Opinion
NOT TO BE PUBLISHED
Santa Clara County Super.Ct.No. CV058851
Duffy, J.
This action arises out of a 2004 transaction in which Ferede Negash refinanced a loan secured by a deed of trust recorded against his home at 460 Leigh Avenue in San Jose. Negash’s wife, Leilti Mesfin, although not the borrower, signed documents granting her consent to the loan. They, along with their business partner, Aschilew Jember, and their business, Lunch Box Restaurant (collectively, plaintiffs), thereafter filed suit against the lender, Downey Savings and Loan Association, F.A., the mortgage loan broker, World Lending Group, and others. Downey and World brought separate motions for summary judgment pursuant to Code of Civil Procedure section 437c, which were both granted. Plaintiffs appeal from the two judgments entered on the order granting the motions.
After the appeal was filed, a motion was filed seeking to substitute the Federal Deposit Insurance Corporation (FDIC) as respondent in place of Downey, based upon the fact that in November 2008, the Office of Thrift Supervision closed Downey and appointed the FDIC as receiver. On March 4, 2009, we granted the motion to substitute parties. For convenience—acknowledging this substitution of party—we will refer herein to the lender as Downey.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
On appeal, plaintiffs challenge the summary judgment order and other orders that were adverse to them. As we discuss below, plaintiffs have failed to comply with appellate rules of procedure and their legal arguments are difficult to decipher. It would be appropriate for us therefore to disregard their arguments entirely based upon such noncompliance. However, we have elected to address the claims of error that we can readily ascertain from reading their opening brief. Since we conclude that there was no error by the court below, we will affirm the judgments entered on the order granting the motions for summary judgment.
PROCEDURAL BACKGROUND
On January 25, 2005, plaintiffs in pro per filed their complaint in the Alameda County Superior Court (original complaint) against Downey, World, Bank of the West, Shumay Mamo, Hayward R. Cook, Jr., Miguel Moreno, Jennifer Larget, Edward Gunther, and Barbara Brann. The matter was removed to federal court. Thereafter, World and Downey filed separate motions to dismiss pursuant to Federal Rules of Civil Procedure, rule 12(b)(6), and motions to strike portions of the original complaint pursuant to Federal Rules of Civil Procedure, rule 12(f). The court granted judgment on the pleadings as to the two federal claims alleged, declined to exercise supplemental jurisdiction over the remaining state-law claims, and remanded the case to state court.
The only individual defendant who is a respondent herein is Moreno. Mamo and Cook, two employees of World, filed a motion to dismiss on the ground that plaintiffs had failed to serve them with process. That motion was granted on March 20, 2007.
In or about February 2006, upon motion by World, venue was transferred to Santa Clara County. In June 2006, the court granted a motion for judgment on the pleadings filed by Downey and joined in by World. The court granted the motion with leave to amend as to certain claims; as to the two federal claims previously dismissed by the United States District Court, the motion was granted without leave to amend. The court also denied leave to amend as to the seventh cause of action on the basis that “a claim for punitive damages is not a separate cause of action.” After plaintiffs filed a first amended complaint, World and Downey filed separate demurrers. By order of September 13, 2006, the court overruled the demurrers as to certain claims, sustained the demurrers with leave to amend as to certain claims, and sustained the demurrers without leave to amend as to other claims.
The motion for judgment on the pleadings filed by Downey—as well as the subsequent motions relevant to this appeal (including the summary judgment motion)—were also filed on behalf of Downey’s employee, defendant Moreno. For simplicity, we will generally refer to Downey as the moving party.
On September 29, 2006, plaintiffs filed their second amended complaint (Complaint). The Complaint alleged seven causes of action against defendants: (1) breach of contract against World; (2) breach of contract against Downey; (3) invasion of privacy against World; (4) invasion of privacy against Downey; (5) breach of implied covenant against World; (6) breach of implied covenant against Downey; and (7) conversion against Downey.
The second amended complaint also contained an eighth and ninth cause of action for breach of contract and breach of implied covenant against Bank of the West. The record reflects that a demurrer to plaintiffs’ second amended complaint brought by Bank of the West was sustained by the court without leave to amend. Bank of the West is not a party to the instant appeal.
In September 2007, Downey and World filed separate motions for summary judgment, or, in the alternative, for summary adjudication of claims (collectively, the summary judgment motions). Downey argued in its motion that the breach of contract action was without merit, because (1) as a condition to its initial agreement with Negash to loan $390,000 (that included a $29,000 cash-out to the borrower), the borrower was required to pay off in full all prior encumbrances against the Leigh property that was to be secured by the proposed loan; (2) due to a prepayment penalty required by the then-existing first lienholder, Chase Manhattan, the anticipated funds from the proposed loan were insufficient to satisfy the total payoff amount, and, accordingly, the proposed loan failed and there was no binding agreement; (3) Negash thereafter agreed to a different loan of $401,760 from Downey (with no cash-out to the borrower); (4) Negash and Mesfin wrongly asserted that they cancelled the $401,760 loan, but they failed to give notice of cancellation in a timely and proper manner; and (5) Negash and Mesfin failed to make the required payments under the loan and Downey commenced foreclosure proceedings. Downey also argued that there was no merit to plaintiffs’ conversion and invasion of privacy claims. World contended in its separate motion that (1) no breach of contract claim was maintainable because there was no written contract involving Jember and, in any event, World fulfilled any contractual obligations by procuring a lender (Downey) for Negash; (2) the companion cause of action for breach of implied covenant likewise failed; and (3) there was no evidence to support the claim for invasion of privacy, in that there was nothing supporting plaintiffs’ allegation that World secretly tape-recorded any conversations involving plaintiffs.
