Bongiovanni v. Rackow

• Decision Date: 31 January 1963
• Citation: Bongiovanni v. Rackow, 28 Cal.Rptr. 155, 212 Cal.App.2d 550 (Cal. App. 1963)
• Court: California Court of Appeals
• Parties: Andrew BONGIOVANNI, Executor of the Estate of Carlo Bongiovanni, Deceased, Appellant, v. Stanley H. RACKOW, also known as Stanley Rackow, Dorothy A. Rackow, Joseph J. Stokes, Esther C. Stokes, Rackow & Stokes, A co-partnership consisting of Stanley Rackow and Joseph J. Stokes and Valley Properties, Respondents. Civ. 26385.

Page 155

28 Cal.Rptr. 155

212 Cal.App.2d 550

Andrew BONGIOVANNI, Executor of the Estate of Carlo Bongiovanni, Deceased, Appellant, v.Stanley H. RACKOW, also known as Stanley Rackow, Dorothy A. Rackow, Joseph J. Stokes, Esther C. Stokes, Rackow & Stokes, A co-partnershipconsisting of Stanley Rackow and Joseph J. Stokes and Valley Properties, Respondents.

Civ. 26385.

District Court of Appeal, Second District, Division 2, California.

Jan. 31, 1963.

Edward S. Cooper and Ronald Harrison Cooper, Los Angeles, for appellant.

David Pick, Beverly Hills, for respondents.

HERNDON, Justice.

Plaintiff appeals from a judgment denying him the relief sought by him in his complaint alleging fraud and deceit in connection with the sale of certain real property.The first eighty pages of the brief filed by appellant are devoted entirely to the statement of abstract principles of law and to the discussion of matters not embraced within the issues as framed by the pleadings or as stated in the pre-trial order.The sole assignment of error reads as follows:

'From what has heretofore been said and without the necessity of repeating each and every point, the oral and documentary evidence conclusively establishes that as a matter of law from the cases cited and quoted from, judgment should have been in favor of the Plaintiff and against the Defendants.We do recognize the rule that in this assignment of error the Court will carefully read all of the evidence, oral and documentary and when the Court has done this, it will be apparent that: The following Findings of Fact and Conclusions of Law are unsupported by the evidence, and are contradictory, inconsistent and uncertain, and do not support the Judgment.(Andrew[s] v. Cunningham, 105 Cal.App.2d 525[233 P.2d 563].)Findings II, XI, XII, XXIX, XXX, XXXI, XXXII, XXXIII, XXXIV, XXXV, XXXVI, XXXVII, XXXVIII, XXXIX, XXXX, XXXXI, XXXXIV, XXXXV, and XXXXVI.Conclusions of Law.I, II, III, IV, V, VI, VII, VIII, X, XI and XII.'

By this unique 'assignment of error'appellant invites this court to 'carefully read' a reporter's transcript of three volumes totalling 762 pages and to examine some fifty-six exhibits, which include copies of articles of co-partnership, leases, escrow instructions, and amendments thereto, many pages in length, in order, perhaps, that we may discover some deficiency in the evidence supporting the numbered but otherwise unspecified findings and conclusions.This we are not disposed to do.

'A reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact, and it is not the province of such a court to search the record in order to ascertain whether it contains evidence which will support a contention made by either party to an appeal.[Citations.]'(Leming v. Oilfields Trucking Co., 44 Cal.2d 343, 356, 282 P.2d 23, 31, 51 A.L.R.2d 107.)The following statement of this court in Davis v. Lucas, 180 Cal.App.2d 407, 409-410, 4 Cal.Rptr. 479, 480, appears particularly appropriate in the instant case:

'The appellate court starts with the presumption that the evidence sustains each finding of fact [citations], and the burden rests upon appellant'to demonstrate that there is no substantial evidence to support the challenged findings.'[Citations.]To this end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs [citations]; if this is not done the point is deemed waived (so held in the cases just cited).Counsel in this case has made no real effort to comply with the rule.'[A] claim of insufficiency of the evidence to justify findings, consisting of mere assertion without a fair statement of the evidence, is entitled to no consideration, when it is apparent, as it is here, that a substantial amount of evidence was received on behalf of the respondents.'[Citation.]In the circumstances we are entitled to accept the statements of respondent's brief as to the evidence upon the subject.Respondent's counsel has assembled enough of the testimony in his brief to show at least a substantial conflict in the evidence.Our duty begins and ends with the determination of the existence of such a conflict.* * * We do not make an independent search of the record to uncover error.'(Cf.Bird v. Bird, 152 Cal.App.2d 99, 101, 312 P.2d 773andEdwards v. Container Kraft Carton Etc. Co., 161 Cal.App.2d 752, 756, 327 P.2d 622.)

Summarily stated, the record indicates that in May of 1955appellant sold a portion of a tract of real property owned by him to respondents Rackow and Stokes.The portion sold will be referred to as ParcelNo. 1 and the portion retained by appellant will be referred to as ParcelNo. 2.At the time of this sale, the parties entered into an agreement regarding the subdivision of both parcels and a division of the costs thereof.This agreement never was fully consummated, although various negotiations were subsequently carried on in connection therewith.

In March of 1957, appellant sold ParcelNo. 2 to respondent Rackow and his wife and terminated the prior agreement regarding subdividing the properties.By the first cause of action of his complaint, appellant alleged that respondents defrauded him in that (1) Rackow told him in March of 1957 Marquardt Aircraft Company was no longer interested in leasing the parcels, and (2) Rackow told him that responden...