Vissuet v. Bank of Am., N.A., D063524
| Decision Date | 19 June 2014 |
| Docket Number | D063524 |
| Court | California Court of Appeals Court of Appeals |
| Parties | FRIDA VISSUET, Plaintiff and Appellant, v. BANK OF AMERICA, N.A. Defendant and Respondent. |
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2011-00096197-
CU-OR-CTL)
APPEAL from a judgment of the Superior Court of San Diego, William S. Dato, Judge. Affirmed.
Arizmendi Law Firm and Ruben F. Arizmendi for Plaintiff and Appellant.
Bryan Cave and Stuart Winston Price, Brendon K. Barton for Defendant and Respondent.
Plaintiff and Appellant Frida Vissuet appeals from a judgment on the pleadings in favor of defendant and respondent Bank of America, N.A. (Bank) on Vissuet's firstamended complaint asserting causes of action arising from her attempts to modify her real estate loan and the ensuing foreclosure of her home. Vissuet contends the trial court was biased and erred by granting judgment on the pleadings in Bank's favor and by denying her request for leave to file a second amended complaint. Vissuet asks us to review her second amended complaint de novo, presumably to assess whether she states viable causes of action. Because Vissuet has not met her appellate burden to overcome the presumption of correctness or demonstrate reversible error, we affirm the judgment.
In August 2011, Vissuet filed a complaint against Bank setting forth causes of action for "damages for intentional misrepresentation of fact," fraud and deceit, negligent misrepresentation, breach of the covenant of good faith and fair dealing, violation of Civil Code section 1572, and declaratory relief. In part, Vissuet alleged that in August 2007 she had obtained a loan with Countrywide Home Loans, Inc. in the amount of $540,000 for property located on Corral Canyon Road in Bonita, California, which loan was eventually assigned to BAC Home Loans Servicing, L.P. She alleged that inFebruary 2010, a notice of default was filed with a past due amount of over $42,000. Vissuet alleged that in October 2009, she retained an attorney to pursue a loan modification. In her complaint, Vissuet set out numerous conversations she had with Bank personnel between February 2010 and August 2011 regarding her eligibility for loan modification and postponement of the trustee's sale. At about the same time she filed her original complaint, Vissuet applied ex parte for a temporary restraining order enjoining Bank from conducting a trustee's sale.
In September 2011, Vissuet filed a first amended complaint including the same causes of action and adding causes of action for quiet title, negligent infliction of emotional distress, promissory estoppel and conspiracy. Vissuet alleged that Bank proceeded with the trustee's sale of her property on August 12, 2011, without notifying her of certain alternatives to foreclosure. She further alleged Bank sold the property below fair market value in order to "complicate" her lawsuit.
On September 30, 2011, Vissuet's counsel sought ex parte to consolidate Vissuet's action with an unlawful detainer action filed on August 18, 2011, by the purchaser of the property, Property Sales II, LLC. Bank answered the complaint in October 2011.
In November 2011, Vissuet applied ex parte to file an amended complaint. She asked for leave to add Property Sales II, LLC, and its principal, Joe Lyden, who assertedly purchased the property at the foreclosure sale and initiated the unlawful detainer proceeding. Vissuet also sought leave to add causes of action to set aside the trustee sale, cancel the trust deed, and enjoin the unlawful detainer action. The trial court ordered Vissuet to file a noticed motion regarding that proposed amendment.
Vissuet again moved to consolidate her action against Bank with the unlawful detainer action. She unsuccessfully attempted to shorten time on consolidation motions again in January and March 2012 and eventually filed her motion in April 2012.
