Lopez v. Wachovia Bank Inc.
Filed 4/10/13 Lopez v. Wachovia Bank Inc. CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
LINA E. LOPEZ et al.,
Plaintiffs
and Appellants,
v.
WACHOVIA
BANK INC., et al.,
Defendants and Respondents.
A133320
(San Mateo County
Super. Ct. No. CIV496605)
Lina
and Alberto Lopez appeal from trial court orders dismissing their first amended
complaint for failure to state a claim and entering a
appellate record they have provided make it difficult to discern, it appears
their claims concern alleged fraud regarding the mortgage agreement for their
home. They contend the magistrate lacked
authority to dismiss their case without having ordered any discovery and violated
their right to jury trial by doing
so. We affirm.
STATEMENT OF THE
CASE
As
will be discussed, appellants, acting in propria persona, have failed to
provide this court with a record containing even the most basic required
elements, such as the orders from which their appeal is taken and the superior
court’s register of actions. (Cal. Rules
of Court, rules 8.122(b)(1)(C) & (E), 8.124(b)(1)(A).)
determine from the superior court’s register of actions—for which we have had
to consult the court’s website
name="_ftnref3" title="">[3]
(see Drummond v. Desmarais (2009)
176 Cal.App.4th 439, 447, fn. 3)—and the few documents filed in this
court.
Appellants filed
their complaint on July 2, 2010, to which respondents responded with a demurrer
filed on October 22, 2010.
name="_ftnref4" title="">[4] The demurrer was sustained with leave to
amend on February 3, 2011. The trial
court’s minute order stated that appellants had “not alleged sufficient facts
with regard to any of the alleged causes of action†and “encouraged†appellants
“to review the California Rules of Court and Code of Civil Procedure regarding
sufficiency and format of pleadings.â€
Appellants filed
their first amended complaint for breach
of contract and fraudulent deceit on February 23, 2011. Appellants asserted in the complaint that
respondents lacked standing as “ ‘holders in due course’ and/or ‘Real
Parties in Interest’ to the mortgage obligation which they are attempting to
collect by foreclosing on Plaintiffs’ property at 28 Lawrence Avenue, Antioch,
California†due to their “securitization†of the promissory note
that respondents fraudulently misrepresented the nature of the debt they were
attempting to collect, in that respondents held a “depreciated obligation†and
had loaned appellants “NOTHING with any intrinsic value†but only “computerized
credit entries in a bank ledgerâ€; and that respondents violated duties of
disclosure under Civil Code section 2937 and the Truth in Lending Act (15
U.S.C. § 1601 et seq.) regarding credit terms and transfer of debt
servicing.
Respondents filed
a demurrer to the first amended complaint on March 16, 2011, and on June 9, the
demurrer was sustained without leave to amend.
The court’s minute order stated:
“From what can be ascertained as alleged in the first amended complaint
the purported claims asserted by plaintiffs are preempted by the Home Owners
Loan Act (‘HOLA’) as set forth in 12 C.F.R. section 560.2(b).†The court’s judgment was filed on August 1,
2011.
Appellants filed
their notice of appeal on September
28, 2011. On October 18, appellants
filed a notice designating the record on appeal indicating their intention to
use a settled statement, accompanied by “Addenda†stating that they could not
afford any of the alternatives for providing a record on appeal and were
“opting†to “[p]rovide, upon request, copies of all of their various pleadings
in the instant case, with Respondents having the opportunity to do likewise.†Appellants filed their civil case information
statement the next day, with this Court, without attaching the required copy of
the order from which they were appealing.
They were informed by the superior court that the “Addenda†would not
suffice for the appellate record and directed to file a motion to use a settled
statement; their subsequent motion to use a settled statement was denied,
and they filed a new designation of record electing to proceed with an
appendix.
On February 27,
2012, appellants filed their opening brief and appellants’ appendix. The appendix contains two documents: an unendorsed copy of the first amended
complaint and a document entitled “Notice of Protest,†protesting respondents’
refusal to honor appellants’ counteroffer to respondents’ demand for payment of
the mortgage obligation. Appellants also
filed a “Supplementary Brief on Admission of New States,†which appears to
challenge the legal existence of the State of California and, therefore, the
jurisdiction of its courts. This brief
was filed in violation of rule 8.200(a), which states that aside from
appellant’s opening brief, respondent’s brief and appellant’s reply brief,
“[n]o other brief may be filed except with the permission of the presiding
justice, unless it qualifies under (b) [supplemental briefs after remand or
transfer from Supreme Court] or (c)(6) [answer to amicus curiae briefs filed
with permission of presiding justice].â€
Respondents filed
their response brief on May 1, 2012. Appellants moved to strike
the brief as untimely and “totally unresponsive to any of the issues raised on
appeal.†The motion, also labeled “Lopez
v. Wachovia: Reply Brief for Appellants,†was received but not filed because it
did not include a proof of service.
