Filed 4/30/18 Sanders v. PNC Bank CA4/38






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE


MARSHALL S. SANDERS et al.,

Plaintiffs and Appellants,

v.

PNC BANK N.A., et al.,

Defendants and Respondents.


G053551

(Super. Ct. No. 30-2014-00739868)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Affirmed.
Marshall S. Sanders and Lydia O. Sanders, in pro. per., for Plaintiffs and Appellants.
Wolfe & Wyman, Stuart B. Wolfe and Cathy L. Granger for Defendants and Respondents.

Marshall S. Sanders and Lydia O. Sanders appeal from a judgment in favor of defendants PNC Bank, N.A., doing business as PNC Mortgage (PNC), and Bank of America, N.A. However, Marshall Sanders’s opening brief, which is a virtual clone of an earlier opening brief we ordered stricken, is devoid of any statement of facts, cogent legal argument, or citations to the lengthy appellate record. The brief does contain an impressive table of contents, but unfortunately that table bears no relationship to the content of the brief itself.
Sanders’s opening brief fails even to acknowledge that the judgment he challenges was the product of a motion for summary judgment, let alone provide any analysis of why the trial court might have erred in granting that motion. Accordingly, Sanders has failed to meet his appellate burden, and we affirm the judgment.

FACTS AND PROCEDURE

The Sanders filed their complaint, alleging causes of action for violations of the Homeowner Bill of Rights (HBOR), unfair business practices, and fraudulent and negligent misrepresentation. The complaint alleged defendants engaged in misconduct in connection with efforts to foreclose on a deed of trust on a home owned by the Sanders. Specifically, the complaint alleged defendants engaged in efforts to foreclose while processing the Sanders’ application for a loan modification, and they willfully failed to provide the Sanders with accurate material disclosures and notices; thus, preventing the Sanders from curing their default and retaining their property.
PNC and Bank of America demurred to the complaint, but their demurrers were overruled. PNC and Bank of America answered the complaint, and a year later, they filed a motion for summary judgment.
The motion for summary judgment argued judgment should be entered in favor of PNC and Bank of America since: (1) the Sanders were not entitled to the protections of HBOR because the property at issue was not owner-occupied; and (2) there was no evidence defendants had engaged in any unlawful, unfair, or fraudulent acts, and no evidence the Sanders had relied to their detriment on any alleged statements or promises.
The court granted the motion for summary judgment. In its ruling, the court noted the Sanders had not submitted any evidence creating a triable issue of fact and had instead chosen to “argue that ‘this action is moot because [p]laintiffs have exercised their Truth-in-Lending Act (“TILA”) right of rescission, which was effective upon mailing by operation of law.’” The court explained that the argument failed because “‘[a] party may not oppose a summary judgment motion based on a claim, theory, or defense that is not alleged in the pleadings’ [citation], as the pleadings ‘“set the boundaries of the issues to be resolved at summary judgment.”’”
Following entry of the judgment, the Sanders appealed. However, their opening brief on appeal was so deficient that PNC and Bank of America successfully moved to have it stricken. In our order granting that motion, we explained that “[a]mong the defects in appellants’ opening brief are that it contains no citation to the record in support of factual assertions, no citation to legal authority, and [it] makes no pertinent or intelligible legal argument as to why the judgment should be reversed.” Our order granted the Sanders 15 days within which to file a proper opening brief.
Unfortunately, the Sanders’ second attempt at filing an opening brief was not a significant improvement. To the contrary, it was essentially the same brief we had already stricken, with the addition of an unintelligible opening section purporting to identify the “issue” presented. Still conspicuously missing from the opening brief was any statement of facts, any description of the proceedings below, or identification of the challenged ruling, and any cogent legal argument. The brief contains not a single citation to the six-volume clerk’s transcript provided to us.
Despite the obvious inadequacy of the second opening brief, PNC and Bank of America eschewed the filing of a second motion to strike, opting instead to rely on the further deficiency of the opening brief as a ground for affirming the judgment.

DISCUSSION

In his brief, Marshall Sanders contends the judgment should be reversed, but offers no clear claim of error. He initially suggests the court erred by refusing to allow further amendment of the complaint (albeit without identifying the nature of the complaint, or identifying any of its causes of action, and without pointing to any evidence that an amendment had ever been sought. He then claims the court lacked “both subject-matter and personal jurisdiction because the promissory note at issue had previously been rescinded under the Truth-in-Lending Act (‘TILA’).”
Sanders also contends, with some vehemence, that “[r]enting out one’s home does not negate owner occupancy, since the owner may return,” but he does not explain why that assertion is relevant. And while Sanders complains that this case is about two banks “ganging up” on his family in an effort to “fraudcloser” on two homes they own, he then states this case is “not about foreclosure.” Instead, Sanders claims this case is about how courts have become “a ‘tool’ misused under the cloak of color of law to throw people out of their homes where the banks are the ones stealing and not vice versa.” In his “Prayer for Relief,” Sanders asks that this case be remanded and that he and his wife be “permitted to amend their complaint, one last time,” although he does not describe what amendments they propose to make.
None of these conclusory and unsupported assertions, which are untethered to any of the specific claims alleged in the Sanders’ complaint or to any evidence presented below, warrant reversal of the judgment.
A judgment or order of the lower court is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to demonstrate the existence of reversible error. (San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 626.) That burden is significant because “‘[t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. . . . [E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’” (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523 (McComber).)
Moreover, an appellant’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record” (Cal. Rules of Court, rule 8.204(a)(2)(C)) and must “[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)). We may disregard the portions of an appellant’s brief in noncompliance with this rule. (Dominguez v. Financial Indemnity Co. (2010) 183 Cal.App.4th 388, 392, fn. 2.)
The Sanders’ decision to represent themselves in this appeal does not exempt them from these requirements. An appellant acting in propria persona has the same burden to affirmatively demonstrate reversible error as one who is represented by counsel; they are not entitled to any special treatment. (McComber, supra, 72 Cal.App.4th at p. 523; see Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 606.)
Given the paucity of factual support or legal analysis in Sanders’s opening brief, meaningful appellate review is impossible. Thus, we disregard the brief in its entirety and affirm the judgment. (McComber, supra, 72 Cal.App.4th at p. 522.)

DISPOSITION

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



IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.