Filed 7/30/21 Frith-Smith v. Cornell CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

DAVID FRITH-SMITH,

Plaintiff and Appellant,

v.

FRANK CORNELL,

Defendant and Respondent.

B308083

(Los Angeles County

Super. Ct. No. BC686569)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard J. Burdge, Judge. Affirmed.

Mark H. Boykin for Plaintiff and Appellant.

Kilpatrick Townsend & Stockton and Emil W. Herich for 

Defendant and Respondent.

______________________
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Appellant David Frith-Smith appeals the grant of summary 

judgment against him. We affirm. On appeal, Frith-Smith has 

failed to discuss, let along acknowledge or present to us, the 

evidence upon which the trial court relied in entering judgment 

against him. As a result we are unable to conduct a de novo 

review and rely on the presumption of correctness to affirm the 

judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant David Frith-Smith is a limited partner holding a 

7.63 percent interest in California Investors I, a California 

limited partnership. Respondent is a general partner as well as a 

limited partner in California Investors I. Frith-Smith filed a 

complaint against respondent alleging three causes of action 

which sought: 1) removal of respondent as the general partner 

for breach of fiduciary duty and failure to provide an accounting; 

2) termination and dissolution of the limited partnership; and 

3) an award of compensatory and punitive damages for breach of 

fiduciary duty.

Respondent moved for summary judgment, contending the 

limited partnership agreement precluded each cause of action. 

The trial court issued a multi-page tentative ruling which became

the order of the court after oral argument. It granted summary 

judgment on the ground that the limited partnership agreement 

supported respondent’s defenses to each of the three causes of 

action and appellant had failed to present any evidence, let alone

admissible evidence, which raised a triable issue of material fact 

as to the alleged misconduct.

In the first cause of action, appellant asked the court to 

remove respondent as general partner because he failed to 

provide an accounting to the limited partners. In moving for 
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summary judgment respondent argued that the limited

partnership agreement provided for removal of the general 

partner only upon a vote of the limited partners, a fact which 

appellant had not alleged and could not prove. Respondent also 

acknowledged that the court has authority to remove a general 

partner under Corporations Code section 15903.05 upon a finding 

of willful misconduct or gross negligence and he provided a 

declaration setting out the facts upon which he based his 

decisions as general partner.

Noting the absence of evidence presented by appellant in 

opposition to the motion, the trial court found the limited 

partners had not voted to remove respondent as general partner. 

The court also found respondent’s explanations of his accountings

overcame appellant’s unsupported allegations of willful 

misconduct and gross negligence. Both grounds defeated 

appellant’s first cause of action for removal of the general 

partner.

In the second cause of action to terminate the partnership, 

appellant sought mandatory judicial termination of the 

partnership because the limited partnership agreement provided 

for dissolution upon sale of the partnership’s principal asset. In 

his motion, respondent argued that the limited partnership 

agreement did not require dissolution of the partnership 

agreement upon the sale of its principal asset, as alleged by 

appellant in the complaint. Instead, the agreement allowed for 

the termination upon liquidation of all partnership assets, a fact 

which had not been alleged and had not occurred.

The trial court again found appellant presented no evidence 

in opposition to this claim and found the partnership agreement 

did not mandate termination of the partnership upon sale of its 
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principal asset. The court also found appellant did not raise a 

triable issue of fact on the issue of whether respondent committed

willful misconduct or gross negligence, which could have justified 

judicial dissolution of the partnership.

Finally, as to the third cause of action, the trial court found 

appellant presented no evidence of breach of fiduciary duty in 

response to respondent’s declarations and exhibits, and no 

evidence that he had been damaged by respondent’s management 

of the partnership. The trial court entered judgment in favor of 

respondent.

On appeal, Frith-Smith raises one issue. He contends he 

had no duty to present evidence of a breach of fiduciary duty by 

respondent as general partner. Instead, he likens a general 

partner to a trustee under the Probate Code. His theory is that 

because the Probate Code requires a trustee to show it did not 

breach any fiduciary duties, here, too, respondent bore the 

burden to prove no breach of duty. Appellant contends 

respondent failed to carry that burden.

