Filed 11/20/23 Valentine v. Colon 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

JIMMY VALENTINE et al.,

Plaintiffs and Respondents,

v.

ERMA COLON et al.,

Defendants and Appellants.

B317910

(Los Angeles County

Super. Ct. No. 19STCV20910)

APPEAL from a judgment of the Superior Court of Los

Angeles County, Gregory W. Alarcon, Judge. Affirmed.

Felicia J. Riley, in pro. per., for Defendants and Appellants.

Green and Stewart, Noah Green and Charise L. Stewart, 

for Plaintiffs and Respondents.

_______________________
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Jimmy Valentine and Walter Dees (Plaintiffs) sued Erma 

Colon and her daughter Felicia Riley (Defendants) in connection

with a failed business arrangement to renovate and sell Colon’s 

home. Plaintiffs prevailed after a bench trial and Defendants

appeal. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

As the record on appeal does not include the complaint, 

trial exhibits, or a reporter’s transcript, we rely on the court’s 

statement of decision for background information. According to 

the statement of decision, Colon owned a residential property 

that fell into disrepair and was condemned. Valentine was a real 

estate investor who purchased distressed properties, 

rehabilitated them, and sold them. The parties entered into an 

agreement to rehabilitate and sell Colon’s property, the terms of 

which gave Valentine an equitable interest in the property for 

purposes of renovating and selling it. Valentine spent more than 

$90,000 to rehabilitate the property, reinstate utilities and 

insurance, pay unpaid taxes, stop a foreclosure, and list the 

property for sale. Once the property was listed for sale, 

Defendants rescinded the agreement and resumed living at the 

property. Plaintiffs sued, asserting claims for breach of contract, 

interference with contractual relations, and unjust enrichment.

A court trial took place on April 15 and 16, 2021.1 On July 

27, 2021, the court issued a statement of decision finding 

Defendants had breached the contract and were unjustly 

enriched. The court declined to make a restitution award for the 

1 On our own motion, we take judicial notice of the minute 

orders for April 15 and 16, 2021, which Defendants attached to 

their opening brief. (Evid. Code, §§ 451, 452, 459.)
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unjust enrichment or to impose a constructive trust, instead 

indicating its intent to enforce the terms of the parties’ 

agreement.

The court ordered Plaintiffs to submit a proposed 

judgment. Plaintiffs did so, to which Defendants filed objections 

on August 9, 2021.

Plaintiffs filed an ex parte motion seeking clarification of 

the court’s statement of decision concerning remedies. On 

August 24, 2021, the court denied the motion and directed 

Plaintiffs to proceed by noticed motion, which they filed the same 

day. Although the record is not fully clear, it appears the court 

continued the hearing on this motion and then denied it.

On November 24, 2021, the court entered judgment for 

Plaintiffs. Defendants appeal.

DISCUSSION

I. Assertions in Factual Background of Brief

In their opening brief, Defendants’ factual background 

consists of Riley’s first person account of the history of the 

parties’ relationship, their agreements, and the litigation. This 

account does not constitute a “summary of the significant facts 

limited to matters in the record” as required by California Rules 

of Court, rule 8.204(a)(2)(C). We cannot determine whether 

Defendants’ factual representations are supported by evidence in 

the record because the vast majority contain no citation to the 

appellate record, in violation of California Rules of Court, rule 

8.204(a)(1)(C) [any reference in an appellate brief to matter in the 

record must be supported by a citation to the volume and page 

number of the record where that matter may be found]). In other 

instances, Defendants relate information obviously outside the 
4

record on appeal, such as interactions with court clerks, 

discussion of other litigation, and conversations with family 

members and their former attorney. We are unable to rely on

these unsupported assertions in rendering our decision. 

“Statements of fact that are not supported by references to the 

record are disregarded by the reviewing court.” (McOwen v. 

Grossman (2007) 153 Cal.App.4th 937, 947.)

When citations are provided to support the assertions made 

in the factual background, many direct the court to a series of 

exhibits appended to Defendants’ opening brief. Two of these 

appended exhibits are minute orders from the trial, two post-date 

the trial, and we cannot determine whether the others were part 

of the trial court proceedings. These documents do not appear in 

the clerk’s transcript and have not been presented in compliance 

with California Rules of Court, rules 8.120(a) (record on appeal) 

and 8.204(d) (other than statutes and regulations, attachments to 

briefs must be matters in the appellate record). We are confined 

in our review to the evidence from the proceedings which took 

place in the trial court. “Appellate review is generally limited to 

matters contained in the record. Factual matters that are not 

part of the appellate record will not be considered on appeal and 

such matters should not be referred to in the briefs.” (Lona v. 

