Filed 11/17/21 Smart v. San Dieguito Union High School Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Calif ornia Rules of Court, rule 8.1115(a), prohibits courts and parties f rom citing or relying on opinions not certif ied f or publication or
ordered published, except as specif ied by rule 8.1115(b). This opinion has not been certif ied f or publication or or dered published f or
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MERCEDES SMART, D078305
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00008696-CU-PO-CTL)
SAN DIEGUITO UNION HIGH
SCHOOL DISTRICT et al.,
Defendants and Respondents.
APPEAL from a postjudgment order of the Superior Court of San Diego
County, Eddie C. Sturgeon, Judge. Affirmed.
Mercedes Smart, in pro. per, for Plaintiff and Appellant.
Winet Patrick Gayer Creighton & Hanes, Randall L. Winet and
David A. Veljovich for Defendants and Respondents.
In this appeal, plaintiff Mercedes Smart (Plaintiff) appeals from a
September 2020 second amendment (2020 Amendment) to a September 2018
judgment of dismissal (2018 Judgment). By the 2020 Amendment, the court
only amended the 2018 Judgment to include an award of attorney fees in
favor of defendants San Dieguito Union High School District, Robert Coppo,
Robert Shockney, and Jayme Cambra (together Defendants).
This is the second time this case is before us. In a February 2020
opinion, this court affirmed the 2018 Judgment as to Defendants (and others)
on the basis that “Plaintiff’s briefing in th[e] appeal fails to comply with the
minimum requirements under the California Rules of Court.” (Smart v. San
Dieguito Union High School Dist. (Feb. 18, 2020, D074775) [nonpub. opn.]
(Appeal 1).1) As we explain, Plaintiff has again forfeited appellate review,
this time as a result of a presentation on appeal in which she fails to set forth
any error in the order on appeal.
Accordingly, we affirm the 2020 Amendment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initiated this action by filing a complaint against Defendants
and others in February 2018. Plaintiff alleged that, at all relevant times, she
was a student at Torrey Pines High School, the school was “under the
jurisdiction and control” of the San Dieguito Union High School District, and
the remaining defendants were employees of the school and the district,
acting within the scope of this employment. In her complaint, Plaintiff
sought money damages, according to proof, based on the following five causes
of action: (1) negligence, based on a knee injury Plaintiff allegedly suffered at
an April 1, 2016 gymnastics meet; (2) negligence, based on an ankle injury
Plaintiff allegedly suffered at a February 27, 2017 gymnastics practice;
(3) slander, based on a May 23, 2017 report to the 911 operator which
1 On our own motion, we take judicial notice of Appeal 1, supra, D074775
(Evid. Code, §§ 459, subd. (a), 452, subd. (a)), and adopt without citation to
Appeal 1 much of the factual and procedural presentation contained in this
opinion, post.)
2
allegedly communicated medical information and a false statement about
Plaintiff; (4) conversion, based on the alleged refusal, during the October
2016 - June 2017 time period, to return to Plaintiff a homework assignment
she had submitted in September 2016; and (5) intentional infliction of
emotional distress, based on unfair, retaliatory, and harassing conduct to
Plaintiff.
In a special motion to strike, Defendants argued that Plaintiff’s third
cause of action for slander was a SLAPP and should be stricken pursuant to
Code of Civil Procedure section 425.16 (the anti-SLAPP statute).2 More
specifically, Defendants contended that the third cause of action implicated
their free speech rights under the state and federal constitutions, the subject
speech at issue involved a matter of public interest, and Plaintiff could not
establish the requisite probability of prevailing on the merits of her claim.
The trial court granted the anti-SLAPP motion and in September 2018
entered a judgment of dismissal as to Defendants (previously identified as
the “2018 Judgment”).3 Plaintiff appealed, and in Appeal 1, supra, D074775,
this court affirmed the judgment, ruling that she forfeited appellate review.
In part, we reached that conclusion because, in her appellate briefing,
Plaintiff failed “to present a coherent legal argument supported by applicable
authority” as required by the California Rules of Court and related
authorities.
2 “SLAPP” is an acronym for strategic lawsuit against public
participation.
3 The 2018 Judgment was also directed to other causes of action and
other defendants—none of which are at issue in the present appeal.
