Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BC417506 Yvette M. Palazuelos, Judge.
Harriett Harvey, in pro. per. and Christopher M. Brainard for Plaintiff and Appellant.
Roup & Associates, Ronald D. Roup and Jennifer A. Bender, for Defendant and Respondent.
BIGELOW, P. J.
Harriett Harvey filed a complaint against LaSalle Bank National Association (LaSalle) for wrongful foreclosure. The trial court sustained LaSalle’s demurrer without leave to amend and dismissed the complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We glean the following facts from the record. According to a June 2008 complaint Harvey filed in a previous action (June 2008 complaint), Harvey resided at a certain house in Los Angeles (the property). In 2006, she refinanced her mortgage on the property. Harvey alleged the mortgage broker led her to believe her monthly mortgage payments would stay the same after the refinance. However the payments increased from $1,700 to $2,178 per month, which Harvey could not afford. Eventually, Harvey defaulted on the mortgage. The house was sold at a foreclosure sale. The June 2008 complaint alleged causes of action for fraud, deceptive trade practices, negligent mortgage lending, conspiracy to defraud homeowner of possession of real property, and legal malpractice. Harvey sought a set aside of the foreclosure trustee’s sale, declaratory relief, and to quiet title.
LaSalle was one of several defendants named in the June 2008 complaint. The complaint asserted four causes of action against LaSalle: conspiracy to defraud homeowner of possession of real property, declaratory relief, injunctive relief, and quiet title. It alleged that LaSalle, along with several other defendants named in the complaint, “knew of should have know[n] and otherwise know, that not only is this plaintiff a victim of ‘subprime loan’ as they are now infamously known, that there is no way that the plaintiff could qualify for a loan that she could not afford, unless all defendants directly or indirectly cooperated in dispensing with all the necessary standards that would prevent her from doing so.” In the request for declaratory relief against LaSalle, Harvey asked the court to determine “whether the plaintiff was steered into losing her property through fraud, negligence, and conspiracy, and otherwise intentional acts of the defendants in this case, and whether or not Subject Property should be returned to her as just and proper compensation.” In the quiet title cause of action, the complaint asserted LaSalle “obtained Subject Property through indirect conspiracy with other defendants in this case to cause her to be defrauded of her property by the most clever means that could be contrived, where you cause a person or party to believe that you are giving them something when in fact you are taking it away.”
LaSalle demurred to the June 2008 complaint. LaSalle argued the complaint was uncertain, in that it failed to clearly state which causes of action were directed to which defendants. LaSalle additionally argued the conspiracy to defraud claim failed because the complaint did not allege a fraud claim against LaSalle. LaSalle further contended that even if the complaint’s first cause of action for fraud was read to apply to LaSalle, the complaint failed to state a claim. LaSalle asserted the complaint did not allege that LaSalle specifically engaged in any fraudulent activity, nor did it explain what false representations LaSalle purportedly made, or who at LaSalle made such representations.
On our own motion we take judicial notice of LaSalle’s demurrer in the June 2008-filed case, Harvey v. Tony Doe, et al. (Super. Ct. L.A. County, 2009, No. BC392305). We also take judicial notice of the trial court’s minute order. (Evid. Code, §§ 452, 459, subd. (d).)
In January 2009, the trial court sustained LaSalle’s demurrer to the June 2008 complaint, with leave to amend. The court explained its ruling in a minute order:
“Plaintiff alleges that La Salle Bank was the buyer of the Subject Property. Further, plaintiff alleges the trustee’s sale of the subject property was held on 5/5/08. Aside from those allegations, plaintiff has not alleged any specific wrongdoing by La Salle Bank. Plaintiff seeks to hold La Salle Bank liable for alleged conduct without pleading with the requisite particularity, and without setting forth any allegations of La Salle Bank’s liability.”
Harvey did not amend the June 2008 complaint as to LaSalle. In February 2009, the trial court dismissed the June 2008 complaint with prejudice as to LaSalle.
Harvey filed a new complaint against LaSalle in July 2009, alleging causes of action for wrongful foreclosure, negligent misrepresentation, fraud, breach of contract, conversion, intentional infliction of emotional distress, violation of Business and Professions Code section 17200, and promissory estoppel. The complaint sought declaratory relief, to quiet title, to vacate the trustee’s deed upon sale, and to vacate and set aside the foreclosure sale. In March 2010, Harvey filed a first amended complaint (the 2010 complaint). The 2010 complaint alleged a cause of action for slander of title/recording of defective documents, and further sought declaratory relief and to quiet tile. The 2010 complaint also named NDEx West, LLC (NDEx) as a defendant. According to documents attached to the complaint, in March 2008, NDEx was substituted in as the trustee of record under the trust deed.
