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Filed 7/26/16 Smith v. EMC Mortgage 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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

(San Joaquin)

----

WENDELL SMITH,

Plaintiff and Appellant,

v.

EMC MORTGAGE LLC et al.,

Defendants and Respondents.

C078532

(Super. Ct. No. 39-2013-

00298237-CU-FR-STK)

Plaintiff Wendell Smith (Smith) appeals from a judgment of dismissal after the 

trial court sustained without leave to amend a demurrer by EMC Mortgage LLC and JP 

Morgan Chase Bank, N.A, (collectively Chase). 

Smith’s briefing is very difficult to decipher, but appears to fault the trial court for 

expunging a lis pendens and sustaining the demurrer without being told by Chase that 

certain underlying property had already been sold. His opening brief fails to set forth the 

pleaded allegations, the bases of the demurrer, the bases for the trial court’s ruling, or an 
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intelligible explanation of the law applicable to the pleaded issues. His reply brief is 

similarly deficient.

On appeal, a party challenging an order has the burden to show error by providing 

an adequate record and making coherent legal arguments, supported by authority, or the 

claims will be deemed forfeited. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; 

People v. Freeman (1994) 8 Cal.4th 450, 482, fn. 2; In re S.C. (2006) 138 Cal.App.4th 

396, 408; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) A party 

who appears without counsel must be held to the same standards and procedural rules as 

a litigant who employs counsel. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-

985; Doran v. Dryer (1956) 143 Cal.App.2d 289, 290.)

We have read and reread Smith’s briefs and we find neither satisfies these settled 

appellate rules. Although Smith does provide some record citations, and he does cite to 

some legal authorities, he does not tie the two together with coherent legal arguments.

For example, he recites the standards applicable to demurrers, and seems to argue 

the trial court improperly declined to consider his opposition, purportedly because it was 

not timely filed. But he fails to explain what difference the opposition would have made. 

The appellant bears the duty of spelling out in the opening brief exactly how a procedural 

error caused a “miscarriage of justice.” (See Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; 

Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.) Further, Smith’s 

claim about the rejection of his opposition by the trial court is not fairly embraced within 

his argument heading, and is forfeited for that reason, too. (See Loranger v. Jones (2010) 

184 Cal.App.4th 847, 858, fn. 9; Opdyk v. California Horse Racing Bd. (1995) 

34 Cal.App.4th 1826, 1830-1831, fn. 4.)

Smith quotes a deed of trust and cites certain statutes, but nowhere does he tether 

his claim to the allegations of his complaint, nor does he provide any legal authorities 

explaining the elements of any particular cause of action he seeks to pursue against 

Chase.
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As another example, Smith contends leave to amend should be given (see 

Connerly v. State of California (2014) 229 Cal.App.4th 457, 460), but he fails in his duty, 

as the appellant, to explain how he would amend his complaint, if granted leave to do so. 

(See ibid.; Schultz v. Steinberg (1960) 182 Cal.App.2d 134, 140-141.)

As a final example, Smith references “SB 900” as new legislation which confers 

on him greater rights, but he fails to describe the details of that legislation (including 

what year it was passed, whether it applies retrospectively, etc.), and fails to tether this 

vague reference to the allegations of his complaint. 

As Chase correctly points out, Smith’s brief lacks a coherent explanation of how 

the trial court erred, that is, how he stated any valid cause of action against Chase, or why

the trial court should have granted leave to amend the complaint. We, therefore, deem all 

points Smith intended to make in his opening brief to be forfeited.

After Chase correctly pointed out the major deficiencies in Smith’s opening brief, 

Smith filed his reply, arguing that he did not forfeit any points. However, although his 

reply brief adds several cites to the Code of Civil Procedure and quotes extensively from 

one such cite, his reply brief is largely duplicative of his opening brief and does not 

correct its deficiencies. In any event, points raised for the first time in Smith’s reply brief 

come too late. (See Kahn v. Wilson (1898) 120 Cal. 643, 644; Utz v. Aureguy (1952) 109 

Cal.App.2d 803, 808.)
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DISPOSITION

The judgment is affirmed. Smith shall pay Chase’s costs on appeal. (See Cal. 

Rules of Court, rule 8.278(a)(2).) 

 /s/

Duarte, J.

We concur:

 /s/

Butz, Acting P. J.

 /s/

Murray, J.