Zulli v. Litton Loan Servicing
Filed 6/3/13 Zulli v. Litton Loan Servicing CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
>
BRIAN ZULLI, Plaintiff and Appellant, v. LITTON LOAN SERVICING LP et al., Defendants and Respondents. | 2d Civil No. B242310 (Super. Ct. No. 56-2010-00383828-CU-OR-SIM) (Ventura County) |
Brian Zulli appeals the
order dismissing his complaint against respondents Litton Loan Servicing LP
(Litton), and Wells Fargo Bank NA (Wells Fargo),
leave to amend. Appellant contends he
sufficiently pled causes of action against respondents for
Prof. Code, § 17200), based on their involvement in the nonjudicial
foreclosure on his now-deceased mother's residence. We affirm.
FACTS AND
PROCEDURAL HISTORY
The relevant facts are
largely derived from our recent decision affirming the dismissal of appellant's
complaint against codefendant Mortgage Electronic Registration Systems, Inc.
(MERS), following the sustaining of a demurrer without leave to amend. (Zulli
v. Mortgage Electronic Registration Systems, Inc. (Feb. 5, 2013, B237041 [nonpub. opn.].) In February 2006, appellant's mother Sylvia
Zulli obtained a $1,250,000 loan from Quick Loan Funding, Inc. (Quick Loan) for
the purchase of a residence in Moorpark (the property). In exchange for the loan, Sylvia
of trust naming MERS as beneficiary. In
January 2009, all beneficial interest under the deed of trust was assigned to
Wells Fargo. Litton, acting as Wells
Fargo's attorney in fact, substituted the Wolf Law Firm as trustee under the
deed of trust.
Notices of default and
trustee's sale were recorded after Sylvia failed to make several payments on
the loan. Sylvia filed a complaint
against MERS, Quick Loan, Wells Fargo, Litton and others alleging, among other
things, that the January 2009 assignment of deed of trust and substitution of
trustee were invalid. Sylvia died in May
2010. On October 28, 2010, the trial court dismissed Sylvia's
complaint against MERS, Quick Loan, Wells Fargo and Litton after sustaining a
demurrer without leave to amend.
Appellant was subsequently granted leave to continue the action as
Sylvia's personal representative and successor in interest (Code Civ. Proc.,
§ 377.31). His appeal from the
judgment in favor of respondents was dismissed as untimely.
Appellant then filed the
instant action in his own capacity. MERS
was dismissed from the complaint after the court sustained its demurrer to the
first amended complaint, and we affirmed.
(Zulli v. Mortgage Electronic
Registration Systems, Inc., supra.)
In the meantime, the court sustained respondents' demurrer to the third
amended complaint without leave to amend and entered an order of dismissal in
their favor. Appellant timely appealed.
DISCUSSION
Appellant contends the
court erred in sustaining respondents' demurrer to the third amended complaint
without leave to amend. He claims he
sufficiently stated causes of action for fraud and a violation of Business and
Professions Code section 17200, by alleging that (1) respondents colluded
with MERS and others "to conceal the identity of the true lender;"
(2) the Litton employees who signed the January 2009 assignment and deed
of trust "impostered [sic]
themsel[ves]" as employees of MERS and Wells Fargo; (3) Sylvia was
"mislead [sic] into
signing" the loan documents and was never provided a letter of transfer;
(4) respondents failed to contact Sylvia as required under Civil Code
section 2923.5; (5) Litton lacked authority to foreclose on property; and
(6) there is no chain of title to Wells Fargo.
When the trial court
dismisses a case after sustaining a demurrer without leave to amend, we
ordinarily "review the complaint de novo to determine whether it contains
facts sufficient to state a cause of action under any legal theory" and,
if the complaint is lacking, "we then consider whether the court abused
its discretion in denying leave to amend the complaint." (In re
Estate of Dito (2011) 198 Cal.App.4th 791, 800.) Here, however, major defects in appellant's
preparation of the record and his briefing on appeal hinder our review. To prevail on appeal an appellant must, as a
threshold matter, present an adequate record for review. (Oliveira
v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) Lower court judgments are presumed
correct. Without a record of what
actually occurred before the trial court, an appellate court cannot say whether
the trial court erred. (
Appellants also have the
burden of establishing error through reasoned arguments, not conclusory
assertions. (Moulton Niguel Water Dist. v.
1215.) We need not consider points
unsupported by legal analysis or authority.
(Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784–785.) Nor
need we consider points supported by citation to general
without any application of those principles or authorities to the case at
hand. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691,
699.) An appellant must also show not
only how the trial court erred, but how the error was prejudicial. (Century
Sur. Co. v. Polisso (2006) 139 Cal.App.4th 922, 963; see also
627, 635–636 [requiring affirmative showing of prejudice from appellant to
reverse order sustaining demurrer].)
