Filed 3/4/14 McClain v. Wells Fargo Bank CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION TWO

NATTINEQUE A. MCCLAIN,

Plaintiff and Appellant,

v.

WELLS FARGO BANK, N.A. et al.,

Defendants and Respondents.

 B247246

 (Los Angeles County

 Super. Ct. No. BC450586)

APPEAL from an order of the Superior Court of Los Angeles County. David L. 

Minning, Judge. Dismissed.

Nattineque A. McClain, in pro. per., for Plaintiff and Appellant.

Severson & Werson, Jan T. Chilton, Erik W. Kemp, Elizabeth H. Andrews and 

Kerry Franich for Defendants and Respondents.

______________________
2

Appellant Nattineque A. McClain (McClain) appeals the trial court’s order “lifting 

the . . . stay pending the appeal which constituted an[] abuse of the court’s discretion. 

Whether a Writ of Mandamus should issue ordering this court to reimpose the Stay.” We 

dismiss the appeal for the following reasons: (1) the only issue raised by this appeal was 

already decided by this court; (2) the appeal is moot; and (3) the appellate record is 

inadequate.

FACTUAL AND PROCEDURAL BACKGROUND

As discussed below, McClain did not provide us with an adequate record from 

which we could discern the underlying facts. In order to provide context to this appeal, 

we refer to facts and portions of the appellate record contained in McClain’s 

contemporaneous appeal of a trial court judgment of dismissal (McClain v. Wells Fargo 

Bank, N.A. (Mar. 4, 2014, B244978) [nonpub. opn.]).

Factual Background

In September 2005, McClain obtained a $375,000 refinance loan from respondent 

Wells Fargo Bank, N.A. (Wells Fargo). To secure the loan, she signed a deed of trust 

encumbering her residence in Los Angeles.

Wells Fargo assigned its beneficial interest in the deed of trust to HSBC Bank 

USA, N.A. (HSBC), as trustee. 

McClain defaulted. A notice of default was recorded against the property in July 

2008. By that time, the loan was over $57,000 in arrears. At a duly noticed trustee’s sale 

held in July 2009, HSBC purchased the property. 

Procedural Background

In August 2009, HSBC filed an unlawful detainer action against McClain in Santa 

Monica. Eventually, HSBC’s motion for summary judgment was granted and judgment 

was entered in its favor. McClain appealed, and her appeal was dismissed. 

On December 3, 2010, McClain filed her initial complaint against Wells Fargo and 

HSBC in this action. While Wells Fargo and HSBC’s demurrer was pending, and just 

before McClain filed a first amended complaint, the trial court entered an order finding 

that this action and the unlawful detainer action were related cases. The order stayed all 
3

proceedings in the unlawful detainer action and transferred that action to the same 

department (Los Angeles) in which McClain’s civil suit was pending. 

Later, McClain filed a second amended complaint. Wells Fargo and HSBC 

demurred to that pleading, and the trial court sustained their demurrer without leave to 

amend. A judgment of dismissal was entered, and McClain timely filed a notice of 

appeal.1 

Meanwhile, when the trial court sustained Wells Fargo and HSBC’s demurrer, it 

lifted the stay and transferred the unlawful detainer action back to Santa Monica for any 

and all proceedings. 

In December 2012, in the unlawful detainer action, McClain filed an ex parte 

application for a stay of execution of the writ of possession. The trial court denied her 

application. 

In January 2013, McClain filed a petition for writ of supersedeas in her appeal

from the judgment of dismissal. (McClain v. Wells Fargo Bank, N.A., supra, B244978.) 

We denied that petition.

In February 2013, McClain filed an ex parte application “to stay judgment and 

writ of possession during the pendency of her appeal” in the civil action. The trial court 

denied that application. 

Later that month, McClain filed a petition for writ of mandate in the Los Angeles 

County Superior Court’s Appellate Division, seeking a stay of execution of the writ of 

possession while her appeal from the judgment in her civil suit was pending. That 

petition was denied. 

On March 1, 2013, the writ of possession was returned to the unlawful detainer 

court satisfied. 

 

1 On March 4, 2014, we affirmed the trial court’s order and judgment. (McClain v. 

Wells Fargo Bank, N.A., supra, B244978.)
4

On March 4, 2013, McClain filed a notice of appeal from the trial court order 

denying her ex parte application for a stay in this case. That appears to be the order that 

McClain has asked us to review in this appeal.

In July 2013, McClain filed another petition for a writ of supersedeas in her appeal 

from the judgment of dismissal, this time seeking to avoid expungement of her 

lis pendens. On August 7, 2013, we denied that petition.

DISCUSSION

I. This court has already decided the only issue raised by this appeal

As set forth above, McClain filed a petition for writ of supersedeas, seeking a stay 

of the unlawful detainer judgment in her civil action. On August 7, 2013, we summarily 

denied her petition. As this appeal presents nothing new, there is no reason for us to 

revisit the issue.

II. The appeal is moot

It is well-established that courts do not decide questions whose answers will 

“‘have no practical effect or cannot provide the parties with effective relief.’” (Jacobs 

Farm/Del Cabo, Inc. v. Western Farm Service, Inc. (2010) 190 Cal.App.4th 1502, 1519.) 

