Benton v. Collect Access, LLC CA2/3 ( 2024 )

Filed 9/23/24 Benton v. Collect Access, LLC 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
TOM C. BENTON, B316886
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV46728)
v.
COLLECT ACCESS, LLC et al.,
Defendants and Respondents.
APPEAL from an order and judgment of the Superior Court
of Los Angeles County, John Doyle, Judge. Affirmed.
Law Offices of Roger E. Naghash, Roger Naghash and
Nicole Naghash for Plaintiff and Appellant.
Zee Law Group, Tappan Zee, Kimberly Barrientos; Bao
Law Group and Jeffrey Bao for Defendants and Respondents
Collect Access, LLC and Zee Law Group, PC.
Holland & Knight, Abraham J. Colman and Zachary C.
Frampton for Defendants and Respondents CardWorks, Inc. and
CardWorks Servicing, LLC.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Defendant and respondent Collect Access, LLC (Collect
Access), represented by Zee Law Group, PC (Zee Law), filed a
lawsuit against plaintiff and appellant Tom C. Benton and the
Benton Company to collect unpaid credit card debt. After Collect
Access obtained a default judgment, Benton successfully moved
to set aside the judgment and to dismiss the action for failure to
serve the summons and complaint in a timely manner. The trial
court ordered the action dismissed with prejudice.
Benton then filed suit against defendants and respondents
Collect Access, Zee Law, CardWorks, Inc., and CardWorks
Servicing, LLC,1 for allegedly filing a meritless lawsuit to collect
a debt that Benton did not incur. Collect Access and Zee Law
moved to strike Benton’s claims against them pursuant to
California’s anti-SLAPP statute (Code Civ. Proc., § 425.16).2 The
trial court granted the motion. CardWorks successfully moved
for summary judgment. Benton challenges both orders.
We conclude Collect Access and Zee Law established that
Benton’s causes of action arise from protected activity and
Benton failed to show the claims have minimal merit. The trial
court thus properly granted the special motion to strike. We also
1 We refer to CardWorks, Inc. and CardWorks Servicing,
LLC collectively as “CardWorks.”
2 All subsequent undesignated statutory references are to
the Code of Civil Procedure.
2
conclude Benton fails to present any grounds to reverse the trial
court’s order granting summary judgment to CardWorks. We
affirm the order and judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Collect Access’s Lawsuit
In June 2010, Collect Access, represented by Zee Law, filed
suit against Tom C. Benton, the Benton Company, and various
aliases (collectively, Benton) for breach of contract and related
claims. Collect Access alleged that in July 2001, Benton entered
into an agreement under which Advanta Bank (Advanta) would
loan money to Benton. Collect Access further alleged that in
2007, Benton failed to pay as agreed. According to the complaint,
Advanta assigned all rights to collect Benton’s debt to Collect
Access. Collect Access successfully obtained a default judgment.
In April 2017, the trial court granted Benton’s motion to set
aside the entry of default and default judgment. The court also
directed the levying officer to release any monies held. In
January 2019, the court dismissed the action with prejudice due
to Collect Access’s failure to serve the summons and complaint
within five years.
Benton’s Lawsuit Against Respondents
In December 2019, Benton, individually and as successor in
interest to the Benton Company, filed a lawsuit against Collect
Access and Zee Law, alleging violations of the Fair Debt
Collection Practice Act (FDCPA) (15 U.S.C. § 1692 et seq.) and
the Rosenthal Fair Debt Collection Practice Act (RFDCPA) (Civ.
Code, § 1788 et seq.), and asserting claims for malicious
3
prosecution and abuse of process.3 In October 2020, Benton filed
an amended complaint, adding the CardWorks entities as
defendants and alleging they were successors in interest to
Advanta. The amended complaint asserted the FDCPA and
RFDCPA causes of action against all defendants and the
malicious prosecution and abuse of process claims against Collect
Access and CardWorks only.
