Opinion
G043924
12-21-2011
ROBERT SWEETING, Plaintiff and Appellant, v. ISLAND SOURCE II, LLC, et al., Defendants and Respondents.
Robert Sweeting, in pro. per., for Plaintiff and Appellant. Wright, Finlay & Zak and Richard D. Simpson, Jr., for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 30-2008-00104237)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Randell L. Wilkinson, Judge. Affirmed.
Robert Sweeting, in pro. per., for Plaintiff and Appellant.
Wright, Finlay & Zak and Richard D. Simpson, Jr., for Defendants and Respondents.
Appellant Robert Sweeting (Sweeting) filed a second amended complaint against four named individuals, a number of corporations, and 25 Does. The complaint alleged 15 causes of action arising out of Sweeting's refinance of his residence. The trial court sustained the demurrer of defendants Island Source II, LLC (Island Source) and TCIF REO GCM California, LLC. (TCIF; collectively the defendants) without leave to amend and subsequently entered a judgment of dismissal in their favor. Sweeting argues the trial court erred in sustaining the demurrer and in not granting him leave to amend. Sweeting has not demonstrated the complaint alleges facts sufficient to establish every element of any of the causes of action. Additionally, Sweeting has not presented a record on appeal sufficient to address the question of whether the trial court abused its discretion in denying him leave to amend. We affirm.
I
FACTS
The record on appeal makes a detailed recital of the procedural facts difficult. From what we can piece together from the record we have, it appears Island Resource and TGIF demurred to Sweeting's first amended complaint. On December 9, 2009, the date set for hearing on that demurrer, Sweeting submitted a second amended complaint and represented to the court that the new complaint "should clear up all the issues with the demurrers."
Sweeting alleges in his opening brief that the parties stipulated to the filing of a second amended complaint, but his citation to the record does not support the allegation. He further alleges he filed a timely opposition to the defendants' demurrer to the second amended complaint, that the defendants filed a reply to his opposition, and he filed a response to defendants' reply. Other than the second amended complaint, the record on appeal does not include any of those documents. Neither does the record contain the first amended complaint or the defendants' demurrer to that complaint.
In his reply brief, Sweeting requests that we take judicial notice of an ex parte application to stay eviction — presumably filed by Sweeting in the superior court — and the superior court's ruling on the application. Although he alleges the application and the court's ruling are attached to his brief, they were not. We deny the request for judicial notice. (Cal. Rules of Ct., rule 8.252(a).)
The record on appeal does not contain the superior court's ruling on the demurrer to the first amended complaint.
The second amended complaint alleged 15 causes of action based on Sweeting's refinance of his residence. The causes of action include inter alia negligence, breach of a fiduciary duty, misrepresentation, deceit, and negligence. The complaint revolves around allegations that Sweeting did not receive the cash out amount his broker, Jason Kishaba and International Mortgage, said he would receive, and Kishaba and International Mortgage "rip[ped] off" loan proceeds and failed to make the initial payment on the loan as promised, resulting in Sweeting immediately falling behind on the loan. Fremont loaned Sweeting $773,500 secured by a deed of trust signed by Sweeting. Fremont subsequently sold the loan to GMAC Mortgage, LLC (GMAC). GMAC foreclosed on the loan after Sweeting fell "substantially behind in payments." According to an exhibit attached to the complaint, Sweeting was more than $50,000 in arrears when he was notified of foreclosure. TCIF purchased the property from GMAC. TCIF then transferred title to Island Source via a grant deed.
Island Source and TCIF are not named as defendants in all 15 causes of action; they are named as defendants in the causes of action for reformation of contract, breach of contract, cancellation of a written document, wrongful foreclosure, quiet title, and accounting. The trial court granted Island Source and TCIF's demurrer without leave to amend and entered a judgment of dismissal in their favor.
II
DISCUSSION
A. Sweeting Has Not Demonstrated The Complaint Was Sufficient
In sustaining the defendants' demurrer without leave to amend, the court found: "As to the causes of action for reformation and breach of contract, [Sweeting] has not pled facts as to any contract with moving parties or breach of any contract by moving parties. As to the cause of action for cancellation of written instrument, there are no facts pled that [defendants] are parties to any written instrument and no fraud on the part of moving parties in connection with a written instrument is alleged. As to the cause of action for wrongful foreclosure, [Sweeting] has alleged that GMAC foreclosed and no facts are alleged that defendants . . . participated in any foreclosure. As to the cause of action for quiet title, [Sweeting] has failed to specify the adverse interests, and more importantly, failed to allege tender despite having been given the opportunity to amend to allege tender in the past. As to the cause of action for an accounting, no facts as to any fiduciary relationship between [Sweeting] and defendants . . . have been alleged, or facts as to complicated accounts requiring an accounting in regards to [defendants]."
