Filed 1/19/18 Deutsche Bank Nat. Trust v. Honc CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, etc.,

Plaintiff and Respondent,

v.

DENISE M. HONC,

Defendant and Appellant.
D072868



(Super. Ct. No. INC1300822)


APPEAL from a postjudgment order of the Superior Court of Riverside County, James T. Latting, Judge. Affirmed.
Denise M. Honc, in pro. per., for Defendant and Appellant.
Houser & Allison, Eric D. Houser, Emilie K. Edling, Amy E. Starrett and Brian J. Wagner, for Plaintiff and Respondent.
Deutsche Bank National Trust Company, as Trustee for GSAA Home Equity Trust 2006-16, Asset-Backed Certificates, Series 2006-16 (Deutsche Bank) sued John P. Slawinski and Denise M. Honc for cancellation of instruments and declaratory relief. The gravamen of the complaint was that Slawinski and Honc caused certain fraudulent, written instruments to be recorded in the chain of title for certain real property. Deutsche Bank sought to cancel the instruments and for a judicial declaration that such instruments were null and void.
Deutsche Bank successfully moved for summary judgment. The superior court entered judgment in favor of Deutsche Bank. Honc did not appeal from that judgment. Instead, nearly six weeks after the court entered judgment, Honc filed a motion to set aside the judgment as void. The court denied that motion after considering the papers and evidence as well as entertaining oral argument. Honc did not appeal that order.
Over two months after the court denied her motion to set aside the judgment, Honc filed another motion attacking the judgment as void. The court denied that motion as well, noting that the motion was simply a "rehash" of the previous motion challenging the judgment.
Honc appeals that order, and in doing so, attempts to challenge the judgment following Deutsche Bank's successful motion for summary judgment as well as various other orders the court made prior to entering judgment, including certain discovery orders. Any challenges to the judgment and the prejudgment orders are not properly before us because Honc waived any objection to them by failing to timely appeal. To the extent there is an appealable issue before us, it only relates to the court's denial of Honc's second motion challenging the judgment as void. Regarding that order, Honc offers no cogent argument why the court erred in denying her motion. Put differently, Honc has not shown why the judgment was void. As such, we affirm the order.
AN APPELLANT'S BURDEN AND THE ISSUE BEFORE US
After reviewing the briefs in this matter, we believe it prudent to begin with a succinct discussion of the challenges facing an appellant. We observe that Honc, as an in propria persona litigant, is "entitled to the same, but no greater, rights than [a] represented litigant and [is] presumed to know the [procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) For any appellant, "[a]ppellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants' argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
On appeal, the order of the trial court is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, if the order is correct on any theory, the appellate court will affirm it regardless of the trial court's reasoning. (In re Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) All intendments and presumptions are made to support the order on matters as to which the record is silent. (Denham, supra, at p. 564.)
With this background in mind, we next frame the issue before us. Again, we find this necessary considering the scattershot nature of Honc's opening brief. In the notice of appeal, Honc purports to be appealing an order dated April 7, 2016. Attached to her notice of appeal is a copy of an order denying Honc's motion to void summary judgment dated August 17, 2015 for fraud upon the court. Thus, the only order Honc is appealing is the order denying her motion to void the judgment following Deutsche Bank's successful motion for summary judgment.
Nevertheless, the thrust of Honc's opening brief is a challenge to the superior court's granting of Deutsche Bank's motion for summary judgment. The court granted that motion for summary judgment on July 17, 2015 and entered judgment in favor of Deutsche Bank on August 17, 2015. Honc did not appeal the judgment, and as such, she has waived any challenge to it here. We therefore do not address any of Honc's arguments that the court erred in granting the motion for summary judgment.
In addition, Honc takes issue with discovery orders involving her appearance at a deposition and sanctions for her failure to appear. In general, a discovery order is not directly appealable. However, under Code of Civil Procedure section 906, an otherwise unappealable order could be appealable if it "involves the merits or necessarily affects the judgment or order appealed from or which substantially affects the rights of the party . . . ." (Ibid.) Honc implies that certain discovery orders hampered her ability to oppose Deutsche Bank's motion for summary judgment. If that were the case, then Honc could have argued the discovery order was appealable as part of her appeal of the judgment following the motion for summary judgment. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169.) Having not appealed that judgment, she waived any challenge she might have had to the various discovery orders she now claims undermined her ability to oppose the motion for summary judgment.
