Filed 7/13/22 Fuentes v. Western Progressive CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

After sustaining a demurrer brought by PHH Mortgage Corporation (for itself and as successor by merger to Ocwen Loan Servicing, LLC), Deutsche Bank National Trust Company, as Trustee for the Indymac INDA Mortgage Loan Trust 2007‑AR2, Mortgage Pass‑Through Certificates, Series 2007‑AR2, Mortgage Electronic Registration Systems, Inc., and Western Progressive, LLC (respondents) to a complaint filed by appellants Ramon Rodriguez Fuentes and Letisia Macias Fuentes, the trial court dismissed that complaint with prejudice on September 23, 2020. The trial court subsequently granted respondents’ motion to have the Fuenteses declared vexatious litigants in a written order dated January 22, 2021 and then entered a corresponding prefiling order on January 29, 2021 (collectively “the vexatious litigant orders”).

On August 17, 2021, this court granted Ramon Fuentes leave to file an appeal from the “January 22, 2021, and January 29, 2021 orders.”[1] Ramon filed a notice of appeal on September 9, 2021, purporting to appeal from the September 23, 2020 order of dismissal.

On September 17, 2021, this court issued an order noting that our August 17, 2021 order gave Ramon permission to file a notice of appeal from the vexatious litigant orders, not the September 23, 2020 order. Because Ramon did not seek leave to appeal that order and failed to show that an appeal of that order has merit, “[t]his appeal will proceed as to the January 22, 2021, and January 29, 2021 orders only.”

Ramon, representing himself, has filed an opening brief on appeal which raises a number of issues relating to the merits of his action against respondents, but only briefly mentions the vexatious litigant orders.

For the reasons explained below, we will affirm the vexatious litigant orders.

I. Factual and Procedural Background

We derive the facts and procedure, as best as we are able, from the limited record provided on appeal.

The Fuenteses filed the underlying complaint against respondents on January 3, 2020, alleging causes of action for: (1) breach of contract, (2) wrongful foreclosure, (3) fraud and conspiracy to commit fraud, (4) conversion/trover, (5) breach of good faith, (6) slander of title, (7) intentional infliction of emotional distress, and (8) obstructing due process. Respondents’ demurrer, apparently unopposed, was sustained with leave to amend on August 21, 2020. After the Fuenteses failed to timely amend the complaint, the trial court dismissed the complaint with prejudice on September 21, 2020.

On November 2, 2020, respondents moved to have the Fuenteses declared vexatious litigants and for imposition of a prefiling order. According to the motion, “Since filing this action in January 2020, Plaintiffs have filed and continued to file numerous frivolous papers, despite the fact that the Court entered an order dismissing the case with prejudice on or about September 21, 2020. Nearly all of Plaintiffs’ filings fail to comply with the California [R]ules of [C]ourt, Code of Civil Procedure, or Civil Code. For example, Plaintiffs sought to default Defendants while their demurrer was pending, moved to compel discovery responses despite having received responses and without first meeting and conferring, and continue to refuse to withdraw the lis pendens they recorded in connection with the litigation. Since the Court dismissed the case, Plaintiffs have filed various improper papers, including papers falsely claiming that Defendants’ counsel is a defendant in this action, and noticed a motion to strike what appears to be Defendants’ proposed order on the motion to expunge the lis pendens. Absent intervention from this Court, Plaintiffs will continue their abusive filing practices, and waste the time and judicial resources of the Court, the public, and Defendants.”

The Fuenteses moved to strike respondents’ motion, then filed a response in which they argued that, among other things, they could not be found vexatious litigants because they have been engaged in legitimate efforts to “adjudicat[e] [their] rights to prove there is no bona fide contract which is enforceable in the Bank’s foreclosure attempts by reason that there is no lawful consideration in existence to support enforcement of the contract Deed of Trust Agreement.” The Fuenteses also appeared to argue that the vexatious litigant designation can only apply to proceedings under the Family Code or the Probate Code, citing Code of Civil Procedure section 391.7, subdivision (d), which states: “For purposes of this section, ‘litigation’ includes any petition, application, or motion other than a discovery motion, in a proceeding under the Family Code or Probate Code, for any order.”

