Burgos v. Wheeler

Full title: RIGOBERTO BURGOS, Plaintiff and Appellant, v. JAMES WHEELER et al.…

Court: California Court of Appeals, Fourth District, First Division

Date published: Feb 6, 2009

No. D051299 (Cal. Ct. App. Feb. 6, 2009)

Opinion

RIGOBERTO BURGOS, Plaintiff and Appellant, v. JAMES WHEELER et al., Defendants and Respondents. D051299 California Court of Appeal, Fourth District, First Division February 6, 2009

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. GIN054737, Michael M. Anello, Judge, and from orders of the Superior Court of Los Angeles County, Super. Ct. No. YC051513, Cary H. Nishimoto, Judge.

McDONALD, J.

Plaintiff Rigoberto Burgos appeals a summary judgment entered in favor of defendants James and Towa Wheeler (together the Wheelers) in his action against them for investment fraud and other claims. On appeal, Burgos primarily contends: (1) the Los Angeles County Superior Court erred by granting the Wheelers' motion to change venue to San Diego County; (2) the trial court erred by sustaining in part the Wheelers' demurrer; (3) the court erred by granting the Wheelers' motion for summary judgment; and (4) the court erred by imposing various sanctions on him.

FACTUAL AND PROCEDURAL BACKGROUND

In or about June 1998, investment broker William Wright represented to Burgos that Universal Alliance, Inc. (UA) was making over $2 million per year and any investment in UA would triple in value in about 90 days. Based on those representations, Burgos signed a subscription agreement and sent the agreement, together with $60,000, to UA for the purchase of UA stock.¹

1 In exchange for Burgos's $60,000 investment, UA apparently delivered to him a stock certificate for 12,000 shares of UA common stock.

James Wheeler was the president and chief executive officer of UA and owned about 10 percent of its outstanding stock. His wife, Towa Wheeler, was never an officer, director, or employee of UA.

In 2003 UA filed a petition for chapter 7 no asset bankruptcy protection. James and Towa Wheeler also filed petitions for chapter 7 no asset, no bar date bankruptcy protection. In November 2003 the United States Bankruptcy Court granted the Wheelers a bankruptcy discharge. In January 2004 that court also granted UA a bankruptcy discharge. In 2003 Burgos discovered UA appeared to be out of business and it and the Wheelers had filed for bankruptcy protection.

In August 2005 Burgos, in propria persona, filed a complaint against the Wheelers, UA, and unnamed Doe defendants arising out of the loss of his $60,000 investment in UA stock. Alleging the underlying contract (i.e., subscription agreement) was entered into in Los Angeles County, Burgos filed his complaint in the Los Angeles County Superior Court. The Wheelers filed a motion for a change of venue to San Diego County. The court granted the motion and, after denying Burgos's motion for reconsideration, issued an order transferring the case to San Diego County.

After the transfer, Burgos filed the operative first amended complaint (Complaint) against the Wheelers, UA, and William Wright.² The Complaint alleged 11 causes of action: (1) fraud and deceit; (2) negligent misrepresentation; (3) breach of fiduciary duty; (4) breach of contract; (5) rescission of contract; (6) conspiracy; (7) unjust enrichment; (8) money had and received; (9) violation of Corporations Code sections 25401 and 25403; (10) breach of the implied covenant of good faith and fair dealing; and (11) accounting.

2 Wright was never served with the Complaint.

The Wheelers filed a demurrer to the Complaint, arguing some of the alleged causes of action were garden variety claims discharged by their chapter 7 no assets, no bar date bankruptcy in 2003. Taking judicial notice of bankruptcy court documents in its file, the trial court sustained the demurrer in part and dismissed six of the 11 causes of action (i.e., the second, fourth, fifth, eighth, 10th, and 11th causes of action). The court denied Burgos's motion for reconsideration.

The Wheelers and UA filed answers to the remaining causes of action alleged in the Complaint, asserting the affirmative defense that various statutes of limitations applied to bar those causes of action. The Wheelers filed a motion for summary judgment or, in the alternative, summary adjudication of issues, arguing there were no triable issues of material fact on any of the Complaint's remaining causes of action and they were entitled to judgment as a matter of law. They also argued various statutes of limitations barred the remaining causes of action. In support of their motion for summary judgment, the Wheelers submitted a separate statement of undisputed facts, their supporting declarations, and declarations of their attorneys with accompanying exhibits. Burgos did not file any papers in opposition to the motion for summary judgment.

On June 21, 2007, the trial court issued its tentative ruling granting the Wheelers' motion for summary judgment. The court concluded the Wheelers showed (1) Burgos was unable to prove an essential element of each of the five remaining causes of action and (2) Burgos did not show there was a triable issue of material fact regarding those causes of action or any applicable statute of limitations barring each one.

On June 22, Burgos filed a voluntary dismissal of the Complaint without prejudice, which the court vacated later that day and then confirmed its tentative ruling granting the Wheelers' motion for summary judgment. On July 19, the court entered judgment for the Wheelers and UA on all causes of action against them. The court also entered judgment against Burgos for the amounts of the sanctions imposed against him on four occasions during the action, which sanctions totaled $24,447.50.

Burgos filed two notices of appeal challenging the judgment and various prejudgment orders. The first notice of appeal was filed July 10, 2007, and the second October 12, 2007.³

3 Burgos's attorney, Janet A. Guynes, joined in his second notice of appeal, apparently challenging certain sanction orders applicable to her.

DISCUSSION

I

Motion to Dismiss Appeal

On September 25, 2007, the Wheelers filed a motion to dismiss Burgos's appeal.

A

Except for the trial court's orders imposing sanctions in excess of $5,000, none of the trial court's prejudgment orders as of July 10, 2007, were independently appealable. (Code Civ. Proc., § 904.1, subd. (a).)⁴ Therefore, the Wheelers correctly argue Burgos's first notice of appeal was prematurely filed (except regarding orders for sanctions exceeding $5,000).

4 All further statutory references are to the Code of Civil Procedure unless otherwise specified.

However, on July 19, 2007, the trial court entered its judgment, which is appealable under section 904.1. On August 14, the Wheelers served Burgos with a notice of entry of judgment. Within 60 days thereafter (on October 12), Burgos filed a second notice of appeal, challenging the judgment entered on July 19 and various orders issued prior thereto. Therefore, Burgos's second notice of appeal was timely filed as to the judgment and all prejudgment orders not independently appealable (i.e., all orders except orders for sanctions exceeding $5,000). (§ 904.1, subd. (a); Cal. Rules of Court, rule 8.104(a)(2).⁵) Accordingly, Burgos's second notice of appeal in effect cured the deficiency of his premature filing of the first notice of appeal regarding his appeal of the judgment and those not yet appealable orders.

5 All rule references are to the California Rules of Court.

B

The Wheelers also argue Burgos did not timely file a notice of appeal challenging two orders imposing sanctions exceeding $5,000, which orders are independently appealable. They correctly note that pursuant to section 904.1, subdivision (a)(11), an appeal may be taken "[f]rom an interlocutory order directing payment of monetary sanctions by a party or an attorney for a party if the amount exceeds five thousand dollars ($5,000)." However, we disagree that Burgos did not timely file a notice of appeal challenging those two orders.

On January 12, 2007, the trial court issued an order imposing on Burgos sanctions totaling $15,611.50.⁶ On January 16, the Wheelers served Burgos by mail with a "NOTICE OF RULING ON AMOUNT OF SANCTIONS GRANTED PURSUANT TO CCP § 128.7," which notice attached a copy of the tentative ruling the court confirmed on January 12. Because that order was independently appealable under section 904.1, subdivision (a)(11), as discussed above, Burgos was required to file a notice of appeal within the time limits of rule 8.104(a) to appeal that sanctions order. In their motion to dismiss, the Wheelers argue their January 16, 2007, "notice of ruling" was sufficient under rule 8.104(a)(2) to require Burgos to file a notice of appeal challenging the sanctions order within 60 days after that notice.

6 Although the record on appeal does not contain a copy of the trial court's order dated January 12, 2007, the parties represent, and the judgment reflects, that the court imposed sanctions on Burgos in a total amount of $15,611.50. Furthermore, in support of the motion to dismiss, the Wheelers submitted exhibits including a copy of their notice of ruling of the trial court's order on January 12, 2007, confirming its tentative ruling regarding sanctions. Accordingly, for purposes of deciding the motion to dismiss, we presume the court's sanctions order was issued on that date.

Rule 8.104(a) provides:

"Unless a statute or rule 8.108 provides otherwise, a notice of appeal must be filed on or before the earliest of:

"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was mailed;

"(2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or

"(3) 180 days after entry of judgment."⁷ (Italics added.)

7 "As used in [rule 8.104] (a) . . ., 'judgment' includes an appealable order if the appeal is from an appealable order." (Rule 8.104(f).)

The Wheelers' January 16, 2007, "notice of ruling" did not constitute a "Notice of Entry" under rule 8.104(a)(2), and therefore that provision's 60-day period for appeal of the January 12, 2007, sanctions order did not apply. Cases have long held that a "notice of ruling" is not a "Notice of Entry" under the jurisdictional rules for timely filing a notice of appeal. (Sadler v. Turner (1986) 186 Cal.App.3d 245, 248 ["A notice of ruling . . . is not a ' "written notice of entry of judgment" that would start the 60-day period running . . . .' "]; Call v. Los Angeles County Gen. Hosp. (1978) 77 Cal.App.3d 911, 915 [same].) Pursuant to the rules for appeal, "the document that triggers the 60-day time period to file a notice of appeal must be 'entitled "Notice of Entry." ' " (Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256, 260.) "[T]he failure to entitle the document using the crucial notice of entry language is not a matter of mere form; [rule 8.104(a)(1)] explicitly without any ambiguity requires the document be 'entitled' notice of entry." (Ibid.)

In a similar case in which the court clerk mailed a document captioned "notice of ruling," a court concluded that mailing was not a "notice of entry" within the meaning of the rules for timely filing a notice of appeal. (20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 671-672.) The court stated:

"It might seem that the difference between a 'notice of ruling' and a 'notice of entry' is hypertechnical. In another context it might be. But the [authorities] have reiterated the jurisdictional character of a timely notice of appeal. [Citation.] Since the time within which an appeal must be filed is jurisdictional, rules that measure that time must stand by themselves without embroidery. The Judicial Council has promulgated a rule to guide counsel and courts: if the clerk sends out a document styled 'notice of entry' of judgment or an appealable order, or sends out a date-stamped copy of the judgment or order, the [now 60-day appeal period of rule 8.108(a)(1)] starts to run. Otherwise it does not." (Id. at p. 672.)

