National Funding v. American Appliance Outlet CA4/1

Filed 8/14/20 National Funding v. American Appliance Outlet CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
NATIONAL FUNDING, INC., D075777
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2017-
00030285-CU-BC-CTL)
AMERICAN APPLIANCE OUTLET,
LLC et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County,
Randa Trapp, Judge. Affirmed.
Gary B. Wesley for Defendants and Appellants.
Salisian | Lee, Neal S. Salisian and Glenn Coffman, for Plaintiff and
Respondent.
Plaintiff National Funding, Inc. sued defendants American Appliance
Outlet, LLC, Mariam Helmandy, and Odell Tristin (collectively, American
Appliance) for breach of contact based on a business loan agreement and two
personal guaranties. National Funding filed a motion for summary
judgment, which the trial court granted.
American Appliance appeals the ensuing judgment. It argues
(1) National Funding’s motion improperly expanded the issues pled in its
complaint, (2) the evidence was insufficient to show that the loan agreement
had been assigned to National Funding, and (3) the evidence purportedly
showing the assignment was inadmissible. We conclude American Appliance
has not demonstrated error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with our standard of review of orders granting summary
judgment, we recite the historical facts in the light most favorable to
American Appliance as the nonmoving party. (See Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 768 (Saelzler); Light v. Dept. of Parks &
Recreation (2017) 14 Cal.App.5th 75, 81.)
In April 2017, American Appliance entered into a written business loan
agreement with BofI Federal Bank. The loan agreement provided that BofI
could assign its rights and duties under the agreement without consent by
American Appliance. Helmandy and Tristin personally guaranteed
repayment of the loan. National Funding was identified in the agreement as
the loan servicer.
After three months, American Appliance stopped making payments on
the loan. National Funding filed this lawsuit. In its complaint, National
Funding alleged that American Appliance entered into the business loan
agreement with National Funding and had breached its obligations
thereunder. National Funding further alleged that Helmandy and Tristin
had breached their obligations under their personal guaranties. National
Funding alleged that it had “performed all conditions and promises required
to be performed on its part” under the agreement and guaranties. It sought
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the unpaid loan balance of approximately $142,000, as well as prejudgment
interest, attorney fees, and costs.
Several months later, National Funding filed its motion for summary
judgment. It supported its motion with, among other things, the written loan
agreement and personal guaranties, American Appliance’s payment history,
and a declaration by National Funding’s Director of Portfolio Management.
American Appliance opposed the motion. As relevant here, it
contended that the motion should be denied because National Funding had
not shown it had standing to sue under the loan agreement. American
Appliance argued that neither the motion nor National Funding’s complaint
mentioned any assignment of rights by BofI to National Funding. Citing
Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (Laabs),
American Appliance claimed that National Funding’s motion was an
improper attempt to expand the allegations of its complaint.
In reply, National Funding submitted a supplemental declaration from
its director. The director stated that BofI had sold and assigned its rights
under the loan agreement to National Funding soon after the agreement was
executed. She attached a letter from a BofI executive vice president, dated
two days before the declaration. The letter stated, “This will confirm that the
Loan was sold and assigned to National Funding, Inc. on April 13, 2017. BofI
Federal Bank possesses no continuing interest in, or responsibility for, the
Loan.”
At the summary judgment hearing, according to a settled statement,
American Appliance “objected to the Court’s consideration (for the truth of
the matter asserted) of the claim in plaintiff’s reply that there had been an
assignment to plaintiff of the bank’s interest in the promissory note involved
in the case on the grounds that the claim constituted inadmissible hearsay,
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was violative of the secondary evidence rule, was not supported by a
corresponding statement in the plaintiff’s statement of undisputed facts and
was not relevant to the case under the pleadings (which alleged no such
assignment). [¶] Defendants’ attorney proposed that he be allowed to brief
the objections and that the oral argument on the motion be re-set. The trial
court stated that there would be no further briefing . . . .” The hearing was
not reported.
In a written order, the court granted National Funding’s motion. It
found that it was undisputed that BofI sold and assigned its rights under the
loan agreement to National Funding; that National Funding had performed
its obligations under the agreement; and that American Appliance,
Helmandy, and Tristin had breached the loan agreement and guaranties.
The court entered judgment accordingly, and American Appliance appeals.
DISCUSSION
I
Standards of Appellate Briefing and Review
American Appliance filed an opening brief in this appeal, but its brief is
insufficient to demonstrate error. “ ‘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.) “To demonstrate error, appellant
must present meaningful legal analysis supported by citations to authority
and citations to facts in the record that support the claim of error.
[Citations.] When a point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires no discussion
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by the reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408 (S.C.).)
“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 (Benach).)
