No. A128359.

VINCENT BEIRNE, Plaintiff and Appellant, v. DANIEL ROSENBLEDT, Defendant and Respondent.

Court of Appeals of California, First District, Division Four.



Vincent Beirne, in propria persona, appeals from a judgment upon a jury verdict finding in favor of respondent Daniel Rosenbledt and from the court's judgment following the court's order granting Rosenbledt's motion for nonsuit. Beirne raises several issues including that the court erred in not recusing itself and in granting the nonsuit motion, and that it erred in its instructions to the jury. We affirm.


Preliminarily, we note that Beirne has not provided a properly supported statement of facts in his opening brief nor has he designated an adequate record. The California Rules of Court require that litigants provide a summary of the significant facts supported by references to the appellate record. (Cal. Rules of Court, rule 8.204 (a)(1)(C); (2)(C); see Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 503, fn. 1 [failure to comply with the Rules of Court requiring summary of material facts supported by appropriate references to the record may constitute waiver of error].) Beirne's status as a pro per litigant does not excuse him from the duty to comply with the rules. An appellant in propria persona is held to the same standard of conduct as that of an attorney on appeal. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

Here, Beirne's statement of facts is bereft of any citations to the record. In addition, while the record contains the clerk's transcript and a reporter's transcript of a hearing on a nonsuit motion, there is no reporter's transcript of the jury trial which occurred over a four day period.

The clerk's transcript reveals that on July 23, 2008, Beirne filed a complaint for compensatory and punitive damages allegedly suffered when Rosenbledt purchased Beirne's former home at 93 Terrace Avenue in San Rafael through a trustee sale on August 2, 2007. The complaint alleged that Rosenbledt changed the locks on the home and refused to give Beirne adequate opportunities to recover furniture and personal property that Beirne had in the home. The complaint was initially filed in San Mateo County. The court granted Rosenbledt's motion for change of venue on October 7, 2008 and transferred the case to Marin County. This court denied Beirne's petition for writ of mandate seeking relief from the court's order.

Following Rosenbledt's demurrer to Beirne's complaint and motion to strike certain language from the complaint, which was successful in part, Beirne filed a first amended complaint alleging twelve causes of action arising from Rosenbledt's purchase of the property and Beirne's subsequent inability to recover certain furniture and personal property that remained at the property after the sale.

Trial on the first amended complaint commenced on March 5, 2010. The court first considered and denied Beirne's request for waiver of court fees. The court then granted Beirne's request to amend the first amended complaint to add an allegation of private nuisance. Beirne then moved to disqualify Judge O'Malley-Taylor pursuant to Code of Civil Procedure1 section 170.3, subdivision (c), contending that he believed he could not get a fair and impartial trial. The court, citing section 170.4, subdivision (c)(1), denied the motion as untimely as trial had already commenced and referred the matter to the presiding judge. The matter proceeded to a jury trial.

Following the presentation of Beirne's case, Rosenbledt moved for nonsuit on all of the causes of action. The court postponed ruling on the motion and the trial continued with the court permitting Beirne to reopen his case for further testimony and examination of witnesses.

The court thereafter proceeded to hear the nonsuit motion. The court granted the motion as to Beirne's causes of action for negligence, forcible entry, forcible detainer, conversion of real property, invasion of privacy, trespass to real property, negligent infliction of emotional distress, and private nuisance. The court denied the nonsuit motion as to the causes of action for elder abuse, conversion of personal property, trespass to chattels, and intentional infliction of emotional distress. The court ruled that the issue of punitive damages would be reserved for the jury.

Beirne moved for reconsideration of the court's rulings on the nonsuit motion. The court denied the motion. Following closing argument by the parties, the jury deliberated and returned with a verdict for Rosenbledt.


