Opinion
E050023 Super.Ct.No. RIC449870
08-09-2011
DAVID L. GREER, Plaintiff and Appellant, v. DENNIS GREER et al., Defendants and Respondents.
Richard D. Ackerman for Plaintiff and Appellant. Lewis Brisbois Bisgaard & Smith, Lawrence S. Rookhuysen; Law Office of Priscilla Slocum and Priscilla Slocum for Defendant and Respondent Dennis Greer.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of Riverside County. Gary B. Tranbarger, Judge. Affirmed.
Richard D. Ackerman for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Lawrence S. Rookhuysen; Law Office of Priscilla Slocum and Priscilla Slocum for Defendant and Respondent Dennis Greer.
Haight Brown & Bonesteel, Jules S. Zeman; Edward J. McNamara for Defendant and Respondent JP Morgan Chase Bank, N.A.
The trial court sustained demurrers to the operative complaint, without leave to amend, based on (among other things) res judicata. Plaintiff David Greer appeals. With respect to res judicata, however, his opening brief failed to provide us with the legal analysis, supported by appropriate authority, that is required by California Rules of Court, rule 8.204(a)(1)(B). Even though respondent Dennis Greer pointed this out, David Greer did not bother to file a reply brief.
We therefore affirm.
I
FACTUAL BACKGROUND
In accordance with the applicable standard of review, "we look to the 'properly pleaded factual allegations' of the operative complaint 'read in light of any 'judicially noticeable facts' and 'factual concessions' of the plaintiff. [Citation.]" (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 506, fn. 1.)
David and Dennis are brothers. David lives in Riverside, California; Dennis lives in Colorado. David had bank accounts with Washington Mutual Bank (WaMu), both in his own name and in the name of the Gladys Greer Trust.
Now JP Morgan Chase Bank, N.A.
Dennis filed probate court proceedings against David, in his individual capacity and as trustee of the Gladys Greer Trust, in Riverside County.
In 2005, Dennis allegedly went to a WaMu branch in Colorado and "improperly obtained . . . private and confidential account information" regarding accounts in David's sole name. Based on this allegedly confidential information, Dennis then asserted in the probate court that some $200,000 to $300,000 was missing from Gladys Greer's accounts. This assertion resulted in a continuance of the probate court trial, as well as a "blizzard of litigation."
When David tried to find out where Dennis had gotten this information, WaMu told him that Dennis had presented a driver's license identifying him as "David Greer"; it advised David that he was a victim of "identity theft." David therefore filed a police report charging Dennis with identity theft.
Dennis sued David in Colorado state court for malicious prosecution, defamation, and intentional infliction of emotional distress. The alleged defamation consisted of David's statements to the police charging Dennis with a crime. In 2008, a jury returned a general verdict awarding Dennis $187,000 against David. The Colorado trial court entered judgment in favor of Dennis and against David for this amount, plus interest and costs.
II
PROCEDURAL BACKGROUND
In 2006, David filed this action against Dennis and WaMu. Demurrers to the original complaint and to the first, second, and third amended complaints were either unopposed or sustained.
David Hollar and Benjamin Selters, also named as defendants, were voluntarily dismissed.
In 2009, David filed his fourth amended complaint. It asserted causes of action against both defendants for invasion of privacy and against WaMu only for negligent misrepresentation and breach of contract.
Dennis and WaMu filed separate demurrers They argued, among other things, that the complaint failed to state a cause of action and that the Colorado judgment barred the complaint as a matter of either claim preclusion or issue preclusion.
After hearing argument, the trial court sustained both demurrers, without leave to amend. On Dennis's demurrer, it ruled that the Colorado judgment was "res judicata" and that the complaint failed to state a cause of action. On WaMu's demurrer, it ruled, " . . . I do not think there is res judicata against Washington Mutual . . . ." However, it ruled that the complaint failed to state a cause of action; for example, it did not allege intent to deceive. It entered judgment accordingly.
III
RES JUDICATA
David contends that the trial court erred by ruling that the complaint was barred by res judicata.
The trial court sustained Dennis's demurrer based on both res judicata and failure to state a cause of action. It sustained WaMu's demurrer, however, based solely on failure to state a cause of action; it specifically refused to do so based on res judicata. WaMu contends that this was error and that the judgment may be affirmed, if necessary, on res judicata grounds. Anticipating this, David also specifically contends that WaMu was not entitled to a dismissal of the complaint based on res judicata.
Dennis responds that David has "abandoned" his res judicata contentions by failing to cite pertinent authority and by failing to provide any meaningful legal analysis. We agree.
"'[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.'" (People v. Stanley (1995) 10 Cal.4th 764, 793.) David's argument fails to distinguish between the claim preclusion and issue preclusion aspects of res judicata, both of which were raised below. With respect to issue preclusion, he notes that the jury in the Colorado action returned a general verdict; he concedes that "a general verdict does operate to bar the future litigation of issues that were squarely before the trial court" but argues that a general verdict "is no bar to issues that escape ready identification." The only authority he cites is Witkin. He provides no analysis to help us determine whether the issues in this case "were squarely before" the Colorado court, or whether, on the other hand, they "escape ready identification."
David also complains that WaMu was not a party to the Colorado action. He does not cite any authority, however, for the proposition that this makes any difference. And, once again, he does not distinguish between claim preclusion and issue preclusion in this respect.
Under the circumstances, it is particularly egregious that David has not availed himself of the opportunity to file a reply brief. While this is not an admission that the appeal lacks merit (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1218, fn. 4; but see Johnson v. English (1931) 113 Cal.App. 676, 677 ["[a]ppellant, by failing to file a reply brief, concedes that respondent's position is unassailable"]), it may fairly be taken as an admission that it is not supported by any analysis or authority beyond whatever is in his opening brief.
IV
DISPOSITION
The judgment is affirmed. Dennis and WaMu are awarded costs on appeal against David.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
HOLLENHORST
Acting P.J.
KING
J.