3
After the remittitur issued and jurisdiction returned to the trial court,
Defendants filed a motion for the attorney fees and costs they incurred in
defending Appeal 1, supra, D074775. Defendants sought $23,056.50 in
attorney fees pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16,
subd. (c)(1)). Plaintiff filed written opposition, and Defendants filed a reply to
Plaintiff’s opposition.
Prior to oral argument on Defendants’ motion, the court issued a
tentative ruling, in which it granted the motion and awarded Defendants
$16,484.50 in fees and $19.90 in costs based on the court’s finding of the
reasonableness of the hours and hourly rates and the statement that “[t]he
court did not reduce the requested fees.” At the hearing, counsel for
Defendants noted that, although the tentative ruling stated that the court
had not reduced the requested fees, the ruling tentatively awarded only
$16,484.50 of the requested $23,056.50. The court acknowledged the error
and in its minute order and written order awarded Defendants a total of
$23,056.50 in attorney fees incurred in defending Appeal 1, supra, D074775.4
Consistent with the written order, in September 2020, the court
amended the judgment (previously identified as the “2020 Amendment”).
The 2020 Amendment expressly provides that it amends the September 2018
judgment “only” by awarding Defendants $23,056.50 against Plaintiff.
(Italics added.)
4 The minute order reflects an award of $23,036.60 in attorney fees and
$19.90 in costs, for a total of $23,056.50. The written order, prepared by
Defendants’ counsel and consistent with Defendants’ motion, reflects a total
award of $23,056.50 in fees.
4
Plaintiff timely appealed from the 2020 Amendment.5
II. DISCUSSION
In appealing from the 2020 Amendment, Plaintiff is seeking appellate
review of the postjudgment order by which the court awarded Defendants
$23,056.50 for the attorney fees they incurred in defending Appeal 1, supra,
D074775. However, in her legal argument, Plaintiff does not once mention
the 2020 Amendment, the award of attorney fees, or any postjudgment
proceedings.6 As we explain, by failing to argue how and why the order on
5 In her opening brief on appeal, Plaintiff tells us that this appeal is from
a final judgment of the superior court and, thus, appealable pursuant to Code
of Civil Procedure section 904.1, subdivision (a)(1). In her civil case
information statement, Plaintiff tells us that she is appealing from a
judgment after an order granting a summary judgment motion. However,
this is not an appeal from a final judgment, and the record contains no
summary judgment proceedings involving these Defendants.
In fact, Plaintiff appealed from the 2020 Amendment, which is a
postjudgment order—i.e., an order after the 2018 Judgment. Thus, we have
jurisdiction pursuant to Code of Civil Procedure section 904.1,
subdivision (a)(2), which applies to “an order made after a judgment made
appealable by [Code of Civil Procedure section 904.1, subdivision (a)(1)].”
6 Plaintiff’s entire “Argument” is two paragraphs, comprises less than
one page of her 44-page typewritten brief, and provides in full:
“The trial court improperly granted [Defendants] the anti-SLAPP
motion because [Defendants’] conduct did not involve an act in furtherance of
their constitutional right of petition or free speech in connection with public
issue. (425.16, subd. (b)(l); Lefebvre v Lefebvre (2011) 199 Cal. App 4th 696,
703 {131 Cal. Rptr. 3d 171} making of false police report is not an act in
furtherance of constitutional right of petition or free speech. Causes of action
arising from false allegations of criminal conduct are not subject to the anti-
SLAPP laws. (Weinberg v Feisel (2002) 110 Cal. App 4th 1122, 1127 [2 Cal.
Rptr. 3d 385]. Under the circumstances here, [Defendants] did not establish
the threshold showing required to support a special motion to strike. (AOB
D074775 p. 13-14)
5
appeal—i.e., the 2020 Amendment (as opposed to the 2018 Judgment)—is
erroneous, Plaintiff forfeited appellate review.
We begin with the understanding that, because the trial court’s order
on appeal is presumed correct, Plaintiff, as the appellant, has the burden to
demonstrate reversible error. (Jameson v. Desta (2018) 5 Cal.5th 594, 609;
Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) By not mentioning, let
alone suggesting an error in, the 2020 Amendment, Plaintiff necessarily
failed to demonstrate reversible error in the postjudgment order on appeal.
