NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. Super. Ct. No. 05CECG01501 Alan M. Simpson, Judge.
Edwin L. Pyle, in pro. per., for Plaintiff and Appellant.
Weakley, Ratliff, Arendt & McGuire, and Leslie M. Dillahunty, for Defendants and Respondents.
Appellant Edwin L. Pyle filed this civil action against the City of Fresno (City) after the City allegedly denied his application for approval of a “second unit” residence on his property. His in propria persona third amended complaint described the second unit residence as a 306 square foot structure with “a kitchenette and bathroom with shower stall.” The third amended complaint alleged five causes of action. They were entitled: (1) “CCP §1085, - Illegal Denial of Building Permit”; (2) “Govt. Code §815.6 CITY Liability”; (3) “Govt. Code 820. (a) Illegal Revocation of Electrical Service Meter Permit”; (4) “Fee Mitigation Act – Government Code §§ 66000 – 66025”; and (5) “Injunctive Relief.” After appellant presented his case at his jury trial, the court granted the City’s motion for nonsuit “as to the plaintiff’s first, second and fourth cause of action.” The trial continued on appellant’s third cause of action only, and the jury returned a special verdict answering the question “Did the plaintiff Edwin Pyle prove by a preponderance of the evidence that the revocation of plaintiff’s electrical permit was illegal?” with an answer of, “No.” It is not clear from the record on appeal what happened to appellant’s fifth cause of action, but it is clear from the judgment that the court granted no injunctive relief (or any other relief) of any kind. The judgment ordered that “plaintiff take nothing by reason of his complaint.”
Pyle now represents himself in this court on his appeal from the judgment. His opening brief describes the three issues he attempts to raise on this appeal as follows: (1) “APPELLANT’S STATUTORY RIGHT AS DEFINED BY GOVERNMENT CODE § 65852.2 TO HAVE A SECOND UNIT RESIDENCE AS SUBMITTED TO RESPONDENT CITY WAS VIOLATED”; (2) “WAS REVOCATION OF PLAINTIFF’S ELECTRICAL PERMIT ILLEGAL[?];” and (3) “Is CITY’S Site Plan/2nd Unit Residence FEE a Special Tax as Defined By Gov. Code § 50076 as Regulated By The Fee Mitigation Act Gov. Code §§ 60000-66025” As we shall explain, appellant has failed to demonstrate that the trial court erred in entering judgment against him, and we will therefore affirm the judgment.
The statement of facts in appellant’s opening brief is a six-page narrative, much of which contains no citation to evidence that was actually presented at trial. This is perhaps because the record appellant has presented to us on this appeal contains only a fraction of the evidence presented at the trial. The clerk’s minutes show the following. On the first day of trial (Oct. 10, 2006) the court heard motions in limine and began jury selection. On the second day (Oct. 11, 2006) the court completed jury selection and adjourned until the following day. There are no minutes for the third day (Oct. 12, 2006), but the partial reporter’s transcript presented to us by appellant includes an opening statement given by the City’s trial counsel (Ms. Dillahunty) on the afternoon of October 12. After the court thanked counsel for her opening statement, the partial transcript for October 12 ends. It contains no indication that court adjourned after that opening statement. We simply do not know what else, if anything, occurred on October 12, 2006.
The clerk’s minutes for the fourth day of trial (Oct. 16, 2006) show that on that day the jury heard testimony from plaintiff’s witnesses Adele Pyle, Kevin Friesen, Leticia Jacobo, Damon Runyan, appellant (Edwin L. Pyle) and Tony Perez. The court also received into evidence a documentary exhibit (Pltf.’s Exhs. No. 2). The partial reporter’s transcript provided by appellant begins with his own testimony and includes only the testimony of himself and Mr. Perez. It does not include the testimony of the first four witnesses who testified that day. Nor does the record on appeal include plaintiff’s exhibit No. 2.
The clerk’s minutes for the fifth day of trial (Oct. 17, 2006) show that the day began with appellant recalling himself as a witness, and then resting his case after finishing his testimony. The City then moved for a nonsuit. The court heard argument on the motion, and then granted it “as to the plaintiff’s first, second and fourth cause of action,” and further ruled that “[t]he defendant is to present their case as to the third cause of action only.” The defense presented the testimony of witness Emilio “Buddy” Palomo and then rested. In the afternoon, the court received two more items into evidence (Pltf.’s Exhs. A & B), the jury heard argument from the parties, the court instructed the jury on the law, and the jury began deliberations. The jury submitted a question to the court, and the court answered it. The jury requested readback of some testimony, and the court reporter read back the testimony. Court then adjourned. The partial reporter’s transcript of the October 17, 2006 proceedings presented to us by appellant includes only the testimony of himself and of Mr. Palomo. It does not include the City’s motion for a nonsuit, the arguments presented to the court on that motion, the court’s ruling at the hearing on the motion, the parties’ arguments to the jury, or the court’s instructions to the jury on the applicable law. Nor does the record on appeal contain any written instructions which may have been submitted to the jury, so we have no knowledge as to how the court instructed the jury on the law applicable to this case.
