Filed 5/28/20 Nilsson v. Bator CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Siskiyou)

—-

DAVID NILSSON et al.,

Plaintiffs and Respondents,

v.

ANTHONY BATOR, Individually and as Trustee, etc., et al.,

Defendants and Appellants.

C087168

(Super. Ct. No. SCSCCVMS2015012211)

Appellants Anthony Bator, Bator Mining, and North American Conservation Trust (Bator) and respondents David Nilsson, Olympic Investments, LLC, Home Ticket Ventures, Inc., and Orofino Ventures, LLC (Nilsson) entered into a loan agreement and an ore purchase agreement secured by real and personal property of the mining operation. Relations between Bator and Nilsson deteriorated, culminating in a whirlwind of protracted litigation. Ultimately, the court granted Nilsson’s motion for summary judgment. Proceeding in pro. per., Bator appeals. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Nilsson purchased an interest in a note and deed of trust executed by Bator in the amount of $110,000. Nilsson alleged Bator failed to make the required payments under the note and deed of trust. Bator and Nilsson entered into a separate ore purchase and processing agreement. Nilsson alleged Bator breached the agreement by failing to abide by its terms.

Complaint

In September 2015 Nilsson filed a complaint alleging Bator’s breach of the two agreements. Nilsson sought damages and also requested a judicial foreclosure of Nilsson’s security interest in and collateral related to Bator’s mining operation. The first cause of action sought judicial foreclosure on the deed of trust. The second cause of action sought judicial foreclosure on the ore purchasing and processing agreements. Bator answered the complaint.

Cross-complaint

Bator filed a cross-complaint. Nilsson filed a demurrer to the cross-complaint and a motion to strike portions of Bator’s answer. Bator opposed both. In March 2016 the trial court sustained Nilsson’s demurrer to Bator’s cross-complaint and ordered Bator to file an amended cross-complaint and an amended answer by May 13, 2016. Subsequently, Nilsson filed a series of discovery motions.

On May 12, 2016, Bator filed a second amended cross-complaint asserting 52 claims for relief and an opposition to Nilsson’s discovery motions. Bator also filed an amended answer to Nilsson’s complaint.

In June 2016 Nilsson filed a demurrer to Bator’s second amended cross-complaint. The parties filed various discovery motions.

The trial court granted Nilsson’s demurrer without leave to amend. Bator filed a late opposition to the demurrer. Bator also filed a motion for reconsideration of the trial court’s order sustaining the demurrer.

Discovery Imbroglio

The court denied Bator’s discovery motion and granted Nilsson’s discovery motion in part. Bator filed a flurry of motions challenging the court’s order.

In October 2016 the court denied Bator’s motion for reconsideration and ordered Bator to provide responses to Nilsson’s discovery requests. Nilsson filed a discovery motion seeking evidentiary or terminative sanctions for Bator’s continued failure to respond to interrogatories, produce documents, and respond to requests for admissions.

Bator filed a combined motion to strike and dismiss the pleadings filed by Nilsson, which Nilsson opposed. Bator also filed an opposition to Nilsson’s discovery motion seeking evidentiary or terminative sanctions.

The trial court granted Nilsson’s discovery motion in part and ordered Bator to provide a response, but denied the request for sanctions. The court denied Bator’s motion to strike/dismiss the pleadings.

Nilsson filed another discovery motion seeking sanctions. Bator filed an opposition, to which Nilsson filed a reply. The trial court heard Nilsson’s motion and requested Nilsson provide additional information as to whether documents provided by Bator were responsive to the discovery request. Nilsson filed a supplemental declaration in response.

Subsequently, the trial court granted Nilsson’s discovery motion in part, noting Bator failed to provide sufficient responses to discovery. The court also directed Nilsson to prepare a declaration on the time spent on the discovery motion for an award of monetary sanctions. Nilsson submitted the declaration on hours spent.

The trial court entered an order granting Nilsson’s discovery motion and ordering Bator to provide responses to interrogatories and demands for production of documents and to pay monetary sanctions in the amount of $2,587. Bator filed “Answers to Courts (sic) Request or Additional Answers.”