The California Supreme Court recently cited these and other cases that strictly and literally interpreted the term "notice of entry" in the context of the jurisdictional time period within which a party may file a notice of appeal. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 903-904.) Alan concluded "rule 8.104(a)(1) does indeed require a single document--either a 'Notice of Entry' so entitled or a file-stamped copy of the judgment or appealable order--that is sufficient in itself to satisfy all of the rule's conditions . . . ." (Id. at p. 905, italics added.) We discern no reason why Alan's interpretation of rule 8.104(a)(1)'s language should not apply to identical language in rule 8.104(a)(2) regarding the required "Notice of Entry" served by a party (instead of mailed by a court clerk). "Because the time limits for filing a notice of appeal are jurisdictional, we must apply [rule 8.104(a)(2)] strictly and literally according to its terms . . . ." (In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 686.) We conclude the Wheeler's January 16, 2007, "notice of ruling" did not satisfy rule 8.104(a)(2)'s requirement for service of "a document entitled 'Notice of Entry' of judgment" and therefore that provision's 60-day period for filing a notice of appeal does not apply to bar Burgos's appeal of the January 12, 2007, sanctions order. Rather, the longer 180-day "default" period of rule 8.104(a)(3) applies. Because Burgos filed his first notice of appeal on July 10, 2007, (which notice specifically challenged the January 12, 2007, sanctions order), he timely appealed that sanctions order within 180 days of its issuance. (Rule 8.104(a)(3).)

Similarly, we conclude Burgos timely appealed the second order imposing on him sanctions exceeding $5,000. On April 20, 2007, the trial court imposed on Burgos and his counsel a total of $6,796.00 in sanctions. On April 23, 2007, the Wheelers served Burgos by mail with a "NOTICE OF RULING ON AMOUNT OF SANCTIONS GRANTED PURSUANT TO CODE OF CIVIL PROCEDURE § 128.7," which notice attached a copy of the tentative ruling the court confirmed on April 20. Because that order was independently appealable under section 904.1, subdivision (a)(11), Burgos was required to file a notice of appeal within the time limits of rule 8.104(a) to appeal that sanctions order. In their motion to dismiss, the Wheelers argue their April 23, 2007, "notice of ruling" was sufficient under rule 8.104(a)(2) to require Burgos to file a notice of appeal challenging the sanctions order within 60 days after that notice. However, applying our reasoning and the case law cited above, we conclude the Wheeler's "notice of ruling" did not constitute a "Notice of Entry" under rule 8.104(a)(2) and therefore that provision's 60-day period for filing a notice of appeal does not apply to bar Burgos's appeal of the April 20, 2007, sanctions order. Rather, the 180-day "default" period of rule 8.104(a)(3) applies. Because Burgos filed his first notice of appeal on July 10, 2007, (which specifically challenged the April 20, 2007, sanctions order), he timely appealed that sanctions order within 180 days of its issuance. (Rule 8.104(a)(3).) Furthermore, his second notice of appeal, filed on October 12, 2007, was also within that 180-day period and therefore timely appealed the April 20 order.

C

In their motion to dismiss, the Wheelers also raise alternative grounds on which they argue Burgos's appeal should be dismissed. They argue his appeal should be dismissed because: (1) he did not oppose their motion for summary judgment; (2) his appeal is frivolous; and (3) he did not properly designate certain portions of the record as part of the record on appeal. However, in so doing, the Wheelers do not provide any persuasive case--or other--authority showing any of those grounds require dismissal of the appeal. Accordingly, we deny the motion to dismiss the appeal.

II

Motion to Change the Venue

Burgos contends the trial court erred by granting the Wheelers' motion to change the venue from Los Angeles County Superior Court to San Diego County.

A

Burgos filed his original complaint against the Wheelers and UA in August 2005. In October 2005 Burgos apparently served the complaint on the Wheelers.⁸ On November 1, the Wheelers filed with the trial court a notice that automatic bankruptcy stays were in effect in the matter based on their 2003 bankruptcy proceedings. At a November 4 hearing, the trial court issued an order to show cause (OSC) regarding the bankruptcy status of Burgos's claims and the bankruptcy stays, and scheduled a hearing for January 31, 2006. On January 31, the court continued the OSC hearing until March 3 for Burgos to file a memorandum showing why his causes of action were not subject to the Wheelers' bankruptcy discharges. On or about February 23, the United States Bankruptcy Court denied the Wheelers' motion for a contempt order against Burgos, finding that because he was not listed as a creditor in their bankruptcies, he was not expressly covered by their discharge injunctions. On March 3, the trial court found that the bankruptcy stays were no longer in effect. The court stated that although a proof of service showed Towa Wheeler had been served on October 18, 2005, she had not appeared or defaulted. The court continued the hearing until March 29, 2006, for Burgos to show cause why sanctions, including dismissal, should not be imposed for his failure to prosecute his action. On or about April 6, the United States Bankruptcy Court apparently denied the Wheelers' motion to reopen their bankruptcy cases.

8 Burgos does not cite to, nor have we found, any proofs of service in the record on appeal that show the Wheelers were served with the original complaint. In fact, the trial court's minutes for a November 4, 2005, hearing state there were no proofs of service showing any of the defendants had been served with the complaint as of October 31, 2005. Nevertheless, we presume, for purposes of this appeal, the Wheelers were served with the original complaint in October 2005, as Burgos represents.

On or about April 7, the Wheelers apparently filed a motion for change of venue from the Los Angeles County Superior Court to San Diego County. Their motion also requested an order imposing section 396b sanctions against Burgos in the amount of $1,140 for their reasonable attorney fees and expenses incurred in making the motion. In his supporting declaration, James Wheeler stated Burgos's complaint "fails to attach the [alleged] contract or plead the relevant terms of the contract including when it was signed, where it was signed, the purpose of the contract, the term of the contract, and what particular clause of the contract was allegedly breached in Los Angeles County." In a supplemental declaration, Nathan Low, one of the Wheelers' attorneys, stated that on April 6 he served Burgos by mail with their motion for change of venue, which set a hearing date for May 8. Low further stated that on April 7 he mailed their motion papers, together with a $680 check for filing fees, to the trial court. On April 11, the court clerk rejected the motion papers because the amount of the filing fee check was $40 too much. On April 13, Low resubmitted the motion papers together with a new check for the exact amount of $640, which the court apparently received on April 17. Concerned whether the motion was now timely filed, Low called the court clerk regarding continuing the May 8 hearing date if the court considered the motion not timely filed. On May 3, the court clerk informed Low that the court's research attorney believed the motion had been timely served and filed and it was to be heard at its originally scheduled date of May 8. Low immediately called Burgos and informed him of that conversation and the pending May 8 hearing.

On or about May 1, the trial court issued its tentative ruling granting the Wheelers' motion to change venue. Its tentative ruling stated:

"Defendants all reside in San Diego County and there is no showing that any contract was entered into, executed, performed and/or breached in Los Angeles County. Plaintiff's complaint alleges a written contract entered into in Hawthorne but failed to attach a copy of it to the complaint and failed to respond to this motion with written opposition to show a contract was entered into in Los Angeles County. Sanctions, grant CCP § 396b in the amount of $1,000.00 payable to Defendants jointly and severally. There is no written opposition."

Apparently on or about May 5, Burgos filed an objection to the Wheelers' motion to change venue on the ground that it was filed late under sections 396b and 1005, subdivision (b). He also requested a continuance. On May 4, he served the Wheelers by mail with that objection. At the May 8 hearing on the motion, the Wheelers argued their initial filing and service of the motion papers on or about April 7 were timely. The trial court noted Burgos failed to timely file any opposition to the motion. The court concluded: "[G]iven the circumstances, the hearing should be held today, based on the papers that have been filed, so I'm [going to] stand with the tentative ruling and the [Wheelers] can give notice." The court granted the Wheelers' motion for a change of venue and also granted their request for section 396b sanctions against Burgos in the amount of $1,000. On June 30, the court issued a written order transferring the case to the San Diego County Superior Court and ordering Burgos to pay the Wheelers $1,000 as reasonable attorney fees and costs under section 396b.

B

Section 395, subdivision (a), provides that the proper venue or court for trial of an action is "the superior court in the county where the defendants or some of them reside at the commencement of the action." Nevertheless, "if a defendant has contracted to perform an obligation in a particular county, the superior court in the county where the obligation is to be performed, where the contract in fact was entered into, or where the defendant or any defendant resides at the commencement of the action is a proper court for the trial of an action founded on that obligation . . . ." (§ 395, subd. (a).) Regarding corporate defendants, "[a] corporation . . . may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated . . . ." (§ 395.5.)

If an action is filed in a court that lacks jurisdiction of the subject matter, the court must, on application of either party or on its own motion, transfer the action to another court in California if that other court has subject matter jurisdiction. (§ 396, subd. (a).) However, "if an action . . . is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action . . . to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action . . . was not commenced in the proper court, order the action . . . transferred to the proper court." (§ 396b, subd. (a), italics added.) A trial court has discretion to "order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action." (§ 396b, subd. (b).) Section 397 provides: "The court may, on motion, change the place of trial in the following cases: [¶] (a) When the court designated in the complaint is not the proper court. . . ."

"An appellate court reviews [an order granting or denying a motion to change venue] under the abuse of discretion standard. [Citation.] A trial court abuses its discretion when venue is mandatory in a county other than the county where the action has been brought. [Citation.]" (State Bd. of Equalization v. Superior Court (2006) 138 Cal.App.4th 951, 954.)