Plaintiffs opposed the summary judgment motions; the opposition consisted of more than 1900 pages. They included in their opposition papers nine separate declarations signed by Jember, and voluminous records contained in four separate requests for judicial notice. No declarations were submitted by either Negash or Mesfin.
After a hearing, on December 14, 2007, the court granted summary judgment in favor of both Downey and World. Separate judgments were entered in favor of Downey and World on January 16, 2008. Plaintiffs filed a document captioned “AMENDED NOTICE OF APPEAL” on February 7, 2008. The matter is a proper subject for appellate review. (Code Civ. Proc., § 437c, subd. (m)(1). Thereafter, on March 10, 2008, the court entered an order captioned “FURTHER JUDGMENT RE WORLD LENDING GROUP RE COSTS,” awarding World statutory costs of $23,895.15. No separate appeal was taken by plaintiffs from that order.
After the completion of appellate briefing and the scheduling of oral argument, the FDIC brought a motion to stay the proceedings to permit the exhaustion of the administrative review process under the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (Pub. L. No. 101-73, 103 Stat. 183). We granted the motion on June 2, 2009, and pursuant to that order, the case was stayed until August 17, 2009.
DISCUSSION
I. Issues On Appeal
We identify from plaintiffs’ opening brief the following issues to be resolved on appeal:
1. Whether the court erred in striking plaintiffs’ motion for peremptory challenge pursuant to section 170.6.
2. Whether the court erred in overruling plaintiffs’ objections to the motions for summary judgment based upon a claim that the motions were not properly served.
3. Whether the court’s order granting summary judgment in favor of Downey was proper.
4. Whether the court’s order granting summary judgment in favor of World was proper.
5. Whether there was a procedural irregularity in the order granting the summary judgment motions.
6. Whether the court erred in denying plaintiffs’ motion for reconsideration.
7. Whether the court was without jurisdiction to enter a postjudgment order awarding World its statutory costs.
We address each of these contentions below.
II. Plaintiffs’ Burden as Appellants
Before addressing any substantive issues that may have been raised by plaintiffs in this appeal, we are compelled to identify the serious procedural deficiencies existing in plaintiffs’ filings with this court. Plaintiffs’ opening brief is far from being in compliance with the California Rules of Court. The table of contents is defective in that none of the subheadings under section III (Memorandum of Points and Authorities) tracks the subheadings in the text of the brief. (See rule 8.204(a)(1)(A).) Likewise, the table of authorities includes a case not actually cited in the brief, and the table does not otherwise track statutory citations in the text. The opening brief does not contain a plain statement of “the nature of the action, the relief sought in the trial court, and the judgment or order appealed from” as required by rule 8.204(a)(2)(A). Similarly, the brief fails to include a plain statement that “the judgment appealed from is final,...” (Rule 8.204(a)(2)(B).)
Further rule references are to the California Rules of Court unless otherwise specified.
More significantly, the opening brief contains the most minimal citation to the record in support of plaintiffs’ assertions of fact and their recitation of procedural matters allegedly occurring below, in violation of rule 8.204(a)(1)(B). Part of the appellant’s burden in showing error is to provide an adequate record from which the claimed error may be demonstrated; the failure to present such a record requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; see also Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 [failure of appellant to include transcript of hearing foreclosed court’s review of claim of error].) Plaintiffs also fail to cite any legal authority in support of their arguments that the judgments should be reversed. “ ‘An appellate brief “should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” [Citation.]’ [Citation.]” (Niko v. Foreman (2006)144 Cal.App.4th 344, 368; see also EnPalm, LCC v. Teitler Family Trust (2008)162 Cal.App.4th 770, 775.) Moreover, plaintiffs fail either to clearly state each of their arguments with separate headings or subheadings summarizing the points made, or to develop such arguments in a coherent fashion that the court can readily identify and evaluate. (See Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1831, fn. 4.) Furthermore, the opening brief is riddled with conclusory statements that are not supported by a detailed showing with citation to the record and legal authority. As such, although it is clear to this court that plaintiffs challenge the adverse summary judgment order and subsequent judgments entered on that order, the legal arguments in support of that challenge are much less clear. Further, it is also unclear which specific orders, if any, other than the order granting the summary judgment motions, are also being challenged by plaintiffs.
For example, subheading B at page 13 of the opening brief reads: “AS A MATTER OF LAW, THE SUPERIOR COURT ORDERS IN FAVOR OF DEFENDANTS ARE UNCOSNTITUTIONAL, THE COURT OF APPEALS SHOULD DISMISS THE ORDERS AND DIRECT FOR JURY TRIAL PURSUANT TO ALL CAUSES OF ACTION. [Sic.]” This heading is obviously so general as to be of no use to this court.
These conclusory statements included: “The entire court orders by the discovery Judge [Manoukian] and the presiding Judge [Cabrinha] are illegal court orders”; “false court orders”; “the criminally manufactured and filed court order without signature”; and “[t]he court orders after cancellation of scheduled hearings... [are] unconstitutional.”
The two lengthy reply briefs filed by plaintiffs are similarly noncompliant. Plaintiffs again fail to cite legal authority; back up their assertions with references to the record; identify with any clarity the errors claimed; or present the court with coherent argument. The reply briefs are disjointed, repetitive and are filled with hyperbole. More troubling to this court, plaintiffs use their reply briefs to make repeated ad hominem attacks on counsel and the lower court. Such personal attacks have no place in appellate practice and do nothing to advance plaintiffs’ case. (See In re S.C. (2006) 138 Cal.App.4th 396, 412 [“unwarranted personal attacks [in appellate briefs] on the character or motives of the opposing party, counsel, or witnesses are inappropriate and may constitute misconduct”; id. at p. 422: “Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court.”)