Beirne first contends that the trial court committed reversible error by granting Rosenbledt's motion for nonsuit. He argues that the issue is a question of law because the court applied the incorrect law in ruling on the motion. Although Beirne provided a reporter's transcript of the hearing on the motion, the record does not contain a transcript of the trial. Hence, it is impossible for this court to determine whether the evidence presented by Beirne at trial was sufficient to support a judgment in his favor.

A motion for nonsuit allows a defendant to test the sufficiency of a plaintiff's evidence before presenting his own case to the jury. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 838.) It constitutes a demurrer to the evidence and thus presents a question of law—whether the evidence offered by the plaintiff could support a judgment. (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 272.) A nonsuit may only be granted if no evidence supports a jury verdict in the plaintiff's favor. (Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583.)

Here, Beirne has not provided this court with an adequate record to assess whether he proffered sufficient evidence for his claims to go to the jury. It is well settled that a party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) In the absence of an adequate record here, we are unable to conclude that the court's order granting nonsuit was in error.

Beirne also argues that Judge O'Malley-Taylor's refusal to recuse herself from the trial constituted error. While Beirne moved to challenge Judge O'Malley-Taylor below, he did not seek review of the order denying his disqualification motion by filing a petition for writ of mandate. Litigants challenging denial of a judicial disqualification motion, whether a peremptory challenge under section 170.6 or a challenge for cause, are required to seek mandate as provided in section 170.3, subdivision (d).2 This expedited procedure is the exclusive means for reviewing an unsuccessful challenge. (People v. Webb (1993) 6 Cal.4th 494, 522-523; People v. Hull (1991) 1 Cal.4th 266, 268.) Having failed to seek mandate, Beirne cannot now litigate the disqualification issues on appeal.

Beirne also contends that the court erred in not applying section 1161a (unlawful detainer) and 1159 (forcible entry) to the case. Section 1161a however, applies to unlawful detainer actions and to tenants and landlords, specifically. (§ 1161a, subd. (b) [tenant guilty of unlawful detainer for default in payment of rent only after a valid three-day notice].) And, section 1159 protects a person who has hired real property. Beirne has not cited to any evidence in the record or any legal authority that would support his argument that he was a tenant-that he rented, leased or hired the property at 93 Terrace Drive within the meaning of the statutory provisions.

Beirne also argues that the court erred in its instructions to the jury. Again, he fails to present any pertinent argument or citation to the record in support of this claim of error. Accordingly, we treat the issue as abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120.)

Beirne further asserts that the court committed judicial discrimination in allocating only four days for trial of his case while allocating an entire month for a wrongful termination case against one of George Lucas's companies. Beirne has not presented any support for his argument that his trial was rushed. To the contrary, the clerk's transcript reflects that the court was patient with Beirne and permitted him to present his case and reopen it, and also to present motions that arose in connection with the issues in the case. No error appears.

Finally, Beirne contends that the court erred in denying his application for a fee waiver. He argues that he incorrectly listed his wife's earnings on the application which resulted in his request being denied. He further asserts that the Marin County Superior Court should have honored the fee waiver he had obtained in San Mateo County.

The record shows that the trial court denied the application because Beirne's household income exceeded the guidelines. California Rules of Court, rule 3.52(5) provides that upon denial of an application, an applicant may request a hearing about the court's order on the fee wavier. Here, the court's order provided Beirne notice that he could request a hearing within 10 days after receiving notice of the court's order from the clerk. There is no indication that Beirne requested a hearing in the trial court. (See Cruz v. Superior Court (2004) 120 Cal.App.4th 175, 187-188.) Having failed to comply with the procedures in the trial court for challenging the court's order, he cannot raise the issue for the first time on appeal. Moreover, Beirne has failed to provide an adequate record to review the issue. He has thus waived his right to challenge the court's order denying his request.


The judgment is affirmed.

RUVOLO, P. J. and REARDON, J., concurs.


1. All further statutory references are to the Code of Civil Procedure.
2. "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought . . ." within 10 days of notice to the parties of the decision and only by the parties to the proceeding. (§170.3, subd. (d).)


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