Main Auto Parts, Inc. v. Dubord, A121760 (Cal. App. 3/25/2009)

• Decision Date: 25 March 2009
• Docket Number: A121760
• Parties: MAIN AUTO PARTS, INC., Plaintiff and Respondent, v. TERENCE DUBORD et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

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MAIN AUTO PARTS, INC., Plaintiff and Respondent, v. TERENCE DUBORD et al., Defendants and Appellants.

A121760

Court of Appeals of California, First Appellate District, Division One

March 25, 2009

Not to be Published in Official Reports

Appeal from the Alameda County, Super. Ct. No. VG04186782.

MARGULIES, J.

Terence DuBord, Christie DuBord and Aaron L. McElwee¹ (defendants) appeal a judgment entered in favor of plaintiff Main Auto Parts, Inc., on causes of action for forcible entry against Terence DuBord, and causes of action for infringement of trade name, conversion, unfair competition, embezzlement, unjust enrichment, and possession of personal property against all defendants.

We conclude that defendants have failed to meet their appellate burden to identify error, to provide citation to the record, argument and authority in support of their claim of error, and to provide an adequate record to allow for meaningful review. We therefore find no error and affirm the judgment.

I. FACTS

According to defendants,² the relevant facts are that Terence and Christie DuBord purchased a commercial building in Pleasanton, California, and assumed possession of it on May 16, 2004. Main Auto Parts, Inc., a business owned by Richard DuBord, moved in that same day, and his first rent payment was due on June 16, 2004. On September 28, 2004, Terence and Christie DuBord notified Richard DuBord his tenancy would be terminated on October 30, 2004.

Defendants represent that one of the disputed issues at trial was whether they had accepted rent for the month of October during the 30-day notice period.³ Defendants' exhibits 842 and 843 were admitted. Exhibits 842 and 843 showed four rent checks from Main Auto Parts that were deposited by defendants: No. 6747, dated June 16, 2004; No. 6802, dated July 16, 2004; No. 6873, dated August 25, 2004; and No. 6926, dated September 17, 2004.⁴

Plaintiff marked, identified, and showed to the jury exhibit 22, which consisted of copies of these same checks, but each check included a notation in the memo box, indicating that the check was for rent, and specifying that rent was for the months of July, August, September and October, respectively.

The jury rendered a verdict in plaintiff's favor on the forcible entry cause of action against Terence DuBord individually and awarded damages with respect to that cause of action in the amount of $7,962. The jury also found in plaintiff's favor on the remaining causes of action against all defendants for infringement of trade name, conversion, unfair competition, embezzlement, unjust enrichment and possession of personal property, and awarded damages in the amount of $788,600, plus prejudgment interest. In a special verdict on the issue of punitive damages, the jury found, with respect to the conduct underlying the conversion and embezzlement causes of action, that defendants had acted with fraud, oppression, and malice.

II. ANALYSIS

Defendants' sole contention on appeal concerns exhibit 22. They assert exhibit 22 was admitted at trial, and that plaintiff had altered the checks in this exhibit to include references in the memo box to rent, and the month for which rent was paid, for the purpose of persuading the jury that defendants had accepted rent for the month of October. Defendants further represent, without citation to the record, that although their attorney argued to the jury that exhibit 22 was altered, the court did not inform the jury that the alteration of this evidence was a felony in violation of Penal Code section 132. Defendants also cite letters and a cash reconcilement document that are attached to their opening brief as evidence that they did not accept rent for the month of October, and as circumstantial evidence that plaintiff altered the checks in exhibit 22. Defendants, however, do not provide any supporting record citations, or adequate record, that would allow this court to determine whether any of these documents were part of the record below.

"[I]t is settled that: `A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The threshold problem with defendants' claim of error is that, although they assert exhibit 22 was admitted into evidence, their citation to the record does not support that assertion. The clerk's transcript includes a minute order that states exhibit 22 was marked, identified, and viewed to the jury, but defendants do not provide any citation showing that exhibit 22 was admitted into evidence. In the absence of an adequate record and record citation to establish the premise of their claim of error, i.e., that exhibit 22 was admitted at trial, defendants cannot demonstrate error on appeal. " `[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

Defendants also do not present sufficient argument or supporting authority to allow this court to determine whether the claim of error is that (1) the court committed evidentiary error by admitting exhibit 22; or (2) the court committed instructional error by failing to inform the jury that alteration of the checks in exhibit 22 is a felony in violation of Penal Code section 132; or (3) that there is no substantial evidence to support an implicit finding by the jury that they did accept rent for the month of October. Defendants' opening brief simply makes the assertion that the checks in exhibit 22 were altered and cites Penal Code section 132. In the reply brief, without citation to the record, defendants assert their counsel did argue to the jury that exhibit 22 was altered, but claim the court erred by not informing the jury that plaintiffs had violated Penal Code section 132. They offer no legal argument or citation to authority in support of this contention. The absence of argument and supporting authority prevents this court from even identifying the nature of the claimed error, which is a prerequisite to identifying the applicable standard of review. This court may therefore also deem the claim of error waived or abandoned on this ground. (See Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)

Moreover, if defendants' contention is that the court committed evidentiary error by admitting exhibit 22, or allowing the jury to view it, defendants provide no...