Filed 7/28/22 American Express Bank v. Ezor CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, John Kralik, Judge. Affirmed.

Arthur Edward Ezor, in pro. per., for Defendant and Appellant.

Jaffe & Asher and Ray Mahdavi, for Plaintiffs and Respondents.

_____________________________________________

INTRODUCTION

Respondents American Express Bank, FSB and American Express Centurion Bank sued appellant Arthur Edward Ezor to collect on his delinquent credit card balances, and appellant filed a cross-complaint, asserting two claims of unfair debt collection practices. The trial court subsequently granted respondents’ motion for summary judgment on their claims and sustained their demurrer to the cross-complaint, granting leave to amend as to one of appellant’s claims. After appellant filed an amended cross-complaint, the court sustained respondents’ second demurrer without leave to amend. Appellant moved for reconsideration, but the trial court entered judgment while his motion was pending. The court later denied appellant’s motion to set aside the judgment.

In his briefs on appeal, appellant makes conclusory challenges to the trial court’s rulings. We conclude he has forfeited his contentions by failing to present meaningful arguments that the trial court reversibly erred, and that, in any event, his claims fail on the merits. We therefore affirm.

BACKGROUND

1. Respondents’ Complaint and Appellant’s Cross-Complaint

In 2017, respondents filed this action against appellant, asserting causes of action for common counts and quantum meruit, and seeking to collect on his delinquent credit card balances of about $67,000. Appellant filed a cross-complaint, asserting causes of action under (1) the federal Fair Debt Collection Practices Act (FDCPA; 15 U.S.C. § 1692 et seq.), and (2) the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act; Civ. Code, § 1788 et seq.). Under his FDCPA cross-claim, appellant alleged various illegal debt collection practices by respondents. In asserting his Rosenthal Act cross-claim, however, appellant included no specific allegations, instead purporting to incorporate all of the cross-complaint’s prior allegations.[1]

2. Respondents’ Demurrer and Motion for Summary Judgment

Respondents moved for summary judgment on their claims and demurred to the cross-complaint; appellant filed oppositions to both. Appellant’s opposition to the summary judgment motion was untimely and conclusory, pointing to his attached declaration and claiming that it raised triable issues regarding respondent’s unfair debt collection practices and the reasonableness of their charges. In his declaration, appellant claimed, inter alia, that respondents had lowered his credit limit without warning, and that although they had assured him the issue would be remedied, they proceeded to charge him unwarranted fees and interest. He admitted he stopped making the required payments on his credit cards at that time. Appellant’s separate statement in opposition consisted largely of purported objections, directed to the factual statements in respondents’ separate statement, rather than to the underlying evidence.[2] Where appellant stated that a matter asserted by respondents was disputed, he included no statement of the nature of the dispute.[3]

Following a hearing, the trial court granted summary judgment for respondents and sustained their demurrer. In granting summary judgment, the court found that respondents had established the elements of their claims, and that appellant’s conclusory arguments were insufficient to raise a triable issue.[4] Discussing appellant’s declaration, the court noted appellant’s concession that he had stopped making payments on his credit cards. The court overruled the objections in appellant’s separate statement, finding them procedurally improper.

Turning to respondents’ demurrer, the trial court sustained it as to appellant’s FDCPA cross-claim, without leave to amend, because the cross-complaint’s allegations established that respondents were original creditors, rather than debt collectors, and thus were not subject to the FDCPA. It sustained the demurrer as to the Rosenthal Act cross-claim, with leave to amend, because, among other things, the allegations were uncertain and did not contain a statement of the specific facts establishing the elements of the claim.

Following the trial court’s order sustaining the demurrer, appellant filed an amended cross-complaint that retained the FDCPA cross-claim, failed to amend the allegations regarding the Rosenthal Act cross-claim, and added three new cross-claims. Respondents demurred again, and the court sustained the demurrer without leave to amend.

3. Appellant’s Motions for Reconsideration and to Set Aside the Judgment

After the trial court sustained the demurrer to the amended cross-complaint, appellant filed a motion for reconsideration of that ruling. However, the court entered judgment before ruling on this motion expressly. Appellant then moved to set aside the judgment, arguing that it was void because it was entered prematurely. The court denied his motion to set aside, rejecting his claim that it was precluded from entering judgment while his motion for reconsideration was pending, and suggesting that its entry of judgment reflected its intent to deny the motion by implication.

DISCUSSION

On appeal, appellant purports to challenge the trial court’s grant of summary judgment for respondents and its ruling sustaining their second demurrer. We conclude that appellant has forfeited any claim of error. In his appellate briefs, appellant includes only conclusory assertions, providing neither meaningful argument nor authority in support of his contentions. He asserts: (1) “[respondents] offered no evidence to refute [the claims] in his Declaration” or “to contradict [his] cross-complaint allegations that [they] engaged in unfair debt practices”; (2) the trial court ignored his “valid objections”; and (3) by sustaining the second demurrer without leave to amend, the court “denied [him] his due process and equal protection rights to a trial on the merits.” In his opening brief’s statement of facts, appellant also claims that he was not served with two of the court’s minute orders, and suggests that the court should have granted his motion to set aside the judgment.

