Earl C. Berger, an attorney appearing on his own behalf, appeals from a judgment dismissing his cross-complaint against James W. Godden (James) and Kenneth D. Godden (Kenneth). We dismiss the appeal.
On August 12, 1976, James and Kenneth filed a complaint for declaratory relief against Berger, seeking to determine the rights of the parties with respect to a partnership known as Esquire Photographers. Berger filed a cross-complaint, alleging that James had converted partnership assets to his own use and had failed to account to Berger for his share of the business. The only allegation against Kenneth in the cross-complaint was that, without the knowledge or consent of Berger, he had entered onto the premises of the partnership business and assumed management and control of the business and its property and assets. The cross-complaint sought the appointment of a receiver and damages.
The cross-complaint was dated and served upon counsel for the Goddens on October 8, 1976. James and Kenneth filed an answer to the cross-complaint on November 10, 1976. The cross-complaint was not actually filed, however, until December 23, 1976. During the intervening period between the filing of the answer to the unfiled cross-complaint and the filing of the
The case was scheduled for jury trial on August 3, 1981. At the time of trial, Berger moved to dismiss the complaint on the grounds that it failed to state a cause of action and that one of the plaintiffs had died. The trial court then invited Kenneth to move to dismiss the cross-complaint on the grounds that no party had been substituted for James as a cross-defendant, although he had been dead for more than four years, and that the cross-complaint did not state a cause of action against Kenneth. That motion was made and the matter was taken under submission. On October 27, 1981, the court entered its order granting the motions and dismissing the entire action. A timely notice of appeal from the dismissal of the cross-complaint was filed by Berger on November 16, 1981. No appeal has been taken from the portion of the order dismissing the Goddens' complaint.
Rule 18 provides: "When a brief fails to comply with the requirements of these rules the reviewing court, on application of any party or on its own motion, and with or without notice as it may determine, may: (1) order the brief to be returned to counsel for correction by interlineation, cancellation, revision or replacement in whole or in part, and to be redeposited with the clerk within a time specified in the order; (2) order the brief stricken from the files, with leave to file a new brief within a specified time; or (3) disregard defects and consider the brief as if it were properly prepared."
The order striking Berger's opening brief allowed him 30 days within which to serve and file a new brief. The order specifically directed that the new brief address the issues of (1) whether the cross-complaint filed on December 23, 1976, was of any effect as to cross-defendant James Godden,
Appellant filed a second brief on June 25, 1984. It consisted of three pages, contained not one citation to the record on appeal and contained not one citation to any legal authority. Furthermore, the brief contained no pertinent or intelligible argument whatsoever.
We dismiss this appeal for three independent reasons: (1) the failure of appellant to file a brief in conformity with the rules after his initial brief was stricken for noncompliance with the rules; (2) the failure of appellant to address in his second brief the two issues specified by this court; and (3) the failure of appellant to advance any pertinent or intelligible legal argument, which we deem to constitute an abandonment of the appeal.
Rule 18, which was adopted by the Judicial Council as part of the Rules on Appeal effective July 1, 1943 (see Rules on Appeal (1943) 22 Cal.2d 1, 15), supersedes former rule VIII, section 4 of the Rules for the Supreme Court and District Courts of Appeal. (See Draftsman's Note, Deering's Ann. Cal. Rules of Court (1968 ed.) rule 18, p. 193.) Prior to 1937, that section provided: "For any failure to observe this rule [prescribing requirements for briefs] the court may, of its own motion, order the proper statement or index to be supplied, or strike out the brief or petition, or for the failure of the appellant, dismiss the appeal, or for the failure of the petitioner, deny the petition." (See Rules for Supreme Court and District Courts of Appeal, eff. Sept. 1, 1928, rule VIII, § 4, 213 Cal. xxxv, xlviii, italics added.) In 1937, the section was amended to read: "For any failure to observe this rule the court shall not dismiss the appeal, but may, of its own motion, or on motion of an opposing party, order a proper statement or index to be made, or the transcript or briefs to be amended or a supplement thereto to be filed, supplying such omissions and curing such defects as are in violation of this rule. In making the order the court may impose
Present rule 18 does not expressly state that the court may or may not dismiss an appeal for failure to file a brief in conformity with the rules. Witkin, however, apparently views the rule as continuing to preclude dismissal: "Rule 18 states the established practice with respect to a defective brief: the court may order correction or strike it from the files with leave to file a new brief. Formerly the power of dismissal existed, but this was expressly prohibited by amendment of the rule in 1937. This should not tie the hands of the court where the appellant files an obviously perfunctory or skeleton brief merely for purposes of delay, for the court may treat the appeal as frivolous and impose penalties."
We hold that while rule 18 does contemplate that an appeal not be dismissed because a party has filed one brief which fails to comply with the rules, nothing in the rules precludes dismissal for failure to file a brief substantially in compliance with the rules after the appellate court has made an order striking one nonconforming brief with leave to file a new brief. Obviously implicit in such an order is the directive that the new brief comply with the rules. The order in the present case expressly provided that if a new brief were not filed as specified, the appeal would be dismissed. When a new brief substantially fails to comply with the rules, as in the present case, the appellate court has both statutory and inherent power to dismiss the appeal.
In this case, no issue is in any way supported by pertinent or cognizable legal argument. Appellant's brief only states in conclusory fashion that dismissal of the cross-complaint was "contrary to law." Consequently, it is appropriate for this court to deem the appeal abandoned and to dismiss it. We note that this is different from treating an appeal as frivolous.
The Supreme Court has indicated in dicta that a question may exist as to whether it is ever appropriate to dismiss an appeal as frivolous, rather than to affirm a judgment from which a frivolous appeal has been taken. (People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]; compare 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, §§ 475-476, pp. 4430-4432, with Kallay, The Dismissal of Frivolous Appeals by the California Courts of Appeal (1979) 54 State Bar J. 92.) We need not reach that issue since we have determined in this case that appellant's failure to present any pertinent or intelligible legal argument in his opening brief constitutes an abandonment of the appeal rather than the prosecution of a frivolous appeal. In this circumstance, dismissal of the appeal, with no consideration on the merits as to the correctness of the judgment or order from which the appeal is taken, is the proper disposition.
Rouse, J., and Smith, J., concurred.