Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 638271 Roger M. Beauchesne, Judge.
Hubert Daniel, in propria persona, for Plaintiff and Appellant.
Law Offices of David M. Wiseblood and David M. Wiseblood for Defendant and Respondent.
OPINION
GOMES, J.
Hubert Daniel sued Westamerica Bank, as successor to County Bank of Merced (Bank), in propia persona, following the Bank’s foreclosure on commercial real estate that served as security on a loan the Bank made to Daniel’s company, HCD Properties, LLC (HCD), which Daniel and his wife guaranteed. After the trial court sustained the Bank’s demurrers to the original complaint and two successive complaints, each time giving Daniel leave to amend, the trial court sustained the Bank’s demurrer to the Third Amended Complaint without leave to amend. Daniel appeals. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2003, the Bank loaned $689,000 to HCD secured by a Deed of Trust and Commercial Security Agreement on commercial real property located at 210 N. Golden State Blvd., Turlock, CA (the property). Daniel and his wife guaranteed the loan. Daniel owns HCD.
By November 2008, HCD had been in continuous default under the loan documents, having failed to make a number of required contractual payments to the Bank. Consequently, the Bank lawfully commenced foreclosure proceedings. As of November 19, 2008, the sums due and owing under the loan documents, excluding attorney fees and costs, totaled approximately $700,000. The Bank postponed the foreclosure sale a number of times after HCD requested additional time to pay the amount owed. HCD, however, failed to pay and a foreclosure sale was scheduled for November 24, 2008.
HCD asked the Bank to once again agree to postpone the foreclosure proceedings to provide HCD with more time to try to pay the amount owed on a discounted basis. The Bank agreed to do so on terms and conditions set forth in a November 19, 2008 letter agreement signed by HCD, Daniel and Daniel’s wife as guarantors on the loan, and the Bank. In that agreement, HCD acknowledged the default and that the Bank had commenced lawful foreclosure proceedings. HCD agreed to immediately pay the Bank $20,000 as an initial payment, which the Bank would apply first to its outstanding attorney fees and expenses incurred both in this matter and in connection with HCD’s dismissed bankruptcy case, and second, to the unpaid principal due under the loan.
In exchange for the initial payment, the Bank agreed to postpone the pending foreclosure sale to December 12, 2008. If HCD provided the Bank with a signed, written bona fide loan commitment by that date, the Bank agreed to further postpone the foreclosure sale to December 19, 2008, by which date the loan was required to be funded. If HCD satisfied these conditions, the Bank agreed to accept $500,000 plus accrued attorney fees and expenses as full and final payment on the loan. HCD agreed that if the discounted payoff balance was not paid before December 19, 2008, the Bank could complete its foreclosure sale and would not be limited to the amount of the discounted payoff. Guarantors Daniel and his wife acknowledged and agreed they would benefit by the letter agreement regardless of whether HCD performed.
A foreclosure sale was completed on December 22, 2008. The Bank, as the successful bidder, received a Trustee’s Deed upon Sale by which it received title to its real and personal property collateral.
Daniel’s First Three Complaints
Daniel filed suit against the Bank in March 2009. In his original complaint, he alleged that at the time of the foreclosure sale, he owed $50,000 in back payments. Daniel called the Bank on December 19, 2008 to find out how much it would take to stop the sale and was told that he would need to pay $200,000 before noon on December 22, 2008. Daniel tried to get an explanation from the Bank as to why the amount was higher than $50,000, but the person he spoke with became aggressive and agitated and refused to give an explanation. The Bank served Daniel with a three day notice to quit the property on December 26, 2008.
Daniel further alleged that on January 7 and 13, 2009, he met with two Bank managers, who agreed to the following: (1) that Daniel would be given an exclusive purchase option and opportunity to get financing to purchase the property, (2) the manager would refer prospective buyers to Daniel, (3) no further action would be taken on the three-day notice Daniel received, (4) Daniel would be given 45 days to close the deal, and (5) an unlawful detainer action would not be filed against Daniel. The manager assured Daniel the Bank would help him retrieve his property and said it would be in the Bank’s best interest to sell the property back to him.
The complaint contained two unlabeled causes of action. In the first cause of action, Daniel asserted the Bank was the unlawful owner of the property, had unlawfully served the three-day notice to quit and the manager had assured him no action would be taken on the notice, and the Bank’s “unlawful detention” had thereby caused him “reasonable pain and suffering.” In the second cause of action, Daniel alleged he had an interest in the real and personal property, which had been appraised at $1,580,000, and the Bank profited by the unlawful trustee sale since the Bank paid only $457,049.22 for the property, thereby causing him immediate and irreparable injuries.
