Chase
Filed 8/7/12 Jackson v. JPMorgan Chase CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
JOHNTAI JACKSON,
Plaintiff and Appellant,
v.
JPMORGAN CHASE BANK et al.,
Defendants and Respondents.
B235352
(Los Angeles
County
Super. Ct.
No. BC419339)
APPEAL from
a judgment of the Superior Court
of
County. Michael C.
Solner, Judge. Affirmed.
Johntai
Jackson, in pro. per., for Plaintiff and Appellant.
AlvaradoSmith,
Theodore E. Bacon and Nanette B. Barragan for Defendants and Respondents.
* * * * * *
Plaintiff and appellant Johntai Jackson, appearing in
propria persona, appeals from a judgment entered following the trial court’s
granting a motion for judgment on the pleadings filed by defendants and respondents
JPMorgan Chase Bank, N.A. and Deutsche Bank National Trust Company, as Trustee
for Long Beach Mortgage Trust 2006-1 (the Banks). We affirm.
The trial court properly exercised its discretion to shorten the time
for hearing on the motion and set the hearing within the applicable statutory
time frame. (See Code Civ. Proc., §§
438, subd. (e) & 1005, subd. (b).)
decline to order an additional continuance of the motion.
FACTUAL AND PROCEDURAL BACKGROUND
In December
2002, appellant acquired the property located at 1343
Oak Hill Place in South
Pasadena (property) and obtained a loan in the amount
of $403,750 from Ameriquest Mortgage Company that was secured by a deed of
trust on the property. The same assessor’s
parcel number (APN 5312-019-030) also identified the property located at 6118
Oak Hill Avenue in Los
Angeles.
Thereafter separate grant deeds purportedly executed by appellant in
early 2003 transferred the property to the Julie Lee English Revocable Living
Trust in one instance and to Arthur H. Jackson, Sr., and Sarah Vann in another.
a grant deed transferring the property to Paula Van Brown. In turn, Brown executed a deed of trust on
the property to secure a $735,250 loan, which was recorded in December
2005. After Brown defaulted on the loan,
the Banks’ predecessor commenced foreclosure
proceedings and the property was sold at a trustee’s sale in January 2007.
According to appellant, a former
caretaker used his personal information, as well as personal information about
Brown, to fraudulently execute a conveyance and obtain a loan against the
property without his knowledge.
Appellant contended that he had paid off all loans against the property
by 2005.
In August
2009, appellant in propria persona
filed a complaint against the Banks, Vann and Brown, alleging causes of action
for improper foreclosure, quiet title, fraud, malicious conduct, breach of good
faith and fair dealing, cancellation of trustee’s deed and declaratory
relief. The trial court sustained the
Banks’ demurrer to the complaint with leave to amend in part and overruled it
in part. In February 2010, appellant
filed a first amended complaint, and the Banks again demurred. The trial court sustained the demurrer with
30 days’ leave to amend.
After the
trial court denied the Banks’ motion to dismiss for appellant’s failure to file
a timely amended complaint, appellant filed the operative second amended
complaint, which alleged claims against the Banks for improper foreclosure,
quiet title, malicious conduct, forgery, cancellation of trustee’s deed upon
sale and declaratory relief. The Banks
answered, generally denying the allegations and asserting several affirmative
defenses.
Trial was
set for May 24, 2011. On April
8, 2011, the Banks filed a motion for judgment on the pleadings and
received a June 29, 2011
hearing date. Consequently, on April 13, 2011, the Banks filed an ex
parte application to shorten time for hearing on the motion. Appellant opposed the application on the
ground that he had been ill during February and March 2011. Following a hearing at which appellant
appeared, the trial court advanced the trial date to June 28, 2011 and set May 16, 2011 as the date for the hearing on the
motion for judgment on the pleadings.
On April 27, 2011, appellant filed an
the trial court’s previous order.
