Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 34200900048175
ROBIE, Acting P. J.
Ronald D. Carter brings this pro se appeal from the judgment in favor of Bank of America, entered after the court sustained its demurrer to Carter’s first amended complaint without leave to amend.
We treat the May 24, 2010, notice of appeal from the order sustaining the demurrer as a premature notice of appeal from the May 28, 2010, judgment of dismissal. (Cal. Rules of Court, (rule) rule 8.100(a)(2); see Galanis v. Mercury Internat. Ins. Underwriters (1967) 247 Cal.App.2d 690, 692-693, fn. 1.)
We find no error and affirm the judgment.
BACKGROUND
The record on appeal in this case is sparse.
Carter has made a number of attempts to expand the record on appeal by separate motions to augment and requests for judicial notice, on which we have deferred ruling until now. These pending motions are:
Carter’s father, Claude, owned a home on Leola Way in Sacramento. In July 1998, a quitclaim deed was recorded, conveying the property to a relative, Stephanie J. Carter. Carter asserts that Stephanie obtained this deed either by exercising undue influence over Claude, who was gravely ill at the time, or by forging Claude’s signature.
We refer to individuals who share Carter’s surname by their first names for clarity’s sake.
Two years later, in 2000, Stephanie obtained a $53,000 line of credit loan from Bank of America (bank), secured by the Leola Way house. Stephanie was the sole borrower and hers is the only signature on the deed of trust. Stephanie neither told the bank that Claude and/or other family members claimed an interest in the Leola Way house nor did she tell Claude or other family members about the quitclaim deed or the loan.
Claude died in 2003. Ownership of the Leola Way house became an issue in the subsequent probate proceedings and Carter initiated this action.
The original complaint is not in the record on appeal.
The first amended complaint is a two-page form pleading naming the bank and Stephanie as defendants. Although no box is checked to identify the particular legal theory or cause of action stated by the pleading, the complaint contains the following handwritten allegations: “Negligent Duty of Care, illegitimate loan using contrived and forged documents and concealment of other legitimate heirs with no inquiry made by Bank as to such interests causing undue encumbrance on the estate.”
The bank filed a demurrer to the first amended complaint, which is not in the record on appeal. The bank’s request for judicial notice is likewise not in the record.
Carter’s opposition to the demurrer, however, is in the record. It describes the underlying dispute this way: “This case arises from a dispute over my father’s house. Prior to my father’s death, the defendant, Stephanie J. Carter, through forgery transferred the deed into her name. Stephanie J. Carter subsequently drained the equity from the property by obtaining a loan from the defendant, Bank of America, using the property as equity. The deed was subsequently voided pursuant to court order....
“The Plaintiff has filed this lawsuit in an attempt to quiet titled to the estate, as equally shared between himself and his siblings, for an order rescinding as to the property the loan taken out by Stephanie J. Carter, however she should remain personally liable to Bank of America. In order to reach this end, Bank of America is a necessary party as it would be affected by such injunctive and declaratory relief.
“Based upon the preceding facts, the Plaintiff contends that the Defendant, Bank of America, has not established through its demurrer that the Plaintiff is unable to state a cause of action, and accordingly, leave to amend should be granted.”
The trial court sustained Bank of America’s demurrer to the first amended complaint without leave to amend, reasoning, “It appears from the allegations that plaintiff is contending that defendant made a[n] ‘illegitimate loan using contrived and forged documents’ secured by real property. However, it is defendant Stephanie Carter who allegedly forged a deed from decedent Claude Carter transferring the property to herself. She then obtained a loan from Bank using the property as security. Plaintiff alleges the loan is illegitimate and must be rescinded. In his opposition he states he is seeking to quiet title. Plaintiff may have an interest in his father’s estate as an heir but he does not have an interest in the real property as he does not appear in the record chain of title and thus has no claim against Bank. Plaintiff’s claims, if any, are against Stephanie Carter. [¶] There is nothing in the complaint or opposition to suggest that the defects of this pleading can be corrected. Thus the demurrer is sustained without leave to amend. Therefore, Bank of America’s demurrer to the first amended complaint is sustained in its entirety without leave to amend.”
