Freitas v. Clear Recon Corp CA1/1 ( 2021 )

Filed 12/8/21 Freitas v. Clear Recon Corp CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 ONE
JOHN B. FREITAS,
Plaintiff and Appellant,
A160762
v.
CLEAR RECON CORP et al. , (Alameda County
Super. Ct. No. HG18908688)
Defendants and Respondents.
MEMORANDUM OPINION1
Plaintiff John B. Freitas appeals from a judgment entered after the
trial court sustained demurrers to his third amended complaint without leave
to amend. On this record, we affirm.2
I. BACKGROUND
Plaintiff filed the complaint in this matter in 2018, asserting various
causes of action arising from defendants’ alleged activities with regard to the
servicing and modification of residential loans and nonjudicial foreclosure
proceedings. While normally we would set forth the material facts based on
We resolve this case by memorandum opinion under California
1
Standards of Judicial Administration, section 8.1.
The matter has been submitted. (Cal. Rules of Court,
2
rule 8.256(d)(1).)
the allegations of the operative complaint and matters we may judicially
notice, our ability to do so here is limited by the fact that the third amended
complaint does not appear in the record, nor do the demurrers of defendants
Clear Recon Corp and Nationstar Mortgage LLC. From the record before us,
we know that the trial court sustained demurrers to the third amended
complaint as to both defendants without leave to amend on June 22, 2020,
that dismissals were entered as to both defendants in July and August 2020,
and that plaintiff timely appealed.
II. DISCUSSION
Plaintiff contends the trial court erred in sustaining defendants’
demurrers to his third amended complaint. “On appeal from an order of
dismissal after an order sustaining a demurrer, the standard of review is de
novo: we exercise our independent judgment about whether the complaint
states a cause of action as a matter of law. [Citation.] First, we give the
complaint a reasonable interpretation, reading it as a whole and its parts in
their context. Next, we treat the demurrer as admitting all material facts
properly pleaded. Then we determine whether the complaint states facts
sufficient to constitute a cause of action. [Citations.] [¶] We do not, however,
assume the truth of contentions, deductions, or conclusions of law.” (Stearn
v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439–440.) We are
“not bound by the trial court’s construction of the complaint.” (Wilner v.
Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) Rather, we
independently evaluate the complaint, construing it liberally. (Ibid.; Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
It is a fundamental rule of “appellate review that a judgment or order
of the trial court is presumed correct and prejudicial error must be
affirmatively shown.” (Foust v. San Jose Construction Co., Inc. (2011)
2
198 Cal.App.4th 181, 187.) “ ‘ “A necessary corollary to this rule is that if the
record is inadequate for meaningful review, the appellant defaults and the
decision of the trial court should be affirmed.” ’ ” (Ibid.) It is plaintiff’s
burden to provide an adequate record. (Hernandez v. California Hospital
Medical Center (2000) 78 Cal.App.4th 498, 502.) In the procedural posture of
this appeal, plaintiff “has the burden to show either that the demurrer was
sustained erroneously or that the court abused its discretion in sustaining
the demurrer without leave to amend.” (Pinnacle Holdings, Inc. v. Simon
(1995) 31 Cal.App.4th 1430, 1434.)
We are aware that plaintiff brings this appeal without the benefit of
legal representation, but the fact that he represents himself does not exempt
him from the rules of appellate procedure or relieve him of his burden on
appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) We treat
self-represented litigants like any other party, affording them “ ‘the same, but
no greater consideration than other litigants and attorneys.’ ”3 (Nwosu v.
Uba, at p. 1247.)
Here, plaintiff elected to proceed by way of a clerk’s transcript without
any record of the oral proceedings. With regard to the requested clerk’s
transcript, plaintiff failed to designate for inclusion in the record the
demurrers to the third amended complaint that are the subject of this appeal.
Without them, we cannot evaluate whether the trial court erred.
