Utz v. Aureguy, 241 P.2d 639 (Cal. Ct. App. 1952). · Go Syfert
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Utz v. Aureguy, 241 P.2d 639 (Cal. Ct. App. 1952). Cases Citing This Book View Copy Cite
181 citation events (38 in the last 25 years) across 3 distinct courts.
Strongest positive: Elena S. v. Kroutik (calctapp, 2016-05-18)
Treatment trajectory · 1952 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) Elena S. v. Kroutik
Cal. Ct. App. · 2016 · confidence medium
(See Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 [ 254 Cal.Rptr. 492 ]; Berg v. Investors Real Estate Loan Co. (1962) 207 Cal.App.2d 808, 817-818 [ 24 Cal.Rptr. 701 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806-807 [ 241 P.2d 639 ].) Although Vlad is representing himself in propria persona, he is not exempt from the rules governing appeals.
discussed Cited as authority (rule) Alonzo v. Center for A.I.D.S. Research CA3
Cal. Ct. App. · 2015 · confidence medium
(See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [new claim raised in reply brief generally deemed forfeited].) 8 Due to amendments, the statutory cross-reference is now to an incorrect subdivision.
discussed Cited as authority (rule) Thornbrough v. Western Placer Unified
Cal. Ct. App. · 2014 · confidence medium
(See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 (Utz).) Further, he does not show where he raised this issue at the administrative hearing or in the trial court, another basis for our finding the issue forfeited.
discussed Cited as authority (rule) Thornbrough v. Western Placer Unified School District
Cal. Ct. App. · 2013 · confidence medium
(See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 241 P.2d 639 ] (Utz).) Further, he does not show where he raised this issue at the administrative hearing or in the trial court, another basis for our finding the issue forfeited.
discussed Cited as authority (rule) Alameda County Flood Control & Water Conservation District v. Department of Water Resources
Cal. Ct. App. · 2013 · confidence medium
(See Loranger, supra, 184 Cal.App.4th at p. 858, fn. 9; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808 [ 241 P.2d 639 ] (Utz).) 29 Moreover, plaintiffs concede the speech “added nothing of substance” to DWR statements made at a press conference about the contracting principles held the next day.
cited Cited as authority (rule) People v. Lynch
Cal. Ct. App. · 2012 · confidence medium
(People v. Baniqued (2000) 85 Cal.App.4th 13, 29 [ 101 Cal.Rptr.2d 835 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808 [ 241 P.2d 639 ].) It is also without merit.
discussed Cited as authority (rule) Maxim Crane Works, L.P. v. Tilbury Constructors
Cal. Ct. App. · 2012 · confidence medium
(See Stevenson v. Baum (1998) 65 Cal.App.4th 159, 167, fn. 8 [ 75 Cal.Rptr.2d 904 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808 [ 241 P.2d 639 ].) Moreover, Maxim’s briefing conceded that the relevant fee provision was “made mutual by Civil Code 1717.” Tilbury had general attorney work done by Downey Brand, and an attorney from that firm oversaw the special counsel hired for this case.
discussed Cited as authority (rule) Andre Flowers v. Dancy
Cal. Ct. App. · 2012 · confidence medium
(See Savient Pharmaceuticals, Inc. v. Department of Health Services (2007) 146 Cal.App.4th 1457, 1472 [ 53 Cal.Rptr.3d 689 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 241 P.2d 639 ].) However, we ordered supplemental briefing to consider whether Andre’s conduct before he became the administrator of the estates could be charged to the estates.
cited Cited as authority (rule) Collins v. Sutter Memorial Hospital
Cal. Ct. App. · 2011 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 241 P.2d 639 ].) Nevertheless, we will put this new argument to rest.
