FEDERAL HOME LOAN MORTGAGE CORPORATION v. SELVEY

No. C080922.

FEDERAL HOME LOAN MORTGAGE CORPORATION, Plaintiff and Respondent, v. DONALD J. SELVEY, Defendant and Appellant.

Court of Appeals of California, Third District, Shasta.


NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

RENNER, J.

In this quiet title action, defendant Donald J. Selvey appeals from a summary judgment in favor of plaintiff Federal Home Loan Mortgage Corporation (FHLM). His opening brief purports to raise arguments under twelve separate headings. As labeled, they are: (1) the trial court erroneously exempted FHLM from complying with Code of Civil Procedure sections 437c, 761.020, 1161a and 2077,1 (2) the trial court erred in granting summary judgment because there are material disputed facts, (3) the trial court's findings do not support the judgment, (4) the trial court erroneously admitted evidence over objection, (5) the trial court erroneously changed the legal description of the subject property without a court hearing, (6) the trial court misapplied the law regarding res judicata, (7) the trial court erroneously ordered title quieted to parcel number 018-630-031 in addition to parcel number 018-630-032, (8) the evidence is legally insufficient to support the trial court's findings or the judgment, (9) the validity of FHLM's title was not verified in a prior unlawful detainer proceeding, (10) the trial court abused its discretion, (11) the trial court failed to differentiate between claim preclusion and issue preclusion, and (12) "No Summary Judgment Is Of Record." On reply, he raises new arguments and the count rises to fourteen. His arguments are largely forfeited for lack of necessary citations to the record, lack of development or failure to raise them in his opening brief. As to the arguments he has not forfeited, Selvey has not demonstrated any error. Accordingly, we shall affirm the judgment.

I. BACKGROUND

On December 5, 2014, FHLM filed a complaint for quiet title to real property located at 43600 Sierra Center Drive, Fall River Mills, California 96028 and also known as Shasta County Assessor's Parcel No. 018-630-032 (the Property). The complaint also set forth the legal description of the Property.

On July 8, 2015, FHLM filed a motion for summary judgment on its complaint. With it, FHLM filed a separate statement of undisputed material facts that consisted of 26 allegedly undisputed facts and citations to evidentiary support. In response, Selvey stated that 14 of these facts were disputed, but offered no evidence to support this assertion. Twelve facts were undisputed, including that "[t]he Trustee's Deed Upon Sale which recorded on July 9, 2012, in favor of Federal Home Loan Mortgage Corporation had erroneously included too much land in its legal description." Selvey also filed a four-page "answer" to FHLM's motion but it too cites no evidence.

The trial court held a hearing on FHLM's motion for summary judgment on September 21, 2015, during which it indicated it would grant the motion. An order granting the motion was apparently entered on October 13, 2015. On December 9, 2015, the trial court issued a judgment quieting title on the Property.

The judgment described the Property using the same address, parcel number and legal description as the complaint, and then explained that Marion D. Mills became the fee title owner of the Property by a grant deed recorded on October 18, 2005. We set forth its subsequent statements in detail:

