Filed 4/9/15 Kats v. Recontrust 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 

LEO KATS, Individually and as Trustee, etc. 

et al., 

 Plaintiffs and Appellants, 

 v. 

RECONTRUST COMPANY, N.A. et al., 

 Defendants and Respondents. 

 D065841 

 (Super. Ct. No. 37-2012-00094022-

 CU-BC-CTL) 

 APPEAL from a judgment of the Superior Court of San Diego County, Judith F. 

Hayes, Judge. Affirmed. 

 Eric M. Welch for Plaintiffs and Appellants. 

 McGuireWoods, Leslie M. Werlin and Tim G. Ceperley for Defendants and 

Respondents. 

INTRODUCTION 

 The trial court sustained without leave to amend the demurrer of defendants 

Recontrust Company, N.A. and Bank of America Corporation (collectively, defendants) 
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to the third amended complaint of plaintiffs Leo Kats, Claire Kats, and The Leo and 

Claire Kats Trust (collectively, plaintiffs). Plaintiffs appeal the subsequent judgment of 

dismissal contending their third amended complaint adequately pleaded causes of action 

for breach of contract and breach of the implied covenant of good faith and fair dealing. 

They further contend they should be allowed leave to amend their complaint and given an 

opportunity to attach a copy of a special forbearance agreement, which is the subject of 

the complaint. However, plaintiffs failed to designate an adequate record on appeal. 

They have not provided us with the third amended complaint or any of the pertinent 

pleadings considered by the trial court. This failure precludes an adequate appellate 

review and requires us to affirm the judgment. (Estrada v. Ramirez (1999) 71 

Cal.App.4th 618, 620, fn. 1.)1

FACTUAL AND PROCEDURAL BACKGROUND 

 The trial court sustained without leave to amend the demurrer of defendants to the 

plaintiffs' third amended complaint. The court declined to consider the untimely filed 

opposition papers to the demurrer. The court noted the demurrer was served on two 

separate addresses for plaintiffs' counsel 10 days after the third amended complaint was 

filed, more than six months before the demurrer hearing date. Although the untimely 

 

1 In a separate order, we deny plaintiffs' untimely motion to augment the record, 

filed on March 6, 2015. The motion was filed more than five months after the 

respondents' brief pointed out the lack of an adequate record and more than three months 

after plaintiffs filed their reply brief representing they were "concurrently" submitting a 

motion to augment the record. No motion to augment was filed with the reply brief in 

November 2014. We decline to consider the untimely motion at this late date. (People v. 

Preslie (1977) 70 Cal.App.3d 486, 492.) 
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papers referred to an attorney declaration purporting to state the demurrer was not served 

on counsel and he only discovered the demurrer by reviewing the court's docket, the court 

noted no such declaration was filed. Therefore, the court found there was no good cause 

to consider the late opposition papers. 

 On the merits, the court found the third amended complaint remained defective. 

"Despite explicit instructions from the court on the prior demurrer to comply with the 

well-settled pleading requirements for contract claims, plaintiffs continue to fail to 

comply. Moreover, the court granted leave to amend the second amended complaint on 

the representations of plaintiffs' counsel that he ' "read" the "special forbearance" 

agreement [and was] able to allege the specific terms of the agreement and/or attach it to 

the amended complaint as required.' . . . However, counsel failed to do so." (Some 

capitalization omitted.) 

 In denying leave to amend, the court noted it had expressly admonished plaintiffs 

"that if the [third amended complaint] remained defective, as it has, the court would not 

entertain further leave to amend and the action would be dismissed." (Some 

capitalization omitted.) The court noted "plaintiffs['] untimely opposition again makes a 

blanket request for leave to amend, but again fails to sustain plaintiffs' burden to 

demonstrate available facts to cure the defects raised by the demurrer." Therefore, the 

court sustained the demurrer without leave to amend and dismissed plaintiffs' claims in 

their entirety. 

