Cheng v. Brenning
Filed 1/8/13
Cheng v. Brenning CA6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SIXTH APPELLATE DISTRICT
WILLIAM CHENG
et al.,
Plaintiffs and Appellants,
v.
DENNIS C.
BRENING et al.,
Defendants and Respondents.
H037702
(Santa Clara County
Super. Ct. No.
CV149131)
This
action concerns a challenge to the nonjudicial foreclosure sale of rental
residential property in San Jose which had been owned by William Cheng and Janet Cheng
(collectively, appellants). They appeal
from a judgment entered against them after a court trial. We will affirm the judgment and the
subsequent order granting attorney fees and costs.
PROCEDURAL
BACKGROUND
It is apparent
that on August
5, 2009, appellants filed a complaint
captioned as one for declaratory relief,
injunctive relief, cancellation of a notice of default, and slander of title.
(Brening), The Dennis C. Brening Trust (Trust), Verdeo Capital Group (Verdeo),
and Placer Foreclosure, Inc. (Placer).
(Hereafter, the defendants are referred to collectively as respondents.)
respondents moved for summary judgment or, in the alternative, for summary
adjudication. On October 6, 2011, the court denied the motion for summary judgment but granted
summary adjudication as to the third and fourth causes of action of the
complaint.
A court trial on
the remaining claims took place on October 31, 2011,
and November
1, 2011.
After the parties submitted the matter, the court entered judgment on November 3, 2011, concluding that appellants should take nothing on their
complaint. The court held further that
respondents were prevailing parties entitled to statutory costs with
respondents “to file [a] timely cost bill and/or motion for attorneys[’]
fees.†Appellants filed a
DISCUSSION
I. Appellants’ Noncompliant Briefs
Before
addressing any substantive issues that may have been raised by appellants, we
are compelled to identify the serious procedural deficiencies existing in their
filings with this court. The opening
brief is not in compliance with the California Rules of Court.
summary of the relevant procedural history of the case, including a plain
statement of “the nature of the action, the relief sought in the trial court,
and the judgment or order appealed from,†all as required by rule
8.204(a)(2)(A). Similarly, the brief
fails to include a plain statement of appealability, i.e., that “the judgment
appealed from is final, . . .†(Rule 8.204(a)(2)(B).)
More
significantly, the opening brief
contains minimal citation to the record in support of appellants’ assertions of
fact and no citation to the record concerning procedural matters allegedly
occurring below, in violation of rule 8.204(a)(1)(C). (See
Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 800-801
[failure to include citations to appellate record in brief may result in
forfeiture of claim].) The very few
citations to the record which appear in the opening brief
noncompliant with the Rules of Court.
They consist of block references to a group of pages of the reporter’s
transcript, rather than a reference to the specific page or pages upon which appellants
claim that the fact stated is found.
This is unhelpful to this court and is an unacceptable appellate
practice. “Plaintiff’s single citation
to a reporter’s transcript with block page references, for example, ‘RT Vol 6,
2480–2501,’ frustrates this court’s ability to evaluate which facts a party
believes support his position, particularly when a large portion of that
citation referred to points that appeared to be irrelevant.†(Nazari
v. Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1; see also
226 Cal.App.3d 1203, 1205 [“exact page citations†to the appellate record are
required].)
Further,
appellants have taken the liberty of appending some 10 pages of documents to
their opening brief and nine pages to their reply brief, another procedural
violation of appellate practice, because it is unclear whether these documents
are indeed part of the record below.
(Rule 8.204(d); see Doers v.
Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [documents
not presented to trial court generally may not be included in record on
appeal].) We will disregard any factual
assertions made by appellants which are not contained in the record and we will
also disregard any attachments to their briefs where we cannot determine that
the documents were part of the record below.
(See rule 8.204(a)(2)(C); McOwen
v. Grossman (2007) 153 Cal.App.4th 937, 947; Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622,
632.)
The failure to
cite to the record connotes another significant problem with the appeal: appellants’ failure to procure an adequate
appellate record. The court has gleaned
that their challenges on appeal relate to (1) the court’s granting of summary
adjudication in favor of respondents as to two of the claims, (2) the court’s
later entry of judgment adverse to appellants after a court trial, and (3) the
court’s postjudgment award of attorney fees.