Benton’s first amended complaint alleged that in June
2010, Collect Access and Zee Law filed a meritless complaint to
collect credit card debt that Benton never incurred. According to
the complaint, the defendants fabricated the allegations that
Benton owed debt, filed a false proof of service, and submitted
false declarations to obtain a default judgment. In December
2016, the defendants levied Benton’s bank account, taking
$45,000. This caused Benton to learn of the default judgment
and debt. Benton alleged that the declarations of service, request
to enter default, and notice of entry of judgment were fraudulent
debt collection activities. He further alleged that Collect Access
and CardWorks initiated the collection action against him based
on fabricated documents.
Collect Access’s and Zee Law’s Special Motion to Strike
Collect Access and Zee Law filed a special motion to strike
all causes of action under section 425.16. The trial court granted
3 Both the FDCPA and RFDCPA govern fair debt collection
practices. The FDCPA is the federal statute and the RFDCPA,
which incorporates portions of the federal FDCPA, is the
California counterpart. (Davidson v. Seterus, Inc. (2018) 21
Cal.App.5th 283, 295; Civ. Code, § 1788.17.) The RFDCPA
prohibits specified acts by debt collectors (Civ. Code, §§ 1788.10–
1788.16) and requires them to comply with provisions of the
FDCPA (15 U.S.C. § 1692 et seq.).
4
the motion. It found Collect Access and Zee Law met their initial
burden of showing Benton’s claims are based on protected
activity because they arise from Collect Access’s lawsuit. The
court also concluded Benton did not establish his claims have
minimal merit because the FDCPA and RFDCPA claims are
time-barred, the litigation privilege applies to the abuse of
process claim, and Benton did not provide evidence that the
underlying action was filed without probable cause, as required
to establish his malicious prosecution claim.
CardWorks’s Motion for Summary Judgment
CardWorks filed a motion for summary judgment. It
argued Benton’s FDCPA and RFDCPA claims fail because
CardWorks had no connection to the credit card account or debt
collection efforts, the debt was business debt not covered by the
FDCPA or the RFDCPA, and the malicious prosecution and
abuse of process claims fail because CardWorks was not involved
in Collect Access’s lawsuit.
To support its motion, CardWorks submitted a declaration
from CardWorks Senior Vice President Michael Paschal. Paschal
declared that Advanta was closed and filed for bankruptcy in
2009. The Federal Deposit Insurance Corporation (FDIC) was
named receiver. In 2010, Deutsche Bank Trust Company
America appointed CardWorks “to act as successor servicer for a
certain portfolio of small business credit cards” after Advanta
closed. Paschal declared CardWorks did not acquire an
ownership interest in or become a successor to Advanta. He
further declared that the portfolio of small business credit cards
CardWorks was appointed to service did not include any account
in the name of Tom C. Benton, the Benton Company, or any
similar names.
5
CardWorks also filed a request for judicial notice in support
of its motion for summary judgment. The court granted the
request. Among the judicially noticed documents was the
“summary of case” from Collect Access’s request for entry of
default judgment filed in the underlying collection lawsuit. In
the summary of case was a “Bill of Sale and Assignment” dated
December 2007, which states that Advanta “hereby absolutely
sells, transfers, assigns, sets-over, quitclaims and conveys to
(Buyer) The Sagres Company” the “right to collect all principal,
interest, [and] other amounts due,” followed by an Advanta credit
card statement in Benton’s name showing a “past due” balance.
Benton opposed CardWorks’s motion.4 Without providing
any supporting evidence, he argued the Advanta account in his
name was transferred to CardWorks as a “successor servicer” and
“representative, agent, and assignee,” thus CardWorks was liable
for malicious prosecution and abuse of process based on Collect
Access’s lawsuit. He further argued he could pursue claims
under the FDCPA and RFDCPA because the credit card account
in question was for personal use. Benton requested a
continuance to conduct additional discovery. He also sought
leave to amend his complaint.
Benton filed declarations from himself and his attorney,
and documents from Collect Access’s underlying lawsuit. Benton
declared he had not been properly served, he never requested an
Advanta credit card, and he only learned of the debt when Collect
Access levied his bank account. Benton submitted a largely
4 We grant Benton’s motion to augment the record with his
memorandum of points and authorities in opposition to summary
judgment and other related documents which were not included
in the clerk’s transcript.