discussed Cited as authority (rule) CYPRESS SECURITY, LLC v. City and County of San Francisco
Cal. Ct. App. · 2010 · confidence medium
It is too little because it is presented as sniping based on bits of evidence, not a *1015 comprehensive analysis of facts and figures needed to mount what constitutes a substantial evidence question (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [ 2 Cal.Rptr.2d 649 ]); it is too late because it arises for the first time in a reply brief (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641 [ 78 Cal.Rptr. 167 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 41 P.2d 639 ]).
discussed Cited as authority (rule) Lennane v. Franchise Tax Board
Cal. Ct. App. · 1996 · confidence medium
(Ibid.) As appellants shouldering the usual burden of affirmatively showing error (see generally, Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ]; In re Kathy P. (1979) 25 Cal.3d 91, 102 [ 157 Cal.Rptr. 874 , 599 P.2d 65 ]), taxpayers have the burden of showing lack of substantial justification.
cited Cited as authority (rule) Gonzalez v. State Personnel Board
Cal. Ct. App. · 1995 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 479, p. 469.) Moreover, CDE has not previously raised this issue in this litigation.
discussed Cited as authority (rule) Bayside Auto & Truck Sales, Inc. v. Department of Transportation
Cal. Ct. App. · 1993 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) Moreover, the argument seems tied to the unsuccessful one above, that Caltrans had a duty enforceable by mandate to offer the property for sale.
cited Cited as authority (rule) Adams v. County of Sacramento
Cal. Ct. App. · 1991 · confidence medium
(See 9 Witkin, Cal. Procedure, op. cit. supra, § 479, p. 469; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807-808 [ 241 P.2d 639 ].) The judgment is affirmed.
cited Cited as authority (rule) Live Oak Publishing Co. v. Cohagan
Cal. Ct. App. · 1991 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) The only direct evidence on the issue of malice produced below was Royster’s deposition testimony.
discussed Cited as authority (rule) Board of Retirement v. Lewis
Cal. Ct. App. · 1990 · confidence medium
(Wilson v. Board of Retirement (1957) 156 Cal.App.2d 195, 212-213 [ 319 P.2d 426 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) Therefore, we summarily affirm the order relating to disqualification of counsel.
discussed Cited as authority (rule) San Bernardino County Flood Control District v. Grabowski
Cal. Ct. App. · 1988 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; see 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal § 479, pp. 469-471.) 10 We are aware of the amendment to section 1268.310, effective on January 1, 1987, by which the Legislature replaced the direct reference to “legal interest” with a reference to a variable rate defined elsewhere in the Eminent Domain Law.
discussed Cited as authority (rule) Laursen v. Fogarty
Cal. Ct. App. · 1988 · confidence medium
Therefore, we will not treat it in the opinion. “ ‘[W]here, as in the instant case, the appealing party fails to furnish this court with either argument or authority upon a point urged as ground for reversal of the judgment, the point will be deemed to have been abandoned.’ ’’ (Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) Since they were not part of the record below, nor relevant to the issues presented, materials relating to fee agreements or fee statements between Basie and Fogarty will not be considered here.
discussed Cited as authority (rule) Borba Farms, Inc. v. Acheson
Cal. Ct. App. · 1988 · confidence medium