Notwithstanding rule 8.200(a)(3) permitting an appellant to file one reply brief, plaintiffs here filed two reply briefs, each of which was double the length of the opening brief. We have considered both of these reply briefs even though plaintiffs were entitled to submit only one such brief.
These attacks included repeated statements that Downey’s counsel “lied,” “committed perjury,” and was “a pathological liar”; claims that World’s counsel committed “racial hate crime[s]” against plaintiffs and “manufacture[d] false murder threat charges”; the assertion that both defense counsel have “act[ed as w]ild and crazy dogs”; and allegations that various submissions by defense counsel constituted a “fraud on court.” Some of the more outrageous, unsupported attacks include: “Defendant[’s] attorneys created [a] fraudulent court order and later bought the signature of the Judge by bribe”; the superior court judge who decided the summary judgment motion “had [b]een promised bribes... back-date[d... an] order” and “committed [an] obstruction of justice”; the superior court judges had “committed racial hate crime[s]”; and “the entire operation is a racist operation led by lower Judges.”
We acknowledge that plaintiffs are representing themselves in pro per in connection with this appeal and therefore have not had the formal legal training that would be beneficial to them in advocating their position. However, the rules of civil procedure apply with equal force to self-represented parties as they do to those represented by attorneys. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Thus, “[w]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.)
Based upon the wholly noncompliant nature of plaintiffs’ briefs, it would be appropriate for us here to entirely disregard plaintiffs’ contentions because they have not been (1) clearly presented, (2) supported with proper citations to the record, or (3) supported with citations to applicable legal authority. In the interests of addressing the merits of the case—and without impliedly minimizing the significance of plaintiffs’ noncompliance with appellate procedures—we will address below the arguments we have identified in plaintiffs’ opening brief.
Plaintiffs have raised for the first time in their reply briefs certain claims relative to prior orders granting defendants’ motions for judgment on the pleadings, sustaining defendants’ demurrers, and granting the motion to dismiss certain parties (Mamo and Cook). Those arguments—like the ones in the opening brief—are not clearly presented, and are not supported by proper citations to the record or to legal authority. We will therefore disregard the arguments raised in the reply briefs because (1) plaintiffs have failed to comply with appellate rules of practice described, ante, and (2) because they should have been addressed in the opening brief. (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214 [appellate court “need not consider new issues raised for the first time in a reply brief in the absence of good cause”].)
III. Peremptory Challenge
Plaintiffs argue that they had filed a peremptory disqualification of Judge Socrates Manoukian under section 170.6 that was improperly denied. They argue therefore that any orders made by Judge Manoukian after the date of the denial of the peremptory challenge must be stricken.
Under section 170.6, a party or counsel may obtain the disqualification of a particular judge, commissioner, or referee by submitting a timely motion with an accompanying declaration or affidavit averring that the judge to whom a case is assigned or before whom a proceeding is pending “is prejudiced against any party or attorney or the interest of the party or attorney so that the party or attorney cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge, court commissioner, or referee.” (§ 170.6, subd. (a)(2).) If a peremptory challenge under section 170.6 is timely filed and properly supported, “the court must accept it without further inquiry.” (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59.) A review of a decision on a peremptory challenge is made only following a timely petition for writ of mandate. “The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding....” (§ 170.3, subd. (d).) A writ petition is the “exclusive means for reviewing an unsuccessful challenge filed under section 170.6....” (People v. Webb (1993) 6 Cal.4th 494, 522.)
Here, the only signed order concerning a peremptory challenge of Judge Manoukian that is part of the record is an order dated October 30, 2007, in which the court struck the peremptory challenge because it was untimely. As noted, review of this ruling may occur only after the timely filing of a petition for writ of mandate. (§ 170.3, subd. (d).) Therefore, we reject as procedurally improper plaintiffs’ appeal of the order striking the peremptory challenge.
The only document pertaining to a peremptory challenge submitted by plaintiffs as part of the record is a tentative ruling of November 30, 2007, included in appellants’ appendix.
IV. Summary Judgment Motions
A. Standard of Review
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) As such, the summary judgment statute (§ 437c), “provides a particularly suitable means to test the sufficiency of the plaintiff’s prima facie case and/or of the defendant’s [defense].” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 203.) A summary judgment motion must demonstrate that “material facts” are undisputed. (§ 437c, subd. (b)(1).) The pleadings determine the issues to be addressed by a summary judgment motion. (Metromedia, Inc. v. City of San Diego (1980) 26 Cal.3d 848, 885, revd. on other grounds Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490.)
“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (§ 437c, subd. (f)(1).) Like summary judgment, the moving party’s burden on summary adjudication is to establish evidentiary facts sufficient to prove or disprove the elements of a claim or defense. (§ 437c, subds. (c), (f).)
The moving party “bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar, supra, 25 Cal.4th at p. 850, fn. omitted.) A defendant moving for summary judgment must “ ‘show[ ] that one or more elements of the cause of action... cannot be established’ by the plaintiff.” (Id. at p. 853, quoting § 437c, subd. (o)(2).) A defendant meets its burden by presenting affirmative evidence that negates an essential element of the plaintiff’s claim. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) Alternatively, a defendant meets its burden by submitting evidence “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence” supporting an essential element of its claim. (Aguilar, supra, 25 Cal.4th at p. 855.)
Since both summary judgment and summary adjudication motions involve pure questions of law, we review the granting of summary judgment or summary adjudication de novo to ascertain from the papers whether there is a triable issue of material fact. (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438; Travelers Casualty & Surety Co. v. Superior Court (1998) 63 Cal.App.4th 1440, 1450.) In doing so, we “consider[ ] all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
In our independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to “decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]” (Chavez v. Carpenter, supra, 91 Cal.App.4th at p. 1438; see also Burroughs v. Precision Airmotive Corp. (2000) 78 Cal.App.4th 681, 688.) We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
B. Service of Motions
Plaintiffs argue that the summary judgment motions were filed by defendants “without serving [them] as required by law....” and that the motions were therefore “statutor[il]y defective.” We reject that procedural challenge.