 Plaintiffs appealed the judgment of dismissal. They elected to proceed on appeal 

without a record of the oral proceedings and designated only three minute orders, the 
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notice of entry of judgment, the notice of appeal and the notice designating the record on 

appeal. 

DISCUSSION 

I 

 In reviewing a judgment of dismissal after a demurrer is sustained, we are required 

to review the order de novo and exercise our independent judgment as to whether the 

complaint states a cause of action as a matter of law. (Lincoln Property Co., N.C., Inc. v. 

Travelers Indemnity Co. (2006) 137 Cal.App.4th 905, 911.) Ordinarily, we will assume 

the truth of all properly pleaded material facts, as well as facts inferred from the 

pleadings and those of which judicial notice may be taken. (Howard Jarvis Taxpayers 

Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814.) However, it remains plaintiffs' 

burden to show either the demurrer was sustained erroneously or the trial court's denial of 

leave to amend was an abuse of discretion. (Keyes v. Bowen (2010) 189 Cal.App.4th 

647, 655.) 

 In this case, plaintiffs have failed to provide either the third amended complaint or 

the pertinent pleadings related to the demurrer at issue. It is the appellant's burden to 

provide an adequate record on appeal. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 ["a 

party challenging a judgment has the burden of showing reversible error by an adequate 

record"]; Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 

849 [the appealing party must provide an adequate record demonstrating error].) "We 

cannot presume error from an incomplete record." (Christie v. Kimball (2012) 202 

Cal.App.4th 1407, 1412.) We are not permitted to speculate as to the contents of the 
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missing portions of the record or the issues the plaintiffs may have raised below. 

(Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) The failure to provide an adequate 

record on appeal "precludes an adequate review and results in affirmance of the trial 

court's determination." (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) 

 Further, plaintiffs failed to provide citations to the record in support of the factual 

and procedural assertions in their opening brief or legal analysis supported by citation to 

authority. Therefore, we deem their arguments waived. (Regents of University of 

California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1; citing Kim v. Sumitomo Bank 

(1993) 17 Cal.App.4th 974, 979 and Trinkle v. California State Lottery (2003) 105 

Cal.App.4th 1401, 1413; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 

[statements in appellate briefs not supported by citations to the record are improper and 

cannot be considered].) 

 By failing to provide an adequate record on appeal or arguments supported with 

appropriate citation to the record or legal authority, the plaintiffs in this case have 

provided us with nothing to independently review. Therefore, we are compelled to 

presume the judgment of the trial court is correct and we affirm. 

II 

 Plaintiffs also request an opportunity to amend their complaint again, purporting 

they will this time actually attach the forbearance agreement, which they contend is the 

basis for their contract claims. However, the trial court apparently gave the plaintiffs 

multiple opportunities to properly plead their causes of action and "explicit instructions" 

in an order following a previous demurrer "to comply with the well-settled pleading 
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requirements for contract claims." The court noted plaintiffs' counsel previously 

represented he was "able to allege the specific terms of the agreement and/or attach it to 

the amended complaint as required" but he failed to do so. On appeal, plaintiffs admit 

they did not attach the forbearance agreement with any of the prior complaints for 

"strategic reasons." Under the circumstances, we cannot conclude the trial court abused 

its discretion in denying leave to amend. 

 Additionally, on appeal, plaintiffs have not met their burden of showing how they 

can amend their complaint and how the amendment will change the legal effect of the 

pleading. " 'The assertion of an abstract right to amend does not satisfy this burden.' 

[Citation.] The plaintiff[s] must clearly and specifically state 'the legal basis for 

amendment, i.e., the elements of the cause of action,' as well as the 'factual allegations 

that sufficiently state all required elements of that cause of action.' " (Maxton v. Western 

States Metals (2012) 203 Cal.App.4th 81, 95.) 

DISPOSITION 

 The judgment is affirmed. Respondents shall recover their costs on appeal. 

MCCONNELL, P. J. 

WE CONCUR: 

NARES, J. 

MCINTYRE, J.