(See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) 4 Carol, in the first instance, objected to this court entertaining Acheson’s appeal on grounds Acheson’s present attorney has not properly been substituted as attorney of record in accordance with the requirements of Code of Civil Procedure section 284.
discussed Cited as authority (rule) California Ass'n of Highway Patrolmen v. Department of Personnel Administration
Cal. Ct. App. · 1986 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) Thus, for example, we will not investigate on our own motion whether CAHP officers may be “on call” during their lunch periods within the meaning of paragraph 22 of the applicable memorandum of understanding. 3 Our statement of facts follows the rule that a general demurrer admits the truthfulness of the properly pleaded allegations of the complaint.
discussed Cited as authority (rule) Ford v. State of California (2×)
Cal. Ct. App. · 1981 · confidence medium
In Utz v. Aureguy (1952) 109 Cal. App.2d 803, 806 [ 241 P.2d 639 ], the court quoted the oftrepeated rule that it is "`... well settled that when an appeal is based upon the judgment roll alone a reversal cannot be ordered except for a fatal error on the face of the judgment.'" In the instant case, no error appears on the face of the record before us. *514 (2) Justice Stone cogently stated the law in Brockway v. Heilman (1967) 250 Cal. App.2d 807, 810 [ 58 Cal. Rptr. 772 ], which is applicable here: "We point out that since this is a judgment roll appeal the following rules apply: Error must b…
discussed Cited as authority (rule) Reyes v. Reyes
Cal. Ct. App. · 1979 · confidence medium
(See Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 241 P.2d 639 ].) In any event, section 1132 (g), expressly authorizes an award of attorney’s fees only to a “participant, beneficiary, or fiduciary.” Appellant has failed to establish that she falls within one of the categories of parties entitled to attorney’s fees under this section.
discussed Cited as authority (rule) People v. Boyd
Cal. · 1979 · confidence medium
Although any point not appearing in a party’s brief will ordinarily be deemed waived (see, e.g., Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]), in view of the importance of the question to the administration of justice we permitted additional briefing of the' contention and will consider it as if it had been timely raised.
discussed Cited as authority (rule) Rossiter v. Benoit
Cal. Ct. App. · 1979 · confidence medium
(Richard v. Richard (1954) 123 Cal.App.2d 900, 902 [ 267 P.2d 867 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ].) Points not urged in the trial court may not be urged for the first time on appeal.
discussed Cited as authority (rule) Degener v. Governing Bd. of Wiseburn Sch. Dist.
Cal. Ct. App. · 1977 · confidence medium
(Sinclair v. Aquarius Electronics, Inc. (1974) 42 Cal.App.3d 216, 229 [ 116 Cal.Rptr. 654 ]; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 609 [ 94 Cal.Rptr. 200 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 241 P.2d 639 ].) Does section 13447 require a consideration of all potential as distinguished from assured attrition in teacher rank when reducing or eliminating educational programs?
discussed Cited as authority (rule) Codekas v. Dyna-Lift Co.
Cal. Ct. App. · 1975 · confidence medium
(Dumas v. Stark, 56 Cal.2d 673, 674 [ 16 Cal.Rptr. 368 , 365 P.2d 424 ].) Alternatively, as stated in Utz v. Aureguy, 109 Cal.App.2d 803, 806-807 [ 241 P.2d 639 ], “[I]f an error appears on the face of a judgment roll or other partial transcript it is not to be presumed on appeal that the error was cured by some proceeding not appearing in the transcript.” Hence, it remains “incumbent on an appellant to present a transcript which affirmatively shows on its face that an error occurred.” {Ibid. p. 807.) In the instant case, error does not appear on the face of the record on appeal (see D…