"4. By the Deed of Trust, which was recorded on July 9, 2007, as instrument number 2007-0031462, in the Official Records of Shasta County Recorder, Marion D. Mills, an unmarried woman, gave to Taylor, Bean & Whitaker Mortgage Corp., a Florida Corporation, a voluntary lien against the Subject Property, securing Marion D. Mills' loan repayment obligations under a Promissory Note in the amount of $115,000, dated June 29, 2007. As a result of a typographical error in the Deed of Trust, this Deed of Trust contained a legal description of the Subject Property, but it erroneously contained a legal description of a `long wedge shape parcel.' "5. By the Assignment Of Deed Of Trust, which was recorded on February 15, 2012, as instrument number 2012-0004656, in the Official Records of the Shasta County Recorder, Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Taylor, Bean & Whitaker Mortgage Corp., assigned all of its right, title, and interest in and to the Deed of Trust (Official Records 2007-0031462) to Ocwen Loan Servicing, LLC. "6. By the Assignment of Deed of Trust, which was recorded on June 27, 2012, as instrument number 2012-0020734 in the Official Records of the Shasta County Recorder, [FHLM] became the Beneficiary of the Deed of Trust (Official Records 2007-0031462). "7. On June 28, 2012, the Subject Property was duly sold by non-judicial foreclosure by power of sale under the Deed of Trust (Official Records 2007-0031462), to [FHLM], which was the highest bidder at the foreclosure sale. "8. By the Grant Deed, which was recorded on July 6, 2012, as instrument number 2012-0021774, in the Official Records of the Shasta County Recorder, Marion D. Mills, an unmarried woman, transferred a one hundred percent fee title interest in and to the Subject Property to . . . Selvey. "9. [Selvey] has admitted that he searched the Official Records of the Shasta County Recorder and saw [FHLM]'s Deed of Trust (Official Records 2007-0031462) prior to purchasing the Subject Property from Marion D. Mills. [Selvey] was fully aware of [FHLM]'s Deed of Trust (Official Records 2007-0031462) when he purchased the Subject Property from Marion D. Mills. [FHLM]'s Deed of Trust specifically includes the street address and Assessor's Parcel Number of the Subject Property. As a result, [Selvey] had actual notice of [FHLM]'s claim to the Subject Property. Therefore, [Selvey] was not a bona fide purchaser of the Subject Property. "10. By Trustee's Deed Upon Sale, which was recorded on July 9, 2012, as instrument number 2012-0022037, in the Official Records of the Shasta County Recorder, [FHLM] became vested with a one hundred percent fee title interest in and to the Subject Property. "11. The Trustee's Deed Upon Sale, which was recorded on April 3, 2013, as instrument number 2013-0012282, in the Official Records of the Shasta County Recorder, has corrected the legal description of the earlier Trustee's Deed Upon Sale (Official Records 2012-[0022037]) by removing from its legal description the `long wedge shape parcel.' "12. [FHLM]'s one hundred percent fee title to the Subject Property is hereby quieted as of April 3, 2013, based on [FHLM]'s Trustee's Deed Upon Sale (Official Records 2013-0012282), and . . . Selvey has no right, title, estate, lien or interest in or to the Subject Property which is adverse to [FHLM]'s one hundred percent fee title interest in the Subject Property."

Selvey timely appealed.

II. DISCUSSION

A. Standard of Review

"A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law." (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; see also § 437c, subd. (c).) On appeal, we review the trial court's decision de novo. (Merrill v. Navegar, Inc., supra, at p. 476.) A plaintiff moving for summary judgment "bears the burden of persuasion that `each element of' the `cause of action' in question has been `proved,' and hence that `there is no defense' thereto." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; see also § 437c, subd. (p)(1).) The plaintiff "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co., supra, at p. 850.) Once the plaintiff meets its initial burden, the burden shifts to the defendant to demonstrate the existence of a triable issue of material fact. (Id. at pp. 849-850.) "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 material fact exists as to the cause of action or a defense thereto." (§ 437c, subd. (p)(1).)

"A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) The party challenging the judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) And merely furnishing a record is not enough. He must cite to it: "`It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations.'" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.) Similarly, "[t]o 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 by the reviewing court.' [Citations.] Hence, conclusory claims of error will fail." (In re S.C. (2006) 138 Cal.App.4th 396, 408.)

The appellant must also "[s]tate each point under a separate heading or subheading summarizing the point." (Cal. Rules of Court, rule 8.204(a)(1)(B).) "This is not a mere technical requirement; it is `designed to lighten the labors of the appellate tribunals by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.'" (In re S.C., supra, 138 Cal.App.4th at p. 408.) Selvey's arguments "echo each other under their different headings in contravention of the requirements of focused briefing." (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 202.) Nonetheless, we have decided the best method of identifying what questions were tendered for our consideration is to identify his arguments by their headings in the opening brief because we must begin somewhere and "[f]ailure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.) Moreover, any arguments raised or only supported by authority on reply have been waived. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.) The rules of appellate procedure apply to Selvey even though he is representing himself on appeal. (McComber v. Wells (1999) 72 Cal.App.4th 512, 523.)

