Opinion
A123261
7-14-2009
JOHN L. WHEELER et al., Plaintiffs and Appellants, v. MortgageIT, INC. et al., Defendants and Respondents.
Not to be Published in Official Reports
I.
INTRODUCTION
In this dispute over a mortgage loan, appellants John L. and Gloria A. Wheeler, acting in propria persona, appeal from a summary judgment granted to respondents MortgageIT, Inc. (MortgageIT) and GMAC Mortgage Corporation (GMAC). Appellants claim "The Honorable Judge Winifred Y. Smith erred when she stated [appellants] have failed to raise a triable issue of material fact showing that [respondents] are liable for breach of contract, fraud and deceit and intentional infliction of emotional distress." However, appellants fail to support this claim of error with any discernible legal argument or discussion of the evidence submitted by respondents below. Consequently, appellants challenge to the grant of summary judgment must be deemed waived; and we affirm.
II.
FACTS AND PROCEDURAL HISTORY
Our review of this case is severely impeded by the multiple deficiencies in appellants brief. Appellants brief is devoted exclusively to reciting disjointed summaries of portions of the record accompanied by conclusory allegations that the court erred in granting summary judgment. We provide a brief summary of this case gleaned from the record on appeal.
Appellants are the parents of a daughter, Terri Eskridge (Eskridge). Eskridge obtained a loan from respondent MortgageIT, secured by real property in San Lorenzo, California. Respondent GMAC did not originate Eskridges loan, but is the subsequent servicer of the loan. According to appellants first amended complaint and deposition testimony, appellants entered into an agreement with Eskridge in or around January 2006, whereby appellants would assume legal responsibility for the loan.
Appellants claim they paid off Eskridges entire mortgage loan in excess of $500,000 through a single monthly mortgage payment of $3,783.91. The basis for this claim is appellants allegation that "GMAC cashed [check] no. 612, in the amount of $3,783.91 without striking out or otherwise deleting the written notation "Loan Paid Off" from the check.
The operative complaint is appellants fifth amended complaint, alleging causes of action for breach of contract, common law fraud and deceit, and intentional infliction of emotional distress. After reviewing the admissible evidence supporting these allegations, the trial court granted summary judgment to respondents. The court first noted that appellants failed to cite specific evidence in response to the respondents statement of undisputed facts, as required by the summary judgment statute, "which made it difficult if not impossible to ascertain whether there was a triable issue of material fact raised." The court concluded that "[t]he undisputed evidence indicates (1) that there was no valid contract between [the parties] which allowed [appellants] to assume the loan in question[,] (2) there was no valid accord and satisfaction because [appellants] did not act in good faith and the loan amount in question was either liquidated and not subject to a bona fide dispute[,] (3) [respondents] did not make a false representation to [appellants] and/or did not conceal a material fact from [appellants], and (4) the conduct that [respondents] w[ere] accused of did not constitute outrageous conduct such that [respondents] should be liable for intentional infliction of emotional distress." This appeal followed.
III.
DISCUSSION
"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. . . ." (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 72.) A motion for summary judgment should be granted if the submitted papers show there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant meets the burden of showing a cause of action has no merit if he or she shows that one or more elements of the cause of action cannot be established or that there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show a triable issue of material fact exists. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 229.)
On appeal, the reviewing court first identifies the issues raised by the pleadings. Second, the reviewing court determines whether the moving party has established entitlement to summary judgment, i.e., whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, the reviewing court considers whether the opposition raised triable issues of fact. The appellate court reviews these matters de novo. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) In other words, we exercise our independent judgment in deciding whether undisputed facts negate appellants claims as presented in the complaint or state a complete defense. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 865.)
The judgment of the trial court is presumed to be correct and it is the appellants burden to affirmatively show error. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) To demonstrate error, the appellants must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. (In re S.C. (2006) 138 Cal.App.4th 396, 408.) When a point is asserted without argument and authority for the proposition, it is deemed to be without foundation and requires no discussion by the reviewing court. (Ibid.) Hence, conclusory claims of error will fail. In addition, appellants brief must state each point under a separate heading or subheading summarizing the point. (Cal. Rules of Court, rule 8.204(a)(1)(B).) This is not a mere technical requirement. Rather, it is designed to lighten the labors of appellate tribunals by requiring litigants to present their cause in a systematic manner for adjudication. Under California law, it is not the role of an appellate court to carry out this burden. (Wallace v. Thompson (1954) 129 Cal.App.2d 21, 22.)
These requirements are not waived because appellants have chosen to proceed in propria persona. A party may choose to act as his or her own attorney; nevertheless, such a party is entitled to the same, but no greater consideration than other litigants. Thus, as is the case with attorneys, litigants in propria persona must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.)
In the instant case, appellants essentially have given us an incomprehensible recitation of facts underlying the fifth amended complaint. Appellants brief does not state separate points of contention, or set forth supporting legal authorities. Thus, we cannot say that any issue has been adequately raised and briefed under California Rules of Court, rule 8.204. Even on de novo review from a summary judgment, issues not raised in an appellants brief are deemed waived or abandoned. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Moreover, we note that appellants failed to file an adequately supported separate statement of disputed facts in the trial court. (Code Civ. Proc., § 437c, subd. (b)(3).) Without a separate statement of disputed facts—with references to supporting evidence in the form of affidavits or declarations—it is impossible for the opposing party to demonstrate the existence of disputed facts. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22.) Appellants failure to submit a separate statement of disputed facts corresponding to the respondents separate statement, standing alone, constitutes sufficient grounds for granting the motion for summary judgment. (Code Civ. Proc., § 437c, subd. (b); Kaplan v. LaBarbera (1997) 58 Cal.App.4th 175, 179.)
IV.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur:
REARDON, J.
SEPULVEDA, J.