World filed its summary judgment motion on September 17, 2007. The proof of service filed with the court indicates that plaintiffs were personally served with the motion papers on that date. Similarly, Downey filed its summary judgment motion on September 21, 2007. The proof of service filed with the court indicates that plaintiffs were served by overnight courier with the motion papers on September 19, 2007. Plaintiffs filed their extensive opposition to the summary judgment motions on or about November 20, 2007. The written opposition did not state an objection based upon a claimed lack of service of the moving papers.
At the hearing on the motion, plaintiffs claimed for the first time that they had not received proper service of the motions. Downey and World opposed that contention. The court, after hearing argument from both side, concluded that “the motions [were] properly before the Court and [would]... decide them on the merits.”
The filing of proofs of service by World and Downey indicating that their respective summary judgment motions were served on plaintiffs “create[d] a rebuttable presumption that the service was proper. [Citations.]” (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) Although that rebuttable presumption arises only if the proof of service complies with the statutory requirements applicable (id. at p. 1442; see also Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795), here, both World and Downey complied with the statute by serving their respective motions at least 75 days before the noticed hearing date. (§ 437c, subd. (a).) Plaintiffs presented no evidence in support of their claim at the hearing that they had not been properly served. Further, their explanation at oral argument for having filed opposition to the motion notwithstanding the claimed lack of service—that they obtained the papers directly from the clerk’s office—was not supported by evidence (such as a declaration or evidence of a receipt for the copies made). Based upon the evidence before it, the court properly found that plaintiffs failed to rebut the presumption that they were properly served with the motion papers. Accordingly, there was no error in overruling plaintiffs’ objection that they were not properly served.
C. Merits of Summary Judgment Motions
1. Downey’s summary judgment motion
a. breach of contract claim
The second cause of action of the Complaint alleged a claim by Negash and Mesfin for breach of contract against Downey. Plaintiffs alleged that in April 2004, “plaintiffs signed the contractual agreement” under which they would receive from Downey a loan in the principal amount of $390,000, with monthly payments of $1,299.69, without an impound account, and with plaintiffs to receive a cash-out of $33,788.74 from the loan. Downey approved the loan, but thereafter it and Moreno voided the transaction under which plaintiffs would receive a cash-out from the loan and unilaterally canceled the loan. Plaintiffs alleged further that Downey and Moreno then “created/manufactured a fraudulent loan in an amount of $401,760.00 in conspiracy with [World]....” Plaintiffs alleged that they served a cancellation notice with respect to this loan on June 13, 2004, and requested that the prior loan be reinstated; Downey rejected that cancellation notice. The Complaint also alleged that between August and November 2004, Downey and Moreno returned mortgage payments made by plaintiffs and “[c]ontinued to manufacture grounds for default” in order to justify a notice of trustee’s sale. Plaintiffs ultimately refinanced the loan with Downey and continued to pursue their litigation. They claim that they “incurred additional expenses and fraudulent fees... of $97,500” because of defendants’ alleged retaliation.
In its summary judgment motion, Downey explained the circumstances surrounding the original $390,000 loan. In early 2004, Negash wanted to refinance the existing loan against his home to reduce the monthly payments (that were approximately $2,625). The loan had originally been with Finance America but was later assigned to Chase. Negash was aware that the existing loan would have to be paid off as a condition to completing a new loan. On April 20, 2004, World submitted to Downey a loan application on behalf of Negash for an adjustable rate mortgage in the principal amount of $390,000. At or about that time, Negash and Mesfin acknowledged in writing that although they had submitted an application for a loan, Downey was not obligated to make a loan unless and until all conditions it imposed were satisfied. Downey submitted funds for this loan into escrow, but the escrow company, Fidelity National Title Company, informed Downey that there were insufficient funds to close escrow because of a prepayment penalty imposed by Chase. That prepayment penalty came about as a result of Negash having signed a prepayment rider at the time he obtained the loan with Finance America. Negash acknowledged that he executed the prepayment rider. Chase would not have considered the loan paid off and would not have executed a deed of reconveyance without the prepayment penalty having been paid. As a result of there being insufficient funds to close escrow, the funds from the loan were returned by Fidelity to Downey; because a deed of trust in favor of Downey had already been recorded, Downey worked with Fidelity to have a deed of reconveyance recorded.
On May 20, 2004, Negash, through World, submitted to Downey a second loan application, this time for a loan amount of $401,760. Negash admitted in his deposition that in June 2004, he signed the necessary documents to obtain this loan, including initialing and signing the promissory note; signing a disclosure that the loan he was obtaining required private mortgage insurance; initialing and signing the estimated closing statement; and initialing and signing the deed of trust. Downey funded the loan on June 17, 2004. As reflected on the settlement statement issued by Fidelity, the payoff to Chase was $394,127.98, which amount included a prepayment penalty of $11,085.27. Negash testified in deposition that a Chase payoff/demand statement with a notation that it was “read and approved” on June 8, 2004, appeared to contain his signature. The statement noted a total payoff figure of $392,476.83 as of June 5, 2004, including the prepayment penalty of $11,085.27. After Chase was paid off and all charges reflected in the settlement statement were paid (e.g., interest, loan origination fee, tax impounds title insurance), there were no funds remaining to be distributed to Negash.
Downey presented evidence in support of its motion that it received no notice of cancellation of the $401,760 loan at any time in June 2004. There was no cancellation notice sent to Downey’s Walnut Creek office designated in the Notice of Right to Cancel as the place to send such notices, nor was such a notice sent to its headquarters in Newport Beach.