discussed Cited as authority (rule) Sinclair v. Aquarius Electronics, Inc.
Cal. Ct. App. · 1974 · confidence medium
First, it is well established that a point raised in the reply brief for the first time will not be considered by the court unless good reason is shown for failure to present such point before (Boyd v. Bevilacqua (1966) 247 Cal.App.2d 272, 294 [ 55 Cal.Rptr. 610 ]; Utz v. Aureguy (1952) 109 Cal.App.2d 803, 808 [ 241 P.2d 639 ]).
cited Cited as authority (rule) In Re Marriage of Millet
Cal. Ct. App. · 1974 · confidence medium
(See Utz v. Aureguy, 109 Cal.App.2d 803, 806-807 [ 241 P.2d 639 ]; Erikson v. Sullivan, 81 Cal.App.2d 790, 791 [ 185 P.2d 31 ].) He did not even try.
discussed Cited as authority (rule) Wint v. Fidelity & Casualty Co. (2×)
Cal. · 1973 · confidence medium
Seminary, 173 Cal. App.2d 21, 35 [21] [ 343 P.2d 161 ]), the attack on the judgment insofar as it finds in favor of the insurance agency may be deemed to have been abandoned ( Sutter v. Gamel, 210 Cal. App.2d 529, 531 [2] [ 26 Cal. Rptr. 880 ]; Utz v. Aureguy, 109 Cal. App.2d 803, 806-807 [ 241 P.2d 639 ]).
discussed Cited as authority (rule) Scala v. Jerry Witt & Sons, Inc.
Cal. · 1970 · confidence medium
(See, e.g., Utz v. Aureguy (1952) 109 Cal.App.2d 803, 805-806 [ 241 P.2d 639 ]; Erikson v. Sullivan (1947) 81 Cal.App.2d 790 [ 185 P.2d 31 ].) In this instance, however, we deem the shortcoming to be outweighed by the need for this court to resolve the growing conflict among Court of Appeal opinions in their construction of section 657 and their interpretation of Mercer .
discussed Cited as authority (rule) Reagh v. Kelley
Cal. Ct. App. · 1970 · confidence medium
(See rule 15(a), Cal. Rules of Court; see also Fox v. Erickson, 99 Cal.App.2d 740, 742 [ 222 P.2d 452 ]; Utz v. Aureguy, 109 Cal. App.2d 803, 807 [ 241 P.2d 639 ]; Du Zeff’s Hollywood, Inc. v. Wald, 235 Cal.App.2d 678, 682 [ 45 Cal.Rptr. 584 ]; Haynes v. Gwynn, 248 Cal.App. 2d 149, 151 [ 56 Cal.Rptr. 82 ].) We shall, nevertheless, discuss the claim of uncertainty with respect to the Declaration because this claim is interwoven with the contention that there is no valid trust because the Declaration is totally inconsistent with the Deed.
discussed Cited as authority (rule) Thorson v. Western Development Corp.
Cal. Ct. App. · 1967 · confidence medium
(Cal. Rules of Court, rule 52.) “Since the adoption of rule 52, ... if an error appears on the face of a judgment roll or other partial transcript it is not to he presumed on appeal that the error was cured by some proceeding not appearing in the transcript [citations], but it is still incumbent on an appellant to present a transcript which affirmatively shows on its face that an error occurred.” (Utz v. Aureguy, 109 Cal.App.2d 803, 806-807 [ 241 P.2d 639 ].) This Western has failed to do since the record of the hearing at the time of the entry of the default is not presently before this c…
discussed Cited as authority (rule) Coronet Credit Corp. v. West Thrift Co.
Cal. Ct. App. · 1966 · confidence medium
Co., 201 Cal.App.2d 36, 44 [ 19 Cal.Rptr. 879 ] ; Utz v. Aureguy, 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; Title Guar. & Trust Co. v. Fraternal Finance Co., 220 Cal. 362, 363 [ 30 P.2d 515 ]; 3 Within, Cal. Procedure (1954) Appeal, § 150, p. 2332), we must assume that the parol evidence adduced in the court below was properly admitted into evidence.
discussed Cited as authority (rule) Sparks v. Bledsaw
Cal. Ct. App. · 1966 · confidence medium
(Utz v. Aureguy, 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; Wears v. Wears, 201 Cal.App.2d 408, 413-414 [20 Cal. *940 Rptr. 214].) Thus, with the presence of such a poor record, it must be conclusively presumed that no error occurred.
discussed Cited as authority (rule) Olson v. City of Hawthorne