The Bank demurred to the complaint, which the trial court sustained with leave to amend. Daniel subsequently filed a First Amended Complaint, in which he alleged that the Bank engaged in an unlawful sale at a price below market value and appraisal cost, the Bank committed fraud and made misrepresentations and false promises, and he suffered mental distress, pain and suffering. The trial court sustained the Bank’s demurrer to this complaint with leave to amend. Daniel then filed a Second Amended Complaint, in which he alleged causes of action for misrepresentation, unfair practices, unfair and deceptive acts or practices, breach of contract and fraud. The trial court sustained the Bank’s demurrer to this complaint, again giving Daniel leave to amend.
The Third Amended Complaint
Daniel subsequently filed a Third Amended Complaint (TAC). Daniel alleged that: (1) when the Bank accepted the $20,000 on November 19, 2008, to stop the trustee sale, the Bank defrauded him by using the money in an unlawful manner by paying their attorney and purchasing insurance; (2) before the foreclosure sale, a Bank representative, Donna Krum, told him $200,000 in back payments was needed to stop the sale, when she knew there were only a few days “for FDIC to take over the Bank, if [] Bank will not raise $75,000,000”; (3) he actually owed $50,000 in back payments, which he was willing to pay; (4) the Bank’s lawyer informed him by letter that he owed about $64,000, plus attorney fees; (5) after the foreclosure sale, he contacted the Federal Deposit Insurance Corporation (FDIC) and was advised the past due amount owed was $102,354.08; (6) the Bank’s lawyer accused him of being a failure in his business and blaming others for his mistakes; (7) Krum disclosed personal and financial information to potential buyers of the property after the Bank completed the foreclosure sale, in violation of the Bank’s policies; (8) on January 7 and 13, 2009, he and his wife met with Bank representatives John Mackay and Michelle Parker, who acknowledged he is the true owner of the property, and “made false promises” and a verbal contract with him with no intention of keeping their promises.
The TAC contains five causes of action. The first, labeled “misrepresentation, ” alleges that the Bank “made numerous misrepresentation[s] and failures to disclose material terms, ” specifically that Daniel is the true owner of the property, Bank representatives MacKay and Parker both believed Daniel is the true owner of the property, the Bank accepted the $20,000 cash payment from Daniel, not HCD, the Bank “misled and quoted” $200,000 in back payments when he owed about $50,000, and Mackay and Parker “misrepresent, mislead, intend to defraud, knowledge of falsity, justifiable reliance, and resulting damages.”
In the second cause of action, labeled “unfair practice, ” Daniel alleges that, in the context of conducting its business, the Bank engaged in “numerous unfair acts and practices” which constitute “unfair or deceptive acts or practices.” The unfair acts alleged are: (1) the Bank failed to follow Civil Code section 2924, which requires assisting the borrower with maintaining the property and exploring all options available to prevent foreclosure; and (2) the Bank claimed and possessed inventory, equipment and “all personal properties” with no respect to the contract or loan document.
The third cause of action, labeled “unfair and deceptive acts or practices, ” alleges that the Bank owed “the property owners they solicited a number of fiduciary duties, ” which the Bank breached by “failing to act in good faith towards the property owners, failing to give priority to their best interest, giving priority to [the Bank]’s interest over the property owners, exposing property owners to the possibility of civil and criminal penalties, and failing to provide full, complete and/or truthful disclosure, ” and that such conduct constituted “unfair or deceptive acts or practices.” This cause of action further alleged that the Bank disclosed Daniel’s personal and financial information to “some buyers of the property, ” which was against Bank policy.
The fourth cause of action for breach of contract alleges that the Bank made an oral contract with Daniel not intending to keep it, but does not state the contract’s terms. It is further alleged under the fourth cause of action that the Bank failed to extend an agreement with Daniel giving him additional time to pay.
The fifth cause of action alleges that the Bank defrauded Daniel, “intentionally to harm, humiliate, and destroy his livelihood, ” breached an oral contract, the terms of which are not included in the fifth cause of action, and mentions “emotional distress” and “false promises” without alleging any facts to support them.
The Demurrer to the TAC
The Bank demurred both specially and generally to the TAC on the grounds that each cause of action was uncertain and failed to state facts sufficient to constitute a cause of action. (Code Civ. Proc., §§ 430.10, subs. (e) & (f), 430.30, subd. (a).)