We repeat our statement of the law from Appeal 1, supra, D074775,
regarding the application of California Rules of Court, rule 8.204(a)(1)(B),
and its related requirement that the parties identify the issues and
arguments to be considered on appeal:
“Pursuant to rule 8.204(a)(1)(B), all appellate briefs must
‘[s]tate each point under a separate heading or subheading
summarizing the point, and support each point by
argument and, if possible, by citation of authority.’
“ ‘ “[T]he provisions of this rule are not mere technical
requirements, but are prescribed for the purpose of
facilitating disposition of cases upon appeal and directing
the court’s attention to the specific errors of law alleged to
have been committed by the trial court. Not only must an
appellant raise the point in his brief properly but he must
point out the error specifically showing accurately wherein
the lower court’s action is deemed erroneous.’ (Devers v.
Greenwood (1956) 139 Cal.App.2d 345, 352 [under former
rule 15(a)].) Where an appellate party fails to comply with
these requirements, the party has not properly briefed its
“California law states to prove intentional infliction of emotional
distress [Plaintiff] have to prove [Defendants’] conduct was outrageous, the
conduct was either reckless or intended to cause emotional distress; and as a
result of [Defendants’] conduct [Plaintiff] suffered severe emotional distress.
Fletcher v. Western National Life Insurance Co. (1970 10 Cal. App. 3d 376;
Hughes v Pair (2009) 46 Cal. 4th 1035.” (Sic.)
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contentions on appeal; and ‘ “we need not address
contentions not properly briefed.” ’ (Winslett v. 1811 27th
Avenue, LLC (2018) 26 Cal.App.5th 239, 248, fn. 6
(Winslett).)
“ ‘ “The reviewing court is not required to make an
independent, unassisted study of the record in search of
error or grounds to support the judgment.” ’ (Horowitz v.
Noble (1978) 79 Cal.App.3d 120, 139 (Horowitz); Pizarro v.
Reynoso (2017) 10 Cal.App.5th 172, 181 (Pizarro) [‘It is not
our responsibility to act as counsel . . . and attempt to
arrange his arguments coherently.’].) For this reason,
‘ “every brief should contain a legal argument with citation
of authorities on the points made” ’; and ‘ “[i]f none is
furnished on a particular point, the court may treat it as
waived, and pass it without consideration.” ’ (Horowitz, at
p. 139; accord, Pizarro, at p. 181 [‘failure to provide
coherent organization to [appellant’s] arguments forfeits
consideration of those arguments on appeal’]; County of
Butte v. Emergency Medical Services Authority (2010) 187
Cal.App.4th 1175, 1196, fn. 7 [where a ‘contention is not
supported by citation to any legal authority,’ it ‘is thus
forfeited as improperly presented’].)”
We likewise repeat, and again apply, our ruling in Appeal 1, supra, D074775,
based on the foregoing explanation of the law:
“Absent the benefit of a legal argument with the citation of
applicable legal authorities, we have nothing to consider in
this appeal. We are not Plaintiff’s counsel, and we have no
obligation to search the record for potential prejudicial
error. (Pizarro, supra, 10 Cal.App.5th at p. 181; Horowitz,
supra, 79 Cal.App.3d at p. 139.) Having presented no legal
arguments and having cited no potentially applicable legal
authority, Plaintiff forfeited any right she otherwise may
have had to appellate consideration of her position.
(Winslett, supra, 26 Cal.App.5th at p. 248, fn. 6; Pizarro, at
p. 181; Horowitz, at p. 139.)” (Italics omitted.)
We do not limit our consideration to the 2020 Amendment to punish
Plaintiff or to avoid reviewing the 2018 Judgment which Plaintiff contends is
erroneous. As we briefly explain, Plaintiff had the opportunity to, and did,
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seek appellate review of the 2018 Judgment; and as more than 100 years of
Supreme Court jurisprudence confirms, because the remittitur has issued in
Plaintiff’s appeal from the 2018 Judgment (Appeal 1, supra, D074775), this
court lacks jurisdiction to further consider the 2018 Judgment.