DISCUSSION
I
Standards Of Review
A demurrer may be sustained without leave to amend where the facts are not in dispute and the nature of the plaintiff’s claim is clear but, under substantive law, no liability exists. (Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1233.) On appeal from a judgment of dismissal after an order sustaining a demurrer without leave to amend, we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We give the complaint a reasonable interpretation and treat the demurrer as admitting all material facts properly pleaded, but we do not assume the truth of contentions, deductions, or conclusions of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966–967.)
When, as here, a court sustains a demurrer without leave to amend, “we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
It is the plaintiff’s burden to show either that the demurrer was sustained erroneously or that the trial court’s denial of leave to amend was an abuse of discretion. (Savage v. Trammell Crow Co. (1990) 223 Cal.App.3d 1562, 1576; Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 200.)
The general rules of appellate practice also apply to our review of a dismissal following a demurrer sustained without leave to amend. (See Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) Those rules include placing the burden on the appellant to follow the California Rules of Court by: (1) presenting each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made (rule 8.204(a)(1)(B), (2)(A)); (2) providing an adequate record that affirmatively demonstrates error (rule 8.120 et seq.); (3) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record (rule 8.204(a)(1)(C)); and (4) showing exactly how the error caused a miscarriage of justice (rule 8.204(a)(2)(A); Cal. Const., art. VI, § 13). If the appellant fails to comply with any of these rules, the contentions are forfeited. (Rule 8.204(a)(1)(B); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240.) Because the arguments on appeal must be restricted to evidence in the record, any reference to matters outside the record on appeal generally will not be considered. (Rule 8.204(a)(2)(C).)
Lack of legal counsel does not entitle an appellant to special treatment. (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) A pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) “A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)
II
The Demurrer
Carter devotes most of his brief on appeal to claiming the trial court erred in sustaining the demurrer without leave to amend. He contends he should be permitted to show that the bank committed gross negligence “chiefly through the lack of proper Professional inquiry” into “other lawful interested parties” and by failing to conduct a “background check of Stephanie j. [sic] Carter... which would have revealed a history of felony fraud.”
“‘The existence of a duty of care toward an interest of another worthy of legal protection is the essential prerequisite to a negligence cause of action, determined as a matter of law by the court.’” (Rodriguez v. Bank of the West (2008) 162 Cal.App.4th 454, 463.) To sustain a negligence claim against the bank, Carter must be able to allege the bank owed him a duty of care in its banking relationship with Stephanie.
As a matter of law, he cannot. “A bank’s basic duty of care--to act with reasonable care in its transactions with its customers--arises out of the bank’s contract with its customer (Rodriguez v. Bank of the West, supra, 162 Cal.App.4th at p. 460, italics added) and, “‘absent extraordinary and specific facts, a bank does not owe a duty of care to a noncustomer’” (id. at p. 463; see Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 479). Without facts giving rise to a duty to noncustomers, “the [bank]’s care, or lack of care is irrelevant. Violation of a self-imposed rule does not create actionable negligence unless the plaintiff (1) suffers the type of harm sought to be prevented by the rule and (2) is a member of the class of people for whose protection the rule was promulgated.” (Id. at p. 482.)
Here, Carter cannot sustain a cause of action for negligence against the bank because he cannot show the bank owed him a duty. The bank industry safeguards he contends were violated by the bank were not designed to protect him against misconduct by Stephanie. (See Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., supra, 49 Cal.App.4th at p. 482.)
Applying these principles, courts have sustained without leave to amend the demurrer of banks to negligence claims based on allegations they should have followed “banking industry standards” and discovered that their customer had stolen the plaintiff’s identity, opened accounts in his name, and allowed fraudulent checks to be drawn on those accounts. (Rodriguez v. Bank of the West, supra, 162 Cal.App.4th at pp. 459, 463, 466; Software Design & Application, Ltd. v. Hoefer & Arnett, Inc., supra, 49 Cal.App.4th at pp. 478-482; see also Chazen v. Centennial Bank (1998) 61 Cal.App.4th 532, 543–545 [a bank’s duty of care is owed to its depositors, not to strangers, except when the bank has allowed a person to deposit a check payable into the customer’s account, notwithstanding that the check was payable to someone else]; but see Sun ‘n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 695-696 [bank owes a limited duty of inquiry when a check presented for deposit bears some objective signs of fraud].)
In view of these authorities, Carter’s allegations that the bank should have inquired into whether there might exist “other parties interested” in the Leola Way property do not justify a finding that the bank had a duty to Carter in its transaction with Stephanie.
