Larin v. Williams







Filed 12/12/11 Larin v. Williams CA4/2








NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

CARLOS M. LARIN et al., Plaintiffs and Appellants, v. DAYSI Y. WILLIAMS, et al., Defendants and Respondents.

E051640 (Super.Ct.No. CIVDS903061) OPINION

APPEAL from the Superior Court of San Bernardino County. W. Robert Fawke, Judge. Affirmed.
Carlos M. Larin and Herlinda E. Larin, in pro. per., for Plaintiffs and Appellants.
Law Offices of Raul B. Garcia and Raul B. Garcia for Defendants and Respondents.
Fidelity National Law Group and Paul J. Meshek for Defendant and Respondent, Fidelity National Financial.
I
INTRODUCTION
Plaintiffs and appellants are Carlos M. Larin and Herlinda E. Larin. Defendants and respondents are Daysi Y. Williams, Sergio G. Dueñas, and Fidelity National Financial, Inc. (Fidelity). Based on this court’s order of January 6, 2011, there are no other parties to this appeal.^[1]
The Larin plaintiffs appeal from the superior court’s judgment dismissing their claims, as stated in the second amended complaint (SAC). The only arguments asserted by the Larins are that the superior court exhibited judicial bias against them because they were acting in propria persona. We reject plaintiffs’ assertions and affirm the judgment.
II
FACTUAL AND PROCEDURAL BACKGROUND
A. The Allegations of the SAC
The SAC alleges that defendants conspired to defraud the Larins of their interest in the subject property.
Carlos M. Larin (Carlos) and Daysi Y. Williams (Williams) met in 1999 when they were both working as bus drivers. In June 2003, they made an oral agreement for Williams to pay Carlos $8,000 to buy real property located at 19425 Anaconda Street in Rialto, California. Williams would provide the downpayment and make all the mortgage payments. In six months time, Williams would obtain a new loan and take title to the property. Carlos purchased the property on July 17, 2003, and executed two trust deeds for $199,500 to a lender, World Savings Bank. A quitclaim deed from Herlinda E. Larin (Herlinda) to Carlos, purportedly a forgery, was also recorded on July 17, 2003. Williams began occupying the property on July 20, 2003.
On August 15, 2003, Carlos executed a quitclaim deed transferring the property to Herlinda. On August 26, 2003, Carlos executed a quitclaim deed, dated July 23, 2003, transferring the property to Williams. Neither of these deeds were recorded until August 4 and 6, 2004.
On July 25, 2004, Carlos discovered that the forged quitclaim deed from Herlinda to Carlos had been recorded on July 17, 2003. Carlos then recorded the August 2003 deed to Herlinda on August 4, 2004, in an effort to secure title in her name.
Williams recorded the quitclaim deed from Carlos on August 6, 2004.
When Williams did not pay Carlos the promised consideration of $8,000, Carlos filed an unlawful detainer action against Williams. In September 2004, the court dismissed the action on the grounds that Carlos did not own the property.
In February 2005, Williams and Sergio G. Dueñas (Dueñas)reported to police that Carlos had attempted to kill them with his motorcycle.
In March 2005, Williams recorded a grant deed, transferring the subject property to Dueñas. Dueñas executed two deeds of trust for $270,000 to People’s Choice Home Loan. Acting as an agent or as the escrow holder for the sale to Dueñas, Fidelity recorded the grant deed and the deeds of trust. World Savings Bank reconveyed its interest in the property.
On June 10, 2005, Carlos then filed a complaint against Williams for breach of contract, fraud, and quiet title concerning the subject property. The court dismissed the 2005 complaint on January 15, 2009, for failure to prosecute.
B. Defendants’ Demurrers and Motion to Strike
The present action was filed in March 2009. The first amended complaint was filed in August 2009. The SAC, the operative pleading, was filed in March 2010. The SAC alleges fraud, cancellation of instruments, unjust enrichment, quiet title, constructive trust, breach of contract, rescission and restitution, abuse of process, false imprisonment, defamation, intentional infliction of emotional distress, and declaratory relief against Williams and Dueñas. The SAC alleges cancellation of instruments, quiet title, constructive trust, negligence, and declaratory relief against Fidelity.
The court sustained without leave to amend the demurrer to the SAC filed by Fidelity. The court sustained without leave to amend the demurrer to the SAC filed by Williams and Dueñas. The court also granted the special motion to strike (the “anti-SLAPP motion”; Code Civ. Proc., § 425.16) brought by Williams and Dueñas.
The Larins filed a notice of appeal directed at the court’s judgment of dismissal after granting orders sustaining defendants’ demurrers, the order granting the motion to strike, and the order denying plaintiffs’ request for sanctions. (Code Civ. Proc., § 904.1, subds. (a)(13), (b).)^[2]
III
JUDICIAL BIAS
The only argument the Larins assert on appeal is that Judge W. Robert Fawke, the superior court judge, ruled against them because he was biased against them as self-represented litigants. The Larins offer few supporting citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) The Larins supply little pertinent legal argument. As such their claim of judicial bias may be deemed waived: “‘Appellate 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; see also Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; People v. Stanley (1995) 10 Cal.4th 764, 793.)” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Even if their arguments have not been waived, the Larins cannot prevail.
A court must avoid even an appearance of unfairness pervading the record. The California Supreme Court stated in an early pronouncement: “The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears, it shocks the judicial instinct to allow the judgment to stand.” (Pratt v. Pratt (1903) 141 Cal. 247, 252.) More recently courts have agreed that “. . . judges ‘“should be exceedingly discreet in what they say and do . . . lest they seem to lean toward or lend their influence to one side of the other.” [Citation.]’ [Citation.] Their conduct must ‘“‘“accord with recognized principles of judicial decorum consistent with the presentation of a case in an atmosphere of fairness and impartiality.”’”’ [Citation.]” (Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1002; Espinoza v. Calva (2008) 169 Cal.App.4th 1393.)