6
redacted page, which he claimed to have obtained during
discovery, listing Benton’s name and social security number.
Benton contended the documents proved CardWorks was
untruthful about being a successor-in-interest to Advanta. In the
reply, however, CardWorks asserted the document is from a
“schedule of accounts” that Advanta sold to The Sagres Company,
pursuant to the bill of sale in December 2007.
The trial court granted summary judgment.5 It concluded
the FDCPA and RFDCPA claims are time-barred and otherwise
fail due to the nature of the debt. It also determined the
malicious prosecution and abuse of process claims required
CardWorks to have some involvement in Collect Access’s lawsuit,
CardWorks carried its evidentiary burden to show it was not
involved, and Benton failed to present any evidence to the
contrary. The trial court denied Benton’s motion for a
continuance to conduct additional discovery, concluding the
evidence sought was irrelevant to the resolution of the summary
judgment motion. It further denied Benton’s request for leave to
amend his complaint.
Benton timely appealed.
DISCUSSION
I. Special Motion to Strike
Benton argues the trial court improperly granted the
special motion to strike because his complaint is based on Collect
Access’s and Zee Law’s unlawful, and thus unprotected,
activities. He also asserts, without any explanation, that he has
a high probability of success on his claims. We affirm the trial
5 The trial court issued a single order ruling on both the
special motion to strike and the motion for summary judgment.
7
court order striking the claims against Collect Access and Zee
Law.
A. Legal principles and standard of review
“Enacted by the Legislature in 1992, the anti-SLAPP
statute is designed to protect defendants from meritless lawsuits
that might chill the exercise of their rights to speak and petition
on matters of public concern.” (Wilson v. Cable News Network,
Inc. (2019) 7 Cal.5th 871, 883–884 (Wilson).) To that end,
section 425.16, subdivision (b)(1) provides: “A cause of action
against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.”
Accordingly, the resolution of a special motion to strike
under section 425.16 involves two steps. “Initially, the moving
defendant bears the burden of establishing that the challenged
allegations or claims ‘aris[e] from’ protected activity in which the
defendant has engaged.” (Park v. Board of Trustees of California
State University (2017) 2 Cal.5th 1057, 1061 (Park).) A claim
arises from protected activity “when that activity underlies or
forms the basis for the claim.” (Id. at p. 1062.) “[I]n ruling on an
anti-SLAPP motion, courts should consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Id. at
p. 1063; Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1015.)
8
If the defendant carries its burden to demonstrate the
plaintiff’s claims arise from protected activity, the plaintiff must
then demonstrate the claims have minimal merit. (Wilson,
supra, 7 Cal.5th at p. 884.) “To do so, the plaintiff must show the
complaint is legally sufficient and ‘ “ ‘supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if
the evidence submitted by the plaintiff is credited.’ . . .”
[Citation.]’ [Citation.]” (Taheri Law Group v. Evans (2008) 160
Cal.App.4th 482, 488.)
Our review is de novo. (Park, supra, 2 Cal.5th at p. 1067.)
“We exercise independent judgment in determining whether,
based on our own review of the record, the challenged claims
arise from protected activity.” (Ibid.) We consider “the
pleadings, and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) We do not “weigh the evidence, but accept the
plaintiff’s submissions as true and consider only whether any
contrary evidence from the defendant establishes its entitlement
to prevail as a matter of law.” (Park, at p. 1067.) We broadly
construe the anti-SLAPP statute. (§ 425.16, subd. (a).)
B. The causes of action arise from protected
activity
Section 425.16, subdivision (e), describes the four categories
of conduct “ ‘ “in furtherance of a person’s right of petition or free
speech under the United States or California Constitution in
connection with a public issue” ’ ” the anti-SLAPP statute
protects. (Rand Resources, LLC v. City of Carson (2019) 6
Cal.5th 610, 620.) These include “any written or oral statement
or writing made before a legislative, executive, or judicial
proceeding” and “any written or oral statement or writing made
9
in connection with an issue under consideration or review by a
legislative, executive, or judicial body . . . .” (§ 425.16,
subd. (e)(1), (2).)