Citibank, N.A. (2011) 202 Cal.App.4th 89, 102.)

Rather than a summary of the material evidence from trial, 

Defendants’ recitation of the factual background presents 

advocacy and factual disputes for apparent resolution by this 

court. While we understand Defendants’ dissatisfaction with the 

outcome of the litigation and their desire to set forth their view of 

events, the statement of facts is not the place to present 

argument. We cannot consider the wide-ranging factual disputes 
5

set forth in this portion of the brief. (Cal. Rules of Court, rules 

8.204(a)(2)(C), 8.204(a)(1)(B); Provost v. Regents of University of 

California (2011) 201 Cal.App.4th 1289, 1294 [“we do not 

consider all of the loose and disparate arguments that are not 

clearly set out in a heading and supported by reasoned legal 

argument”].)

II. Clerk’s Transcript Certification

Defendants’ first separately presented argument is that 

Plaintiff Valentine filed a “ ‘Clerk’s Certification of Record on 

Appeal’ on May 3, 2022, where he certifies that the ‘Clerk[’]s 

Transcript’ contains ‘True’ and ‘Correct’ copies of the Original 

Documents on file in this action.” Defendants complain this 

document was filed before they filed their opening brief and 

assert that many of the statements made in the clerk’s transcript 

are not accurate or true.

The document to which Defendants refer was not filed by 

Valentine. It is a certification made by the superior court clerk 

that the documents included in the clerk’s transcript are true and 

correct copies of the documents in the superior court file for this 

lawsuit. The superior court clerk is required by California Rules 

of Court, rule 8.122(d)(1)(A) to prepare and certify the clerk’s 

transcript. With this certification the clerk makes no 

representations about the accuracy or veracity of statements in 

the documents contained in the transcript.

Although Defendants call the clerk’s transcript “the 

Plaintiffs[’] transcript,” it actually was prepared by the superior 

court at Defendants’ request. Defendants filed a Notice 

Designating Record on Appeal form requesting the preparation of 

a clerk’s transcript and specifying the items to be included in that 

transcript. This designation of the record form was filed by 
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Defendants on January 19, 2022, and is contained in the clerk’s 

transcript.

Defendants have not established error.

III. Factual Contentions

Defendants’ next argument begins by directing this court to 

various pages of their written closing argument in the trial court. 

It is not appropriate to incorporate by reference arguments

contained in trial court papers into an appellate brief, even if 

those papers are made a part of the appellate record; and we do

not consider them. (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 294, fn. 20 (Soukup).)

Defendants then set forth a paragraph of factual 

assertions, none of which are supported by citations to evidence 

in the clerk’s transcript. Defendants do not present a legal 

argument demonstrating how these assertions establish error in 

the judgment. “Every argument presented by an appellant must 

be supported by both coherent argument and pertinent legal 

authority. [Citation.] If either is not provided, the appellate 

court may treat the issue as waived.” (Kaufman v. Goldman

(2011) 195 Cal.App.4th 734, 743.) We suspect Defendants may 

intend to argue some of the trial court’s findings were not 

supported by substantial evidence, but a “party presenting an 

argument of insufficient evidence may not simply reargue its 

version of the facts.” (Orozco v. WPV San Jose, LLC. (2019) 36 

Cal.App.5th 375, 391.) “ ‘A party who challenges the sufficiency 

of the evidence to support a particular finding must summarize 

the evidence on that point, favorable and unfavorable, and show 

how and why it is insufficient. [Citation.]’ [Citation.] Where a 

party presents only facts and inferences favorable to his or her 

position, ‘the contention that the findings are not supported by 
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substantial evidence may be deemed waived.’ ” (Schmidlin v. 

City of Palo Alto (2007) 157 Cal.App.4th 728, 738.)

IV. Conduct of the Trial

Defendants allege at various points in their opening brief 

that the trial was conducted in their absence. It appears they 

believe the court, on April 15, 2021, rescheduled the trial to the 

following day, but then reversed course and held the trial on 

April 15 although Defendants were unaware of the proceedings; 

heard Valentine’s testimony and rendered judgment in his favor 

on April 15; and then, the following day, April 16, 2021, 

conducted depositions of Riley and Riley’s daughter.