Honc also claims that the particular superior court judge (Judge Latting) who granted Deutsche Bank's motion for summary judgment was disqualified. However, Honc does not point to any portion of the record indicating that Judge Latting was disqualified. Our review of the record indicates that Honc filed two statements of disqualification against Judge Latting, both based on her dissatisfaction with rulings made by the court. The court struck both the statements of disqualification, and in doing so, provided notice to Honc that the court's determination of the question of disqualification was not an appealable order. That said, the court made clear that Honc could ask for review via a petition for writ of mandate if sought within 10 days of notice of the parties of the decision. (Code Civ. Proc., § 170.3, subd. (d).) Honc did not file any such petition; therefore, she waived any challenge as to the court's determination that Judge Latting should not be disqualified. As such, we will not address that issue here.
On October 2, 2015, Honc filed a motion to set aside a void judgment pursuant to Code of Civil Procedure section 473, subdivision (d). In that motion, Honc argued the court lacked jurisdiction to rule on the motion for summary judgment because Judge Latting was disqualified. On December 9, 2015, the court denied the motion. Honc did not appeal that order. However, she filed a petition for writ of mandate and request for immediate stay. Our colleagues in Division Two denied the petition on January 5, 2016.
On February 4, 2016, Honc brought a second motion to set aside judgment based upon fraud on the court. The court denied that motion on April 7, 2016, and in doing so, indicated that it found the motion was simply a rehashing of Honc's October 2, 2015 motion. Honc then timely appealed that order. Thus, the only possible issue before us is whether the court erred in denying Honc's February 4, 2016 motion. With this in mind, we will discuss only the factual and procedural background necessary to resolve that issue.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2006, Slawinski obtained a loan in the amount of $580,000 from Decision One Mortgage Company, LLC. The loan was evidenced by a note executed by Slawinski and secured by a deed of trust that was subsequently recorded on June 22, 2006 against real property located in Palm Desert, California. As permitted by the note and deed of trust, the loan was later assigned to Deutsche Bank in September 2011.
Around September 2009, Slawinski defaulted on the loan. On September 29, 2011, a notice of default and election to sell under deed of trust (Notice of Default) was recorded. The Notice of Default indicated that Slawinski was about $133,981.87 in arrears on the loan.
After the Notice of Default was recorded, Slawinski and Honc executed and recorded a series of fraudulent documents related to the loan to make it appear that the loan had been paid off or that Deutsche Bank had no interest in the loan or deed of trust. For example, a document entitled "Modification of Deed of Trust" dated and recorded January 9, 2012, executed by Slawinski, purported to modify the loan amount from $580,000 to zero. Another document, dated and recorded January 9, 2012, purportedly substituted Honc as the trustee under the deed of trust. Also, a document dated and recorded January 9, 2012 purported to transfer all interest in the deed of trust to Honc. In all, the record contains seven fraudulent documents all purporting to be signed by Deutsche Bank, although Deutsche Bank did not authorize the preparation or execution of any of these documents. Apparently, Slawinski executed the documents, but made it appear as if a representative of Deutsche Bank did so.
In February 5, 2013, Deutsche Bank filed a complaint against Slawinski and Honc to cancel the fraudulent instruments and for declaratory relief. After certain discovery motions and related orders as well as attempts by Honc to disqualify Judge Latting, Deutsche Bank successfully moved for summary judgment. The court entered judgment in favor of Deutsche Bank on August 17, 2015. Honc did not appeal.
Instead of appealing the judgment, Honc filed two motions seeking to set aside the judgment because of fraud on the court. The court denied both motions, but Honc only appealed the second order. As such, we focus on that order and corresponding motion here.
In Honc's second motion, she argued the judgment was void because the judgment was "procured by a Fraud Upon the Court and numerous violations of Defendant's Rights to Due Process of law, and Plaintiff's lack of Standing." The superior court disagreed and denied the motion.
