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Filed 7/22/13 Schubert v. Mann Family Partnership CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JAMES SCHUBERT,

Plaintiff and Appellant,

v.

NATHAN AND GERTRUDE MANN 

FAMILY PARTNERSHIP,

Defendant and Respondent.

 A136802

 (Alameda County

 Super. Ct. No. RG11571036)

Plaintiff James Schubert (Schubert) sued defendant Nathan and Gertrude Mann 

Family Partnership (the partnership) for premises liability after he tripped over a stone on 

property owned by the partnership, causing him to fall and drop a valuable piece of art he 

was carrying. In a bench trial, the trial court granted the partnership‟s motion for 

judgment. Schubert appeals. We affirm.

I

BACKGROUND1

This dispute arises from an incident that occurred on April 15, 2009, in front of the 

Thornhill Café in Oakland, which café is located on property owned by the partnership. 

On that day, Schubert arranged to meet art restorer Bonnie Boskin in front of the café in 

order to retrieve an original Joan Miró plate that he had previously given to Boskin for 

 

1 We derive the facts concerning the incident largely from Schubert‟s trial brief. 

As will be discussed post, the record does not contain a reporter‟s transcript, and we thus 

do not know what evidence Schubert introduced at trial.
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restoration. Plate in hand, Schubert left the café through a gap in the shrubbery, tripped 

over a prefabricated garden stone, and fell across the pathway, causing the 

bubble-wrapped plate to fly into the street and break into pieces.2

On April 14, 2011, Schubert filed, in propria persona, a complaint alleging one 

cause of action for negligence against the partnership. The partnership answered, and the 

matter proceeded through discovery. 

On September 18, 2012, Keith R. Oliver of the Oliver Law Corp. substituted in as 

counsel for Schubert. Ten days later, a bench trial commenced before the Honorable 

Delbert Gee. According to the minutes, Schubert was the first to testify, and his direct 

examination lasted for 48 minutes, at the conclusion of which the partnership moved for 

what is characterized in the minutes as an oral motion for nonsuit.3 Following the 

motion, Judge Gee permitted Schubert‟s counsel to reopen Schubert‟s direct examination. 

Moments later, the court broke for the noon recess. 

After reconvening at 2:00 p.m., Judge Gee and counsel discussed the partnership‟s 

motion, following which Judge Gee ordered the parties to file briefs on the subject on 

October 1, 2012. Schubert then returned to the stand, where he was examined by his 

attorney for 23 more minutes before being excused. The case was then continued to 

October 1, 2012. 

On October 1, 2012, both parties filed the briefing as ordered. As argued by the 

partnership, it owed Schubert no duty of care because his evidence established that the 

stone over which he tripped was “open and obvious” such that the partnership had no 

duty to warn him about it. Alternatively, the partnership contended that Schubert‟s 

evidence did not establish a prima facie case of negligence/premises liability because 

there was no evidence the partnership had any notice of a problem with the planter strip. 

 

2 Apparently, Boskin witnessed the fall, but she passed away prior to trial. 

3

The designation of the motion as one for “nonsuit,” which is only available in a 

jury trial (Code. Civ. Proc., § 581c, subd. (a)), is of no consequence. The partnership 

later confirmed that it was moving for judgment pursuant to Code of Civil Procedure 

section 631.8. 
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As such, the partnership argued it was entitled to judgment pursuant to Code of Civil 

Procedure section 631.8. 

In Schubert‟s brief, he contended that the partnership moved for nonsuit on the 

limited issue of notice, the court was required to rule on that issue only, and it had 

already done so—purportedly on the record—finding that the partnership knew or should 

have known of the condition that caused Schubert to trip. Therefore, he submitted, the 

court must deny the motion. Schubert further argued that the court must accept his 

evidence as true, his evidence proved all elements of his negligence claim, and the only 

remaining issue was the amount of damages.4

Again according to the minutes, Judge Gee received the parties‟ briefs in the 

morning and continued the matter to 1:30 p.m. Court reconvened at 1:35 p.m., and Judge 

Gee and counsel discussed the partnership‟s motion. Judge Gee then granted the motion, 

taking it under submission for a statement of decision and entry of judgment. 

On October 4, 2012, Judge Gee entered a statement of decision, which provided in 

pertinent part as follows:

“With respect to the issue of whether the stepping stone was an unreasonably 

dangerous condition, the court‟s decision is that the stepping stone was not such a 

condition.

“This decision is based upon the following facts:

“1. Plaintiff testified on numerous occasions that the stepping stone appeared 

normal and did not look unusual.

