Filed 6/13/13 Vaults v. U.S. Bank Nat. Assn. 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



EARL L. VAULTS, JR.,                                                D060606

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No.
                                                                     37-2010-00103203-CU-OR-CTL)
U.S. BANK, NATIONAL ASSOCIATION,

         Defendants and Respondents.


         APPEAL from a judgment of the Superior Court of San Diego County, John S.

Meyer, Judge. Affirmed.

         Earl L. Vaults, Jr., in Pro. Per., for Plaintiff and Appellant.

         Sheppard, Mullin, Richter & Hampton, J. Barrett Marum, Karin Dougan Vogel

and Mark G. Rackers for Defendant and Respondent.

         Plaintiff Earl L. Vaults, Jr., appeals a judgment entered after the trial court

sustained the demurrer of defendant U.S. Bank, N.A. (Bank) in an action filed by Vaults

arising out of a loan and subsequent nonjudicial foreclosure on real property he

encumbered as security for the loan. On appeal, he contends: (1) he adequately alleged a
cause of action for unconscionability; (2) he was not required to make a tender of

payment; and (3) the trial court erred by taking judicial notice of the contents of certain

recorded documents. Based on the grounds discussed below, we affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In 1998, Vaults inherited real property located on Hemlock Street in San Diego

(Property). By 2005, he apparently had obtained numerous adjustable rate home equity

loans for which he encumbered the Property with deeds of trust. On or about February

16, 2006, apparently through Mortgage Partners, Inc. (MP) and Bob Anyanwu, MP's

agent or broker and Vaults's trusted financial advisor, Vaults applied for an adjustable

rate home equity loan in the principal amount of $315,000 with Downey Savings and

Loan Association, F.A. (Downey). On or about February 23, 2006, Vaults signed the

documents for the loan, including a deed of trust encumbering the Property as security for

the loan (Trust Deed). The Trust Deed was recorded on March 1, 2006.

       In 2008, Vaults and Downey entered into a loan modification agreement, lowering

his loan's monthly payments. However, in 2009 Vaults defaulted and Bank, as Downey's

successor-in-interest, recorded a notice of default and election to sell under the power of

sale in the Trust Deed. On April 30, 2010, following nonjudicial foreclosure by a

trustee's sale, a trustee's deed after sale was recorded transferring title to the Property

from Vaults to SD Coastline, LP, the purchaser at the trustee's sale.

       On March 15, 2010, Vaults filed a complaint against Bank and other defendants

alleging fraud and other causes of action arising out of misrepresentations made about the


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time he executed the loan documents on or about February 23, 2006. Bank demurred to

the complaint, arguing Vaults's claims were time-barred. Bank also requested the trial

court take judicial notice of the Trust Deed and documents related to the trustee's sale.

The trial court sustained the demurrer with leave for Vaults to amend. The court stated:

          "On the face of the complaint, it appears that most of the causes of
          action asserted are barred by the applicable statutes of limitation.
          The original loan closed on February 23, 2006. [Citation.] This
          lawsuit was filed over four years later, on March 15, 2010. . . . [¶]
          Plaintiff contends that the statutes of limitation did not begin to run
          until the date of discovery. According to plaintiff, the date of
          discovery is 'the date surrounding the loan modification and the
          breach of oral contract date . . . .' [Citation.] There are no facts
          alleged to support this new allegation."

The court also granted Bank's request for judicial notice.

       Vaults filed a first amended complaint. Bank demurred to that complaint, arguing

the claims were time-barred. The court sustained the demurrer without leave to amend as

to six causes of action and with leave to amend as to the remaining nine causes of action.

The court stated:

          "While it appears that the applicable statutes of limitation bar
          plaintiff's claims, plaintiff has attempted to plead the delayed
          discovery rule. [¶] . . . [¶]

          "Plaintiff alleges that he is entitled to the delayed discovery rule
          'because plaintiff only just found out about the fraud,
          misrepresentations, and other wrongs perpetrated on him . . . .'
          [Citation.] . . .

          "Plaintiff does not allege a date for his delayed discovery, nor does
          plaintiff state facts demonstrating his inability to have made an
          earlier discovery despite reasonable diligence."



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          Vaults filed a second amended complaint. Bank demurred to that complaint,

arguing the claims were time-barred and Vaults had not alleged adequate facts for

application of the delayed discovery rule. The court sustained the demurrer without leave

to amend as to two causes of action and with leave to amend as to the remaining causes

of action. The court stated: "Plaintiff is granted leave to amend to state sufficient facts to

support the delayed discovery rule." It further stated: "[I]f [Bank] chooses to demur to

Plaintiff's TAC [third amended complaint], it is allowed to brief the reasons it believes

Plaintiff['s] claims are barred by the applicable statutes of limitations." The court also

stated:

             "Plaintiff alleges that he only dealt with Bob Anyanwu, his trusted
             Family Financial Advisor/Tax Consultant of 18 years. Mr.
             Anyanwu is alleged to be an agent/broker for [MP]. He is the only
             person who could have made these alleged statements to Plaintiff.
             Plaintiff does not allege facts to support an allegation that [Bank]
             made the alleged statements or was involved in causing anyone to
             make the statements. [¶] . . . Hence, any false representations to
             Plaintiff could not have been made by a [Bank]
             employee/representative."

