Opinion
A146880
02-27-2018
FRANCISCO CARRASCAL, Plaintiff and Appellant, v. DEANNA AVAKIAN et al., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV494058)
BACKGROUND
This is the second appeal in this case and the latest manifestation of a series of legal proceedings that commenced almost eight years ago.
On April 14, 2010, appellant Francisco Carrascal filed a complaint in the San Mateo County Superior Court alleging fraud, breach of fiduciary duty, negligence, and unfair business practices against the same parties that are defendants and respondents in this appeal: Deanna and Eugene Avakian, PNC Bank, N.A. (PNC), Bank of America, Federal National Mortgage Association (Fannie Mae), and Federal Home Loan Mortgage Association (Freddie Mac). The allegations of the complaint all related to appellant's purchase of properties in Stockton and related home-purchase and refinance loan transactions in 2006 and 2007, and the foreclosure of certain properties. Appellant alleged causes of action for fraud against all defendants and breach of fiduciary duty, various forms of negligence, and unfair business practices against certain defendants.
On May 25, 2012, respondents filed a motion for summary judgment or, in the alternative, summary adjudication. On December 12, 2012, the court granted summary judgment against plaintiff and entered a judgment of dismissal, and on December 27, 2012, appellant filed a notice of appeal. On January 28, 2015, we issued an opinion affirming the judgment based on the grant of summary judgment to respondents. (Carrascal v. Avakian (Jan. 28, 2015, A137465) [nonpub. opn.].)
On January 10, 2013, shortly after summary judgment was granted and appellant filed notice of his appeal from the judgment based on that ruling, respondents moved in the trial court for an order awarding them attorney fees for proving the truth of matters that appellant failed to admit in response to their requests for admissions, pursuant to Code of Civil Procedure section 2033.420, subdivision (a). On July 31, 2015, the trial court granted the motion and awarded respondents attorney fees in the amount of $32,283.13. Timely notice of the appeal from that order, which is the present appeal, was filed on November 16, 2015. The sole issue presented by this appeal is the propriety of the order granting attorney fees pursuant to section 2033.420.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On December 31, 2015, shortly after he filed his notice of appeal, appellant, acting in propria persona, as he did on his former appeal and this one, filed a "Motion to Recuse Justices" alleging that the members of this Division who ruled against him in his earlier appeal (Presiding Justice Kline and Associate Justices Richman and Stewart) "were biased against Appellant and Appellant will not get Justice if the same Justices hear his case." The motion additionally asserted that the present appeal is also about predatory lending and mortgage fraud, and Presiding Justice J. Anthony Kline "is a member of the American Jewish Congress [which] has an annual Financial Services Luncheon hosted by members of different banks and other financial institutions that Appellant is suing." According to the recusal motion, Presiding Justice Kline "will influence the other two justices to rule against Appellant's Appeal, since the banking organization is connected to the American Jewish Congress."
Appellant was represented by counsel only in the original trial proceeding that resulted in summary judgment. It was in that proceeding that appellant refused to answer requests for admissions, which resulted in the order awarding attorney fees to respondents.
The recusal motion also states that in July 2010 "Justice Richman had a complaint filed against him by the Human Rights Alert for public corruption and deprivation of rights, relative to his conduct in [Sturgeon] v. Los Angeles County, [a case involving the salaries of superior court judges in Los Angeles County.]" Appellant "does not feel confident for a Justice who had a complaint against him for public corruption rule on his appeal [sic]."
The recusal motion, which was based on title 18 of the United States Code, section 455 and Marshall v. Jerrico, Inc. (1980) 446 U.S. 238, 242, in addition to section 170.1, was denied on March 8, 2016.
After we received appellant's opening brief in this appeal, which was not in compliance with the California Rules of Court, specifically rules 8.204(1)(C), 8.208(d)(1), and 8.212(c )(1), we issued an order directing the clerk of the court to reject appellant's opening brief submitted in TrueFiling for correction in compliance with the California Rules of Court, and granting appellant leave to file his corrected brief within 20 days from the date of our order. The order also stated that: "Appellant is warned that if he subsequently files another defective brief we may dismiss his appeal," citing Berger v. Godden (1985) 163 Cal.App.3d 1113, 1118-1119.
All further rule references are to the California Rules of Court.
In their brief, respondents assert that appellant's opening brief "fails to provide any facts, law or argument showing that the lower court abused its discretion in issuing the order granting attorneys' fees and related judgement awarding fees. Instead, appellant continues to argue the merits of the underlying actions which is [sic] not the subject of this appeal."
DISCUSSION
Appellant's opening brief is really no more compliant with rules 8.204(1)(C), 8.208(d)(1), and 8.212 (c)(1) of the California Rules of Court, than the one we rejected.
Moreover, as respondents point out, it consists almost entirely of arguments relating to the propriety of summary judgment that we rejected in the previous appeal and repetition of the previously rejected reasons members of this panel should recuse themselves from this case.
The only argument advanced by appellant in his 18-page opening brief that relates to the issue before us, the propriety of the attorney fee award, is the following:
"Appellant had the Constitutional Right not to admit to responses and requests for Requests for admissions by appellee. Appellant did not respond to their responses because Appellant did not believe their requests were soon [sic].
"The Superior Court Abused Their Discretion by ruling for Appellees because by law, they are not allowed to force Appellant to admit something he did not believe was true. There were errors in Volume 1 and Page 1 of this transcript.
"The rest of the volumes and transcript are based on Fraudulent Evidence, and Appellant appeals the lower court rulings because the lower court abused their discretion for making these findings."
The foregoing paragraph (and much of the rest of appellant's opening brief) is reiterated verbatim in appellant's reply brief.
Subdivision (a) of section 2033.420 provides when an adverse party "fails to admit the genuineness of any document or the truth of any matter when requested to do so . . . and the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter" the requesting party "may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees."
Subdivision (b) of the statute states that "[t]he court shall make this order unless it finds any of the following: (1) An objection to the request was sustained or a response to it was waived under Section 2033.290. [¶] (2) The admission sought was of no substantial importance. [¶] (3) The party failing to make the admission had reasonable ground to believe that that party would prevail on the matter. [¶] (4) There was other good reason for the failure to admit." (§ 2033.420, subd. (b).)
Appellant undoubtedly believes his brief argues that he "had reasonable ground to believe that [he] would prevail on the matter," or that "there was other good reason for the failure to admit"; but it does not. The minute portion of his brief relating to the propriety of the fee award consists not of legal argument, but three conclusions: that he (1) had an unspecified "Constitutional Right" not to make the requested admissions, (2) "did not believe [respondents'] requests were soon [sic]," and (3) that there were unspecified "errors" in "Volume 1 and Page 1" of an otherwise unidentified "transcript."
The reference is probably to the single volume clerk's transcript. Page 1 of that document is respondents' notice of motion and motion for an award of attorney fees, which is accompanied by a declaration of Marcus T. Brown, one of the attorneys representing respondents in the trial court. --------
As in Berger v. Godden, supra, 163 Cal.App.3d 1113, appellant's corrected opening brief, insofar as it relates to the only issue presented in this appeal, contains "not one citation to the record on appeal," "not one citation to any legal authority," and "no pertinent or intelligible [legal] argument whatsoever." (Id. at p. 1117.) Accordingly, as we did in Berger, we dismiss this appeal on the grounds of appellant's failure to (1) "file a brief in conformity with the rules after his initial brief was stricken for noncompliance with the rules," and (2) "advance any pertinent or intelligible argument whatsoever." (Ibid.)
The appeal is dismissed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.