The clerk’s minutes for the sixth day of trial (Oct. 18, 2006) show that the jury convened and resumed deliberations at 8:48 a.m., and at 9:14 a.m. advised the bailiff that a verdict had been reached. As aforementioned, the jury answered “No” to the special verdict question “Did plaintiff Edwin Pyle prove by a preponderance of the evidence the revocation of plaintiff’s electrical permit was illegal?” The jury thus did not need to reach the special verdict questions asking if the allegedly illegal revocation caused damage to appellant and, if so, in what amount.
The partial reporter’s transcript presented to us on this appeal contains the testimony of three witnesses: appellant, Mr. Tony Perez and Mr. Emilio “Buddy” Palomo. Appellant’s direct examination of himself presented evidence of his dealings with the City, but presented no evidence of any damage suffered by him due to his lack of success in obtaining a building permit. This would explain his lack of success on his second cause of action for damages caused by the City’s failure to issue him the building permit he sought. He did testify that he sold the subject property prior to the trial. This would explain his lack of success on his first cause of action seeking a writ of mandamus directing the City to issue him a building permit. The City cannot authorize him to build anything on property he no longer owns. Mr. Perez was a subpoenaed plaintiff’s witness and a City employee. Appellant showed him various documents (which do not appear in the record on appeal) and asked him questions about them, and asked him for the names of other City employees who may have worked on those documents. We cannot discern what the purpose of this testimony was. The City’s attorney asked Mr. Perez one question on cross-examination. The question was: “What is the project description for the plan check correction comments?” His answer was: “The project description is on the cover page. It’s ‘Utility room work without permit.’”
Mr. Palomo was a defense witness. He testified that as an electrical inspector for the City he had approved the “rough electric” for appellant’s project in September of 2004. Palomo described the project as “a storage shed in the back of [appellant’s] home.” In December of 2004 Palomo returned to appellant’s property because appellant “was calling for temporary power.” Palomo approved appellant’s request for temporary power, but shortly thereafter revoked that approval because he learned that a utility building could not have a separate electrical meter on it (i.e., a meter other than the one serving the main residence at the address where the utility building was located). Palomo testified that he went back to see appellant, told appellant that he had revoked appellant’s approval for temporary electrical power, and discussed with appellant a couple of other ways to “put power to that particular building” without having a separate electrical meter on the structure. Perhaps most importantly, Palomo testified that the reason why appellant could not have a second electrical meter at that same address was that appellant did not have approved plans for a second unit dwelling. If appellant had had approved plans for a second unit dwelling, Palomo would have approved a separate second electrical meter. Appellant’s plans, however, were for a “shed.” Palomo further testified that appellant himself told Palomo that appellant was building a storage shed. Palomo’s testimony appears to pertain to appellant’s third cause of action for “Illegal Revocation of Electrical Service Meter Permit.” Once again, however, we note that we see no evidence presented to us in the record on this appeal of any damage suffered by appellant as a result of his inability to obtain (or his loss of) electrical power for the structure.
This appeal requires us to revisit and restate some basic, fundamental principles of appellate review. “‘A judgment or order of the lower court is presumed correct.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed.’ [Citation.]” (Walling v. Kimball (1941) 17 Cal.2d 364, 373; Hibernia Sav. & Loan Soc. v. Ellis Estate Co. (1933) 132 Cal.App.408, 412.) “All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal.” (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.) “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.” (Coleman v. Farwell (1929) 206 Cal. 740, 741.) “‘“[E]rror must be affirmatively shown.”’” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) Furthermore, “[w]hen an appellant decides to represent himself in propria persona, ‘he is entitled to the same, but no greater, consideration than other litigants and attorneys.’ [Citations.]” (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193; in accord, Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638, disagreed with on another ground in Dumas v. Stocker (1989) 213 Cal.App.3d 1262, 1267, fn. 13), and Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) This holds true both in the appellate courts (see Bistawros, supra), and in the trial courts. “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
“When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion. [Citations.]” (Bowers v. Bernard (1984) 150 Cal.App.3d 870, 873-874.) Substantial evidence is evidence “‘of ponderable legal significance, … reasonable in nature, credible, and of solid value.’ [Citations.]” (Id. at p. 873.) “When two or more inferences can reasonably be deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.” (Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429; in accord, see also Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)
“APPELLANT’S STATUTORY RIGHT AS DEFINED BY GOVERNMENT CODE § 65852.2 TO HAVE A SECOND UNIT RESIDENCE AS SUBMITTED TO RESPONDENT CITY WAS VIOLATED”
As we have already mentioned, appellant presented no evidence that he still owned the subject property. Rather, he testified that he sold the property prior to trial. The court therefore did not err in refusing to order the City to issue appellant a building permit. As we have also already mentioned, appellant presented no evidence that he suffered any damage from the City’s purported refusal to issue him the permit he desired. Thus even if we were to assume, without deciding the issue, that appellant had demonstrated some error in the City’s refusal to grant him a permit, he makes no attempt to explain what relief the trial court could have granted him or how the court erred in granting the City’s motion for a nonsuit on appellant’s first and second causes of action. (Walling v. Kimball, supra, 17 Cal.2d 364)
“WAS REVOCATION OF PLAINTIFF’S ELECTRICAL PERMIT ILLEGAL[?]”
