Jiang v. Wang

Filed 11/29/05 Jiang v. Wang CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

HUA JIANG, Plaintiff and Appellant, v. HOWARD WANG, Defendant and Respondent.

B181445 (Los Angeles County Super. Ct. No. BC233197)

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor E. Chavez, Judge. Affirmed.

Ricky W. Poon for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

Plaintiff and cross-defendant Hua Jiang appeals from the judgment in favor of defendant and cross-complainant Howard Wang, entered following a non-jury trial. Because plaintiff violates fundamental rules of appellate procedure, she has failed to demonstrate any error on appeal. Therefore, we affirm the judgment.[1]

BACKGROUND

Plaintiff filed a complaint against defendant alleging that defendant solicited her to invest in defendant’s internet business, a website dedicated to fast food restaurants named “F2go.com.” According to the complaint, defendant “took $10,000 from plaintiff [and] agreed to retur[n] the money to plaintiff if plaintiff decided to withdraw from the investment.” Defendant represented that the company could offer shares of stock in the company to the public. However, “[t]he fact [was] that the company existed only in defendant’s head or in the air, and was not authorized by the SEC to sell shares to the public. . . . Further, defendant intended to use the money he collected from the public to trade in stock through Charles Schwab.” When plaintiff requested a return of her investment, defendant refused. Plaintiff alleged causes of action against Wang for breach of contract, common counts, and fraud.[2]

Defendant Wang filed a cross-complaint against plaintiff alleging, among other things, that plaintiff orally agreed to invest $10,000 in F2go, Inc., and receive 10,000 shares in exchange. Plaintiff then improperly sought to rescind the contract and petitioned the court to stop defendant from withdrawing funds from his account. At one point, plaintiff falsely represented to various persons that she was the owner of F2go.com, and solicited them to purchase the stock shares she had bought from defendant. At another point, she told potential investors that defendant’s business was a fraud. Defendant alleged causes of action against plaintiff for breach of contract, common counts, misappropriation of the right of publicity, and slander.

Following delays caused by defendant’s bankruptcy proceedings, the case was ultimately tried to the court sitting without a jury. The court heard testimony from both plaintiff and defendant, and admitted certain exhibits into evidence. After taking the matter under submission, the court later found that plaintiff and defendant had not proved their respective claims by a preponderance of the evidence. Therefore, on plaintiff’s claims the court entered judgment in favor of defendant, and on defendant’s cross-claims the court entered judgment in favor of plaintiff. The court ordered each side to bear its own costs.

Plaintiff appeals from the portion of the judgment rejecting her claims against defendant. In substance, she contends: (1) because substantial evidence supported her claims, the trial court erred in finding she had not met her burden of proof; (2) the trial court erred in ordering each side to bear its own costs; (3) plaintiff is entitled to attorney fees, because she prevailed on defendant’s cross-complaint; and (4) the $10,000 on deposit with the court should be returned to plaintiff.

DISCUSSION

The trial court’s judgment is presumed to be correct. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) Even when no respondent’s brief is filed, appellant still has the burden of demonstrating error. (Kriegler v. Eichler Homes, Inc. (1969) 269 Cal.App.2d 224, 226-227.) Rule 14 of the California Rules of Court requires that appellate briefs contain “a summary of the significant facts limited to matters in the record” (rule 14(a)(2)(C)), and that the briefs “support any reference to a matter in the record by a citation to the record” (id., subd. (a)(1)(C)). Further, if the appellant challenges the evidentiary basis for the trial court’s decision, the appellant’s opening brief must recite all the relevant evidence, not simply the evidence that supports the appellant’s arguments. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)

In the instant case, plaintiff’s opening brief purports to summarize only the evidence supporting plaintiff’s contentions. Further, it contains no citations to the relevant trial record. The brief contains a “Summary of Facts.” However, this summary is simply an argumentative presentation of purported facts viewed in the light most favorable to plaintiff. To the extent it refers to testimony at all, the summary cites not trial testimony, but defendant’s deposition testimony. Plaintiff fails to refer us to any portion of the trial record showing that the deposition excerpts were introduced at trial, and we can find none. We note that both plaintiff and defendant testified at trial, but plaintiff refers to none of this testimony.

The only other citations in the summary are to purported exhibits. The numbers of the cited exhibits on appeal (Exh. Nos. 10 and 17) do not correspond to any numbers appearing in the Exhibit Index included in the reporter’s transcript of the trial. And, even if the exhibits were introduced at trial, defendant fails to cite any portion of the reporter’s transcript that would explain them.

The “Legal Arguments” section of appellant’s opening brief suffers from the same fatal flaws. Nonetheless, although it is not our duty (Nwosu, supra, 122 Cal.App.4th at p. 1246), we have independently examined the reporter’s transcript of the trial in order to see if we could make sense of plaintiff’s contentions. The trial record, however, is nearly unintelligible. We will not attempt to piece it together in order to preserve plaintiff’s claims of error.

Because plaintiff fails to summarize all relevant evidence, and fails to include any citation to the trial record, we conclude that she has forfeited her contentions on appeal. (Nwosu, supra; Regents of the Univ. of Cal. v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED

WILLHITE, J.

We concur:

EPSTEIN, P.J.

HASTINGS, J.

[1] Defendant failed to file a respondent’s brief. Thus, the only brief on appeal is appellant’s opening brief.

[2] Plaintiff also named Universal Bank as a defendant. As best we can tell, Universal Bank filed a cross-complaint in interpleader, and deposited $10,000 with the court. The court then dismissed Universal Bank as a defendant.