DISCUSSION
Appellants are
pursuing this action in propria persona, and their opening brief expresses
their frustration with the hurdles they are required to overcome in doing
so. The challenges of appellants’
position, however, do not permit us to ignore rules of procedure. (County
of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444.) A party who acts as his or her own attorney
“ ‘is to be treated like any other party and is entitled to the same, but
no greater consideration than other litigants and attorneys. [Citation.]’ †(Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247, quoting Barton v. New United Motor Manufacturing, Inc. (1996) 43
Cal.App.4th 1200, 1210.) “ ‘[T]he
in propria persona litigant is held to the same restrictive rules of
procedure as an attorney [citation].’ â€
(County of Orange v. Smith, at
p. 1444, quoting Nelson v. Gaunt
(1981) 125 Cal.App.3d 623, 638-639.)
“ ‘ “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.†[Citation.]’
(Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; accord, Walling
v. Kimball (1941) 17 Cal. 2d 364, 373; 9 Witkin, Cal. Procedure (4th ed.
1997) Appeal, § 349, p. 394.)
‘A necessary corollary to this rule is that if the record is
inadequate for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed.’ (
Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9; accord,
618, 620, fn. 1.)†(Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416.) “Failure to
provide an adequate record on an issue requires that the issue be resolved
against plaintiff.†(
Center (2000) 78 Cal.App.4th 498, 502.)
As
earlier stated, the record appellants have provided to this court lacks even
the basic elements required for the record on appeal. An appellant’s appendix is required to
contain “[a]ll items required by rule 8.122(b)(1), showing the dates required by
rule 8.122(b)(2).†(Rule
8.124(b)(1)(A).) As relevant here, rule
8.122(b)(1) provides that the clerk’s transcript contain the notice of appeal,
any judgment and/or order appealed from and any notice of its entry, and the
register of actions; rule 8.122(b)(2) requires that each document “show the
date necessary to determine the timeliness of the appeal.†The appendix is also required to contain
“[a]ny item listed in rule 8.122(b)(3) that is necessary for proper
consideration of the issues, including, for an appellant’s appendix, any item
that the appellant should reasonably assume the respondent will rely on.†(Rule 8.124(b)(1)(B).)
Appellants’
appendix contains none of the items
required by rule 8.122(b)(1), and the only documents it does contain, the first
amended complaint and the notice of protest, are not file-stamped. We are aware of the trial court order
appellants are appealing only from our independent consultation of the register
of actions on the trial court’s website, and we have not been provided with
respondents’ demurrer and supporting arguments, or appellants’ opposition to
the demurrer. The record thus provides
virtually no basis for review of the trial court’s decision.
Appellants’
opening brief also fails to comply with the rules of court. The brief contains neither a table of
contents (rule 8.204(a)(1)(A)) nor separate headings for the points stated
(rule 8.204(a)(1)(B)). The brief
contains no “summary of the significant facts.â€
(Rule 8.204(a)(2)(C).) Appellants
assert that they were fraudulently induced to enter a mortgage agreement that
was defective on “several grounds†without ever specifying those grounds or
describing the circumstances that led them to file suit. Their brief contains only two citations to
the record, which merely point to the existence of the first amended complaint
and notice of protest—documents which, as we have said, are
included in appellants’ appendix without file stamps. The few references in the brief to underlying
facts are unsupported by any reference to the record.
“A violation of the rules of court may
result in the striking of the offending document, the waiver of the arguments
made therein, the imposition of fines and/or the dismissal of the appeal. (Bernard
v. Hartford Fire Ins. Co. (1991) 226 Cal. App.3d 1203, 1205;
776, 778-780; Graybeal v. Press-Telegram
Pub. Co. (1936) 14 Cal.App.2d 252, 253-254.) In addition, it is counsel’s duty to point
out portions of the record that support the position taken on appeal. The appellate court is not required to search
the record on its own seeking error.
Again, any point raised that lacks citation may, in this court’s
discretion, be deemed waived. (
Cal.App.4th 1108, 1115.)†(Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
In
their statement of the case, appellants assert that the magistrate ignored
their notarized good faith attempt to discharge their mortgage obligation,
citing the notice of protest included in their appendix, which bears neither a
file stamp nor a notary’s seal. They
claim—without further argument or explanation of the factual circumstances—that
this document should have entitled them to “at least the discharge of the
obligation and subsequent transfer of title of the property.†Appellants assert that the magistrate
“blatantly ignored these public, notarized records . . . with a demeaning and
condescending order ‘permitting’ the filing of an amended complaint, with a
strong admonition to engage an attorney, the better to make the process ‘look
good’ on the record for purposes of appeal . . . ,†but they provide no
reporter’s transcript or other documentation to support their characterization
of the court’s order and remarks.
name="_ftnref8" title="">[8] They complain of being unable to figure out
what authority the magistrate relied upon to dismiss the case without ordering
discovery, but fail to include in the record the order or any reporter’s
transcript of the proceedings leading to it.