The Larins object that the court did not follow Evidence Code section 500: “Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.” The Larins mistakenly assert that “in these proceedings there was no evidence whatsoever introduced or presented” by defendants to “prove” their demurrers. The Larins do not recognize that a ruling on demurrer involves the legal sufficiency of a complaint (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 859), not the burden of proof for a claim or a defense.
The Larins further assert, without reasoned argument, that the judge “defied the law” by depriving them of a jury trial and due process of law because he ruled against them and did not allow their case to proceed.
As to Fidelity, the Larins dispute the judge’s comment that “there’s no adverse claim of title with respect to Fidelity,” which the Larins characterize as a “false statement.” The Larins are patently wrong. Fidelity acted as the agent or escrow holder for the sale from Willams to Dueñas. In that capacity, Fidelity was charged with recording the grant deed and trust deeds involved in the sale. The allegations of the complaint do not demonstrate that Fidelity made any claim of title to the subject property.
Having reviewed the transcripts of the two hearings conducted on the demurrers and the motion to strike by Judge Fawke, we discern no support for the Larins’ contention that the court displayed a “deep-seated and unequivocal antagonism” towards plaintiffs.^[3] The court began the hearing on Fidelity’s demurrer by denying the Larins’ request for their son to act as an interpreter instead of a court-appointed interpreter. The court then denied the Larins’ request for a continuance and indicated it was ready to proceed based on the parties’ submissions. The court summarized the procedural history of the case and noted that Carlos could not represent his wife, Herlinda, who had not signed the opposition to the demurrer, meaning that she had not opposed the demurrer. The court explained that Evidence Code section 500 was not relevant on demurrer, which involves the complaint’s legal sufficiency. The court declined to consider the request for sanctions that had been signed only by Carlos. The court then summarized the allegations of the complaint and granted Fidelity’s request for judicial notice of 10 recorded documents and of the 2005 case of Carlos against Williams. The court concluded that Fidelity claimed no interest in title to the subject property. The court analyzed each of the causes of action against Fidelity and sustained Fidelity’s demurrer without leave to amend.
In the second hearing on the demurrer and motion to strike by Williams and Dueñas, the court again provided a procedural summary of the case and a summary of the SAC. The court also took judicial notice of court records. The court analyzed defendants’ anti-SLAPP motion in detail and concluded: “The plaintiffs’ opposition to this special motion to strike contains the same general premise as their opposition to the demurrer that the defendants have failed to set forth facts to present evidence to prove their claims. The plaintiffs’ argument in both the opposition to the special motion to strike and demurrer, in general, completely misapprehends the law regarding both. [¶] Further, the plaintiffs’ brief contains inappropriate invective against the defense attorney, Mr. Garcia, and utterly fails to address all the points raised in both the special motion to strike and the demurrer. [¶] It is the plaintiffs’ burden on this issue. Their opposition is woefully inadequate.” The court found defendants had satisfied their burden and the court granted the motion to strike the causes of action for abuse of process, false imprisonment, and defamation on the grounds they were privileged under Civil Code section 47. The court also granted defendants their attorney’s fees on the motion to strike. Regarding the special demurrer of defendants Williams and Dueñas based on the statute of limitations, the court found the remaining causes of action against defendants were time-barred.
The record of the hearings shows the court treating plaintiffs’ claims seriously and giving thorough consideration of the issues. Nothing the court did or said was unfair or indiscreet or lacked the judicial decorum consistent with an atmosphere of fairness and impartiality. (Haluck v. Ricoh Electronics, Inc., supra, 151 Cal.App.4th at p. 1002; Espinoza v. Calva, supra, 169 Cal.App.4th 1393.) The court’s simple inquiry about whether the Larins were representing themselves did not connote judicial bias. Instead, the Larins’ repeated insinuations that the judge allied himself with defendants’ attorneys because they were lawyers and fellow members of the bar disrespects the court and the judicial process. No evidence of judicial bias or misconduct is apparent on this record.
Furthermore, even reviewing the judgment on the merits, this court affirms the superior court. The allegations of the SAC fail to establish that Fidelity made any claim on the subject property adverse to the purported interest of the Larins. The SAC does not specifically allege why Fidelity owed any duty to the Larins, making Fidelity liable for negligence in recording the grant deed from Williams to Dueñas. The court correctly ruled that Fidelity’s demurrer was sustained without leave to amend.
The court also correctly ruled that the special demurrer of William and Dueñas was sustained without leave to amend because most or all of the SAC’s causes of action were time-barred. The SAC alleges that Carlos discovered Williams’s wrongdoing no later than July 24, 2004. Carlos filed the first case against Williams in 2005. The Larins filed the present case in March 2009, more than four years after the expiration of any applicable one-, two-, three-, or four-year statute of limitations. (Code Civ. Proc., §§ 337, 338, subd. (d), 339, and 340, subd. (c).) Additionally, the special motion to strike was properly granted on the three causes of action for abuse of process, false imprisonment, and defamation based on the absolute litigation privilege of Civil Code section 47. The award of anti-SLAPP attorney’s fees was authorized by Code of Civil Procedure section 425.16, subdivision (c).
IV
DISPOSITION
There was no error based on judicial bias. The superior court properly sustained defendants’ demurrers without leave to amend and granted the special motion to strike, including an award of attorney’s fees.
We affirm the judgment and order defendants to recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
s/Codrington
J.

We concur:


s/McKinster
Acting P.J.


s/Richli
J.

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