Hewlett v. Chase Bank
Filed 1/22/13
Hewlett v. Chase Bank CA1/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION ONE
PATRICIA HEWLETT,
Plaintiff and
Appellant,
v.
CHASE BANK USA N.A. et al.,
Defendants and
Respondents.
A134224
(San Mateo County
Super. Ct. No.
CIV490949)
Patricia Hewlett sued her mortgage
lender, Chase Bank USA N.A.—Home Finance LLC
(“Chaseâ€). Chase successfully demurred
to Hewlett’s complaint as “uncertain.â€
After granting Hewlett two additional chances to file a viable
complaint, the court sustained Chase’s demurrer to her second amended complaint
without leave to amend and entered judgment against her. She appeals, and we affirm.
Hewlett filed a complaint against
Chase in San Mateo Superior Court on December 31, 2009. Chase demurred on April 22, 2010. Hewlett did not file a
timely opposition, but rather belatedly requested an extension of time to
obtain counsel. On June 7, 2010, the trial court sustained the bank’s demurrer. It found the complaint uncertain—that is,
ambiguous or unintelligible—under Code of Civil Procedure section 430.10,
subdivision (f),
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and, with respect to the “apparent claim for
complaint did not specify whether plaintiff was alleging a written, oral, or
implied contract, as required under section 430.10, subdivision (g). It also found the complaint did not comply
with California Rule of Court, rule 2.112,
which requires separate causes of action to be numbered and named. The trial court, however, granted Hewlett leave
to amend within 45 days in view of Hewlett’s desire to obtain counsel.
Hewlett, still representing herself,
filed an amended complaint on July 19, 2010. Chase again demurred. Although Hewlett filed an opposition this
time, the trial court, on January 11, 2011, also sustained
this demurrer based on section 430.10 and rule 2.112. The trial court gave Hewlett 30 days to file
a complaint compliant with rule 2.112 and formatted such that “[e]ach cause of
action†is “set forth separately, and separately supported by relevant
allegations.â€
On February 15, 2011, Hewlett filed her second amended complaint (mislabeled as her
first amended complaint).
The second amended complaint does
not contain separated causes of action and does not comply with rule 2.112. It does allege Hewlett obtained a mortgage
loan from Chase in December 2007 for a condominium in San Bruno. Hewlett then alleges Chase violated two
federal laws, the Equal Credit Opportunity Act, title 15 United States Code
section 1691 et seq. and the Fair Housing Act, title 42 United States Code
section 3601 et seq., by giving her a “higher-price†loan than similarly
situated non-minorities (Hewlett alleges she is Hispanic). She also alleges a “Trial Modificationâ€
agreement appears to permit Chase the right to deny final modification and
proceed with foreclosure without stating any grounds. This, she says, constitutes
“Improper Denial of Loan Modification.â€
Chase, viewing this pleading as
little changed, interposed a demurrer on March 16, 2011,
reasserting its uncertainty argument. At
the hearing set for June 21, 2011, at which
Hewlett appeared, the trial court noted Hewlett had not filed an opposition and
continued the hearing until August 9, 2011. On August 8, 2011,
the court issued a tentative ruling sustaining Chase’s demurer, this time
without leave to amend. It again cited a
failure to comply with section 430.10 and rule 2.112. Hewlett did not contest the tentative ruling
or appear at the scheduled hearing, and the court adopted its tentative ruling
on August 9,
2011.
Meanwhile, the trial court had
assigned the case to arbitration. After
Hewlett sought a 60-day continuance, the arbitration was set for August 2, 2011. Hewlett did not submit
briefs to the arbitrator and did not appear.
The arbitrator, on August 3, 2011, entered an award
in favor of Chase.
On August 24, 2011, Hewlett filed a motion to vacate the arbitrator’s award and
tentative ruling on the demurrer. She asserted
she and Chase had agreed to delay the arbitration and Chase had not properly
served her with the demurrer. Chase
responded that Hewlett’s remedy, if she disagreed with the arbitration result,
was to seek a trial de novo, which she had not done, and that a motion to
vacate was not an allowed remedy. Chase
also argued it properly served its demurrer and that Hewlett’s motion to vacate
the arbitration award was moot in light of the trial court’s August 9, 2011, ruling on the demurrer,
effectively ending the case. The trial
court denied Hewlett’s motion, stating there was no evidence she had not been
served with the demurrer and that the request to vacate the arbitration award
was moot.