A. We Review a Grant of Summary Judgment De Novo.

Our standard of review is de novo. (Howard 

Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 

1102, 1113.) We make an independent assessment of the 

correctness of the trial court’s ruling, applying the same legal 

standard as the trial court in determining whether there are any 

genuine issues of material fact or whether the moving party is 

entitled to judgment as a matter of law. (Iverson v. Muroc 

Unified School Dist. (1995) 32 Cal.App.4th 218, 222). In 

performing our de novo review, we view the evidence in the light 

most favorable to plaintiff as the losing party. We liberally 

construe plaintiff’s evidentiary submissions and strictly 
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scrutinize defendants’ own evidence in order to resolve any 

evidentiary doubts or ambiguities in plaintiff’s favor. (Wiener v. 

Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.)

B. On Appeal We Employ the Presumption of Correctness.

On appeal, a judgment of the trial court is presumed 

correct. “[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. This is not only a general 

principle of appellate practice but an ingredient of the 

constitutional doctrine of reversible error.’ ” (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564; In re Marriage of Arceneaux 

(1990) 51 Cal.3d 1130, 1133.)

Therefore, an appellant has an affirmative duty on appeal 

to overcome the presumption of correctness and demonstrate 

prejudicial error. (Hearn v. Howard (2009) 177 Cal.App.4th

1193, 1207.)

C. Appellant Has Abrogated His Duty to Present a Fair 

Accounting of the Evidence Presented to the Trial Court.

We must reject Frith-Smith’s argument that respondent 

failed to shoulder his burden as moving party on summary 

judgment. In the record on appeal, appellant has omitted the two 

declarations and exhibits respondent submitted in support of his 

motion for summary judgment, thereby creating a silent record. 

Under the presumption of correctness, we presume the missing 

declarations and exhibits sufficiently support the trial court’s 

judgment in favor of respondent. The impossibility of performing 

a de novo review when appellant has failed to provide all the 

relevant evidence is beyond cavil.
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Moreover appellant has failed to even discuss any of the 

evidence respondent presented in support of his motion for 

summary judgment. His one-sided recitation of the facts results 

in a waiver of appellate review. (Cal. Rules of Court, 

rule 8.204(a)(1)(C) [appellant must discuss all significant facts in 

its briefing]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 

875, 881.)

D. We Disregard Appellant’s Argument as It Is Unsupported by 

Citations to Relevant Authority and to Facts in the Record 

that Support His Claim of Error.

On appeal, the party asserting trial court error may not 

rest on the bare assertion of error but must present argument 

and legal authority on each point raised. To demonstrate error, 

an appellant must supply the reviewing court with some cogent 

argument supported by legal analysis and citation to the record. 

(United Grand Corp. v. Malibu Hillbillies, LLC (2019) 

36 Cal.App.5th 142, 153 (United Grand Corp); City of Santa 

Maria v. Adam (2012) 211 Cal.App.4th 266, 286. We are not 

obligated to develop appellant’s arguments for him and we may 

and do “disregard conclusory arguments that are not supported 

by pertinent legal authority or fail to disclose the reasoning by 

which the appellant reached the conclusions he wants us to 

adopt.” (City of Santa Maria v. Adam at p. 287; In re Marriage of 

Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) The appellate 

court is not required to search the record on its own seeking 

error. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) When 

an appellant raises an issue but fails to support it with reasoned 

argument and citations to authority, we treat the point as 

waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 

784–785.)
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In his opening brief, appellant provided no citations to the record 

other than four perfunctory citations to the location of the 

complaint, answer, motion for summary judgment, and notice of 

appeal in the appendix and three citations to pages in the 

appendix without an explanation of their significance to his 

arguments on appeal. We decline to search the record on our own 

seeking error. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)

Appellant has also failed to point out how the trial court 

erred in granting the motion. Indeed, he does not discuss in any 

way the trial court’s ruling. We decline to speculate about what 

errors he attributes to the trial court. (United Grand Corp.,

supra, 36 Cal.App.5th at p. 156.)

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, J.

We concur:

GRIMES, Acting P. J.

WILEY, J.