Filed 1/27/22 Berman v. HSBC Bank USA 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Nevada)
----
STANLEY BERMAN, C092382
Plaintiff and Appellant, (Super. Ct. No. CU14080886)
v.
HSBC BANK USA, N.A.,
Defendant and Respondent.
Plaintiff Stanley P. Berman, representing himself in pro. per.,1 sued defendant
HSBC Bank USA, N.A. following defendant’s denial of plaintiff’s application for a loan
modification. In his third amended complaint, plaintiff asserted two causes of action
against defendant for violation of Civil Code2 section 2923.6 and Business and
Professions Code section 17200 et seq. Defendant filed a motion for summary judgment
(the motion), which was granted.
1 Defendant notes plaintiff is an attorney licensed to practice law in California. This
fact, if true, is immaterial to our review of the appeal. We treat pro. per. parties the same
as represented parties, i.e., uniformly applying the procedural and substantive rules of
appellate review. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
2 All further section references are to the Civil Code unless otherwise specified.
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The trial court agreed with defendant that, because section 2923.6 was repealed
effective January 1, 2018, “the instant lawsuit, based thereon, is now terminated.” In that
regard, the trial court rejected plaintiff’s arguments that his claims were preserved under:
(1) Senate Bill No. 818 (Stats. 2018, ch. 404, § 7), which became effective January 1,
2019; (2) “the rule of ‘statutory continuity’ ” discussed in Travis v. Nationstar Mortg.,
LLC (9th Cir. 2018) 733 Fed.Appx. 371, 373; (3) “the authority of Schmidt v. Citibank,
N.A. (2018) 28 Cal.App.5th 1109, 1117”; and (4) the law of the case doctrine.
As to the law of the case contention, the court explained plaintiff argued the trial
court was bound to follow a prior trial judge’s ruling that Senate Bill No. 818
“ ‘resurrected’ ” plaintiff’s section 2923.6 claim; a ruling issued in denial of defendant’s
prior motion for judgment on the pleadings. The court cited several cases, noting the law
of the case doctrine does not apply to trial court rulings.
Plaintiff appeals asserting only that “the trial court made reversible error by not
following its prior ruling.” (Bolding, capitalization, and underlining omitted.) Defendant
argues plaintiff forfeited the appeal by filing a deficient opening brief and failing to
provide an adequate record to permit meaningful review. In the alternative, defendant
asserts plaintiff’s argument is meritless. We affirm.
DISCUSSION
We are unable to conduct an appropriate review of the trial court’s ruling because
we do not have an adequate record on appeal. As plaintiff appropriately notes, we review
the grant of a motion for summary judgment de novo to determine whether the moving
party met his, her, its, or their burden of proof. (Lewis v. County of Sacramento (2001)
93 Cal.App.4th 107, 116.) In that vein, we assume the role of the trial court by
independently examining the record and evaluate the correctness of the trial court’s
ruling, not its rationale. (Moore v. William Jessup University (2015) 243 Cal.App.4th
427, 433.) “It is a fundamental principle of appellate law that the lower court’s judgment
is presumed to be correct. An appellant has the burden to overcome the presumption of
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correctness and show prejudicial error.” (Silva v. See’s Candy Shops, Inc. (2016) 7
Cal.App.5th 235, 260, disapproved on another ground in Donohue v. AMN Services, LLC
(2021) 11 Cal.5th 58, 77.)
The appellant’s appendix contains only two documents: the order denying the
motion for judgment on the pleadings and the order granting the motion for summary
judgment. We are unable to conduct a de novo review of the ruling on the motion
because the record is missing several documents critical to our review, such as the
memoranda of points and authorities in support of and opposition to the motion and the
separate statements of undisputed material facts.3 Indeed, the trial court’s ruling on the
motion indicates there were other bases asserted by defendant in support of its motion.
Thus, even if we were to agree with plaintiff’s argument, we cannot reverse the judgment
because we cannot evaluate whether plaintiff was prejudiced. For that reason, if the
record is inadequate for meaningful review, “the appellant defaults and the decision of
the trial court should be affirmed.” (Mountain Lion Coalition v. Fish & Game Com.
(1989) 214 Cal.App.3d 1043, 1051, fn. 9.)
Additionally, plaintiff’s sole argument on appeal is that “[t]he power of one trial
judge to vacate another judge’s orders is ‘limited’ and should only be exercised as
prescribed by statute.”4 (Citing Church of Scientology v. Armstrong (1991) 232
Cal.App.3d 1060.) Nothing in the appellant appendix indicates the ruling on the motion
3 As defendant appropriately notes, the appellant’s appendix also fails to include
several items required by the California Rules of Court. (Cal. Rules of Court, rule
8.124(b)(1)(A)-(C).) After defendant filed its respondent’s brief, plaintiff filed a motion
to augment the record on appeal. We denied the motion to augment “for inexcusable
delay and inexcusable neglect in preparing the record.”
4 We are unable to confirm that the theory asserted by plaintiff on appeal was
appropriately raised in the trial court. Plaintiff’s theory appears to be different from the
law of the case doctrine asserted in the trial court.
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for judgment on the pleadings was vacated by the judge presiding over the motion and
plaintiff provides no citation to the record to support his argument. (Nwosu v. Uba,
supra, 122 Cal.App.4th at p. 1246 [“ ‘[i]f a party fails to support an argument with the
necessary citations to the record, . . . the argument [will be] deemed to have been
[forfeit]ed’ ”].)
For the foregoing reasons, we conclude plaintiff has failed to demonstrate
prejudicial error on appeal and thus affirm the judgment.
DISPOSITION
The judgment is affirmed. Defendant shall recover its costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1)-(2).)
/s/
Robie, J.
We concur:
/s/
Raye, P. J.
/s/
Hull, J.
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