A demurrer tests the sufficiency of the complaint as a matter of law. We review a trial court's ruling de novo (Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1420) and generally treat as true all material facts properly pled in the complaint, but we do not treat as true a plaintiff's "contentions, deductions, or conclusions of fact or law. [Citation.]" (Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.4th 171, 178, fn. 3.) When a demurrer is sustained, the appellate court reviews the complaint to determine whether it sets forth facts sufficient to state a cause of action. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) Still, appealed judgments are presumed correct and the appellant's obligation is to affirmatively establish error. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) On appeal from a judgment of dismissal entered as the result of the trial court having sustained a demurrer, "[t]he plaintiff 'bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law' and 'must show the complaint alleges facts sufficient to establish every element of [each] cause of action.' [Citation.]" (Sui v. Price (2011) 196 Cal.App.4th 933, 938.)
Sweeting argues in his reply brief that he sufficiently pled a cause of action for wrongful foreclosure because he alleged he was current on his payments. That he was current — given the fact that his complaint establishes he was in arrears — is but a contention or deduction, and we do not treat it as true. (Freeman v. San Diego Assn. of Realtors, supra, 77 Cal.4th at p. 178, fn. 3.)
Sweeting's argument that the superior court erred in sustaining defendants' demurrer to the six causes of action alleged against them is contained in approximately two and a half pages of his opening brief. Without discussing the elements of any of the causes of action, Sweeting's brief makes three statements that presumably purport to demonstrate some error in the lower court's analysis. In connection with the court's ruling on the causes of action for reformation of contract, breach of contract, cancellation of written instrument, and accounting, Sweeting simply states that TCIF and Island Resource "are the assignees and successors in interest to Fremont and inherit all of the defects in the performance of the Contract." As to the court sustaining the demurrer to the wrongful foreclosure cause of action, he alleges, "While Island Source did not participate in the foreclosure, [that fact] does not preclude their liability because they are not bona fide purchasers for value." Without benefit of citation to any authority, he maintains the superior court ignored the fact that the complaint alleged "the Note never existed due to identity theft and fraud in the execution, . . . such that there was never any creditor or any loan by which to secure the property."
Sweeting's bald assertions do not demonstrate any error in the superior court's analysis. For example, even assuming defendants are the assignees of Fremont and "stand in the shoes" of Fremont, Sweeting has not affirmatively shown the complaint states any cause of action against Fremont for the defendants to step into.
Although an appellate court reviews the sufficiency of a complaint on appeal when a demurrer has been sustained, that does not mean a plaintiff may simply appeal and place the onus on the appellate court to find an error in the trial court's ruling. "An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. [Citation.]" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Because Sweeting has not shown on appeal that his complaint alleged sufficient facts to establish each element of the causes of action, we find the trial court did not err in sustaining defendants' demurrer. B. Leave to Amend: Inadequate Record
"'Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. [Citation.] . . . However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion. [Citations.]" (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) "'"The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [¶] To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision." [Fn. omitted.]' [Citations.] 'The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason.' [Citations.]" (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449.)
In order to demonstrate an abuse of discretion, an appellant is obliged "to provide an accurate record on appeal . . . . Failure to do so precludes an adequate review and results in affirmance of the trial court's determination. [Citation.]" (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Sweeting has not provided a sufficient record to demonstrate error. The record does not contain his opposition to the demurrer, his response to defendants' reply to his opposition, the reporter's transcript of the hearing on the demurrer, the first amended complaint, defendants' demurrer to that prior complaint, or a proposed third amended complaint. As a result, there is nothing to indicate he sought leave to amend or made any offer as to allegations he could add to cure the defects of the second amended complaint, thus demonstrating the trial court abused its discretion by sustaining the demurrer without leave to amend. Amending the complaint to allege TCIF and Island Resource had actual or constructive knowledge of the present litigation does not cure the defects of the first amended complaint.
"'Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]' [Citation.]" (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) He has not done so here. Accordingly, we find the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.
III
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. O'LEARY, J.