Appellants, however, have not presented the relevant documents from the
court below necessary to adequately address this appeal. Part of the appellant’s burden in showing
error is to provide an adequate record from which the claimed error may be
demonstrated; the failure to present such a record requires that the issue be
resolved against the appellant. (
1295-1296; see also Wagner v. Wagner (2008)
162 Cal.App.4th 249, 259 [failure of appellant to include transcript of hearing
foreclosed court’s review of claim of error].)
As we discuss below, appellants’ failure to procure an adequate record
precludes our review of their challenge to the summary adjudication order.
We acknowledge
that appellants are representing themselves in connection with this appeal and
therefore have not had formal legal training that would be beneficial to them
in advocating their position. However,
the rules of civil procedure apply with equal force to self-represented parties
as they do to those represented by attorneys.
(Rappleyea v. Campbell (1994)
8 Cal.4th 975, 984-985.) Thus, “[w]hen a
litigant is appearing in propria persona, he is entitled to the same, but no
greater, consideration than other litigants and attorneys.†(Nelson
v. Gaunt (1981) 125 Cal.App.3d 623, 638; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Based upon the
wholly noncompliant nature of appellants’ briefs, it would be appropriate to
entirely disregard their contentions as having been forfeited. (See
WallDesign Inc. (2011) 199 Cal.App.4th 1525,
1528-1529, fn. 1.) We are, however, able
to glean the essential claims of error appellants make relative to the
judgment. Therefore, in the interests of
addressing the merits of the case—and without impliedly minimizing the
significance of appellants’ noncompliance with appellate procedures—we will, to
the extent possible, address below the contention by appellants that the
judgment must be reversed due to insufficiency of the evidence.
II. Summary
Adjudication Order
Appellants
appear to take issue with the court’s order granting summary adjudication. Although the order disposed of the third
(injunctive relief) and fourth (slander of title) causes of action, appellants’
sole argument is directed toward the summary adjudication of the fourth cause
of action. They have failed, however, to
produce an adequate record permitting this court to evaluate that
contention. They have failed to include
any of the papers (either moving or reply) filed by respondents in support of
the motion. Nor have they included the
reporter’s transcript of the hearing on the motion. And they have not included a copy of the
complaint, which is critical, since “[t]he pleadings determine the issues to be
addressed by a summary judgment motion [citations].†(Knapp
v. Doherty (2004) 123 Cal.App.4th 76, 84; see also
231 Cal.App.3d 367, 381 [“the role of the pleadings [serve] as the outer
measure of materiality in a summary judgment proceedingâ€].)
The party
challenging a ruling by the trial court has the burden of showing reversible
error by an adequate record. (
574.) Because there is an inadequate
record, we must presume any matters that could have been presented to support
the trial court’s judgment were in fact presented, and may affirm the trial
court’s determination on that basis. (
122, 127.) We will therefore reject any
challenge to the court’s order granting summary adjudication of the third and
fourth causes of action.
III. Standard
of Review
Appellants do
not identify the standard of review applicable to this appeal. But their challenges to the judgment, insofar
as they relate to the court’s conclusion after trial,
their claims that (1) the notice of default was wrongful, (2) there were no
missing payments in March and April 2009 upon which the notice of default was
based, (3) appellants paid off the loan in full before the trustee’s sale, and
(4) certain documents created in connection with the trustee’s sale (i.e., the
certificate of sale and the trustee’s deed) were “fraudulent.†It is clear that these challenges relate to
the court’s factual findings in support of the judgment and that the
“deferential†(Patterson Flying Service
v. Department of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419)
substantial evidence standard of review described below applies to appellants’
challenges.
It is a
fundamental proposition that a judgment or order is presumed correct on
appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “ ‘All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown.’ †(
557, 564.) It is appellant’s burden to
overcome this presumption of correctness, which burden includes providing an
adequate record demonstrating error. (
Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 8:17,
pp. 8-5 to 8-6, rev. #1, 2012.) The doctrine
of implied findings is “a natural and logical corollary†to (1) the presumption
of the correctness of the judgment, (2) the fact that all intendments and
presumptions are made in favor of that correctness, and (3) appellant’s bearing
the burden of demonstrating error with an adequate record. (Fladeboe
v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 (
to infer the trial court made all factual findings necessary to support the
judgment. [Citation.]†(Ibid.;
see Michael U. v. Jamie B. (1985) 39
Cal.3d 787, 792-793, superseded by statute on other grounds as stated in
Cal.4th 435, 448-449.) The doctrine
of implied findings applies when—as is the case here—there is no statement of
decision rendered. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.)