Nilsson filed another motion for sanctions for Bator’s continued failure to provide compliant responses to discovery. The trial court granted the motion and made a series of findings. The court found Bator: “failed and continues to fail to comply with his discovery obligations, repeatedly misused the discovery process over the course of about 17 months, and disobeyed multiple prior Court discovery orders compelling compliance, such that the imposition of terminating sanctions is warranted . . . [citations] . . . [¶] 2. The Court finds that under the circumstances, lesser sanctions in the form of monetary sanctions are not likely to curb future misuses of the discovery process by said Defendant. [¶] 3. The Court orders an evidentiary sanction pursuant to Code of Civil Procedure section 2023.030(c) prohibiting Defendant . . . Bator . . . from presenting evidence at trial related to any facts, witnesses or documents related to or supporting the denials of material allegations or special or affirmative defenses raised by Defendant herein (Form Interrogatory 15.1). [¶] 4. The Court orders an evidentiary sanction . . . [citation] prohibiting Defendant . . . Bator . . . from presenting evidence at trial related to any facts, witnesses or documents related to any contract giving rise to this action (Form Interrogatory no. 50.1, et. seq.) [¶] 5. The Court reserves ruling on the issue of monetary sanctions related to the motion being imposed upon Defendant . . . Bator . . . individually and/or as Trustee . . . .”

Summary Judgment

In October 2017 Nilsson filed a motion for summary judgment. In response, Bator filed several random documents.

The court granted the motion for summary judgment including a judgment of judicial foreclosure of Nilsson’s security interest in the real and personal property of Bator’s mining operation. The court found: “Plaintiffs have made a prima facie showing that they are entitled to summary adjudication as a matter of law because Defendants Anthony J. Bator, individually, as Trustee of the North American Conservation Trust, and doing business as Bator Mining, breached and defaulted on the contractual agreements identified in the Verified Complaint resulting in damages to Plaintiffs and thereby entitling Plaintiffs to foreclose upon real and personal property securing Plaintiffs’ interests in the contractual agreements. The Court finds that, in light of Defendants’ failure to submit any opposition to Plaintiffs’ motion and in light of the Court’s September 27, 2017, Order Granting Plaintiffs’ Motion for Sanctions, pursuant to which Defendants are prohibited from presenting any evidence at trial related to any facts, witnesses or documents related to or supporting the denials of material allegation or special or affirmative defenses raised by Defendants, and from presenting any evidence at trial related to any facts, witnesses or documents related to any contract giving rise to this action, Defendants have failed to meet their burden of establishing that a dispute exists as to any material fact on any cause of action.”

Nilsson filed a memorandum of costs for $35,907.75, including requested attorney fees. The court also granted Nilsson’s motion for an award of attorney fees.

The court entered judgment in favor of Nilsson. Bator filed a notice of appeal.

DISCUSSION

I

We begin by noting Bator, proceeding in pro. per., has filed a 65-page opening brief devoid of either citations to the record or coherent legal argument. Instead, Bator regurgitates his version of events and lambasts the court as biased and complicit in a conspiracy against him.

According to Bator: “Mr. Nilsson represented himself as a venture capitalist, a specialist in raising capital; and seeking higher returns for taking risks. Returns are high because the concept of being a venture capitalist accompanies the commitment to accomplish and finish goals. In the contracts between the parties here the contracts call for completion of the processing mill. The contracts identify that Mr. Nilsson purchased gold bearing ore. Mr. Nilsson’s failure to fund the mill kept his ore from being processed. He made the decisions that caused the delays in completing the mill. Mr. Nilsson’s failure to pay Bator’s salary caused Bator’s financial problems. Mr. Nilsson engineered the incompletion of the mill. Because of his actions, he now attempts to enrich himself by attempting to take over this project clearly violating the intent of the parties. Judge Dixons [sic] prejudices [sic] against Mr. Bator has permitted this fraudulent attempt to take North American Conservations [sic] Trust’s property and Bator’s company.” Bator cites nothing in the record to support these claims.

As for the discovery issues, Bator asserts: “Mr. Bator’s answers were 100% accurate. Unfortunately for Griffith [Nilsson’s counsel], Bator’s answers are 100% true and do not support Griffiths [sic] allegations and demonstrate it was Nilsson who breached the contracts. [¶] This suit, these contracts are a big deal. When this mine is operating, the value of the project will easily exceed 100,000,000.00 not in gold value, in what can happen with good management and operations begin. [¶] Mr. Nilsson’s greed has overcome his honor. [¶] Mr. Nilsson et al could not prevail in this case without a judge who appears unwilling to enforce the contracts or the law. [¶] Mr. Nilsson et al could not prevail in this case without a judge who is prejudice [sic] against the defendants.”