          Vaults filed a third amended complaint, alleging causes of action for: (1)

violations of Business and Professions Code section 17200 et seq.; (2) fraud; (3) fraud in

the inducement; (4) unfair business practices; (5) wrongful foreclosure; (6) civil

conspiracy; (7) aiding and abetting; (8) unlawful joint venture; and (9) violation of the

Truth in Lending Act (TILA). That complaint alleged "Plaintiff's rights to claims of

damages under the applicable statutes of limitations of four years must be extended and

tolled because of an act of God and impossibility," citing his attorney's unexpected


                                                4
development of cancer before February 26, 2010. Bank demurred to that complaint,

arguing the claims were time-barred and not subject to equitable tolling under the delayed

discovery rule. Citing various statutes of limitation, including the "default" four-year

statute of limitations (Code Civ. Proc., § 343), Bank argued Vaults's action was filed

more than four years after the alleged misrepresentations and other wrongful acts and

therefore those causes of action were time-barred. It also argued the delayed discovery

rule did not apply because Vaults had not pleaded facts showing the time and manner of

his purported delayed discovery or his inability to make an earlier discovery of the facts

essential to his claim despite reasonable diligence. Bank also requested the trial court

take judicial notice of certain additional documents relating to Downey's loan and

Vaults's prior loans.

       The trial court sustained the demurrer without leave to amend. The court stated it

agreed with Bank's demurrer to all nine causes of action on the ground they were time-

barred and therefore failed to state facts sufficient to constitute a cause of action. As an

alternative ground for its ruling, the court stated: "Also problematic are the allegations

pertaining to Plaintiff's 'longtime tax advisor' Bob Anyanwu. Plaintiff alleged Anyanwu

made all of the alleged misrepresentations involved in the mortgage at issue in this

action; however, Plaintiff has failed to adequately allege Anyanwu had any connection to

[Bank]. His vague allegations of conspiracy do not suffice." Finally, the court stated:

"[T]he problems with Plaintiff's Second Amended Complaint, which the Court set forth

in its ruling on June 17, 2011, have not been adequately corrected, nor can they based on


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Plaintiff's failure to timely file this action." The court also granted Bank's request for

judicial notice.

       On September 15, 2011, the trial court entered judgment for Bank. Vaults timely

filed a notice of appeal.

                                        DISCUSSION

                                               I

              Presumption of Correctness and Appellant's Burden on Appeal

       A trial court's judgment or order is presumed to be correct. In Denham v. Superior

Court (1970) 2 Cal.3d 557, the court stated:

           "[I]t is settled that: '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, and error
           must be affirmatively shown [by the appellant]. This is not only a
           general principle of appellate practice but an ingredient of the
           constitutional doctrine of reversible error.' " (Id. at p. 564.)

"The burden of affirmatively demonstrating error is on the appellant." (Fundamental

Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) "An appellant

must provide an argument and legal authority to support his contentions. This burden

requires more than a mere assertion that the judgment is wrong. 'Issues do not have a life

of their own: If they are not raised or supported by argument or citation to authority,

[they are] . . . waived.' [Citation.] It is not our place to construct theories or arguments to

undermine the judgment and defeat the presumption of correctness. When an appellant

fails to raise a point, or asserts it but fails to support it with reasoned argument and



                                               6
citations to authority, we treat the point as waived." (Benach v. County of Los Angeles

(2007) 149 Cal.App.4th 836, 852.)

       "Where a point is merely asserted by [appellant] without any [substantive]

argument of or authority for its proposition, it is deemed to be without foundation and

requires no discussion." (People v. Ham (1970) 7 Cal.App.3d 768, 783, disapproved on

another ground in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.) "Issues do not have

a life of their own: if they are not raised or supported by [substantive] argument or

citation to authority, we consider the issues waived." (Jones v. Superior Court (1994) 26

Cal.App.4th 92, 99; see also Landry v. Berryessa Union School Dist. (1995) 39

Cal.App.4th 691, 699-700 ["[w]hen an issue is unsupported by pertinent or cognizable

legal argument it may be deemed abandoned and discussion by the reviewing court is

unnecessary"]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488,

fn. 3 [contention was deemed waived because "[a]ppellant did not formulate a coherent

legal argument nor did she cite any supporting authority"]; Colores v. Board of Trustees

(2003) 105 Cal.App.4th 1293, 1301, fn. 2 ["[t]he dearth of true legal analysis in her

appellate briefs amounts to a waiver of the [contention] and we treat it as such"]; Bayside

Auto & Truck Sales, Inc. v. Department of Transportation (1993) 21 Cal.App.4th 561,

571.) Appellants acting in propria persona are held to the same standards as those

represented by counsel. (See, e.g., City of Los Angeles v. Glair (2007) 153 Cal.App.4th

813, 819.)