Following a hearing the same day at which appellant again appeared, the
trial court continued the hearing on the motion for judgment on the pleadings
to May 24, 2011, giving
appellant until May 10, 2011
to file an opposition. Appellant did not
file opposition papers, nor did he appear on May 24, 2011. The
trial court indicated that on the previous day appellant had telephoned the
clerk to say that he was ill. It noted
that while appellant could have filed written opposition, it did not know what
appellant could have done to persuade it that the motion was not
well-taken. The trial court observed
that the motion established appellant was not the owner of record at the time
of the foreclosure and his claims were time-barred in any event. Accordingly, it granted the motion without
any further leave to amend. A judgment
of dismissal was entered in June 2011.
Appearing
through counsel after the judgment had been entered, appellant sought
reconsideration of the order granting the motion for judgment on the pleadings;
he contended that his illness rendered him unable to litigate the matter
effectively. Following a July 26, 2011 hearing, the trial
court denied the motion. Appellant
appealed from the judgment.
DISCUSSION
Appellant
contends that the judgment should be reversed because the order shortening time
reduced the notice period for the judgment on the pleadings motion below the
statutory minimum and because he should have received an additional continuance
when he did not appear for the hearing on the motion. We find no merit to his contentions.
Appellant
received 46 days’ notice of the hearing on the motion for judgment on the
pleadings, calculated from the April 8, 2011 filing and service date of the
motion to the May 24, 2011 hearing date set as a result of the order shortening
time. Appellant claims that the order
shortening time violated section 437c, subd. (a), which provides in part
that “[n]otice of the motion and supporting papers shall be served on all other
parties to the action at least 75 days before the time appointed for
hearing.” But section 437c is directed
to motions for summary judgment—not motions for judgment on the pleadings. Construing section 437c, the court in
Cal.App.4th 112, 118 held that “in light of the express statutory language,
trial courts do not have authority to shorten the minimum notice period for
summary judgment hearings.” (Accord,
120 Cal.App.4th 758, 763–765 [describing Legislature’s use of mandatory
language to deprive a trial court of authority to shorten the notice period for
summary judgment motion hearings].) The
was the Legislative intent behind the statutory language: “Because it is potentially case dispositive
and usually requires considerable time and effort to prepare, a summary
judgment motion is perhaps the most
in a civil case. Therefore, the
Legislature was entitled to conclude that parties should be afforded a minimum
notice period for the hearing of summary judgment motions so that they have
sufficient time to assemble the relevant evidence and prepare an adequate
opposition.” (McMahon v. Superior Court, supra, at pp. 117–118.)
In contrast
to a motion for summary judgment, a motion for “[j]udgment on the pleadings is
akin to a demurrer and is properly granted only if the complaint does not state
facts sufficient to state a cause of action against that defendant. [Citations.]
The grounds for the motion must appear on the face of the complaint, and
in any matters subject to judicial notice.
[Citation.]” (
Alameda (2003) 110 Cal.App.4th 1246, 1254.)
The presentation of extrinsic evidence is generally neither required nor
proper on a motion for judgment on the pleadings. (Cloud
v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)
Section 438 governs motions for
judgment on the pleadings. Given that
opposition to such a motion does not require the marshalling and assembly of
evidence, the statute does not specify a minimum notice period. Rather, in terms of timing it provides only
that “[n]o motion may be made pursuant to this section if a pretrial conference
order has been entered pursuant to Section 575, or within 30 days of the date
the action is initially set for trial, whichever is later, unless the court
otherwise permits.” (§ 438, subd. (e).) This provision affords the trial court with
discretion to control the time frame for hearing a
pleadings. (Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4th 13, 25, fn.
4; see also Stoops v. Abbassi (2002)
100 Cal.App.4th 644, 650 [“‘A motion for judgment on the pleadings may be made
at any time either prior to the trial or at the trial itself’”];
Cal.App.3d 868, 877 [same].) Thus,
contrary to appellant’s argument, the trial court had complete discretion to
order that the motion here be heard 46 days after it had been filed.
The hearing
date likewise comported with the notice provisions set forth in
section 1005, subdivision (b), which provide in relevant part: “Unless otherwise ordered or specifically
provided by law, 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 if the place of mailing and the place of address are
within the State of California . . . .” (See also § 1005, subd. (a)(13) [subdivision
(b) notice requirements apply to “[a]ny other proceeding under this code in
which notice is required and no other time or method is prescribed by law or by
court or judge”].) Appellant received 46
days’ notice, a period far exceeding the minimum 21 days required by statute.