Collect Access and Zee Law met their burden to
demonstrate that Benton’s causes of action all arise from
protected activity. Benton’s complaint alleges that Collect
Access, represented by Zee Law, filed an action to collect a debt
he did not owe, in violation of the FDCPA and RFDCPA. He
further alleges the lawsuit constituted malicious prosecution and
an abuse of process. It is well established that filing a lawsuit is
an exercise of a party’s constitutional right of petition. (Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 [“The
filing of lawsuits is an aspect of the First Amendment right of
petition”]; Navellier v. Sletten (2002) 29 Cal.4th 82, 90 [“The
constitutional right of petition encompasses ‘ “ ‘the basic act of
filing litigation’ ” ’ ”].) In addition, “actions taken to collect a
judgment, such as obtaining a writ of execution and levying on [a]
judgment debtor’s property” are communications in the course of
a judicial proceeding. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1055, 1052, 1062 (Rusheen).)
Benton counters that his claims do not arise from protected
activity because his alleged credit card debt was “fabricated” and
the underlying lawsuit was therefore “fraudulent.” He relies on
Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), in which our
high court held, “[A] defendant whose assertedly protected speech
or petitioning activity was illegal as a matter of law, and
therefore unprotected by constitutional guarantees of free speech
and petition, cannot use the anti-SLAPP statute to strike the
plaintiff’s complaint.” (Id. at p. 305.) In Flatley, the court
determined the communications at issue constituted criminal
10
extortion and affirmed the appellate court’s determination that
extortionate speech is not constitutionally protected. The anti-
SLAPP statute therefore did not apply. (Ibid.)
Benton’s reliance on Flatley is misplaced. “[T]he rule from
Flatley . . . is limited to criminal conduct.” (Fremont
Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169;
accord, Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236
Cal.App.4th 793, 806 [“case authorities after Flatley have found
the Flatley rule applies only to criminal conduct, not to conduct
that is illegal because in violation of statute or common law”].)
There is no allegation or evidence in this case that Collect Access
or Zee Law engaged in criminal conduct. The communications
which formed the basis of Benton’s complaint were filing the
underlying lawsuit, obtaining a judgment, and attempting to
enforce it. The legal violations Benton alleges are of civil statutes
and common law. Moreover, even if we were to apply Flatley
more broadly, Benton simply asserts that the collection lawsuit
“had NO legal basis.” He has not demonstrated Collect Access’s
and Zee Law’s actions in invoking the judicial process to enforce a
debt were illegal as a matter of law and therefore unprotected.
(Cf. Flatley, supra, 39 Cal.4th at p. 332, fn. 16 [concluding the
communications at issue constituted criminal extortion as a
matter of law “based on the specific and extreme circumstances of
this case”].)
Collect Access and Zee Law established that Benton’s
claims all arise from protected activity under section 425.16,
subdivision (e). Benton was thus required to demonstrate that
his claims have at least minimal merit.
11
C. Benton has forfeited any contention that he
demonstrated a probability of prevailing on his
claims
It is a fundamental rule of appellate review that an
appealed judgment or order is presumed correct, and error must
be affirmatively shown. (Jameson v. Desta (2018) 5 Cal.5th
594, 609.) “ ‘In the absence of a contrary showing in the record,
all presumptions in favor of the trial court’s action will be made
by the appellate court.’ ” (Ibid.) “An appellant must provide an
argument and legal authority to support his contentions. This
burden requires more than a mere assertion that the judgment is
wrong. ‘Issues do not have a life of their own: If they are not
raised or supported by argument or citation to authority, [they
are] . . . waived.’ [Citation.] It is not our place 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 it but fails to support it with reasoned argument
and citations to authority, we treat the point as waived.” (Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Delta
Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1075
(Delta Stewardship).)
In his appellate briefing, Benton has described the
elements of malicious prosecution and abuse of process claims
and the two-step process for anti-SLAPP motions. He then
concludes: “There is a high probability of Plaintiff, Benton’s
success at trial.” He offers no further argument and no citations
to authority. He does not address the arguments made in the
special motion to strike or the trial court’s ruling. We therefore
treat Benton’s arguments regarding the merits of his claims as
forfeited.
