Opinion
E078963
10-16-2023
ALEXIS A. BRUDAL, Plaintiff and Appellant, v. ADRIANA'S INSURANCE SERVICES, INC., Defendant and Respondent.
Alexis A. Brudal, in pro. per., for Plaintiff and Appellant. Colman Perkins Law Group, Michele L. Levinson and Chloe P. Graham for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County (Super.Ct. No. CIVSB2105208). Gilbert G. Ochoa, Judge.
Alexis A. Brudal, in pro. per., for Plaintiff and Appellant.
Colman Perkins Law Group, Michele L. Levinson and Chloe P. Graham for Defendant and Respondent.
OPINION
MENETREZ J.
Plaintiff Alexis A. Brudal appeals from a judgment of dismissal following an order sustaining without leave to amend a demurrer filed by Adriana's Insurance Services, Inc. (ADI) to Brudal's second amended complaint. We affirm the judgment.
After we sent the court's tentative opinion to the parties, Brudal requested oral argument and ADI waived oral argument. ADI's counsel then appeared at oral argument, and Brudal objected that counsel should not be permitted to argue, having filed a written waiver. We allowed ADI's counsel to present argument over the objection. ADI's counsel presented no substantive argument, submitting on the tentative opinion and stating that it appeared correct, and we did not ask ADI's counsel any questions. Thus, Brudal was not adversely affected by this court's decision to allow ADI's counsel to present argument.
BACKGROUND
In February 2021, Brudal filed a verified complaint against ADI and Aspire General Insurance Services (Aspire), alleging eight causes of action arising from the cancellation of Brudal's automobile insurance policy. Brudal attached four exhibits to the complaint (exhibits 1A-B &2A-B).
Brudal later filed a verified second amended complaint against ADI and Aspire without any attached exhibits. The second amended complaint contains causes of action against ADI and Aspire for (1) breach of contract, (2) breach of fiduciary duty, and (3) breach of the implied covenant of good faith and fair dealing.
Because this case arises at the demurrer stage, we assume the truth of the allegations in the second amended complaint. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209.)
Brudal obtained an automobile insurance policy (the policy) from Aspire in December 2018. Brudal renewed the policy three times. ADI was Brudal's insurance broker. In August 2020, Aspire cancelled the policy because of nonpayment of the monthly premium.
Brudal variously alleges that Aspire cancelled the policy in August 2020 and August 2021. We assume that the cancellation occurred before the lawsuit was initiated in February 2021, so we infer that the cancellation and related events occurred in 2020.
On May 21, 2020, Aspire notified Brudal that it would cancel the policy on the basis of his nonpayment if Brudal did not pay $121.42 before June 21, 2020. On May 29, 2020, Brudal went to ADI's office and paid the premium owed and an additional $114.98 toward the June monthly payment. ADI updated Brudal's payment information with a newly provided credit card.
ADI drafted and prepared a written agreement for Aspire "to fulfill or perform[] the following legal duty under the term[s] of the agreement on behalf of [Brudal] to: ([]continue automatic withdraw payment to cover for [Brudal's] premium automobile insurance payment for [the policy], after [Brudal's] payment information was updated on May 29 2020." Brudal agreed to have Aspire deduct specified amounts from "his bank or recurring Credit Card Payment" on the 19th or 20th of every month from June 2020 through November 2020. Brudal and Aspire executed the agreement on May 29, 2020. On June 1, 2020, the new credit card that Brudal gave ADI was charged $245.40.
On July 21, 2020, Aspire notified Brudal via mail that it would cancel the policy if it did not receive a payment by August 1, 2020. Aspire threatened to report the matter to a collection agency. Aspire cancelled the policy on August 1, 2020-two months after ADI "update[d] [Brudal's] payment information on May 29 2020."
ADI demurred to all of the causes of action against it. ADI argued that the court should dismiss the second amended complaint without leave to amend. ADI also filed a motion to strike parts of the pleading. Brudal filed an opposition to the demurrer, with 13 exhibits attached.
On October 18, 2021, the trial court issued a tentative ruling on the demurrer and the motion to strike. The tentative ruling indicated that the court would not consider Brudal's opposition because of procedural violations. The tentative ruling also indicated that the court would sustain the demurrer "for failure to state a cause of action" and deny the motion to strike as moot. The court did not explain its reasoning. The tentative ruling included the typewritten provision: "Ten days leave to amend granted." In the file-stamped and signed tentative ruling included in the record on appeal, the typed words "Ten days" are stricken out and replaced with a handwritten, "NO."
On the same day that the trial court issued the tentative ruling, the trial court held a hearing on the demurrer. The record on appeal does not include a reporter's transcript or a minute order from the hearing.
Ten days after the tentative ruling and hearing, Brudal filed an amended opposition to the demurrer and the motion to strike. Brudal filed the amended opposition because the tentative ruling had granted him leave to amend. Brudal assumed that he needed to amend the opposition to the demurrer because the tentative ruling did not specify what Brudal needed to amend.