3 We note this is not plaintiff’s first appeal in this court, nor is this the
first appeal in which plaintiff has failed to provide an adequate appellate
record. As plaintiff points out in his opening brief, in a nonpublished
decision, Freitas v. Bank of America, N.A. (May 30, 2017, A148140), Division
Five of this court affirmed a judgment against plaintiff following a trial
court’s order sustaining a demurrer because plaintiff failed to furnish an
adequate record.
3
In addition, while plaintiff’s notice designating the record on appeal
requested that the clerk include the third amended complaint with exhibits A
through S and the register of actions, those documents were not included in
the clerk’s transcript. It does not appear plaintiff took any steps to remedy
the omissions. (Cal. Rules of Court, rule 8.155(b) [if clerk omitted material
designated for inclusion in record, remedy is to file motion in superior court;
if clerk does not comply within 10 days, party may serve and file motion to
augment]; Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The
Rutter Group 2021) ¶¶ 4:305; 5:143; see id. at ¶ 4:279 [record should be
thoroughly checked as soon as possible after it has been filed].) Indeed,
plaintiff did not even seek to remedy the omission when he filed an
“Appellant’s Reply Appendix,” seeking to augment the appellate record with
additional materials.4 (See Eisenberg et al., Cal. Practice Guide: Civil
Appeals & Writs, supra, at ¶¶ 4:300, 5:129, 5:132.) Without a copy of the
third amended complaint, we simply have no way of independently
determining if plaintiff alleged sufficient facts to state a cause of action.
Plaintiff’s appeal suffers other procedural and substantive deficiencies
that impede our review. Plaintiff’s briefs do not include a statement of
appealability, do not include citations to the record on appeal, and contain
limited and at times incoherent legal analysis in support of his contentions.
(Cal. Rules of Court, rules 8.204(a)(2)(b) [appellant’s opening brief must
“[s]tate that the judgment appealed from is final, or explain why the order
appealed from is appealable”]; 8.204(a)(1)(C) [every brief must “[s]upport any
reference to a matter in the record by a citation to the volume and page
4 We construed the “reply appendix” as a request to augment the
record and denied it because the documents sought to be included were
already part of the record as exhibits to the original complaint or had not
been filed or lodged in the trial court.
4
number of the record where the matter appears”]; In re Marriage of Falcone
& Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument”
allows court to treat contentions as waived].) Plaintiff also makes repeated
references to matters outside the record on appeal and to parties not involved
in this appeal.5 (Cal. Rules of Court, rule 8.204(a)(2)(C) [a party must
“[p]rovide a summary of the significant facts limited to matters in the record”
(italics added)]; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102
[factual matters outside the appellate record will not be considered and
should not be included in briefs].)
Most critically, however, the absence of an adequate record and any
citations to that record prevent us from deciding the issues raised on appeal.
Without the operative complaint and the party pleadings on demurrer, it is
impossible to determine if the trial court erred. Accordingly, we cannot
address the merits, and the judgment must be affirmed. (Bains v. Moores
(2009) 172 Cal.App.4th 445, 478 [rejecting claim that demurrer was
improperly sustained where appellant failed to present adequate record by
including operative complaint and demurrers].)
III. DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on
appeal.
5 We further observe that a substantial portion of plaintiff’s arguments
on appeal consist of allegations of corruption, criminal activity, and
impropriety by the trial judge and defendants and their counsel. We find
absolutely no support for these unfounded allegations in the record. Plaintiff
is reminded that such conduct is improper and does nothing to advance his
case. (See, e.g., In re S.C. (2006) 138 Cal.App.4th 396, 412 [“unwarranted
personal attacks [in appellate briefs] on the character or motives of the
opposing party, counsel, or witnesses are inappropriate and may constitute
misconduct”; id. at p. 422 [“Disparaging the trial judge is a tactic not taken
lightly by a reviewing court.”].)
5
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A160762
Freitas v. Clear Recon Corp
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