Filed 2/19/20 Belisario v. Countrywide Home Loans, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SALVADOR L. BELISARIO,

Plaintiff and Appellant,

v.

COUNTRYWIDE HOME LOANS, INC., et al.,

Defendants and Respondents.

D074366

(Super. Ct. No. 37-2014-00038773- CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohfeil, Judge. Affirmed.

The Law Office of Cliff Dean Schneider and Cliff Dean Schneider for Plaintiff and Appellant.

McGuireWoods, Leslie M. Werlin and Piper A. Waldron for Defendants and Respondents.

I

INTRODUCTION

Salvador Belisario appeals a judgment of dismissal after the trial court granted nonsuit against him in favor of defendants Bank of America, N.A., successor by merger to BAC Home Loan Servicing, L.P., formerly known as Countrywide Home Loans Servicing, L.P., Countrywide Home Loans, Inc., and Bank of New York Mellon as trustee on behalf of CWMBS, Inc. CHL Mortgage Pass-Through Trust 2004-29, also sued as CWMBS, Inc. (collectively defendants). Belisario contends (1) the court erred in sustaining the defendants’ demurrer to his second amended complaint as to his third, fourth, and fifth causes of action, (2) the court erred in striking a third amended complaint, (3) the court erred in granting summary adjudication of the sixth cause of action for declaratory and injunctive relief, and (4) the court erred in granting nonsuit as to the remaining first and second causes of action. We conclude Belisario forfeited each of his claims by failing to support his contentions with reasoned argument supported by legal authority and citations to the record. Therefore, we affirm the judgment of dismissal.

II

BACKGROUND

Belisario obtained a mortgage loan of $750,000 in 2004 secured by a deed of trust encumbering the Belisario residence. Belisario fell behind on his monthly mortgage payments in late 2008 and requested a loan modification. Belisario alleged he attempted to obtain a loan modification for years. A notice of default and election to sell was recorded in January 2012 followed by several notices of trustee’s sale issued between September 2012 and August 2014.

Although we do not have a complete record of the pleadings, the record describes Belisario filed a complaint in November 2014 and a first amended complaint seeking to enjoin the nonjudicial foreclosure process and alleging the defendants had no standing to foreclose. After the court sustained the defendants’ demurrer with leave to amend, the second amended complaint alleged defendants failed to properly handle loan modification applications and asserted claims for violations of the Homeowners’ Bill of Rights.

In July 2016, the court sustained defendants’ demurrer to the third through fifth causes of action in the second amended complaint, but overruled the demurrer as to the first cause of action for fraud, the second cause of action for breach of the covenant of good faith and fair dealing, and the sixth cause of action for declaratory and injunctive relief. The court concluded Belisario failed to state a claim in the third cause of action for wrongful foreclosure because a trustee’s deed upon sale had not been recorded and plaintiff’s claim was limited to injunctive relief. The court sustained the demurrer to the fourth cause of action for alleged violations of the Truth in Lending Act (TILA) and the Real Estate Settlement Procedure Act (RESPA) because the claim under TILA was time-barred and Belisario had not alleged sufficient facts regarding a failure to comply with the RESPA. Finally, the court sustained the demurrer as to the fifth cause of action for quiet title for failure to state when quiet title was sought. The notice of ruling stated the court sustained the demurrer to the third, fourth, and fifth causes of action without leave to amend.

In January 2017, the court struck a third amended complaint filed on August 18, 2016, because Belisario had not obtained leave of court. However, Belisario thereafter filed another third amended complaint in March 2017.

The court granted the defendants’ motion for summary adjudication as to the sixth cause of action for declaratory and injunctive relief because it concluded, as a matter of law, the statutory nonjudicial foreclosure scheme does not permit preemptive relief claims to challenge foreclosure proceedings. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154–1155 (Gomes).)

The case proceeded to trial on the first cause of action for fraud by concealment and the second cause of action for breach of the covenant of good faith and fair dealing. The parties agreed these were the only two remaining causes of action.

After Belisario presented his evidence and rested, the defendants moved for nonsuit. Concluding there was no evidence to support the necessary elements of either of the remaining claims, the court granted the motion for nonsuit and dismissed the action.

Specifically, the court stated there was “no evidence that the defendants concealed from [Belisario and his wife] their option for a possible modification” to support the first cause of action for fraud. The court also determined there was no evidence any disclosures by the defendants were partial or deceptive. The court noted the defendants gave Belisario multiple opportunities to modify the loan and to comply with the loan obligations, but Belisario did not accept the modification or comply with the opportunities. The court concluded the defendants did not engage in deception, Belisario’s conduct was not reasonable, and there were no damages considering the plaintiffs had lived in the home without making a regular mortgage payment for almost 10 years. The court commented that if the defendants could be criticized at all it would be for not moving more assertively to take the property.