Appellant has failed to
meet any of these burdens. The clerk's
transcript he designated does not include any of the briefing on the demurrers. He has also failed to present us with a copy
of the reporter's transcript of the hearing on the demurrer. He merely included the minute order of the
court's ruling, which states the demurrer was sustained without leave to amend
"for the reasons stated at length, on the court reported record, after
hearing arguments . . . ."
name="_ftnref4" title="">[4] Moreover, appellant's arguments are
conclusory and virtually devoid of analysis, reasoned or otherwise. He has made no meaningful effort to show his
complaint actually stated any valid cause of action, nor has he made an
argument as to how he complied with the various requirements for specificity
the rules and trial court imposed on him.
Nor has he even suggested how he might cure the defects in his complaint
if given a chance to amend. (See
Cal.App.4th 434, 444 [failure to provide a proposed amendment or advance on
appeal any allegation that might cure the defects of an amended complaint
supports the trial court's order denying leave to amend].) In light of these deficiencies, appellant has
failed to demonstrate error and the judgment must be affirmed.
Even if the deficiencies
were corrected, it is apparent from the record that appellant's claims are
barred by the doctrines of res judicata, collateral estoppel, and law of the
case. Res judicata, or claim preclusion,
"'prevents relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them.' [Citations.]" (Alpha
Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty &
Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326.) "Res judicata bars 'not only the
reopening of the original controversy, but also subsequent litigation of all
issues which were or could have been raised in the original suit. [Citations.]'" (Torrey
Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 821.) Collateral estoppel, or issue preclusion,
precludes a party from relitigating issues already argued and decided in prior
proceedings. (Alpha Mechanical, supra, at pp. 1326-1327.) Under the law of the case doctrine, all
principles and rules of law necessary to an appellate court's decision are
binding in a subsequent appeal in the same case. (People
v. Barragan (2004) 32 Cal.4th 236, 246.)
All of appellant's
claims against respondents are based on the same set of operative facts as the
claims raised in Sylvia's prior action.
Respondents were dismissed from the prior action following the
sustaining of a demurrer without leave to amend, and the ruling was final when
the respondents' demurrer was sustained in the instant action. Because the claims in the instant action are
entirely derivative of the claims that either were or could have been raised in
the prior action and are based on the same facts, they are barred by
The claims are also
precluded by the law of the case doctrine.
In affirming the order sustaining MERS's demurrer to the first amended
complaint, we recognized that appellant's failure to allege tender of the
amounts due and owing under the loan upon which Sylvia defaulted was fatal to
his claims, all of which ultimately sought to set aside an allegedly wrongful
foreclosure. (Shuster v. BAC Homes Loans Servicing, LP (2012) 211 Cal.App.4th
505, 512.) We also cited recent
authority establishing that allegations of a fraudulent or invalid assignment
of deed of trust or substitution of trustee are insufficient to overcome the
sustaining of a demurrer absent a showing of prejudice. (Fontenot
v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 [assignment];
205 Cal.App.4th 1495, 1508 [substitution].)
Appellant has once again simply ignored this authority. Because there were no allegations that
respondents' purportedly unlawful actions prevented Sylvia from making payments
on the loan, judgment in favor of MERS was deemed proper. This ruling also effectively disposes of
appellant's claims against respondents.
The judgment is
affirmed. Respondents shall recover
their costs on appeal.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
Barbara
Lane, Judge
Superior
Court County of Ventura
______________________________
Brian Zulli, in pro.
per., for Appellant.
Houser & Allison,
Eric D. Houser, Steve W. Pornbida for Respondents.
for Citigroup Mortgage Loan Trust, Inc., Asset-Backed Pass-Through
Certificates, Series 2006-SHLI.
a default judgment in his favor because "the wrong defendants" were
in court. Appellant also challenged
respondents' assertion that he is appealing from an order of dismissal in their
favor. According to appellant,
"there is no such order."
These assertions are belied by the record. The notice of appeal plainly indicates that
the appeal is from the trial court's May 22, 2012, order "dismissing all
defendants." That order clearly
identifies respondents as the parties who demurred to the complaint, and
further states that the demurrer was sustained without leave to amend and that
respondents "are dismissed from this action with prejudice." The notice of appeal also identifies
respondents as the parties, and appellant's record designation includes the
hearings on respondents' demurrer. The
record designation also identifies respondents' trial attorneys (who are also
acting as appellate counsel) as counsel of record. Moreover, appellant's briefs identify
respondents as the parties to the appeal and requests that the order of
dismissal in their favor be reversed.
Because there is no merit to appellant's claims that "the wrong
defendants" appeared or that he is not appealing from the order dismissing
respondents from the action, his request for a default judgment is denied.