Code of Civil Procedure section 904.1, subdivision (a)(1) codifies the
“one final judgment rule,” by which an appeal lies only from a final judgment
that terminates the trial court proceedings by completely disposing of the
matter in controversy between adverse parties. (Griset v. Fair Political
Practices Com. (2001) 25 Cal.4th 688, 697; see In re Baycol Cases I & II
(2011) 51 Cal.4th 751, 759 [orders resolving all issues “as to some but not all
parties” are appealable as final judgments].) Under California law, as
between two adverse parties, ordinarily there is only one final judgment.
(Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304.)
Based on the foregoing standards, the 2018 Judgment was the “one
final judgment” of Plaintiff’s lawsuit against Defendants. Accordingly, under
Code of Civil Procedure section 904.1, subdivision (a)(1), the parties’ only
opportunity to seek appellate review of the 2018 Judgment was a timely
appeal from the judgment. (Van Beurden Ins. Services, Inc. v. Customized
Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 [“time for
appealing a judgment is jurisdictional; once the deadline expires, the
appellate court has no power to entertain the appeal”]; see Cal. Rules of
Court, rule 8.104.) Plaintiff properly invoked this procedure in 2018, and her
appeal from the trial court’s 2018 Judgment resulted in this appellate court’s
opinion and judgment in Appeal 1, supra, D074775.
After issuance of the remittitur in Appeal 1, supra, D074775, this court
lacked jurisdiction to (re)consider any issue related to the 2018 Judgment.
In the late 19th century, the Supreme Court explained: “Under the
8
constitution, by the lapse of time and the issuance of the remittitur the
judgment has become a finality, beyond the power of this court to modify or
amend.” (Martin v. Wagner (1899) 124 Cal. 204, 205.) More than 100 years
later, the court reaffirmed this principle when it stated that, upon issuance of
the appellate court’s remittitur, except in “very limited circumstances” not
present here, “[t]he reviewing ‘court has no appellate jurisdiction over its own
judgments, and it cannot review or modify them after the cause has once
passed from its control by the issuance of the remittitur.’ ” (Snukal v.
Flightways Manufacturing, Inc. (2000) 23 Cal.4th 754, 774, fn. 5.)
Even if we could consider the 2018 Judgment, we could not consider the
150-paragraph, 26-page, single-spaced declaration from Plaintiff which she
presented in her opening brief on appeal. Procedurally, Plaintiff failed to file
a motion to take additional evidence on appeal (or to make factual findings).
(Cal. Rules of Court, rule 8.252(b); Code Civ. Proc., § 909.) Substantively, an
appellate court is precluded from considering new evidence unless the result
will enable the court to finally resolve the dispute in the underlying appeal,
either by affirming a judgment in favor of the respondent or by reversing
with directions to enter a judgment in favor of the appellant. (Tupman v.
Haberkern (1929) 208 Cal. 256, 269; Smith v. Smith (1955) 135 Cal.App.2d
100, 108.) Here, however, regardless what evidence Plaintiff may have
presented,7 any reversal of the 2018 Judgment would have required a
7 Contained within Plaintiff’s declaration is the testimony at
paragraph 149: “I am asking this court for Due Process on Appeal for
Attorney fees recently granted to the Defendants for $23,056.50. Case
number is 37-2018-00008696 Smart vs. San Dieguito Union High School
District, the Honorable Judge Eddie C. Sturgeon, Department C-67.” (Sic.)
Even if we were to consider this statement, the result would be no different.
In this appeal from the award of attorney fees to Defendants, Plaintiff filed,
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remand for further proceedings, since the judgment was based in part on the
sustaining of demurrers.
In summary, because Plaintiff raises no legal argument related to
potential error in the 2020 Amendment, Plaintiff forfeited appellate review
of the postjudgment order.
III. DISPOSITION
The 2020 Amendment is affirmed. In the interests of justice,
the parties shall bear their own costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(5).)
IRION, J.
WE CONCUR:
O’ROURKE, Acting P. J.
DATO, J.
and the court has read and considered, an opening brief, a reply brief, and a
supplemental letter brief; and she requested and participated in oral
argument before the panel deciding this appeal. Accordingly, Plaintiff
received what she requested—namely, due process in this appeal.
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