A disputed
factual issue that has been resolved by the trial court is reviewed on appeal
under the substantial evidence standard.
(Winograd v. American Broadcasting
Co. (1998) 68 Cal.App.4th 624, 632.)
As explained by the Supreme Court a number of years ago, “In reviewing
the evidence on such an appeal all conflicts must be resolved in favor of the
respondent, and all legitimate and reasonable inferences indulged in to uphold
the verdict if possible. It is an
elementary, but often overlooked principle of law, that when a verdict is
attacked as being unsupported, the power of the appellate court begins and ends
with a determination as to whether there is any substantial evidence,
contradicted or uncontradicted, which will support the conclusion reached by
the jury. When two or more inferences
can be reasonably deduced from the facts, the reviewing court is without power
to substitute its deductions for those of the trial court. [Citations.]â€
(Crawford v. Southern Pacific Co. (1935)
3 Cal.2d 427, 429; see also Roddenberry
v. Roddenberry (1996) 44 Cal.App.4th 634, 651-652.) Although the record must be reviewed in its
entirety, “all of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the
respondent must be accepted as true, and that unfavorable discarded as not
having sufficient verity, to be accepted by the trier of fact. If the evidence so viewed is sufficient as a
affirmed.†(Estate of Teel (1944) 25 Cal.2d 520, 527.)
It is the
appellant’s burden to establish that the judgment is not supported by
substantial evidence. (
Cal.App.4th 1004, 1011.) In meeting that
burden, the appellant is charged with presenting an adequate record from which
the error is demonstrated. (
Cal.3d 1281, 1295.) And in
assessing whether substantial evidence supports the trial court’s factual
findings, we consider the evidence in the light most favorable to the party
prevailing below. (Plumas County Dept. of Child Support Services v. Rodriguez (2008)
161 Cal.App.4th 1021, 1026.)
IV. The Judgment Entered After Court Trial
A. Procedural Bar to Claim of Error
We have noted
(see pt. I, ante) the noncompliant
nature of appellants’ briefs and their failure to procure an adequate
record. We identify here an additional
procedural defect as it relates specifically to appellants’ challenge to the
sufficiency of the evidence.
“ ‘The rule is
well established that a reviewing court must presume that the record contains
evidence to support every finding of fact, and an appellant who contends that
some particular finding is not supported is required to set forth in his brief
a summary of the material evidence upon that issue. Unless this is done, the error assigned is
deemed to be waived. [Citation.] It is incumbent upon appellants to state
fully, with transcript references, the evidence which is claimed to be
insufficient to support the findings.’ â€
(In re Marriage of Fink (1979)
25 Cal.3d 877, 887; see also Nwosu
v. Uba, supra, 122 Cal.App.4th at
p. 1246 [“attack on the evidence without a fair statement of the evidence is
entitled to no consideration when it is apparent that a substantial amount of
evidence was received on behalf of the respondentâ€].) Here, appellants have failed to provide a
summary of the material evidence (including evidence favorable to respondents)
concerning their claims litigated in the court trial, including citations to
the record. We may therefore treat their
claim of error as waived. (
challenge to the judgment as having not been waived, as discussed below, it
nonetheless lacks merit.
B. Merits of Challenge to Sufficiency of Evidence
From the record
before us—and without the benefit of having a copy of the complaint—we
understand that the principal claim tried by the court concerned appellants’
contention that the notice of default upon which the foreclosure sale was based
was defective. This contention appears
to be the basis for appellants’ claims asserted in the first and second causes
of action of the complaint (for declaratory relief and cancellation of notice
of default, respectively), which claims were the subject of the court
trial.
The evidence at
trial was that in or about May 2008, appellants, as borrowers, executed a
promissory note in the principal sum of $225,000 in favor of the Trust, which
was the lender. The loan was for a
two-year term and required monthly payments of $2,250, due on the first day of
each month. The note was secured by a
deed of trust encumbering non-owner occupied residential real property located
at 5094 Roeder Road, San Jose, California (Roeder property). Verdeo was named trustee under the deed of
trust, and the Trust was the beneficiary.
Appellants signed a statement at the time of the loan that they intended
to use some of the loan proceeds to improve the Roeder property. According to Cary Long of Verdeo, “[t]his was a condition of the approval [of
the loan].†No improvements to the
property occurred after the loan was made.