Included among the loan documents that Negash (as well as Mesfin) acknowledged receiving by signing was a document entitled “Notice of Right to Cancel.”
Downey also presented evidence that it was justified in pursuing defaults in the Negash loan. After the loan funded, Negash made mortgage payments of $1,299.69—the amount of the monthly payment due under the original $390,000 loan that was canceled—rather than in the monthly amount of $1,780.12 specified in the $401,760 loan that actually funded. Negash was advised by Downey that his monthly payments were for less than the required amounts; he acknowledged in his deposition that he had received such notifications and that Jember had told him that Downey contended that Negash needed to make monthly payments of more than $1,299.69. The deed of trust provided that Downey could recover its attorney fees incurred for collection efforts and litigation, and that foreclosure costs could be added to the loan balance. Negash acknowledged that he signed the deed of trust and that he received correspondence from Downey notifying him that it was charging for attorney fees for addressing his defaults.
Plaintiffs did not present evidence refuting the facts presented in Downey’s motion. There was no declaration at all from the borrower, Negash. The opposition failed to demonstrate a basis for a contract action asserted on the failed $390,000 loan. Plaintiffs failed to refute that Negash executed the loan documents relative to the $401,760 loan, or that the deed of trust authorized Downey to charge for attorney fees it incurred in pursuing the borrower’s defaults. Plaintiffs did not offer any admissible evidence to support the Complaint’s allegations that Downey “manufacture[d] grounds for default” in order to justify taking steps to foreclose on its security. And the opposition did not establish that Negash made a timely or proper request for cancellation of the $401,760.
In responses to interrogatories, Negash indicated that Jember mailed a notice of cancellation to Downey on June 13, 2004, to 3501 Jamboree Road, Newport Beach, California 92660-2980. The “Notice of Right to Cancel” signed by Negash with the rest of the loan documents provided that any notice of cancellation by the borrower was required to have been made in writing by June 14, 2004, to Downey’s address at 1600 S. Main Street, #210, Walnut Creek, California 94598. (See 12 C.F.R. § 226.23(a)(2) [consumer’s notice of rescission effective “when delivered to the creditor’s designated place of business”]; 12 C.F.R. § 226.23(b)(1) [creditor must provide debtor with notice of right to rescind that includes manner in which rescission must be exercised, including the address of creditor’s place of business to which rescission must be sent].) Negash’s interrogatory response therefore did not raise a triable issue of material fact that Negash purportedly cancelled the loan, because even if such written notice of cancellation was made, it was not in compliance with the borrower’s agreement with Downey.
Once the defendant/moving party has met its burden of establishing that a claim has no merit by establishing a complete defense or negating one or more elements of the plaintiff’s claim, “the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff... may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact existed as to that cause of action or a defense thereto.” (§ 437c, subd. (p)(2); see also Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 72.) Plaintiffs here failed to meet that burden in responding to Downey’s motion for summary judgment on the contract claim asserted by Negash and Mesfin.
b. breach of implied covenant claim
The sixth cause of action of the Complaint alleged a claim by Negash and Mesfin for breach of implied covenant of good faith and fair dealing against Downey. Plaintiffs incorporated by reference all of the preceding allegations of the Complaint, including the allegations in support of their breach of contract claim. They alleged that there was implied in the written contract a covenant of good faith and fair dealing between the parties.
This claim is obviously founded on the allegations relating to the breach of contract claim discussed, ante. “There is no obligation to deal fairly or in good faith absent an existing contract. [Citations.] If there exists a contractual relationship between the parties, as was the case here, the implied covenant is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract. [Citation.]” (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032.) Further, a breach of the implied covenant of good faith cannot be asserted where the actions claimed to constitute a breach are permitted under the express terms of the contract. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374.) Since plaintiffs did not present evidence in support of their breach of contract claim, the breach of the implied covenant claim naturally fails as well.
c. invasion of privacy claim
In the fourth cause of action of the Complaint against Downey, plaintiffs sought relief under Penal Code section 632 for electronic eavesdropping. Plaintiffs alleged that on an unspecified date or dates, unspecified defendants secretly tape-recorded conversations involving plaintiffs without their consent. They further averred that “[t]henafter, defendants used the illegally tape[-]recorded [c]onversation[s] to manufacture threat calls against government employees with evil intent to manufacture false criminal charge[s].” Plaintiffs also alleged that between June 13, 2004, and January 2005, Moreno and other Downey employees tape-recorded conversations involving Jember without his consent and thereafter provided the tapes to World.
“Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment....” (Pen. Code, § 632, subd. (a).)
In Downey’s summary judgment motion, it submitted declarations from four of its employees (including Moreno) who were involved at some point in the Negash loan; each employee denied having ever tape-recorded any conversations with plaintiffs. In addition, one of Downey’s employees declared that it was not company policy to record conversations with its borrowers. And Downey submitted Nagesh’s deposition testimony, wherein he stated that neither he nor his wife had conversations with Downey. Negash testified that the only occasion in which he observed someone come into his restaurant with a tape recorder occurred in 2006; that person did not record any conversations involving his wife or him.
As we recently explained, “While invasion of privacy takes several forms, ‘the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an “invasion of privacy.” It encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized....’ [Citation.] ‘It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity.’ [Citation.] [¶] The cause of action ‘for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.’ [Citation.] ‘To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding... the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place’ or zone. [Citation.]” (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1043-1044, quoting Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200.)