C

Burgos asserts the trial court erred by granting the Wheelers' motion to change venue because their motion was untimely filed under section 396b, subdivision (a), and therefore the court lacked jurisdiction to consider it. In granting the motion to change venue, the trial court implicitly found that the motion had been timely filed under section 396b, subdivision (a), which requires a party to file a motion to change venue "within the time otherwise allowed to respond to the complaint." (§ 396b, subd. (a).) Although the time to respond to a complaint (e.g., file an answer) is generally 30 days after service of the complaint (see §§ 412.20, subdivision (a)(3), 432.10; rule 3.l10(d)), a defendant nevertheless can file an answer or other response thereafter if no default has yet been entered. (Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2008) ¶ 5:3, p. 5-1.) Because in this case Burgos had not filed a request for, or obtained, an entry of default before the Wheelers filed their motion to change venue, the Wheelers' motion was not untimely under section 396b, subdivision (a).⁹

9 We further note that any period during which the Wheelers were required to file an answer or other response to the complaint presumably was tolled by their filing of the notice of automatic bankruptcy stays on November 1, 2005. The trial court presumably recognized that notice of stays until March 3, 2006, when it stated the stays were no longer in effect. Nevertheless, on March 3 the court also continued the hearing for Burgos to show cause why he had not prosecuted his action (e.g., had not filed a request for a default). (See rule 3.110(g) ["If a responsive pleading is not served within the time limits specified in this rule and no extension of time has been granted, the plaintiff must file a request for entry of default within 10 days after the time for service has elapsed. The court may issue an order to show cause why sanctions should not be imposed if the plaintiff fails to timely file the request for the entry of default."].) Therefore, the Wheelers' April 7 motion to change venue was not untimely under section 396b, subdivision (a).

In any event, assuming arguendo the Wheelers' motion was untimely under section 396b, subdivision (a), the trial court nevertheless was not deprived of jurisdiction to consider that motion. "[T]he time limit for filing a notice of motion for change of venue prescribed by section 396b is not jurisdictional in the sense that a trial court is without power to entertain an untimely [filed] motion." (Van Gaalen v. Superior Court (1978) 80 Cal.App.3d 371, 378, fn. omitted.) As the California Supreme Court explained:

"It has been stated frequently that a motion for a change of venue on the ground of defendant's residence in another county should be filed at the time defendant demurs or answers; that rule follows the wording of section 396b . . . . [Citations.] But the reasoning upon which those cases are based is that the failure to move for a change of venue on the ground of residence at the time of demurrer or answer constitutes a waiver of the right to have the venue changed. [Citations.] . . . [¶] . . . [¶]

" . . . Waiver is ordinarily a question of fact. [Citation.] While it may be true that the failure to institute proceedings for change of venue on the ground of residence at the time of filing a demurrer or answer, standing alone, requires as a matter of law that relief be denied when an attempt to obtain it is made by later proceedings, there is nothing in section 396b or the cases heretofore cited, which compels a holding that such waiver occurs as a matter of law where, as in this case, there is a sufficient showing that there was no intent to waive the right or to invoke the jurisdiction of the court in which the action is commenced, and the defendant has acted in good faith and with diligence. To blind one's self to the realities by a slavish adherence to technicalities is not consonant with justice or the liberal tendencies with respect to rules of procedure and practice. To give the construction of section 396b contended for by plaintiffs would be unreasonable and out of line with the rules pertaining to waiver. Furthermore, it would require a strict and literal, rather than a liberal[,] interpretation of that section." (Lyons v. Brunswick-Balke etc. Co. (1942) 20 Cal.2d 579, 582-584.)

In the circumstances of this case, the trial court implicitly found the Wheelers had not waived their right to have the action tried in the proper venue. When they filed their motion to change venue, they had not filed an answer or other substantive response or other pleading in the matter. There is substantial evidence to support the court's inference that the Wheelers acted in good faith and with diligence in filing their motion to change venue on or about April 7, 2006. We conclude Burgos has not carried his burden on appeal to show the trial court abused its discretion by finding the Wheelers had not waived their right to a proper venue when they, as we assume arguendo, untimely filed their motion under section 396b, subdivision (a). (Lyons v. Brunswick-Balke etc. Co., supra, 20 Cal.2d at pp. 582-584; Van Gaalen v. Superior Court, supra, 80 Cal.App.3d at p. 378; State Bd. of Equalization v. Superior Court, supra, 138 Cal.App.4th at p. 954.)

D

Burgos also asserts the trial court erred by granting the Wheelers' motion to change venue because their motion was untimely filed under section 1005, subdivision (b). He argues their motion was not filed 16 days before the May 8 hearing on the motion.

Section 1005, subdivision (b), provides that "all moving and supporting papers shall be served and filed at least 16 court days before the hearing. . . . However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days . . . . [¶] The court, or a judge thereof, may prescribe a shorter time." Rule 3.1300(b) provides: "The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in . . . section 1005."

In this case, the trial court implicitly found the Wheelers' motion to change venue was timely served and filed. There is substantial evidence to support that finding. Low's declaration stated that on April 6 he served Burgos by mail with the moving papers. Therefore, Burgos was served more than 16 court days, plus five calendar days, before, and actually had ample notice of, the scheduled May 8 hearing. Low also stated that on April 7 he mailed the moving papers to the court, along with a check in an amount he had been told and was, in fact, more than sufficient to cover the filing fees. Therefore, the court could conclude the Wheelers in effect timely filed their moving papers (even though the court clerk returned those papers and required the Wheelers to refile them with a check for the exact filing fee amount).

Alternatively, the trial court also implicitly sua sponte shortened the required time for filing the moving papers. Because Burgos was timely served with those papers, the court did not abuse its discretion by concluding that in the circumstances of this case the Wheelers' refiling of those papers on April 17 was sufficient (i.e., 14 or 15 court days before the scheduled May 8 hearing) and did not require the full 16-court-day period otherwise provided by section 1005, subdivision (b).¹⁰ The court could reasonably conclude that a discrepancy of only one or two court days for filing of the moving papers was insignificant and good cause existed for shortening the section 1005, subdivision (b), period. (§ 1005, subd. (b); rule 3.1300(b).) We are not persuaded by Burgos's assertion that the trial court did not have discretion to sua sponte shorten the filing period or that it acted in excess of its jurisdiction in so doing.¹¹ Likewise, we are not persuaded by Burgos's conclusory argument that the court abused its discretion by denying his request for a continuance and, instead, proceeding with the May 8 hearing on the merits of the Wheelers' motion to change venue.

10 Burgos does not cite any authority for his apparent assertion that the trial court could not sua sponte shorten the filing period without first giving him advance notice of that proposed decision, particularly when he appeared at the May 8 hearing to argue that the moving papers were untimely filed.

11 Because we conclude there is substantial evidence to support a finding that the Wheelers' moving papers were in effect timely filed and the trial court did not abuse its discretion by shortening the time period by one or two court days, we need not address Burgos's alternative contention that the court erred by concluding he had waived the section 1005, subdivision (b), filing period by appearing at the May 8 hearing.

E

Burgos also asserts the trial court erred in finding Los Angeles County was not the proper court for his action against the Wheelers and UA. He apparently does not dispute the Wheelers resided in San Diego County and UA's principal place of business was in San Diego County. Rather, he argues there was evidence showing the alleged contract between him and the Wheelers and/or UA was entered into in Los Angeles County.

In his declaration in support of the motion, James Wheeler stated Burgos's complaint "fails to attach the [alleged] contract or plead the relevant terms of the contract including when it was signed, where it was signed, the purpose of the contract, the term of the contract, and what particular clause of the contract was allegedly breached in Los Angeles County." Burgos did not file any opposition to the Wheelers' motion to change venue (except for his objection arguing it was untimely filed and requesting a continuance). Therefore, there was no evidence to support a finding that the alleged contract was entered into in Los Angeles County. To the extent Burgos cites as support the allegations of his complaint, those allegations do not constitute evidence to refute the Wheelers' declarations and other supporting documents because Burgos's complaint was not verified. (See generally § 446, subd. (a); Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 929, fn. 7 [a verified complaint "may be considered for its factual content in ruling on a motion for change of venue to the extent that it is not controverted by the affidavits of the moving party"]; cf. Evangelize China Fellowship, Inc. v. Evangelize China Fellowship (1983) 146 Cal.App.3d 440, 444 [verified complaint may be treated as declaration/evidence for purpose of showing court had personal jurisdiction over defendant].) Because it is undisputed the Wheelers' residence and UA's principal place of business were in San Diego County, the burden was on Burgos to show his action "clearly [came] within one of the statutory exceptions to the general rule that actions are triable in the place of the defendant's residence." (Archer v. Superior Court (1962) 202 Cal.App.2d 417, 420.) In this case, Burgos failed to present any evidence showing San Diego County was not the proper venue for trial of his action. He did not present any evidence the alleged contract was entered into or to be performed in Los Angeles County. (§ 395, subd. (a).) Therefore, the trial court did not abuse its discretion by finding San Diego County was the proper venue for trial of Burgos's action. (State Bd. of Equalization v. Superior Court, supra, 138 Cal.App.4th at p. 954.)

In any event, even had the trial court considered the allegations in Burgos's unverified complaint, those allegations were insufficient to support a finding that the alleged contract was entered into in Los Angeles County.¹² Burgos's complaint alleged: "The contract upon which this complaint is founded was entered into in Los Angeles County . . . ." However, that conclusory allegation was insufficient to support a finding that the final step in the creation of the alleged contract occurred in Los Angeles County. Burgos did not attach a copy of the alleged contract to the complaint or provide other specific information regarding the offer and acceptance that created that contract. Case law holds that it is the place of the last act in the making or creation of a contract (i.e., its acceptance) that is the proper venue under section 395, subdivision (a). (Pacific Nat. Bank v. Covington Inv. Co. (1959) 169 Cal.App.2d 868, 871; Elsinore Union etc. Sch. Dist. v. Kastorff (1954) 129 Cal.App.2d 60, 65-66.) There is no evidence showing the alleged contract was accepted or otherwise created in Los Angeles County.¹³ Accordingly, the trial court did not err by finding San Diego County was the proper venue for trial of Burgos's action and transferring the action to San Diego County.¹⁴

12 Burgos's complaint does not allege the contract was to be performed in Los Angeles County.

13 Although Burgos submitted a copy of the subscription agreement in support of his subsequent motion for reconsideration of the trial court's order granting the motion for change of venue, that agreement supports, rather than detracts from, the order. The subscription agreement Burgos signed and mailed to UA in June 1998 provides: "I shall become a Shareholder of [UA] effective as of the date of the Subscription Agreement, upon acceptance by [UA], as will be evidenced by the signature of the President and Secretary of [UA] at the end of this Subscription Agreement." (Italics added.) Therefore, the last act in the making or creation of the alleged contract was the acceptance by UA of the subscription agreement, which presumably occurred in San Diego County where UA's principal place of business was located. Burgos apparently mailed the signed subscription agreement to the Oceanside, California address for UA listed at the beginning of that agreement. Furthermore, the copy of the subscription agreement Burgos submitted to the trial court did not bear any signatures of UA's president or secretary, confirming that it had yet to be accepted by UA and therefore was not created or entered into until that last act was performed in San Diego County.

