Date: 07-28-2017

Case Style: Richard Ewald v. Nation Star Mortgage, LLC

Case Number: C081760

Judge: J. Duarte

Court: California Court of Appeals Third Appellate District (Nevada) on appeal from the Superior Court, Riverside County

Plaintiff's Attorney: Stacie Power

Defendant's Attorney: M. Elizabeth Holt

Description: Plaintiff Richard Ewald, through counsel, timely appealed from a judgment
following a successful defense motion for summary judgment.
Ewald‟s counsel fails to articulate the standard of review on appeal, in and of itself
a potentially fatal omission. “ „Arguments should be tailored according to the applicable
standard of appellate review.‟ [Citation.] Failure to acknowledge the proper scope of
review is a concession of a lack of merit.” (Sonic Manufacturing Technologies, Inc. v.
AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465.) More importantly, Ewald‟s
counsel fails to provide any legal authority to support her arguments. We repeatedly
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have held that the failure to provide legal authorities to support arguments forfeits
contentions of error. (See In re S.C. (2006) 138 Cal.App.4th 396, 408; Akins v. State of
California (1998) 61 Cal.App.4th 1, 50; In re Marriage of Nichols (1994) 27 Cal.App.4th
661, 672-673, fn. 3.)
As respondent‟s counsel observes, Ewald‟s counsel does provide an accurate
statutory citation in support of the proposition that the judgment is appealable (Code Civ.
Proc., § 904.1, subd. (a)(1)), and in her statement of the case she cites a single case
referenced by the trial court in its tentative ruling (Nungaray v. Litton Loan Servicing, LP
(2011) 200 Cal.App.4th 1499). Putting aside the fact that Ewald‟s counsel both fails to
cite that case properly and fails to provide an accurate citation to where the document
citing that case can be found in the record on appeal, the trial court did not even cite to
that case in the final ruling. Further, Ewald‟s counsel does not explain the holding of that
case, nor does counsel explain why that case has any relevance to her claims on appeal, to
the extent we can decipher them.
In the argument section of her brief, Ewald‟s counsel describes two causes of
action, misrepresentation and breach of contract, and argues triable issues remain as to
each. However, she does not describe the elements of either cause of action. Without a
statement of the elements of a cause of action, supported by authority, counsel cannot
establish whether triable issues of fact exist as to either cause of action.
In short, as respondent properly argues, the opening brief does not satisfy
counsel‟s duty to provide adequate legal authority to support this appeal. Ewald‟s
counsel did not file a reply brief, nor anywhere offer an explanation for failing to comply
with her duty to properly brief this case. In light of counsel‟s egregious violations of
basic appellate norms, we affirm the judgment without discussing the merits.

Outcome: The judgment is affirmed. Appellant shall pay respondent‟s costs of this appeal.
(See Cal. Rules of Court, rule 8.278(a).)

Plaintiff's Experts:

Defendant's Experts:

Comments: