Jones v. Serrato

Filed 8/24/07 Jones v. Serrato CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Defendant Sophie Serrato appeals from a judgment in favor of plaintiff Marlene Jones on Consumer Legal Remedies Act and fraud claims. We affirm.

Factual and Procedural Background

Under rule 8.204(a)(1)(C) of the California Rules of Court, both parties were obligated in their briefs 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. Both parties have violated this rule by submitting briefs with precious few citations to the clerks and reporters transcripts.[1] Fortunately, the trial court filed a detailed and well-reasoned statement of decision, and we rely on that document in summarizing the background to this case. As we must presume that the record contains evidence to support every trial court finding of fact (Trailer Train Co. v. State Bd. Of Equalization (1986) 180 Cal.App.3d 565, 587), the parties, having failed to support their characterizations of the facts, cannot be heard to complain of our reliance on the trial courts statement of decision.

Factual Background

In May 2000, plaintiff Marlene Jones and her husband Clifford Jones lived in a house on Ashby Avenue in Berkeley. They had recently separated, and Mr. Jones was residing at the property. The Joneses were having difficulty maintaining payments on first and second mortgages of $178,000 and $44,000. The Joneses decided to sell their home and listed it with a broker for $260,000.

In July 2000, Mr. Jones met with defendant Serrato to seek assistance avoiding foreclosure while awaiting sale of the house. Serrato was a law school graduate but was never licensed to practice law. Under the name Home Equity Line Plan (HELP), she provided foreclosure prevention services. Serrato also did business as California Community Mortgage Company and she was employed by Top Shelf Publishing, which did business as X-tra Money Mortgage. Serratos son was the sole shareholder of Top Shelf Publishing.

Serrato told Mr. Jones that she could help obtain refinancing or, if refinancing was unavailable, help him avoid foreclosure by renegotiating the loans and obtaining forebearance agreements. Based on information supplied by Mr. Jones, Serrato purported to apply for a loan on his behalf and the next day she advised him that his loan application had been rejected. Mr. Jones agreed to retain Serrato for her foreclosure prevention services and signed a contract under which he agreed to pay $650 for Serratos assistance.

Plaintiff Marlene Jones met with Serrato, and Serrato described at length the services offered under the HELP program. Marlene Jones paid Serrato $650 and received a receipt in her name. In subsequent contacts with the lenders, Serrato held herself out as representing both Mr. and Mrs. Jones.

In August 2000, on Serratos suggestion, the Joneses listed their home for sale with a broker affiliated with X-tra Money Mortgage. The goal was to market the house aggressively so as to accomplish a quick sale at a price that would allow the mortgages to be paid off. Although the Joneses signed the new listing agreement in early August, their home was not listed on the multiple listing service until August 30.

In late August, Serrato discussed with the Joneses the fact that the house was not selling and the continued burden of the mortgage payments. Serrato recommended investing money in the property to improve the chances of a quick sale, but the Joneses could not afford to do so. Serrato told the Joneses that if she could acquire the property at little or no cost, her company could afford to make improvements that would allow for a re-sale at a price that would clear the mortgages and cover the improvements. She told them that she saw no other way for them to clear the debt on the property.

Serrato prepared a purchase contract which provided that the buyer, X-tra Money Mortgage, would cure the default on the property and pay all mortgage liens[,] all arrears [and] all closing costs. These covenants were critical inducements to the Joneses, who by this time wanted to be free of the financial burden of the mortgages and to avoid further damage to their credit. The Joneses sold their home to X-tra Money Mortgage for $10.00.

X-tra Money Mortgage did not immediately record the deed reflecting the purchase of the property. Neither did it cure the existing defaults, pay off the mortgages, or make further mortgage payments as they came due. Serrato continued to try to renegotiate the mortgages. She held herself out as acting on behalf of the Joneses but any benefit, such as a lenders agreement to accept less than full payment, would be enjoyed by Serrato or X-tra Money Mortgage.

