the appellant's attorney for filing a frivolous appeal and disregarding established court rules.

Issues

Whether the trial court's findings of fact were supported by the evidence.
Whether the appellant's failure to provide record references in his brief constitutes a waiver of the assigned errors.
Whether the appeal is frivolous and warrants the imposition of sanctions under California Rules of Court.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In the Haynes case our holding was to the effect that a disregard of this rule by appellant’s counsel is deemed to be a waiver of the error assigned.”

“This appeal is frivolous.”

THE COURT.

The appeal is by plaintiff Walter J. Schulz from a judgment in favor of both defendants after a court trial.

The complaint filed was in two counts. One was against defendant Wulfing. It appears that both plaintiff and defendant Wulfing are licensed real estate brokers and the first count of the complaint is based upon an alleged contract between the two to share a commission upon the sale of certain real property. Although plaintiff at the outset of his brief on appeal does not inform the court of this fact, that commission

was

shared and the argument on appeal does not even attempt any contention regarding that cause of action.

The second asserted cause of action is based upon a claim of fraud in which both compensatory and punitive damages are sought. We gather from the briefs filed that the asserted fraud has some connection with a transaction stated by the plaintiff to be a sale to parties named Seaton of a one-half interest in a motel to be constructed. (The brief of defendant TraveLodge refers to it as a joint venture between TraveLodge and the Seatons.)

Plaintiff is represented by attorney Ralph E. Kingston, who was also his attorney at the trial of the action and who has written a 36-page brief. Its theme is that the findings of fact of the trial court are not supported by the evidence. That is the sole contention.

In writing the plaintiff’s brief said attorney gives lip service to the elementary rule that all presumptions and ‘intendments must be resolved by a reviewing court in favor of the trial court’s findings and that error must be affirmatively established.

(Crawford

Southern Pacific Co.,

3 Cal.2d 424 [45 P.2d 183].) This rule having been so recognized, plaintiff’s counsel proceeds to ignore it.

[778]

On January 26, 1967, this court filed its decision in

Schulz v. Wulfing

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THE COURT.

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