Appellant’s failure to present a reasoned argument in support of his claims constitutes forfeiture. (See WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [“In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record”].) Because appellant presents no cognizable claim of error, the trial court’s judgment must be affirmed.[5] (See Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 383 [judgment is presumed correct, and appellant has burden to affirmatively demonstrate error].)

Moreover, even if considered on their merits, appellant’s contentions fail to establish any reversible error by the trial court. We review a trial court’s grant of a summary judgment motion de novo. (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 76) “‘Summary judgment is appropriate only “where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.”’” (Ibid.) Also subject to de novo review is a court’s order sustaining a demurrer, but we review the court’s decision to withhold leave to amend for abuse of discretion. (Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495.)

It is undisputed that respondents established a prima facie case for their claims regarding appellant’s credit-card debt for purposes of their summary judgment motion. Thus, in opposing summary judgment, appellant had the burden to produce evidence establishing a triable issue of fact. (See Code Civ. Proc., § 437c, subd. (p)(1) [once plaintiff establishes elements of claim, burden shifts to defendant to show that triable issue of material fact exists].) In his declaration, appellant claimed that respondents had lowered his credit limit without notice, yet neither below nor on appeal does he point to any authority -- and we are aware of none -- suggesting that such notice was required, let alone that any failure to give sufficient notice could invalidate the cardholder’s debt. Contrary to appellant’s suggestion, respondents were not required to refute the allegations in his cross-complaint. (See ibid. [defendant “shall not rely upon the allegations . . . of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists”].) As for appellant’s purported evidentiary objections, the court properly overruled them after concluding they were procedurally improper, as they were not included in a separate filing and were directed to respondents’ factual statements, rather than to underlying evidence. (See Cal. Rules of Court, rule 3.1354(b) [evidentiary objections must be filed separately and identify evidence objected to].)

The trial court also properly sustained the demurrers to appellant’s FDCPA and Rosenthal Act cross-claims: the federal statute did not apply to respondents (see, e.g., Montgomery v. Huntington Bank (6th Cir. 2003) 346 F.3d 693, 698-699 [original creditor was not “debt collector” subject to liability under FDCPA]); and appellant’s claim under the state statute simply incorporated all prior allegations in his cross-complaint, rendering the essential facts underlying the claim uncertain (cf. Uhrich v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 605 [“chain letter” pleading, incorporating all prior paragraphs within each purported cause of action, creates ambiguity]; Cal-West Nat. Bank v. Superior Court (1986) 185 Cal.App.3d 96, 101 [plaintiff may incorporate by reference previous portions of pleading “for informational purposes only”]). We find no abuse of discretion in the trial court’s decision to withhold leave to amend these claims. Appellant has made no effort to show that he could amend his FDCPA claim, and he responded to the court’s initial grant of leave to amend his Rosenthal Act claim by refiling it without change. (See Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105, 112, fn. 8 [claimant has burden to show in what manner he or she can amend complaint].) Similarly, the trial court correctly sustained the demurrer as to the three cross-claims appellant had added without leave. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [when court sustains demurrer with leave to amend, plaintiff may amend complaint only as authorized by court’s order, and unless order states otherwise, leave is generally limited to amendment of claims to which demurrer was sustained].)

Additionally, appellant points to no evidence that he was not served with the relevant minute orders. Finally, the pending motion for reconsideration did not preclude the trial court from entering judgment. (See Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1483 [court’s entry of judgment while timely motion for reconsideration is pending divests it of jurisdiction to hear motion; court should avoid doing so, unless it intends to deny motion by implication].)

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.

[1] Appellant also filed an answer raising a number of affirmative defenses, including claims of unfair debt collection practices by respondents.

[2] Under California Rules of Court, rule 3.1354(b), evidentiary objections must be filed separately and must identify the specific evidence being challenged. (Ibid.)

[3] California Rules of Court, rule 3.1350(f)(2), requires that the separate statement in opposition state the nature of the dispute for each disputed matter. (Ibid.)

[4] The court noted that appellant’s opposition was untimely, but decided to consider it because respondents were able to file a timely reply.

[5] We observe that this court has discretion to deem the appeal abandoned and dismiss it, given appellant’s failure to raise any meaningful claim of reversible error. (See, e.g., In re Sade C. (1996) 13 Cal.4th 952, 994 [“A ‘reviewing court has inherent power, on motion or its own motion, to dismiss an appeal which it cannot or should not hear and determine.’ [Citation.] An appealed-from judgment or order is presumed correct. [Citation.] Hence, the appellant must make a challenge. In so doing, he must raise claims of reversible error or other defect [citation], and ‘present argument and authority on each point made’ [citations]. If he does not, he may, in the court’s discretion, be deemed to have abandoned his appeal”].) However, we decline to do so in this case, and instead affirm the judgment.