Opinion
G052681
04-03-2017
DANNY CAVIC et al., Plaintiffs and Appellants, v. GARY E. SCHREIBER et al., Defendants and Respondents.
Danny Cavic and Lilly Cavic, in pro. per., for Plaintiffs and Appellants. Bryant & Bryant, Kenneth A. Bryant, for Defendants and Respondents Jerome D. Stark and Jerome D. Stark, P.C. No appearance for Defendant and Respondent Gary E. Schreiber.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00522908) OPINION Appeal from a judgment of the Superior Court of Orange County, Frederick Paul Horn, Judge. Affirmed. Danny Cavic and Lilly Cavic, in pro. per., for Plaintiffs and Appellants. Bryant & Bryant, Kenneth A. Bryant, for Defendants and Respondents Jerome D. Stark and Jerome D. Stark, P.C. No appearance for Defendant and Respondent Gary E. Schreiber.
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Danny Cavic identifies in his notice of appeal five underlying trial court orders he claims are erroneous. The notice also lists the eventual entry of judgment dismissing Cavic's malpractice action against Gary E. Schreiber, Jerome D. Stark, Jerome D. Stark, P.C., other attorneys who formerly represented Cavic, and numerous other defendants. The trial court dismissed the case after Cavic failed to post security required of him as a vexatious litigant.
In his brief on appeal, Cavic makes no mention of any of the underlying orders, nor indeed of the trial court's entry of judgment, except to note the bare fact that the trial court denied his judicial disqualification motion and allegedly entered the dismissal "without any explanation" beyond his failure to post security. Cavic does not directly challenge either of these rulings, nor the others listed in his notice of appeal. Instead, he uses his brief as a clarion call to the electorate. He states, "People of the Orange County, wake up, we are in the election year and we have a major job to do, to chase away all of those corrupted Santa Ana Court Judges, such as O'Leary, Aronson, Fybel, Bauer, Horn and Margines!!"
Because this claim is directed to the voters for their consideration, we express no opinion on it. As a basis for appeal, however, Cavic does not suggest in his brief that he raised his claim of alleged corruption below to oppose any of the defendants' motions resulting in adverse orders or the entry of judgment. He points to no facts he introduced to substantiate the claim, nor offers of proof he made to the trial court, nor argument he asserted to support his claim, or that he otherwise preserved it below. The claim is therefore forfeited on appeal and the judgment affirmed.
I
PROCEDURAL BACKGROUND
This appeal (hereafter Cavic VI) is among at least seven appeals and two writ petitions spawned when a Newport Beach restaurant tenant in which Cavic obtained an interest, Nevada Atlantic Corporation (Nevada Atlantic), failed to gain permission from its lessor, WREC Lido Venture, LLC (WREC Lido), to assign the lease to a third party in 2007. Cavic and the tenant sued WREC Lido for failing to approve the assignment, but this court's 2008 opinion (Cavic I) explained that the "'sole discretion'" standard and similar express language in the lease provision's assignment clause invested WREC Lido with the "'absolute right to withhold its consent for any reason whatsoever or for no reason.'" (Nevada Atlantic Corporation v. WREC Lido Venture, LLC (Dec. 2, 2008, G039825) [nonpub. opn.].)
Cavic and Nevada Atlantic had filed and dismissed a lawsuit (Lawsuit #2) while Cavic I was pending, and then filed a new lawsuit (Lawsuit #3 or breach lawsuit) alleging WREC Lido breached the lease on various grounds, including failure to maintain and advertise the property. But after protracted proceedings in which Cavic fired as many as nine attorneys, the trial court granted a nonsuit as to the tenant Nevada Atlantic for failure to prove damages and as to Cavic because, as a Nevada Atlantic shareholder (even a sole shareholder), he nevertheless was not a party to the lease with WREC Lido. In a 2012 opinion (Cavic II), we upheld the judgment entered following the nonsuit, noting that on appeal Cavic and Nevada Atlantic did "not challenge the reasons the court gave" for granting the nonsuit, but instead argued the trial court "should have allowed a new theory of damages to be considered by the jury." (Italics added.) As we explained, however, "[G]iven their total failure to provide any legal citations or reasoned analysis on whether there was error in failing to reopen the case-in-chief or whether the error was prejudicial, . . . the issue [was] waived." (Cavic v. WREC Lido Venture LLC (Aug. 7, 2012, G045611) [nonpub. opn.].)
Meanwhile, Cavic already had returned to court to file a new lawsuit (Lawsuit #4) that included allegations against WREC Lido's trial attorney for interfering with Cavic's damages expert in the breach lawsuit, but the trial court granted the attorney's anti-SLAPP motion. On appeal (Cavic III), we upheld the dismissal because "the entirety of the evidence" showed only brief e-mail communications between the attorney, the expert, and Cavic's attorney that reflected no "'design[] to induce a breach'" in Cavic's contractual relation with his valuation expert. (Cavic v. Green (Nov. 26, 2012, G046772) [nonpub. opn.].)To the contrary, the e-mails arose in the course of activity protected under the anti-SLAPP statute (i.e., arranging the expert's deposition), and Cavic's conclusory allegation of something more sinister fell well short of his burden to show a probability of prevailing on the merits.