Appellants
failed to make the monthly payments under the note for March and April
2009. Verdeo, as trustee, sent out two
separate notices to appellants in March 2009 concerning their failure to make
the March 2009 payment. Having not
received the March and April 2009 monthly payments, Verdeo referred the matter
to Placer, which commenced foreclosure proceedings on April 16, 2009. A notice of default was prepared and mailed
to appellants by Placer, indicating that as of April 21, 2009, appellants owed
$6,867.50 under the note and deed of trust.
This amount consisted of two monthly payments of $2,250, late charges of
$675, and accrued trustee’s fees, costs and expenses of $1,692.50. At the time the notice of default was mailed
and recorded, no payments from appellants for March and April 2009 had been
received.
there was no irregularity in the notice of default.
The nonjudicial
foreclosure sale occurred on September 8, 2009, in San Jose. The property was sold to the beneficiary, the
Trust. Prior to the foreclosure sale,
appellants failed to make any payments required to cure the default. On September 11, 2009, Long, on behalf of
Verdeo, signed a trustee’s deed upon sale relative to the Roeder property,
conveying the property to the Trust.
As demonstrated
by our recitation in the preceding three paragraphs of the evidence at trial,
the court’s implied finding that there was no irregularity in connection with
the notice of default was supported by substantial evidence. Notwithstanding Janet Cheng’s contrary
testimony that no payments were owing at the time of the notice of default, the
representatives of Verdeo and Placer (Long and Robbins, respectively)
testified—and reiterated that testimony repeatedly on cross-examination by Janet
Cheng—that the March and April 2009 payments had not been received at the time
the default notice was served (and were not received at any time
thereafter). And notwithstanding Janet
Cheng’s testimony that she did not receive the two letters preceding the notice
of default indicating nonpayment on the loan or the notice of default itself,
respondents presented evidence that Verdeo sent two separate default notices to
appellants by regular and certified mail in March 2009 (the certified second
notice being signed for by appellants), and sent the notice of default.
Further,
although Janet Cheng testified that she was told by Long in September that the
trustee’s certificate of sale was “cancelled,†both Long and Robbins testified
repeatedly that there was never a cancellation of the trustee’s sale or the
trustee’s deed and they never informed appellants of any such alleged
cancellation. And notwithstanding Janet
Cheng’s testimony that she “pa[id] off the mortgage†and therefore the
foreclosure was improper, Long testified on several occasions that appellants
did not pay off the loan at any time.
“A nonjudicial
foreclosure sale is accompanied by a common law presumption that it ‘was
conducted regularly and fairly.’
[Citations.] This presumption may
only be rebutted by substantial evidence of prejudicial procedural
irregularity. [Citation.] . . . It is
the burden of the party challenging the trustee's sale to prove such
irregularity and thereby overcome the presumption of the sale’s
regularity. [Citation.]†(Melendrez
v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258;
see also 6 Angels, Inc. v. Stuart-Wright
Mortgage, Inc. (2001) 85 Cal.App.4th 1279, 1284.) There was substantial evidence supporting the
court’s implied findings that there were no irregularities with respect to the
notice of default or the foreclosure sale itself. Accordingly, we conclude that appellants’
attack on the judgment—even were we to ignore the significant procedural
shortcomings of their appeal—must fail.
V. Postjudgment Award of Attorney Fees
Appellants
contend in their briefs that the court abused its discretion in “award[ing] a
huge amount of attorney fees to [respondents] . . .†We reject this challenge to an apparent
postjudgment order entered in April 2012 awarding $60,432 attorney fees and
costs in favor of Brening and the Trust.
A conclusory
presentation in an appellate brief without argument or application of pertinent
law to the circumstances of the case is inadequate, and any unsupported
contentions may be deemed waived. (
149 Cal.App.4th 836, 852 (Benach);
see also In re S.C. (2006) 138
Cal.App.4th 396, 410.) Here, other
than making the conclusory assertion that the attorney fee award constituted an
abuse of discretion, appellants make no argument and cite no authority in
support of the claim. We therefore
conclude that the challenge is waived. (
DISPOSITION
The judgment and
the subsequent order awarding attorney fees and costs are affirmed.
Márquez,
J.
WE CONCUR:
Premo, Acting P.J.
Mihara, J.
name="_ftn1" title=""> [1] The complaint is not part of the appellate record. Our recital of its filing date and substance
is based upon its description by the court and respondents’ counsel at the
trial.
name="_ftn2" title=""> [2] It is apparent that the complaint also named First American Title
Company, but First American was never served with the summons and complaint and
did not appear in the action.
