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Eannarino v. Martin

Dec 18, 2012
D060063 (Cal. Ct. App. Dec. 18, 2012)




JAIME EANNARINO, Plaintiff and Respondent, v. EDNA MARTIN, Defendant and Appellant.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2011-00053358-CU-HR-NC)

APPEAL from a judgment of the Superior Court of San Diego County, Martin W. Staven, Judge. Affirmed.

Edna Martin appeals the trial court's grant of Jaime Eannarino's petition for a restraining order against Martin, who, among other things, was ordered not to harass, attack, strike, threaten, assault, follow, stalk, contact, or take any direct action, directly or through others, to obtain the addresses or locations of Eannarino and her husband, Tim Eannarino, and their child, Aiden Eannarino, for a period of three years. Martin contends she never harassed the Eannarinos, and would never harm their child. Eannarino has not filed a reply brief in this appeal. We affirm.


Martin has not included a copy of the restraining order petition in the record on appeal. But she has submitted the response to the petition by her husband, James Martin, which we set forth verbatim, leaving its spelling and grammatical errors intact: "We opened our HOME, our HEARTS and our WALLET to Tim, Jaime & Aiden. We helped them so Jaime would not have to work but could stay home with and enjoy her baby. Our only goal to have them live in our home was so they could save money to buy their own place & pay off all their bills. We asked nothing from them, they paid for nothing we supported totally out of our own budget and at time's it way tough on us: but our goal was for Jaime not to work and them to buy their place. We met our goals! I was so Happy for them the two weekend that we helped them move into their new condo we helped give new life for a young Marine family! 'Hurrah Hurrah we did it' I told them we would always be a part of each other lives And they would always be in our thought and prayers."

In response to the petition, James Martin also submitted his declaration, photographs of the Eannarino family with the Martins, financial documents showing the Martins made loans to the Eannarinos, and letters of support for the Martins.

In April 2011, the court held a hearing on the petition. The court's minute order states Eannarino and Martin testified, but the record transcript only includes portion of testimony by Eannarino and James Martin. The trial court granted the petition for a restraining order.



A trial court's judgment or order is presumed to be correct. In Denham v. Superior Court (1970) 2 Cal.3d 557, the court stated: "[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 [by the appellant]. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Id. at p. 564.)

"The burden of affirmatively demonstrating error is on the appellant." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) "An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. 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." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

"Where a point is merely asserted by [appellant] without any [substantive] argument of or authority for its proposition, it is deemed to be without foundation and requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved on another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) Appellants acting in propria persona are held to the same standards as those represented by counsel. (See, e.g., City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.)


Martin has waived her appellate contentions by not presenting any coherent or comprehensible, substantive legal arguments supported by citations to the record and legal authorities. She has not demonstrated the trial court erred by granting the restraining order. To the extent Martin makes other contentions on appeal, her briefing is so fragmented that we cannot discern their substance. Accordingly, we need not discuss the merits of each contention and conclude Martin has waived her appellate contentions. (Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852.) We further note that Martin's opening brief does not contain any summary of significant facts and its assertions of fact are supported by very few citations to the record on appeal, violating California Rules of Court, rule 8.204(a)(2)(C). For example, as noted, Martin has not included in the appellate record a copy of Eannarino's petition for the restraining order. Statements of fact not part of, or supported by citations to, the record on appeal are improper and cannot be considered on appeal. (Rule 8.204(a)(2)(C); Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) We disregard any statements of fact set forth in Martin's brief that are outside of the record on appeal. (Pulver, at p. 632; Kendall, at p. 625; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.)

All rule references are to the California Rules of Court.

Furthermore, to the extent Martin's assertions of fact and procedure ostensibly refer to matters within the record on appeal, her brief does not contain adequate citations to the appellate record, in violation of rule 8.204(a)(1)(C). Like in Nwosu v. Uba (2004) 122 Cal.App.4th 1229, at page 1246, Martin's briefs are, in large part, "devoid of citations to the [record on appeal] and are thus in dramatic noncompliance with appellate procedures." "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) To the extent Martin's contentions do not contain adequate supporting citations to the record on appeal, we consider those contentions to have been waived. (Nwosu, at p. 1247; City of Lincoln, at p. 1239; Duarte, at p. 856; Guthrey, at p. 1115.)

In any event, assuming arguendo Martin has not waived her appellate contentions, we conclude her appellate arguments are insufficiently understandable, specific and/or nonconclusory and therefore she has not carried her burden on appeal to present persuasive substantive argument and analysis showing the trial court prejudicially erred. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105 [conclusory claims did not persuade appellate court].)


The judgment is affirmed.




HUFFMAN, Acting P. J.



Summaries of

Eannarino v. Martin

Dec 18, 2012
D060063 (Cal. Ct. App. Dec. 18, 2012)
Case details for

Eannarino v. Martin

Case Details

Full title:JAIME EANNARINO, Plaintiff and Respondent, v. EDNA MARTIN, Defendant and…


Date published: Dec 18, 2012


D060063 (Cal. Ct. App. Dec. 18, 2012)