14 Burgos also does not persuade us the trial court abused its discretion by denying his request to present oral testimony at the May 8 hearing on the Wheelers' motion to change venue.

F

Even assuming arguendo the trial court erred by granting the Wheelers' motion to change venue, Burgos does not argue, much less show, he was prejudiced by that purported error. Therefore, he has not carried his burden on appeal to show reversible error.

"The burden is on the appellant in every case to show that the claimed error is prejudicial; i.e., that it has resulted in a miscarriage of justice." (Cucinella v. Weston Biscuit Co. (1954) 42 Cal.2d 71, 82.) "Where any error is relied on for a reversal it is not sufficient for appellant to point to the error and rest there." (Santina v. General Petroleum Corp. (1940) 41 Cal.App.2d 74, 77.) California Constitution, article VI, section 13 provides: "No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." Likewise, section 475 provides in part:

"No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown."

"In other words, [an appellate court is] not to look to the particular ruling complained of in isolation, but rather must consider the full record in deciding whether a judgment should be set aside." (Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833.)

Because Burgos has not argued on appeal that the trial court's purported error in granting the Wheelers' motion to change venue was prejudicial (i.e., a different result would have been probable absent that error), he has not carried his burden on appeal to show reversible error. (Cucinella v. Weston Biscuit Co., supra, 42 Cal.2d at p. 82; Santina v. General Petroleum Corp., supra, 41 Cal.App.2d at p. 77; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) An appellate court cannot "act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citations.]" (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) Assuming arguendo the trial court erred in granting the motion to change venue, we conclude the purported error was not prejudicial.

III

Section 396b Sanctions

Burgos contends the trial court erred by imposing $1,000 in section 396b sanctions on him in granting the Wheelers' motion to change venue.

A

The Wheelers' motion to change venue included a request for an order imposing section 396b sanctions against Burgos in the amount of $1,140 for their reasonable attorney fees and expenses incurred in making the motion to change venue. In his supporting declaration, Low (one of the Wheelers' attorneys) attached a copy of a letter to Burgos requesting the action be transferred to San Diego County Superior Court. Low stated he spent 2.5 hours preparing the notice and motion to change venue and companion declarations. He estimated that at least three hours of attorney time would be spent appearing at the hearing, including travel time. Given his billable rate of $200 per hour, the total attorney fees incurred in making the motion would be $1,100. In addition, the Wheelers paid the filing fee of $40. Therefore, the total amount of section 396b sanctions requested was $1,140. At the May 8, 2006, hearing on the Wheelers' motion to change venue, the trial court granted the motion and then imposed $1,000 in sanctions against Burgos pursuant to section 396b.

B

Section 396b, subdivision (b), provides:

"In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. . . . Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party's papers, or on the court's own noticed motion, and after opportunity to be heard."

Burgos argues the trial court erred by imposing section 396b sanctions against him because it sanctioned him for ignoring the Wheelers' motion, rather than for filing the action in an improper venue. However, the record does not support that assertion. The trial court did not make any statements explaining the basis for its section 396b sanctions. Accordingly, we presume the trial court properly considered the section 396b, subdivision (b), factors quoted above and implicitly found Burgos did not file his action in Los Angeles County Superior Court in good faith based on the facts and law that he knew or should have known. Burgos has not carried his burden on appeal to show the trial court abused its discretion in imposing the section 396b sanctions against him.¹⁵

15 Although Burgos also argues the trial court apparently imposed sanctions against him based on an incorrect belief that he had failed to allege the terms of the contract in his complaint, we presume the trial court considered only the appropriate factors in imposing sanctions absent any express statements in the record to the contrary.

IV

Motion for Reconsideration of Order Changing Venue

Burgos contends the trial court erred by denying his motion for reconsideration of its order granting the Wheelers' motion to change venue.

A

On May 24, 2006, Burgos filed a motion for reconsideration of or, alternatively, relief from the trial court's May 8 order granting the Wheelers' motion to change venue and imposing section 396b sanctions against him. He brought his motion pursuant to section 1008, subdivision (a), and, alternatively, section 473, subdivision (b). He argued the Wheelers' motion for change of venue was untimely filed pursuant to section 1005, subdivision (b). He also argued the trial court erred by not considering his late-filed opposition papers (i.e., on May 8).

On June 29, after hearing arguments by the parties, the trial court denied Burgos's motion for reconsideration. It concluded his motion was not timely filed under section 1008, subdivision (a), and, in any event, Burgos had failed to present any new or different facts, circumstances or law that warranted relief. Also, it concluded Burgos failed to show any mistake, inadvertence, surprise or excusable neglect under section 473, subdivision (b). The court stated: "No facts are presented to show that [Burgos's] ignoring [the Wheelers'] motion and deciding to file written opposition on the same date as the hearing constitutes excusable neglect."

B

Section 1008, subdivision (a), provides in part: "When an application for an order has been made to a judge, or to a court, and . . . granted . . ., any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order."

Section 473, subdivision (b), provides in part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."

C

Burgos argues the trial court erred by finding his motion for reconsideration was untimely filed under section 1008, subdivision (a). Because the Wheelers' notice of ruling on their motion to change venue did not contain the date of entry of the court's order or attach a file-stamped copy of the order, Burgos argues there was no time limit for his section 1008, subdivision (a) motion.

We need not decide whether Burgos's motion for reconsideration was timely filed because, assuming arguendo it was timely filed, he does not argue his motion asserted, much less showed, any grounds for reconsideration under section 1008, subdivision (a), or for relief under section 473, subdivision (b). In his appellant's brief, Burgos merely argues:

"The motion for reconsideration was proper. The [Wheelers] falsely claimed that [he] had not alleged the terms of a contract. The [C]ourt did not realize that [he] had filed opposition. The motion for reconsideration attempted to rectify the problem that was created by [the Wheelers] and the Court, and its unfair denial of a continuance, which should have been granted."

In so arguing, Burgos has not carried his appellate burden to show the trial court abused its discretion by denying his motion under sections 1008, subdivision (a), and 473, subdivision (b). He has not shown his motion asserted "new or different facts, circumstances, or law" to support the court's reconsideration of its order under section 1008, subdivision (a). Likewise, he has not shown his motion asserted any "mistake, inadvertence, surprise, or excusable neglect" to support relief from the court's order under section 473, subdivision (b).

In any event, assuming arguendo the trial court abused its discretion by denying his motion for reconsideration, Burgos again does not argue, much less show, he was prejudiced by the purported error. Because Burgos has made no argument on appeal that the trial court's purported error in denying his motion for reconsideration of its order granting the Wheeler's motion to change venue was prejudicial (i.e., a different result would have been probable absent that error), he has not carried his burden on appeal to show reversible error. (Cucinella v. Weston Biscuit Co., supra, 42 Cal.2d at p. 82; Santina v. General Petroleum Corp., supra, 41 Cal.App.2d at p. 77; In re Marriage of McLaughlin, supra, 82 Cal.App.4th at p. 337; Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) An appellate court cannot "act as counsel for appellant by furnishing a legal argument as to how the trial court's ruling was prejudicial. [Citations.]" (Century Surety Co. v. Polisso, supra, 139 Cal.App.4th at p. 963.) Accordingly, we conclude the trial court's purported error was not prejudicial.

V

Demurrer

Burgos contends the trial court erred by sustaining in part the Wheelers' demurrer to the Complaint.

A

After transfer of the case to San Diego County Superior Court, Burgos filed the Complaint (i.e., the first amended complaint). The Wheelers then filed a demurrer to the Complaint, arguing some of the alleged causes of action were garden variety claims discharged by their chapter 7 no assets, no bar date bankruptcies in 2003. Burgos filed papers opposing the demurrer, arguing none of his causes of action were discharged in bankruptcy and a discharge determination can be made by the trial court only after the Wheelers raise their bankruptcy discharges as an affirmative defense in an answer to the Complaint. After hearing arguments by the parties on December 8, 2006, the trial court took judicial notice of bankruptcy court documents in its file per the Wheelers' request and then sustained the demurrer in part and dismissed six of the 11 causes of action (i.e., the second, fourth, fifth, eighth, 10th, and 11th causes of action). The court confirmed its tentative ruling, which stated in part:

"As a preliminary matter, the Court finds that the affirmative defense of bankruptcy discharge is appropriate for a demurrer. A demurrer may be based on an affirmative defense such as the statute of limitations or unclean hands. [Citation.] The Court can find no authority which would require the parties to raise dischargeability only after answering the complaint. [¶] The Court further finds that the doctrines of collateral estoppel and res judicata do not apply in this case because the dischargeability issue has yet to be determined by any court. [¶] . . . [¶] . . . [T]here appears to be no dispute that the state courts and federal court have concurrent jurisdiction to determine the dischargeability issue with respect to this demurrer."

The court's tentative ruling, as confirmed on December 8, discussed federal bankruptcy law and concluded: "[U]nless [title 11 United States Code] section 523 dictates otherwise, every prepetition debt[, whether scheduled or not,] becomes discharged under [title 11 United States Code section] 727." The court took judicial notice of certain bankruptcy court documents showing the dates of the bankruptcy discharges of the Wheelers and UA in, respectively, November 2003 and January 2004. After reviewing the title 11 United States Code section 523 nondischargeability provisions, the court concluded six of Burgos's 11 causes of action were dischargeable.¹⁶ Accordingly, the court sustained the Wheelers' demurrer in part as to those causes of action without leave for Burgos to amend the Complaint.

16 Those causes of action were the second cause of action (negligent misrepresentation), fourth cause of action (breach of contract), fifth cause of action (rescission), eighth cause of action (money had and received), 10th cause of action (breach of implied covenant of good faith and fair dealing), and 11th cause of action (accounting).

B

"A demurrer tests the legal sufficiency of the complaint. [Citation.] Therefore, we review the complaint de novo to determine whether it contains sufficient facts to state a cause of action. [Citation.] 'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.' [Citation.] The trial court exercises its discretion in declining to grant leave to amend. [Citation.] If it is reasonably possible the pleading can be cured by amendment, the trial court abuses its discretion by not granting leave to amend. [Citation.] The plaintiff has the burden of proving the possibility of cure by amendment. [Citation.]" (Grinzi v. San Diego Hospice Corp. (2004) 120 Cal.App.4th 72, 78.)

