Filed 8/23/18 Kaur v. Bayview Loan Servicing, LLC CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

SUKHJINDER KAUR, et al.,

Plaintiffs and Appellants,

v.

BAYVIEW LOAN SERVICING, LLC, et al.,

Defendants and Respondents.

A147569

(Alameda County

Super. Ct. No. RG11555197)

Sukhjinder Kaur and Randeep Singh (Plaintiffs) appeal from the trial court’s grant of an unopposed motion for summary judgment filed by Bayview Loan Servicing, LLC, Interbay Funding, LLC, Randolph Hawkins, and IB Property Holdings, LLC (Defendants). Because Plaintiffs fail to challenge one of the grounds on which the trial court granted the motion, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the operative Fifth Amended Complaint, Plaintiffs allege that in 2008 Defendants wrongfully foreclosed on their real property in Oakland (the Lot), and wrongfully removed Plaintiffs’ personal property (the Property) from the Lot. Without citing evidence in the record, Plaintiffs claim that they held five taxi permits and operated a transportation company from the Lot; that they allowed their “leasing drivers” to come and go from a fenced area near some service bays; and that one of the service bays served as their office and storage area, and contained “many valuable items (from vehicles and auto parts to a vast array of mechanic’s tools, gold, furniture et al).” The gravamen of the Fifth Amended Complaint is that once the Defendants took possession of the Lot, they hired Monica Rogers to remove the Property from the Lot, and Rogers did so, “under false pretenses, without giving proper notice to Plaintiffs, [and] without properly evicting Plaintiffs from [the Lot].” As relevant here, Plaintiffs sought damages based on three causes of action: unjust enrichment, forcible entry/unlawful detainer, and conversion.

Defendants filed a motion for summary judgment or adjudication. Plaintiffs did not file an opposition, but on the day of the hearing submitted written objections to most of Defendants’ evidence. The trial court, Honorable Wynne Carvill, presiding due to the temporary unavailability of Honorable Gail Brewster Bereola, to whom the case was assigned for all purposes, addressed the objections in its decision on the motion.

The trial court granted Defendants’ motion for “two independently sufficient reasons: (1) Plaintiffs’ responses to [Defendants’] ‘state all facts’ discovery requests—including the parts of Plaintiff Singh’s deposition submitted with the motion—are devoid of any specific facts suggesting that Plaintiffs possess, or can reasonably be expected by the time of trial to obtain, admissible evidence that it was Monica Rogers and not the City [of Oakland] who caused the Property to be removed from the Lot and disposed of, shifting the burden of production to Plaintiffs, who did not timely submit admissible evidence creating a triable factual dispute (see Aguilar v. Atlantic Richfield Oil Co. (2001) 25 Cal.4th 826, 854-855 [(Aguilar)]); and (2) even had Plaintiffs’ discovery responses not been factually devoid, [Defendants] submitted with [their] motion sufficient admissible evidence to support a factual finding that it was the City that cleared the Property from the Lot, and Plaintiffs have not timely disputed the assertions to that effect in the City’s separate statement of undisputed material facts or submitted admissible evidence to create a triable dispute as to whether the city did so.” Eight pages of the trial court’s comprehensive and thoughtful 16-page order are dedicated to detailed discussion of Plaintiffs’ discovery responses, supporting the trial court’s first basis for its ruling.

Judgment was entered for Defendants, and Plaintiffs timely appealed.

DISCUSSION

Plaintiffs raise two arguments in their opening brief on appeal. First, they argue that the evidence presented by Defendants in support of the summary judgment motion was insufficient to merit summary judgment. Second, they argue that the trial court erred in failing to strike a late-filed declaration that Defendants submitted to support their motion. The first argument rests on challenges to the declarations of Steven Johnson, an employee of the City of Oakland, and Jo Ann Snyder, an employee of Bayview Loan Servicing. The second rests on challenges to the declaration of Mark Dorchen, an officer of a real estate services company.

Defendants respond by arguing that Plaintiffs concede the trial court’s first ground for awarding summary judgment by failing to argue the point in the opening brief, and that therefore we should affirm. We agree.

In their reply brief, Plaintiffs do not respond to Defendants’ arguments. Instead, they argue for the first time that the “unusual circumstance of ‘positive misconduct’ by [their] trial counsel . . . [justifies] ‘Daley doctrine’ reconsideration and . . . application of the court’s ‘inherent equity power’ as propounded in Weitz v. Yankosky [(1966) 63 Cal.2d 849] of the ‘equities’ in the case below.” We disregard this argument. (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295 [we will not address arguments raised for the first time in the reply brief].)

A motion for summary judgment must be granted “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence . . . .” (Code Civ. Proc., § 437c, subd. (c).) A defendant meets its burden of showing a cause of action has no merit by showing “that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff . . . 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 material fact exists . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)

Summary judgment law in California “require[s] a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854, fn. omitted.) “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 855, italics added.) “Circumstantial evidence supporting a defendant’s summary judgment motion‘can consist of “factually devoid” discovery responses from which an absence of evidence can be inferred.’ ” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 101 (Andrews).)

We review a trial court’s ruling on summary judgment de novo. (Andrews, supra, 138 Cal.App.4th at p. 100.) However, “[i]ssues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived. [Citations.]” (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2017) ¶ 9:21, p. 9-6.) This general principle applies in summary judgment cases: our review “is limited to issues which have been adequately raised and supported in plaintiffs’ brief.” (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6, (Reyes).) “Issues not raised in an appellant’s brief are deemed waived or abandoned.” (Ibid.)

Plaintiffs do not contest the trial court’s determination that their discovery responses “were devoid of specific facts suggesting that they will be able, at trial, . . . to present admissible evidence raising a triable factual dispute as to whether [Defendants’] alleged agent (or sub-agent) Monica Rogers was the person who caused the Property to be removed from the Lot and disposed of.” Upon reviewing Plaintiffs’ discovery responses in depth, the trial court concluded that the only specific facts that were alleged—“that an unnamed City ‘staff member’ gave Rogers’s business card to Singh and told Singh that Rogers had identified herself as an agent of [Defendants] and obtained a key to the Lot, and that Rogers had told both Singh and Singh’s former counsel that she had caused the Property to be removed”—were based on hearsay. The court observed that Rogers had not been served with the operative complaint or appeared in the action, “and Plaintiffs have not suggested that they know of her location or will be able to depose her or cause her to testify as a witness at trial. Nor do Plaintiffs’ responses provide any identification of the ‘staff member’ or any indication that Plaintiffs will be able to produce that person as a witness at trial.” The trial court also reviewed the portions of Singh’s deposition testimony that Defendants submitted in support of their motion, and concluded that they “do not include any information suggesting that Plaintiffs have any source of non-hearsay documentary or testimonial evidence to create a triable factual dispute as to whether it was Rogers who removed the Property from the Lot as they allege.”

Nor do Plaintiffs contest that, because they did not themselves come forward with evidence in response to Defendants’ motion, their deficient discovery responses justify the trial court’s grant of summary judgment. (Andrews, supra, 138 Cal.App.4th at p. 101.) Because Plaintiffs do not challenge this basis for the trial court’s ruling on appeal, we shall affirm. (See Reyes, supra, 65 Cal.App.4th at p. 466, fn. 6.) We need not reach the trial court’s other determination, that Defendants “submitted sufficient admissible evidence to support a factual finding that it was the City of Oakland, and not Rogers, who caused the removal of the Property from the Lot.”

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

 

_________________________

Miller, J.

We concur:

_________________________

Richman, Acting P.J.

_________________________

Stewart, J.

A147569, Kaur v. Bayview Loan Servicing