Aman v. Nationstar Mortgage CA2/3 ( 2023 )

Filed 3/16/23 Aman v. Nationstar Mortgage CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION THREE
ABDUL WASSY AMAN, B289755
Plaintiff and Appellant, (Los Angeles County
Super. Ct. Nos. KC067435,
v. KC068745)
NATIONSTAR MORTGAGE LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert A. Dukes, Judge. Affirmed.
Law Office of Lotfy Mrich and Lotfy Mrich, for Plaintiff and
Appellant.
Troutman Pepper Hamilton Sanders and Jared D. Bissell
for Defendants and Respondents.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Abdul Wassy Aman appeals from a judgment apparently
entered in favor of defendants Nationstar Mortgage LLC
(Nationstar), Aurora Loan Services LLC (Aurora), and Deutsche
Bank Trust Company Americas as Trustee for Residential
Accredit Loans, Inc. Pass Through Certificates 2006-Q03
(Deutsche Bank) (collectively, the lenders),1 after the trial court
granted lenders’ motion for summary judgment in its entirety.
Although Aman’s brief is difficult to decipher, he appears to claim
that triable issues of fact exist as to his claims that Aurora failed
to disclose material information and provide notice of
assignment, that Aurora and Nationstar’s failure to fulfill their
promise to offer Aman a loan modification breached their implied
covenant of good faith and fair dealing and amounted to
promissory estoppel, and that Deutsche Bank lacked authority to
foreclose due to several omissions and infirmities in the notice of
default that Aman received. Aman also claims that the trial
court abused its discretion when it denied him a continuance to
conduct discovery as to Deutsche Bank. However, Aman has
failed to show error because he has provided an inadequate
record and briefing on appeal. As a result, we affirm.
DISCUSSION
A. We must affirm the judgment because of the
inadequate record and appellant’s brief
1. The record
On appeal, Aman has failed to include in the record the
1 As we discuss in more detail below, the judgment is not
included in the record. We therefore base this statement upon
the case register and those materials available to us.
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operative complaint(s),2 the trial court’s findings supporting its
order granting the motion for summary judgment, and the
judgment itself. No reporter’s transcript from any relevant
appearances has been furnished. There is no indication that
these omissions were the product of inadvertence. Aman’s
designation of the record requested that the judgment and a
“[r]uling on” his “[n]otice of intention to move for new trial or
motion to vacate the judgment, for judgment notwithstanding the
verdict, or for reconsideration of an appealed order,” among other
documents, be included in the clerk’s transcript. Aman also
checked certain boxes indicating that he intended to designate a
reporter’s transcript, but declined to list any proceedings for
inclusion in the reporter’s transcript.
Aman was thereafter informed that several of the items he
designated were not in the court file and afforded an opportunity
to provide them. A supplemental clerk’s transcript was then
produced, but it does not contain the operative complaint(s), the
trial court’s summary judgment ruling, and the judgment.
Nonetheless, Aman filed his opening brief without addressing
these missing materials, and lenders countered that these
missing documents were integral to the disposition of this appeal.
2 The record contains two pages (pages 1 and 9) of what
appears to be the operative complaint in case No. KC067435
(attached to Aman’s opposition to lenders’ motion for summary
judgment), but those two isolated pages do not clarify the
substance of Aman’s claims. Further, Deutsche Bank does not
appear to have been a named defendant in that matter.
3
Aman has not filed a reply brief addressing these
infirmities, nor has he moved to augment the record since the
filing of lenders’ brief. (See Cal. Rules of Court, rule 8.155,
(a)(1)(A) [at any time during an appeal, a party may move for an
order that the record be augmented to include any document filed
in the case in superior court].) Because of Aman’s failure to
include crucial documents in the record, our apprehension of the
relevant facts is limited. We nonetheless summarize the
following history from the materials available to us.
The case information register of actions reflects the
following: in February 2015, Aman filed this mortgage foreclosure
action against lenders.3 After three demurrers, Aman filed a
fourth amended complaint. In December 2017, lenders filed a
motion for summary judgment. In March 2018, a hearing was
held on the motion for summary judgment and the motion was
taken under submission. The court thereafter issued a minute
order granting lenders’ motion for summary judgment, stating
that the court’s findings were reflected in a concurrently signed
and filed ruling. We do not know the extent to which the trial
court adopted any of Aman’s or lenders’ arguments because the
referenced ruling is not in the record. Additionally, no reporter’s
transcripts (from the March 2018 hearing or otherwise) have
been made available. Judgment in favor of lenders was entered
in April 2018.
3 The only register of actions made available to us is in case
No. KC067435. The register indicates that this matter was
consolidated with KC068745 on July 24, 2017, but the record
does not contain the pleadings in that matter or otherwise reflect
the filing date of that action.
4
Aman timely appealed4 from the judgment.5
2. Aman’s brief
Aman has filed one brief advancing several claims
regarding the trial court’s order granting summary judgment in
favor of lenders. It is difficult to ascertain the nature of Aman’s
action against lenders from Aman’s brief, much less the
arguments Aman is advancing on appeal. Aman’s brief consists
of several typographical errors and is difficult to understand.