Cal. Ct. App. · 1965 · confidence medium
Inasmuch as this is a judgment roll appeal, all intendments will be made in support of the judgment (Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ]) ; thus the issue of fraud, tried and determined in the court below, is no longer open to inquiry.
discussed Cited as authority (rule) People Ex Rel. Department of Public Works v. Garden Grove Farms
Cal. Ct. App. · 1965 · confidence medium
(Thompson v. Thompson, 218 Cal.App.2d 804, 805 [ 32 Cal.Rptr. 808 ]; Bank of America v. Frost, 205 Cal.App.2d 614, 619 [ 23 Cal.Rptr. 441 ] ; Fernandez v. Fernandez, 194 Cal.App.2d 782, 800 [ 15 Cal.Rptr. 374 ] ; Utz v. Aureguy, 109 Cal.App.2d 803, 805 [ 241 P.2d 639 ].) Furthermore, this case was pleaded and tried on the theory that plaintiff was *671 seeking to condemn Parcel 8D for a school site for exchange.
discussed Cited as authority (rule) Clyne v. Clyne
Cal. Ct. App. · 1964 · confidence medium
(Cal. Rules of Court, rule 52.) 2 If not, we must accord the judgment all favorable inferences, (Conner v. Bose, 219 Cal.App.2d 327, 328 [ 32 Cal.Rptr. 919 ]; Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ]) and the general rules of law stated above would be of little assistance to appellant’s cause.
discussed Cited as authority (rule) Hudspeth v. Earlywine
Cal. Ct. App. · 1964 · confidence medium
(Utz v. Aureguy, 109 Cal.App.2d 803, 806-807 [ 241 P.2d 639 ]; Richard v. Richard, 123 Cal.App.2d 900, 902 [ 267 P.2d 867 ].) The burden of proving that the property he sought to have distributed to him came within the purview of sections 228 or 229 of the Probate Code rested upon the appellant.
discussed Cited as authority (rule) Arruda v. Arruda
Cal. Ct. App. · 1963 · confidence medium
(Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ].) Plaintiff has not taken advantage of either rule 6 or rule 7 to bring before this court the oral proceedings, or any part thereof, in the trial court.
discussed Cited as authority (rule) Ferelli v. Weaver
Cal. Ct. App. · 1962 · confidence medium
(Hearst Publishing Co. v. Abounader, 196 Cal.App.2d 49 [ 16 Cal.Rptr. 244 ] ; White v. Jones, 136 Cal.App.2d 567, 569 [ 288 P.2d 913 ]; Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ] ; Palpar, Inc. v. Thayer, 83 Cal.App.2d 809, 811 [ 189 P.2d 752 ], See 3 Witkin, California Procedure, p. 2241.) Furthermore, under California Constitution, article VI, section 4%, the judgment may not be set aside for any error as to any matter of procedure unless the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.
discussed Cited as authority (rule) Paul v. Allied Dairymen, Inc.
Cal. Ct. App. · 1962 · confidence medium
Co., 44 Cal.2d 321, 324 [ 282 P.2d 33 ]; Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ]; Neal v. Bank of America, 93 Cal.App.2d 678, 682 [ 209 P.2d 825 ]; McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551, 555 [ 258 P.2d 528 ]; Helvey v. Security-First Nat.
cited Cited as authority (rule) Berg v. Investors Real Estate Loan Co.
Cal. Ct. App. · 1962 · confidence medium
(Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; 3 Witkin, Cal. Procedure (1954) p. 2302.) The judgment is affirmed.
discussed Cited as authority (rule) Bank of America v. Frost
Cal. Ct. App. · 1962 · confidence medium
(Utz v. Aureguy, 109 Cal.App.2d 803, 808 [8] [ 241 P.2d 639 ]; Gerace v. Key System Transit Lines, 146 Cal.App.2d 667 , 673 *620 [ 304 P.2d 88 ]; Estate of Barbikas, 171 Cal.App.2d 452 , 464 [13] [ 341 P.2d 32 ].) Furthermore, these requested special findings were whether or not the deed was delivered on February 8, 1958, to William or some third person; whether or not Marcus, prior to the signing of the deed, explained to Ezeldal the consequences and effect of executing same; and whether or not Marcus was then acting as Ezekial’s attorney.
