Opinion
G061486
04-18-2024
ALEX DAVID, Plaintiff, v. DANIEL M. ROSE, Individually and as Trustee, etc., Defendant and Appellant, LISA ABAI, Intervener and Respondent.
Daniel M. Rose, in pro. per., for Defendant and Appellant. Songstad Randall Coffee & Humphrey, Janet E. Humphrey and Joseph K. Jeffrey for Intervener and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 30-2020-01167066, Derek W. Hunt, Judge. Affirmed.
Daniel M. Rose, in pro. per., for Defendant and Appellant.
Songstad Randall Coffee & Humphrey, Janet E. Humphrey and Joseph K. Jeffrey for Intervener and Respondent.
OPINION
O'LEARY, P. J.
Daniel M. Rose appeals from a judgment following a consolidated court trial about real property rights. He contends, among other things, there was insufficient evidence to support the trial court's judgment and that procedural errors occurred. We affirm the judgment.
FACTS
I. Context of Short Sale Transaction
Rose purchased a home in Buena Park (the property) in 1999. The home was used as collateral for a loan and, by 2012, Rose had defaulted on his repayment obligations.
That same year, Rose entered into a landlord-tenant relationship for the property. Relevant here, he and an entity called "Transition Retreat Management Trust" (the tenant trust) signed a lease on October 12, 2012 entitled "residential lease for private residence with option to purchase" (the 2012 document). (Some capitalization omitted.) The 2012 document provided that, for the duration of the lease, the tenant trust "ha[d] an option to purchase the [l]eased [p]remises so long as" certain conditions remained satisfied and $495,000 was paid as the purchase price. The 2012 document is one of four relevant documents discussed in our summary of facts.
The second document was signed five years later (the 2017 document), by Rose and, on behalf of the tenant trust, an individual named Kellie Nicole Williams. The 2017 document was also entitled "residential lease for private residence with option to purchase," but below those typed words was "extension through 2022" in handwritten text. (Capitalization omitted.) The wording used in the 2017 document appears to be the same as the 2012 document, including the same option provision mentioned above.
In 2017, Rose owed over $1.2 million on his defaulted loan, and in 2020, a short sale of the property was negotiated and completed. During the short sale negotiations, Rose and Williams signed the third relevant document, entitled "cancellation of lease or rental" (the cancellation form). (Capitalization omitted.) It included the following provision: "Tenant [i.e., the tenant trust,] and Landlord [i.e., Lakeside Retreat Trust, Daniel Rose Trustee . . . intend that all rights and obligations arising out of the Agreement [i.e., the 2012 document,] are null and void."
Because they are immaterial to our disposition, we do not discuss distinctions between Rose and various trusts for which he was listed as trustee.
Nine days after Rose signed the cancellation form, he signed the fourth and final document relevant to our discussion: an August 2020 deed granting the property to Lisa Abai which did not indicate any reservation of interest in the property in favor of any party other than Abai (the 2020 grant deed).
Rose later confirmed through his trial testimony that he signed both the cancellation form and the 2020 grant deed. Notwithstanding, he argued he never intended to grant the property outright to Abai, but instead had intended to cancel only the 2012 document and not the 2017 document, which he considered to be separate leases.
II. Trial Court Proceedings
The tenant trust filed a complaint in October 2020, asserting rights to the property, and Abai filed a complaint one month later. Rose's default was entered in May 2021 and, in September 2021, Abai moved to compel Rose's attendance at a deposition. The court ordered Rose to attend the deposition and he complied some time before trial that was set to commence the following month.
On the first day of trial, October 19, 2021, an attorney made a limited appearance on Rose's behalf and, based on an ex parte application filed by Rose, requested the trial court set aside the default entered against Rose. The court granted the request and allowed Rose two weeks to secure counsel. Ultimately, the same attorney substituted into the case to represent Rose at trial.
The bifurcated trial that ensued first determined who owned the property. It is sufficient to summarize that the tenant trust was aligned with Rose's opposition to Abai's ownership claim and, in essence, the parties to the short sale asserted their counterparties were attempting to defraud them through their asserted interests in the property.
After testimony and written evidence, the trial court concluded Abai was the sole owner of the property. During the second phase of trial, the court approved a settlement reached by the parties involved in Abai's unlawful detainer action. Ultimately, a judgment was entered that decreed in relevant part that "[t]itle [to the property] is quieted" in favor of Abai and "[a]ny and all rental agreements for the [p]roperty are hereby canceled and any and all leases of the premises are hereby forfeited."
DISCUSSION
On appeal, Rose claims four grounds for reversing the judgment. Three claim the trial court committed "fact finding errors" when it: (1) "found the 2017 [document] to be valid and cancelled"; (2) "found that there was no consideration for the lease"; and (3) found "the lease was out of the chain of title." Rose's fourth ground asserts procedural error, arguing the "court should not have allowed the case to move forward without service" of process of a summons on him. Rose is not persuasive on any of his claims, for the reasons discussed below.
