Filed 12/11/18 Mikels v. Shi CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MEMORANDUM OPINION[1]

This appeal arises out of the dismissal of an unlawful detainer action involving certain real property located in San Mateo County (the Property). Marshall‑Edward: Mikels aka Marshall E. Mikels (Mikels or appellant) acquired title to the Property in 1977. In August 2010, however, title to the Property was transferred to U.S. Bank National Association, as trustee on behalf of the holders of the Adjustable Rate Mortgage Trust 2007-3 Adjustable Rate Mortgage Backed Pass Through Certificates, Series 2007-3 (U.S. Bank), under a trustee’s deed upon sale after Mikels appears to have defaulted on a mortgage loan secured by the Property. Three years later, on April 24, 2013, Hui Ping Shi (Shi or respondent) acquired sole ownership of the Property from U.S. Bank under a duly recorded corporation grant deed. According to Shi, she purchased the Property as a rental unit and spent the next three years renovating it before tenants began residing there in April 2016.

In May 2016, Mikels filed the instant unlawful detainer action in San Mateo County Superior Court against Shi, erroneously identifying her as Shi Hui Ping. Mikels’ complaint alleged, among other things, that he was the owner of the Property; that Shi was his “debtor under a Security Agreement”; that she had “agreed to the unlawful voided property sale”; that she had agreed to vacate and pay rent and damages; and that she had been personally served. That same month, Mikels requested and obtained a default judgment for possession of the Property from the court clerk (Default Judgment), who then issued a writ of possession for the Property directing the San Mateo County Sheriff to enforce the Default Judgment (Writ of Possession).

On June 16, 2016, Shi filed an ex parte application for a stay of the Default Judgment and related Writ of Possession, pending hearing on a motion to quash service of summons and set aside the Default Judgment (Motion to Quash). In her supporting declaration, Shi stated that she was the owner of the Property; that she had never entered into an agreement of any kind with Mikels; that she discovered that Mikels had filed this unlawful detainer action against her on June 9, 2016, after reviewing the contents of an envelope marked certified mail that had been addressed to her and left in her tenants’ mailbox; that she had never been served with any papers with respect to the lawsuit; and that every fact asserted by Mikels in this action regarding both her and the Property was a “complete and utter fabrication.” On July 16, 2016, the trial court—after reviewing the papers filed by both Mikels and Shi—deemed this a “proper case” for granting the requested stay, pending hearing on Shi’s Motion to Quash (Grandsaert Stay).

Thereafter, Judge Buchwald conducted a hearing on this matter and subsequently issued an order on August 4, 2016, granting the Motion to Quash, setting aside the Default Judgment, recalling the Writ of Possession, and dismissing the litigation with prejudice (Buchwald Order). In particular, the trial judge found credible evidence that Shi had not been properly served and that she had been diligent in seeking relief from the court. Additionally, based on the documentary evidence before him, Judge Buchwald further found: “Mikels is not the record owner of the property and has not been so for some time. Nor is he the landlord. Absent such ownership, he has no current rights of possession and, therefore, cannot bring or maintain an unlawful detainer action to evict [Shi] and her tenants.” In this regard, the trial judge noted that Mikels’ claim for possession of the Property could properly be adjudicated in a pending wrongful foreclosure action that he had filed against U.S. Bank in January 2016 in the same court. (See Mikels v. U.S. Bank (Super. Ct. San Mateo County, CIV536936.) Finally, concluding that Mikels’ unlawful detainer complaint was “obviously a sham pleading visiting a fraud on both this Court and the Defendant,” the trial judge exercised his discretion to strike the pleading and dismissed the action with prejudice. This appeal followed.

