Filed 7/1/22 Lopez v. Irvine Company CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed.

Arthur Lopez, in pro. per., for Plaintiff and Appellant.

Ruzika, Wallace & Coughlin, Frank J. Coughlin and Steven E. Bolanos for Defendants and Respondents.

* * *

Arthur Lopez appeals from the trial court’s entry of judgment after it granted defendants’ motion for summary judgment (MSJ) on Lopez’s housing discrimination claims.^[1] The trial court found Defendants in their motion “made a prima facie showing that the refusal to renew Plaintiff’s lease was based on business reasons, not discriminatory ones,” including “that Plaintiff was routinely late with rent payments,” and that Lopez failed to present evidence—rather than mere assertions—in rebuttal. Lopez does not challenge this finding in his appellate briefing. Rather, Lopez argues that his claims were not barred by any limitations period. He also contends the trial court erred in an early demurrer ruling and in failing to grant him leave to amend his complaint on the eve of the MSJ hearing to add federal and state antitrust claims against Defendants. As we explain, Lopez has not met his appellate burden to show error in the trial court’s rulings, and we therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In the interest of brevity, we limit our background discussion to the procedural history relevant to our review of the issues that Lopez presents on appeal.

Lopez filed suit against Defendants in June 2018 for “deprivation of his rights” under state and federal law “due to his race, sex [and] familial status.” Lopez alleged Defendants violated his right to be free from unlawful discrimination by “refusing to rent apartments [and] discriminat[ing] in the terms, conditions and privileges of rental of an apartment dwelling over a period of 3-4 years.” According to Lopez’s complaint, “[t]he most recent lease denial . . . would have been January 18, 2016 effectively, since Plaintiff had [then] sought to occupy and make effective [an] apartment rental on January 19, 2016.”

The trial court sustained Defendants’ demurrer to the complaint, with leave for Lopez to amend; the court subsequently denied Defendants’ request for dismissal. Instead, the court allowed Lopez to file an amended complaint beyond the original deadline.

Defendants answered Lopez’s amended complaint and later moved for summary judgment. The trial court’s minute order after it took the summary judgment motion under submission summarizes the remainder of the relevant procedural history. Specifically, the court “exercise[d] its discretion to consider Plaintiff’s opposition and supporting documents that [he] belatedly filed on December 16 and December 19, 2019. Defendants’ request to strike these documents . . . is denied.”

The trial court cited, but does not appear to have relied on as a basis for its summary judgment ruling, a statutory limitations period. (Gov. Code, § 12989.1, subd. (a).) That provision states that a litigant must generally “commence a civil action in an appropriate court not later than two years after the occurrence or the termination of an alleged discriminatory housing practice . . . .” (Ibid.)

Rather than analyzing timelines or circumstances pertinent to any potentially applicable limitations period—or exceptions or tolling thereof—the trial court instead cited declarations Defendants submitted as evidence, which they referenced in their separate statement of facts supporting the motion.

In particular, the court observed that Defendants “present[ed] evidence that Plaintiff was routinely late with rent payments and carried an overdue balance. For this reason, Newport Bluffs declined to renew Plaintiff’s lease. [Citation.] The lateness in paying also resulted in Plaintiff incurring late fees. [Citation.] Defendants have also presented evidence that the lease rate given to Plaintiff and his wife for the 2014-2016 lease was the amount originally quoted to them and as advertised. [Citation.]”

The court ended with this conclusion: “With this evidence, Defendants have made a prima facie showing that the refusal to renew Plaintiff’s lease was based on business reasons, not discriminatory ones and that the previously-provided lease rate matched the advertised price. Plaintiff has not presented evidence that creates a triable issue of fact. Plaintiff’s declaration (as opposed to assertions in his unsworn response to [Defendants’] separate statement) simply authenticates exhibits rather than testifies to any facts. Plaintiff does describe one exhibit as showing falsely and deceitfully assessed fees, but does not explain how this is so or testify to facts suggesting this would be because of discrimination. (Lopez Decl., ¶ 12.)” (Original parenthetical and italics.)

