Rogers v. Wells Fargo Bank, N.A.

• Decision Date: 10 June 2015
• Docket Number: A141416
• Court: California Court of Appeals Court of Appeals
• Parties: LAURA ROGERS, Plaintiff and Appellant, v. WELLS FARGO BANK, N.A., Defendant and Respondent.

LAURA ROGERS, Plaintiff and Appellant, v. WELLS FARGO BANK, N.A., Defendant and Respondent.

A141416

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

June 10, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Contra Costa County Super. Ct. No. MSC1300953)

Plaintiff Laura Rogers appeals from the judgment of dismissal entered following the sustaining of a general demurrer to her first amended complaint. Plaintiff sued to prevent defendant Wells Fargo Bank, N.A. (Wells Fargo) from selling her property at a nonjudicial foreclosure sale after she defaulted on two loans secured by deeds of trust. We conclude the trial court correctly determined that each of her causes of action are legally deficient, and we affirm.

BACKGROUND AND PROCEDURAL HISTORY

I. Violations of Rules of Court

We first address the many flaws in plaintiff's briefing of her appeal. The Rules of Court require litigants to "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C), italics added.)¹ Thus, stating facts without providing any record cite, or citing to only a document rather than to a page, violates this rule. (See,e.g., Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 ["plaintiffs repeatedly cite to 170 pages of their motion to vacate without directing us to specific pages"]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990 ["Sections of the statement of facts in the appellant's opening brief include no record citations at all."].) When a litigant repeatedly provides no page citations to the record, the rule violation is "egregious[]," significantly burdening the opposing party and the court. (Evans v. Centerstone Development Co., at pp. 166-167.)

In this appeal, plaintiff submitted an opening brief totaling 52 pages that fails to include any meaningful page-specific citations to the record.² Instead, the brief provides "citations" such as "Complaint, ¶107, " or makes statements such as "[f]acts supporting Appellant's claims are set forth in the above-cited documents, i.e., the Complaint, FAC, and oppositions to Wells Fargo's first and second demurrers (above, which are incorporated herein by reference)"—asking this court to wade through nearly 300 pages without guidance. In short, plaintiff's briefing egregiously violates the Rules of Court and provides little help in analyzing the merits of her challenges to the judgment.

These violations appear to be part of a pattern. At oral argument in a prior case in this court, Sato v. Bank of America (Mar. 2, 2015, A138944) [nonpub. opn.] (Sato)), Andrew R. Martin—who signed the opening appellate brief here and presumably drafted it—attempted to excuse identical rule violations by claiming that Sato was his "first appellate case." In our unpublished opinion, we made the following observation: "To say counsel was being less than candid with the court is an understatement—this was an outright mistruth. A quick search, by State Bar number, of the dockets of the First District Court of Appeal, alone, showed 17 matters initiated between April 2009 and October 2014, some completed[,] some still active, in which Martin was at least one counsel of record. Thus, he has at least five-plus years of experience with appeals. Moreover, Martin has been on briefs submitted to this court in these other cases whichnot only suffer from similar defects, they predate the February 2014 opening brief in this case. For instance, the only record citation in the October 2013 opening brief in Jordon-Mendoza v. JPMorgan Chase Bank N.A. (A138304, app. pending) is in a footnote on page three, and it is to the entire complaint; nary a page cite is given. Even a 'first time' appellate lawyer is expected to read and comply with the Rules of Court. Martin's transgressions, as an experienced appellate lawyer, are inexcusable." (Sato, pp. *2-*3, fns. omitted.)

The consequences of these rule violations can be severe. "[I]t is counsel's duty to point out portions of the record that support the position taken on appeal," and "[t]he appellate court is not required to search the record on its own seeking error." (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768. Accordingly, "any point raised that lacks citation may, in this court's discretion, be deemed waived" or disregarded. (Ibid.; see also Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1267 ["To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation" but "[w]e are entitled to disregard such unsupported factual assertions"]; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 60 (Lueras) [rule applies in demurrer context]; Hernandez v. Vitamin Shoppe Industries Inc. (2009) 174 Cal.App.4th 1441, 1453 (Hernandez) [" ' " 'an appellate court may disregard any factual contention not supported by a proper citation to the record,' " ' " italics omitted]; Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 788 ["No record citation is given for this assertion, therefore we disregard it."].)

