Opinion
NOT TO BE PUBLISHED
Appeal from judgments of the Superior Court of Orange County, Gregory H. Lewis, Judge. Super. Ct. No. 00CC05661
Sydney Warburton and Lisa Warburton, in pro. per., for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, Mary G. Whitaker and Christine M. Henricks for Defendants and Respondents Feldsott, Lee & Feinburg, Stanley Feldsott, Martin L. Lee, and Denise D. Iger.
Bremer, Whyte, Brown & O’Meara, Nicole Whyte, Monique R. Linson, and Everett L. Skillman for Defendants and Respondents Oxford Court Homeowners Association.
OPINION
O’LEARY, J.
Sydney and Lisa Warburton (the Warburtons) are returning to this court for a third time. In the first appeal, we affirmed the trial court’s denial of two anti-SLAPP (Code Civ. Proc., § 425.16) motions. (Warburton et al. v. Oxford Court Homeowners Association et al. (June 3, 2002, G028648) [nonpub. opn.] (Warburton I).) In our second opinion, we reviewed three summary judgments entered in favor of the Warburtons’ homeowners’ association, its management company, and its attorneys. (Warburton et al. v. Feldscott, Lee & Feinberg et al. (July 6, 2005, G033251) [nonpub. opn.] (Warburton II).) We affirmed the judgment, with the exception of the judgment entered on the malicious prosecution cause of action. We held a single claim must be remanded for further consideration in light of the legal principles announced in the then recent Supreme Court opinion Zamos v. Stroud (2004) 32 Cal.4th 958, 969-970 (Zamos). Although the defendants had provided sufficient evidence of probable cause to initiate their foreclosure action against the Warburtons, the Supreme Court determined in Zamos they were also required to establish probable cause existed to continue prosecution of the action.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
On remand, the court granted summary judgment motions regarding the malicious prosecution action. It entered judgment in favor of the law firm, the attorneys, the homeowners’ association, and the management company. The Warburtons’ motion for reconsideration was denied, and they appealed again.
As before, the Warburtons raise numerous contentions, many of which are difficult to decipher, but all appear to have the common goal of reviving their malicious prosecution cause of action. The Warburtons focus almost entirely on peripheral procedural challenges to the summary judgments. They believe the court lacked authority to consider and rule on the motions, warranting a reversal. In addition, the Warburtons opine the ruling was incorrect, but they utterly fail to offer any relevant legal analysis or cite facts in the record that would raise a triable issue of fact. We conclude the procedural contentions lack merit, and the court properly considered and ruled on the summary judgment motions. The judgments are affirmed.
I
Factual Background
A detailed summary of the facts is contained in our prior opinion and need not be repeated entirely again. (Warburton II, supra, G033251.) Suffice it to say, 13 years ago, the Warburtons discovered toxic mold in their Irvine condominium unit. When the Oxford Court Homeowners Association (Oxford) failed to remedy the situation to the Warburtons satisfaction, they stopped paying their association dues. Oxford and Professional Community Management of California, Inc. (the property manager), recorded a lien for the unpaid assessments and referred the matter to a law firm for collection.
The law firm, Feldsott, Lee, & Feinberg (the Feldsott Firm), requested payment of the association dues. In February 1999, it notified the Warburtons lien foreclosure proceedings would be initiated if they did not pay $1,672.10 (for delinquent assessments, late charges, attorney fees, and other miscellaneous costs). Over the next two months, the Warburtons sent the Feldsott Firm two checks totaling $800. In April, they sent the property manager an additional $1,267.09, and indicated “‘amount in dispute reserving all rights.’”
A few days after the April payment, the Feldsott Firm initiated a collection action to foreclose on the assessment lien. In early May, the Feldsott Firm claimed it first became aware of the April payment that had been sent to the property manager. However, they determined more money was owed (approximately $800) due to assessments, late fees, costs of collecting, and interest. On May 18, one of the firm’s partners (Martin Lee) recorded a notice of lis pendens. In June, a different partner, Denise Iger, unsuccessfully attempted to obtain a default judgment. In August, the firm propounded discovery and scheduled depositions. After receiving “multiple and disjointed responses to the discovery requests[,]” the defendants determined the costs of litigating the action against these particular self-represented litigants would be very high. They agreed it would be best to dismiss the action for economic reasons. In October 1999, the collection action was dismissed, and in November, the firm released the lien and lis pendens.
The Warburtons claimed they suffered substantial emotional and financial damage as a result of the unwarranted collection action, and filed a complaint alleging numerous causes of action against the Feldsott Firm, three law partners, Oxford, and the property manager. After amending their complaint several times, the Warburtons narrowed down the causes of action to abuse of process, malicious prosecution, harassment, and civil conspiracy. The court denied two anti-SLAPP motions. (An appeal was taken after the trial court’s denial of the second motion, and this court affirmed the ruling in Warburton I, supra, G028648.)