12
Although we need not consider the issue further, we note
that to the extent Benton intended certain statements in other
portions of his appellate briefing to demonstrate the minimal
merit of his claims, we would still reject the arguments on their
merits. Under the heading “Whether the defendants have made
a threshold showing that the challenged cause of action is one
arising from protected activity,” Benton asserts the statute of
limitations does not bar his wrongful debt collection claims. We
disagree.
“A plaintiff must bring a claim within the limitations
period after accrual of the cause of action.” (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 806.) Generally, a claim
“accrues at ‘the time when the cause of action is complete with all
of its elements.’ [Citations.]” (Ibid.) The statute of limitations
for claims under the FDCPA and RFDCPA is one year from the
date of the violation. (Civ. Code, § 1788.30, subd. (f); 15 U.S.C.
§ 1692k(d); Paredes v. Credit Consulting Services, Inc. (2022) 82
Cal.App.5th 410, 425, 426 (Paredes).) Where the FDCPA and
RFDCPA claims arise, as they do here, from the filing of a
complaint seeking to collect on an alleged debt, the date the claim
is complete with all its elements is generally the date of the filing
and service of the complaint and summons. (Paredes, at p. 427.)
With respect to the RFDCPA, the limitations period may be
extended by the “[u]se of judicial proceedings to collect a debt
without service of process ([Civ. Code,] § 1788.15, subd. a)) . . .
insofar as the conduct involves multiple acts, such as obtaining
and collecting on a judgment, that extend over a period of time
13
before the proceedings are concluded.” (Komarova v. National
Credit Acceptance, Inc. (2009) 175 Cal.App.4th 324, 344.)6
Collect Access and Zee Law filed the complaint against
Benton in June 2010. They levied his bank account in December
2016. Benton’s complaint alleges that in August 2018, Collect
Access and Zee Law “unlawfully” served him in the action. The
complaint does not allege that Collect Access and Zee Law took
any further steps to collect the debt. However, Benton did not
file his complaint until December 2019, over one year later,
outside any possible limitations period.
Benton asserts his FDCPA and RFDCPA claims did not
accrue until March 2019, when the court dismissed Collect
Access’s lawsuit with prejudice for failing to timely serve the
summons and complaint. He neither cites legal authority for this
proposition nor includes any argument to support the statement.
Benton has not demonstrated that he can establish his wrongful
debt collection claims were timely filed.
Under the same heading related to the first prong of the
anti-SLAPP analysis, Benton asserts the defendants brought and
maintained an action against him without probable cause.
Presumably, this assertion relates to his malicious prosecution
claim. (See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d
863, 871–872 [malicious prosecution claim requires plaintiff to
demonstrate (1) the prior action was pursued to legal termination
6 “[T]here is no ‘continuing violation doctrine’ in the FDCPA
context . . . .” (Brown v. Transworld Systems, Inc. (9th Cir. 2023)
73 F.4th 1030, 1044.) Thus, the FDCPA claim accrued when
Collect Access filed the complaint against Benton in June 2010.
(Id. at p. 1040 [“every alleged FDCPA violation triggers its own
one-year statute of limitations as provided in [15 U.S.C.]
§ 1692k(d)”].)
14
in plaintiff’s favor; (2) the action was brought without probable
cause; and (3) the action was initiated with malice].) Yet,
Benton’s only reference to supporting facts is the statement that
he obtained a dismissal of the Collect Access suit. Even if the
dismissal is deemed a favorable termination with respect to the
malicious prosecution claim, that alone would not establish a lack
of probable cause or malice. (Maleti v. Wickers (2022) 82
Cal.App.5th 181, 207 [favorable termination and lack of probable
cause are distinct elements].) Benton makes no other attempt to
show that his malicious prosecution claim has minimal merit.
Further, the abuse of process claim is precluded by the
litigation privilege. (Rusheen, supra, 37 Cal.4th at p. 1052.) The
privilege applies to “any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that have some connection or logical relation to the action.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
“ ‘[C]ommunications with “some relation” to judicial proceedings’
are ‘absolutely immune from tort liability’ by the litigation
privilege [citation].” (Rusheen, at p. 1057.) This includes
situations where “the claim for abuse of process was based on the
communicative act of filing allegedly false declarations of service
to obtain a default judgment,” such that the post-judgment
enforcement efforts, including the application for a writ of
execution and the act of levying the property, are also protected
by the privilege. (Id. at p. 1052.) The privilege applies to all tort
causes of action except malicious prosecution. (Hagberg v.