In reviewing an order sustaining a demurrer in whole or in part, "courts must assume the truth of the complaint's properly pleaded or implied factual allegations. [Citation.] Courts must also consider judicially noticed matters. [Citation.] In addition, we give the complaint a reasonable interpretation, and read it in context. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) A complaint otherwise good on its face is nevertheless subject to demurrer when facts judicially noticed show it is defective. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) An affirmative defense may be raised on demurrer and, if that defense appears on the face of the complaint, with consideration of judicially noticed facts, to necessarily bar one or more causes of action, the demurrer must be sustained in whole or in part. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1155; Evans v. City of Berkeley, at p. 6; Joslin v. H.A.S. Ins. Brokerage, at p. 374.)

C

Burgos argues the affirmative defense of bankruptcy discharge did not clearly and affirmatively appear on the face of the Complaint because the trial court could not conduct a discharge determination on demurrer. Although Burgos asserts a trial court cannot make a discharge determination on demurrer, he does not cite, and we are unaware of, any case or other authority to support that assertion. In opposing the demurrer below, Burgos conceded state courts have concurrent jurisdiction with federal bankruptcy courts to determine the dischargeability of unscheduled debts or claims under title 11 United States Code section 523. (11 U.S.C. § 523(a)(3)(B); 28 U.S.C. § 1334(b); In re McGhan (9th Cir. 2002) 288 F.3d 1172, 1181; In re Hicks (Bankr.C.D.Cal. 1995) 184 B.R. 954, 962; In re Franklin (Bankr.E.D.Cal. 1995) 179 B.R. 913; In re Siragusa (9th Cir. 1994) 27 F.3d 406, 408.) On appeal, he does not dispute the trial court had such concurrent jurisdiction in this case. Rather, he argues there is no authority permitting the trial court to make a dischargeability determination on demurrer without a "formally noticed discharge determination, trial or declaration action." Because Burgos does not provide any case--or other--authority to support that assertion, we conclude he has not carried his burden on appeal to show the trial court erred by making a bankruptcy dischargeability determination on demurrer in this case.

Furthermore, because on demurrer we assume all facts alleged in the Complaint are true, no evidentiary hearing is required to make a dischargeability determination if those facts, along with judicially noticed facts, show one or more causes of action are necessarily barred by a defendant's prior bankruptcy discharge. As we noted above, an affirmative defense may be raised on demurrer and, if that defense appears on the face of the Complaint, with consideration of judicially noticed facts, to necessarily bar one or more causes of action, the demurrer must be sustained in whole or in part. (Marshall v. Gibson, Dunn & Crutcher, supra, 37 Cal.App.4th at p. 1403; Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1155; Evans v. City of Berkeley, supra, 38 Cal.4th at p. 6; Joslin v. H.A.S. Ins. Brokerage, supra, 184 Cal.App.3d at p. 374.) The Wheelers were not required to first file an answer asserting the affirmative defense of bankruptcy discharge before seeking a dischargeability determination by the trial court.¹⁷

17 Contrary to Burgos's assertion, the Wheelers raised the defense of bankruptcy discharge in their original demurrer and did not wait until their reply or otherwise deprive him of his due process right to notice thereof. Furthermore, Burgos does not persuade us the trial court abused its discretion by denying his request for a continuance to allow him to further brief the bankruptcy discharge issue.

D

Burgos also argues the trial court erred in sustaining the demurrer in part because the six dismissed causes of action were not discharged by the Wheelers' or UA's bankruptcy discharges. He argues all or some of those causes of action were nondischargeable as either fraud causes of action or intentional tort causes of action under title 11 United States Code section 523(a)(4) or (a)(6).

As the trial court noted in sustaining the Wheelers' demurrer in part, title 11 United States Code section 727(b) provides: "Except as provided in section 523 of this title, a discharge under subsection (a) of this section discharges the debtor from all debts that arose before the date of the order for relief under this chapter . . . ." In a no assets, no bar date chapter 7 bankruptcy, any prepetition dischargeable debt is discharged whether or not it was scheduled as a debt in the bankruptcy petition or other filings. (In re Nielsen (9th Cir. 2004) 383 F.3d 922, 926-927; In re Beezley (9th Cir. 1993) 994 F.2d 1433, 1434.) Therefore, for any unscheduled debt to be found not discharged by such a bankruptcy, it must qualify as one of the nondischargeable debts under title 11 United States Code section 523(a):

"A discharge under section 727 . . . does not discharge an individual debtor from any debt-- [¶] . . . [¶] (4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny; [¶] . . . [¶] [or] (6) for willful and malicious injury by the debtor to another entity or to the property of another entity . . . ."

Burgos argues his four "contract" causes of action were nondischargeable as causes of action for either fraud or intentional tort under title 11 United States Code section 523(a)(4) or (a)(6). He argues his causes of action for breach of contract, rescission, breach of implied covenant of good faith and fair dealing, and accounting were nondischargeable under those statutory provisions. However, without any substantive analysis of the specific facts alleged in each of those causes of action, he simply asserts, in conclusory terms, those causes of action "are nondischargeable actions based on fraud or willful and malicious acts." In so doing, he does not carry his appellate burden to show those causes of action were nondischargeable. In any event, our independent review of the factual allegations set forth in the Complaint shows none of those four causes of action qualified as fraud or intentional tort causes of action nondischargeable under title 11 United States Code section 523(a)(4) or (a)(6).¹⁸ On the contrary, those causes of action constitute "garden variety" debts discharged under title 11 United States Code section 727(b) by the no asset, no bar date bankruptcy discharges of the Wheelers and UA in November 2003 and January 2004 (which bankruptcy discharges were alleged in the Complaint and shown by bankruptcy court documents the trial court judicially noticed).

18 To the extent Burgos implicitly argues an intentional or bad faith breach of contract constitutes a nondischargeable debt under title 11 United States Code section 523(a)(4) or (a)(6), he does not cite, and we are unaware of, any case or other authority to support that argument--at least absent conduct violating a fundamental public policy of California. In re Jercich (9th Cir. 2001) 238 F.3d 1202, cited by Burgos, is factually inapposite and does not persuade us to conclude otherwise. Rather, that case confirms our view that an intentional breach of contract, absent willful and tortious conduct, is not a nondischargeable debt under title 11 United States Code section 523(a)(6). (Jercich, at p. 1205.) None of Burgos's four "contract" causes of action allege such additional willful and tortious conduct that violates fundamental public policy. (Cf. id. at pp. 1206-1209 [debtor's willful and malicious nonpayment of employee's wages in violation of California fundamental public policy, with knowledge nonpayment was substantially certain to cause injury, was nondischargeable debt].)

Burgos argues his breach of contact cause of action was nondischargeable under title 11 United States Code section 523(a)(6) as a debt for willful and malicious acts. He argues his breach of contract cause of action pleaded an intentional tort, citing the Complaint's allegations regarding intentional and knowing conduct by the Wheelers in selling "overpriced if not valueless" stock to him that would cause him substantial damages, with intent to defraud him or in reckless disregard of his rights under the contract and with malice, fraud and oppression. Those allegations are insufficient to allege a nondischargeable debt under title 11 United States Code section 523(a)(6). The nondischargeability provision requires not only an intentional breach of contract or other act, but also willful and tortious conduct that violates fundamental public policy. (Jercich, supra, 238 F.3d at pp. 1206-1209.) Burgos's cited excerpts from the Complaint do not allege facts showing the Wheelers' conduct was willful and malicious within the meaning of title 11 United States Code section 523(a)(6). The Complaint's breach of contract cause of action does not allege facts that would support findings the Wheelers violated a California fundamental public policy, intended or knew their conduct was substantially certain to cause injury to Burgos, and necessarily caused malicious injury. (Jercich, at pp. 1206-1209.) Burgos does not show that fraud, or an intent to defraud, violates fundamental public policy or otherwise constitutes tortious conduct causing intentional or malicious injury under title 11 United States Code section 523(a)(6). Furthermore, the Complaint's conclusory allegation that the Wheelers acted with malice, fraud and oppression is not supported by other factual allegations sufficient to support that conclusion. (See Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6-7.) We conclude Burgos has not carried his appellate burden to show his breach of contract cause of action was nondischargeable under title 11 United States Code section 523(a)(6). In any event, assuming arguendo his breach of contract cause of action sufficiently alleged fraudulent, intentional tortious conduct with malice and oppression, it was duplicative of his first cause of action for fraud and deceit for which the trial court overruled the Wheelers' demurrer. Because the allegations set forth in that cause of action (regardless of its label) continued and was not dismissed on demurrer, any error in sustaining the demurrer to the breach of contract cause of action was harmless.

Burgos also argues his causes of action for negligent misrepresentation and money had and received were nondischargeable under title 11 United States Code section 523(a)(4) or (a)(6). However, without any substantive analysis of the specific facts alleged in those causes of action, he simply asserts, in conclusory terms, they were nondischargeable debts based on fraud or willful and malicious acts. In so doing, he does not carry his appellate burden to show those causes of action were nondischargeable. In any event, our independent review of the factual allegations set forth in the Complaint shows his causes of action for negligent misrepresentation and money had and received were not nondischargeable under title 11 United States Code section 523(a)(4) or (a)(6).

To the extent Burgos asserts on appeal that the Complaint could be amended so one or more of the six causes of action would allege a nondischargeable debt under title 11 United States Code section 523(a)(4) or (a)(6), he does not carry his burden on appeal to specifically state or otherwise show how he would amend the Complaint so that those causes of action would constitute nondischargeable debts under title 11 United States Code section 523(a)(4) or (a)(6). A plaintiff/appellant has the burden of proving there is a reasonable possibility a complaint can be amended to cure existing defects. (Grinzi v. San Diego Hospice Corp., supra, 120 Cal.App.4th at p. 78; Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081; Blank v. Kirwan (1985) 39 Cal.3d 311, 318; McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792.) "To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.] Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.) Because Burgos does not carry his appellate burden to show how the Complaint could be amended to cure the bankruptcy discharge defect regarding the six dismissed causes of action, we conclude the trial court did not abuse its discretion by granting in part the Wheelers' demurrer without leave to amend.

