Schwartz v. Noya CA2/6

Filed 3/20/24 Schwartz v. Noya CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

SCOTT SCHWARTZ, 2d Civil No. B329331 (Super. Ct. No. 56-2019- Plaintiff and Appellant, 00535641-CU-PO-VTA) (Ventura County) v.

DAVID NOYA,

Defendant and Respondent.

We have the inherent power to dismiss an appeal where it is “based upon wholly sham or frivolous grounds.” (Ferguson v. Keays (1971) 4 Cal.3d 649, 658.) This is a fair description of this purported appeal. In our discretion, we elect not to dismiss the appeal. The rules on appeal are well known to counsel.1 We recently restated these rules.

1 Respondent does not move for dismissal of the appeal. He says that appellant’s contentions are waived by failure to comply with the rules on appeal. Respondent is correct.

“‘[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.]’ [Citation.] ‘This means that an appellant must do more than assert error and leave it to the appellate court to search the record and the law books to test his claim. The appellant must present an adequate argument including citations to supporting authorities and to relevant portions of the record. [Citations.]’ [Citation.] Accordingly, the California Rules of Court expressly require appellate briefs to ‘[s]tate each point . . . and support each point by argument and, if possible, by citation of authority’ and to ‘[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.’ [Citation.] [¶] ‘It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness.’ [Citation.] Nor are we ‘required to search the record on [our] own seeking error.’ [Citation.] Consequently, ‘[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citation.]’ [Citation.] Likewise, ‘“[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]” [Citations.]’ [Citation.] These rules apply both to parties represented by counsel and self-represented parties. [Citation.] ‘A party proceeding in propria persona “is to be treated like any other party and is entitled to the same, but no