The trial court reached the same conclusion regarding the unfair competition cause of action (Bus. & Prof. Code, § 17200) that Lopez premised on his discrimination claims. The court found Defendants “made a prima facie showing of no fraudulent, unfair, or unlawful business practice.” Explaining again that Lopez’s declaration “simply authenticates exhibits rather than testifies to any facts,” the court found Lopez had “not shown a triable issue of fact.” The court therefore granted the summary judgment motion and subsequently entered judgment against Lopez. He now appeals.

DISCUSSION

Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) We review such a ruling de novo. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.) “Although our review of a summary judgment is de novo, it is limited to issues which have been adequately raised and supported in [the appellant’s] brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)

As the appellant, Lopez has the burden of affirmatively showing error; he may not simply assert error and then leave it to us to supply a supporting argument. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207.) We therefore turn to his specific contentions. In doing so, we are guided by the rule of court requiring appellants to present each point of alleged error under a separate heading or subheading in their briefing. (Cal. Rules of Court, rule 8.204(a)(1)(B).) This rule applies equally to represented and self-represented appellants alike. “[A]s is the case with attorneys, pro. per. litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

Lopez divides the argument portion of his brief into three sections, each marked by a roman numeral. Although he provides no headings or subheadings which identify or summarize his points, we address his primary contention in each of the three sections. However, “we do not consider . . . loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument.” (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294.)

Under his first heading (“I”), beginning on page 20 of his brief, Lopez offers various arguments regarding tolling, the discovery doctrine, and other exceptions to statutory limitations periods, as if timeliness was the basis for the trial court’s summary judgment ruling. Lopez argues, for example, that the trial court “grossly erred in accepting the defendants’ Motion for Summary Judgment without any evidence of Plaintiff’s claims being barred by the Statute of Limitations . . . .” He similarly insists Defendants failed to “produce[] any evidence to contradict a suspension of the statute of limitations . . . .”

These arguments are misplaced since the court did not grant Defendants’ summary judgment motion because it found Lopez’s claims ran afoul of any limitations period. Lopez ignores the fact that Defendants brought a fact-intensive motion for summary judgment, as reflected in what we infer (from references in the motion) was a lengthy and detailed separate statement of facts—which Lopez does not include in the record on appeal. We do not decide Lopez’s tolling and related arguments against him on the basis of that omission, though it is his responsibility as the appellant to designate a complete record, and not just material he may view as favorable to his position. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)

Instead, we find Lopez’s statute of limitations arguments are inapplicable. He ignores the trial court’s careful analysis of his opposition to summary judgment, which the court considered even though it was untimely. More fundamentally, Lopez also ignores the court’s considered judgment that on each of his claims Defendants made a prima facie showing that their actions were nondiscriminatory and did not constitute an unlawful business practice. Lopez failed to rebut this with admissible evidence. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354-357 [describing burden-shifting test on summary judgment of discrimination claims].) None of the various receipts, notices, or any other documents Lopez attached to his opposition was admissible as submitted to establish discrimination; instead, it was Lopez’s responsibility to explain through his own testimony or other evidence that the material evidenced discrimination. He failed to do so.

In essence, the trial court engaged in “classic” summary judgment analysis to comply with Code of Civil Procedure, section 437c, to determine whether, based on the facts presented by the parties as set out in their separate statements, each particular cause of action still had disputable issues of fact to be tried. The court concluded that there remained no such matters on which admissible evidence was presented on both sides. On appeal, Lopez’s statute of limitations arguments are beside the point; none meet his burden of establishing error in the trial court’s ruling. In the absence of such a showing, we presume the trial court’s ruling was correct. (Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 252 (Claudio); Frank and Freedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474.)

The same is true regarding Lopez’s arguments under his second heading (“II”), beginning on page 33 of his brief. These arguments appear to be directed at the trial court’s demurrer ruling, insofar as Lopez contends his complaint “sufficiently states a claim upon which relief can be granted.” These arguments are moot given that the court gave Lopez leave to file his amended complaint, even though it was late.

In any event, whether a complaint or amended complaint meets the legal prerequisites to adequately state a cause of action under any particular legal authority has nothing to do with whether a plaintiff’s opposition papers are sufficient to withstand summary judgment. The purpose of summary judgment is “to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In other words, the central issue is whether there are disputed issues of material fact on which the parties not only disagree theoretically, but on which they present conflicting evidence supporting their respective positions. It is only in these instances that a jury must be impaneled to resolve the factual dispute. (Ibid.; § 437c, subd. (c).)