When the case returned to the trial court, it granted three summary judgment motions filed by the defendants. The Warburtons appealed the judgment, and this court held summary judgment would be entered in favor of the defendants “on all causes of action except the Warburtons’ malicious prosecution claim. . . . Because of Zamos, only the malicious prosecution action survives for the moment and, therefore, the matter is remanded to the trial court.” (Warburton II, supra, G033251.)
When the case returned again to the trial court, it granted two summary judgment motions. The defendants submitted additional evidence indicating that because money was owed, they had probable cause to both initiate and continue the action for the six months. The Warburtons responded the motions should be denied because: (1) there are triable issues of material fact; (2) collateral estoppel bars the motion; and (3) law of the case (based on this court’s prior appellate decision) prohibited a second shot at summary judgment motions. They filed declarations and exhibits, but failed to submit a timely separate statement of disputed facts. The court granted the motions and denied the Warburtons’ motion for reconsideration.
II
Discussion
We begin our discussion by observing it appears our prior words to the Warburtons fell on deaf ears. As we stated in the prior opinion, the reversal was due to a change in law and not because of anything the Warburtons put forth in their briefs. We reminded the Warburtons that resources do exist to assist self-represented litigants with the many legal and procedural challenges they face as they pursue their cases. We must assume the Warburtons failed to seek legal information and assistance because the record shows the Warburtons’ responses to the trial motions were replete with many of the same failings and mistakes. The briefing on appeal violates many basic rules of appellate procedure. It is impossible to tell where the statement of fact ends, and the legal arguments begin.
In any event, this court has done its best to identify the issues raised, and we will discuss only those arguments that are supported by at least some understandable legal analysis, authority, and citations to the record. All others we deem waived. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶¶ 9:1, 9:2, p. 9-1 [rules regarding form and content of appellate briefs]; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [waiver rule].)
A. Law of the Case
In our last opinion, we rejected the Warburtons’ many contentions based on the law of the case doctrine. In short, they incorrectly argued the prior pleadings and our first appellate decision barred any further motions on the malicious prosecution action. In this appeal, the Warburtons maintain our prior opinion reversing the summary judgment bars a second summary judgment motion. Again, they are wrong.
The Warburtons rely on Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 309 (Yu), but the case is factually distinguishable. In Yu, the plaintiffs sued for abuse of process and unlawful business practices in their debt collection action. (Id. at pp. 305-306.) The appellate court reversed the trial court’s grant of a summary judgment after concluding the plaintiffs had raised triable issues of fact as to those causes of action. (Id. at p. 306.) On remand, the court granted the defendants’ demurrer raising new arguments as to the same causes of action. (Id. at p. 308.) Once again, the appellate court reversed based on the law of the case doctrine. The appellate court concluded its prior decision conclusively determined those causes of action were facially valid. (Id. at p. 312.) It reasoned, “Litigants are not free to continually reinvent their position on legal issues that have been resolved against them by an appellate court. ‘It would be absurd that a party who has chosen not to argue a point on a first appeal should stand better as regards the law of the case than one who had argued and lost.’ [Citation.]” (Ibid.)
The Warburtons fail to appreciate the Yu defendants’ new arguments on remand were “not based on developments in the law.” (Yu, supra, 103 Cal.App.4th at p. 310.) This distinction makes all the difference here. As discussed briefly in Yu (the only part of the case not cited by the Warburtons), there exists a “subsequent developments exception to the law of the case doctrine.” (Id. at p. 311.)
If we had held in our prior opinion that the Warburtons raised a triable issue of fact regarding their malicious prosecution action, the law of the case doctrine certainly would have barred a subsequent summary judgment motion on remand. But, this was not the holding of our prior opinion. We never stated the Warburtons’ malicious prosecution action was viable. We did not find a single triable issue of fact. To the contrary, we agreed with the trial court there was no triable issue of fact as to whether the defendants initiated the foreclosure action with probable cause and without malice. Our reversal was based solely on a recent development in the law (Zamos), which in effect required the defendants to make a greater showing of probable cause regarding their continuation of the foreclosure action. And since the initial summary judgment motions, and trial court’s ruling, occurred before this change in law, it would have been unfair for this court to apply Zamos retroactively.
The Warburtons claim this court stated on page 10 of the prior opinion “‘that there was a triable issue of fact as to whether the “continuation” of the underlying action constituted malicious prosecution.’” (Warburton II, supra, G033251.) Such a statement is not contained on page 10 or on any other page of the prior opinion. We were dismayed to see such a blatant misrepresentation of our prior opinion.
In the final paragraph of our prior opinion, we observed the malicious prosecution action “survives for the moment.” It was anticipated the defendants would file new summary judgment motions and include additional facts in light of the requirements set forth by the new case law.Section 437c, subdivision (f)(2), provides a party may make a second motion for summary judgment “based on issues asserted in a prior motion for summary judgment” if the “party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” Such was the case here.
