Olender v. Burnside

MARKS, J. This is a motion to dismiss the appeal or place the case on the “Ready for Submission Docket”, on the ground that the appeal is taken for delay only and is frivolous, and that the grounds of appeal presented in appellants’ opening brief are so unsubstantial as not to need further argument.

In the argument made in support of the motion there are frequent references to the transcript. We cannot decide the motion without examining the record on appeal.

This court has announced and has firmly adhered to the policy that on such a motion as this we will not go beyond appellant’s opening brief and the papers used on the motion; that if it is necessary, in order to decide the motion, to examine the entire record on appeal, the motion to dismiss will be denied. (Rasmussen v. Fresno Traction Co., 11 Cal. App. (2d) 357 [53 Pac. (2d) 1038]; Ure v. Maggio Bros. Co., 22 Cal. App. (2d) 536 [71 Pac. (2d) 598] ; Birkhofer v. Krumm, 24 Cal. App. (2d) 372 [75 Pac. (2d) 82] ; McNew v. Mulcahy, 24 Cal. App. (2d) 476 [75 Pac. (2d) 516].)

In accordance with this policy, thus announced, the motion to dismiss in this case cannot be granted because, in order to properly consider it, we would have to examine the entire record on appeal. We also should have the assistance of a brief by respondents in considering the merits of the appeal.

The motion is denied.

Barnard, P. J., concurred.