B. Issues Forfeited for Lack of Any Citation to the Record Before the Trial Court

Selvey's opening brief asserts that the trial court entered an order granting summary judgment on October 13, 2015, yet he cites to several documents he filed on November 9, 2015: (1) a request for a new "trial" under section 657, (2) objections to the declaration of Charles Whitecotton and (3) a purported "amended response" to FHLM's separate statement of undisputed material facts accompanied with exhibits. The court denied the request for a new trial as procedurally improper. Selvey does not challenge this ruling on appeal. With respect to the summary judgment ruling, "[i]n reviewing the trial court's ruling, we must consider the facts before the court at the time of its ruling, and not by reference to evidence produced at a later date." (Sacramento Area Flood Control Agency v. Dhaliwal (2015) 236 Cal.App.4th 1315, 1328, fn. 5.) With this in mind, as we discuss next, the arguments made under the following headings were forfeited for lack of any citation to necessary support in the summary judgment record: (1) the trial court erroneously exempted FHLM from complying with sections 437c, 761.020, 1161a and 2077,2 (4) the trial court erroneously admitted evidence over objection, (5) the trial court erroneously changed the legal description of the subject property without a court hearing, (6) the trial court misapplied the law regarding res judicata, (7) the trial court erroneously ordered title quieted to parcel number 018-630-031 in addition to parcel number 018-630-032, (9) the validity of FHLM's title was not verified in a prior unlawful detainer proceeding, (10) the trial court abused its discretion and (11) the trial court failed to differentiate between claim preclusion and issue preclusion.

1. Declaration of Charles Whitecotton

Selvey's fourth argument (which also appears to be imbedded in his first and fifth arguments) is that the trial court erroneously admitted parol evidence from a declaration of Charles Whitecotton over his objection. He cites to nothing in the record indicating he objected to this declaration before the trial court granted FHLM's motion for summary judgment. Nor does he offer any citation to what he contends is the offending part of the declaration. Moreover, he does not support his assertion that the trial court relied on parol evidence contained in this document to change the legal description of the property. Accordingly, this argument is forfeited by Selvey's failure to provide necessary citations to the record. (Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.)

Under his fifth heading, Selvey argues "[t]he legal description was unilaterally changed without a hearing by a court of competent jurisdiction as positively mandated. Hanlon v. Western Loan & Building Co. (1941) 46 Cal.App.2d 580; therefore the statement, extrinsic to the Deed of Trust, which the Court accepted without question, of Mr. Whitecotton that the unilaterally revised April 2013, Trustee's Deed corrected the error was false." Again, Selvey does not support his assertion with any relevant citations to the record. Moreover, Selvey's citation to Hanlon v. Western Loan & Building Co. (1941) 46 Cal.App.2d 580 (Hanlon) generally is of no assistance. In Hanlon, the appellate court affirmed a judgment reforming certain instruments under which a loan company claimed title to certain real property, and quieting the title to this property. (Id. at pp. 584, 604.) It is unclear what portion of the opinion Selvey means to invoke. We assume it is the portion that explains that while a deed that is insufficient or incomplete cannot be made good by parol evidence in an action for breach of contract or specific performance, that rule has no application in an action for reformation. (Id. at p. 598.) If so, this holding is inapplicable to this action for quiet title. Regardless, Selvey's argument again appears to be based on a claim of reliance on parol evidence in the Whitecotton declaration that is not supported by any citation to the record. These claims are forfeited.

2. Res Judicata

Selvey's fifth, sixth, ninth, tenth and eleventh claims regarding res judicata and the effect of prior proceedings are forfeited because Selvey cites neither any evidence of prior proceedings that were in the record at the time of the summary judgment motion nor the trial court's consideration of these issues. "The burden of proving that the requirements for application of res judicata have been met is upon the party seeking to assert it as a bar or estoppel." (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.) We cannot assess Selvey's claim of error without any understanding of what was before the trial court. Again, Selvey has forfeited these arguments by failing to provide necessary citations to the record.

3. Allegation That Judgment Quiets Title to Additional Property

Selvey's seventh argument states that the trial court erroneously ordered title quieted to parcel number 018-630-031 in addition to parcel number 018-630-032 by describing more property than the complaint. We have discerned no difference between the property described in the complaint and the property described in the judgment. Nonetheless, the only support Selvey offers for his claim is an attachment to his motion for new trial. Thus, it is also forfeited by Selvey's failure to cite evidence that was submitted to the court at the time of the summary judgment motion.

B. Other Forfeited Issues

Several other arguments were superficially supported by some citation to the record, but are nonetheless also forfeited.