The 2010 complaint alleged LaSalle and NDEx “mistakenly or knowingly” recorded a defective notice of default; LaSalle had not produced the “original wet ink unaltered promissory note” as Harvey requested; and LaSalle failed to comply with Civil Code section 2934a, subdivision (a)(2), regarding substitution of trustees. The complaint asserted that since LaSalle had not complied with the Civil Code provisions, NDEx was substituted as trustee incorrectly and “[a]ll the actions performed, executed and all other instruments recorded will be null and void and takes away [LaSalle’s] claim to ownership.” The complaint further claimed LaSalle and NDEx “committed slander of title by communicating with a third party and filing claims of interest in the public records.”
The complaint cites “California Civil Code § 2934a(a)(b)(2), ” which is an incorrect citation. However, the complaint quotes the provision it relies upon, which we recognize as Civil Code section 2934a, subdivision (a)(2).
LaSalle demurred to the 2010 complaint, arguing it was barred by res judicata and also failed to state a claim. Harvey’s opposition stated only that she “denie[d] the allegations” set forth in the demurrer.
In June 2010, the trial court sustained the demurrer without leave to amend. The court concluded its ruling on the demurrer to the June 2008 complaint was res judicata as to Harvey’s second action. The court further noted that the complaint’s claims were “not well stated because the matters subject to judicial notice demonstrate that a proper substitution of trustee was made.” In July 2010, the trial court dismissed the 2010 complaint with prejudice. Harvey timely appealed.
DISCUSSION
I. Arguments from Harvey’s Appellate Briefs
In an appeal, the reviewing court must presume that the trial court’s judgment is correct. The appellant must show error, or, in other words, that the trial court made a mistake. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) As a result, the appellant must assert that the trial court erred, and support each assertion with argument and legal authority. (EnPalm, LCC v. Teitler (2008) 162 Cal.App.4th 770, 775.) Even though our review of a trial court’s ruling on a demurrer is de novo, an appellant is still required to make an argument about why the ruling was in error. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078; Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564.)
As we understand the arguments in her briefs, Harvey first contends LaSalle’s demurrer was flawed because Harvey’s name was spelled out in all capital letters. Simply put, this was not improper and did not invalidate the demurrer.
Harvey further asserts that LaSalle “lack[ed] standing to sue on the claim, ” that one must bring suit against another using his or her “Christian name, ” and that the court lacked jurisdiction because LaSalle did not bring suit against her using her name. Irrespective of their substance, these arguments overlook the crucial fact that LaSalle did not sue Harvey. The arguments are therefore misplaced.
Harvey argues the trial court did not allow her due process but fails to explain the statement with any argument, relevant legal authorities, or citations to the record. Although Harvey states the court dismissed her case without giving her an opportunity to oppose, the record disproves the assertion in that it shows Harvey in fact opposed the demurrer. Harvey also contends the rules of court were not followed, but she cites only two court rules in her brief, California Rules of Court, rules 2.118 and 4.111. Rule 2.118 concerns the clerk of the court’s acceptance of papers for filing. Harvey’s argument with respect to this rule appears to be that the clerk should have rejected LaSalle’s demurrer because it did not “mirror the face of” Harvey’s July 2009 complaint. Harvey has not advanced any argument regarding the form of the demurrer that suggests it was invalid. Rule 4.111 concerns pretrial motions in criminal cases and is inapplicable to this case.
We also note that no reporter’s transcript of the hearing on the demurrer was included in the record.
Harvey states that LaSalle did not comply with Civil Code sections “2934a(a)(b)(2), ” “2934a(a)(1)(b), ” and “2924(F).” Similarly, in her reply brief, Harvey states that she is appealing because she has a valid claim. We understand that this was the allegation contained in Harvey’s complaint. However, on appeal, Harvey was required to do more than restate the complaint’s assertions. Instead, an appeal must demonstrate that the trial court erred in its decisions below.
In her reply brief, Harvey raises additional arguments but again fails to support her contentions with any discussion, legal argument, citations to the record, or citations to legal authorities. Nowhere in her appellate briefing does she address the substance of the trial court’s ruling. Even though Harvey wrote and filed her own briefs in propria persona, she must comply with the appellate rules of procedure, and more fundamentally, she must overcome the presumption that the trial court’s judgment is correct. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) She has not done so.
For example, Harvey includes a numbered list of statements, including: “Respondent failed to file a declaration as required under California Civil Code 2923.5 regarding satisfaction of the due diligence requirements”; and “Respondent failed under the Fair [D]ebt [C]ollections Act to verify the debt as required and Manded [sic] by Federal Law under 15 U.S.C[.] 1692(g)(4).”
II. Leave to Amend
At oral argument in this appeal, Harvey, through counsel, conceded that the trial court properly sustained the demurrer based on res judicata. However, for the first time Harvey argued she should have been granted leave to amend the 2010 complaint. Harvey contended she could amend her complaint to state claims for fraud and violation of the Real Estate Settlement Procedures Act (12 U.S.C. § 2601 et seq.; RESPA). We conclude Harvey has not demonstrated she can amend the 2010 complaint to state a viable claim.