Appellants
argue that the magistrate erred in dismissing the complaint when respondents
appeared in court only through counsel, “who had no personal knowledge†of the
facts and whose pleadings should have been “dismissed as hearsayâ€; and in
denying appellants a jury trial by failing to allow discovery, which “would almost
certainly have disclosed the unlawfulness of Respondent(s) acts and given rise,
if need be, to factual issues cognizable to a jury.†Appellants argue that they were entitled to
summary judgment in their favor for “at least want of consideration to support
a common law contract and/or lack of standing of Respondent(s) to appear in a
common law court,†and that “had Appellants been defendants in the trial
‘court’, the available authorities squarely support the proposition that the
trial ‘court’ would NOT have had subject matter jurisdiction[.]†Appellants do not explicate the basis of
their claim that respondents lack standing, but from the cases they rely
upon—without proper citation—it appears the claim is based on respondents’
alleged lack of legal title to the real property. (U.S. Bank National
Association v. Ibanez (Mass. 2011) 941 N.E.2d
40 [banks’ requests for declaration of clear title properly denied where
securitization documents did not establish banks were holders of the mortgages
before foreclosure sale at which they purchased properties];
N.E.2d 884 [plaintiff did not hold record title, and therefore lacked standing
in title action, because bank from which he purchased property was not assignee
of mortgage at time of foreclosure sale where it purportedly acquired title];
2011 Ala.Civ.App. LEXIS 361 [BAC lacked standing to bring ejectment action
against mortgagor because original mortgagee had not yet assigned mortgage to
BAC when BAC initiated foreclosure proceedings].) Appellants do not explain how the cases they rely upon relate
to the present case.
Beyond
these unelaborated arguments, appellants appear to challenge the
constitutionality of rules that permit a trial court to dismiss their complaint
with prejudice without affording them a jury trial. Appellants cite no authority for the
proposition that they have a constitutional right to discovery and a jury trial
regardless of the content of their complaint.
Disposition of a civil case without a jury trial, under summary judgment
procedures, has been upheld against constitutional challenges. In that context, Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 70,
observed: “Older decisions frequently
referred to summary judgment as a ‘drastic remedy’ and emphasized the right to
jury trial on constitutional grounds, noting that both the federal and state
Constitutions establish trial by jury as a basic right. (U.S. Const., 7th Amend.; Cal. Const. art. I,
§ 7.) Nevertheless, California and
federal courts long ago agreed that nothing in the summary judgment procedure
is inherently unconstitutional. (Bank
of America, etc., v. Oil Well S. Co. (1936) 12 Cal.App.2d 265, 270; Fidelity
& Deposit Co. v. United States (1902) 187 U.S. 315.)†We are aware of no reason to view the matter
differently in the context of a successful demurrer.
“ ‘A
demurrer tests the legal sufficiency of factual allegations in a
complaint.’ (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th
39, 42.) A general demurrer challenges
the legal sufficiency of the complaint on the ground it fails to state facts
sufficient to constitute a cause of action.
(See Code Civ. Proc., § 430.10, subd. (e).)
“Whether a complaint states
facts sufficient to constitute a cause of action is a question of law. (Hernandez
v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) We therefore review de novo the sustaining of
a general demurrer. (
Cal.4th 1112, 1126.)
“When
a general demurrer is sustained without leave to amend, ‘we decide whether
there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court
has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.’ (
318.)†(Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443,
1452.)
Appellants
offer no basis for us to conclude the trial court abused its discretion
here. Indeed, appellants never refer to
the actual ruling on the demurrer or reasons.
In the absence of any description of the facts underlying this
controversy, a record permitting us to review the trial court’s actions, or
argument addressing the relevant questions, we have no choice but to affirm the
trial court’s decision.
name="_ftnref9" title="">[9]
The
judgment is affirmed.
_________________________
Kline,
P.J.
We concur:
_________________________
Lambden, J.
_________________________
Richman, J.
Appellants pursued this case in the trial court, and initially in this court,
in their own names and personal capacities.
On April 9, 2012, appellants filed a notice substitution of party,
purporting to substitute “Lina E. Lopez and Alberto Lopez, private Trusts, ex
rel Executors Lina E. Lopez and Alberto Lopez in propria persons sui juris, in
their capacity as lawful de jure State Citizens.†Attached to the notice of substitution of
party is a notarized document entitled “Acknowledgment of Trusts and
Appointment of Executors†stating that appellants each “belatedly, but in the
absence of full knowledge and/or any reasonable opportunity to have acquired
such knowledge hereby acknowledge the existence of the private Trusts known as
Lina E. Lopez and Alberto Lopez respectively and that we are the beneficiaries
of such Trusts, and that Lina El Lopez is the Trustor of the private Trust
known as Lina E. Lopez and Alberto Lopez is the Trustor of the private Trust
known as Alberto Lopez.
[¶] Accordingly, Lina E. Lopez hereby appoints herself as Executor
of the private Trust known as Lina E. Lopez, and Alberto Lopez appoints himself
as the Executor of the private Trust known as Alberto Lopez.â€
Appellants
do not explain the nature of these private trusts, how they relate to the
present action, or what consequence the substitution of parties would have on
the case. Accordingly, we give the
notice of substitution of party no effect.
name="_ftn2" title="">[2] All references to “rule(s)†is to the
California Rules of Court.
