Opinion
E073425
01-08-2021
WILEHADO T. CABANILLA, Plaintiff and Appellant, v. DEUTSCHE BANK NATIONAL TRUST, as Trustee, etc., Defendant and Respondent.
Wilehado T. Cabanilla, Plaintiff and Appellant in pro. per. McCalla Raymer Leibert Pierce, Nabeel Zuberi and Michael R. Gonzales for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS 1902288) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. REQUEST FOR JUDICIAL NOTICE. Denied. Wilehado T. Cabanilla, Plaintiff and Appellant in pro. per. McCalla Raymer Leibert Pierce, Nabeel Zuberi and Michael R. Gonzales for Defendant and Respondent.
This is an action for wrongful foreclosure, brought by Wilehado T. Cabanilla, in propria persona, against an entity with a very long name that we will abbreviate as "the Trust." The trial court granted the Trust's motion for judgment on the pleadings, on the ground that the judgment in a prior action between Cabanilla and the Trust was res judicata.
This entity's full name is Deutsche Bank National Trust Company as Trustee for First Franklin Mortgage Loan Trust 2006-FF11, Mortgage Pass-Through Certificates Series 2006-FF11.
Cabanilla appeals. He contends:
1. The Trust did not adequately allege res judicata.
2. The prior judgment was not res judicata in this action.
3. The trial court should have granted Cabanilla's cross-motion for judgment on the pleadings.
We will hold that Cabanilla forfeited any defects in the Trust's allegation of res judicata by failing to demur to the answer. Also, Cabanilla cannot show that the prior judgment was not res judicata, because he has not given us an adequate record. Because the trial court properly granted judgment on the pleadings for the Trust, it did not err by failing to grant Cabanilla's cross-motion. Hence, we will affirm.
I
STATEMENT OF FACTS
"Because this matter comes to us after a judgment on the pleadings, we take the facts from [the p]laintiff's complaint, the allegations of which are deemed true for the limited purpose of determining whether [the p]laintiff has stated a viable cause of action. [Citations.]" (Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1004, fn. 1.)
Cabanilla's almost five-page-long "Introduction" asserts numerous facts that are nowhere in the appellate record. We must disregard all of these assertions. (Cal. Rules of Court, rule 8.204(a)(1)(C).) "[F]or the purpose of appellate review, what is not in the record does not exist." (Lane, Goldstein Trial Technique (3d ed. 1991) § 13:36.)
In May 2006, Cabanilla took out a loan for $364,000, secured by real property.
In 2008, Mortgage Electronic Registration Systems, Inc. (MERS) purported to assign the trust deed to the Trust. At that time, however, MERS did not have possession of the trust deed and did not have any interest in it.
In 2016, the Trust recorded a notice of default. In 2018, it recorded a notice of sale. It proceeded to buy in Cabanilla's property in a nonjudicial foreclosure.
The foreclosure did not comply with the requirements of Civil Code section 2923.5. Specifically, the Trust did not:
1. Contact Cabanilla in person or by telephone to assess his financial situation and to explore options to avoid foreclosure. (Civ. Code, § 2923.5, subd. (a)(2).)
2. Exercise due diligence to contact Cabanilla. (Civ. Code, § 2923.5, subds. (a)(1)(a), (e).)
3. Send Cabanilla a first-class letter including the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency. (Civ. Code, § 2923.5, subd. (e)(1).)
4. Attempt to contact Cabanilla by telephone at least three times at different hours and on different days. (Civ. Code, § 2923.5, subd. (e)(2)(A).)
5. Send Cabanilla a certified letter, with return receipt requested. (Civ. Code, § 2923.5, subd. (e)(3).)
Cabanilla filed a prior action for wrongful foreclosure against the Trust, Case No. CIVDS1607383 (prior action), in which these same violations of Civil Code section 2923.5 were "central issues." In that case, the trial court overruled the Trust's demurrer.
II
STATEMENT OF THE CASE
In 2019, Cabanilla filed this action against the Trust. The complaint asserted three causes of action: (1) to void the foreclosure based on violations of Civil Code section 2923.5, (2) for damages based on violations of Civil Code section 2923.5, and (3) to void the foreclosure based on the Trust's lack of an interest in the trust deed. The Trust filed an answer.