Once again, even if we assume that appellant had an electrical meter permit that was wrongfully revoked, appellant points to no evidence explaining how he was harmed from such an assumed wrongful revocation. (Walling v. Kimball, supra, 17 Cal.2d 364.) Furthermore, he fails to explain how there was any error in the jury’s determination that he failed to prove by a preponderance of the evidence that the revocation of his electrical permit was illegal. The testimony of witness Palomo was that appellant was not entitled to a second electrical meter at his East Kerckhoff address without approved plans for a second unit dwelling. This is substantial evidence supporting the jury’s determination. (Bowers v. Bernard, supra, 150 Cal.App.3d 870.) If appellant is contending that Palomo’s testimony conflicted with a rule of law, and that there is a law which required the City to issue appellant a permit even without approved plans for a second unit dwelling, appellant fails to call our attention to any such law.
Appellant testified that he paid a $1,724 site plan review fee. He contends that the fee was illegal and that the money should be refunded to him. We reject this contention.
Appellant’s argument appears to be that the Mitigation Fee Act (Gov. Code, § 66000 et seq.) entitles him to a refund of the fees paid if he simply files an action alleging that the fees are excessive and if the City does not then affirmatively show that the fees are reasonable. This argument was rejected by the California Supreme Court in Barratt American, Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, where the court stated:
“Section 66020 provides that ‘Any party may protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project, as defined in Section 66000 , by a local agency’ by paying the fees and serving a written notice of protest. (§ 66020, subd. (a), italics added.) A local agency must provide a development project applicant written notice of the amount of the fees when imposing them and must indicate that the applicant has 90 days to protest the fees. (§ 66020, subd. (d)(1).) ‘Any party who files a protest pursuant to subdivision (a) may file an action to attack, review, set aside, void, or annul the imposition of the fees, dedications, reservations, or other exactions imposed on a development project by a local agency within 180 days after the delivery of the notice.’ (§ 66020, subd. (d)(2).)
“Section 66021 provides that ‘Any party on whom a fee, tax, assessment, dedication, reservation, or other exaction has been imposed, the payment or performance of which is required to obtain governmental approval of a development, as defined by Section 65927, or development project, may protest the establishment or imposition of the fee, tax, assessment, dedication, reservation, or other exaction as provided in Section 66020.’ (§ 66021, subd. (a), italics added.)
“Barratt argues that it complied with the statutory procedural requirements of sections 66020 and 66021 by paying the fees and submitting a letter of protest to the City, dated September 21, 2001. The City responds that those sections do not create a refund remedy for ‘excess’ regulatory fees, such as building permit and plan review fees, because they are not fees imposed on a development project within the meaning of sections 66020 and 66021. Thus, those sections do not apply here. We agree that Barratt’s refund claim fails because sections 66020 and 66021 do not apply to the building permit fees it paid.
“‘[F]ees ... imposed on a development project,’ as used in section 66020, refers to ‘fees’ and a ‘development project’ as defined in section 66000. A ‘development project’ is defined as ‘any project undertaken for the purpose of development ... includ[ing] a project involving the issuance of a permit for construction or reconstruction, but not a permit to operate.’ (§ 66000, subd. (a).) A ‘fee’ is defined as ‘a monetary exaction other than a tax or special assessment ... that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include ... fees for processing applications for governmental regulatory actions or approvals ....’ (§ 66000, subd. (b), italics added.) Thus, section 66020, by its own terms, applies only to ‘development fees’ that alleviate the effects of development on the community and does not include fees for specific regulations or services.” (Id. at pp. 695-696.)
The Barratt American court was unsympathetic to the argument that depriving individual fee payers of a refund remedy is unfair. It observed that the Mitigation Fee Act contains provisions authorizing challenges, within certain time limits, to ordinances adopting or modifying fees. (See Gov. Code § 66022, subd. (a).) “Barratt argues that depriving individual fee payers, such as itself, of a refund remedy is unfair …. However, such fee challenges would subject cities to suits for building permit fee refunds at any time well beyond the 120-day limitations period set forth in section 66022. This would undermine the purpose of that shortened limitations period, to give public agencies ‘certainty with respect to the enforceability of their fee ordinances and resolutions.’ [Citation.] We must apply the statutory scheme as written. Barratt’s concerns are more appropriately brought to the attention of the Legislature.” (Barratt American, Inc. v. City of Rancho Cucamonga, supra, 37 Cal.4th at pp. 699-700, fn. omitted.)
The judgment is affirmed. Costs to respondent.
WE CONCUR: Harris, J., Levy, J.