Our review of the opening brief in this matter makes one thing abundantly clear. Mikels—who identifies himself as a “U.S. National and Private Living Sovereign Man by Special Appearance Rogatory, Owner of and Authorized Representative for MARSHALL E. MIKELS ***-**-8951”—strongly believes that he currently owns, and thus is entitled to immediate possession of, the Property. Unfortunately, Mikels’ opening brief is seriously deficient in numerous respects. For example, the brief describes itself as a “BRIEF/AFFIDAVIT IN THE APPEAL FROM THE 1^ST Court: Superior Court of California County of San Mateo / SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO OF THE GRANDSAERT ORDER OF 6/16/16, AND THE BUCHWALD ORDER OF 8/3/16 ISSUED FROM A 2^ND COURT THAT WAS VOIDED AND UNLAWFUL BY THE SECURED PARTY/PLAINTIFF/APPELLANT’S NOTARIZED NOTICE OF NON-CONSENT TO CONTRACT OFFER.” (Bolding omitted.) Equally nonsensical is the brief’s characterization of the issue presented: “THIS APPEAL IS FOR THE RESTORATION OF HONOR OF CONTRACTS AND TO LIMIT LIABILITY OF THE ADDRESSEE(S)/RESPONDENT(S)/DEBTOR(S) UNDER THE SECURITY AGREEMENT #6119 AND THE 12/21/17 PRESIDENTIAL EXECUTIVE ORDER DECLARATION OF NATIONAL EMERGENCY TO BLOCK THE PROPERTY OF PERSONS INVOLVED IN SERIOUS HUMAN RIGHTS VIOLATIONS AND CORRUPTION.” (Bolding omitted.)

Further, while the opening brief cites generally and repeatedly to numerous legal authorities—including various constitutional provisions; the Supreme Court’s decision in Jesinoski v. Countrywide Home Loans, Inc. (2015) ___ U.S. ___, 135 S.Ct. 790; the “supreme controlling” law of contract; President Trump’s January 25, 2017 Executive Order: Enhancing Public Safety in the Interior of the United States, related to immigration enforcement; the federal Truth in Lending Act (15 U.S.C. § 1601 et seq.); the Uniform Commercial Code; and President Trump’s December 21, 2017 Executive Order Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption—it contains no reasoned explication as to how these authorities apply on this factual record. Moreover, while Mikels appears to believe that Shi is somehow bound by a certain “Security Agreement #6119,” which he executed on her behalf as her “agent” after she failed to respond to it with “proof of claims” and therefore accepted its terms, he cites no salient legal authority for this remarkable proposition.

Based on our review of the opening brief, we must dismiss this appeal. The trial court’s judgment is presumed to be correct, and it is the burden of the party challenging it on appeal to affirmatively demonstrate prejudicial error. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) An appellant’s failure to articulate intelligible legal arguments in the opening brief may be deemed an abandonment of the appeal, justifying dismissal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Likewise, a failure to present arguments with adequate and comprehensible references to the record on appeal and citation to legal authority can result in forfeiture of any contention that could have been raised on appeal. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); In re Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510, 515; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 (Nwosu).)

Assuming there is any truth to Mikels’ belief that he has been wronged with respect to ownership of the Property—and it is far from clear that there is—we, like the trial court, note that the appropriate forum for the adjudication of this dispute is in Mikels’ currently pending wrongful foreclosure case. Moreover, while we understand that Mikels may have been reticent to obtain legal representation in this matter,[2] it was nevertheless his choice to file the above-described diffuse narrative in propria persona. And pro per litigants “are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; see also Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation”].) Thus, Mikels’ status as a self-represented litigant does not exempt him from the rules of appellate procedure or relieve him of the obligation to present intelligible argument supported by the record and applicable legal authority. (Nwosu, supra, 122 Cal.App.4th at pp. 1246–1247.) Because any arguments raised in his opening brief are not properly or sufficiently developed to be cognizable, we decline to consider them and treat them as forfeited.

DISPOSITION

The appeal is dismissed. Respondent is entitled to her costs on appeal.

_________________________

REARDON, J.^*

We concur:

_________________________

STREETER, Acting P. J.

_________________________

TUCHER, J.

^* Retired Associate Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A148778, Mikels v. Shi