California Federal Bank (2004) 32 Cal.4th 350, 360.)
Although the trial court determined the litigation privilege
barred Benton’s abuse of process claim, Benton does not address
15
its application in his appellate briefing. “ ‘It is not our place to
construct theories or arguments to undermine the judgment and
defeat the presumption of correctness.’ [Citation.] Nor are we
‘required to search the record on [our] own seeking error.’
[Citation.]” (L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 620.)
Benton has failed to demonstrate error in the trial court ruling
granting the special motion to strike.
II. Summary Judgment
Benton argues the trial court improperly granted summary
judgment to CardWorks because the court did not rule on his
evidentiary objections and improperly considered late-filed
evidence; there are triable issues of fact; and the court erred in
denying him a continuance to conduct further discovery.
CardWorks contends Benton has forfeited any argument that the
trial court erred. CardWorks also asserts that Benton’s
arguments fail on the merits because, among other things, the
FDCPA and RFDCPA claims are time-barred and there is no
evidence CardWorks was involved in Collect Access’s debt
collection suit or activities. Finally, CardWorks argues Benton
failed to establish that the trial court abused its discretion in
denying his request for a continuance to conduct further
discovery since he did not meet the statutory requirements under
section 437c, subdivision (h). Benton has failed to identify any
reversible error.
A. Standard of review
A defendant moving for summary judgment carries the
initial burden of showing that a cause of action lacks merit
because the plaintiff cannot establish an element of the cause of
action or there is a complete defense. (§ 437c, subd. (p)(2);
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853
16
(Aguilar).) If the defendant satisfies this initial burden, the
burden shifts to the plaintiff to present evidence demonstrating a
triable issue of material fact. (§ 437c, subd. (p)(2); Aguilar, at
p. 850.) A triable issue exists if “the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable
standard of proof.” (Aguilar, at p. 850.) In determining whether
triable issues exist, courts “ ‘liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.’
[Citation.]” (Hartford Casualty Ins. Co. v. Swift Distribution, Inc.
(2014) 59 Cal.4th 277, 286.) If the evidence does not raise a
triable issue of material fact, the defendant is entitled to
summary judgment. (Ibid.)
“ ‘ “ ‘ “We review the trial court’s decision de novo,
considering all the evidence set forth in the moving and opposing
papers except that to which objections were made and
sustained.” ’ [Citation.]” ’ ” (Hampton v. County of San Diego
(2015) 62 Cal.4th 340, 347.) Nonetheless, the appellant still
bears the burden of affirmatively demonstrating error. (Nealy v.
City of Santa Monica (2015) 234 Cal.App.4th 359, 372.) Our
review is limited to issues adequately raised and supported in the
appellant’s brief. (Christoff v. Union Pacific Railroad Co. (2005)
134 Cal.App.4th 118, 125.)
B. Benton has not established error in the trial
court’s evidentiary rulings
Benton argues the trial court erred in failing to rule on his
objections to CardWorks’s evidence in support of summary
judgment. He contends the trial court should have sustained his
17
objections and the grant of summary judgment was therefore
improper.
Benton again fails to meet his burden on appeal of
establishing error. Contrary to Benton’s assertion, the trial court
did rule on his objections; it summarily overruled all pending
objections in its written order. Benton does not cite to the record,
reference any legal authority, or provide any reasoned argument
as to how the trial court erred in overruling his objections.