“2. Plaintiff testified that the stepping stone was flat.

“3. Plaintiff testified that the stepping stone was at least 18” in diameters [sic].

“4. Plaintiff testified that the stepping stone was open and obvious.

“5. Plaintiff testified that even after he tripped, the stepping stone did not move.

 

4

Schubert cited no authority for his curious proposition that Judge Gee was 

required to accept as true the evidence Schubert presented. 
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“6. Plaintiff‟s Exhibits A and B, the photographs, show that the stepping stone is 

plainly visible and appears to be part of the depressed planting strip.

“In view of the surrounding circumstances, and based the [sic] facts and the 

testimony of Plaintiff, the risk created by the condition was insignificant in nature to such 

a degree that no reasonable person would conclude that the condition created a 

substantial risk of injury when used in a foreseeable manner with all due care. Cal. Gov. 

Code § 830.2.” 

Judgment was entered the same day. 

On October 9, 2012, Schubert filed notice of his intention to move for new trial, 

citing irregularity in the proceedings, an improper order of the court, abuse of discretion 

by the court, inadequate damages, insufficient evidence to justify the judgment, judgment 

against the law, and error in law occurring at trial excepted to by Schubert. 

Schubert also filed a notice of appeal the same day. In his notice designating the 

record on appeal, Schubert designated the clerk‟s transcript, as well as the reporter‟s 

transcript of the trial on September 28 and October 1, 2012. The designation contained 

the following hand-written notation, “Will pay private court reporter Denise Wheeler,” 

followed by the initials “KRO,” which presumably stand for Keith R. Oliver, Schubert‟s 

counsel. 

On October 25, 2012, Schubert filed an amended notice designating the record on 

appeal. In the amended notice, he checked the box indicating that he was electing to 

proceed without a record of the oral proceedings. By checking that box, he confirmed his 

understanding “that without a record of the oral proceedings in the superior court, the 

Court of Appeal will not be able to consider what was said during those proceedings in 

determining whether an error was made in the superior court proceedings.” 

II

SCHUBERT’S OPENING BRIEF

We begin with a discussion of the utter inadequacies of Schubert‟s opening brief, 

which consists in totality of four pages. It begins with a “Statement of the Case” that 

says the following: “In a bench trial, judgment is entered in favor of respondent after the 
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trial court grants respondent‟s motion for nonsuit. [Citation.] Respondent makes the 

nonsuit motion after appellant concludes 48 minutes of testimony on direct examination. 

[Citation.] Prior to appellant‟s direct examination, respondent gives an opening 

statement and appellant waives his. [Citation.] At the time of respondent‟s nonsuit 

motion, the totality of the evidence presented is, therefore, the testimony of appellant on 

direct examination. [Citation.] Two photographs are introduced in to [sic] evidence 

during appellant‟s direct examination. [Citation.] After respondent places the nonsuit 

motion on record, appellant is allowed to reopen direct examination, and appellant is 

examined for another 7 minutes until the noon recess. [Citation.] [¶] When the parties 

return for the afternoon session, the Court discusses the nonsuit motion with the parties, 

and orders supplemental briefs to be filed by 9:00 a.m. on the next day, regarding the 

issue of nonsuit. [Citation.] The trial court receives the briefs, takes the matter under 

submission and judgment is entered in favor of respondent on October 4, 2012. 

[Citation.]” 

After a one-sentence “Statement of Appealability,” Schubert sets forth his 

“Statement of Facts,” which states—in its entirety—the following: “The trail [sic] court 

granted defendant‟s motion for nonsuit in this bench trial of a premises liability suit when 

appellant had more witnesses to call and more evidence to present. [Citations.] It also 

granted the nonsuit on grounds other than those presented by respondent. [Citations.]”

Turning to the “Argument” section, Schubert spends a paragraph on the standard 

of review, arguing that a trial court‟s grant of a nonsuit is reviewed de novo. He then sets 

forth his “Argument” in the following three paragraphs:

“I. The Trial Court Erred By Granting Nonsuit When Appellant Was 

Prepared To Call More Witnesses And Present More Evidence

“Appellant‟s witness list included an expert, the café owner where this premises 

liability accident took place, and the gardener who may know about the conditions of the 

property. [Citations.] In addition, at the time of the nonsuit, the Defendant was in the 

courtroom, and appellant had the right to call her that day. [Citation.] Accordingly, 
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appellant had not completed his presentation of evidence. The granting of the nonsuit in 

a bench trial was, therefore, error.