Even where an appellant cites general legal principles in support of
certain arguments, these principles do not in and of themselves demonstrate
error. “Mere suggestions of error without supporting argument or authority
other than general abstract principles do not properly present grounds for
appellate review. The court is not required to make an independent,
unassisted study of the record in search of error. The point is treated as
waived and we pass it without further consideration.” (Dept. of Alcoholic
Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002)
100 Cal.App.4th 1066, 1078 (Dept. of Alcoholic Beverage Control).) “ ‘We are
not bound to develop appellants’ arguments for them. [Citation.] The
absence of cogent legal argument or citation to authority allows this court to
treat the contention as waived.’ ” (Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956 (Cahill).)
American Appliance’s opening brief does not satisfy these minimum
standards (and it did not file a reply brief). Its legal discussion is less than
three pages long, it contains no record citations, and it cites only a few legal
authorities. It does not make any sustained legal argument on any issue.
Under these circumstances, we conclude that many of American Appliance’s
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contentions are forfeited by its failure to adequately brief them. We address
those contentions in more detail in the following parts.
II
Summary Judgment Standards
“The purpose of the law of summary judgment is to provide courts with
a mechanism to cut through the parties’ pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute. [Citation.] [¶] Under summary judgment law, any party to an
action, whether plaintiff or defendant, ‘may move’ the court ‘for summary
judgment’ in his favor on a cause of action (i.e., claim) or defense [citation]—a
plaintiff ‘contend[ing] . . . that there is no defense to the action,’ a defendant
‘contend[ing] that the action has no merit’ [citation]. The court must ‘grant[]’
the ‘motion’ ‘if all the papers submitted show’ that ‘there is no triable issue as
to any material fact’ [citation]—that is, there is no issue requiring a trial as
to any fact that is necessary under the pleadings and, ultimately, the law
[citations]—and that the ‘moving party is entitled to a judgment as a matter
of law’ [citation].” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
843 (Aguilar).)
“A plaintiff or cross-complainant has met his or her burden of showing
that there is no defense to a cause of action if that party has proved each
element of the cause of action entitling the party to judgment on the cause of
action. Once the plaintiff or cross-complainant has met that burden, the
burden shifts to the defendant or cross-defendant to show that a triable issue
of one or more material facts exists as to the cause of action or a defense
thereto. The defendant or cross-defendant shall not rely upon the allegations
or denials of its pleadings to show that a triable issue of material fact exists
but, instead, shall set forth the specific facts showing that a triable issue of
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material fact exists as to the cause of action or a defense thereto.” (Code Civ.
Proc., § 437c, subd. (p)(1).) “There is a triable issue of material fact if, and
only 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, supra, 25 Cal.4th at p. 850.)
“In reviewing an order granting summary judgment, we must assume
the role of the trial court and redetermine the merits of the motion. In doing
so, we must strictly scrutinize the moving party’s papers. The declarations of
the party opposing summary judgment, however, are liberally construed to
determine the existence of triable issues of fact. All doubts as to whether any
material, triable issues of fact exist are to be resolved in favor of the party
opposing summary judgment. While the appellate court must review a
summary judgment motion by the same standards as the trial court, it must
independently determine as a matter of law the construction and effect of the
facts presented.” (Pasadena Metro Blue Line Construction Authority v.
Pacific Bell Telephone Co. (2006) 140 Cal.App.4th 658, 663; accord, Saelzler,
supra, 25 Cal.4th at p. 768.)
“Although our review of a summary judgment is de novo, it is limited to
issues which have been adequately raised and supported in [appellant’s]
brief. [Citations.] Issues not raised in an appellant’s brief are deemed
waived or abandoned.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6;
accord, Frittelli, Inc. v. 350 North Canon Drive, L.P. (2011) 202 Cal.App.4th
35, 41.)
III
American Appliance’s Contentions
American Appliance first contends the trial court should not have
granted National Funding’s motion for summary judgment because the
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assignment from BofI to National Funding was not pled in National
Funding’s complaint. It relies exclusively on Laabs, supra, 163 Cal.App.4th
1242. That case does not apply here. The appellate court in Laabs
considered a motion for summary judgment filed by a defendant. (Id. at
p. 1250.) In opposition, the plaintiff sought to introduce matters outside her
complaint. (Id. at p. 1258.) The court held that the plaintiff’s effort to
expand the issues beyond her complaint was improper. (Ibid.) It reasoned,
“To allow an issue that has not been pled to be raised in opposition to a
motion for summary judgment in the absence of an amended pleading, allows
nothing more than a moving target.” (Id. at p. 1258, fn. 7, italics added.) If a
plaintiff opposing summary judgment could expand the issues in this way,
the summary judgment procedure would lose its viability because defendants
could not predict what allegations they would need to challenge. (Ibid.)