The record on appeal does not support these claims. The 

minute order of April 15, 2021, indicates the trial began on April 

15, 2021, and Defendants were represented by their counsel. 

Defendants are correct that Valentine did testify that day, but 

there is no indication that the court awarded judgment to 

Plaintiffs on April 15, 2021. To the contrary, the April 15, 2021 

minute order states that the parties and counsel were ordered to 

return the following day, and the April 16, 2021 minute order 

states that trial resumed that day from April 15, 2021. As for 

Defendants’ contention that Riley and her daughter were deposed

rather than giving trial testimony, the minute order of April 16, 

2021, directly refutes that assertion.

V. Notice

Defendants complain they did not personally receive 

various documents at the time they were filed, and they contend 

they should have been personally notified of hearings occurring 

after trial. Because Defendants were represented by counsel, 

Plaintiffs were required to serve documents and notices on their 
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attorney, not on them personally. “[I]n all cases where a party 

has an attorney in the action or proceeding, the service of papers, 

when required, must be upon the attorney instead of the party, 

except service of subpoenas, of writs, and other process issued in 

the suit, and of papers to bring the party into contempt.” (Code 

Civ. Proc., § 1015.)

VI. Previous Lawsuit

In their opening brief, Defendants repeatedly refer to a 

prior lawsuit between the parties that was dismissed. They ask 

us to reverse the judgment and dismiss this lawsuit because it is 

the “same lawsuit” as the earlier action, but they do not present a 

legally cognizable basis for reversal. Defendants do not discuss 

the elements of res judicata or demonstrate how they were 

proven here (see Central Delta Water Agency v. Department of 

Water Resources (2021) 69 Cal.App.5th 170, 206), and the record 

on appeal lacks sufficient information to make such a 

determination. “To demonstrate error, appellant must present 

meaningful legal analysis supported by citations to authority and 

citations to facts in the record that support the claim of error. 

[Citations.] When a point is asserted without argument and 

authority for the proposition, ‘it is deemed to be without 

foundation and requires no discussion by the reviewing court.’ 

[Citations.] Hence, conclusory claims of error will fail.” (In re 

S.C. (2006) 138 Cal.App.4th 396, 408.)

Finally, Defendants allege the trial court should have had a 

“discussion” with the judge who presided over the first action 

before deciding the second case. Defendants do not articulate the 

nature of this discussion, what they believe it would have 

achieved, or why the failure to consult another judge requires 

reversal of the judgment. The failure to present a legal argument 
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is fatal to this claim. “Issues not supported by argument or 

citation to authority are forfeited.” (Needelman v. DeWolf Realty 

Co., Inc. (2015) 239 Cal.App.4th 750, 762.) Moreover, to the

extent Defendants intend to suggest the court should have 

obtained additional information from another judge for use in 

making its ruling, this would have been improper. “When a trial 

judge sits as the trier of fact, the judge takes the place of a jury, 

and his or her conduct is subject to the same rules. [Citation.] 

Consequently, the judge cannot receive information from sources 

outside the evidence in the case.” (Guadalupe A. v. Superior 

Court (1991) 234 Cal.App.3d 100, 108–109.)

VII. Other Contentions

Section II of Defendants’ Argument in the opening brief, 

entitled, “Application Of The Law To The Facts,” consists solely

of a citation to Defendants’ closing argument in the trial court. 

We do not consider arguments incorporated by reference from 

trial court papers. (Soukup, supra, 39 Cal.4th at p. 294, fn. 20)

Section III of Defendants’ Argument is a verbatim 

reproduction of three California Rules of Court. An appellant 

must offer argument as to how the court erred, rather than citing 

general principles of law without applying them to the 

circumstances before the court. (Landry v. Berryessa Union 

School Dist. (1995) 39 Cal.App.4th 691, 699.)

Defendants assert the trial court did not “acknowledge” 

their closing argument, Plaintiffs’ counsel “included documents 

‘not directly related’ to the Plaintiffs or their court case,” and they 

(Defendants) objected to the proposed judgment. These 

contentions are not supported by argument and legal authority

demonstrating error in the judgment. “We need not address 

points in appellate briefs that are unsupported by adequate 
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factual or legal analysis.” (Placer County Local Agency 

Formation Com. v. Nevada County Local Agency Formation Com. 

(2006) 135 Cal.App.4th 793, 814.)

DISPOSITION

The judgment is affirmed. Respondents shall recover their 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

STRATTON, P. J.

We concur:

WILEY, J.

VIRAMONTES, J.