Benton’s only specific assertions of error are that evidence
may not be submitted with a reply brief, citing section 437c,
subdivisions (a), (b), and (c), and that a separate statement of
material facts cannot be submitted with the reply.7 However,
Benton does not demonstrate that the trial court relied on
evidence submitted with the reply brief in making its ruling. He
does not refer to any specific portion of the trial court ruling or
suggest that the court’s conclusions were connected to any
evidence submitted only with CardWorks’s reply. Thus, even if
the trial court abused its discretion by overruling Benton’s
objection to CardWorks’s submission of evidence with the reply,
7 At the time the trial court made the ruling at issue in this
case, the only part of these identified subdivisions that applied to
a reply brief stated: “A reply to the opposition shall be served and
filed by the moving party not less than five days preceding the
noticed or continued date of hearing, unless the court for good
cause orders otherwise.” (§ 437c, subd. (b)(4).) On July 15, 2024,
the Legislature enacted amendments to section 437c. (§ 437c,
subd. (b)(4), as amended by Stats. 2024, ch. 99 § 1, eff. Jan. 1,
2025.) The amendments modified section 437c, subdivision (b)(4)
to explicitly indicate that a reply “shall not include any new
evidentiary matter, additional material facts, or separate
statement submitted with the reply and not presented in the
moving papers or opposing papers.”
18
he fails to show the error was prejudicial. “We are not required
to search the record to ascertain whether it contains support for
[an appellant’s] contentions.” (Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545 (Mansell).)
Benton does not develop his legal claims of error, and “it is not
this court’s function to serve as [Benton’s] backup appellate
counsel . . . .” (Id. at p. 546.)
Benton has not established any reversible error based on
the trial court’s evidentiary rulings.
C. Benton has not met his burden of establishing
trial court error in granting summary
judgment
With respect to Benton’s challenge to the substance of the
trial court order granting summary judgment, CardWorks
correctly contends that Benton’s brief “cites only general legal
principles without relating them to any specific facts or
admissible evidence.” (Cf. Guthrey v. State of California (1998)
63 Cal.App.4th 1108, 1115 (Guthrey).) Benton makes the
conclusory assertion that the trial court “improperly weighted
[sic] evidence and erred in granting motion for summary
judgment as there are genuine issues of fact.” He also asserts
that CardWorks did not present any admissible evidence, the
record does not support CardWorks’s “contentions,” and
CardWorks’s “contentions are factually disputed.”
Benton does not support these assertions with any record
citations, let alone describe the evidence purportedly in dispute.
He does not identify the specific contentions he asserts lack
support. For these reasons, Benton has not met his burden of
establishing error, and his arguments are deemed waived.
(Guthrey, supra, 63 Cal.App.4th at pp. 1115–1116 [concluding
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challenge to grant of summary judgment was waived where
appellant failed to identify any specific facts and where they
could be found in the record, and only generally referred to a
triable issue of fact].)
Even assuming Benton had not forfeited his arguments by
failing to provide reasoned discussion or citations to the record,
the arguments would fail on the merits. As discussed above,
Benton’s FDCPA and RFDCPA claims are time-barred and his
abuse of process claim is precluded by the litigation privilege.
Benton points to no evidence regarding CardWorks that would
mandate a different result. For example, there is no evidence
CardWorks took any independent steps to collect the debt such
that the limitations period might be extended for CardWorks but
not for the other respondents.
Benton’s remaining claim against CardWorks is for
malicious prosecution. Yet, CardWorks presented evidence
indicating it was not involved in Collect Access’s lawsuit. Collect
Access filed the suit and was represented by Zee Law. There is
no mention of CardWorks in any of the filings or court orders.
While it is undisputed that CardWorks is the successor servicer
to some former Advanta credit card accounts, Benton did not
provide any evidence suggesting CardWorks was involved in
Collect Access’s lawsuit.8
8 In the trial court, Benton argued that a largely redacted
page he obtained in discovery from CardWorks proved it was a
“successor-in-interest to Advanta Bank.” As we understand the
argument, Benton’s assertion is based on an inference arising
from the document being in CardWorks’s possession. However,
the record in this case reveals that the same document was
submitted as an attachment to a declaration in opposition to
20
On appeal, Benton appears to assert that there were triable
issues related to an underlying fraud, in that a credit card was
issued in his name without his authorization. Yet, Benton did
not provide any evidence to rebut CardWorks’s evidentiary
showing that while CardWorks received some former Advanta
credit card accounts from Deutsche Bank in August 2010,
Benton’s account was not among them. In other words, this was
evidence that CardWorks did not become the successor to any
liability Advanta or Collect Access might have had with respect
to the credit card account issued in Benton’s name. Benton also
provided no evidence to dispute CardWorks’s showing that, prior
to the commencement of collection efforts, Advanta had already
sold or assigned away the rights to Benton’s alleged credit card
debt. Benton further proffered no evidence suggesting any legal
relationship existed between Collect Access and CardWorks. He
has articulated no legal theory under which Advanta or
CardWorks could have remained liable for the debt collection
lawsuit or other collection efforts.