discussed Cited as authority (rule) Ganahl v. Certain Individuals
Cal. Ct. App. · 1962 · confidence medium
Dept. of Public Works v. McCullough, 100 Cal.App.2d 101 [ 223 P.2d 37 ], the court said (p. 106) : ‘A court of appeal may properly consider the point as waived when it is not *583 presented in the opening brief.’ (See to the same effect: Utz v. Aureguy, 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ] ; Schultz v. Steinberg, 182 Cal.App.2d 134, 137 [ 5 Cal.Rptr. 890 ].) In Richard v. Richard, 123 Cal.App.2d 900 [ 267 P.2d 867 ], the court pointed out (p. 903) that: ‘[t]he obvious reason for this rule is that opposing counsel is not afforded an opportunity of answering the contentions of the appe…
discussed Cited as authority (rule) Mears v. Mears
Cal. Ct. App. · 1962 · confidence medium
That is not a substitute for the record before the trial court, particularly as that petition makes no reference to any record. 11 [I]t is still incumbent on an appellant to present a transcript which *414 affirmatively shows on its face that an error occurred.” (Utz v. Aureguy (1952) 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ].) 5.
discussed Cited as authority (rule) Wheeling v. Financial Indemnity Co.
Cal. Ct. App. · 1962 · confidence medium
Dept. of Public Works v. McCullough, 100 Cal.App.2d 101 [ 223 P.2d 37 ], the court said (p. 106): “A court of appeal may properly consider the point as waived when it is not presented in the opening brief.” (See to the same effect: Utz v. Aureguy, 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; Schultz v. Steinberg, 182 Cal.App.2d 134, 137 [ 5 Cal.Rptr. 890 ].) In Richard v. Richard, 123 Cal.App.2d 900 [ 267 P.2d 867 ], the court pointed out (p. 903) that: “ [t]he obvious reason for this rule is that opposing counsel *45 is not afforded an opportunity of answering the contentions of the appell…
discussed Cited as authority (rule) Barry v. Rodgers
Cal. Ct. App. · 1962 · confidence medium
It does not “do away with the necessity of affirmatively showing error, and if no error appears on the face of the partial transcript the appellate court will not presume that if the whole transcript had been presented some error would appear.” (Palpar, Inc. v. Thayer, 83 Cal.App.2d 809, 811 [ 189 P.2d 752 ].) Accord: Utz v. Aureguy, 109 Cal.App.2d 803, 807 [ 241 P.2d 639 ]; Kabzenell v. Stevens, 168 Cal.App.2d 370, 376 [ 336 P.2d 250 ]; Hawke v. Burns, 140 Cal.App.2d 158, 169 [ 294 P.2d 1008 ]. *303 The appeal of Willard K.
cited Cited as authority (rule) Middlecoff v. Middlecoff
Cal. Ct. App. · 1962 · confidence medium
(McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551 [ 258 P.2d 528 ]; Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639]; Cunha v. Anglo Cal. Nat.
cited Cited as authority (rule) Estate of Emery
Cal. Ct. App. · 1962 · confidence medium
(McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551 [ 258 P.2d 528 ]; Utz v. Aureguy, 109 Cal.App.2d 803, 806 [ 241 P.2d 639 ]; Cunha v. Anglo Cal. Nat.
discussed Cited as authority (rule) Dumas v. Stark
Cal. · 1961 · confidence medium
(White v. Jones, 136 Cal.App.2d 567, 571 [ 288 P.2d 913 ]; Utz v. Aureguy, 109 Cal.App.2d 803, 805-807 [ 241 P.2d 639 ].) On the other hand, if the error claimed by appellant does appear on the face of the record on such an appeal, the presumption in rule 52 is applicable.
Retrieving the full opinion text from the archive…
HAZEL UTZ, Appellant,
v.
CARMELITA THEOBALD AUREGUY, as Administratrix, Etc., Et Al., Respondents
Civ. 14726.
California Court of Appeal.
Mar 19, 1952.
241 P.2d 639
1952 Cal. App. LEXIS 1916
Alfred J. Hennessy for Appellant., W. Byron Bryant, Jay Pfotenhauer and Simpson Finnell, Jr., for Respondents.
Cited by 99 opinions  |  Published
[*805] THE COURT.

