Don't make it hard for the Court of Appeal

 In an unpublished opinion from the Court of Appeal, Fourth Appellate District, Division Three in Santa Ana, the court launched into an attack on the appellants' record preparation.  In Carter v. Francisco, Case No. G047234, the appellants were appealing from an order denying arbitration.  The court started out with a topic heading "State of the Record."  Just seeing that heading could lead one to the conclusion that what follows would not be good news for the appellants, especially when the first sentence starts off, "At the outset, we take note of problems with the record."  (Opn., pg. 2.)  The opinion goes on to describe the problems with page numbering or lack thereof and the fact the motion to compel arbitration, which was over 200 pages, did not have a table of contents. 

The court then states, "Although we attempted to make sense of the record, it is not our responsibility to plow through several hundred pages of material to try and find support for appellants' contentions.  A fundamental principle of appellate law is the judgment or order of the lower court is presumed correct and the appellant must affirmative show error by an adequate record . . . This includes a requirement that each factual allegations be supported by a reference to the exact page where such a fact may be found . . . Should we have overlooked a document in our analysis, the appellants failure to provide us with specific page references is to blame."  (Opn., pgs. 2-3.) 

The opening brief contributed to the problem when it gave a record reference that was inaccurate.  Whether the Court went to the clerk's transcript or the supplemental clerk's transcript, neither contained the reference.  Not a good way to build credibility with the court. 

If that was not enough to depress the hell out of the appellants, the court focused in on appellants' argument that the Federal Arbitration Act applied, but found appellants did not make this argument in the trial court, and thus, they waived it.  And citing U.S. Supreme Court cases in their points and authorities was not enough to apply the FAA.  Moreover, the court noted appellants failed to present evidence to support a claim the parties engaged in interstate commerce.  The appellants also argued there was a related case where arbitration had been ordered, but the court found nothing in the record supported this assertion. 

 As the court correctly noted, the appellants had the burden of producing a meaningful record.  But simply supplying a record and expecting the court to go through it page by page is not enough.    You don't want the research attorneys or justices scrambling to find a document that you have referred to without an appropriate reference to the record.  They probably won't do it.   Always think of making life easier for the court.  It may not be an official rule, but it will avoid opinions such as this one.