VI

Section 128.7 Sanctions on Demurrer

Burgos contends the trial court erred by imposing sanctions on him pursuant to section 128.7 for not withdrawing or dismissing those causes of action to which the Wheelers demurred.

A

On October 20, 2006, the Wheelers served Burgos with a notice of motion and motion for section 128.7 sanctions they would file if he did not dismiss those causes of action subject to their proposed demurrer. That served notice set December 15 as the hearing date and stated:

"This motion is brought on grounds that the [Complaint] filed on or about October 12, 2006, lacks any reasonable basis in law or fact, and is brought primarily to harass the other parties to this action, cause unnecessary delay, and increase the cost of litigation. The motion will be based on this notice, the memorandum of points and authorities filed herewith, and upon all pleadings, papers and records currently on file, and upon such oral and other documentary evidence as may be presented at said hearing."

Attached to the notice was a 12-page memorandum of points and authorities in support of their demurrer to the Complaint on which the word "DRAFT" was stamped across each page.

On or about November 17, the Wheelers filed a notice of motion and motion for section 128.7 sanctions. That filed notice set December 15 as the hearing date and stated:

"This motion is brought on grounds that the [Complaint] filed on or about October 12, 2006, lacks any reasonable basis in law or fact, and is brought primarily to harass the other parties to this action, cause unnecessary delay, and increase the cost of litigation. The motion will be based on this notice, the memorandum of points and authorities filed herewith, the Declaration of James E. Lund in Support of Motion for Sanctions Pursuant to . . . Section 128.7 Re: Notice of Bankruptcy Discharge Pursuant to In re Beezley[, supra, 994 F.2d 1433], the Declaration of Richard Schwabe filed November 9, 2006, the Declaration of James Wheeler filed November 9, 2006, the Declaration of Towa Wheeler filed November 9, 2006, the Declaration of Nathan Low filed November 9, 2006, the Statement of Contradictory Facts in Support of Motion to Strike filed November 9, 2006, and upon all pleadings, papers and records currently on file, and upon such oral and other documentary evidence as may be presented at said hearing."¹⁹ (Italics added.)

19 We have italicized the language in the notice filed on November 17, 2006, added to the original language in the notice served on Burgos on October 20.

The Wheelers also filed with their notice of motion a nine-page memorandum of points and authorities in support of their motion pursuant to section 128.7. A proof of service was also filed on November 17 showing the service by mail on Burgos of the notice of motion and memorandum of points and authorities filed with the court.

On December 7, Burgos filed an objection to the Wheelers' motion for section 128.7 sanctions, arguing it was untimely served. In particular, he noted section 128.7, subdivision (c)(1), provides that a notice of motion and motion must be served on the other party at least 21 days before they are filed with the trial court. He stated courts had interpreted that statute as requiring service of the motion papers (e.g., notice of motion, motion, and supporting points and authorities) at least 21 days before those same papers are filed with the trial court. He argued that because the motion papers were served and filed at about the same time (i.e., on or about November 16), the 21-day "safe harbor" period was not satisfied and there were an insufficient number of days under section 128.7's requirements before the scheduled December 15 hearing date. Accordingly, Burgos argued the trial court did not have authority to rule on the merits of the Wheelers' untimely served motion for section 128.7 sanctions.

In reply, the Wheelers argued the motion papers they served on Burgos on October 20, 2006, were substantially similar to those filed with the trial court on November 17. Their reply stated: "The Notice of Motion filed in November with the Court added a reference to additional declarations that had not been obtained previously."

On December 22, 2006, the trial court confirmed its tentative ruling granting the Wheelers' motion for section 128.7 sanctions and set a January 12, 2007, hearing date to determine the amount of those sanctions. The court specifically found the Wheelers' motion papers had been served on Burgos on October 20, 2006, and then timely filed on November 17, 2006, in accordance with the required "safe harbor" period of section 128.7, subdivision (c)(1). Furthermore, the court stated: "Nothing in . . . [section] 128.7 requires an exact copy of the points and authorities. [The Wheelers] mailed a draft of the points and authorities which was substantially the same as the one filed with the Court along with the notice of motion." At the January 12, 2007, hearing, the trial court apparently imposed a total of $15,611.50 in section 128.7 sanctions against Burgos.²⁰

20 Although the record on appeal does not contain a written order setting forth the amount of sanctions awarded on January 12, 2007, the court's subsequent judgment reflects that amount of sanctions. Absent anything in the record showing otherwise, we conclude $15,611.50 was the amount of sanctions imposed on Burgos at that hearing.

B

Section 128.7, subdivision (c)(1), provides:

"A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. . . ." (Italics added.)

This statutory 21-day "safe harbor" period between service and filing of a section 128.7 motion is a prerequisite for an award of sanctions. (Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 14-15.)

"[T]o constitute a proper notice of motion, a document must . . . state the nature of the order being sought, specify the time the motion will be heard, and be accompanied by supporting papers. [Citations.]" (Cromwell v. Cummings, supra, 65 Cal.App.4th at p. Supp. 13.) "Application of the doctrine of substantial compliance would be inconsistent with the plain language of the 'safe harbor' provision [of section 128.7, subdivision (c)(1)], which has been strictly construed as an absolute prerequisite to an award of sanctions under revised rule 11 of the Federal Rules of Civil Procedure [on which section 128.7 was modeled] [citation]. [Citation.] '. . . [T]he "safe harbor" period begins to run only upon service of the motion.' [Citation.] By specifically requiring service of the 'motion' and 'notice of motion,' the Legislature made clear that the papers to be served on the opposing party are the same papers which are to be filed with the court no less than 30 [now 21] days later." (Cromwell, at p. Supp. 15, italics added.)

In Hart v. Avetoom (2002) 95 Cal.App.4th 410, the moving party filed section 128.7 motion papers that included certain papers (i.e., supplemental points and authorities, additional declarations, and a copy of the motion for summary judgment) not served on the other party before the then 30-day safe harbor period. (Id. at pp. 412-413.) Hart stated:

"The record confirms the motion filed in November 1998 was not the same motion served in December 1997. The November 1998 version contained additional declarations and supplemental points and authorities not present in the original version [served on the other party]. . . . This, in and of itself, should have been enough to put all concerned on notice that something was wrong. True, the two motions were similar, but the problem is they were not the same. 'Close' is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute." (Id. at p. 414, italics added.)

Accordingly, Hart reversed the order imposing sanctions because of "the fact the sanctions motion filed was different from the one served." (Id. at p. 415.)²¹

21 Hart also cited as an alternative ground for reversal of the sanctions order the moving party's failure to file the sanctions motion before the case was dismissed by the other party. (Hart v. Avetoom, supra, 95 Cal.App.4th at p. 415.)

Our reading of Hart and Cromwell shows it is clear that to satisfy the "safe harbor" provision of section 128.7, the served notice of motion and accompanying motion papers must be identical to the notice of motion and accompanying motion papers subsequently filed with the trial court.

C

Burgos asserts on appeal, as he did below, that the Wheelers did not satisfy section 128.7, subdivision (c)(1)'s 21-day "safe harbor" provision because the notice of motion and motion papers they filed with the trial court on November 17, 2006, were not the same ones they served on him on October 20. Because he was not served with the "filed" notice of motion and motion papers until about the same time as they were filed with the trial court, he argues their motion was untimely filed.

There are significant differences between the Wheelers' motion papers served on Burgos on October 20, 2006, and those subsequently filed with the trial court on November 17. The notice of motion filed with the trial court added substantial language regarding the evidence on which the Wheelers would rely in proving their motion for section 128.7 sanctions, as follows:

"The motion will be based on this notice, the memorandum of points and authorities filed herewith, the Declaration of James E. Lund in Support of Motion for Sanctions Pursuant to . . . Section 128.7 Re: Notice of Bankruptcy Discharge Pursuant to In re Beezley,[ supra, 994 F.2d 1433], the Declaration of Richard Schwabe filed November 9, 2006, the Declaration of James Wheeler filed November 9, 2006, the Declaration of Towa Wheeler filed November 9, 2006, the Declaration of Nathan Low filed November 9, 2006, the Statement of Contradictory Facts in Support of Motion to Strike filed November 9, 2006, and upon all pleading, papers and records currently on file, and upon such oral and other documentary evidence as may be presented at said hearing." (Italics added to show additional language.)

Therefore, unlike the notice of motion served on Burgos on October 20, the notice of motion filed with the trial court (and also served on him) on or about November 17 cited five declarations (all filed on November 9) as evidentiary support for the Wheelers' motion. Furthermore, while the October 20 notice of motion attached a 12-page draft memorandum of points and authorities in support of demurrer, the November 17 notice of motion attached a nine-page memorandum of points and authorities in support of the section 128.7 motion. Clearly, the motion papers filed with the trial court on November 17, 2006, were not the same papers as those served on Burgos on October 20. Although the two sets of motion papers were similar, they were not the same and therefore the Wheelers did not comply with section 128.7, subdivision (c)(1)'s 21-day safe harbor period. (Hart v. Avetoom, supra, 95 Cal.App.4th at p. 414; Cromwell v. Cummings, supra, 65 Cal.App.4th at p. Supp. 15.) Because the Wheelers did not satisfy the minimum statutory time requirements for moving for section 128.7 sanctions, the trial court erred in granting their motion and imposing a total of $15,611.50 in section 128.7 sanctions against Burgos.

VII

Motion for Reconsideration on Demurrer

Burgos contends the trial court erred by denying his motion for reconsideration of its order sustaining in part the Wheelers' demurrer.

A

On or about December 27, 2006, Burgos filed a motion for reconsideration of or, alternatively, relief from the trial court's December 8 order granting in part the Wheelers' demurrer to the Complaint. He brought his motion pursuant to section 1008, subdivision (a), and, alternatively, section 473, subdivision (b). He argued he did not receive the Wheelers' reply to his opposition to their demurrer with sufficient time to prepare for the hearing. He also argued he was surprised the trial court would make a bankruptcy discharge determination at the December 8 hearing and he had insufficient to time prepare his opposition to such determination. In his supporting memorandum of points and authorities, Burgos primarily disagreed with the trial court's interpretation and application of bankruptcy statutes and case law.

On or about March 2, 2007, Burgos served on the Wheelers a supplement to his motion for reconsideration, along with two declarations. On March 12, the Wheelers objected to that supplement and the declarations as untimely served and/or filed. Also on March 12, the Wheelers filed their opposition papers to Burgos' motion for reconsideration, arguing it was not timely filed within 10 days of the court's ruling as required by section 1008, subdivision (a). On or about March 16, Burgos served on the Wheelers his reply to their opposition to his motion for reconsideration.

