Filed 10/31/13 Selzer v. HSBC Bank USA CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


I. LIONEL SELZER,
         Plaintiff and Appellant,
v.                                                                   A136528
HSBC BANK USA, N.A., et al.,
                                                                     (Marin County
         Defendants and Respondents.                                 Super. Ct. No. CIV1100824)

         Plaintiff I. Lionel Selzer, acting in propria persona, appeals from a judgment of
dismissal entered after the trial court sustained a demurrer without leave to amend.
Selzer does not challenge the order sustaining the demurrer but instead claims the
judgment should be set aside because the trial court erred in ruling on two earlier,
nondispositive motions—a defense motion to dissolve a preliminary injunction and a
motion by Selzer seeking leave to amend the complaint to add a defendant. We affirm
the judgment.
                              FACTUAL AND PROCEDURAL BACKGROUND
         We begin by noting that the record of what transpired in the trial court is far from
complete. Where necessary to understand the procedural history of the case, we will
refer to the register of actions supplied by the trial court.
         The operative complaint below is the third amended verified complaint for
damages (hereafter, third amended complaint), which Selzer filed on April 26, 2012.
According to the third amended complaint, Selzer stopped making mortgage payments to
his lender in 2008 after he suffered a financial setback. He allegedly sought to modify or


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restructure the loan secured by his residence but failed in that effort. He alleges the
lender proceeded to foreclose even though it failed to comply with a statute requiring a
mortgagee to explore options to avoid foreclosure. Selzer asserts ten causes of action in
the third amended complaint, including claims for breach of contract, quiet title, fraud,
unfair business practices, and violation of Civil Code section 2932.6. Selzer seeks to set
aside the foreclosure sale and requests compensatory and punitive damages. Respondents
HSBC Bank USA, N.A. (HSBC) and OneWest Bank, F.S.B. (OneWest) are named as
defendants in the third amended complaint.
       The lawsuit was originally filed in 2011, as confirmed by the register of actions.
In July 2011, the trial court issued a preliminary injunction preventing the defendants
from selling the subject property or removing Selzer from the property as long as he paid
$1,500 per month in rent. In August 2011, the trial court dissolved the preliminary
injunction on the ground that Selzer had failed to comply with his obligation to pay
reasonable rent. The record before this court does not include the original preliminary
injunction, the motion to dissolve the preliminary injunction, or the order dissolving the
preliminary injunction. The only pleading or order in the record that relates to the
preliminary injunction is a copy of Selzer’s opposition to the motion to dissolve the
preliminary injunction.
       The register of actions reflects that Selzer moved to amend the complaint at some
point in the first half of 2012. The trial court granted the motion in part but denied
Selzer’s request to add a new party. In his appellate brief, Selzer claims he sought to add
as a defendant Merscorp, Inc. dba Mortgage Electronic Registration System, Inc.
(MERS). The record on appeal does not include any of the pleadings or orders related to
Selzer’s motion to amend the complaint.
       Following the ruling allowing Selzer to file an amended complaint, he filed his
third amended complaint, which is the operative complaint described above. HSBC and
OneWest filed a demurrer to the third amended complaint. In their brief in support of the
demurrer, HSBC and OneWest pointed out that the subject property had been sold to
HSBC in a foreclosure sale conducted in 2010. Among other arguments advanced by


