ELI ESMAEL v. SECRET INTELLIGENCE SERVICE (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiffs and appellants Eli Esmael and FilmMakers Against Fascism appeal from a trial court order dismissing their action against defendants and respondents U.K. Secret Intelligence Service (SIS, MI6) “and its agents, employees, aids and abettors.”   We conclude that the trial court did not err.

Inadequacies of Appellants' Opening Brief and Record

The major problem with appellants' appeal lies in their opening brief.   Their brief begins:  “This lawsuit arises from Defendants' conspiracy to assault and batter Appellant Eli Esmael with directed energy weapons, electronic weapons, and electronic instruments used as weapons-more than 130,000[ ] times in retaliation for Appellant's founding human rights organization, Appellant, FilmMakers Against Fascism.”   The 50 pages that follow are largely unintelligible, and even a cursory review of the opening brief reveals that it does not provide us with the basic information we need to determine what is being challenged by appellants.   As another court observed in describing a similarly inadequate brief, “[i]ndeed, this document is strongly reminiscent of those magazine puzzles of yesteryear where the reader was challenged to ‘guess what is wrong with this picture.’ ”  (People v. Dougherty (1982) 138 Cal.App.3d 278, 280.)

Furthermore, the opening brief, which largely consists of a rambling discussion of unfounded facts,¹ violates California Rules of Court, rule 8.204(a):  Although numerous case citations are provided, the brief does not “support each point by argument and ․ by citation of authority” (rule 8.204(a)(1)(B);  see also Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant bears the burden of supporting a point with reasoned argument];  County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 [appellant must present argument on each point made] ).   It does not “[s]upport [each] reference to a matter in the record by a citation to the volume and page number of the record where the matter appears” (rule 8.204(a)(1)(C)).  It does not “[s]tate the nature of the action, the relief sought in the trial court, and the judgment or order appealed from” (rule 8.204(a)(2)(A)).   It does not “[s]tate that the judgment appealed from is final, or explain why the order appealed from is appealable” (rule 8.204(a)(2)(B)).  And, it does not “[p]rovide a summary of the significant facts limited to matters in the record” (rule 8.204(a)(2)(C);  see also Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115).

In short, instead of addressing why their action was improvidently dismissed, appellants repeatedly discuss irrelevant allegations that are factually unsound and unsupported.  “ ‘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.   It is entitled to the assistance of counsel [or the litigant if, as here, the litigant chooses to represent himself].   Accordingly every brief should contain a legal argument with citation of authorities on the points made.   If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’  [Citation.]  [¶] It is the duty of [an appellant], not of the courts, ‘by argument and the citation of authorities to show that the claimed error exists.’  [Citation.]”  (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)   Since the issues as raised in appellants' opening brief are not properly presented or sufficiently developed to be cognizable, we decline to consider them and treat them as waived.  (People v. Stanley (1995) 10 Cal.4th 764, 793;  People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19;  In re David L. (1991) 234 Cal.App.3d 1655, 1661;  Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)   Nor does appellants' election to act in propria persona on appeal entitle them to any leniency as to the rules of practice and procedure;  otherwise, ignorance unjustly is rewarded.²  (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985;  Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208-209.)

Moreover, an appellate court presumes that the judgment appealed from is correct.  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)   We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them.  (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)   The appellant has the burden of overcoming the presumption of correctness, even when the appellate court is required to conduct a de novo review.

The opening brief is not the only failure of appellants;  the record wholly is inadequate.   The record presented by appellants consists solely of their initial complaint,³ filed on September 19, 2008, a January 7, 2010, minute order ⁴ dismissing all but one defendant for failure to serve, appellants' “supplemental complaint no. 11,” which was stricken by the trial court, Ms. Esmael's declaration in support of a motion for default judgment against the defendants, the trial court's March 18, 2010, minute order dismissing this action for failure to follow court orders and failure to properly prosecute the case, and appellants' notice of appeal.   There is no evidence of appellants' attempt to “properly prosecute this case.”   Appellants have not overcome the presumption of the correctness of the trial court's order because they have not presented an adequate record.  (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1320-1321.)

DISPOSITION

The order of the trial court is affirmed.   Appellants are to bear their own costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. According to the complaint and appellants' opening brief, their theory of liability is that Ms. Esmael “was repeatedly assaulted and battered with directed energy weapons and electronic instruments used as weapons to [her] head, heart, temples, pancreas, stomach, knee, chest and foot, at the rate of ․ 298 to 1351 counts of battery a day.”.  FN1. According to the complaint and appellants' opening brief, their theory of liability is that Ms. Esmael “was repeatedly assaulted and battered with directed energy weapons and electronic instruments used as weapons to [her] head, heart, temples, pancreas, stomach, knee, chest and foot, at the rate of ․ 298 to 1351 counts of battery a day.”

FN2. We note, but do not address, the fact that Ms. Esmael apparently is appearing on behalf of FilmMakers Against Fascism.   We also note that appellants assert in their opening brief that they “were most blatantly prevented from getting a legal representation by Defendants' interference with Appellant's every move, every phone call, every means of communication with every legal office.”   Aside from the fact that there is no evidence that appellants were prevented from obtaining legal counsel, we express no opinion on this issue..  FN2. We note, but do not address, the fact that Ms. Esmael apparently is appearing on behalf of FilmMakers Against Fascism.   We also note that appellants assert in their opening brief that they “were most blatantly prevented from getting a legal representation by Defendants' interference with Appellant's every move, every phone call, every means of communication with every legal office.”   Aside from the fact that there is no evidence that appellants were prevented from obtaining legal counsel, we express no opinion on this issue.

FN3. The 185-page complaint alleged:  “Assault and Battery with Deadly Weapons:  130[,]000 Counts;  Conspiracy to Commit Murder, Obstruction of Justice;  Conspiracy to Assault;  Violations of Constitutional and Civil Rights;  Gross Violations of Public Safety;  Conspiracy to Support Terrorism;  Obstruction of Justice Conspiracy to Commit Offence Against U.S.A. 18, U.S.A. 371;  Obstruction of Proceedings, 18 U.S.A. & 1515;  Harassment with Noise;  Food, Air, Water, and Apparel Contamination;  Contamination With Flu Virus;  Intentional Infliction of Mental and Nervous Distress;  Invasion of Privacy;  Relief:  $5 billion in Compensatory Damages for 45,000 Class Action Plaintiffs;  Request for Jury Trial and Punitive Damages.”.  FN3. The 185-page complaint alleged:  “Assault and Battery with Deadly Weapons:  130[,]000 Counts;  Conspiracy to Commit Murder, Obstruction of Justice;  Conspiracy to Assault;  Violations of Constitutional and Civil Rights;  Gross Violations of Public Safety;  Conspiracy to Support Terrorism;  Obstruction of Justice Conspiracy to Commit Offence Against U.S.A. 18, U.S.A. 371;  Obstruction of Proceedings, 18 U.S.A. & 1515;  Harassment with Noise;  Food, Air, Water, and Apparel Contamination;  Contamination With Flu Virus;  Intentional Infliction of Mental and Nervous Distress;  Invasion of Privacy;  Relief:  $5 billion in Compensatory Damages for 45,000 Class Action Plaintiffs;  Request for Jury Trial and Punitive Damages.”

FN4. Appellants did provide us with a copy of the reporter's transcript of this hearing..  FN4. Appellants did provide us with a copy of the reporter's transcript of this hearing.

_, P.J. BOREN _, J. DOI TODD