Sillman v. Walker

















Filed 1/10/13
Sillman v. Walker CA3













NOT TO BE PUBLISHED







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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

THIRD
APPELLATE DISTRICT

(Butte)

----






>

RICK SILLMAN et al., Plaintiffs and Appellants, v. JOHN WALKER et al., Defendants and Respondents.

C069237 (Super. Ct. No. 150224)

After
plaintiffs Rick Sillman and Kim Laird filed their fourth amended complaint for
breach of contract and fraud, defendants John Walker and Lisa Talcott moved for
judgment on the pleadings. Plaintiffs
did not oppose the motion, and the trial court granted it.

In
this pro se judgment roll appeal from the ensuing judgment, plaintiffs contend
the appeal should be stayed until the trial court can determine whether
defendants violated the automatic stay triggered by Sillman’s bankruptcy
petition, assert that the trial court should have granted a continuance of the
hearing on defendants’ motion, and argue the merits of their claims against
defendants. Because plaintiffs have
failed to provide an adequate record to assess their first two contentions, and
their complaint fails to state a cause of action against defendants, we affirm
the judgment.

BACKGROUND

In accordance with the legal
principles governing our review of the trial court’s grant of a motion for
judgment on the pleadings, the following factual recitation is based on the
allegations of the plaintiffs’ fourth amended complaint and such matters as may
be subject to judicial notice. (See Gerawan
Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515-516; Stone Street Capital, LLC v. California State Lottery Com. (2008)
165 Cal.App.4th 109, 116.)

The Transaction

In
February 2005, Sillman purchased from Walker a mobile home and approximately
2.1 acres of land on Powtan Trail in Oroville (the Powtan Trail property).href="#_ftn1" name="_ftnref1" title="">[1] In connection with that
transaction, Sillman and Walker signed a written “Manufactured Home Purchase
Agreement” and a “Buyer’s Inspection Advisory,” in which Sillman acknowledged
Walker had a duty to make the property available for inspection and to disclose
known material facts affecting the value, but no duty to inspect and no
“obligation to repair, correct or otherwise cure known defects” or defects
discovered by Sillman.href="#_ftn2"
name="_ftnref2" title="">[2] The purchase was financed in
part by Walker: Sillman and Walker
signed a “Seller Financing Addendum and Disclosure” in or about May 2005,
pursuant to which Walker agreed to extend credit to Sillman for part of the
purchase price, in exchange for monthly payments and a balloon payment due in
five years. Sillman executed a
promissory note and deed of trust in Walker’s favor.href="#_ftn3" name="_ftnref3" title="">[3]

After
the purchase, Sillman and his daughter, plaintiff Kim Laird, resided on the
Powtan Trail property. As of the filing
of the operative complaint, Sillman still lived there. Defendant Talcott owned the adjacent parcels,
where she and Walker lived; they subsequently moved to Montana.

Sometime
in late 2008 or early 2009, Sillman sought bankruptcy protection. During the pendency of the Sillman’s
bankruptcy, defendants -- who plaintiffs contend had not kept accurate records
of plaintiffs’ payments on the property -- sought relief from the automatic
stay, and Sillman’s bankruptcy petition was inadvertently dismissed. Sillman’s bankruptcy petition was reinstated,
but not before foreclosure proceedings were initiated and Walker acquired the
property at the resulting trustee’s sale in April 2009.

The Pleadings

Plaintiffs’
original complaint (filed in May 2010) alleged causes of action for breach of
contract and fraud arising out of the 2005 real estate transaction. The original complaint is not in the record
on appeal; nor are the first, second or third amended complaints. Neither are defendants’ demurrers to these
complaints, which were all sustained with leave to amend.

The
fourth amended (operative) complaint against defendants, filed June 13, 2011, purports to allege causes of action for breach of contract, fraud
and deceit, and “intentional tort.” It
seeks to recover money spent by plaintiffs to repair “undisclosed defects” and
“structural damages,” as well as punitive damages.