It is an abuse of the trial court’s discretion to sustain a demurrer without leave to amend “if there is a reasonable possibility the plaintiff can amend the complaint to allege any cause of action. [Citation.] To prove such abuse of discretion, however, the plaintiff must demonstrate how the complaint can be amended. [Citation.] While such a showing can be made for the first time to the reviewing court [citation], it must be made.” (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)
“To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.] [¶] The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend. [Citations.]” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.)
Harvey has not made the necessary showing in this case. Specifically, she has not demonstrated how her complaint can be amended to avoid res judicata, at least with respect to a proposed fraud claim. “ ‘A judgment on a general demurrer will have the effect of a bar in a new action in which the complaint states the same facts which were held not to constitute a cause of action on the former demurrer or, notwithstanding differences in the facts alleged, when the ground on which the demurrer in the former action was sustained is equally applicable to the second one. [Citations.]’ [Citation.]” (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1428; Keidatz v. Albany (1952) 39 Cal.2d 826, 828 (Keidatz).)
Although at oral argument Harvey’s counsel asserted she could amend the complaint to state a claim, he also conceded the demurrer was properly sustained due to res judicata. Since Harvey’s June 2008 complaint asserted a fraud-based claim against LaSalle, and the judgment dismissing that complaint is the source of the res judicata, we fail to understand Harvey’s position that the 2010 complaint is barred by res judicata, but she may still state a claim for fraud.
At oral argument, Harvey’s counsel summarized the facts she would allege to plead a fraud claim as follows: Harvey’s loan papers were manipulated, the brokers and lenders involved created false income amounts and falsified her income, resulting in a mortgage payment she could not afford. These facts were the same as those pled in the June 2008 complaint. They do not describe specific fraudulent acts on the part of LaSalle. Harvey’s June 2008 complaint described LaSalle as the purchaser of the property at a foreclosure sale. The facts advanced at oral argument did not describe a theory that would explain how LaSalle could be held liable for fraudulent acts that took place at the time of the loan origination. Moreover, the 2010 complaint alleges no facts at all to support a fraud claim against LaSalle. Harvey has not advanced any new or additional facts that cure the defects in the June 2008 complaint. (Keidatz, supra, 39 Cal.2d at p. 828 [If “new or additional facts are alleged that cure the defect in the original pleading... the former judgment is not a bar to the subsequent action whether or not plaintiff had an opportunity to amend his complaint.”].) A claim based on the facts described to this court would be barred by res judicata. Harvey has not established she can amend her complaint to state a viable fraud claim against LaSalle.
The same is true with respect to a RESPA claim. RESPA was intended to “ ‘reduce the costs consumers pay to settle their real estate transactions.’ [Citation.]... Through RESPA, Congress sought ‘to effect certain changes in the settlement process for residential real estate that will result – [¶] (1) in more effective advance disclosure to home buyers and sellers of settlement costs; [and] [¶] (2) in the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services....’ ([12 U.S.C.] § 2601(b).)” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1475.) RESPA offers a variety of bases for a private civil action, but the 2010 complaint does not appear to allege any facts relevant to a RESPA claim. At oral argument, Harvey’s counsel did not identify the factual basis for a potential RESPA claim against LaSalle.
New Plumbing Contractors, Inc. v. Nationwide Mutual Ins. Co. (1992) 7 Cal.App.4th 1088, an insurance case, is instructive. As in this case, New Plumbing concerned a demurrer sustained without leave to amend. At the appellate oral argument, the plaintiff for the first time argued it could allege new causes of action based on unspecified facts different from those alleged in the existing complaint. The Court of Appeal concluded: “While the showing as to how the complaint may be amended need not be made to the trial court and can be made for the first time to the reviewing court [citation], [plaintiff’s] argument, raised for the first time at oral argument, is not adequate to justify our finding the trial court abused its discretion. New issues cannot generally be raised for the first time in oral argument. [Citation.] Furthermore, [plaintiff] has offered no authority demonstrating that these new causes of action are viable, nor did it offer any facts in support other than the conclusion [defendant] had mishandled the claim.” (Id. at p. 1098.) This reasoning is equally applicable here. (See also BFGC Architects Planners, Inc. v. Forcum/Mackey Construction, Inc. (2004) 119 Cal.App.4th 848, 854 [request for leave to amend asserted for the first time at oral argument was too late since not raised in the opening or reply brief].)
The trial court did not abuse its discretion in sustaining the demurrer without leave to amend. Harvey has not demonstrated how her complaint can be amended to state a viable claim.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur: RUBIN, J., FLIER, J.