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Idowu O. Oghogho v. Litton Loan Servicing

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


March 7, 2012

IDOWU O. OGHOGHO, PLAINTIFF AND APPELLANT,
v.
LITTON LOAN SERVICING, LP, DEFENDANT AND RESPONDENT.

(Super. Ct. No. 34201000074299CUORGDS)

The opinion of the court was delivered by: Robie , Acting P. J.

Oghogho v. Litton Loan Servicing 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Idowu O. Oghogho appeals from a judgment in favor of Litton Loan Servicing, LP entered after the court sustained its demurrer to Oghogho's amended complaint without leave to amend. We affirm.

BACKGROUND

The record on appeal in this case is sparse. Oghogho has not included the original complaint, the operative (amended) complaint, the demurrer filed by Litton, or his opposition to the demurrer.

What we glean about the parties' dispute appears in the trial court's order sustaining the demurrer to the amended complaint without leave to amend. It states: "The complaint and plaintiff's opposition are virtually incomprehensible. It appears he is seeking to quiet title. He obtained a mortgage loan from Ownit, Inc. [i]n January 2006. In August 2007 he defaulted on the loan. A Notice of Trustee's Sale was recorded on February 28, 2008 and a second Notice was recorded on November 16, 2009. He has filed numerous motions, all of which have been denied.

"Plaintiff does not deny he has defaulted on the loan and he does not allege that he has tendered the amount owed. He is apparently under the misapprehension that his mortgage debt was discharged in bankruptcy. He filed for bankruptcy in September 2007. A discharge extinguishes only the personal liability of the debtor. The right to foreclose on the mortgage survives the bankruptcy. Johnson v. Home State Bank (1991) [501 U.S. 78] 111 S.Ct. 2150, 2153. Dewsnup v. Timm (1992) [502 U.S. 410] 112 S.Ct. 773, 778."

DISCUSSION

In reviewing a general demurrer sustained without leave to amend, we must determine whether, assuming the facts alleged in the complaint are true, a cause of action has been or can be stated. (Ball v. GTE Mobilnet of California (2000) 81 Cal.App.4th 529, 534-535.) This mode of review requires us to review the allegations of the plaintiff's complaint. (See Pacific Airmotive Corp. v. First Interstate Bank (1986) 178 Cal.App.3d 1130, 1133.)

Here, unfortunately, no iteration of the complaint is in the record on appeal: no pleadings, no moving or opposing points and authorities, and no reporter's transcripts appear in the record on appeal.

It is the appellant's burden to provide an adequate record to assess error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Because Oghogho has not included the operative complaint in the record on appeal, he has not provided an adequate record to assess error.

Oghogho is not exempt from the rules governing appeals because he is representing himself. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1246-1247; see Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties are held to "the same 'restrictive procedural rules as an attorney'"].)

Oghogho's failure to designate the operative complaint as part of the appellate record dooms his appeal. Without it, we are unable to assess whether the trial court correctly concluded that the amended complaint fails to "deny he has defaulted on the loan and he does not allege that he has tendered the amount owed" so that amendment would be futile. And, without any means of evaluating these matters for ourselves, we assume the trial court did the right thing. For example, we must presume on appeal that official duties have been regularly performed (Evid. Code, § 664), and this presumption extends to the actions of trial judges (Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 ["If the invalidity does not appear on the face of the record, it will be presumed that what ought to have been done was not only done but rightly done"]).

For these reasons, Oghogho has failed to demonstrate error justifying a reversal of the judgment.

DISPOSITION

The judgment is affirmed. Litton shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

We concur: BUTZ , J. MAURO , J.

20120307

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