The
breach of contract claim states it is based on the 2005 written real estate
purchase agreement executed by Walker and Sillman and “oral agreements” by Walker to, within
30 days of the close of escrow, remove all trash on the property, and show
Sillman the location of county survey markers.
Plaintiffs also allege Walker breached his oral promises to Sillman to
reduce the monthly payments or purchase price “when the condition of the home
or property was not as presented”; to “[w]ork with plaintiffs if there were any
problems about the condition of the subject property, above what was disclosed”;
to “[w]ork with plaintiffs if they ran into any financial difficulties” and to
“[r]estore the section of land removed from” the property purchased and added
to the neighboring parcel owned by Talcott.
According to plaintiffs, “the contract was breached by Walker from the
beginning.”

The
fraud claim is based on allegations Walker intentionally concealed with paint
and new flooring several major defects of the home, including water damage to
walls, flooring, broken ceiling beams, and mold damage, all caused by a leaky
roof, and that both defendants knew and concealed that a section of Sillman’s
property had been removed for the benefit of Talbott’s neighboring
parcels. Notwithstanding that they lived
on the property after its purchase in early 2005, plaintiffs allege they failed
“to closely look at the basic components of the house and property” until 2007,
when they discovered the damage.

Plaintiffs’
“intentional tort” cause of action
alleges plaintiffs lost hundreds of trees on the property to undisclosed
infestation and had to spend time and money making repairs to “undisclosed
defects” on the property. Plaintiffs
allege they are entitled to recover punitive damages because defendants
intended plaintiffs to rely upon defendants’ knowingly false
representations.

Simultaneously
with the fourth amended complaint, plaintiffs filed a separate “complaint”
seeking damages and preliminary and permanent orders restraining defendants
from evicting plaintiffs from their property on Powtan Trail, or selling or
giving away plaintiffs’ property or the neighboring parcels; making
topographical changes to the landscape; building any new buildings on the
parcels adjacent to plaintiffs’ or blocking Powtan Trail with an “undersized
gate.”

Plaintiffs
also filed a “complaint to set aside trustee sale,” that they describe as an
“ancillary attachment for declaratory relief,” in which they asserted that the
trustee’s deed by which Walker re-acquired the Powtan property in April 2009
was obtained by fraud.

Defendants’ Motion for Judgment On
the Pleadings

Defendants
answered the complaint and moved for judgment on the pleadings. Neither defendants’ answer nor their motion
appear in the record on appeal.

At
the unreported hearing on defendants’ motion, plaintiffs appeared and moved for
a continuance; the minutes of that hearing indicate plaintiffs’ motion for a
continuance was denied, and defendants’ motion for judgment on the pleadings
was granted. The order granting
defendants’ motion states that “no opposition to the motion having been filed
by plaintiffs, defendants are entitled to judgment in this action against
plaintiffs.”

DISCUSSION

I

Standards Of Review

On
appeal, we must presume the trial court’s judgment is correct. (See Denham
v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we adopt all intendments and inferences
to affirm the judgment or order unless the record expressly contradicts
them. (See Brewer v. Simpson (1960)
53 Cal.2d 567, 583.)

It
is the burden of the party challenging a judgment on appeal to provide an
adequate record to assess error. (>Ketchum v. Moses (2001) 24 Cal.4th 1122,
1140-1141.) Thus, an appellant must not
present just an analysis of the facts and legal authority on each point made;
he or she must support arguments with appropriate citations to the material
facts in the record. If an appellant
fails to do so, the argument is forfeited.
(Maria P. v. Riles (1987) 43
Cal.3d 1281, 1295-1296; City of Lincoln
v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.)

Plaintiffs
are not exempt from the rules governing appeals because they are appearing in
propria persona. A party representing
himself or herself is to be treated like any other party and is entitled to the
same, but no greater, consideration than other litigants and attorneys. (Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d
117, 121 [self-represented parties are held to “the same ‘restrictive
procedural rules as an attorney’ ”].)