We likewise
reject appellant’s argument that the trial court abused its discretion by denying
a further continuance of the hearing on the motion when he failed to appear on
May 24, 2011. A party does not have a
right to a continuance as a matter of law.
(Mahoney v. Southland Mental
Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Continuances are disfavored, and the trial
court may grant a continuance “only on an affirmative showing of good cause
requiring the continuance.” (Cal. Rules
of Court, rule 3.1332(c) [governing trial continuances].) “Reviewing courts must uphold a trial court’s
choice not to grant a continuance unless the court has abused its discretion in
so doing.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
823.) The party whose request for a
continuance was denied bears the burden of showing the trial court abused its
discretion. (Mahoney v. Southland Mental Health Associates Medical Group, supra, at p. 170.)
Appellant
failed to meet his burden. He claimed
that a series of related hospitalizations and illnesses precluded him from
dealing with the ex parte matters that were heard on April 13 and 27, as well
as the motion on May 24, 2011. But he
personally appeared at both of the April hearings where the trial court
initially shortened the time for hearing on the motion for judgment on the
pleadings and later extended that hearing date and appellant’s time to
respond. He did not explain why he was
unable to file written opposition to the motion by the extended May 10, 2011
due date. Nor did he fully explain why
he was unable to attend the May 24, 2011 hearing. According to the trial court: “We did get a call from
Mr. Jackson. He seems to like to
call my clerk every day. He indicated
he’s having some further medical problems, but that seems to be the course of
events for him.” After expressing
sympathy for appellant, the trial court continued: “I’m not sure whether he said he’s back in
the hospital or whether he’s just ill and having problems. Again, notwithstanding that, I don’t know
what he could have done, what he could have filed with the court in opposition
to the motion to persuade me that he’s right and the defendants are wrong.”
“[T]he mere absence of a party
standing alone is insufficient to compel a court to grant a continuance.” (Young
v. Redman (1976) 55 Cal.App.3d 827, 831.)
Indeed, absent a showing of good cause, a trial court properly exercises
its discretion to deny a continuance even though a party is ill and unable to
attend a hearing. (Ibid.; see also § 594, subd. (a) [“In superior courts either
party may bring an issue to trial or to a hearing, and, in the absence of the
adverse party, unless the court, for good cause, otherwise directs, may proceed
with the case and take a dismissal of the action, or a verdict, or judgment,”
assuming the absent party had proper notice].)
The cases cited by appellant highlight the type of good cause which may
support the grant of a continuance. (See
Lerma v. County of Orange (2004) 120
Cal.App.4th 709, 713, 716 [good cause for continuance of summary judgment
motion where the plaintiff’s attorney averred that he had been hospitalized for
emergency surgery and for that reason had not seen moving papers until 10 days
after they were filed and served]; Hernandez
v. Superior Court (2004) 115 Cal.App.4th 1242, 1246–1248 [good cause for
continuance of trial date where the plaintiff’s counsel died after the initial
trial date, the record showed his illness had negatively affected his trial
preparation and the plaintiff was diligent in obtaining a new attorney and
seeking a continuance].)
Here, we cannot conclude that the
trial court abused its discretion in finding no good cause for a
continuance. Balanced against
appellant’s vague claims of disabling illnesses, the action had been pending
for over two years and appellant had twice received leave to amend; he had
approximately one and one-half months’ notice of the motion; he received one
continuance of the motion because of illness; and he offered no written
opposition to a motion directed solely toward the viability of the pleadings. Under these circumstances, we find no basis
to disturb the trial court’s exercise of discretion to rule on the motion and
grant judgment on the pleadings.
DISPOSITION
The judgment is affirmed. Parties to bear their own costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
otherwise indicated, all further statutory references are to the Code of Civil
Procedure.
various points during the proceedings, appellant offered a death certificate of
his father, Arthur H. Jackson, showing that he died in 1974.