The Bank argued the first cause of action for fraud fails because: (1) the allegations are so uncertain the fraudulent conduct in which the Bank allegedly engaged cannot be determined, as the complaint does not allege the essential facts of the “who, what, where, when, why and how” of the Bank’s alleged fraud, and no explanation is provided as to how the facts alleged constitute fraud; and (2) the allegations are insufficient to establish the necessary elements of fraud, as Daniel has not alleged any facts to show the Bank misrepresented a material fact, had knowledge of the falsity of its statements, intended to induce Daniel’s reliance on its statements, Daniel reasonably relied on these statements, and that Daniel was damaged as a direct result.
The Bank also argued there can be no fraud as a matter of law because: (1) there was nothing fraudulent about accepting $20,000 from Daniel, as Daniel acknowledged in the November 19, 2008 agreement that HCD defaulted on its loan obligations, owed the Bank about $700,000, and agreed to pay $20,000 to the Bank which was to be used toward the Bank’s attorney fees and unpaid principal; (2) the November 19, 2008 agreement shows the loan default was about $700,000, not $50,000; (3) pursuant to Civil Code section 2924c, subdivision (e), the Bank had no legal obligation to reinstate the loan on the date of the foreclosure sale, so assuming the $200,000 quote was given on December 22, 2008, it could not be the basis for fraud.
With respect to the second cause of action for unfair business practices, the Bank contended that its alleged conduct did not constitute an unlawful, unfair or fraudulent business act or practice because Civil Code section 2924 does not require a lender to contact the borrower and explore all options available to prevent foreclosure, and while Civil Code section 2923.5 does state that a mortgagee shall contact the borrower to assess the borrower’s financial situation and explore options to avoid foreclosure, that section applies only to loans secured by owner-occupied residential real property. The Bank also asserted that even if it was required to assist Daniel to avoid foreclosure, it did so by entering into the November 19, 2008 agreement. The Bank further asserted that Daniel’s allegation that the Bank possessed his inventory, equipment and personal property in violation of the “loan document” cannot support a claim for unfair business practices because the claim is uncertain, as Daniel has not identified the property or “loan document” at issue, and he has not pled sufficient facts for the Bank to determine how its alleged possession of these items constitutes an unfair business practice. Moreover, to the extent the Bank took possession of Daniel’s property, it was not wrongful, as it acquired the property pursuant to the foreclosure sale.
The Bank contended the third cause of action for unfair and deceptive acts or practices fails as a matter of law because the substance of the claim is for breach of fiduciary duty, which Daniel alleges the Bank breached by failing to act in good faith, acting in its own interest, exposing Daniel to possible civil and criminal penalties, failing to provide complete and truthful disclosures, and disclosing personal information. The Bank asserted the law clearly provides that there is no fiduciary relationship between a bank and its loan customers, citing Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 476, and therefore Daniel cannot state a claim for breach of fiduciary duty as a matter of law.
On the fourth cause of action for breach of contract, the Bank contended Daniel fails to plead sufficient facts to establish the essential elements of the claim, as he fails to describe the nature of the alleged oral contract, that he performed his obligations under the oral contract, the nature of the Bank’s purported breach and the resulting harm to him. The Bank further asserted that to the extent the oral contract related to an exclusive purchase option or right of first refusal, such an agreement would be barred by the statute of frauds, Civil Code section 1624, subdivision (a)(6).
Finally, with respect to the fifth cause of action labeled fraud, the Bank asserted the allegations made under it are “completely nonsensical, ” as Daniel includes claims for breach of contract, emotional distress, and false promise, but fails to plead any facts upon which the Bank can determine the alleged wrongs it committed. Accordingly, the allegations are so vague and ambiguous that the Bank cannot determine to what it should respond.
The Bank requested the trial court to sustain the demurrer without leave to amend because (1) Daniel had been given four opportunities to state a claim against the Bank, yet failed to do so, thereby establishing that a reasonable possibility to cure the complaint does not exist, and (2) the TAC recites the same conclusory allegations as the second amended complaint, and does not allege any new or additional facts to show a viable claim against the Bank.
Daniel filed written opposition to the demurrer. Daniel failed to substantively address any of the arguments or legal authorities the Bank raised in the demurrer. Instead, Daniel repeated the allegations and conclusions previously asserted in the TAC and prior complaints, and recited an abundance of boilerplate legal language. In a section in his points and authorities entitled “Legal Arguments, ” Daniel essentially repeats the allegations in the TAC under each cause of action without explaining how those allegations state a valid cause of action, although he does state that in the second cause of action, the loan between the Bank and HCD “was not on the inventory, personal properties, equipments, a large bin parked on the property, and all the displays.”
After oral argument on the demurrer, the trial court sustained it without leave to amend and dismissed the action.