“II. The Trial Court Erred By Allowing Respondent To Develop Its Nonsuit 

Motion Outside the Confines Of Trial, and Outside The Scope Of The Original 

Motion

“The trial court did not rule on the oral motion for nonsuit at the time it was made, 

but instead ordered the matter to be briefed and then took the matter under submission. 

[Citations.] Thus, respondent was allowed to perfect its motion based on instructions and 

input by the court. [Citations.] This is a prejudicial error that warrants reversal of the 

trial court judgment.

“III. The Trial Court Erred By Granting Respondent’s Nonsuit Motion On 

Grounds Other Than Those Presented By Respondent

“As shown in respondent‟s supplemental brief and the trial court‟s statement of 

decision, respondent‟s argument for nonsuit, and the trial court‟s reason for granting 

nonsuit are not aligned. [Citations.] As shown by the two documents, it is the trial court 

that found its own independent reason for granting the nonsuit. [Citations.] This is also 

prejudicial error that warrants reversal of the trial court.” 

With that, Schubert concludes that we should reverse the judgment and remand the 

case for trial. 

In the words of the court in People v. Doherty (1982) 138 Cal.App.3d 278, 280, 

Schubert‟s opening brief “reads like an all-out, frontal assault on the rules on appeal.” To 

begin with, pursuant to California Rules of Court, rule 8.204(a)(2)(C), an appellant must 

file an opening brief that, among other things, “[p]rovide[s] a summary of the significant 

facts limited to matters in the record.” Schubert‟s “Statement of Facts” is one brief 

paragraph asserting that Judge Gee granted the partnership‟s motion despite that Schubert 

had more evidence to present and on grounds other than those argued by the partnership. 

Nowhere in the brief does Schubert set forth any facts pertaining to the underlying 

dispute. Nowhere does he cite to any evidence introduced at trial. 
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Further, Schubert was required to support his arguments with citation to legal 

authority. (Nielson v. Gibson (2009) 178 Cal.App.4th 318, 324 [appellant must present 

an analysis of the facts and legal authority on each point made; failure to do so forfeits 

the argument].) The three arguments Schubert asserts are devoid of a single citation to 

authority, containing only cites to the clerk‟s transcript. We thus deem them forfeited.

III

THE JUDGMENT WAS PROPER

The deficiencies of Schubert‟s opening brief are not the only flaws in his appeal. 

The record in this case is devoid of a reporter‟s transcript. We thus have no record of 

Schubert‟s testimony during trial. We have no transcript recording the partnership‟s oral 

motion for nonsuit. We have no record of what Judge Gee said with regard to the 

motion. In short, there is no evidence before us from which we can analyze Schubert‟s 

assertion that Judge Gee‟s order granting the motion was erroneous. As Schubert was 

made aware when he elected to proceed without a reporter‟s transcript, “without a record 

of the oral proceedings in the superior court, the Court of Appeal will not be able to 

consider what was said during those proceedings in determining whether an error was 

made in the superior court proceedings.” 

In light of Schubert‟s choice to proceed without a reporter‟s transcript, we must 

treat his appeal as an appeal “on the judgment roll.” (Allen v. Toten (1985) 

172 Cal.App.3d 1079, 1082.) “On such an appeal, „[the] question of the sufficiency of 

the evidence to support the findings is not open.‟ ” (Id. at p. 1083.) Instead, we presume 

that all findings by the trial court are supported by substantial evidence, and we can only 

consider whether the judgment is supported by the findings or whether reversible error 

appears on the face of the record. (Nielson v. Gibson, supra, 178 Cal.App.4th at 

pp. 324-325 [where an appellant fails to provide a reporter‟s transcript of a trial preceding 

a judgment, we presume that the evidence is sufficient to sustain the trial court‟s findings 

and our review is limited to determining whether any error appears on the face of the 

record]; Fitch v. Pacific. Fid. Life Ins. Co. (1975) 54 Cal.App.3d 140, 143, fn. 1 [“This 

appeal is based upon only the clerk‟s transcript and, as such, is considered to be upon the 
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judgment roll alone. [Citation.] Hence the trial court‟s findings of fact and conclusions 

of law are presumed to be supported by substantial evidence and are binding upon us, 

unless the judgment is not supported by the findings or reversible error appears on the 

face of the record.”]; Ruzich v. Boro (1943) 58 Cal.App.2d 541, 543.) 

Because there is no suggestion that the judgment was unsupported by the findings, 

and no reversible error appears on the face of the record, we affirm the judgment.

DISPOSITION

The judgment is affirmed.

_________________________

Richman, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Lambden, J.