DISCUSSION
The only issue properly before this court is Honc's contention that the court erred in denying her motion to set aside the judgment as void under Code of Civil Procedure section 473, subdivision (d). A judgment is void if, at the time it is issued, "the court lacked personal or subject matter jurisdiction or exceeded its jurisdiction in granting relief which the court had no power to grant." (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1239; Abelleira, supra, 17 Cal.2d at p. 288.) Even when a judgment goes "beyond the sphere of action prescribed by law," it is not necessarily void. (Pajaro Valley Water Management Agency v. McGrath (2005) 128 Cal.App.4th 1093, 1101.) A judgment that is void for lack of jurisdiction must be distinguished from a judgment that is merely erroneous, "because '[a]ction "in excess of jurisdiction" by a court that has jurisdiction in the "fundamental sense" (i.e., jurisdiction over the subject matter and the parties) is not void, but only voidable.' " (Ibid., italics omitted; Fireman's Fund Ins. Co. v. Workers' Comp. Appeals Bd. (2010) 181 Cal.App.4th 752, 767.)
Here, Honc maintains the court lacked subject matter jurisdiction to grant Deutsche Bank's summary judgment. However, her reasons for making this assertion are less than clear in her briefs. As best as we can discern, Honc contends Deutsche Bank's complaint was void because it was not verified. And, because the complaint was void, "the court's judicial authority was never invoked." We are not persuaded.
To support Honc's position, she must provide a reasoned argument as well as citations to authority. (Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862.) She has done neither. Honc provides no authority whatsoever that Deutsche Bank's complaint was required to be verified to be legally valid. Having not done so, she waives any such argument here. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)
In addition, our independent research has disclosed no requirement that a complaint seeking to invalidate fraudulent instruments be verified. Moreover, even if Deutsche Bank's complaint should have been verified, the fact that it was not verified is merely a procedural defect, not a jurisdictional one. Indeed, "the failure to verify a pleading even where the verification is required by statute is a mere defect curable by amendment." (United Farm Workers of America v. Agricultural Labor Relations Board (1985) 37 Cal.3d 912, 915.) "Amendment of a pleading may even be allowed at the time of trial, absent a showing of prejudice to the adverse party." (Ibid.)
" '[T]he proper objection where a party fails to verify a pleading is a motion to strike . . . which may be made only upon timely notice and provides for hearing and extension of time to answer.' " (Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761.) Thus, if Honc believed the operative complaint needed to be verified, she should have moved to strike the unverified complaint. She has not pointed to the record where she did so. Having failed to do so, she has waived any right to object to a purported pleading error. (Ibid.) In any event, the fact that Deutsche Bank's complaint was not verified, even if it were required to be verified, did not strip the superior court of jurisdiction to rule on the motion for summary judgment. Therefore, Honc cannot rely on this argument to challenge the judgment as void.
Honc also asserts the judgment was void because Deutsche Bank lacked standing to sue her, there was no debt owed to Deutsche Bank, Deutsche Bank had unclean hands, Deutsche Bank did not submit competent evidence in support of its motion for summary judgment, the superior court improperly found no triable issue of material fact existed, the original lender committed fraud, Deutsche Bank was not a real party in interest, and the superior court violated Honc's due process rights by making certain rulings adverse to her interests. These arguments are largely nonsensical, and Honc does not clarify how any of these alleged issues renders the judgment void. Honc's arguments appear to be attempts to challenge the merits of Deutsche Bank's motion for summary judgment. However, Deutsche Bank's summary judgment motion is not properly before us because Honc did not timely appeal the judgment. As such, Honc cannot now challenge on appeal the court's granting of summary judgment through the guise of an appeal of an order denying her motion to set aside the judgment on the basis the judgment is void.
In summary, the only issue before us is whether the court erred in denying Honc's motion to set aside the judgment under Code of Civil Procedure section 473, subdivision (d). Honc has not carried her burden of showing us why the judgment is void. Accordingly, we must affirm the order.
DISPOSITION
The order is affirmed. Deutsche Bank is awarded its costs on appeal.


HUFFMAN, Acting P. J.

WE CONCUR:



IRION, J.



DATO, J.