The court entered judgment against Brudal on March 14, 2022. The judgment states that the court sustained ADI's demurrer without leave to amend on October 18, 2021, and denied the motion to strike as moot. The judgment also states that "[a] copy of the court's 'Final Ruling' is attached" as an exhibit. The record on appeal does not contain the attachment.
DISCUSSION
Brudal argues that the trial court erred by sustaining ADI's demurrer. We are not persuaded.
A. Standard of Review
We independently review a trial court's ruling on a demurrer. (Roe v. Hesperia Unified School District (2022) 85 Cal.App.5th 13, 23.) "Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) We accept the truth of properly pleaded material facts. (Roe, supra, at p. 23.) "We review for abuse of discretion the trial court's denial of leave to amend." (Id. at p. 24.) B. Sufficiency of the Allegations
Brudal argues that the second amended complaint contained sufficient allegations to support the breach of contract, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing causes of action. The argument is both forfeited and meritless.
"To prevail on appeal, an appellant must establish both error and prejudice from that error." (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 (WFG); Jameson v. Desta (2018) 5 Cal.5th 594, 609.) "In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record. Rather than scour the record unguided, we may decide that the appellant has forfeited a point urged on appeal when it is not supported by accurate citations to the record." (WFG, supra, at p. 894; see also Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellant must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].)
Under those principles, Brudal's argument concerning the sufficiency of the allegations is forfeited. Brudal does not support the argument in the opening brief with adequate citations to the record. To demonstrate the sufficiency of the allegations in the second amended complaint, he cites two allegations from the second amended complaint, namely, that ADI is a California corporation and that Brudal "made clear that his payment information was updated [o]n May 29 2020." Those allegations are not sufficient to support the elements of Brudal's breach of contract, breach of fiduciary duty, and breach of the implied covenant of good faith and fair dealing causes of action (or any other cause of action). (See Shusha, Inc. v. Century-National Ins. Co. (2022) 87 Cal.App.5th 250, 266-267 [elements for breach of contract and breach of the implied covenant of good faith and fair dealing]; Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405 [elements for breach of fiduciary duty].)
Brudal also cites the original complaint and the four exhibits attached to that pleading. The allegations in the original pleading are not relevant because the second amended complaint superseded the prior pleadings. The original complaint accordingly "cease[d] to perform any function as a pleading." (Meyer v. State Board of Equalization (1954) 42 Cal.2d 376, 384.) We accordingly do not consider the allegations in the nonoperative complaint in analyzing the sufficiency of the allegations in the operative pleading.
Brudal also repeatedly cites an exhibit (exhibit 4) without providing any page number for the exhibit in the clerk's transcript or even identifying the document to which the exhibit was allegedly attached, and it is not readily apparent from the record. We will not "search the record on [our] own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) By failing to provide adequate record citations to support the argument that the second amended complaint contains sufficient allegations to support the alleged causes of action, Brudal forfeited the argument. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 287.)
We granted in part Brudal's motion to augment the record. The exhibits attached to that motion and included in the record on appeal are labeled alphabetically and not numerically.
In any event, the allegations in the second amended complaint are not sufficient to state any claim for relief. Brudal alleges that on May 29, 2020, ADI, acting as Brudal's insurance broker, drafted a written contract that Brudal entered into with Aspire. Aspire agreed to charge Brudal's monthly insurance premium payments on a credit card Brudal provided to ADI that day. Brudal does not allege that ADI was a party to that contract. Moreover, Brudal alleges that on May 29 ADI updated his payment information. Those are the only factual allegations in the second amended complaint concerning ADI. Given that there are no allegations of a contract between ADI and Brudal and that Brudal alleges that ADI in fact fulfilled its obligation to Brudal by updating Brudal's payment information, the second amended complaint does not contain any allegations of wrongdoing by ADI. The second amended complaint accordingly does not contain sufficient allegations to state any cause of action against ADI. We therefore conclude that the trial court did not err by sustaining the demurrer.
Brudal does not argue that the trial court abused its discretion by declining to grant him leave to amend, and we will not develop the argument for him. (In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 830.) In any event, the record does not contain the reporter's transcript of the hearing on the demurrer, the minute order from the hearing, or the court's final ruling, so we do not know the trial court's reasoning and thus cannot assess whether the court abused its discretion. (Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229.)
C. Remaining Arguments
Brudal also argues that ADI violated the California Rules of Court by serving him electronically without his consent and by failing to meet and confer with him about the demurrer to the second amended complaint. We reject the arguments. Brudal has not carried his burden on appeal of demonstrating that he suffered any prejudice as a result of the putative errors. (Cal. Const., art. VI, § 13; WFG, supra, 51 Cal.App.5th at p. 894.)
DISPOSITION
The judgment is affirmed. ADI shall recover its costs of appeal.
We concur: MILLER Acting P. J. FIELDS J.