This is an appeal on the judgment roll from a judgment dismissing the action.

The record consists of the third amended complaint; notice of motion to amend the same, and the amendment; motion to dismiss; demurrer to third amended complaint and to the amendment thereto; points and authorities; order of substitution ; judgment; notice of appeal, and request for transcript.

The motion to dismiss the action was made on the grounds that “As originally begun with the filing of the complaint herein, the action was sham and based on false allegations” and the first, second and third amended complaints were “likewise sham and based upon false allegations”; that the filing of the third amended complaint and its amendment, and the maintenance of the action, “were and are an abuse of the process of the court by the plaintiff,” and that “the interests of justice will be served by the dismissal ...” The motion was based on four affidavits theretofore filed by defendants, and all the records, papers and pleadings, including the original complaint, the first, second and third amended complaints, the amendment to the latter, the demurrers and answers thereto, the motions to strike, and a deposition of the plaintiff.

Appellant, an attorney at law, sued for damages arising from being deprived of what she claimed to be her share in attorney fees recovered by respondents, from certain heirs of the late Michael P. O ’Dea, whose estate—of large value—was in probate.

The judgment recites that after full argument on the motion and demurrer, the motion was granted and the demurrer sustained without leave to amend.

The Record on Appeal

Although the motion to dismiss was based on (a) defendants’ four affidavits, (b) all the pleadings in the ease, and (c) a deposition of the plaintiff, this record contains none of them save the third amended complaint and its amendment and the demurrer thereto. Indeed the request for a transcript called for none of them; it called for the notice of appeal, the notice of motion and the motion to substitute a party, the order granting such motion, and for nothing else.

In the absence of defendants’ four affidavits, plaintiff’s counteraffidavits (if any were filed), plaintiff’s deposition, and the first three complaints, all of which constituted the showing before the trial court, there is no way of knowing[*806] anything about that showing. Without the three earlier complaints there is no basis for the comparison of one with another to ascertain if there were any departures, variances, inconsistencies, or conflicts within them, or other evidence of a shifting of theories, all of which as a rule are highly important on such a motion.

“It is incumbent upon the appellant to make it affirmatively appear that error was committed by the court below.” (Cockrill v. Clyma, 98 Cal. 123, 126 [32 P. 888].)

“When an appeal ... is to be determined upon the judgment roll alone, all intendments will be made in support of the judgment, and all proceedings necessary to its validity will be presumed to have been regularly taken . . . If any matters could have been presented to the court below which would have authorized the entry of this judgment, it will be presumed on this appeal, in support of the judgment, that such matters were so presented, and that the judgment was entered in accordance therewith.” (Caruthers v. Hensley, 90 Cal. 559, 560 [27 P. 411].) In Riley v. Dunbar, 55 Cal.App.2d 452, 455 [130 P.2d 771], the rule is restated and 2 Cal.Jur. § 499, p. 852 et seq. cited.

In Helvey v. Security First Nat. Bank, 99 Cal.App.2d 149, 151 [221 P.2d 257], the court said: “No record of the evidence before the trial court has been supplied to this court. Therefore, it must be presumed that the evidence supports the order. (Vieth v. Klett, 88 Cal.App.2d 23 [198 P.2d 314] ; Lucich v. Lucich, 75 Cal.App.2d 890 [172 P.2d 73].) . . . The superior court has inherent power to dismiss actions which are made to appear fictitious and sham. (Cunha v. Anglo California National Bank, 34 Cal.App.2d 383 [93 P.2d 572].)”

In Oakley v. Rosen, 76 Cal.App.2d 310,. 312 [173 P.2d 55], the court said that it is “well settled that when an appeal is based upon the judgment roll alone a reversal cannot be ordered except for a fatal error on the face of the judgment.”