Here, plaintiffs failed to present evidence in their opposition supporting their claim of invasion of privacy based upon alleged surreptitiously tape-recorded conversations involving plaintiffs (or any of them). Negash’s deposition testimony did not support such a claim. Plaintiffs’ opposition on the subject did not present admissible evidence to support the claim. Rather, it consisted of an unsupported assertion in the memorandum of points and authorities to the effect that Downey, through Mamo and Cook, illegally tape-recorded conversations involving plaintiffs. This was not admissible to support plaintiffs’ invasion of privacy claim. (Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 271, fn. 8 [statement in legal memorandum submitted in connection with summary judgment motion not evidence].) Additionally, plaintiffs’ opposition was based upon conclusory statements and speculation in Jember’s declaration to the effect that Downey and World “used individuals to tape[-]record conversations illegally....” These statements are not responsive evidence that may be considered. (Crouse v. Brobeck, Phleger & Harrison (1998) 67 Cal.App.4th 1509, 1524: “A party cannot avoid summary judgment based on mere speculation and conjecture.”)
d. conversion claim
In the seventh cause of action of the Complaint, plaintiffs Negash and Mesfin alleged that on or about May 12, 2004, Downey and Moreno converted cash in the amount of $29,081.89. They alleged further that after January 2005, Downey and Moreno converted a loan payment of $10,375 and later in or about May 2005 converted over $80,000 in payments made by Negash and Mesfin “through a threat [of] foreclosure of the [Leigh] property.”
In addressing the conversion claim in its motion, Downey cited the evidence presented in refuting the breach of contract claim. Downey argued that there was no evidence to support plaintiffs’ claim that there was a conversion of the cashout from the Negash loan, because there was no cash remaining from the loan after Fidelity made all appropriate disbursements, including the payoff to Chase. It argued further that, to the extent plaintiffs’ claim was based on the attorney fees charged by Downey to address default issues occurring after the Negash loan was funded, it was without merit because there were clearly defaults and the trust deed plainly allowed Downey to recover its attorney fees.
“ ‘Conversion is the wrongful exercise of dominion over the property of another. The elements of a conversion are the plaintiff’s ownership or right to possession of the property at the time of the conversion; the defendant’s conversion by a wrongful act or disposition of property rights; and damages. It is not necessary that there be a manual taking of the property; it is only necessary to show an assumption of control or ownership over the property, or that the alleged converter has applied the property to his own use.’ [Citation.]” (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 221.)
Plaintiffs failed to present evidence to support their claim that Downey converted cash from the refinancing transaction. As noted, Downey showed in its motion that after all proper disbursements were made, including the Chase payoff, there was no residual cash. Further, plaintiffs did not refute Downey’s showing that there was no conversion resulting from Downey’s charging attorney fees in connection with addressing defaults with respect to the loan. Plaintiffs therefore failed in their opposition to show either their ownership or right to possession of particular property, or that Downey, by wrongful act, asserted control or ownership over such property.
e. conclusion
Plaintiffs failed to present sufficient evidence to raise a triable issue of material fact concerning their claims against Downey for breach of contract, breach of implied covenant, invasion of privacy, and conversion. Accordingly, the court did not err in granting summary judgment in favor of Downey and Moreno. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 189: “A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail.”)
2. World’s summary judgment motion
a. breach of contract claim
The first cause of action of the Complaint alleged a claim for breach of contract against World. Plaintiffs alleged that in February 2004, Jember entered into a contract with World and its employees to refinance a loan secured by a deed of trust against the Leigh property. Plaintiffs alleged that Jember and Mamo between February 12 and March 31, 2004, completed applications for a loan from Downey of $390,000. Loan documents were executed by plaintiffs on April 27, 2004, for a loan of $390,000 with monthly payments of $1,299.69. Plaintiffs alleged that in May 2004, Mamo, Cook and World “manufactured a fraudulent loan for $401,760.00 in conspiracy with [Downey].” They alleged further that they made a written request to Mamo and Cook on June 13, 2004, that the $401,760 loan be canceled and that the prior loan be reinstated; these requests were disregarded. Finally, plaintiffs alleged that World received “a second broker fee[] in an amount of $10,044.00 over the agreed amount of $7,800.00....”
In its summary judgment motion, World presented evidence—through the declarations of its loan agents, Cook and Mamo—that there was no written agreement with Jember as alleged in the Complaint. Plaintiffs in their opposition failed to refute this evidence by showing that such a written agreement, in fact, existed. Further, since World was retained to find a lender for the refinancing of the loan against the Leigh property—and Jember had no interest in that property—it is plain that there was no agreement between World and Jember. Therefore, as to Jember, plaintiffs failed to meet their burden of establishing the existence of a contract.
World submitted evidence that the only agreement it entered into with any of the plaintiffs was a February 2004 mortgage loan origination agreement signed by Negash, under which World would attempt to locate a lender to whom Negash would apply for a home loan. Cook and Mamo submitted declarations in which they stated that World had performed its obligations under any agreement by locating a lender, Downey, on Negash’s behalf. The initial loan that Downey had intended to make—an adjustable rate mortgage of $390,000—could not be funded because it was discovered while the loan transaction was in escrow that Chase required a prepayment penalty of $11,085.27. As a result, the $390,000 loan was canceled on May 11, 2004, and Cook informed Negash of this cancellation and that he could apply for another loan with a higher principal amount. On May 20, 2004, Negash submitted to Downey, through World, a second loan application, this time for a loan of $401,760; this proposed loan took into account the prepayment penalty. In June 2004, Negash executed loan documents and disclosures in connection with this second loan. This point was not only made in the declarations of Cook and Mamo; Negash admitted in his deposition that he initialed and signed the note and deed of trust for the $401,760 loan and that his wife, Mesfin, signed the deed of trust as a “Non-Applicant Spouse.” This loan funded on June 17, 2004. In addition, Cook declared that the allegation in the Complaint that World received “a second broker fee” of $10,044 was incorrect; World received only one broker fee, $10,044, upon the closing of the loan for $401,760.