Less than a month later, the Trust filed a motion for judgment on the pleadings, arguing: (1) failure to allege injury in fact, (2) failure to allege required elements of the causes of action, and (3) res judicata. In support of the motion, the Trust filed a request for judicial notice. That request has not been included in the appellate record.
Cabanilla filed an opposition combined with a "counter motion" for judgment on the pleadings. (Capitalization altered.)
The trial court granted the Trust's motion, without leave to amend, based on res judicata. It did not expressly rule on Cabanilla's counter-motion. Thus, it entered judgment against Cabanilla and in favor of the Trust.
III
REQUEST FOR JUDICIAL NOTICE
Cabanilla has filed a request for judicial notice of some 25 specified documents. Nineteen of these are items of documentary evidence, such as letters, emails, and checks (evidentiary items). Five of them are documents that were filed in the prior action (court filings). One is an attorney's State Bar record (State Bar record) (although it is not actually attached to the request).
Specifically: (1) an order denying Cabanilla's motion for a preliminary injunction, (2) the Trust's answer to Cabanilla's first amended complaint, (3) an order granting Cabanilla's motion to compel responses to interrogatories and denying several motions for summary judgment, (4) Wells Fargo Bank's motion to compel responses to a request for production of documents, and (5) the Trust's motion to compel responses to a request for production of documents. --------
The Trust objects to judicial notice of the evidentiary items; it does not object to judicial notice of the other items.
The evidentiary items are not even potentially judicially noticeable. Cabanilla claims they were attached to various documents that have been filed with this court in other cases. However, he submits no proof of this; the documents are not certified copies. Even if he did so, we could take notice that they were filed (Evid. Code, § 452, subd. (d)), but we could not take notice of their contents. (In re Vicks (2013) 56 Cal.4th 274, 314.) In addition, it does not appear that the evidentiary items are relevant (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2) or that they were ever presented to the trial court (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3).
The court filings are potentially judicially noticeable. (Evid. Code, § 452, subd. (d).) Again, however, it does not appear that they are relevant. Some documents filed in the prior action — such as the complaint — would be relevant to whether the judgment in that case is res judicata here; however, these particular court filings are not among them. And, again, it does not appear that they were ever presented to the trial court.
Finally, the State Bar record is potentially judicially noticeable (Evid. Code, § 452, subd. (c)), but we have not been given a copy of it (Evid. Code, § 453, subd. (b)), it does not appear relevant, and it does not appear that it was ever presented to the trial court.
Accordingly, the request for judicial notice is denied in its entirety.
IV
STANDARD OF REVIEW
"'A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.' [Citation.]" (People ex rel. Harris v. Pac Anchor Transp., Inc. (2014) 59 Cal.4th 772, 777.)
Preliminarily, Cabanilla has not addressed all of the grounds that the Trust asserted in its motion. He addresses only res judicata, which was the ground the trial court cited in granting the motion. The Trust, however, also argued that the complaint failed to allege certain required elements of the causes of action, including injury in fact.
"'We affirm the judgment if it is correct on any ground stated in the [motion], regardless of the trial court's stated reasons.' [Citation.]" (Abatti v. Imperial Irrigation District (2020) 52 Cal.App.5th 236, 294; see also People ex rel. Harris v. Pac Anchor Transp., Inc., supra, 59 Cal.4th at p. 777 [a motion for judgment on the pleadings is equivalent to a demurrer].) "'A judgment or order of the lower court is presumed correct. . . . [E]rror must be affirmatively shown. . . .' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "Issues not raised in the appellant's opening brief are deemed waived or abandoned. [Citation.]" (W.S. v. S.T. (2018) 20 Cal.App.5th 132, 149, fn. 7.) As Cabanilla has not argued that the other grounds asserted the motion were not well-taken, we may affirm the judgment for this reason alone.
We proceed to discuss other grounds for affirmance, but only in the alterative.
V
FAILURE TO ALLEGE RES JUDICATA ADEQUATELY
Cabanilla contends that the Trust forfeited res judicata as a defense by failing to allege it adequately in its answer. Unhelpfully, the Trust does not respond to this contention.
