Filed 7/11/17 Abaya v. Wells Fargo Bank CA3
NOT TO BE PUBLISHED



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Sacramento)
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NELSON ABAYA,

Plaintiff and Appellant,

v.

WELLS FARGO BANK et al.,

Defendants and Respondents.
C080556

(Super. Ct. No. 34-2014-00157218-CU-BC-GDS)







Plaintiff Nelson Abaya and his wife Silvia Fung lost their home in a nonjudicial foreclosure sale. (Civ. Code, § 2924.) They filed a complaint against several entities, including defendant First American Title Company (FATC). The operative complaint alleged one cause of action against FATC for intentional infliction of emotional distress. On August 27, 2015, the trial court entered judgment in favor of FATC after granting FATC’s unopposed motion for judgment on the pleadings. Plaintiff Abaya, proceeding pro se, timely appealed.
On appeal, plaintiff argues reversal is warranted for various reasons. FATC contends, among other things, the claims of error have been forfeited, and the record on appeal is insufficient to show error. We agree with FATC and affirm the judgment.
DISCUSSION
On appeal, a judgment or order of the trial court is presumed correct and error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Plaintiff has the “burden of overcoming this presumption by showing error on an adequate record.” (Stevens v. Owens-Corning Fiberglas Corp. (1996) 49 Cal.App.4th 1645, 1657.) To meet this burden, an appellant must provide cogent legal argument in support of his 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); see Sims v. Department of Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1081.) If an appellant fails to do so, we may treat his contentions as waived. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)
Furthermore, “ ‘[i]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived. [Citations.]’ ” (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, fns. omitted.) “[F]airness is at the heart of a waiver claim. Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.” (JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178.) While “application of the forfeiture rule is not automatic,” “the appellate court’s discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue.” (In re S.B. (2004) 32 Cal.4th 1287, 1293.)
In this case, plaintiff elected to proceed without a reporter’s transcript and designated only a partial clerk’s transcript. The only documents in the record are: (1) the second amended complaint; (2) a minute order overruling FATC’s demurrer to the second amended complaint; (3) Bank of America, N.A.’s notice of demurrer to the second amended complaint and proposed order; (4) notice of judgment in favor of FATC, including the judgment of dismissal; (5) proof of service of the notice of judgment; (6) notice of appeal; and (7) appellant’s notice designating record on appeal. Notably, the record does not include FATC’s motion for judgment on the pleadings, any opposition to that motion, the trial court’s ruling on the motion, or a reporter’s transcript of any hearing on the motion. A review of the record discloses that plaintiff did not file an opposition to FATC’s motion for judgment on the pleadings, request oral argument after the trial court announced its tentative ruling granting the motion, or appear at the hearing on the motion. On appeal, plaintiff concedes he did not file an opposition to FATC’s motion for judgment on the pleadings, and does not dispute he did not appear at the hearing on the motion. Instead, he offers various reasons why he was unable to do so (e.g., severe financial and health “distress”). However, there is nothing in the record suggesting plaintiff informed the trial court of his inability to file an opposition to FATC’s motion or appear at the hearing on the motion. Nor is there anything in the record indicating he sought relief from the trial court’s order granting the motion.
Under the circumstances, we conclude plaintiff has forfeited his claim of error on appeal. The record reflects plaintiff did nothing to defend the viability of his cause of action against FATC in response to FATC’s motion for judgment on the pleadings. Nor has he shown we should exercise our discretion to excuse him from the forfeiture rule. But even if we were to do so, plaintiff has failed to meet his burden of affirmatively showing error on an adequate record. Plaintiff argues FATC’s motion for judgment on the pleadings failed to “adequately address the issues” identified by the trial court in its order overruling FATC’s demurrer to the second amended complaint. However, because the record does not include FATC’s motion or the trial court’s ruling on the motion, we cannot assess the merits of plaintiff’s argument. On this record, we have no reason to conclude plaintiff has overcome the presumption of correctness of the trial court’s decision to grant judgment on the pleadings.
DISPOSITION
The judgment is affirmed. FATC shall recover its costs on appeal. (Rule 8.278(a)(1) & (2).)



NICHOLSON , Acting P. J.



We concur:



MAURO , J.




HOCH , J.