DISCUSSION
In reviewing a judgment following the sustaining of a demurrer without leave to amend, “‘[t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.’” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043-1044.)
When “reviewing a demurrer that is sustained without leave to amend, an appellate court assumes the truth of (1) all facts properly pleaded by the plaintiff, (2) all facts contained in exhibits to the complaint, (3) all facts that are properly the subject of judicial notice, and (4) all facts that reasonably may be inferred from the foregoing facts.” (Neilson v. City of California City (2005) 133 Cal.App.4th 1296, 1305.) In contrast, an appellate court must independently decide all issues of law and, thus, may not accept the truth of legal contentions, conclusions of law, or deductions drawn from those legal contentions or conclusions when reviewing the sufficiency of the allegations. (Ibid.)
An appellate court presumes that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) We adopt all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.) An appellant has the burden of overcoming the presumption of correctness. (Hearn v. Howard (2009) 177 Cal.App.4th 1195, 1207.) Even when the appellate court is required to conduct a de novo review, review “is limited to issues which have been adequately raised and supported in the appellant’s brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) Daniel’s election to act as his own attorney does not entitle him to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Lombardi v. Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208-209.)
Daniel filed a 22-page opening brief. The first six pages of the brief begin with the heading “Table of [A]uthorities, ” under which is a list of cases and secondary authorities, and quotes from various statutes and case law. Thereafter, Daniel states, without any argument or authorities, the following as his contentions as to why the court erred in sustaining the demurrer: (1) “[t]he demurrer test[s] the legality of the case and not facts”; and (2) [a]ppellant filed for case to be jury trial.” In the factual and procedural background, Daniel, without citation to the record, reiterates the factual allegations in his complaint and adds assertions that the Bank engaged in an unlawful sale below cost when it purchased the property below its appraised value, the Bank engaged in many fraudulent loans and Bank executives were laid off or fired as a result, the Bank did whatever was necessary to induce borrowers into believing it was looking out for their best interest through various types of solicitation, and the Bank misled borrowers about their ability to refinance.
In the “Discussion” section, Daniel lists facts he claims are disputed, asserts without explanation that he has stated a claim for conversion, and lists the elements of fraud and breach of contract. In pages 13 through 19, he cites to various authorities, including cases, statutes, and articles, but does not use them to make any reasoned argument as to why the trial court erred in sustaining the demurrer. The opening brief ends with a section entitled “Declaration of Charmaine Daniel, ” which is not signed by her and lists the same facts included in the TAC, and a conclusion, in which Daniel states the TAC “outlines strong grounds” upon which he “lost a substantial amount of money for the unlawful and defrauding, misquoting, making mistakes” made to Daniel and lost a business worth more than $1,580,000 when he was only $50,000 in arrears.
Daniel’s opening brief does not cite to the record, state each point under a separate heading summarizing the point, or support each point by argument. Thus, we cannot say that any issue has been adequately raised and briefed under California Rules of Court, rule 8.204. The Bank argues that Daniel’s failure to cite one single legal error he attributes to the lower court’s challenged ruling and to make an argument on each point to which error is asserted constitutes a waiver. We agree.
A court’s review “is limited to only those causes of action briefed on appeal.” (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 [treating causes of action as abandoned because of inadequate briefing on appeal of the trial court’s sustaining of a demurrer].) We are “not required to make an independent, unassisted study of the record in search of error or grounds to challenge a trial court’s action.... When a brief fails to contain a legal argument with citations of authorities on the points made, we may ‘treat any [issues]... as waived or abandoned.’” (Ibid.; see also Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [regarding appellate review of a summary judgment]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545 [“We are not required to search the record to ascertain whether it contains support for [an appellant’s] contentions.”]; Dills v. Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [“We will not develop the appellants’ arguments for them” and refusing to consider only a passing reference to an issue without argument or citation to authority.]; In re Marriage of Schroeder (1987) 192 Cal.App.3d 1154, 1164 [brief should contain argument with citation to record and authorities on a point raised and court may “pass it without consideration” otherwise].) Daniel’s failure to make a substantive argument as to any ground upon which the Bank’s demurrer was sustained amounts to abandonment of any claimed error on appeal.
Daniel filed a reply brief, which also fails to raise any argument as to any ground upon which the Bank’s demurrer was sustained. To the extent Daniel raises new arguments in the reply brief, we do not consider them, as they do not give the Bank the opportunity to respond, or allow this court the benefit of a fully briefed issue to consider. (Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1 [“an appellate court has the discretion to deem an alleged error to have been waived if asserted only in the reply brief and not the opening brief”].)
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: HILL, P.J., DETJEN, J.