Bank moved for judgment on the pleadings. In part, it argued Vissuet lacked standing because she had not tendered the amount of the secured debt; Vissuet did not meet the heightened pleading standard to allege fraud and her complaint on that point set forth only argumentative or conclusory allegations; Vissuet's claim of promissory estoppel was barred by the statute of frauds; Vissuet did not tie her allegations as to breach of the covenant of good faith and fair dealing to an express term of her promissory note; quiet title was not available because Vissuet's first amended complaint was unverified and she had not tendered payment of her debt; and Vissuet could not maintain a cause of action for negligent infliction of emotional distress because Bank did not owe Vissuet a duty of care, its actions in pursuing its rights under the trust deed were not extreme or outrageous, and Vissuet did not suffer extreme emotional distress. Bank submitted and sought judicial notice of an August 7, 2007 deed of trust; the February 5, 2010 notice of default; an assignment of the trust deed recorded on March 3, 2010; notices of trustee's sale recorded on May 12, 2010, and May 18, 2011; a trustee's deed upon sale recorded on August 26, 2011; a docket of Vissuet's Chapter 13 bankruptcy; and a summary of schedules filed with the bankruptcy court.
Vissuet purported to oppose the motion not by addressing Bank's arguments on the merits, but by lodging a proposed second amended complaint, the contents of which she claimed "satisfied" all of Bank's points. The second amended complaint purported toallege ten additional causes of action (causes of action 11 through 20) for "setting aside trustee sale," cancellation of the trust deed, negligence, quasi-contract, violation of section 2605 of title 12 of the United States Code, violation of section 1692 et seq. of title 15 of the United States Code, violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.), accounting, and "extortion" in violation of section 1951(b)(2) of title 18 of the United States Code.
In reply, Bank argued Vissuet's failure to oppose its motion was a concession that the claims of the first amended complaint lacked merit. It asked the court to grant its motion without giving Vissuet leave to file the second amended complaint, arguing the pleading did not cure the deficiencies raised by Bank's motion. Bank argued Vissuet's proposed amendments did not add any new facts so as to cure the first ten causes of action, and they did not change the legal effect of the causes of action raised in the first amended complaint. It further argued Vissuet's proposed second amended complaint was procedurally defective because she had not obtained the court's permission to file it. Bank finally argued Vissuet's proposed amendments were futile, her request for leave to amend was dilatory, and it would suffer prejudice if the court granted the request.
Judicially noticing all of Bank's exhibits, the court granted judgment on the pleadings in Bank's favor, ruling Vissuet's failure to oppose the motion constituted a concession of the first amended complaint's defects. It continued the hearing on thematter, however, to determine whether Vissuet should be granted leave to amend, and ordered her to file briefing on that question.2
About a month later, the court allowed Vissuet to substitute her proposed second amended complaint with a new second amended complaint. The verified substituted second amended complaint named both Bank and Property Sales II, LLC, as well as all persons claiming any legal or equitable right in the property, and set out causes of action for fraud-concealment (first cause of action), breach of the covenant of good faith and fair dealing (second cause of action), violation of the UCL (third and fourth causes of action), quiet title (fifth cause of action), and wrongful foreclosure (sixth cause of action). Vissuet submitted briefing as to why the complaint was sufficient to state those causes of action. Bank filed papers in reply.
The trial court denied Vissuet leave to amend her first amended complaint and granted judgment on the pleadings without leave to amend. The court thereafter entereda judgment of dismissal with prejudice in Bank's favor. Vissuet filed this appeal.3
Vissuet's appellate briefing compels us to begin by reviewing settled principles of appellate review. On appeal, a judgment or an order is presumed to be correct, and Vissuet as the party challenging the judgment or the order must affirmatively show error. (E.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) To meet this burden, Vissuet must provide cogent legal argument in support of her claims of error with citation to legal authority, as well as supporting references to the record. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C); Sims v. Department of Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1081; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 & fn. 2; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) If she does not do so, we may treat her point as waived or abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994; People v. Stanley (1995) 10 Cal.4th 764, 793; Sims, at p. 1081; Marriage ofFalcone, at p. 830; Berger, at pp. 1119-1120; Pringle, at p. 1003.) "An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument." (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873.) "One...
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