Fontes v. JP Morgan Chase Bank, N.A. CA4/2 (2015) · DecisionDepot
Fontes v. JP Morgan Chase Bank, N.A. CA4/2
California Court of Appeal Sep 2, 2015 No. E060482Unpublished
Filed 9/2/15 Fontes v. JP Morgan Chase Bank, N.A. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
LAURA FONTES,
Plaintiff and Appellant, E060482
v. (Super.Ct.No. CIVRS1200352)
JP MORGAN CHASE BANK, N.A., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Janet M. Frangie,
Judge. Affirmed.
Law Office of Lotfy Mrich and Lotfy Mrich for Plaintiff and Appellant.
AlvaradoSmith, John M. Sorich, S. Christopher Yoo, and Jenny L. Merris for
Defendant and Respondent.
Plaintiff and appellant, Laura Fontes (Fontes), appeals from an order sustaining
the demurrer of defendant and respondent, JP Morgan Chase Bank, N.A. (Chase), to the
first amended complaint without leave to amend and from an order dismissing the case
1
against Chase. We affirm the order sustaining the demurrer without leave to amend and
the order of dismissal on the ground that Fontes has utterly failed to demonstrate that the
trial court erred or that it abused its discretion.
“On appeal, we review the trial court’s sustaining of a demurrer without leave to
amend de novo, exercising our independent judgment as to whether a cause of action has
been stated as a matter of law. [Citations.] We assume the truth of properly pleaded
1 We note with concern that Fontes’s trial counsel, who is also her appellate counsel, twice at the December 18, 2013, hearing accused the trial court of reading only Chase’s pleadings but not Fontes’s pleadings.
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allegations in the complaint and give the complaint a reasonable interpretation, reading it
as a whole and with all its parts in their context. [Citations.] However, we may disregard
allegations which are contrary to law or to a fact of which judicial notice may be taken.
[Citations.] [¶] We apply the abuse of discretion standard in reviewing the trial court’s
denial of leave to amend. [Citations.] When a demurrer is sustained without leave to
amend, we determine whether there is a reasonable probability that the defect can be
cured by amendment. [Citation.]” (V.C. v. Los Angeles Unified School Dist. (2006) 139
Cal.App.4th 499, 506.) The burden of proof on this belongs to the appellant. (Id. at pp.
506-507.)
B. Fontes’s Contentions
Under the standards set forth above, Fontes has failed to meet her burden to
establish error. Fontes’s counsel does not contend, even in conclusory terms, that the
trial court erred in sustaining the demurrer to the two causes of action in which Chase is
named. Counsel makes no attempt to demonstrate how the facts alleged make out a cause
of action against Chase on any theory. Instead, counsel argues that Fontes should be
permitted to amend the complaint to add Chase as a defendant in the causes of action
other than the two before this court, or that Fontes should be permitted to amend the
complaint to add causes of action against Chase that were not alleged against any party in
the first amended complaint. Such requests should have been first addressed to the trial
court.
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“As a general rule, ‘issues not raised in the trial court cannot be raised for the first
time on appeal.’ [Citation.]” (Sea & Sage Audubon Society, Inc. v. Planning Com.
(1983) 34 Cal.3d 412, 417.) “On a number of occasions, however, appellate courts have
relaxed this rule and have permitted a party to raise belatedly ‘a pure question of law
which is presented on undisputed facts.’ [Citations.] This forgiving approach has been
most frequently invoked when ‘important issues of public policy are at issue.’
[Citations.]” (Ibid.) In this case, Fontes has presented no “important issue of public
policy.” Hence, we will not relax the general rule that litigants must first present their
case to the trial court, not to the Court of Appeal.
This appeal is meritless.
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III. DISPOSITION
The order sustaining Chase’s demurrer without leave to amend is affirmed. The
judgment of dismissal is affirmed. Chase shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CUNNISON J.
We concur:
RAMIREZ P. J.
McKINSTER J.
Retired judge of the Riverside Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's order sustaining the defendant's demurrer without leave to amend and the subsequent dismissal, finding that the appellant failed to demonstrate any error or abuse of discretion by the trial court.
Issues
Did the trial court err in sustaining the defendant's demurrer to the first amended complaint without leave to amend?
Did the appellant meet the burden of demonstrating that the trial court abused its discretion in denying leave to amend?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“We affirm the order sustaining the demurrer without leave to amend and the order of dismissal on the ground that Fontes has utterly failed to demonstrate that the trial court erred or that it abused its discretion.”