Because
plaintiffs have elected to proceed on a clerk’s transcript -- and no transcript
or settled statement of the hearing on defendants’ motion for judgment on the
pleadings -- we must treat this as an appeal “on the judgment roll,” to which
the following rules apply: “ ‘Error must
be affirmatively shown by the record and will not be presumed on appeal
[citation]; the validity of the judgment on its face may be determined by
looking only to the matters constituting part of the judgment roll [citation];
where no error appears on the face of a judgment roll record, all intendments
and presumptions must be in support of the judgment [citation] [citation]; the
sufficiency of the evidence to support the findings is not open to
consideration by a reviewing court [citation]; and any condition of facts
consistent with the validity of the judgment will be presumed to have existed
rather than one which would defeat it [citation].’ ” (Ford
v. State of California (1981) 116 Cal.App.3d 507, 514, overruled on other
grounds in Duran v. Duran (1983) 150
Cal.App.3d 176, 177-179; Allen v. Toten
(1985) 172 Cal.App.3d 1079, 1082-1083; Cal. Rules of Court, rule 8.163.)

In
sum, our review of a judgment roll appeal is limited to determining whether any
error “appears on the face of the record.”
(National Secretarial Service,
Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.)

II

>Plaintiffs Have Shown No
Basis for Staying the Appeal

Plaintiffs
begin their appellate brief by asserting that their appeal should be stayed
because the case poses the “federal issue” of whether defendants violated the
automatic stay associated with Sillman’s bankruptcy petition in order to
“affect an illegal foreclosure and related issues requiring determination by a
federal magistrate” and “it is extremely likely the federal court will have to
make such a determination.”

The
“automatic stay” is an injunction issuing from the authority of the bankruptcy
court, whose purpose “ ‘ “is to give the debtor a breathing spell from his
creditors, to

stop all collection efforts, harassment and foreclosure actions” ’ ” and to
prevent

“ ‘ “diminution of the debtor’s estate.” ’ ”
(Cavanagh v. California
Unemployment Ins. Appeals Bd. (2004) 118 Cal.App.4th 83, 90;> Gruntz v. County of Los Angeles (>In re Gruntz) (9th Cir. 2000) 202 F.3d
1074, 1082 (Gruntz).) An automatic stay usually precludes “any act
to collect, assess, or recover a claim against the debtor that arose before the
commencement of the case . . . .” (11 U.S.C. § 362(a)(6); see >Cavanagh v. California Unemployment Ins.
Appeals Bd., supra, 118 Cal.App.4th at p. 90.) Actions taken in violation of the automatic
stay are void, and federal courts have the final authority to determine the
scope and applicability of the automatic stay.
(Gruntz, supra, 202 F.3d at
pp. 1082-1083.)

Here,
however, plaintiffs have shown no basis for us to conclude that this matter
should be stayed while the federal bankruptcy court determines whether
defendants’ violated the automatic stay that arose by virtue of Sillman’s
bankruptcy petition. The record on
appeal is bereft of any actual evidence that Sillman’s bankruptcy was
reinstated after it was dismissed, that it is currently pending,href="#_ftn4" name="_ftnref4" title="">[4] or that the federal court in which the alleged bankruptcy is
pending has been asked to determine whether defendants’ actions violated the
automatic stay. Because the record does
not support plaintiffs’ request, we must deny it.

III

Plaintiffs have Failed to Show Reversible Error

A. Plaintiffs
Have Not Shown the Trial Court Erred in Denying Their Request for a Continuance

Plaintiffs
argue the trial court “erred by ruling on a motion that effectively would halt
an entire cause of action when [Sillman] was unable to oppose [defendants’
motion] in the time allowed due to his verified mental state” and the “press of
casework” associated with preparing discovery requests. We infer from this assertion that plaintiffs
contend the trial court erred in denying their request for a continuance of the
hearing on defendants’ motion for judgment on the pleadings.

First,
plaintiffs make no citation to the record to support this contention. Accordingly, we must deem it forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(C);> Maria P. v. Riles, supra, 43 Cal.3d at
pp. 1295-1296; City of Lincoln v.
Barringer, supra, 102 Cal.App.4th at pp. 1239-1240.)

Even
were it not forfeited, this contention lacks merit. A party does not have a right to a
continuance as a matter of law. (>Mahoney v. Southland Mental Health Associates Medical Group (1990) 223
Cal.App.3d 167, 170.) Continuances are
disfavored, and the trial court may grant a continuance “only on an affirmative
showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c)
[governing trial continuances].)
“Reviewing courts must uphold a trial court’s choice not to grant a
continuance unless the court has abused its discretion in so doing.” (In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) The party whose request for a continuance was
denied bears the burden of showing the trial court abused its discretion. (Mahoney
v. Southland Mental Health Associates Medical Group, supra, at p. 170;
e.g., Lerma v. County of Orange
(2004) 120 Cal.App.4th 709, 713, 716 [good cause for continuance of summary
judgment motion where the plaintiff’s attorney averred that he had been
hospitalized for emergency surgery and for that reason had not seen moving
papers until 11 days after they were filed and served].)

Absent
a reporter’s transcript of the hearing on plaintiffs’ motion for a continuance,
and lacking the written motion (if there was one) indicating the basis for
plaintiffs’ request, we cannot entertain plaintiffs’ suggestion the trial court
abused its discretion in denying the request.
(See National Secretarial Service,
Inc. v. Froehlich, supra, 210 Cal.App.3d 510, 521; Cal. Rules of Court,
rule 8.163.) Rather, we presume official
duties have been regularly performed (Evid. Code, § 664), and this presumption
applies to the actions of trial judges.
(People v. Duran (2002) 97
Cal.App.4th 1448, 1462, fn. 5; Olivia v.
Suglio (1956) 139 Cal.App.2d 7, 9 [“If the invalidity does not appear on
the face of the record, it will be presumed that what ought to have been done
was not only done but rightly done”].)
Under these circumstances, we find no basis to disturb the trial court’s
exercise of its discretion to rule on defendants’ motion rather than grant a
continuance.

B. Plaintiffs
Do Not Show the Court Erred in Granting Judgment on the Pleadings

Code
of Civil Procedure section 438 gives the trial court authority to grant a
defendant’s motion for judgment on the pleadings if the court determines it has
no jurisdiction over the subject matter of the complaint, or the complaint does
not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 438.)

A
motion for judgment on the pleadings is equivalent to a general demurrer, and
the trial court treats all properly pleaded material facts in the complaint as
true. (Kapsimallis v. Allstate Ins. Co. (2002) 104 Cal.App.4th 667,
672.) On appeal, we review the matter de
novo, and render an independent judgment on whether a cause of action has been
stated. (Ibid.; Lance Camper
Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194,
198; Stevenson Real Estate Services, Inc.
v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215,
1220.)

But
because judgments and orders are presumed to be correct, persons challenging
them must affirmatively show reversible error.
Thus, for example, although we conduct a de novo review of the order
that granted defendants’ motion for judgment on the pleadings, plaintiffs
nevertheless have the burden of demonstrating to this court that the trial
court made a reversible error when it granted such motion.

Here,
plaintiffs have not met that burden.
They mistakenly describe defendants’ motion as one for summary judgment,
to which different standards and tests apply.
They fail to support the argument portion of their appellate brief with
any citation to facts in the record, as required. (Cal. Rules of Court, rule 8.204(a)(1)(C); >Maria P. v. Riles, supra, 43 Cal.3d at
pp. 1295-1296; City of Lincoln v.
Barringer, supra, 102 Cal.App.4th at pp. 1239-1240.) They make no assertion that the trial court
erred in granting defendants’ motion for judgment on the pleadings, a motion
that they made no effort to oppose on the merits. Indeed, plaintiffs have provided neither
defendants’ moving papers, nor a reporter’s transcript or settled statement of
the hearing on defendants’ motion, and the record is completely silent on the
basis for the trial court’s ruling. In
their appellate brief, plaintiffs simply re-assert that defendants knowingly
misrepresented the condition of the property, misrepresented its boundaries,
and breached fiduciary obligations to plaintiffs.

Notably,
plaintiffs do not explain why the their breach of contract claims are not
barred by the applicable statutes of limitations. Plaintiffs allege defendants breached the
February 2005 written agreement “from the beginning,” and that they breached
Walker’s oral promises to perform certain acts within 30 days of closing
escrow. The statute of limitations for
claims based on the agreements made in connection with the 2005 transaction is
four years for actions on the written contracts (Code Civ. Proc., § 337,
requiring them to have been filed in or about Feb. 2009) and two years based on
Walker’s alleged oral promises made at or about the time of the purchase (Code
Civ. Proc., § 339, requiring the claims to have been filed in or about Feb.
2007). The original complaint, filed in
May 2010, would certainly render too late plaintiffs’ breach of contract claims
based on oral or written promises made about the time of the February 2005
purchase and breached soon thereafter.
When a complaint shows the action would be barred by the statute of
limitations, a judgment based on the pleadings is proper. (See Marshall
v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403 [applying
rule to demurrer]; cf. Bettencourt v.
Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111 [like a general
demurrer, motion for judgment on the pleadings tests the sufficiency of the
complaint].)

Finally,
plaintiffs’ alleged fraud claims fail to state a cause of action. “ ‘The elements of fraud, which give rise to
the tort action for deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c)
intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and

(e) resulting damage.’
[Citations.]” (>Lazar v. Superior Court (1996) 12
Cal.4th 631, 638.) Each element must be
alleged with particularity. (>Conrad v. Bank of America (1996) 45
Cal.App.4th 133, 156.) It is not, for
example, sufficient for a party merely to allege he did not discover the
alleged fraud before a certain time: he
must allege “when the fraud was discovered, the circumstances of the discovery,
what the discovery was, and why it was not discovered sooner.” (Tognazzini
v. Tognazzini (1954) 125 Cal.App.2d 679, 686-687.)

Here,
plaintiffs make two categories of “fraud” allegations: (1) that Walker concealed defects in the
property, which plaintiffs failed to discover until sometime in 2007, and (2)
that the trustee’s deed by which Walker re-acquired the Powtan property in
April 2009 was obtained by fraud. Both
categories of fraud allegations are articulated in the most conclusory fashion,
and neither alleges that plaintiffs justifiably relied on misrepresentations by
defendants. To allege actual reliance
with the requisite specificity, “ ‘[t]he plaintiff must plead that he believed
the representations to be true . . . and that in reliance thereon (or
induced thereby) he entered into the transaction. [Citation.]’
[Citation.]” (>Beckwith v. Dahl (2012) 205 Cal.App.4th
1039, 1062-1063.) Plaintiffs’
allegations do not satisfy the minimum requirements for stating a fraud cause
of action.

Recalling
that, on a judgment roll appeal we indulge all intendments and presumptions in
support of the judgment and presume to exist “ ‘any condition of facts
consistent with the validity of the judgment’ ” (Ford v. State of California, supra, 116 Cal.App.3d at p. 514), we
note plaintiffs were allowed multiple opportunities to state a viable cause of
action against defendants. On this
record, we presume in favor of the judgment that the trial court sustained
defendants’ demurrers to prior complaints on the grounds plaintiffs failed to
state a cause of action based on the applicable statute of limitations or
otherwise, and further presume that the trial court ultimately granted judgment
on the pleadings because plaintiffs were unable after several attempts to amend
their complaint to state a cause of action against defendants. For the trial court to have done so would not
have been error.

Accordingly,
we conclude judgment was properly granted.


DISPOSITION

The
judgment is affirmed. Defendants are
awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)



NICHOLSON , Acting P. J.



We
concur:



MURRAY , J.



HOCH , J.