American Appliance does not explain how Laabs applies where, as
here, the plaintiff moves for summary judgment on its own complaint. The
concern identified in Laabs that the defendant would have no notice of a
plaintiff’s allegations is absent because the defendant has notice of the
motion itself. Despite its focus on National Funding’s complaint, American
Appliance does not argue it was prejudiced by National Funding’s failure to
allege the assignment. We note that American Appliance does not offer any
argument, supported or otherwise, that the trial court erred as a procedural
matter by relying on the assignment evidence that National Funding offered
for the first time on reply. Any argument in this regard is therefore waived.
(See Cahill, supra, 194 Cal.App.4th at p. 956; Benach, supra, 149 Cal.App.4th
at p. 852.)
American Appliance next contends the evidence submitted by National
Funding was insufficient to show an assignment. It claims, “To determine
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whether one business entity assigned a contract or rights thereunder to
another requires a presentation showing the persons in charge of such a
decision. No such evidence was presented on summary judgment.” American
Appliance cites McCown v. Spencer (1970) 8 Cal.App.3d 216, 225, for the
proposition that an assignment “must include manifestation to another
person . . . of his intention to transfer the right.” That proposition does not
support American Appliance’s more specific claim that “the persons in charge
of such a decision,” presumably at the relevant corporations, must be
identified. American Appliance does not offer any other legal support for its
claim, and it does not discuss the specific evidence offered by National
Funding. It has therefore waived its contention, and we need not consider it
further. (See S.C., supra, 138 Cal.App.4th at p. 408; Dept. of Alcoholic
Beverage Control, supra, 100 Cal.App.4th at p. 1078.)
Finally, American Appliance contends the assignment evidence was
inadmissible and the trial court should have sustained its evidentiary
objections. We conclude American Appliance forfeited this contention both in
the trial court and on appeal.
To preserve its objections in the trial court, American Appliance was
required to either submit written objections or arrange for a court reporter to
be present at the hearing. (Cal. Rules of Court, rule 3.1352; Mediterranean
Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th
257, 263-264.) American Appliance did neither. Moreover, to the extent the
settled statement may act as a substitute, it states only that American
Appliance identified its evidentiary objections and asked for the opportunity
to brief them, which was denied. It does not show that American Appliance
asserted its evidentiary objections at the hearing itself, the manner of any
such assertion, National Funding’s response, and the court’s consideration (if
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any). Even assuming evidentiary objections could be preserved by settled
statement, the statement here is insufficient to do so.
To preserve its objections in this court, American Appliance was
required to present a reasoned argument with citations to authority. (See
Benach, supra, 149 Cal.App.4th at p. 852.) The only authority cited in
connection with this argument is Code of Civil Procedure section 437c,
subdivision (d), regarding the requirement of admissible evidence, and
Evidence Code sections 1521 and 1523, regarding the secondary evidence
rule. American Appliance does not make any cogent argument based on
those statutes. As to Code of Civil Procedure section 437c, subdivision (d),
American Appliance asserts that the director’s supplemental declaration does
not show she had “any authority to give or receive an assignment,” but the
purported requirement for such authority is not addressed in that statute.
As to Evidence Code sections 1521 and 1523, American Appliance does not
attempt to apply the secondary evidence rule in any substantive fashion. It
merely concludes that the director’s supplemental declaration would violate
the rule “if the reference of the declarant were to a writing.” (Italics added.)
This conditional and cursory treatment is insufficient to show error. (See
Cahill, supra, 194 Cal.App.4th at p. 956; Benach, at p. 852.) American
Appliance also asserts that the director’s supplemental declaration was
“inadmissible hearsay,” but it does not explain that assertion. The statute
cited by American Appliance shows that declarations are acceptable evidence
in connection with a motion for summary judgment. (See Code Civ. Proc.,
§ 437c, subd. (d); see also id., subd. (b)(1).) We are not required to develop
American Appliance’s hearsay argument for it. (See Cahill, at p. 956;
Benach, at p. 852.) We note, in its legal discussion, American Appliance does
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not address the BofI letter at all. American Appliance has not shown the
judgment should be reversed based on any objections to evidence.1
DISPOSITION
The judgment is affirmed. National Funding shall recover its costs on
appeal.
GUERRERO, J.
WE CONCUR:
O’ROURKE, Acting P. J.
AARON, J.
1 National Funding requests that we determine that it is the prevailing
party in this appeal for the purpose of recovering contractual attorney fees.
Although we have the power to determine entitlement to attorney fees on
appeal (see People ex rel. Cooper v. Mitchell Brothers’ Santa Ana Theater
(1985) 165 Cal.App.3d 378, 387-388), we decline to do so here since the trial
court will have to determine the amount of any such award in any event (see
Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th
324, 336, fn. 15). Our denial is without prejudice to National Funding’s
ability to seek fees in this appeal from the trial court on remand.
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