Denise Moeller, an officer of Downey, also declared that the $390,000 loan did not close because the prepayment penalty imposed by the existing lender resulted in there being insufficient funds available through the $390,000 loan. A condition of Downey making the loan was that it be placed in a first position as a secured lender; because there were insufficient funds to pay off the existing lender, that condition could not be satisfied.
Plaintiffs did not present evidence refuting the facts contained in World’s motion. There was no declaration at all from the borrower, Negash. Plaintiffs failed to refute World’s showing that it performed its obligations under any contract that existed by procuring a lender, Downey, for Negash’s intended refinancing of the loan against his home. The declaration submitted by Jember in opposition to the motion failed to raise admissible evidence in support of a breach of contract claim. Rather, it contained various conclusory and argumentative statements and assertions about which Jember had no personal knowledge—such as (1) the statement that “Negash did not authorize the [l]oan application for $401,760.00,” (2) the application was filed by Mamo and Cook, conspiring with Moreno, “fraudulently and criminally,” (3) “[t]he operation was done criminally and illegally,” and (4) World and the other defendants “manufactured [the] Borrower Estimated Statement dated June 18, 2004[,] and manufactured [t]his fraudulent loan.” This did not constitute admissible evidence that was responsive to the evidence presented in World’s summary judgment motion. (See Uhrich v. State Farm Fire & Cas. Co. (2003) 109 Cal.App.4th 598. 616 [party may not defeat summary judgment by simply averring it has evidence supporting a claim, it must produce that evidence]; Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166 [bare assertion in opposition that the defendants “ ‘fabricated’ evidence” did not raise triable issue of fact to defeat summary judgment].)
As an exhibit to one of Jember’s declarations in opposition to summary judgment, plaintiffs submitted a copy of a letter from Chase dated April 15, 2004, that purported to be a “Payoff/Demand Statement” indicating the principal balance of the loan to Negash to have been $346,723. This document was not properly authenticated and was hearsay, and World objected to it on those grounds. The court sustained the objections, a ruling we conclude was correct. (See DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 680-683.) Moreover, plaintiffs failed to refute the declaration of Judy Greece, employee of Chase, submitted in connection with Downey’s summary judgment motion—a motion in which World joined. In that declaration, Greece authenticated a Chase payoff demand submitted to Fidelity in connection with the Negash loan indicating that the principal balance of the Chase loan was $376,414.01. Moreover, Deborah Baker, an officer of Chase, in a separate declaration stated that the purported April 15, 2004 “Payoff/Demand Statement” submitted in plaintiffs’ opposition “was not issued or generated by Chase.”
Plaintiffs here failed to meet that burden in responding to World’s motion for summary judgment on the contract claim by “set[ting] forth the specific facts showing that a triable issue of material fact exist[ed] as to that cause of action....” (§ 437c, subd. (p)(2); see also Green v. Ralee Engineering Co., supra, 19 Cal.4th at p. 72.)
b. breach of implied covenant claim
The fifth cause of action of the Complaint alleged a claim for breach of implied covenant of good faith and fair dealing against World. Plaintiffs incorporated by reference all of the preceding allegations of the Complaint, including the allegations in support of their breach of contract claim. They alleged that in February 2004, World entered into a contract to act as an agent for a fee of $7,800. Further, plaintiffs averred that World “[v]oided the cash[-]out in an amount of $29,081.89 in conspiracy with [t]he Downey defendants.” Finally, plaintiffs realleged that World had received a second broker fee of $10,044.00 “[i]n breach of the agreement.”
Plaintiffs’ breach of implied covenant claim is related to, and dependent upon, their breach of contract claim. Because plaintiffs failed to present evidence showing a triable issue of material fact on the contract claim—and failed to show the existence of a contract between World and Jember—their breach of implied covenant claim also failed.
c. invasion of privacy claim
The third cause of action of the Complaint against World alleged that plaintiffs were seeking relief under Penal Code section 632 for electronic eavesdropping. Plaintiffs alleged that on or after June 13, 2004, World, Cook, and Mamo secretly tape-recorded unspecified conversations involving plaintiffs without their consent. They further averred that World’s attorney “used these illegally tape[-]recorded conversations and re-tape[-]recorded [them] to his voice mail and used [them] to manufacture false criminal charge[s] against [Jember]....” and also to obtain a temporary restraining order against Jember.
In World’s motion, both Cook and Mamo denied having ever tape-recorded any conversations with plaintiffs. Both persons also declared that no one from World other than the two of them ever met with plaintiffs. In addition, World’s attorney submitted a declaration indicating that plaintiffs had not produced any evidence in discovery supporting their allegation that World, Cook, and Mamo had secretly tape-recorded plaintiffs’ private conversations. And World submitted Nagesh’s deposition testimony, wherein he stated that he was aware of only one instance (in 2006) in which an unidentified individual—not Mamo or Cook—came to plaintiffs’ restaurant and attempted to tape-record conversations of Negash’s customers. That person did not record any conversations involving Negash or his wife.
Plaintiffs failed to offer admissible evidence to support their invasion of privacy claim. As noted above, Nagesh’s deposition testimony did not support a claim that conversations involving either his wife or him were tape-recorded. And the declarations of Jember submitted in opposition did not contain admissible evidence supporting the invasion of privacy claim. Instead, the declarations contained various conclusory and argumentative statements and assertions about which Jember had no personal knowledge—including (1) “[d]efendants made a false murder threat phone calls using illegally tape[-r]ecorded messages for [f]ederal court [r]eporter and Equalization employees”; (2) “Cook was... involved criminally and used by local [l]aw enforcement agencies to tape[-]record illegally and criminally against Aschilew Jember...”; (3) “I have personal knowledge that the illegally tape[-]recorded conversations [h]ad been used by Gregory Gentile”; (4) “[t]he denial of illegal taping is false”; and (5) Cook and Mamo “had produced the illegally tape[-r]ecorded conversation for Gregory Gentile and attempted to manufacture [f]alse criminal charges against Aschilew Jember.” These conclusory and argumentative statements were not evidence. (See, e.g., Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1421 [rejecting so-called evidence that consisted of “a dwindling stream of probabilities that narrow into conjecture”].) Therefore, plaintiffs failed to respond to World’s motion with admissible evidence to support their claim.
d. conclusion
Plaintiffs failed to present evidence raising a triable issue of material fact concerning their claims against World for breach of contract, breach of implied covenant, and invasion of privacy. Accordingly, since the record showed that plaintiffs could not prevail under any of their claims for relief, the court did not err in granting summary judgment in favor of World. (Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at p. 189.)
