Opinion
A149978
09-21-2017
ANTHONY MALFATTI, Plaintiff and Appellant, v. MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG16808857)
Plaintiff Anthony Malfatti appeals from a judgment entered after the trial court sustained a demurrer without leave to amend. Malfatti's failure to provide this court with an adequate record precludes appellate review, so we dismiss the appeal.
BACKGROUND
We glean the gravamen of Malfatti's wrongful foreclosure action from the copy of the order sustaining the demurrer, filed in this court with the appellant's Civil Case Information Statement. The trial court sustained without leave to amend defendant Mortgage Electronic Registration Systems, Inc.'s (MERS) demurrer to Malfatti's causes of action for wrongful foreclosure and unfair business practices. From the court's written order, it appears that both causes of action were premised on a claim that MERS was not entitled to act as a nominee beneficiary, institute foreclosure proceedings, or otherwise exercise the lender's rights and interests under a note and deed of trust. The court took judicial notice of (1) the notice of default and election to sell and notice of trustee's sale; and (2) a complaint and dismissal filed in a federal action between the same parties. Based on the federal action, the court ruled that Malfatti's current lawsuit was barred by res judicata and collateral estoppel. The court also rejected Malfatti's various arguments that the securitization of the note was ineffective and MERS lacked standing to foreclose. Accordingly, it sustained the demurrer to the complaint in its entirety and without leave to amend.
Malfatti timely appealed the judgment of dismissal and elected to proceed by way of a clerk's transcript under California Rules of Court, rule 8.122. MERS, however, filed a timely election to use an appendix in lieu of a clerk's transcript under rule 8.124. "Unless the superior court orders otherwise on a motion served and filed within 10 days after the notice of election is served, [rule 8.124] governs if . . . (B) The respondent serves and files a notice in the superior court electing to use an appendix under this rule within 10 days after the notice of appeal is filed and no waiver for the fee for a clerk's transcript is granted to the appellant." (Rule 8.124 (a).) Malfatti did not oppose MERS's notice of election. (See rule 8.124 (a)). The superior court served on all parties a certificate that MERS had elected an appendix in lieu of a clerk's transcript and, accordingly, that "no further records will be forth coming from the Appellate Division of the Superior Court."
Further citations to rules are to the California Rules of Court. --------
Malfatti filed his opening brief on April 10, 2017, but filed no appendix. (See rule 8.124 (e)(2) [joint or appellant's appendix must be served and filed with appellant's opening brief"].)
DISCUSSION
Malfatti argues the trial court erred when it granted judicial notice, sustained the demurrer and denied leave to amend the complaint, but his failure to provide a record precludes us from considering whether these contentions have merit. " ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." [Citation]' [Citations.] 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
That is the case here. Without a record that includes even the basic documents central to this appeal such as the complaint the court found failed to state a claim or the judicially noticed documents, we have no ability to assess the court's rulings on the demurrer or the requests for judicial notice. Dismissal is therefore required. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 739, p. 806 ["The reviewing court has inherent power, on the motion of a party or on its own motion, to dismiss an appeal that it cannot or should not hear and determine"].)
As a final matter, we note that MERS, but not Malfatti, requested oral argument in response to a notice sent by the court's clerk, as a matter of course, when an appeal is fully briefed. A party's right to oral argument exists in any appeal considered on the merits and decided by written opinion. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871; accord Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1255.) Because we dismiss this appeal without reaching the merits there is no right to oral argument, which we consider to be unnecessary.
DISPOSITION
The appeal is dismissed.
/s/_________
Siggins, J. We concur: /s/_________
Pollak, Acting P.J. /s/_________
Jenkins, J.