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                                              II

                               Demurrer Standard of Review

       "A demurrer tests the legal sufficiency of the complaint. [Citation.] Therefore, we

review the complaint de novo to determine whether it contains sufficient facts to state a

cause of action. [Citation.] 'We treat the demurrer as admitting all material facts

properly pleaded, but not contentions, deductions or conclusions of fact or law.'

[Citation.] The trial court exercises its discretion in declining to grant leave to amend.

[Citation.] If it is reasonably possible the pleading can be cured by amendment, the trial

court abuses its discretion by not granting leave to amend. [Citation.] The plaintiff has

the burden of proving the possibility of cure by amendment." (Grinzi v. San Diego

Hospice Corp. (2004) 120 Cal.App.4th 72, 78.)

       In reviewing an order sustaining a demurrer in whole or in part, "courts must

assume the truth of the complaint's properly pleaded or implied factual allegations.

[Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition,

we give the complaint a reasonable interpretation, and read it in context." (Schifando v.

City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) A complaint otherwise adequate on

its face is nevertheless subject to demurrer when facts judicially noticed show it is

defective. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Joslin v. H.A.S. Ins.

Brokerage (1986) 184 Cal.App.3d 369, 374.) An affirmative defense may be raised on

demurrer and, if that defense appears to, on the face of the complaint with consideration

of judicially noticed facts, necessarily bar one or more causes of action, the demurrer


                                              8
must be sustained in whole or in part. (Marshall v. Gibson, Dunn & Crutcher (1995) 37

Cal.App.4th 1397, 1403; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125,

1155; Evans v. City of Berkeley, at p. 6; Joslin v. H.A.S. Ins. Brokerage, at p. 374.)

                                              III

                              Waiver of Appellate Contentions

       Bank contends, and we agree, that Vaults has waived his appellate contentions by

not presenting any comprehensible or coherent, substantive legal arguments supported by

citations to the record and legal authorities showing the trial court erred by sustaining

Bank's demurrer. Vaults has not presented any coherent, substantive argument or

analysis showing the trial court erred by concluding his causes of action are time-barred.

In demurring to Vaults's third amended complaint, Bank argued that because his action

was filed more than four years after the alleged misrepresentations and other wrongful

acts, all of his causes of action are barred by applicable statutes of limitation. In

sustaining the demurrer, the court agreed with Bank's argument that Vault's causes of

action were time-barred and he had not sufficiently alleged specific facts to support

application of the delayed discovery rule that could have tolled the running of those

statutes of limitation. However, in his appellant's opening and reply briefs, Vaults does

not present any, much less substantive, legal argument that the trial court erred by

concluding his causes of action are time-barred by applicable statutes of limitation.

Instead, he raises other issues on which the trial court did not rely in sustaining the




                                              9
demurrer and do not otherwise show his third amended complaint states valid causes of

action.

          Because Vaults has not presented any substantive legal argument showing the trial

court erred by concluding his causes of action are time-barred, we conclude Vaults has

waived any appellate contention that the trial court erred by sustaining Bank's demurrer

on that ground. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Fundamental

Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Paterno v. State

of California (1999) 74 Cal.App.4th 68, 105 [conclusory claims did not persuade

appellate court]; Benach v. County of Los Angeles, supra, 149 Cal.App.4th at p. 852;

People v. Ham, supra, 7 Cal.App.3d at p. 783; Jones v. Superior Court, supra, 26

Cal.App.4th at p. 99; Landry v. Berryessa Union School Dist., supra, 39 Cal.App.4th at

pp. 699-700; Ochoa v. Pacific Gas & Electric Co., supra, 61 Cal.App.4th at p. 1488, fn.

3; Colores v. Board of Trustees, supra, 105 Cal.App.4th at p. 1301, fn. 2; Bayside Auto &

Truck Sales, Inc. v. Department of Transportation, supra, 21 Cal.App.4th at p. 571.)

          Alternatively stated, because Vaults has the burden on appeal to affirmatively

show the trial court erred by concluding his causes of action are time-barred, and has

failed to carry that burden, we must presume the court's judgment is correct. Vaults's

appellate contentions regarding alleged unconscionability, tender of payment, and

judicial notice do not show the trial court erred by concluding his causes of action are

time-barred, or that his third amended complaint states valid causes of action regardless

of the applicable statutes of limitation. Furthermore, Vaults has not made any attempt to


                                              10
show there is a reasonable possibility his third amended complaint can be amended to

state valid causes of action. We conclude the trial court did not abuse its discretion by

sustaining Bank's demurrer without leave to amend.1

                                       DISPOSITION

       The judgment is affirmed.




                                                                  McDONALD, Acting P. J.

WE CONCUR:


AARON, J.


IRION, J.




1       In so concluding, we need not address the merits of the trial court's statutes of
limitation ground or alternative grounds for sustaining Bank's demurrer.

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