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Filed 1/4/16 Deaver v. NCB Capital I mpact CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Amador)

----

KEN H. DEAVER et al.,

Plaintiffs and Appellants,

v. NCB CAPITAL IMPACT,

Defendant and Respondent. C075988
(Super. Ct. No. 12CV7760)

Plaintiffs Ken H. Deaver and Gerry Ninnis (Landlords) appeal from a judgment in
favor of Defendant NCB , FSB (Bank ) after a court trial on the Landlords ’ complaint for trespass

. The Landlor ds contend that : (1) the trial court erred by not applying California
law permitting a cause of action f or trespass by chattel , and (2) a claim for trespass by
chattel was established at trial

. We are unable to meaningfully review these assertions because the Landlords have not provided an adequate record on appeal and they have failed to provide adequate citations to the incomplete record that was provided. For these

reason s w e affirm.2 I. BACKGROUND
A

. Trial Court Proceedings Beginning in 1999, the Landlords rented a hardware store to Plymouth Hardware and Feed Supply. In a separate action filed in 2011 , the Bank obtained an order for a writ of possession regarding the inventory and equipment at Plymouth Hardware and Feed Supp ly based on an unpaid promissory note and a security agreement between the Bank and Plymouth Hardware and Feed Supply

. Shortly thereafter, the tenants ended their occupancy of the store, but left some inventory behind that bec a me the impetus for this
lawsuit. The Landlords ’ complaint alleges causes of action for tr espass and conversion against the Bank

. The trial court dismissed the conversion cause of action on a motion for judgmen t on the pleadings. In support of their tres pass claim, the Landlords allege
that the Bank assumed ownership of the store’s inventory and entered the store without
the Landlords ’ consent.
T he trespass claim proceeded to a bench trial, at the close of which the trial court
indicated it would issue a decision finding that the Bank had trespassed by causing the
sheriff to enter the Landlords ’ property. The trial court also suggested it would find that
the Bank had forfeited its security interest and right to take possession of the inventor y , but intentionally failed to inform the Landlords “in an effort to extort something out of
it

. ” The court stated it was still considering the issue of damages. After the court issue d its statement of decision, the Bank filed objections. At the hearing on the Bank ’s objections, the trial court withdrew its intended decision. Ultimately, the trial court entered judgment in the Bank ’s favor. B. The Appeal On appeal, the Landlords’ opening brief states that they “raise only one issue on appeal and that is, di d the court abuse its discretion in finding that plaintiffs should take nothing despite the evidence and law presented at trial.” Later, however, under the heading “ S tandard of R eview,” the Landlords assert that “[t]he trial court prejudicially3

erred when it ignored the fact that California law allows trespass by chattel and tried to find a trespass by a person acting as an agent of defendant in the evidence presented at trial.” From there, the opening brief change s course and argues that the Landlords’ evidence at trial established a claim for trespass by chattel.
II. DISCUSSION
A. Failure to Provide an Adequate Record on Appeal
“A judgment or order of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulg ed in favor of its correctness. ” ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) The party challenging the judgment has the burden of showing error by an adequate record. ( Ballard v. Uribe (1986) 41 Cal.3d 564,
574. ) The L andlords seem to argue the trial court erred by refusing to recognize that California law permit s a cause of action for trespass by chattel

. The Landlords cite nothing in the record to suggest that the basi s for the trial court’s final judgment was a ruling that California law does not permit a claim for trespass by chattel rather than, for instance, a ruling that the Landlords’ evidence was insufficient to prove this claim

. We
also note that , as a general matter, the Landlord s ’ briefs are almo st entirely devoid of references to the record. This is a violation of California Rules of Court, rule 8.204(a)(1)(C), which requires that each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of th e record where the matter appears.”
The Landlords do assert that they proved a claim for trespass by chattel under the theory that the Bank owned the inventory and refused to move it or pay rent . The record is similarly lacking with respect to the trial court’s analysis of this argument. Neither the order after the hearing on the Bank ’s objections , nor the transcript of th at post

- trial hearing, nor even the court’s original statement of decision is in the record. We have no way of determining from the record on appeal what transpired at the hearing on the proposed statement of decision , or if the trial court ever articulated reasons for entering4

judgment in the Bank’s favor

. In the absence of an adequate appellate record, the
Landlords have forfeited their arguments

. (See Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [appellant forfeited argument that the trial court abused its discretion by failing to provide transcript of hearing on motion under Code of Civil Procedure section 473, subdivision ( b), or court’s minute order denying the motion].) The Landlords contend they “know[] of no other records that should have been designated.” If

, by this statement , they mean that the original stat ement of decision, the post

- trial hearing on the Bank’s obj ections , and t he order after th e post

- trial hearing on the Bank’s objections contained no relevant rulings or discussions , we are unable to confirm the veracity of that surprising conclusion because the Landlor ds did not include
th o se documents in the reco rd

. B. Failure to Provide Citations to the Record Even assuming that the Landlords have provide d an adequate appellate record to
review their contentions on appeal , t he ir limited citations to th e record fail to establish that they proved a claim for trespass by chattel at trial. Because we must assume that the trial court’s judgment was based on a finding that the Landlords did not meet their burden

o f proof at trial or that the trial court resolved fact ual disputes in the Bank’s favor , at the very least , w e must start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise. ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) The Landlords have failed to meet
this burden . They assert that after the Bank obtained the order for writ of possession, it owned the inventory. However, the Landlords’ only citation to the record is to the application for writ of pos session , which does not establish that the Bank actually perfected an ownership interest in the property left behind by tenants . Landlords cite no other evidence regarding the Bank’s conduct or ownership of the inventory. This
omission is also fatal beca use a claim for trespass by chattel requires the plaintiff to
demonstrate that the chattel was tort iously placed by either its current or prior owner.5

(See Rest.2d Torts, § 161 & com. f, pp. 289, 291 [trespass may be committed by the continued presence of chattel that the defendant has tortiously placed there or that the prior owner of the chattel has tortiously placed there].) “It is not the task of the reviewing court to search the record for evidence that supports the party’s statement; it is for the

p arty to cite the court to those references. Upon the party’s failure to do so, the appellate court need not consider or may disregard the matter.” ( Regents of the Univ. of Cal. v. Sheily (2004) 122 Cal.App.4th 824, 826, fn.1; see also Cal. Rules of Court , rule 8.204(a)(1)(C).) Moreover, an appellant’s brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant; otherwise, any claim of insufficiency of the evidence is forfeited. ( Foreman & Cl ark Corp. v. Fallon , supra , 3 Cal.3d at p. 881.) The Landlords do not discuss any of the evidence favorable to the Bank. For instance, at trial, a deputy sheriff for Amador County testified that the sheriff’s office never perfected the levy on the invent ory because the Bank chose not to proceed. The Landlords have also forfeited their arguments on appeal by failing to acknowledge evidence favorable to the judgment

.6 III. DISPOSITION The judgment is affirmed. The Bank shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/S/
RENNER, J.

We concur:

/S/

BUTZ , Acting P. J.

/S/

MAURO , J.