Labtis v. CitiMortgage





















Filed 12/17/12 Labtis v. CitiMortgage CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH
APPELLATE DISTRICT




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SADO LABTIS, Plaintiff and Appellant, v. CITIMORTGAGE et al., Defendants and Respondents.

H037248 (Santa Clara County Super. Ct. No. CV202622)

>I.
INTRODUCTION

Appellant
Sado Labtis, a self-represented litigant, filed an action against respondents
CitiMortgage, Inc. (CitiMortgage) and CR Title Services, Inc. (CR Title
Services; hereafter, sometimes collectively CitiMortgage) in which she sought
to prevent the foreclosure of her townhome in Sunnyvale. The trial court denied Labtis’s request for a
preliminary injunction staying the trustee’s sale during the pendency of the
action, sustained CitiMortgage’s demurrer to the href="http://www.mcmillanlaw.com/">first amended complaint without leave to
amend, and entered a judgment of dismissal.

On appeal,
we understand Labtis to contend for a number of reasons that the trial court
erred in denying her request for a preliminary injunction. CitiMortgage argues that all of Labtis’s
contentions lack merit and, in any event, the appeal is moot. For the reasons stated below, we agree that
the appeal is moot. Accordingly, we will
dismiss the appeal without reaching the merits.

>II.
FACTUAL AND PROCEDURAL BACKGROUND

Labtis
financed the 1988 purchase of her Sunnyvale
townhome by borrowing $84,800 from First Nationwide Bank. The mortgage loan was secured by a deed of
trust on the property. CitiMortgage
states that it is “successor in interest by merger to First Nationwide Bank and
is the current beneficiary under the Deed of Trust. [CR Title Services] is the current trustee of
the Deed of Trust.”

In January
2011, CitiMortgage initiated foreclosure proceedings on Labtis’s townhome by
filing a notice of default and election to sell under deed of trust. The notice of default stated that Labtis was
past due in her mortgage payments in the total amount of $17,220.98. The record reflects that Labtis did not cure
the default and in May 2011 CitiMortgage filed a notice of trustee’s sale,
which stated that Labtis’s townhome would be sold on June 13, 2011.

On June 9, 2011, Labtis challenged the
trustee’s sale by filing a collection of documents, including an ex parte
request for a temporary restraining order,
that the trial court deemed to constitute a complaint naming CitiMortgage and
CR Title Services as defendants. The
trial court issued a temporary restraining order staying the trustee’s sale and
an order to show cause why a preliminary injunction should not issue during the
pendency of the action.

After
holding a hearing on the order to show cause, the trial court issued its July 13, 2011 order denying
Labtis’s request for a preliminary injunction and vacating the temporary
restraining order. The court found that
Labtis had failed to meet her burden to establish by competent evidence that
she is likely to prevail at trial or that monetary damages would be
insufficient.

On November 18, 2011, CitiMortgage
filed a notice of rescission of its
notice of default and election to sell.
There is no indication in the record that a trustee’s sale is currently
pending.

In the
meantime, CitiMortgage had filed a demurrer to the complaint, which the trial
court sustained with leave to amend in its order of December 8, 2011.
Labtis then filed a collection of documents entitled “REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF RESPONSE TO TENTATIVE RULING AND OPPOSITION TO
DEFENDANT’S DEMURRER,” which the trial court deemed to constitute her first
amended complaint. CitiMortgage
responded to the first amended complaint by filing a demurrer, which the trial
court sustained without leave to amend on April 17, 2012. A
judgment of dismissal in CitiMortgage’s favor was entered on April 27, 2012, followed by the May 1, 2012 notice of entry of
judgment of dismissal.

On August 12, 2011, Labtis filed a
notice of appeal from the July 13,
2011 order denying her request for a preliminary injunction. As reflected in the record, she did not file
a notice of appeal from the judgment of dismissal.

>III.
DISCUSSION

We
understand Labtis to argue on appeal that the trial court abused its discretion
in denying her request for a preliminary injunction staying the trustee’s sale
because, among other things, CitiMortgage made several errors during the
foreclosure proceedings.

CitiMortgage
requests that the appeal be dismissed on the ground that the appeal is
moot. According to CitiMortgage, the
appeal is moot because the trial court sustained the demurrer to the first
amended complaint without leave to amend, and since the complaint fails to
state a cause of action, a preliminary injunction cannot issue. Alternatively, CitiMortgage argues that the
trial court did not err in denying the application for a preliminary injunction
because Labtis failed to demonstrate a reasonable probability that she would
prevail on the merits.

We agree
with CitiMortgage that the appeal is moot.
The general rule is that “[a]n appeal should be dismissed as moot when
the occurrence of events renders it impossible for the appellate court to grant
appellant any effective relief.
[Citation.]” (>Cucamongans United for Reasonable Expansion
v. City of Rancho
Cucamonga (2000) 82 Cal.App.4th 473, 479 (>Cucamongans); see also >MHC Operating Limited Partnership v. City of
San Jose (2003) 106 Cal.App.4th 204, 214.)
As we will explain, the entry of the judgment of dismissal in this case
is an event that precludes appellate relief from the trial court’s order
denying Labtis’s request for a preliminary injunction.

It is well
established that “ ‘[a] preliminary injunction is an interim remedy designed to
maintain the status quo pending a decision on the merits. [Citation.]
It is not, in itself, a cause of action.
Thus, a cause of action must exist before injunctive relief may be granted. [Citation.]’ ” (Korean
American Legal Advocacy Foundation (1994) 23 Cal.App.4th 376,
398-399.) Where, as here, a judgment of
dismissal has been entered in the underlying action after a demurrer was
sustained without leave to amend, and therefore no cause of action remains to
support a temporary restraining order or a preliminary injunction, “the
question of the right to interim relief [is] moot.” (Agnew
v. City of Los Angeles (1958) 51 Cal.2d 1, 2 (Agnew); see also MaJor v.
Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.) After the right to injunctive relief is
rendered moot by the entry of a judgment of dismissal in the underlying action,
an appeal of an order denying injunctive relief must be dismissed as moot. (Agnew,
supra, at p. 2.)

However,
the appellate court has the inherent power to retain a moot appeal under three
discretionary exceptions: (1) the case
presents an issue of broad public interest that is likely to recur; (2) the
parties’ controversy may recur; and (3) “a material question remains for the
court’s determination [citation].” (>Cucamongans, supra, 82 Cal.App.4th at p. 480.)

In the
present case, the underlying action has been dismissed in its entirety. Consequently, no cause of action remains to
support Labtis’s request for a preliminary injunction and the issue of whether
she is entitled to injunctive relief is moot.
Labtis’s appeal of the order denying her application for injunctive
relief is therefore also moot. (>Agnew, supra, 51 Cal.2d at p. 2.)
In addition, having carefully reviewed the parties’ briefs and the
record in this matter, we determine that no discretionary exception applies
that would allow this court to retain the moot appeal. For these reasons, we will dismiss the appeal
as moot.

>IV.
DISPOSITION

The appeal
is dismissed as moot.







___________________________________________

Bamattre-Manoukian, J.







WE CONCUR:







__________________________

ELIA, ACTING P.J.









__________________________

Márquez,
J.