The Warburtons assert the defendants defrauded the trial court on remand by claiming they needed six months to prepare summary judgment briefs in accordance with the new case law. The Warburtons argue the defendants did not require additional time because the Zamos issue was briefed and argued on appeal. They suggest the defendants misled the court.
Giving the Warburtons the benefit of the doubt, we will assume their argument is premised on a misunderstanding of basic appellate process and their failure to comprehend the true purpose of a summary judgment motion. We recognize the parties were given an opportunity to discuss the legal ramifications of the Zamos opinion when the case was pending on appeal. Although a summary judgment motion would include a similar discussion of Zamos, it would also have to include legal analysis applying all relevant case authority (including Zamos) to the facts of the case, as well as proper documentation and presentation of the evidence supporting the motion. We are confident the court was not defrauded on this matter because it would have understood the difference between appellate briefing on a legal issue, and a summary judgment motion applying the law to the facts of the case.
B. Collateral Estoppel and Res Judicata
“‘Res judicata’ describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ [Citations.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) As discussed above, the prior opinion did hold the malicious prosecution action was viable. There was no final judgment on the merits concerning that claim. The matter was reversed and remanded for further proceedings in light of new case law. The doctrines of collateral estoppel and res judicata did not preclude the defendants from filing summary judgment motions based on a change in law.
C. The Warburtons’ Opposition to the Summary Judgment Motions
The Warburtons assert they filed three separate statements of material fact, which the court failed to consider. They fail to recount the entire story. When ruling on the matter, the court stated the Warburtons “utterly fail[ed] to submit a separate statement. [They] did file a document entitled plaintiffs’ statement in opposition to co-defendant’s second motion for summary judgment, however, the document seems to be a rehash of [the Warburtons’] opposition.” The court observed the Warburtons’ opposition raised relevant legal concepts, but they failed “to present argument and evidence to establish that defendants were unwarranted in continuing the prosecution of the underlying case.” Moreover, the court refused to rule on the Warburtons’ 25 pages of evidentiary objections, stating they failed to comply with California Rules of Court, rule 3.1354 and “fail[ed] to specify the grounds upon which [each] objection is based[.]”
Finally, the court noted it granted the Warburtons’ request for ex parte relief seeking a continuance. The court recounted that on the due date (April 5) the Warburtons “submitted some opposition papers, but then filed an abundance of untimely papers on April 7. [The Warburtons’] excuse was Mr. Warburton became ill while trying to complete the documents. Although the court is sympathetic to the [Warburtons’] various illnesses, the court also notes that [they] refuse to avail themselves of the many available resources to in pro. per., parties.”
We have reviewed the record, and agree with the trial court’s conclusions. In response to the summary judgment motions, and after being awarded a continuance, the Warburtons filed a lengthy “statement in opposition.” In the caption, the Warburtons listed the supporting documents as including several declarations, points and authorities, exhibits, evidentiary objections, and a “statement of undisputed facts.” However, nothing closely resembling an acceptable separate statement. (See Cal. Rules of Court, rule 3.1350(e)(f) [content, standard form, and presentation of separate statement]; § 437c, subd. (b)(3) [separate statement contents].)
Section 437c, subdivision (b)(3), clearly specifies, “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact . . . shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”
After the deadline for opposition had passed, the Warburtons filed nine additional documents, but none of them was a separate statement. It was not until two court days before the hearing, and on the same day the trial court posted its tentative ruling granting the summary judgment motions, that the Warburtons submitted a document that looked somewhat like a separate statement in opposition to the motions. But, this was too little, too late. The Warburtons fail to cite any legal authority to support their contention the court was required to consider these untimely filed documents. It would have been highly unfair to the moving parties to do so. The Warburtons had already been given a continuance to submit the proper documents in opposition to the motion.
In any event, the separate statement did not reveal anything the court had not already considered. The Warburtons’ separate statement contained a great deal of legal argument to “dispute” certain facts, but otherwise cited the same exhibits and declarations the court stated it reviewed independently before concluding there were no triable issues. As aptly noted by the trial court, “The only evidence [the Warburtons] present[ed was] self-serving declarations in which [they] state[d], ‘there was no money owed.’” It correctly determined the Warburtons failed to submit any properly authenticated documents indicating all the money owed was actually paid. Summary judgment was properly entered: There is no dispute the moving party met their burden of proof by presenting evidence money was owed, and they proceeded with the underlying lawsuit against the Warburtons with probable cause and without malice.
III
Disposition
The summary judgments are affirmed. The Warburtons’ April 27, 2007, request for judicial notice is denied, as the submitted documents were not required for resolution of this case. The Warburtons’ motion to correct the caption on the judgment in the superior court’s docket is denied. Respondents shall recover their costs on appeal.
WE CONCUR:
BEDSWORTH, ACTING P. J., ARONSON, J.