Plaintiff's 11-page "Introduction and Statement of Facts" section makes no reference to the clerk's transcript at all. For example, she states that the pooling and servicing agreement involved here "required each transaction to be a 'true sale' supported by a delivery and acceptance certificate from the receiving party, an endorsement of the Note and an assignment of the [deed of trust]." This assertion, like all the factual assertions in this portion of her brief, is unsupported by any citation to the record on appeal. The best she offers is a few citations to paragraphs of her complaint, again without any citation to where those paragraphs appear in the record. This does notcomply with the requirements of rule 8.204(a)(2)(C). (See State of California ex rel. Standard Elevator Co., Inc. v. West Bay Builders, Inc. (2011) 197 Cal.App.4th 963, 968 [failure to provide a statement of facts as required by rule 8.204(a)(2)(C)]; Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435-436, fn. 2 [party that provides inadequate statement of facts "cannot be heard to complain" that appellate court overlooked any material facts on review of summary judgment].)

The opening brief's argument sections are equally devoid of any references to the appellate record to support her factual assertions. Additionally, while she includes a table of contents and a table of authorities, her tables do not contain the page numbers showing where the titles and authorities appear in her brief.

When a party's brief fails to comply with the requirements of rule 8.204, the appellate court may decline to file it, return it for corrections, strike it with leave to file a new brief, or "[d]isregard the noncompliance." (Rule 8.204(e)(2)(A-C).) Plaintiff's current attorney, who submitted her reply brief, acknowledged the defects in the opening brief and stated that he would submit an application to file a corrected brief.³ He submitted his application too late, after the matter was set for argument. We have discretion pursuant to rule 8.204(e)(2)(B) to strike plaintiff's brief and order her to file an amended version that attempts to correct her errors. However, based on our review of her briefs and the record, we do not think doing so would change any of our conclusions about the merits of her appeal.

Given that not a single factual assertion in plaintiff's opening brief is supported in a manner that complies with the Rules of Court, we disregard these assertions and baseour understanding of the parties' dispute on the portions of the record correctly cited by Wells Fargo. In large part, this has not hampered our review of the merits of the judgment. However, as we discuss, the failure to provide proper record citations in connection with some issues has resulted in waiver of those issues on appeal. Further, Martin is again put on notice that we will consider imposing sanctions should he file any appellate brief in the future in this court bereft of proper citations to the record.

For these reasons, we conclude plaintiff does not meet her burden, as the appellant, of establishing that the trial court affirmatively erred in these rulings from which she properly appealed. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, we have performed our duty to independently examine the pleading to determine whether the facts alleged in plaintiff's first amended complaint state a cause of action under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) We conclude that they do not.

II. Alleged Facts

The operative pleading, plaintiff's 47-page verified first amended complaint (FAC), alleges the following causes of action: (1) declaratory relief, (2) breach of implied covenant of good faith and fair dealing, (3) deceit—promise made without intent to perform, (4) deceit—intentional misrepresentation, (5) fraud and deceit—suppression of material fact, (6) fraud and deceit—negligent misrepresentation, (7) promissory estoppel, and (8) violation of Business & Professions Code section 17200 et seq.

In 2004, plaintiff, a Marin County resident, purchased improved real property in Walnut Creek (the Property).⁴

In April 2007, plaintiff refinanced the property with a $1,982,500 loan from American Brokers Conduit (ABC). She signed a promissory note and a deed of trust encumbering the property. The deed of trust named Mortgage Electronic Registration Systems, Inc. (MERS) as beneficiary solely as nominee for the lender ABC, and its...