1. Allegation of Material Disputed Facts

Under his second argument heading, Selvey contends the trial court erred in granting summary judgment because there are material disputed facts. He alleges generally in subheadings that "No Cause of Action was specified" and "The Issues of Triable Facts, Property Identification, Deed of Trust validity, Foreclosure Process, nor Bona Fide Purchaser Were not Identified by Respondent." These arguments are not sufficiently developed or supported by citation to the record to be preserved. (In re S.C., supra, 138 Cal.App.4th at p. 408; Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1307.) Selvey's only citation to the record3 before the trial court at the time of FHLM's motion for summary judgment is to his opposition brief. This is insufficient to create a triable issue of fact. (See § 437c, subd. (p)(1) ["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 material fact exists as to the cause of action or a defense thereto"]; see also § 437c, subd. (b)(3) ["Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence"].) Nor is it sufficient to develop his argument on appeal. Selvey has therefore forfeited the arguments asserted under his second heading regarding alleged material disputed facts.

2. Allegation That Findings Did Not Support the Judgment

With respect to his third argument, that the trial court's findings did not support the judgment, Selvey cites only the judgment (which does contain findings). He does not cite the trial court's order granting the motion for summary judgment or any authority. His legally unsupported and conclusory argument forfeits the issue for review. (In re S.C., supra, 138 Cal.App.4th at p. 408; Craddock v. Kmart Corp., supra, 89 Cal.App.4th at p. 1307.)

3. "No Summary Judgment Is Of Record"

Under the heading "No Summary Judgment Is Of Record," Selvey's twelfth argument states in its entirety, "Ex-parte, Plaintiff prevailed upon the Honorable Judge Baker to purge the file of the Summary Judgment of Judge Anderson and issue a Judgment for Quiet Title; although Judge Baker had never heard the case in any hearing of record." Selvey cites no legal authority, nor are we certain what his claim is. The only support he offers at all is a citation to an order from the trial court denying without prejudice a proposed judgment submitted by FHLM as overbroad and exceeding the scope of the court's order granting FHLM's motion for summary judgment. It does not appear to support Selvey's argument on appeal. This argument is also forfeited.

C. "Sufficiency of the Evidence"

We will address Selvey's eighth argument — that the evidence was legally insufficient to support the findings or the judgment — on the merits. He cites section 657(6), which sets forth "[i]nsufficiency of the evidence to justify the verdict or other decision" as a ground for granting a motion for a new trial. This is not the standard for reviewing a trial court's granting of a motion for summary judgment on appeal. Moreover, Selvey's arguments are otherwise unavailing. Section 761.020, subdivision (a) requires that a complaint in a quiet title action describe the real property that is the subject of the action by both its legal description and its street address or common designation. Additionally, for a deed to be valid, its description of real property must be sufficient to enable the property to be located. (Scott v. Woodworth (1917) 34 Cal.App. 400, 409.) Selvey invokes both of these principles despite the fact that neither applies here. FHLM's 2013 deed, the complaint and the judgment contain the same address, parcel number and legal description.4 Selvey's true complaint appears to be his unsupported claim, discussed above, that the judgment covers too much property. This is not a certainty issue, and it is unsupported by any citation to the record relating to the trial court's summary judgment ruling. Accordingly, he has failed to demonstrate any error on appeal.5

III. DISPOSITION

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

MAURO, Acting P. J., and HOCH, J., concurs.

FootNotes


1. Undesignated statutory references are to the Code of Civil Procedure.
2. The arguments under the first heading are subsumed in the arguments we discuss below regarding the declaration of Charles Whitecotton, res judicata, allegedly disputed material facts and "sufficiency of the evidence." We will discuss them there but highlight that Selvey offered no additional evidentiary support for these arguments under his first heading either.
3. Selvey's citations to "RT" generally are not sufficient to avoid forfeiture. (Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.) We do not comb the record on an appellant's behalf. (People v. Smith (2015) 61 Cal.4th 18, 48.)
4. The fact that respondent repeatedly transposes parcel numbers when describing the property in its respondent's brief is irrelevant.
5. This section also appears to contain several undeveloped, lurking arguments. We reject them on that basis. (See People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2 ["We discuss those arguments that are sufficiently developed to be cognizable. To the extent defendant perfunctorily asserts other claims, without development and, indeed, without a clear indication that they are intended to be discrete contentions, they are not properly made, and are rejected on that basis"].)

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