On March 23, 2007, the trial court confirmed its tentative ruling and denied Burgos's section 1008, subdivision (a), motion for reconsideration and alternative section 473, subdivision (b), motion for relief. It granted the Wheelers' objection to Burgos's supplement to his motion and two declarations. The court found his original motion was timely filed under section 1008, subdivision (a). Nevertheless, it concluded Burgos had failed to present any new or different facts, circumstances or law that warranted reconsideration under section 1008, subdivision (a). It concluded Burgos did not show he could not have, with reasonable diligence, discovered the new or different facts or law he cited in support of his motion for reconsideration. Also, the court concluded Burgos failed to show any mistake, inadvertence, surprise or excusable neglect under section 473, subdivision (b).

B

Section 1008, subdivision (a), provides in part: "When an application for an order has been made to a judge, or to a court, and . . . granted . . ., any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order." (Italics added.)

Section 473, subdivision (b), provides in part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Italics added.)

C

Burgos argues the trial court erred by finding his supplement to his motion for reconsideration and accompanying two declarations (and exhibits) were untimely filed under section 1008, subdivision (a). Because the Wheelers' notice of ruling of the court's order sustaining in part their demurrer did not contain the date of entry of the court's order or attach a file-stamped copy of the order, Burgos argues there was no time limit for his section 1008, subdivision (a), motion.

We need not decide whether Burgos's supplement to his motion for reconsideration and accompanying declarations and exhibits were timely filed because, assuming arguendo they were timely filed and considered by the trial court, he does not show there were any grounds for reconsideration under section 1008, subdivision (a), or for relief under section 473, subdivision (b). He did not show below, much less argue or show on appeal, that he could not, with reasonable diligence, have discovered the purported new facts or law he cites in support of his motion for reconsideration. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198.) Accordingly, Burgos has not carried his appellate burden to show the trial court abused its discretion by denying his motion under section 1008, subdivision (a), and section 473, subdivision (b). He has not shown his motion asserted "new or different facts, circumstances, or law" to support the court's reconsideration of its order under section 1008, subdivision (a). Likewise, he has not shown his motion asserted any "mistake, inadvertence, surprise, or excusable neglect" to support relief from the court's order under section 473, subdivision (b).

VIII

Section 128.7 Sanctions on Motion for Reconsideration

Burgos and his attorney, Janet Guynes, contend the trial court erred by granting the Wheelers' motion and imposing $6,836 in section 128.7 sanctions on them for filing Burgos's motion for reconsideration of the court's order sustaining in part the Wheelers' demurrer to the Complaint.

A

On or about December 27, 2006, Burgos filed a motion for reconsideration of or, alternatively, relief from the trial court's December 8 order granting in part the Wheelers' demurrer to the Complaint. On or about February 2, 2007, Towa Wheeler, then in propria persona, served Burgos and Guynes with a notice of motion, along with accompanying motion papers, requesting the imposition of section 128.7 sanctions against both Burgos and Guynes.²² On March 1, James E. Lund, as the Wheelers' attorney, filed the same notice of motion and accompanying motion papers, reflecting Towa Wheeler's motion for section 128.7 sanctions against Burgos and Guynes. On March 23, the trial court confirmed its tentative ruling and granted the "Defendants' [sic] motion for sanctions" under section 128.7. The court found Burgos (and presumably Guynes) had waived any defect in service by Towa Wheeler (improperly served by a party to the action or by UPS) of the motion papers because they not only objected on the ground of inadequate service, but also filed opposition papers on the merits of the motion. It then proceeded to conclude sanctions were appropriate in this case because Burgos's motion for reconsideration cited the same law and facts he submitted in originally opposing the Wheelers' demurrer. Accordingly, the court stated: "Defendants [sic] shall be awarded their reasonable attorneys' fees and costs incurred in opposing the motion for reconsideration and for bringing the sanctions motion upon submission of proof of actual fees and costs." Lund filed a declaration in support of Towa Wheeler's request regarding the amount of sanctions requested. He stated she incurred reasonable attorney fees and expenses in presenting the section 128.7 motion and as a direct result of the violations of section 128.7 by Burgos and Guynes, including his attorney fees of $6,750, Low's attorney fees of $40, Anna Brown's paralegal fees of $1,176, and a filing fee of $40 (i.e., a total of $8,006). On April 20, the trial court confirmed its tentative ruling and imposed $6,836 in section 128.7 sanctions against Burgos and Guynes.

22 Although the record on appeal apparently does not contain a proof of service showing such service on Burgos and Guynes, the parties do not dispute Towa Wheeler personally served those moving papers on them, despite the fact she was a party to the action.

B

Burgos and Guynes assert the trial court erred by finding they had waived the defective service by Towa Wheeler of the section 128.7 motion papers because they had opposed the motion on its merits and did not simply object to the defective service of those papers. Contrary to their assertion, the case law cited by the trial court supports its finding that they waived the defective service of the section 128.7 moving papers. Carlton v. Quint (2000) 77 Cal.App.4th 690 is apposite to this case. In Carlton, the plaintiff claimed in his opposition papers that there was inadequate notice of and improper service for the motion for summary judgment and he appeared and argued that same claim at the hearing on the summary judgment motion. (Id. at pp. 697-698.) Nevertheless, he also argued the merits of the summary judgment motion. (Ibid.) He did not request a continuance of the hearing or claim any prejudice because of insufficient notice or service. (Ibid.) Carlton concluded the plaintiff had waived any claim of insufficient notice or service. (Ibid.)

Except for the fact neither Burgos nor Guynes appeared at the hearing on motion for section 128.7 sanctions against them, the facts in this case are similar to those in Carlton. In this case, Burgos and Guynes filed papers opposing the section 128.7 motion both on the ground of defective service of notice of that motion and on the merits of the motion. Their opposition papers did not request a continuance or assert they had suffered any prejudice because of the defective service.²³ Despite their nonappearance at the hearing, we conclude Carlton is apposite and supports the trial court's finding they had waived the defective service by Towa Wheeler. Burgos and Guynes do not cite any case holding, and we are not persuaded to conclude, otherwise.

23 Although their memorandum of points and authorities in opposition to the section 128.7 sanctions motion argued there had been defective service and therefore the motion "must be taken off-calendar," that argument did not, in itself, constitute a request for a continuance. In any event, their opposition memorandum did not assert, much less specify, any prejudice that would occur were the hearing on the motion not continued.

C

Burgos and Guynes also assert the trial court erred by granting the section 128.7 motion because there was an insufficient factual basis on which to impose sanctions. However, in so doing, they make only a conclusory argument without citation to the record or supporting legal authority. They simply assert: "[Burgos's] motion for reconsideration was not devoid of merit or filed for an improper purpose, and does not warrant sanctions in any event." Likewise, they simply assert: "[Burgos's] alternate motion for relief under . . . [section] 473 was not devoid of merit or filed for an improper purpose." By so arguing, they do not carry their burden on appeal to persuade us the trial court abused its discretion in imposing section 128.7 sanctions on them.

D

Burgos and Guynes also assert the trial court erred by imposing section 128.7 sanctions for attorney fees incurred by Towa Wheeler for preparing her opposition to Burgos's motion for reconsideration, arguing such sanctions may only include attorney fees incurred in preparing the section 128.7 sanctions motion. However, in so doing, they again make only a conclusory argument without citation to the record or supporting legal authority. By so arguing, they do not carry their burden on appeal to persuade us the trial court abused its discretion by including in the amount of section 128.7 sanctions the attorney fees Towa Wheeler incurred in opposing Burgos's motion for reconsideration.

In any event, we note section 128.7, subdivision (d), authorizes a court to include as sanctions "some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation [of section 128.7, subdivision (b)]." In the circumstances of this case, there is ample evidence to support the trial court's implied finding that the attorney fees incurred by Towa Wheeler in opposing Burgos's motion for reconsideration were reasonable attorney fees incurred as a direct result of the violation of section 128.7, subdivision (b), by Burgos and Guynes.²⁴

24 Burgos and Guynes also argue, in only conclusory and "heading" form, that the motion for section 128.7 sanctions violated their due process rights because it did not include a specific amount of sanctions sought. However, because they do not provide any substantive legal argument on that assertion, we consider it waived for purposes of their appeal. (See, e.g., People v. Stanley (1995) 10 Cal.4th 764, 793; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

In a similar manner, without citation to the record or any supporting authority, Burgos and Guynes also argue, in a conclusory manner, that the trial court erred by including in its sanctions award attorney fees incurred by Towa Wheeler for work performed after the section 128.7 sanctions motion was filed, which attorney fees were supported by Lund's declaration untimely filed under section 128.7 (i.e., not more than 21 days before filing of the motion). However, they do not state how much of the total amount of sanctions of $6,836 was erroneously included. Furthermore, although there may be some merit to their argument, they have not have carried their burden on appeal to present substantive legal analysis sufficient to persuade us to conclude the trial court erred in awarding that unspecified portion of attorney fees as section 128.7 sanctions. (See, e.g., People v. Stanley, supra, 10 Cal.4th at p. 793; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)

IX

Motion for Disqualification of Judge

Burgos contends the trial judge erred by denying his motion to disqualify him from the case. However, in so doing, Burgos does not cite to the record on appeal showing either his motion to disqualify the judge or the judge's decision denying that motion. It is not our function as an appellate court to perform the appellant's work and sort through an extensive appellate record to find support for a contention on appeal. "We are not required to search the record to ascertain whether it contains support for [the appellant's] contentions. [Citation.] Further, it is established that '. . . an appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." [Citation.] [¶] . . . This court is not inclined to act as counsel for . . . appellant and furnish a legal argument as to how the trial court's rulings . . . constituted an abuse of discretion.' [Citation.]" (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.) We conclude Burgos has waived that contention on appeal.

Furthermore, Burgos has not argued, much less carried his burden on appeal to show, the purported error was prejudicial and requires reversal of the judgment. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 367-368.) Because Burgos has not shown it is reasonably probable he would have obtained a more favorable judgment had the trial judge disqualified himself from the case, we conclude the trial court did not prejudicially err by denying the motion for disqualification of the trial judge.

X

Motion for Summary Judgment

Burgos contends the trial court erred by granting the Wheelers' motion for summary judgment.