D. Summary Judgment Order
Plaintiffs appear to argue in their briefs that there was a procedural irregularity with respect to the court’s ruling on the summary judgment motions. Specifically, they contend that the “court back-dated [the summary judgment order] to December 14, 2007.” Plaintiffs go on to make further unsupported accusations directed towards the lower court, accusing the court of “criminal[ly] manufactur[ing]” the order, of having “[b]een promised bribes [in making] a decision to back-date and sign the false [c]ourt order,” and of having “committed racial hate crime[s] and made deals....” Further, plaintiffs repeatedly refer to the order as “the criminally manufactured court order.”
There is no basis for plaintiffs’ challenge. The court, after hearing argument on the summary judgment motions on December 6, 2007, submitted the matter. On December 14, 2007, the court signed and filed its order granting the motions. Endorsed filed copies of the order are included in both the appellants’ appendix and the respondents’ appendix. There is no basis for plaintiffs’ assertions that the order was “manufactured” or “back-dated,” and their appeal on this basis is rejected.
V. Motion for Reconsideration
On January 23, 2008, plaintiffs filed a motion for reconsideration. A number of exhibits were attached to the motion; however, it was not accompanied by a supporting declaration. The court heard argument on the motion on January 31, 2008, and denied the motion on that date. The court held that the motion had failed to identify the new or different facts that justified reconsideration of the order granting summary judgment.
The order denying the motion for reconsideration refers to “[p]laintiffs’ supporting declaration.” Plaintiffs failed to include their motion for reconsideration in their appendix. The motion for reconsideration included in respondents’ appendix contains no supporting declaration.
Under section 1008, a party may seek reconsideration of a court order based upon “new or different facts, circumstances, or law....” (§ 1008, subd. (a).) An order deciding a motion for reconsideration will be reviewed for abuse of discretion. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 724.) Here, aside from the fact that plaintiffs did not comply with the statutory requirements—in that they failed to include in their motion a supporting affidavit or declaration (§ 1008, subd. (a))—it appeared from the motion and from oral argument that plaintiffs offered no new facts, circumstances, or law justifying reconsideration of the summary judgment order. Rather, as evidenced by the argument at the hearing, plaintiffs contended that the court had not properly considered their opposition to the summary judgment motions. Specifically, the court confirmed at the hearing that this was not an instance in which plaintiffs claimed that they had discovered new evidence after the ruling on the summary judgment motions. The court is not empowered to grant reconsideration unless the moving party satisfies the requirements of section 1008. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)
Were we to assume the court had jurisdiction to decide the motion to reconsider, we would conclude that the court did not abuse its discretion here in denying plaintiffs’ motion. However, “[i]t is well settled that entry of judgment divests the trial court of authority to rule on a motion for reconsideration. [Citation.]” (Safeco Ins. Co. of Illinois v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.) Although the issue was not raised by the parties, we do so on our own initiative and thus conclude that plaintiffs’ challenge is without merit on this jurisdictional ground as well. (Minor v. Municipal Court (1990) 219 Cal.App.3d 1541, 1547 [appellate court has inherent power to inquire into lower court’s jurisdiction, regardless of whether question was raised by litigants].)
VI. Postjudgment Award of Costs
Plaintiffs appear to challenge on appeal the order after judgment filed March 10, 2008, fixing costs in favor of World in the amount of $23,895.15. That challenge appears to be jurisdictional, namely, that once plaintiffs filed their notice of appeal, the trial court did not have the power to award costs. We reject this appellate challenge.
Although plaintiffs did not file a separate notice of appeal from the order fixing costs, because the postjudgment order emanated from the judgment determining World to be the prevailing party entitled to costs in an amount to be later determined, the notice of appeal is deemed to encompass the subsequent costs order. (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998.)
Under section 916, subdivision (a), a notice of appeal stays proceedings in the trial court “upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” It has long been the law that a postjudgment order disposing of a motion to tax costs “is a ‘matter embraced in the action and not affected by the order appealed from’ ” and the trial court has jurisdiction to decide such matters notwithstanding a prior appeal from the judgment. (Hennessy v. Superior Court (1924) 194 Cal. 368, 372; see also Bankes v. Lucas (1992) 9 Cal.App.4th 365, 368-369 [filing of appeal did not divest trial court of jurisdiction to decide postjudgment motion for attorney fees].) Plaintiffs’ jurisdictional challenge to the postjudgment award of costs in favor of World is therefore rejected.
Plaintiffs did not file a motion to tax or strike costs in the court below. Any substantive challenge to particular items of costs claimed by World and awarded by the court is therefore forfeited. (Santos v. Civil Service Bd. (1987) 193 Cal.App.3d 1442 1447; Jimenez v. City of Oxnard (1982) 134 Cal.App.3d 856, 859.)
DISPOSITION
The judgments entered on the orders granting summary judgment in favor of Downey/Moreno and World, respectively, are affirmed.
WE CONCUR: Mihara, Acting P.J., McAdams, J.