In Nulsen v. Nulsen, 84 Cal.App.2d 306, 307 [190 P.2d 316], the court said: “The record on appeal consists of the clerk’s transcript only. And it is well settled that when the record on appeal consists of the judgment roll alone, only the alleged errors appearing therein may be considered. No such errors appear.” The same may be said here.

Since the adoption of rule 52, Rules on Appeal, if an error appears on the face of a judgment roll or other par[*807] tial transcript it is not to be presumed on appeal that the error was cured by some proceeding not appearing in the transcript (Estate of Pierce, 32 Cal.2d 265 [196 P.2d 1]; Alkus v. Johnson Pacific Co., 80 Cal.App.2d 1 [181 P.2d 72] ; Palpar, Inc. v. Thayer, 82 Cal.App.2d 578 [186 P.2d 748]) but it is still incumbent on an appellant to present a transcript which affirmatively shows on its face that an error occurred (Palpar, Inc. v. Thayer, 83 Cal.App.2d 809 [189 P.2d 752] ; Van Cise v. Lencioni, 106 Cal.App.2d 341 [235 P.2d 236], and cases collected at p. 350; Glogau v. Hagan, 107 Cal.App.2d 313 [237 P.2d 329]).

The Briefs on Appeal

Appellant’s opening brief consists of seven pages, more than five of which are devoted to a statement of earlier procedural steps and an argument that the last complaint states a cause of action for fraud and deceit. It contains a short paragraph on the statute of limitations and one on exemplary damages. It presents no point and cites no authority attacking the dismissal. (See rule 13, Rules on Appeal, 36 Cal.2d 14.)

In respondents’ brief counsel say: “the brief of appellant is so faulty that it presents difficulty in the making of a proper reply as it is not possible to determine from it upon what ground, if any, appellant is seeking to reverse the judgment of the lower court in granting the motion of respondents to dismiss the case ...” With this we have to agree. Respondents add: “Appellant states that this is an appeal from the judgment granting the motion to dismiss the case but thereafter does not again in her brief mention the motion or the court’s ruling thereon. We assume from such failure that appellant has abandoned her appeal from the judgment of dismissal.”

Respondents quote the following from Estate of Scott, 90 Cal.App.2d 21, 24-25 [202 P.2d 357] : “the rule is settled that where, as in the instant case, the appealing party fails to furnish this court with either argument or authority upon a point urged as ground for reversal of the judgment, the point will be deemed to have been abandoned. ’ ’ Respondents cite also Ver Bryck v. Luby, 67 Cal.App.2d 842, 845 [155 P.2d 706] ; Bagley v. International Harvester Co., 91 Cal.App.2d 922 [206 P.2d 43]; Ellerhorst v. Blankman, 102 Cal.App. 133 [282 P. 507]. None of these cases cited by respondents has been answered or even mentioned in appellant’s closing brief.

[*808] In her closing brief appellant for the first time discusses the motion to dismiss, but only to the extent of citing general rules relating to sham and fictitious pleadings, and without attempting to point out how they are supposed to apply to this ease. Such relationship or applicability of course could not very well be argued in the absence of a record showing what the trial court had before it on the motion.

There is no point in prolonging this discussion since-the closing brief (a) is not only general insofar as the dismissal is concerned, and (b) fails entirely to answer the authorities cited by respondents, but (c) the case falls squarely within the following rule stated in 2 California Jurisprudence page 734: “In fairness to the court and to counsel for the respondents, every point relied on for research [“reversal” obviously] should be stated and argued in the opening brief for the appellant, and should not be presented for the first time in the reply brief. Points so presented will be passed over by the courts as a general rule ...”

It follows that the judgment of dismissal must be affirmed. No purpose will be served by a discussion of the demurrer which was sustained without leave to amend. If the motion to dismiss the action was well taken on the grounds on which it was based that ended the case.

The judgment is affirmed.