On that question, it was Lopez’s responsibility to present admissible evidence to support his discrimination and unfair business practice claims; such evidence might be in the form of a declaration, deposition testimony, or some other sworn statement; he failed to do so. As noted, documents generally do not on their face establish any particular point; instead, they must be put in context with testimony that explains how or why they support the claims of the party submitting them. Authenticating the documents, proving they are what they appear to be—a receipt, a notice, or otherwise—does not establish what those documents mean for purposes of the party’s position. As the trial court patiently explained, for example, while Lopez in his unsworn opposition “d[id] describe one exhibit as showing falsely and deceitfully assessed fees,” he “does not explain how this is so or testify to facts suggesting this would be because of discrimination. [Citation.]” (Original italics.)

In light of these evidentiary omissions, which formed the basis for the trial court’s summary judgment ruling, Lopez’s contentions regarding demurrer standards become as irrelevant as his arguments regarding statutes of limitations periods. As a result, Lopez fails to meet his appellate burden to establish reversible error in the trial court’s summary judgment ruling. We therefore must presume the trial court’s ruling was correct. (E.g., Claudio, supra, 134 Cal.App.4th at p. 252.)

Finally, Lopez contends under the last heading in his brief (“III”) that the trial court erred by failing to grant him leave to amend his complaint again, this time to add antitrust claims against Defendants. The court initially denied the motion in November 2019 because Lopez did not provide notice of the motion to Defendants. The trial court denied Lopez’s refiled motion on December 13, 2019, because it was untimely served; Lopez then renewed his request for leave to amend by filing another motion that same day. It is unclear from the record or Lopez’s brief whether a third motion was calendared. The trial court in its December 20, 2019 summary judgment ruling did not address Lopez’s motion for leave to amend, instead vacating “all future hearing dates in this matter.” Nevertheless, we consider the motion to have been effectively denied with the trial court’s subsequent entry of judgment stating that “Plaintiff Arthur Lopez shall take nothing by this action,” thereby making no allowance for Lopez to amend.

We review the denial of a motion for leave to amend a complaint for abuse of discretion. (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) We find no merit in Lopez’s challenge.

“A trial court has wide discretion to allow the amendment of pleadings, and generally courts will liberally allow amendments at any stage of the proceeding.” (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 (Falcon).) Nonetheless, unreasonable delay alone can justify denial of a motion for leave to amend. (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746 (Huff).) “There is a platoon of authority to the effect that a long unexcused delay is sufficient to uphold a trial judge’s decision to deny the opportunity to amend pleadings, particularly where the new amendment would interject a new issue which requires further discovery.” (Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692.)

Here, in moving to amend his complaint a second time to—among other changes—seek “$150,000,000 (One Hundred Fifty Million Dollars) after taxes” instead of the one hundred million already sought, Lopez complained Defendants “exclude any competition” for “a comparable central[l]y located apartment [from] another operator,” i.e., lessor. But he acknowledged his “original amended complaint” also “referenced” “this [alleged] monopoly.” The trial court had granted Lopez leave to file his first amended complaint back in October 2018, but other than alluding to (rather than formally alleging) his monopoly claims in his first amended complaint, Lopez made no legally appropriate, properly filed and noticed attempt to add an antitrust cause of action until more than a year later, in December 2019.

This lengthy delay supports the trial court’s implicit denial of Lopez’s motion for leave to amend his complaint on the eve of the summary judgment hearing in December 2019. “[W]hen a plaintiff seeks leave to amend his or her complaint only after the defendant has mounted a summary judgment motion directed at the allegations of the unamended complaint, even though the plaintiff has been aware of the facts upon which the amendment is based, ‘t would be patently unfair to allow plaintiffs to defeat [the] summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.’” ([i]Falcon, supra, 224 Cal.App.4th at p. 1280; accord, Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176; Huff, supra, 138 Cal.App.4th at p. 746.) Lopez’s amendment challenge therefore fails.

DISPOSITION

The judgment is affirmed. Respondents are entitled to their costs on appeal.

GOETHALS, ACTING P. J.

WE CONCUR:

SANCHEZ, J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

^[1] The defendants and respondents are Irvine Company LLC, The Irvine Company Apartment Communities, Inc., Newport Bluffs LLC, and The Newport Bordeaux Apartments (Defendants).