A "SLAPP" action is a "strategic lawsuit against public participation." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
Cavic then proceeded to pursue other claims in Lawsuit #4 (the malpractice lawsuit) against the same valuation expert (Richard Squar), Cavic's attorney in the breach lawsuit (Allan Liang), and a host of other accountants and lawyers who formerly represented him. But Cavic also had been attempting to relitigate the breach lawsuit (i.e., Lawsuit #3) through motions under that case number to set aside the underlying nonsuit, which led the trial court in that case to enter an order identifying Cavic as a vexatious litigant. Some of the litigants in the malpractice lawsuit, including Liang, Squar, and Squar's accounting firm (Gelman & Associates), similarly filed motions to require Cavic to post security under the vexatious litigant statute (Code Civ. Proc., § 391.1). The trial court hearing the malpractice action granted the motions, dismissed the malpractice claims against those defendants when Cavic failed to post security, and Cavic immediately appealed (Cavic IV).
In Cavic IV, we upheld the trial court's orders finding Cavic was a vexatious litigant, granting the respective parties' motions to require security because he had not established the requisite probability of prevailing against them in the malpractice lawsuit, and dismissing his claims against those parties when Cavic failed to post security. (Cavic v. Glenn M. Gelman & Associates (Nov. 26, 2014, G048510) [nonpub. opn.].)
Cavic's attempt to set aside the nonsuit in the earlier, underlying lease-breach case (Lawsuit #3) similarly devolved into disputes over the trial court's vexatious litigant finding in that matter. Cavic did not appeal the trial court's vexatious litigant order in that case, but instead later filed multiple motions to set aside the order, which the court denied, and Cavic appealed (Cavic V). As we observed in Cavic V, "[t]o vacate the [vexatious litigant] order after the time to appeal has passed, Cavic was required to show a material change of fact [and] that the ends of justice would be served by vacating the order," but we "found no sign" of either. A material change requires evidence the vexatious litigant has "'"mended his ways,"'" but Cavic continued to "ignore[] all but the evidence favorable to his theory," painting "an incomplete and self-serving picture of what transpired in his multiple lawsuits and motions." Nor would justice be served where Cavic did not address the criteria for a successful motion to vacate, but instead "challenge[d] only the validity of the prefiling order itself" and "simply reargue[d] the merits of his long ago dismissed legal actions." (Cavic v. WREC Lido Venture, LLC (Jan. 15, 2016, G050967) [nonpub. opn.].)
Returning the reader's attention briefly to Cavic IV, that appeal involved only the dismissal of the malpractice defendants in Lawsuit #4 who at that time had obtained an order requiring security based on Cavic's failure to show the requisite probability he would prevail against them and for whom Cavic failed to pay security. After our remittitur issued in Cavic IV, the malpractice lawsuit proceeded as to the remaining defendants named in that action, leading to the five orders and entry of judgment that Cavic now appeals (Cavic VI).
Specifically, those orders include: (1) the August 5, 2015 order denying a joinder motion to add Cavic's wife, son, and Nevada Atlantic as plaintiffs; (2) the order on the same date denying Cavic leave to file a second amended complaint; (3) the order on the same date denying Cavic's motion for reconsideration of the court's order requiring him to post security as a vexatious litigant; (4) minute orders on August 17, 2015, and September 2, 2015, dismissing the action and entering judgment as to certain defendants for Cavic's failure to post the requisite bond; (5) the September 10, 2015 order denying Cavic's motion to disqualify Judge Frederick Horn; and finally, the trial court's entry of judgment on September 28, 2015, dismissing the entire action for Cavic's failure to post security as to any of the defendants.
II
DISCUSSION
Notably, Cavic omits from the record on appeal one of the orders he purports to appeal from: the trial court's order rejecting Cavic's disqualification motion. He provides no information whatsoever as to the basis for his motion. Ironically, the omitted order is conceivably the most pertinent to his claims, at least as he alleges them on appeal. But as noted at the outset, his appeal appears designed to draw public attention to the judicial corruption he sees as the only possible explanation for his litigation failures. He points to nothing in the record to suggest he raised that issue in regard to any of the orders he lists in his notice of appeal, nor as to the eventual entry of judgment against him in this matter. Nor does appellant Lilly Cavic provide any context, claim of error, citations to the record or authority, nor reasoned analysis concerning the sole order involving her, namely, joinder.
Issues not raised in the trial court are forfeited on appeal. (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592.) We may not reverse a lower court ruling absent demonstrated error (Cal. Const., art. VI, § 13), and the trial court does not err "in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 435.) These rules apply with equal force to appellants appearing in propria persona. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
Put another way, on appeal we must presume the trial court's rulings are correct, unless and until the appellant demonstrates error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham).) The appellant bears the burden to show error in the trial record. (See Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 [fundamental principles of appellate review include: "(1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error"].)
Both represented and self-represented appellants must present their claims of error with specific arguments marshalling specific facts and corresponding record citations. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); see, e.g., Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) A party must "'support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.'" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) The reviewing court cannot be expected to make cross-references or connections that a party simply assumes are apparent. "Issues do not have a life of their own" (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99), but instead must be spelled out clearly.
Similarly, "conclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) "We are not bound to develop appellants' arguments for them" (In re Marriage of Falcone (2000) 164 Cal.App.4th 800, 830), and a party's status appearing in propria persona does not allow us to overlook these deficiencies. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125-1126; see also Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 655, 685 ["appellant must affirmatively demonstrate error through reasoned argument, citation to the appellate record, and discussion of legal authority"].)
Simply put, we may not turn to the record on our own searching for error (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246) because the standard of review is to the contrary. (Denham, supra, 2 Cal.3d at p. 566; City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 ["Rather than scour the record unguided, we may decide that the appellant has waived a point urged on appeal"].) Appellants have not filed a reply brief and, in any event, we may not address new arguments not raised in the opening brief. (Sourcecorp, Inc. v. Shill (2012) 206 Cal.App.4th 1054, 1061-1062, fn. 7.) Consequently, there is no merit in the appeal.
III
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
ARONSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. MOORE, J.