The
trial court entered judgment in favor of Chase on November 4, 2011.
On December 27, 2011, Hewlett filed a notice of
appeal from the judgment of dismissal and the “award of arbitrator without
arbitration being conducted. Rule
3.825.†She has provided a record on appeal
consisting of only a 36-page clerk’s transcript and a six-page reporter’s
transcript. She did not include any of
her three complaints or the briefs on the demurrers. Only because Chase moved to augment the
record do we have access to those materials.
Discussion
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.†(Estate of Dito (2011) 198 Cal.App.4th 791, 800.) In this case, however, there are significant
defects in Hewlett’s record preparation and briefing on appeal. In addition, she has not offered any argument
supporting the substance of her complaint, nor requested a chance to amend her
pleading, nor specified changes she would make to it if given the chance.
Hewlett’s Burden As
Appellant
To
prevail on appeal, an appellant must, as a threshold matter, present an
adequate record for review. (
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.
(Ibid.) An appellant must also support assertions of
fact made in the briefing with citation to the record. (Rule 8.204(a)(1)(C); In re Marriage of Goosmann (1994) 26 Cal.App.4th 838, 841, fn.
1 (Goosmann); Schubert v. Reynolds (2002) 95 Cal.App.4th 100, 109 (
the course of an appeal to include materials necessary for review, augmentation
“ ‘is not to be regarded as a cure-all nor as an assurance
that negligent preparation of the record will entail no harmful
results.’ †(Russi v. Bank of America National Trust & Savings Assn. (1945)
69 Cal.App.2d 100, 102.) Thus, if
an appellant’s briefs do not reference the augmented material, those briefs are
defective (Goosmann,
and appellant has not met her obligation to
provide citation to the record (Schubert,
supra, 95 Cal.App.4th at
p. 109).
Further, an appellant has the burden
of establishing error through reasoned arguments, not conclusory
assertions. (Moulton Niguel Water
Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived
when a party fails to support them with reasoned argument.â€]; cf.
v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1265 [rejecting argument
raised in conclusory fashion].) We need
not consider points unsupported by legal analysis or authority. (Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn.
3.) Nor need we consider points
supported by citation to general legal
principles or legal authority without application of those principles or
authorities to the case at hand. (Landry
v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699 [“plaintiffs
. . . cit[e] only general principles governing [reconsideration] . . . motions
without applying those principles to the circumstances before the courtâ€].) “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 [forfeited].†(Badie
v. Bank of America, supra, 67
Cal.App.4th at pp. 784-785.)
Additionally, an appellant must not
only show how the trial court erred, but how its error was prejudicial. (Century Sur. Co. v. Polisso (2006)
139 Cal.App.4th 922, 963.) “[W]e cannot
presume prejudice and will not reverse the judgment in the absence of an affirmative
showing there was a miscarriage of justice.
(Cal. Const., art. VI, § 13; Paterno v. State of California
(1999) 74 Cal.App.4th 68, 106 . . . ; Taylor v. Varga [(1995)] 37 Cal.App.4th [750,]
759.) Nor will this court act as counsel
for appellant by furnishing a legal argument as to how the trial court’s ruling
was prejudicial. (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 544-546 . . . ; 9
Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 594, p. 627.)†(Ibid.;
see also Kyne v. Eustice (1963) 215 Cal.App.2d 627, 635-636 [requiring
affirmative showing of prejudice from appellant to reverse order sustaining
demurrer].)
Hewlett has not met these
burdens. To start, she prepared a record
that excluded her complaints and the briefing on Chase’s demurrers. Compounding this failure, neither of her
appellate briefs—not even her reply brief—cited to these materials, which Chase
(for reasons not evident) eventually furnished to the court as part of an
augmented record.
Then, although Hewlett cites a
plethora of legal authority, her arguments are sweeping and conclusory, and
inadequate to meet her burden on appeal.
(Moulton Niguel Water Dist. v. Colombo, supra, 111 Cal.App.4th at p. 1215.) For instance, she cites Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612,
616, for the general legal rule that “[a] demurrer for uncertainty is strictly
construed†but says nothing about how her
complaint relates to this rule. As
another example, Hewlett claims “Judge Bergeron’s Arbitration Order is
inconsistent with California statutory and case law†and then quotes—in one,
five-page, single-spaced footnote—the language of numerous California statutes
without any explanation or analysis.