Although the brief contains some record citations, the record
often does not support the fact asserted, and several points lack
argument and citation of authority.
Although lenders point out the problems in Aman’s opening
brief, Aman has not filed a reply brief to address these problems.
4 The appeal was stayed from November 2019 to August
2022 due to Aurora’s bankruptcy.
5 Aman’s notice of appeal, which purports to appeal from a
“[j]udgment after an order granting a summary judgment
motion” in case No. KC067435, does not state the date of the
order being appealed, nor reference the consolidated matter
under case No. KC068745. However, his designation of the
record references the April 2018 judgment, and no other order
reflected on the case register fits this description. Further, the
case register is clear that the two cases were consolidated. Given
the liberal construction we must afford notices of appeal and the
lack of apparent prejudice to lenders (who have briefed the
appeal on the merits), we construe the notice of appeal as
encompassing the April 2018 judgment, which we presume
encompasses the consolidated case. (Walker v. Los Angeles
County Metropolitan Transp. Authority (2005) 35 Cal.4th 15, 21.)
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B. Analysis
1. The record is inadequate
Because Aman has provided an inadequate appellate
record, we are unable to review his contentions of error and must
presume there was no error. Based on the record before us, we
are unable to give proper consideration to “all the evidence set
forth in the moving and opposition papers” and unable to
“determine with respect to each cause of action whether [Aman]
has conclusively negated a necessary element of [lenders’] case, or
has demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that [lenders
are] entitled to judgment as a matter of law.” (Guz v. Bechtel
National Inc. (2000) 24 Cal.4th 317, 334 [describing standard of
review for a motion granting summary judgment].) Similarly, we
cannot assess whether the trial court properly exercised its
discretion in denying any continuance in the absence of a written
decision or transcripts that might illuminate the reasons that the
court exercised or declined to exercise its discretion. (Lerma v.
County of Orange (2004) 120 Cal.App.4th 709, 714, 716 [denial of
continuance of summary judgment reviewed for abuse of
discretion].)
“[I]t is settled that: ‘A judgment or order of the lower court
is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent,
and error must be affirmatively shown. This is not only a general
principle of appellate practice but an ingredient of the
constitutional doctrine of reversible error.’ ” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) “ ‘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
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affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002)
99 Cal.App.4th 1412, 1416; see also Aguilar v. Avis Rent A Car
System, Inc. (1999) 21 Cal.4th 121, 132 [where the defendants
elected not to provide a reporter’s transcript on appeal, rejecting
their claim “because they failed to provide [the appellate] court
with a record adequate to evaluate [their] contention”].)
As we further discuss post, Aman raises several alleged
defects relating to the order granting lenders’ summary judgment
and the resulting judgment. However, by not including the
complaint, the trial court’s findings, and a copy of the resulting
judgment in the record, Aman has rendered us unable to perform
our appellate function. Indeed, as Aman recognizes, as a
reviewing court faced with an appeal of this nature, our first task
is to “ ‘identify the issues framed by the pleadings,’ ” but Aman
has failed to furnish any of the pleadings necessary to perform
that task. Likewise, without a reporter’s transcript of the
hearing on the summary judgment motion or an acceptable
substitute (which would reflect the parties’ arguments to the
court and any factual concessions), Aman cannot meet his burden
to show reversible error. In the absence of an adequate record,
we must indulge all inferences to support the order being
reviewed and presume the trial court properly concluded that no
triable issues of material facts exist.
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2. Aman’s brief is inadequate
Equally problematic is Aman’s opening brief. Although
Aman provides citations for some of his arguments, the brief does
not “support each point by argument and . . . by citation of
authority,” in violation of California Rules of Court, rule
8.204(a)(1)(B). (See also Benach v. County of Los Angeles (2007)
149 Cal.App.4th 836, 852 [appellant bears the burden of
supporting a point with reasoned argument].) For example, one
of Aman’s arguments—his claim that the trial court erroneously
denied him a continuance—is merely a point heading without any
body text explaining the alleged error. And where Aman has
provided argument, the argument lacks necessary context and/or
contains typographical errors that further impede one’s
understanding of the point Aman is attempting to advance. As
such, Aman’s brief also fails to provide a clear and concise
explanation of the factual and procedural background of the case,
in further violation of California Rules of Court, rule 8.204. (See
also Dahms v. Downtown Pomona Property & Business
Improvement Dist. (2009) 174 Cal.App.4th 708, 719 [arguments
must be “articulate[d] . . . in a manner that will make them
susceptible of rational evaluation”].)
It is not our role to construct theories or arguments to
undermine the judgment and defeat the presumption of
correctness. When an appellant fails to raise a point, or asserts a
point but fails to support it with reasoned argument and citations
to authority, we treat the point as waived. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784–785.) That rule is, for
the foregoing reasons, directly applicable to Aman’s brief.
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DISPOSITION
The judgment is affirmed. Costs are awarded to Nationstar
Mortgage LLC, Aurora Loan Services LLC, and Deutsche Bank
Trust Company Americas as Trustee for Residential Accredit
Loans, Inc. Pass Through Certificates 2006-Q03.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
NGUYEN (KIM), J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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