Such questions are moot—that is, “‘abstract questions of law’” not born of an “‘actual 

controversy between [the] parties.’” (Ibid.)

The only relief McClain seeks in this appeal is for “the Appellate Court [to] direct 

the trial court to reimpose the stay pending the outcome of the appeal of the granting of 

the demurrer without leave to amend.” In other words, McClain would like us to order a 

stay of execution of the unlawful detainer judgment pending resolution of her appeal 

from the judgment dismissing her civil action.

However, staying execution of the unlawful detainer judgment now would have no 

practical effect because that judgment has already been fully executed. The writ of 

possession was returned satisfied in March 2013. McClain was then evicted. There is 

nothing to stay.

Moreover, in September 2013, after McClain’s lis pendens was expunged, her 

former residence was sold to a bona fide purchaser unaffiliated with either respondent in 
5

this action. The rights of that purchaser cannot be affected by any order this court could 

enter in a proceeding to which the purchaser is not a party. So, there is no practical relief 

that we can award, even if we were to decide that a stay should have been issued a year 

ago.

Accordingly, McClain’s appeal is moot.

III. McClain has not demonstrated reversible error

Even if we were not to dismiss the appeal, the trial court’s order must be affirmed.

In addressing an appeal, we begin with the presumption that a judgment or order 

of the trial court is presumed correct, and reversible error must be affirmatively shown by 

an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564.) The appellant must “present argument and authority on 

each point made” (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. 

Rules of Court, rule 8.204(a)(1)(B)) and cite to the record to direct the reviewing court to 

the pertinent evidence or other matters in the record that demonstrate reversible error 

(Cal. Rules of Court, rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 

Cal.App.4th 1108, 1115). It is not our responsibility to comb the appellate record for 

facts, or to conduct legal research in search of authority, to support the contentions on 

appeal. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.) An appellant’s 

“[f]ailure to provide an adequate record on an issue requires that the issue be resolved 

against [the appellant]. [Citation.]” (Hernandez v. California Hospital Medical Center

(2000) 78 Cal.App.4th 498, 502.) If the appellant fails to cite to the record or relevant 

authority, we may treat the issue as waived. (Mansell v. Board of Administration (1994) 

30 Cal.App.4th 539, 545–546.)

Moreover, McClain’s election to act as her own attorney on appeal does not entitle 

her to any leniency as to the rules of practice and procedure; otherwise, ignorance is 

unjustly rewarded. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985; Lombardi v. 

Citizens Nat. Trust Etc. Bank (1955) 137 Cal.App.2d 206, 208–209; Gamet v. Blanchard

(2001) 91 Cal.App.4th 1276, 1284; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–

1247.)
6

The appellate record supplied by McClain is woefully inadequate. Although she is 

asking us to evaluate the trial court’s discretion in denying a stay of the unlawful detainer 

judgment, she failed to provide us with a copy of respondents’ opposition to her stay 

application and the trial court’s reasons for denying the stay. Also missing are her copies 

of her second amended complaint. In short, McClain has not overcome the presumption 

of correctness of the trial court’s order because she has not provided an adequate record. 

(Brown v. Boren (1999) 74 Cal.App.4th 1303, 1320–1321.)

McClain’s opening brief is no better. The statement of facts contains no citations 

to the record whatsoever. The “argument” section contains a generic discussion of the 

law governing writs of mandate, but offers no analysis of how that law applies to the 

issues she raises on appeal. “[F]ailure of an appellant in a civil action to articulate any 

pertinent or intelligible legal argument in an opening brief may, in the discretion of the 

court, be deemed an abandonment of the appeal justifying dismissal.” (Berger v. Godden

(1985) 163 Cal.App.3d 1113, 1119.)

In the “conclusion” section of her opening brief, McClain suggests that her appeal 

automatically stayed proceedings in the unlawful detainer action pursuant to Code of 

Civil Procedure section 916. Code of Civil Procedure section 916, subdivision (a), 

provides that an appeal stays “proceedings in the trial court upon the judgment or order 

appealed from or upon the matters embraced therein or affected thereby, including 

enforcement of the judgment or order, but the trial court may proceed upon any other 

matter embraced in the action and not affected by the judgment or order.” An appeal 

does not stay proceedings on “ancillary or collateral matters which do not affect the 

judgment [or order] on appeal” even though the proceedings may render the appeal moot. 

(Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.)

Here, the enforcement of the unlawful detainer judgment is not a proceeding on 

the judgment of dismissal of McClain’s civil suit. Rather, it was rendered in a separate 

action. Though the two separate proceedings were pending in the same department for a 

time as related proceedings, they were never consolidated, and the order sustaining the 

demurrer severed the cases, sending the unlawful detainer action back to the department 
7

that had originally handled it for any further proceedings. Thus, the judgment dismissing 

the civil suit did not affect the previously entered unlawful detainer action or vice versa. 

If McClain’s appeal from the judgment had any merit, then we would have reversed the 

judgment and remanded for further proceedings on her second amended complaint, 

regardless of the fact that the unlawful detainer judgment had been enforced meanwhile.

DISPOSITION

The appeal is dismissed. Respondents are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.*

FERNS

 

*

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.