To the extent Rose attempts to raise additional issues in his reply brief, we ignore them. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 ["'"points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before"'"].)
I. Standards of Review and Appellate Principles
Rose presents no discussion on which standard of review governs which of his claims. Regardless, to all claims we apply "three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.]" (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
The three principles reinforce an appellant's duty to demonstrate a miscarriage of justice through adequate analysis and citation to the record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cal. Rules of Court, rule 8.204(a)(1)(B), (C); see Cahill v. San Diego Gas &Electric Co. (2011) 194 Cal.App.4th 939, 956 ["'The absence of cogent legal argument . . . allows this court to treat the contention as waived'"].) The duty applies equally to appellants representing themselves as those represented by counsel (see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985), and, applied here, establishes this appeal fails because of inadequate briefing.
II. Insufficient Evidence Claims
Rose argues that because the cancellation form did not extinguish the rights set forth in that document, Abai "took [ownership of the property] subject to the lease [between Rose and the tenant trust]," meaning the trust still had an option to purchase the property. The trial court's erroneous finding that the lease was cancelled, argues Rose, is the central "domino" from which all others should fall in his favor in this appeal.
Rose's insufficient evidence argument is a nonstarter because he has not carried his burden to discuss the trial evidence that was material to the enforceability and effects of the cancellation form and 2020 grant deed he signed. "It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence" (People v. Sanchez (2003) 113 Cal.App.4th 325, 330), so when a factual finding is attacked on appeal for evidence insufficiency "'the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination'" (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143). As here, when a contention rests on a claim of insufficient evidence, an appellant has the duty to discuss all of the material evidence that was presented to the trier of fact. (Foreman &Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)
By the face of the record presented, we discern 13 witnesses who testified at trial, including a real estate agent who brokered the short sale of the property and two expert witnesses who testified for Abai. In his briefing, Rose provides no citations or meaningful discussion about what any of them testified about. Given his failure to discuss the evidence, we conclude the trial court's finding that the 2017 document was cancelled was sufficiently supported.
Rose presents a single citation to the reporter's transcript that does not pertain to any of the evidence that was presented at trial.
III. Other Claims
Moving from sufficiency of evidence to his challenges about how the trial court proceedings were conducted, Rose claims the court entered a "default judgment" against him and that "he was not permitted to meaningfully participate in the case." But he does not provide a single citation to the appellate record to support his portrayal of what happened.
Compounding the problem, Rose's portrayal does not square with the record because, as Abai cites in her briefing and as mentioned above, the trial court granted an ex parte application by Rose to vacate the default that had been entered against him. Rose does not address the point in his reply brief. (See Johnson v. English (1931) 113 Cal.App. 676, 677 ["Appellant, by failing to file a reply brief, concedes that respondent's position is unassailable"].)
We note that even if we excused his deficient briefing, Rose's assertion that he was prevented from meaningfully participating at trial, including his claim that he was never "served [with] process," would also fail because of forfeiture. He did not ask the trial court for the relief he now claims he should have received.
The record shows Rose filed two ex parte applications to vacate the default entered against him-beginning one week before trial-that explicitly stated he was not seeking a continuance of trial. In other words, Rose did not seek any time to conduct the trial preparation he now claims he was wrongfully denied. "'[T]he forfeiture rule ensures that the opposing party is given an opportunity to address the objection, and it prevents a party from engaging in gamesmanship by choosing not to object, awaiting the outcome, and then claiming error.' [Citation.]" (People v. French (2008) 43 Cal.4th 36, 46.)
Rose attempts to excuse himself from the forfeiture of his argument by blaming his attorney. But even if we assumed the forfeiture was a result of counsel's error (which we do not imply), Rose does not show why it should justify a reversal of the judgment for Abai. "[T]he general rule is that attorney neglect in civil cases, if any, is imputed to the client. [Citation.]" (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1575.)
He goes to the extent of claiming he had "no idea who paid" his counsel, "but believes it was the law offices of [the tenant trust's counsel] who retained and paid" his counsel.
All of Rose's other conclusory claims for reversal fall equally flat. For example, he asserts the cancellation form was "not intended to become a part of the [c]ounty records or be enforced." Even assuming he properly established that we should review the claim de novo as an asserted error of law, his lack of meaningful analysis would still fail to carry his burden to demonstrate prejudicial error. (Crawley v. Alameda County Waste Management Authority (2015) 243 Cal.App.4th 396, 404 ["'appellant must frame the issues for us, show us where the superior court erred, and provide us with the proper citations to the record and case law'"]; see 12 Witkin, Summary of Cal. Law (11th ed. 2017) Real Property, § 265, p. 323 [recordation not essential to deed validity].)
In sum, Rose has not shown the result reached by the trial court's judgment was incorrect. (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.) His appeal fails on its lack of adequate briefing.
DISPOSITION
The judgment is affirmed. Abai is entitled to her costs in this appeal.
WE CONCUR: MOTOIKE, J., DELANEY, J.