Filed 11/20/18 Horvatinovich v. Wells Fago Bank CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Bryan Foster, Judge. Dismissed.

Kenneth J. Horvatinovich, in pro. per., for Plaintiff and Appellant.

Severson & Werson, Jan T. Chilton and Kerry W. Franich, for Defendant and Respondent.

Kenneth Horvatinovich sued Wells Fargo Bank, N.A. (Wells Fargo), alleging a single cause of action for breach of contract after his home was foreclosed upon and sold at a trustee’s sale. Horvatinovich alleged Wells Fargo failed to apply excess mortgage payments to pay property taxes on his home, which resulted in the foreclosure. The trial court granted summary judgment for Wells Fargo, and Horvatinovich timely appealed from the judgment.

Other than recount the factual and procedural history and provide an incomplete statement of the standard of review, Horvatinovich’s opening brief does not articulate any reason why he believes the trial court erred by granting summary judgment or provide any cogent legal argument whatsoever to persuade this court that we should reverse the judgment. As the appellant, Horvatinovich bears the burden of affirmatively establishing error, and this court has no duty to articulate possible grounds for reversal without the assistance of legal argument from him. Therefore, we treat Horvatinovich’s appeal as abandoned and dismiss it.

I.

PROCEDURAL BACKGROUND[1]

In his verified first amended complaint, Horvatinovich purported to state a single cause of action for breach of contract. Horvatinovich alleged that Wells Fargo, as the assignee on the deed of trust that secured the loan on Horvatinovich’s home, breached the deed of trust by not allocating $4,309.96 in excess mortgage payments to an escrow account for the payment of property taxes. Instead, Horvatinovich alleged Wells Fargo chose “to first, collect late charges and fees and then, to classify [excess payments] as prepayments of principal.” Wells Fargo then recorded a notice of default when Horvatinovich allegedly failed to make a minimum monthly payment “while withholding the [excess payments] against the principal balance instead of either depositing them into escrow,” applying them to property taxes or insurance, or returning them to Horvatinovich.

Wells Fargo answered and subsequently moved for summary judgment, contending: (1) Wells Fargo did not breach the contract because Horvatinovich signed an escrow waiver when he obtained the loan, so he was responsible for separately paying property taxes and insurance premiums; (2) Wells Fargo did not proximately cause Horvatinovich’s damages because, even if Wells Fargo breached the contract, the foreclosure would have occurred anyway because Horvatinovich stopped paying his mortgage and was over $13,000 in arrears when the notice of default was recorded; (3) Horvatinovich himself breached the contract when he stopped making full and timely payments on his mortgage; and (4) Horvatinovich was aware that Wells Fargo was not allocating excess mortgage payments to property taxes many years before he filed suit, so his claim for breach of contract was barred by the four-year statute of limitations under Code of Civil Procedure section 337.

In his opposition, Horvatinovich admitted he had signed an escrow waiver and that he knew many years before the foreclosure sale that Wells Fargo was not applying excess mortgage payments to pay property taxes, and he raised no triable issue of material fact that he did not breach the contract when he stopped making full and timely mortgage payments.

The trial court found no triable issues of material fact and ruled Wells Fargo was entitled to summary judgment as a matter of law on the sole cause of action for breach of contract. The trial court thereafter entered judgment in favor of Wells Fargo and dismissed the lawsuit.

Horvatinovich timely appealed.

II.

DISCUSSION

As Wells Fargo states in its brief, Horvatinovich’s nine-page opening brief utterly fails to comply with the rules of court because it does not “state each of his points under a separate heading or subheading summarizing the point, and support each point by argument, and if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B), italics added.) Indeed, not only does Horvatinovich provide no reasoned argument in support of reversal of the judgment, he fails to articulate exactly how the trial court supposedly erred.

In the “ARGUMENT” section of his brief, Horvatinovich provides a single subheading titled, “THERE WERE TRIABLE ISSUES OF MATERIAL FACT THAT RENDERED SUMMARY JUDGMENT INAPPROPRIATE.” But he does not articulate what triable issues of material fact existed and on what issue raised in Wells Fargo’s summary judgment motion. Nor does Horvatinovich provide any argument to support his broad claim that the existence of undescribed triable issues of material fact precluded summary judgment. The remainder of the brief includes an incomplete discussion of the standard of review and Horvatinovich’s request that the judgment be reversed. To put it bluntly, Horvatinovich’s opening brief is a brief in name only.[2] As such, Horvatinovich has failed to carry his burden of demonstrating reversible error, and we will dismiss the appeal.

“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, first italics in original, second italics added.)

The sine qua non of an appellate brief is cogent legal argument. As the leading practice guide on California civil appeals explains, “Written briefs comprise the heart of the appellate process. While the appellate record provides the context for arguing an appeal . . . , the appellate briefs are the primary vehicle for presenting the argument and persuading the court that your . . . position is correct.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 9:1, p. 9-1.) “The primary role of an appellate brief is to convince the reviewing court of the merits of your . . . position . . . .” (Id. ¶ 9:3, p. 9-1; accord, 1 Appeals and Writs in Criminal Cases (Cont.Ed.Bar 3d ed. 2018) § 4.40, p. 4-53 [“A brief is an exercise in persuasion”].)

“‘One cannot simply say the court erred, and leave it up to the appellate court to figure out why. [Citations.]’” (Jewish Community Centers Development Corp. v. County of Los Angeles (2016) 243 Cal.App.4th 700, 716.) “It is not our responsibility to develop an appellant’s argument. [Citation.]” (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) “‘[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal.’ [Citation.]” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.)

The same rules apply to appellants appearing in propria persona. “A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys. [Citation.]” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.)

Because Horvatinovich has failed to supply this court with any reason whatsoever why the trial court allegedly erred, we treat his appeal as abandoned and dismiss it.

III.

DISPOSITION

The appeal is dismissed. Each party shall bear their own costs.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.