Cabanilla did not raise this argument below. Hence, he forfeited the very forfeiture that he asserts. "'It is axiomatic that arguments not raised in the trial court are forfeited on appeal.' [Citation.]" (Delta Stewardship Council Cases (2020) 48 Cal.App.5th 1014, 1074.) "'[A]ny other rule would permit a party to trifle with the courts. The party could deliberately stand by in silence and thereby permit the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.' [Citation.]" (N.M. v. Superior Court (2016) 5 Cal.App.5th 796, 808.)
This is not to suggest that the argument, if raised below, would have merit. The Trust's answer alleged "that the causes of action in alleged in the Complaint are barred in whole or in part by the doctrine of res judicata or claim preclusion." It did not allege any facts supporting this defense.
"When a judgment or order of a court is conclusive, the judgment or order must be alleged in the pleadings . . . ." (Code Civ. Proc., § 1908.5.) "[T]he defense of res judicata can be waived if it is not pled. [Citations.]" (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 230, fn. 10.)
An answer, like a complaint, must plead ultimate facts rather than legal conclusions. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶ 6:459, p. 6-140.) Thus, Cabanilla could have demurred to the answer as unduly conclusory. (Code Civ. Proc., § 430.20; see Payne v. Anaheim Memorial Medical Center, Inc. (2005) 130 Cal.App.4th 729, 746.)
However, his failure to demur forfeited this argument. (Code Civ. Proc., § 430.80, subd. (b); Pacific Paving Co. v. Diggins (1906) 4 Cal.App. 240, 242-243.) "[I]n the absence of a demurrer or an objection to offered evidence, a complaint that alleges an essential fact only inferentially or as a conclusion of law is good. [Citations.]" (Dillon v. Cross (1907) 5 Cal.App. 766, 768.) Once the Trust alleged res judicata, no matter how defectively or conclusorily, Cabanilla was on notice that it was asserting this defense. If he wanted to know the facts underlying the defense, he could have demurred. In any event, in its motion for judgment on the pleadings, the Trust revealed those facts, albeit belatedly. Cabanilla has not shown that he was prejudiced. (See Code Civ. Proc., § 475.)
VI
THE APPLICATION OF RES JUDICATA HERE
Cabanilla argues that the judgment in the prior action is not res judicata because the causes of action there were not identical to those here.
He has forfeited this argument by failing to provide us with an adequate record. "'[A] judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. [Citation.] "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. '[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.'" [Citation.] . . . "'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.'" [Citation.] "Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]." [Citation.]' [Citation.]" (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 311-312.)
In the trial court, the Trust filed a request for judicial notice. Cabanilla has not included it in the appellate record. Apparently, however, the request included the operative complaint and the judgment in the prior action, which the Trust claimed was res judicata. It also included the judgment in a separate unlawful detainer action, which the Trust also claimed was res judicata.
Because Cabanilla has not given us this request, his contention that the causes of action in the prior action were different collapses for lack of support in the record. We acknowledge the "presum[ption] that the record in an appeal includes all matters material to deciding the issues raised." (Cal. Rules of Court, rule 8.163.) Here, however, the presumption has been overcome — the record indisputably does not include all material matters. Moreover, Cabanilla does not even discuss whether the judgment in the unlawful detainer might be res judicata. (See part IV, ante.)
VII
CABANILLA'S COUNTER-MOTION FOR JUDGMENT ON THE PLEADINGS
Cabanilla contends that the trial court erred by denying his counter-motion for judgment on the pleadings. Because Cabanilla cannot show that the action was not barred by res judicata, we disagree.
Cabanilla also was not entitled to judgment on the pleadings for the separate and alternative reason that he gave insufficient notice of his counter-motion. A motion must be served and filed at least 16 court days before the hearing on it. (Code Civ. Proc., § 1005, subd. (b).) Here, the counter-motion was filed on May 22, 2019, and it was set for hearing on June 10, 2019. This was just 12 court days. The Trust duly objected on this ground. The trial court therefore properly did not rule on the counter-motion.
VIII
DISPOSITION
The judgment is affirmed. The Trust is awarded costs on appeal against Cabanilla.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. MILLER
J.