In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in Singman v. IMDb.com, Inc. (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted the only entry in the table of contents was Code of Civil Procedure section 904.1, an appealability statute that obviously does not impeach the judgment.
The Singman decision itself is less surprising than the one in Freitas v. Clear Recon Corp (D1d1, Dec. 8, 2021, No. A160762) 2021 WL 5822382, where an appeal of a dismissal following a demurrer failed because of lack of citations to the record. Dismissals on demurrers can be happy hunting for appellants, because all the factual presumptions go with the appellant and against the respondent (in most other appeals it is just the opposite). But the appellant in Freitas squandered the opportunity by not including the operative complaint in the appellate record. (Bains v. Moores (2009) 172 Cal.App.4th 445, 478 [rejecting claim that demurrer was improperly sustained where appellant failed to present adequate record by including operative complaint and demurrers].)
But the First District did not publish Freitas, probably because that proposition is already settled, and this was a pro per litigant.
So why did the Singman court decide to publish? The faux pas there in failing to cite legal authority also was committed by a pro per litigant. The opinion is only two pages long. There is no analysis of the merits. There is no discussion what the case is about. The court notes the appellant’s legal arguments are not supported by legal citations, but does not say what those arguments are. The court concludes its published opinion with this line: “An absence of legal authority forfeits an appellant's cause.” This is followed by an “e.g.” citation to Gonzalez v. City of Norwalk (2017) 17 Cal.App.5th 1295, 1311.)
Comment: The Singman opinion does not meet any of the criteria for publication, as I understand them. The standards for certifying an opinion for publication are set out in California Rules of Court rule 8.1105. Rule 8.1105 says an opinion should be published when it:
(1) Establishes a new rule of law;
(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;
(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;
(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;
(5) Addresses or creates an apparent conflict in the law;
(6) Involves a legal issue of continuing public interest;
(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;
(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or
(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.
There is nothing new about the rule the Singman court relied upon. And there is no analysis such as to support invocation of the other criteria under rule 8.1105. The Singman holding carries forward the well-settled that an appellant is expected to support each point with arguments and authority. (Orange County Water District v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 383 [" ‘ "Appellate briefs must provide argument and legal authority for the positions taken. ‘When 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.] "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." ' [Citations.]"].)
The only thing different in Singman is that I have never seen another case reach the conclusion of forfeiture with so little analysis. In fact, there is so little context surrounding the holding in Singman that I suspect it will be abused. Going forward, even self-evident propositions in a legal brief may be met with a small-minded refutation citing Singman if the proposition does not include a citation.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.
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