In late October 2000, the Joneses received a notice of default indicating that one or both mortgages had not been paid off and that one or both lenders might institute foreclosure proceedings. A different foreclosure consultant informed them that the deed transferring the house to X-tra Money Mortgage had not been recorded and that they might still be able to transfer the property to another buyer. The consultant arranged a sale to Golden Lion Investment & Management Corporation, which recorded the deed in December 2000. X-tra Money Mortgage subsequently attempted to record its deed. Ultimately, X-tra Money Mortgage transferred title to Serratos son and, after Golden Lion quitclaimed any interest, a chain of title to Serratos son was established.

Procedural Background

Marlene Jones filed this action in July 2001 and subsequently filed an amended complaint against Serrato, X-tra Money Mortgage, and others. She asserted claims against Serrato for violation of the Consumer Legal Remedies Act (CLRA) and infliction of emotional distress. Serrato filed a cross-complaint against Marlene and Clifford Jones, and others. Subsequently, Clifford Jones filed his own cross-complaint against Serrato and X-tra Money Mortgage.

Following a bench trial, at the close of plaintiff Marlene Jones case, she amended her complaint to add three new causes of action to conform to the proof at trial: (1) intentional misrepresentation; (2) fraud; and (3) negligence. The trial court found that Serrato violated the CLRA by holding herself out as a doctor of jurisprudence and by misrepresenting the utility of the HELP services. The court found that she was advertising her HELP services as a means of attracting people such as the [Joneses] and establishing a relationship with them so that she could thereafter obtain a listing agreement from them or purchase their property on distress sale terms. The court awarded plaintiff Marlene Jones $650 in damages, the amount of the fee paid to Serrato. On the fraud claim, the trial court awarded Jones $9,000 in damages, plus $7,000 for emotional distress.[2] The trial court also awarded $10,000 in punitive damages, to be divided between plaintiff and her husband. The trial court rejected the claims in defendants cross-complaint. Subsequently, the court awarded plaintiff attorney fees on the CLRA claim in the amount of $114,250.

Discussion

Appellant Serratos briefs on appeal are difficult to comprehend and lack citations to the record and appropriate legal authority. Further, she fails to acknowledge the findings made by the trial court and to identify any errors in those findings. Our analytic approach to her appeal is dictated by the bedrock proposition that all intendments and presumptions are indulged in favor of the correctness of the trial courts judgment. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) A reviewing court must presume that the record contains evidence to support every trial court finding of fact, and an appellant which contends that some particular finding is not supported must set forth in its brief a summary of the material evidence on that issue. Unless the appellant does so, the error assigned is deemed to be waived. The appellant must state fully, with transcript references, the evidence that it claims to be insufficient to support the trial courts findings. (Trailer Train Co. v. State Bd. Of Equalization, supra, 180 Cal.App.3d at pp. 587-588.)

We are not obligated to ferret through the record looking for evidence to support appellants contentions (Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 877; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856), and we treat as waived all arguments not supported by reasoned argument and citation of authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Serrato is not exempt from the rules because she is representing herself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] [S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) We now turn to Serratos contentions, each of which merits little discussion.

Serrato contends that the punitive damages award is excessive. The punitive damages award is only $10,000, which is less than the damages award on the fraud claim. The trial court found that Serratos conduct was malicious, fraudulent and oppressive and considered her limited means in determining the size of the award. Serrato inflates the size of the award by treating the attorney fees award as part of the punitive damages. But Serrato cites no authority supporting the proposition that the fees should be treated as punitive damages, and she makes no reasoned argument that the amount awarded as fees is unreasonable. The court did not err.

Serrato has waived any contention that the trial court violated her free speech rights by finding a violation of the CLRA based in part on her representing herself as a doctor of jurisprudence. The argument is not supported by reasoned argument and citation to authority.

Serrato contends that the trial court erred in awarding damages to plaintiff Jones under the CLRA because only Mr. Jones signed the HELP contract. The court found that plaintiff reasonably understood defendant (through her dba HELP) to be representing both plaintiff and her husband in efforts to keep the Property out of foreclosure and that plaintiff was her client for these services. . . . This finding was based on the evidence of a July 28, 2000, meeting between plaintiff Jones and Serrato, during which Serrato explained the HELP services and at the conclusion of which Jones paid Serrato the $650 fee, subsequently receiving a receipt in her name. Moreover, Serrato held herself out as representing both Mr. and Mrs. Jones in her dealings with the lenders. The court concluded that the July 28 meeting resulted in the sale of services to a consumer as those terms are defined in the CLRA. Serrato fails to identify any error in the trial courts reliance on the July 28 transaction, regardless of whether plaintiff Jones signed the HELP contract.

