Sheks Construction Co. v. City of South S.F. CA1/5

Filed 12/27/22 Sheks Construction Co. v. City of South S.F. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SHEKS CONSTRUCTION COMPANY et al., Defendants, Cross- A164798 Complainants, and Appellants, (San Francisco County v. Super. Ct. No. CGC-17-557970) CITY OF SOUTH SAN FRANCISCO, Cross-Defendant and Respondent.

Sheks Construction Company and its owner, Luen Shee Shek (collectively, Appellants), appeal the trial court’s order granting a motion for sanctions filed by the City of South San Francisco (City). We affirm.

1

BACKGROUND1 In 2017, Ramon Gomez (Plaintiff) filed the underlying personal injury lawsuit against Appellants and others for injuries allegedly sustained when he rode his skateboard over a hose. The hose was stretched diagonally across an intersection, connecting a fire hydrant to a construction site (Site). According to the police report, Appellants admitted placing the hose in the intersection in connection with their plumbing work at the Site. Appellants filed a cross-complaint for equitable indemnity and contribution against the City, Zers Development Inc. (Zers), and Henry Zhang. The City successfully moved for summary judgment on Appellants’ cross-complaint and this court affirmed. (Sheks Construction Company et al. v. City of South San Francisco (June 29, 2022, A163204) [nonpub. opn.].)

1 With its respondent’s brief, the City filed an appendix containing numerous documents neither filed nor lodged in the superior court. “An appendix may contain only accurate copies of documents filed with the superior court in the matter or matters under appeal.” (Aixtron, Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 381.) The City also appended to its respondent’s brief two declarations created for the appellate proceedings. “ ‘[D]ocuments not before the trial court cannot be included as part of the record on appeal.’ ” (Mize v. Mentor Worldwide LLC (2020) 51 Cal.App.5th 850, 855, fn. 4.) We grant Appellants’ unopposed motion to strike these documents and all references to these documents in the City’s respondent’s brief. In their motion, Appellants contend the City’s conduct is sanctionable and suggest the City should be ordered to pay attorney fees Appellants incurred in filing the motion to strike. Appellants did not comply with the required procedure for seeking sanctions and we therefore decline to consider imposing monetary sanctions. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858 [“We deny the request because [the respondent] has not filed a motion for sanctions along with a declaration supporting the amount sought.”].)