Briceno v. Wells Fargo Bank, N.A. CA2/3

Filed 8/29/22 Briceno v. Wells Fargo Bank, N.A. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
RANDY BRICENO, B314222
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV24288)
v.
WELLS FARGO BANK, N.A.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los
Angeles County, Olivia Rosales, Judge. Affirmed.
Randy Briceno, in pro. per., for Plaintiff and Appellant.
Fisher & Phillips, Aymara Ledezma and Danielle S.
Krauthamer for Defendant and Respondent.
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Plaintiff Randy Briceno appeals from the order of dismissal
entered after the trial court sustained without leave to amend the
demurrer filed by defendant Wells Fargo Bank, N.A. (Wells
Fargo) to Briceno’s fifth amended complaint. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
On July 12, 2019, Briceno, acting in propria persona,
initiated this action by filing a civil complaint against Wells
Fargo. Briceno then filed a series of amended complaints without
seeking leave to amend. The trial court struck all of the
pleadings filed by Briceno except for the third amended
complaint, which it deemed the operative complaint.
On January 15, 2020, Wells Fargo submitted a demurrer to
the third amended complaint. Briceno did not file an opposition.
On February 19, 2020, the trial court sustained the demurrer to
the third amended complaint on the grounds that the complaint
failed to state a cause of action and failed to allege sufficient facts
to give Wells Fargo notice of its alleged wrongful conduct. The
court granted Briceno leave to further amend the complaint.
On February 13, 2020, prior to the trial court’s ruling on
the demurrer to the third amended complaint, Briceno filed
a fifth amended complaint. The body of the fifth amended
complaint consisted of a single handwritten paragraph: “The
defendant is a corporation. Plaintiff has suffered wage loss &
other damages. Plaintiff still is suffering wageloss [sic] & other
damages. Specified intentional infliction of emotional distress,
1 The description of the factual and procedural background
is based on the documents included in the appendix filed by Wells
Fargo concurrently with its respondent’s brief. Although Briceno
also filed a one-page document entitled “APPENDIX” with his
opening brief, he did not attach any documents to his appendix.
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mental faculty & harm is consecutive. I need defendants to stop
& repair wageloss [sic] & damages. Also case needs to be solved,
because Plaintiff faces a substantial threat of irreparable
damages & wageloss [sic]. Plaintiff prays for judgement [sic] for
costs of suits; for compensatory personal injury, in the amount of
$G64 [sic].”
On April 16, 2021, Wells Fargo filed a demurrer to the fifth
amended complaint. Wells Fargo argued that the fifth amended
complaint did not state a cause of action, and was ambiguous and
unintelligible. Briceno again did not file an opposition, and he
did not appear at the hearing on the demurrer. On May 11, 2021,
the trial court sustained the demurrer to the fifth amended
complaint without leave to amend. The court found the fifth
amended complaint failed to allege facts sufficient to constitute
a cause of action, and was uncertain because it did not provide
Wells Fargo with notice of its alleged wrongful conduct.
On June 21, 2021, the trial court granted Wells Fargo’s
request to dismiss the action with prejudice. Briceno appeals
from the order of dismissal.
DISCUSSION
I. Briceno failed to provide an adequate record or any
reasoned argument to support his appeal.
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; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “ ‘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.’ ” (Jameson, at p. 609.) To overcome this presumption, the
appellant has the burden of providing the appellate court with an
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adequate record demonstrating error. (Ibid.; Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295.) “ ‘Failure to provide an adequate
record on an issue requires that the issue be resolved against
[the appellant].’ ” (Jameson, at p. 609.)
It is also the appellant’s burden to provide reasoned
argument and citations to relevant legal authority to support
that argument. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.) On
appeal, “ ‘ “ ‘the party asserting trial court error may not . . . rest
on the bare assertion of error but must present argument and
legal authority on each point raised.’ ” ’ ” (Hoffmann v. Young
(2020) 56 Cal.App.5th 1021, 1029.) Accordingly, “[w]hen 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 forfeited.” (Delta Stewardship Council Cases (2020)
48 Cal.App.5th 1014, 1075.) These “same rules apply to a party
appearing in propria persona as to any other party.” (Flores
v. Department of Corrections & Rehabilitation (2014) 224
Cal.App.4th 199, 205.)
On appeal, Briceno seemingly seeks to challenge the trial
court’s ruling sustaining Wells Fargo’s demurrer to the fifth
amended complaint without leave to amend. Briceno did not,
however, provide an adequate record for appellate review of
any purported claim of error. The California Rules of Court
require an appellant who uses an appendix to include, among
other items, any document filed in the superior court which “is
necessary for proper consideration of the issues.” (Cal. Rules
of Court, rule 8.124(b)(1)(B).) At the start of his opening brief,
Briceno attached a portion of the register of actions from the
superior court file. At the end of his brief, Briceno also attached
a one-page document entitled “APPENDIX” that listed by name
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some of the documents that must be included in an appendix,
such as the notice of appeal and the appealed judgment or order.