Serrato contends that the trial court erred in making an award based on the agreement to provide HELP services because the agreement was fully performed when Serrato reached a forebearance agreement with one of the lenders. However, the trial court did not believe Serratos testimony that she attempted to renegotiate the loan before the Fall of 2000, and we defer to the courts credibility determinations. (Warren v. Merrill (2006) 143 Cal.App.4th 96, 109.) Moreover, the testimony does not describe any agreement with respect to the first and larger mortgage of approximately $178,000. In any event, the CLRA violation is based on Serratos misrepresentations regarding the HELP program, and vague testimony about an agreement reached with one lender fails to undermine the trial courts findings regarding the various misrepresentations.

Serrato contends that the trial court erred in holding her personally liable for wrongful acts of a corporation, X-tra Money Mortgage. The argument is misplaced. The trial court based liability on its finding that Serrato personally misrepresented the amounts of the outstanding mortgage balances in order to induce the [Joneses] to sell the Property to her for nominal consideration, and the [Joneses] in fact sold the Property in reliance on those representations. The court recognized the distinction between individual and corporate acts, and rejected imposition of liability on Serrato for other acts. Thus, with respect to the negligence claim based on the failure of X-tra Money Mortgage to diligently market the property, the court stated [t]he problem with this claim . . . is that the listing agreement was with defendants company . . . and not with her personally. As an officer or agent of X-tra she is not personally liable for the companys breach of duty. Serrato fails to show that the trial court held her liable for any corporate acts.[3]

Serrato contends that in selling their home to X-tra Money Mortgage, the Joneses violated Civil Code section 1102 et seq. by failing to disclose various defects in the property. However, she fails to identify any error in the trial courts stated reasons for rejecting this claim. Among other things, the trial court found that Serrato failed to prove that there were any undisclosed defects. The trial court also rejected any claim based on the Joneses failure to disclose a third deed of trust, reflecting a debt to Mr. Jones mother. The court found that defendant had presented no evidence of damages suffered as a result of that nondisclosure. Serrato does not challenge that finding on appeal.

Finally, Serrato contends that plaintiff Jones did not notify her of the particular alleged violations of the CLRA (Civil Code section 1782, subdivision (a)) before filing suit, and that Jones did not file with the complaint an affidavit stating facts showing that the action has been commenced in a county described in this section as a proper place for the trial of the action (Civil Code section 1780, subdivision (c)).[4] Jones points out in her respondents brief that Serrato fails to point to where in the record this issue was raised and dealt with by the court below, and therefore where the court erred or abused its discretion. Serratos reply brief does not show that the arguments were raised below. Neither are Serratos contentions addressed in the trial courts extremely thorough statement of decision.[5] In these circumstances, evidence that these issues were raised below is part of Serratos burden of showing reversible error. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.) We conclude the contentions have been waived because there is no evidence they were presented to the trial court. (Honig v. San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 530.)

Disposition

The trial court judgment is affirmed.

GEMELLO, J.

We concur.

SIMONS, Acting P.J.

NEEDHAM, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] Because both parties have violated the rule, we deny appellant Serratos March 26, 2007, motion to strike the statement of facts in Jones brief. We refrain from striking both briefs in order to resolve the litigation for the parties.

[2] The court also awarded Mr. Jones $9,000 in damages on the fraud claim, plus another $7,000 for emotional distress.

[3] Serrato points out that the judgment specifies that the corporate defendants are jointly and severally liable for the award to plaintiff Jones on the fraud claims. But that does not diminish the fact that the trial court imposed liability on Serrato based on her personal misrepresentations.

[4] Serrato makes the same contentions as to Mr. Jones cross-complaint, but he did not state a claim under the CLRA or receive an award under the statute.

[5] The statement of decision states that plaintiff sent a letter to the defendant detailing certain alleged violations of the CLRA, but it does not reference any objection by Serrato to the adequacy of the notice.