Carter also asserts on appeal he should be permitted to amend his complaint to add a cause of action for fraud against the bank based on allegations “on two occasions on the same day [in] October 2008 [he] made inquiry of the $53,000 dollar loan at two different Bank of America locations and was told ‘there is no loan and no bank account history.’” To establish a claim for fraudulent misrepresentation, the plaintiff must prove each of the following: “(1) the defendant represented to the plaintiff that an important fact was true; (2) that representation was false; (3) the defendant knew that the representation was false when the defendant made it, or the defendant made the representation recklessly and without regard for its truth; (4) the defendant intended that the plaintiff rely on the representation; (5) the plaintiff reasonably relied on the representation; (6) the plaintiff was harmed; and (7) the plaintiff’s reliance on the defendant’s representation was a substantial factor in causing that harm to the plaintiff. [Citations.]” (Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1498, italics omitted.) “Each element in a cause of action for fraud... must be factually and specifically alleged. [Citation.]” (Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513, 519.) Moreover, in a fraud claim against a corporation, a plaintiff must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
Not only does the fraudulent misrepresentation/concealment cause of action Carter proposes fail to allege that he reasonably relied to his detriment upon the bank’s denial that a loan had been made to Stephanie, but he expressly states in his brief on appeal and in opposition to the demurrer that he “held in [his]... pocket” the information about Stephanie’s loan when he made the inquiry. He could not have been misled by anything he was told by the bank.
Finally, Carter argues that “a possibility for ‘Discovery’ of the torts of Gross Negligence and crimes of grand larceny, forgery, Inheritance, fraud, Real estate Fraud and elder abuse (financial) would have been revealed at a hearing or trial had the judge not dismissed my case without ‘leave to amend’” and the court ignored that “as an heir [he is] entitled to such under provisions in probate law and as the future executor and administrator of the estate.” We have explained the proper considerations in reviewing an appeal from judgment entered after a demurrer has been sustained without leave to amend. Whether the plaintiff has been denied a future possibility of using discovery procedures to uncover other wrongdoing by the defendant is not among them.
DISPOSITION
The judgment is affirmed.
We concur: BUTZ, J. DUARTE, J.
November 19, 2010, “Motion and Notice of Motion for Order to ‘Augment Designated Record.’” By this request, Carter seeks to augment the record to include an undated two-page form pleading (Judicial Council form PLD-C-001(3)) entitled “Cause of Action--Fraud, ” which the notice indicates was “presented” to the superior court clerk, but neither filed nor “recorded.” This motion is denied: documents that were neither filed nor lodged in the case in the superior court can be added to the record on appeal by augmentation. (Rule 8.155(a)(1)(A).)
December 29, 2010, “Motion to Notice Motion For Request for Judicial Notice of the Appellate Court of Augmented Record and other Pertinent Legal Notice and Records and Dates of Filing.” The motion is denied because this request neither attaches a copy of any document it seeks to have included in the record on appeal, as required by rule 8.155(a)(2), nor otherwise properly identifies the document as required by rule 8.155(a)(3).
March 24, 2011, “Motion and Notice of Motion for Order to ‘Augment Designated Record.’” By this request, Carter seeks to augment the record to include his July 9, 2010, motion in the trial court for permission to file nunc pro tunc the undated two-page form pleading (Judicial Council form PLD-C-001(3)) entitled “Cause of Action--Fraud, ” the trial court minute order dropping his request as having been filed while the instant appeal was pending, the minute order dropping from the Bank’s demurrer to the original complaint, the superior court docket, and the first amended complaint filed in this action. This request is granted.
March 24, 2011, request for judicial notice, asking this court to take notice of a discovery request in the underlying superior court case directed to defendants other than Bank of America and an order to show cause re sanctions issued in 2007 to Stephanie J. Haskins. We decline to take judicial notice of them. (Evid. Code, §§ 452, subd. (d); 454, subd. (a)(1); 459, subd. (a).)
Bank of America also asks that we take judicial notice of documents filed in Sacramento Superior Court case Nos. 34-2010-00073560 and 34-2010-00072854. We grant the request to take judicial notice of them. (Evid. Code, §§ 452, subd. (d); 454, subd. (a)(1); 459, subd. (a).)