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HSBC and OneWest, they contended that Selzer lacks standing to set aside the
foreclosure sale because he failed to tender the amount owed on the loan.
        The trial court sustained the demurrer without leave to amend and thereafter
entered a judgment of dismissal as to OneWest and HSBC. Selzer filed a timely appeal
from the judgment of dismissal.
                                         DISCUSSION
        Selzer raises two claims of error on appeal. First, he contends the trial court erred
in dissolving the preliminary injunction. Second, he argues that the court erred in
denying his request to add MERS as a defendant. He does not challenge the order
sustaining the demurrer without leave to amend.
        At the outset, we note that Selzer’s opening brief fails to contain any citations to
the record. The California Rules of Court require not only that an appellant provide a
summary of significant facts but also that any reference to a matter in the record be
supported by a proper citation. (Cal. Rules of Court, rule 8.204(a)(1)(C) & (2)(C).) “It is
the duty of [appellant] to refer the reviewing court to the portion of the record which
supports appellant’s contentions on appeal. [Citation.]” (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115.) This basic requirement of appellate practice applies
to a court’s review of a judgment following a demurrer that has been sustained without
leave to amend. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655–656.) The
requirement is a corollary to the equally fundamental principle that a judgment is
presumed correct on appeal, “and a party attacking the judgment, or any part of it, must
affirmatively demonstrate prejudicial error.” (People v. Garza (2005) 35 Cal.4th 866,
881.)
        We would be justified in considering Selzer’s claims of error waived as a result of
his failure to cite to the record. (See Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80
Cal.App.3d 500, 504, fn. 1.) His appeal suffers from an even more fundamental flaw,
however, because he has failed to provide this court with a record sufficient to enable
informed appellate review. Specifically, the record provided to this court is insufficient
to assess his claims that the court erred in dissolving the preliminary injunction and in


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denying his request to add MERS as a defendant. The only document in the record
bearing on the order dissolving the preliminary injunction is an opposition brief filed by
Selzer. With regard to the motion to amend, aside from references in the register of
actions to the motion and the court’s ruling, the record on appeal does not include any of
the motion papers, a transcript of the hearing on that motion, or the court’s order on the
motion.
       The appellant bears the burden of providing a record sufficient to assess error.
(See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) “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.” (Mountain Lion Coalition v. Fish &
Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9; see also Hernandez v. California
Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [“Failure to provide an
adequate record on an issue requires that the issue be resolved against plaintiff.”].)
       We are aware that Selzer brings this appeal without the benefit of legal
representation, but his status as an in propria persona litigant does not exempt him from
the rules of appellate procedure or relieve him of his burden on appeal. (See Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246–1247.) We treat in propria persona litigants
like any other party, affording them “ ‘the same, but no greater consideration than other
litigants and attorneys.’ ” (Id. at p. 1247.)
       The standard of review for an order dissolving a preliminary injunction is abuse of
discretion. (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1495.) Likewise,
we apply an abuse of discretion standard to the question of whether the trial court erred in
denying leave to amend a complaint. (McGuan v. Endovascular Technologies, Inc.
(2010) 182 Cal.App.4th 974, 987.) In this case, we are in no position to assess whether
the trial court abused its discretion with respect to either the order dissolving the
preliminary injunction or the ruling on the motion to amend without a record of the
factual and legal contentions presented to that court. Accordingly, we reject Selzer’s
contentions for lack of support in the record supplied to this court.



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       Even if we were to overlook the lack of an adequate record, we would still reach
the same end result. An order dissolving a preliminary injunction is immediately
appealable. (Code Civ. Proc., § 904.1, subd. (a)(6).) Such an order cannot be challenged
in an appeal filed after entry of final judgment. (Cf. Jacobs Farm/Del Cabo, Inc. v.
Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1520.) Here, because the
notice of appeal was filed more than one year after entry of the order dissolving the
preliminary injunction, the appeal is untimely as to that order. (Cal. Rules of Court,
rule 8.104(a); Bourhis v. Lord (2013) 56 Cal.4th 320, 324–325 [time to appeal is
jurisdictional].)
       As for Selzer’s contention that the court erred in denying his request to include
MERS as a defendant, he has failed to explain how the court abused its discretion or in
what manner he was prejudiced by the court’s order. Although he asserts in conclusory
fashion that MERS is a necessary party, he neglects to explain why that is the case.
When, as here, an argument is not supported by “reasoned argument and citations to
relevant authority, we may treat the argument as waived and disregard it.” (People v.
JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1260.) Therefore, even if Selzer had
provided this court with an adequate record, we would still reject his contentions.




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                                     DISPOSITION
      The judgment is affirmed. Respondents shall be entitled to recover their costs on
appeal.



                                               _________________________
                                               McGuiness, P.J.


We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




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