Benton did not raise any triable issues of material fact as to
CardWorks’s liability for malicious prosecution. He has not
demonstrated that the trial court erred in granting summary
judgment.
Benton’s motion to compel documents. In the declaration, Collect
Access’s legal manager authenticated the Bill of Sale and
Assignment which reflected that The Sagres Company assigned
all rights to collect on the Benton account—identified on one of
several mostly redacted pages—to Collect Access. Other
documents from the underlying collection action indicated
Advanta had previously sold its interest in the Benton account to
The Sagres Company.
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D. Benton has not established the trial court
abused its discretion in denying his
continuance request
Finally, Benton asserts the trial court erred in denying his
request for a continuance of the summary judgment hearing to
allow him time to conduct additional discovery under
section 437c, subdivision (h). We find no error.
“The decision to grant or deny a continuance request under
section 437c, subdivision (h), is vested in the trial court’s
discretion [citation], and the court’s ruling is reviewed for an
abuse of discretion.” (Braganza v. Albertson’s LLC (2021) 67
Cal.App.5th 144, 152.) Benton argues he sought a continuance to
conduct discovery to establish that “there was NO Bankruptcy
with Advanta Corp related business as applicable to Plaintiff’s
claims in this action” and the “FDIC was NOT the receiver and
Defendants CardWorks, Inc. and CardWorks Servicing, LLC,
simply continued with Advanta Bank’s business.” The trial court
denied Benton’s request, concluding this information would be
irrelevant to its determination of summary judgment.
On appeal, Benton contends only that the trial court
“improperly denied [his] requests,” with no further discussion.
This is insufficient to present an issue for appellate review.
(Delta Stewardship, supra, 48 Cal.App.5th at p. 1075; Dills v.
Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1;
Mansell, supra, 30 Cal.App.4th at p. 546.)
On the merits, we find no abuse of discretion. As noted
above, CardWorks supported its motion for summary judgment
with evidence establishing that in 2010, Deutsche Bank
appointed CardWorks to act as successor servicer for a portfolio of
small business credit cards following Advanta’s closing, but no
22
account in Benton’s name or his company’s name was in that
portfolio of accounts. CardWorks further proffered evidence
establishing that it had no connection to or involvement in
Collect Access’s collection suit.
Benton argued in the trial court, as he does on appeal, that
he needed a continuance to obtain discovery responses he
asserted would establish that there was no bankruptcy
proceeding “applicable” to his claims, the FDIC was not the
receiver, and CardWorks “simply continued” with Advanta
Bank’s business. However, not only did Benton fail to support his
continuance request with an explanation of the discovery he
anticipated receiving that would undermine the documents in the
public domain that support CardWorks’s motion, he did not
demonstrate that any of the requested discovery regarding
bankruptcy, the identity of the receiver, or the legal relationship
between Advanta and CardWorks, would be likely to demonstrate
that CardWorks was involved in, or liable for, the collection
lawsuit that formed the basis of his claims. Benton’s declaration
also did not indicate there was reason to believe the facts he
alleged may exist. (Jade Fashion & Co., Inc. v. Harkham
Industries, Inc. (2014) 229 Cal.App.4th 635, 656, 657.) The trial
court did not abuse its discretion in denying Benton’s request for
a continuance.
23
DISPOSITION
The trial court order granting Collect Access, LLC’s and
Zee Law Group, PC’s special motion to strike is affirmed. The
judgment in favor of CardWorks, Inc. and CardWorks Servicing,
LLC, is also affirmed. Respondents to recover their costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ADAMS, J.
We concur:
EGERTON, Acting P. J.
BERSHON, 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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