Opinion
C087801
01-03-2020
PETR ANDRICHUK et al., Plaintiffs and Appellants, v. CLEAR RECON CORP, Defendant and Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV0039327)
In this postforeclosure action, plaintiffs Petr and Maria Andrichuk appeal from the judgment of dismissal entered after the trial court sustained without leave to amend defendant Clear Recon Corporation's (CRC) demurrer to their latest pleading. We affirm the judgment.
PROCEDURAL BACKGROUND
We dispense with a recitation of the facts alleged in the operative pleading as they are unnecessary to the resolution of this appeal. Instead, we briefly summarize the relevant procedural history of the case.
In September 2017, plaintiffs filed a first amended complaint (FAC), which alleges three causes of action against CRC: (1) wrongful foreclosure; (2) unfair or deceptive business practices in violation of Business and Professions Code section 17200 et seq. (commonly known as the unfair competition law); and (3) fraud by deceit. In July 2018, the trial court sustained without leave to amend CRC's demurrer to the FAC. After the judgment of dismissal was entered, plaintiffs filed a timely notice of appeal.
DISCUSSION
We review an order sustaining a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1469.) "[W]e accept the truth of material facts properly pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact or law." (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We may also consider documents attached to the complaint and matters subject to judicial notice. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400.)
"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
All of that said, we do not independently review the court's ruling in search of error. "The fact that we examine the complaint de novo does not mean that plaintiffs need only tender the complaint and hope we can discern a cause of action. It is plaintiffs' burden to show either that the demurrer was sustained erroneously or that the trial court's denial of leave to amend was an abuse of discretion." (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655 (Keyes).) It is a fundamental rule of appellate practice that "the trial court's judgment is presumed to be correct, and the appellant has the burden to prove otherwise by presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record . . . ." (Ibid.) We are not required to supply arguments or examine undeveloped claims. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.) "When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration." (Ibid.; see Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 ["The dearth of true legal analysis in her appellate briefs amounts to a waiver of the [contention] and we treat it as such."]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [contention was deemed waived because "[a]ppellant did not formulate a coherent legal argument nor did she cite any supporting authority"]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 ["When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary."].)
We conclude that plaintiffs have failed to meet their burden to establish the demurrer was sustained erroneously. As an initial matter, we note that plaintiffs' opening brief violates the rule that an appellant's brief must provide "a summary of the significant facts" relevant to the issues raised in the case. (Cal. Rules of Court, rule 8.204(a)(2)(C).) Plaintiffs make no effort to summarize the pertinent facts supporting their contentions on appeal. Indeed, their opening brief contains neither a background section apprising us of the relevant facts alleged in the FAC nor a procedural history of this case. In addition, plaintiffs have violated the rule that requires an appellant to present legal authority and factual analysis on each point made supported by appropriate citations to material facts in the record. (Keyes, supra, 189 Cal.App.4th at p. 655; see Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) For example, under the heading—"Plaintiffs Sufficiently Pleaded Their Causes of Action in Their FAC"—plaintiffs failed to identify the specific causes of action alleged against CRC, present the elements of each cause of action, and provide legal argument as to each cause of action with citations to facts alleged in the FAC. Similarly, while plaintiffs' opening brief argues that the trial court erred in concluding that they lacked standing to assert their causes of action (including a cause of action for wrongful foreclosure), they failed to support this argument with any meaningful legal analysis and appropriate citations to facts in the FAC. Plaintiffs have also failed to present coherent legal arguments supported by authority showing that reversal is required because the trial court erroneously accepted as true hearsay statements contained in recorded documents or because they sufficiently alleged "misconduct and malice."
Plaintiffs have not filed a reply brief.
We note that this is the second appeal taken from a judgment entered in the underlying action. The first appeal involved defendants Bank of America, N.A., Mortgage Electronic Registration Systems, Inc., and Recontrust Company, N.A. (Andrichuk et al. v. Bank of America, N.A., et al. (May 3, 2019, C086671) [nonpub. opn.].) Both appeals were filed after the trial court sustained a demurrer to the FAC without leave to amend. To the extent plaintiffs raise the same arguments we addressed in the first appeal, we reject those arguments for the reasons stated in our opinion disposing of that appeal. (See Andrichuk et al. v. Bank of America, N.A., et al., supra, C086671.)
Finally, we conclude that plaintiffs have not met their burden to demonstrate the trial court erred in denying leave to amend. Plaintiffs have made no effort to show that they can amend the FAC to state a viable cause of action. Accordingly, the trial court did not abuse its discretion in sustaining CRC's demurrer without leave to amend.
DISPOSITION
The judgment is affirmed. CRC shall recover its costs of appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
/s/_________
Butz, J. We concur: /s/_________
Robie, Acting P.J. /s/_________
Hoch, J.