A

On or about May 1, 2007, the Wheelers filed a motion for summary judgment or, in the alternative, summary adjudication of issues. In support of their judgment, they submitted a memorandum of points and authorities, a 34-page separate statement of undisputed material facts, a declaration of James Wheeler, a declaration of Towa Wheeler, declarations of their attorneys, and other documents. Burgos did not file any papers opposing the motion for summary judgment.

On June 21, the trial court issued its tentative ruling granting the Wheelers' motion for summary judgment. In the tentative ruling, the court concluded, as to each of the five remaining causes of action, the Wheelers had carried their initial burden to produce evidence showing there is no triable issue of material fact regarding an essential element of each cause of action, and Burgos had not opposed the motion or presented any evidence showing a triable issue of material fact existed. The court alternatively found there was no triable issue of material fact on the affirmative defense that certain statutes of limitations barred the five remaining causes of action.

On June 22, neither Burgos nor his attorney appeared at the hearing on the Wheelers' motion for summary judgment. The trial court confirmed its tentative ruling and granted the Wheelers' motion for summary judgment. On July 19, the trial court entered judgment for the Wheelers.

B

In a conclusory manner and without supporting citation to the record on appeal, Burgos argues the trial court erred by granting the Wheelers' motion for summary judgment because they did not meet their burden of proof to show there were no triable issues of material fact on the remaining causes of action. His entire argument is as follows:

"Declarations and discovery responses in the record from appellant Burgos and his sister Cristina Checa raise triable issues of fact. It is disputed whether Wright brokered the stock purchase, and whether [the Wheelers] participated in, ratified or were instrumental in the corporate fraud and/or misrepresentations and acts of agents. That Burgos did not personally speak to Wheeler is not determinative of liability. [Burgos's] discovery responses do NOT show that he cannot prove his case after doing discovery. They show he was investigating the case and that he already had evidence of fraud. [¶] [The Wheelers'] self-serving declarations do not prove anything."

In so arguing, Burgos has not carried his burden on appeal to show the trial court erred by finding there were no triable issues of material fact on any of the five remaining causes of action and the Wheelers were entitled to judgment as a matter of law. (§ 437c, subd. (c).)

"The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) Furthermore, the trial court's judgment or order is presumed to be correct on appeal, and all intendments and presumptions are made in favor of its correctness. (Ibid.; Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) The appellant has the duty "to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205; see also Ojavan Investors, Inc. v. California Coastal Com. (1997) 54 Cal.App.4th 373, 391.) Rule 8.204(a)(1)(C) provides that each appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears. . . ." Therefore, "[i]f a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.]" (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Also, as we noted above, "[w]e are not required to search the record to ascertain whether it contains support for [the appellant's] contentions. [Citation.] Further, it is established that '. . . an appellate brief "should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration." [Citation.] [¶] . . . This court is not inclined to act as counsel for . . . appellant and furnish a legal argument as to how the trial court's rulings . . . [were erroneous].' [Citation.]" (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.) We need not discuss or consider contentions on appeal not supported by citation to authority or to the record on appeal. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979; MST Farms v. C. G. 1464 (1988) 204 Cal.App.3d 304, 306.)

Burgos has not supported his argument with citations to the record. Although he makes general assertions regarding the existence of triable issues of fact, he does not cite to the record to support those assertions. It is not our duty to search the appellate record to find support for the appellant's contentions. Therefore, we conclude Burgos has waived this contention on appeal and has not carried his burden of affirmatively showing the trial court erred. (Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; MST Farms v. C. G. 1464, supra, 204 Cal.App.3d at p. 306.) We conclude the trial court did not err by finding there was no triable issue of material fact regarding an essential element of each of the five remaining causes of action and the Wheelers were entitled to judgment as a matter of law.²⁵

25 Because we affirm the trial court's order granting the Wheelers' motion for summary judgment on this ground, we need not, and do not, address Burgos's arguments that the trial court erred by alternatively finding certain statutes of limitation barred the remaining causes of action or that the Wheelers' bankruptcy discharges barred those causes of action.

XI

Order Denying Stay and Removal to Bankruptcy Court

Burgos contends the trial court erred by denying his request for a stay of the action and for removal of the action to the bankruptcy court. However, once again, he has not provided any citation to the record showing either his request or the trial court's order denying that request. It is not our function to search the record for support of an appellant's contention. In any event, Burgos has not carried his burden on appeal to show the trial court abused its discretion by denying his request or, for that matter, that the purported error was prejudicial.

XII

Order Vacating Burgos's Voluntary Dismissal

Burgos contends the trial court erred by vacating the voluntary dismissal he filed immediately prior to its order granting the Wheelers' motion for summary judgment.

A

On June 21, 2007, the trial court issued its tentative ruling granting the Wheelers' motion for summary judgment. Burgos did not file any papers opposing that motion. On June 22, shortly before the hearing on the Wheelers' motion for summary judgment, Burgos filed a voluntary dismissal of his action without prejudice.²⁶ At the June 22 hearing (at which neither Burgos nor his attorney appeared), the trial court struck and/or vacated Burgos's dismissal of his action and proceeded to confirm its tentative ruling granting the motion for summary judgment. In so doing, the court stated that under applicable law Burgos was not entitled to dismiss the action without prejudice.

26 The voluntary dismissal was filed with the trial court at 10:49 a.m. The hearing on the motion for summary judgment was scheduled for 1:30 p.m., but actually began at about 2:20 p.m.

B

In arguing the trial court erred by vacating his voluntary dismissal, Burgos omits any reference to, much less discussion of the effect of, the court's prior issuance of its tentative ruling on the Wheelers' motion for summary judgment. At the time the court issued its tentative ruling, if not before, Burgos's right to voluntarily dismiss his action was terminated.

Similar summary judgment cases have held voluntary dismissals to be untimely filed if there have been prior tentative rulings or other special circumstances making judgment for the defendant inevitable. (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 768-772 [plaintiff's voluntary dismissal untimely when filed after tentative ruling granting defendant's motion for summary judgment and after hearing thereon is continued]; Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 255-257 [because plaintiff failed to timely file papers opposing the defendants' motion for summary judgment, judgment for defendants became a formality and therefore plaintiff's voluntary dismissal filed thereafter was untimely]; Sweat v. Hollister (1995) 37 Cal.App.4th 603, 614-615 [voluntary dismissal was untimely when filed after trial court issued a final, telephonic order granting the defendant's motion for summary judgment even though oral argument thereon had not yet been heard], disapproved on another ground in Santisas v. Goodin (1998) 17 Cal.4th 599, 609, fn. 5.) Because Burgos did not file his voluntary dismissal until after the trial court issued its tentative ruling granting the motion for summary judgment, we apply the reasoning of those apposite cases and conclude the trial court properly vacated Burgos's voluntary dismissal.

XIII

Sanctions for Failure to Attend Settlement Conference

Burgos and Guynes contend the trial court erred by imposing $1,000 in sanctions against them for failure to attend a scheduled settlement conference.

A

Apparently pursuant to the request of Guynes (Burgos's attorney), a case settlement conference was scheduled for June 8, 2007. The Wheelers' attorney appeared at the June 8 conference, but neither Burgos nor Guynes appeared. The trial court apparently issued an OSC as to why Burgos and Guynes should not be sanctioned for their nonappearance. In response to the OSC, Guynes apparently claimed her nonappearance was because she had recorded the wrong date for the conference and, in any event, the Wheelers and their attorney were not prejudiced by her nonappearance. Lund (the Wheelers' attorney) filed a declaration stating that he had spent 10.7 hours in preparing for and attending the conference for a total of $3,390 in attorney fees.

At the hearing on the OSC on June 22, 2007, the trial court found Guynes did not show a good and sufficient excuse for her failure to appear at the conference and awarded the Wheelers' attorney his costs of preparing for and attending that conference in an amount of $1,000, the joint and several obligation of Burgos and Guynes.

B

Burgos and Guynes argue, again in a conclusory manner, the trial court erred by imposing $1,000 in sanctions on them for their nonappearance at the settlement conference. We conclude the trial court acted within its discretion in concluding Guynes did not have a good and sufficient excuse for her nonappearance. The court could have reasonably found her purported explanation to be not credible. Furthermore, although they claim the court had no authority under section 177.5 to award the sanctions to the Wheelers' attorney rather than to the court, they do not cite, and we are unaware of, anything in the record showing the court's sanctions were imposed under that statute. Because the record is unclear on what statutory or other authority the court imposed the sanctions, we may presume the court awarded the sanctions to the Wheelers' attorney on an authorizing statute other than section 177.5. For example, section 575.2 allows a trial court to impose monetary sanctions against a party and his or her attorney for noncompliance with local court rules (which in San Diego County Superior Court presumably provides for or contemplates a case settlement conference). (Rietveld v. Rosebud Storage Partners (2004) 121 Cal.App.4th 250, 257.) Finally, they do not persuade us they were denied notice and an opportunity to be heard before the court imposed the sanctions.²⁷ We conclude the court properly awarded the Wheelers' attorney $1,000 in sanctions.

27 Contrary to their assertion, the declaration of Lund filed on June 29, 2007, did not deprive Guynes of either notice or an opportunity to be heard at the hearing.

XIV

Remaining Contentions

Burgos contends, arguing in a conclusory manner, the trial court erred by dismissing "certain defendants." Similarly, Burgos contends, also arguing in a conclusory manner, the trial court erred by issuing an OSC for contempt for Burgos's failure to pay sanctions it imposed. However, he does not provide any citations to the record showing either of the challenged actions. Furthermore, he does not present any substantive argument showing the court erred in taking those actions. Accordingly, we conclude Burgos has waived those contentions on appeal. (Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856; Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979; MST Farms v. C. G. 1464, supra, 204 Cal.App.3d at p. 306.)

XV

Motion for Sanctions on Appeal

On September 18, 2008, the Wheelers filed a motion for an award of sanctions against Burgos for filing a frivolous appeal. We exercise our discretion in consideration of the circumstances in this case and deny the motion. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649.)

DISPOSITION

The January 12, 2007, order imposing $15,611.50 in sanctions is reversed. In all other respects, the judgment is affirmed. The matter is remanded to the trial court with directions that it enter an amended judgment reflecting the omission of those sanctions. The parties are to bear their own costs on appeal.

WE CONCUR: McCONNELL, P. J. McINTYRE, J.