(Cal. Rules of Court, rules 8.124(b)(1)(A), 8.122(b)(1).) Apart from
the register of actions, however, Briceno did not actually attach
any documents to his appendix or his brief. He therefore failed
to satisfy his burden of providing this court with a record that
would permit meaningful review of his appeal. On that basis
alone, the trial court’s ruling should be affirmed. (Jameson v.
Desta, supra, 5 Cal.5th at p. 609 [“ ‘ “if the record is inadequate
for meaningful review, the appellant defaults and the decision of
the trial court should be affirmed” ’ ”].)
In his briefing on appeal, Briceno also fails to articulate
any coherent argument to support a claim of error. Briceno’s
brief primarily consists of excerpts of provisions contained in the
Penal, Labor, Evidence, Civil Procedure, and Civil Codes.
Briceno did not cite any of these statutory provisions in his fifth
amended complaint, nor does he explain on appeal how they
pertain to any purported cause of action in his complaint or any
alleged wrongful conduct by Wells Fargo. Briceno simply
reiterates the vague allegations in his complaint that his case
“needs to be solved” because he faces “a substantial threat of
irreparable nervous system damages and wage loss.” While
Briceno’s brief also includes a few cursory references to the end of
a “customer [r]elationship with Wells Fargo,” he does not explain
what action, if any, Wells Fargo took to end that relationship or
how any such action gives rise to a cognizable legal claim. “It is
not our place to construct theories or arguments to undermine
the judgment and defeat the presumption of correctness.” (Delta
Stewardship Council Cases, supra, 48 Cal.App.5th at p. 1075.)
Because Briceno failed to present any reasoned argument as to
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why the trial court erred in sustaining the demurrer to his fifth
amended complaint, he has forfeited any challenge to that ruling
on appeal.
II. The trial court did not err in sustaining Wells
Fargo’s demurrer to the fifth amended complaint
without leave to amend.
Even if not forfeited, any claim of error in the trial court’s
ruling on the demurrer fails on the merits. “ ‘In reviewing an
order sustaining a demurrer, we examine the operative complaint
de novo to determine whether it alleges facts sufficient to state a
cause of action under any legal theory.’ ” (Mathews v. Becerra
(2019) 8 Cal.5th 756, 768.) “Where the demurrer was sustained
without leave to amend, we consider whether the plaintiff could
cure the defect by an amendment. The plaintiff bears the burden
of proving an amendment could cure the defect.” (T.H. v.
Novartis Pharmaceuticals Corp. (2017) 4 Cal.5th 145, 162.)
Here, the trial court properly sustained Wells Fargo’s
demurrer to Briceno’s fifth amended complaint without leave
to amend because the complaint failed to allege facts sufficient
to state a cause of action and was uncertain. (Code Civ. Proc.,
§ 430.10, subds. (e), (f).) Generally, a “ ‘complaint . . . need only
contain a “statement of the facts constituting the cause of action,
in ordinary and concise language” [citation] and will be upheld
“ ‘so long as [it] gives notice of the issues sufficient to enable
preparation of a defense.’ ” ’ ” (Morris v. JPMorgan Chase Bank,
N.A. (2022) 78 Cal.App.5th 279, 292.) Briceno’s fifth amended
complaint, however, failed to satisfy these minimum pleading
requirements, and failed to sufficiently apprise Wells Fargo of
any claims being alleged. While Briceno vaguely stated in his
complaint that he suffered “wage loss” and “other damages”
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due to some sort of “personal injury,” he did not tether these
allegations to any specific cause of action or to any alleged
wrongful conduct by Wells Fargo. Moreover, although Briceno’s
fifth amended complaint included a single reference to
“intentional infliction of emotional distress,” it did not allege any
facts to establish the elements of such claim. The complaint
is devoid of any factual allegations describing the nature of
Briceno’s relationship with Wells Fargo or the manner in which
Wells Fargo caused Briceno to suffer the damages claimed.
Briceno did not argue below, and does not argue on appeal,
that he should be granted leave to further amend his complaint.
He also fails to identify what additional facts, if any, he could
allege in his complaint to state a cause of action against Wells
Fargo under any legal theory. Because Briceno has had multiple
opportunities to amend his complaint and has not demonstrated
how further amendment could cure the existing defects, the trial
court did not err in sustaining Wells Fargo’s demurrer to the fifth
amended complaint without leave to amend.
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DISPOSITION
The order of dismissal is affirmed. Respondent to recover
its costs on appeal.
NOT TO BE PUBLISHED.
ADAMS, 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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