Additionally, she has made broad brush allegations—such as “Judge
Bergeron has misrepresented facts†or “Judge Bergeron’s Demurrer Order contains
improper factual allegationsâ€â€”without pointing to any supporting evidence or
even suggesting the legal significance of these claims.
Finally, Hewlett has not shown
prejudice from the trial court’s ruling.
Although she accuses the trial court of error, she has not shown the
decision was, ultimately, a wrong one. (
753, 776 [“there can be no prejudicial error from erroneous logic or reasoning
if the decision itself is correctâ€].)
Simply put, she has made no effort to show her complaint actually stated
any valid cause of action for relief, nor has she made an argument as to how
she complied with the various requirements for specificity the rules and trial
court imposed on her. Nor has she even
remotely suggested how she might cure the defects in her 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 in amended complaint supports
the trial court’s order denying leave to amend]; Taliaferro v. Prettner (1955) 135 Cal.App.2d 157, 160 [“when, as
here, the court reasonably concludes that the plaintiff has made no real effort
to comply with the permission once given him to amend his complaint, the
amended complaint becomes nothing but a sham.
The court is not required to give him another opportunityâ€].)
For all these reasons, we conclude
Hewlett has not met her burden to demonstrate reversible error. For this reason, alone, the judgment must be
affirmed.
As best we can discern them, we also
address other issues raised by Hewlett.
Hewlett
quotes section 473, which states: “The
court may, upon any terms as may be just, relieve a party or his or her legal
representative from a judgment, dismissal, order, or other proceeding taken
against him or her through his or her mistake, inadvertence, surprise, or
excusable neglect.†(§ 473, subd.
(b).) But an “[a]pplication for this
relief shall be accompanied by a copy of the answer or other pleading proposed
to be filed therein, otherwise the application shall not be granted.†(Ibid.) Hewlett’s August 24,
2011, motion to vacate the tentative ruling on the demurrer did not attach a
further amended pleading. Thus, even if
we construed Hewlett’s motion as one under section 473, it failed to meet that
section’s requirements. Thus, the trial
court could not have abused its discretion to deny relief under that section.
& Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [abuse of discretion
standard].)
This
case does not implicate a statute of limitations issue, nor a cause of action
for fraud. Therefore Hewlett’s citation
to Jolly v. Eli Lilly & Co.
(1988) 44 Cal.3d 1103, 1110 and Nelson v.
Indevus Pharmaceuticals, Inc. (2006) 142 Cal.App.4th 1202, 1206 (statute of
limitations) as well as Civil Code section 1709 and Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167 (fraud) are
inapposite.
Nor
does this case involve the trial court improperly finding facts at the demurer
stage or improperly taking judicial
notice of a document. The trial
court repeatedly declined to take judicial notice of documents, because it did
not base its ruling on the existence or contents of those documents. The trial court’s decision to sustain Chase’s
demurrer was not based on the finding of facts, but on the uncertainty of
Hewlett’s successive complaints and Hewlett’s failure to head the court’s
straightforward instructions for how to file a complaint that satisfied rules
of pleading.
As
to Hewlett’s constitutional contentions, she was not deprived of due process,
but given the opportunity to be heard on her claims in a California Superior
Court. The processes of the superior
court were adequate. (See
v. City of San Diego (2003) 108 Cal.App.4th 533, 543 [“Due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner.â€].) She was not deprived of
property in violation of the federal takings clause in the Fifth Amendment,
because Chase is not a government entity and the government did not take any
property from her. (Cf.
F.3d 942, 945 [concerning “$186,416.00 in U.S. currency seized by officers of
the Los Angeles Police Departmentâ€].)
Nor is there any valid separation of powers concern in the Superior
Court exercising its ordinary judicial function.
Finally, since we are affirming the
judgment dismissing Hewlett’s lawsuit, we agree with Chase that her motion to
vacate the arbitration award in favor of Chase is moot. The courts have resolved Hewlett’s claims in favor
of Chase, mirroring the arbitration result.
Hewlett suggests no purpose that would be served by reviewing the
arbitration decision.
The judgment is affirmed. Respondents to recover
_________________________
Banke,
J.
We
concur:
_________________________
Marchiano,
P. J.
_________________________
Dondero,
J.
erroneously sued. The current, proper
defendant is apparently JPMorgan Chase Bank, N.A.
references are to the Code of Civil Procedure unless indicated.