As to the second cause of action, the court concluded there was a contract, but the lender was not obligated to offer a modification. Nevertheless, the defendants did so and did everything they should have done in eliciting information to evaluate and propose a modification. The court noted the defendants made multiple loan modification proposals to Belisario, who chose not to comply. The court noted the Belisarios had been living in the home free of charge for nine years despite testifying that they had the means to meet their payment obligations. The evidence showed the Belisarios received the benefit of the contract—possession of the home—without paying the mortgage for years and the defendants did not interfere with any contractual right. Finally, the court concluded there was no evidence of harm or damages from any alleged breach of the implied covenant.

III

DISCUSSION

A

Belisario cites general authority for the proposition that a general demurrer should be overruled if any cause of action is stated. (Amacorp Industrial Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal.App.2d 724, 727.) Belisario then asserts the court was required to overrule the general demurrer to the third, fourth, and fifth causes of action and allow all causes of action to proceed because the court found three other causes of action stated a claim. There is no merit to this contention. In this case, the defendants demurred to individual causes of action rather than to the entire complaint. (See Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 29, 36.) The court’s order sustaining the demurrer to individual causes of action is not affected by the causes of action to which the court overruled the defendants’ demurrer. When a demurrer “establishes a defect in one count, it will be sustained as to that count.” (5 Witkin, California Procedure (5th ed. 2008) Pleading, § 956, p. 370.) “Conversely, if a particular count is well pleaded, it will not be affected by a demurrer sustained to another count.” (Ibid., citing Steiner v. Rowley (1950) 35 Cal.2d 713, 720.)

Belisario does not challenge the court’s ruling as to why the third, fourth, and fifth causes of action were deficient and thereby forfeits any claim in that regard. An appellant must “present argument and authority on each point made” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error. (Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) It is not our responsibility to search the appellate record for facts, or to conduct legal research in search of authority, to support the contentions on appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) Any point raised that lacks citation may, in this court’s discretion, be deemed forfeited. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 287, citing Del Real, at p. 768.)

Further, the second amended complaint is not contained in the record on appeal, which precludes us from conducting an independent review. ” ‘[A] party challenging a judgment [or order] has the burden of showing reversible error by an adequate record.’ [Citation.] ‘ “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 ….” ‘ ” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 (Elena S.).)

B

Belisario contends the court erred in striking the third amended complaint filed on August 18, 2016, because the court granted leave to amend. A minute order in the clerk’s transcript indicates the court granted leave to amend in its tentative ruling. However, the notice of ruling stated the court modified the tentative ruling after oral argument to sustain the demurrer to the third, fourth, and fifth causes of action without leave to amend. Belisario did not provide a reporter’s transcript of the hearing so we are not able to resolve any conflict in the record and must presume the judgment is correct. (Elena S., supra, 247 Cal.App.4th at p. 574.)

Additionally, Belisario subsequently filed another third amended complaint in March 2017 without challenging the prior order. ” ‘[A]n appellant waives [the] right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal.’ ” (Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329, 362.) He has not shown how any error in striking the August 2016 third amended complaint resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; F.P. v. Monier (2017) 3 Cal.5th 1099, 1107–1108.)

C

Belisario next contends the court erred in granting summary adjudication of the sixth cause of action for declaratory relief. He does not substantively challenge the court’s ruling that preemptive relief is not contemplated by the nonjudicial foreclosure statutory scheme. (See Gomes, supra, 192 Cal.App.4th at pp. 1154–1155.) Instead, he argues the declaratory relief action was “an inartfully pled prayer for relief,” which should not be subject to a motion for summary adjudication. There is, again, no merit to this contention. Summary adjudication is proper to dispose of a properly pleaded cause of action for declaratory relief even if the controversy between the parties “spills over into other causes of action.” (Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 846.) What is not permitted is misuse of the declaratory relief cause of action to “subvert the requirement a summary adjudication must completely dispose of a cause of action.” (Ibid.) There appears to be no such subversion here and Belisario has not shown reversible error.

D

Finally, Belisario contends the court erred in granting nonsuit. Belisario does not dispute or challenge the basis of the court’s ruling that there was no evidence at trial to support his fraud and breach of the covenant of good faith and fair dealing causes of action. Rather, he contends the third, fourth, and fifth causes of action, which he restated in his third amended complaint, were still pending at the time of trial even though the court had previously sustained demurrers to each of them. Belisario again fails to support this argument with either authority or record references, thereby forfeiting his claim.

Further, Belisario cannot claim on appeal the court erred in trying only the first and second causes of action because he advised the court only two causes of action remained at issue. As such, he invited any error. (Diaz v. Professional Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1203–1204.)

IV

DISPOSITION

The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.