II

On appeal, a party challenging an order has the burden to show error by providing an adequate record and making coherent legal arguments, supported by authority, or the claims will be deemed forfeited. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; In re S.C. (2006) 138 Cal.App.4th 396, 408.) The rules of appellate procedure apply to plaintiffs even though they are representing themselves on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121.) A party may choose to act as his or her own attorney. We treat such a party like any other party, and he or she “ ‘is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) Accordingly, we consider Bator’s challenge to the trial court’s rulings on the demurrer, discovery motion, and summary judgment with these standards in mind.

III

The function of a demurrer is to test the sufficiency of the complaint by raising questions of law. We give the complaint a reasonable interpretation and read it as a whole with all parts considered in their context. A general demurrer admits the truth of all material factual allegations. We are not bound by the construction placed by the trial court on the pleadings; instead, we make our own independent judgment. (Herman v. Los Angeles County Metropolitan Transportation Authority (1999) 71 Cal.App.4th 819, 824.)

Where the trial court sustains the demurrer without leave to amend, we must decide whether there is a reasonable probability the plaintiff can cure the defect with an amendment. If we find that an amendment could cure the defect, we must find the court abused its discretion and reverse. If not, the court has not abused its discretion. The plaintiff bears the burden of proving an amendment would cure the defect. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)

Bator filed a cross-complaint, an amended cross-complaint, and a second amended cross-complaint. The trial court ultimately granted Nilsson’s demurrer to the second amended cross-complaint.

On appeal, Bator presents a rambling list of “Errors” he accuses the trial court of committing in ruling on Nilsson’s demurrer. However, Bator fails to explain what causes of action he adequately pled in his cross-complaint. Nor does he set forth how the cross-complaint could be amended to cure the defects found by the trial court.

As noted, it is Bator’s burden to affirmatively show the court erred. To demonstrate such error, Bator must provide meaningful legal analysis supported by citations to both the facts in the record and citations to authority to support his claims. Mere suggestions of error, without supporting argument or authority other than general abstract principles fail to present us grounds for review on appeal. (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.) Accordingly, given the absence of either citations to the record or legal authority to support Bator’s claims regarding the demurrer, the claim is forfeited.

IV

During the course of litigation, discovery requests and responses flew fast and furious between the parties. After several attempts to compel Bator to respond to discovery, the trial court issued a detailed order sanctioning Bator for a variety of discovery abuses.

We review a trial court’s order imposing a discovery sanction for an abuse of discretion, resolving any evidentiary conflicts most favorably to the trial court’s ruling. We reverse only if the trial court’s action was arbitrary, capricious, or whimsical. Bator bears the burden to demonstrate the trial court erred and where the evidence is conflicting we shall not disturb the trial court’s finding. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 878.)

The record before us reveals an on-going failure of Bator to respond to Nilsson’s discovery requests. At several junctures, the trial court ordered compliance to no avail. On appeal, Bator provides no coherent argument challenging the trial court’s order. We find no abuse of discretion.

V

The trial court granted Nilsson’s motion for summary judgment, including a judgment of judicial foreclosure of Nilsson’s security interest in the real and personal property of Bator’s mining operation. A motion for summary judgment must be granted if the submitted papers show there is no triable issue of fact and that the moving party is entitled to judgment as a matter of law. The moving party initially bears the burden of making a showing of the nonexistence of any genuine issue of fact. Once the moving party has met its burden, the burden shifts to the opposing party to show the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subds. (c), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845.)

On appeal, Bator states: “Multiple actions by Judge Dixon are unlawful and without merit. The court accepts the single statement by Nilsson et al, that they/he has fulfilled his obligations under the contract. This is a lie. A factual dispute warrants a jury trial. Mr. Nilsson breaches warrant a counter suit for breach of contract. Nilsson breaches pre-date M. Bator’s arrest and Mr. Bator can substantiate Nilsson et. al breaches; Unfortunately, Judge Dixon refused to allow appellant the ability to present evidence warranting Bator counter suit against Nilsson et al.” Again, given Bator’s failure to either cite to the record or legal authority to challenge the trial court’s grant of summary judgment, the claim is forfeited.

DISPOSITION

The judgment is affirmed. Nilsson shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

/s/

RAYE, P. J.

We concur:

/s/

BUTZ, J.

/s/

MURRAY, J.