On January 20, 2021, the trial court granted respondents’ motion.[2] The written order declaring the Fuenteses vexatious litigants was filed on January 22, 2021, and the prefiling order followed on January 29, 2021.

As discussed above, by written order dated August 17, 2021, this court granted leave for Ramon to file an appeal from the vexatious litigant orders.

II. Discussion

In his opening brief, Ramon does not address why this court should reverse the vexatious litigant orders. Instead, most of his brief appears to argue that, for various reasons, respondents should be deemed to have defaulted below. According to Ramon, respondents: (1) failed to arbitrate their dispute; (2) failed to respond to his discovery demands or qualified written requests;^[3] and (3) failed to “perfect” their interest in the applicable deed of trust. Ramon also argues that the trial court erred by dismissing his complaint and that respondents have committed fraud in connection with the mortgage loan and foreclosure process. The only reference to the vexatious litigant orders in his briefing can be found at page 19 of his opening brief where he writes “Not making ‘in person’ appearances in court is not just cause for labeling the plaintiff as a vexatious litigator. Furthermore, it was prejudicial for the court to grant the defendant’s motion to label the plaintiff as a vexatious pro se litigant based on the above facts he revealed, etc., and not to rule on his previous Motion to Strike.”[4] None of these issues, however, are germane to this appeal.

As a general rule, “ ‘[a] judgment or order of the lower court is presumed correct [with] [a]ll intendments and presumptions . . . indulged to support it on matters as to which the record is silent.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) We will not reverse the lower court unless the appellant affirmatively demonstrates error on the record before the court. (Ibid.) Furthermore, “[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) On appeal “the party asserting trial court error may not . . . rest on the bare assertion of error but must present argument and legal authority on each point raised.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649.)

An appellate court has no obligation to “develop the appellants’ arguments for them.” (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) As one court has explained, “We are not required to make an independent, unassisted study of the record in search of error or grounds to challenge a trial court’s action. . . . When a brief fails to contain a legal argument with citation of authorities on the points made, we may ‘treat any claimed error in the decision of the court . . . as waived or abandoned.’ ” (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.)

Although Ramon is self‑represented, this does not exempt him from compliance with the general rules set forth above. A party who acts as his own attorney “ ‘is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247 [self‑represented litigants obligated to make intelligible argument supported by citation to record and legal authority].) Ramon does not provide record cites, discernible argument, or supporting legal authority to demonstrate his claims that we should reverse the vexatious litigant orders.

As appellant, Ramon bears the burden of showing that there was no substantial evidence to support the findings of the trial court under the vexatious litigant statute. (See Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) He has failed to meet his burden of demonstrating error. He has (1) not complied with the requirements for the content of briefs, (2) failed to include any citations to the appellate record, (3) cited to matters outside the record, (4) failed to provide any legal authorities which relate to appellate review of vexatious litigant orders, and (5) made general contentions, including undeveloped assertions of error.

III. Disposition

The January 22, 2021 and January 29, 2021 orders are affirmed. Respondents shall recover their costs on appeal.

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Wilson, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

______________________________________

Danner, J.

Fuentes v. Western Progressive, LLC et al.

H048844

[1] Letisia Fuentes did not seek permission to file new litigation and is thus not a party to this appeal. For clarity’s sake, we henceforth refer to Ramon Fuentes as Ramon individually.

[2] The minute order for the January 20, 2021 hearing noted that the Fuenteses did not appear and also that the court did not receive any “notice of opposition to the tentative ruling posted on the court’s website.”

[3] Pursuant to 12 United States Code section 2605(e), servicers of certain real estate loans are obligated to respond to qualified written requests from the borrower. The term qualified written request is defined by 12 United States Code section 2605(e)(1)(B).

[4] Ramon’s reply brief includes more lengthy mentions of the vexatious litigant orders. Assuming that these amount to an effort to explain why the vexatious litigant orders should be reversed on appeal, we do not consider points raised for the first time in a reply brief, absent a showing of good cause. (People v. Mickel (2016) 2 Cal.5th 181, 197; Varjabedian v. Madera (1977) 20 Cal.3d 285, 295, fn. 11.) No such showing has been made here.