Sarkisian v. U.S. Bank
Filed 2/13/13
Sarkisian v. U.S. Bank CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
ANOOSHAVAN SARKISIAN et
al.,
Plaintiffs and Appellants,
v.
U.S. BANK, N.A. et al.,
Defendants and Respondents.
B238254
(Los Angeles County
Super. Ct. No. EC055402)
APPEAL from
a judgment of the Superior Court of
County, William D. Stewart, Judge.
Affirmed.
Law Offices
of Richard Il. Rydstrom and Richard I. Rydstrom; Borowitz & Clark and M.
Erik Clark for Plaintiffs and Appellants.
Bryan Cave,
Stuart W. Price, Kamao C. Shaw and Douglas E. Winter for Defendants and
Respondents.
_____________________
Plaintiffs and appellants Anooshavan
Sarkisian and Roobina Sarkisian (plaintiffs or the Sarkisians), husband and
wife, challenge the validity of a foreclosure sale of their real property
located at 1418 Norton Avenue in Glendale (the property). They contend that defendants and respondents
U.S. Bank, N.A. (U.S. Bank), Countrywide Home Loans Inc. (Countrywide),
Recontrust Company, N.A. (Recontrust), Bank of America, N.A. (B of A), BAC
Home Loans Servicing, LP (BAC) and Darrell Schiffer (collectively, the bank
defendants) engaged in a tortious scheme to obtain title and possession of the
property. Plaintiffs’ first amended complaint
(FAC) set forth numerous causes of action, including quiet title. The trial court sustained the bank
defendants’ demurrer to the FAC and then entered judgment in their favor. On appeal, plaintiffs’ main argument is that
the trial court erroneously sustained the demurrer. We shall reject all of plaintiffs’ arguments
and affirm the judgment.
1.
The Promissory Note and Deed of Trust
In August or
September 2006, plaintiffs obtained a $700,000 loan from Countrywide secured by
the property. The secured loan was
memorialized by a promissory note and deed of trust dated August 25, 2006. The
deed of trust, recorded on September 5, 2006, states that the Sarkisians are
the borrowers (trustors), Recontrust is the trustee, Countrywide is the lender,
and Mortgage Electronic Registration Systems, Inc. (MERS) is the “nominee†of
the lender and, in that capacity, the beneficiary of the deed of trust.
2. The
Nonjudicial Foreclosure
Plaintiffs
apparently were unable to timely make the payments due under the promissory
note. On or about October 2, 2007,
Recontrust, as trustee of the deed of trust, recorded a notice of default and
election to sell under the deed of trust.
On February
6, 2008, Recontrust allegedly conducted a public auction of the property
pursuant to Civil Code section 2924 and its powers as trustee under the deed of
trust. Although the FAC asserts many
legal arguments regarding this public auction, it contains a paucity of facts
about what actually occurred. The public
auction is referred to in three subsequently recorded documents, namely a pair
of trustee’s deeds upon sale and a notice of rescission, which we shall discuss
post.
3. The
Assignment of the Deed of Trust and Promissory Note, and the First Trustee’s
Deed
On February 19, 2008, Recontrust recorded two documents. The first was a corporation assignment of
deed of trust (the assignment). This
document stated that MERS transferred all beneficial interest in the deed of
trust, together with the promissory note described in the deed of trust, to U.S
Bank, as trustee for Mortgage Pass-Through Certificates Series 2007-AR1
(mortgage trust). The assignment was
dated September 28, 2007 and notarized on February 14, 2008.
The second
document Recontrust recorded on that day was a trustee’s deed upon sale (first
trustee’s deed). This deed stated that
U.S. Bank, as trustee of the mortgage trust, purchased the property at a public
auction on February 6, 2008, for $734,579.82, which was the amount of the unpaid
debt the plaintiffs owed under the promissory note.
4.
On March 25,
2008, U.S. Bank, as trustee for the mortgage trust, filed a verified unlawful
detainer complaint against the Sarkisians.
(U.S. Bank National Association,
etc. v. Anooshavan Sarkisian et al. (Super. Ct. L.A. County, 2008, No.
08C02640) (UD action).) The
complaint alleged that U.S. Bank purchased the property at a foreclosure sale
in accordance with Civil Code section 2924 et seq., and then duly perfected its
interest in the property by recording a trustee’s deed upon sale. The complaint also alleged that U.S. Bank was
pursuing possession of the property pursuant to Code of Civil Procedure 1161a,
subdivision (b).
title="">[3]
On May 1,
2008, the superior court entered a default judgment in the UD action in U.S.
Bank’s favor and against the Sarkisians.
The judgment provided that U.S. Bank, as trustee of the mortgage trust,
was entitled to “possession†of the property.
On May 5,
2008, U.S. Bank obtained a writ of possession.
Plaintiffs contend they were forced out of the property in September
2008.
5.
On June 11, 2008, Recontrust, as trustee of the deed of trust, recorded a
trustee’s deed upon sale (second trustee’s deed). The second trustee’s deed stated that
Countrywide, for the benefit of Citigroup Global Markets Realty Corp.,
purchased the property at a public auction on February 6, 2008, for
$734,579.82, which was the amount of the unpaid debt the plaintiffs owed under
the promissory note. The second
trustee’s deed also stated that it was “being recorded to correct the vesting
& supercedes [sic]†the first
trustee’s deed.
6. Notice
of Rescission
On October
15, 2009, Recontrust, as trustee of the deed of trust, recorded a notice of rescission
of trustee’s deed upon sale pursuant to Civil Code section 1058.5. Because this document lies at the heart of
plaintiffs’ action, we shall discuss it in some detail.
The notice
of rescission stated that Recontrust “has been informed by [MERS] that [MERS]
desires to rescind the Trustee’s Deed recorded upon the foreclosure sale which
was conducted in error due to a failure to communicate timely, notice of
conditions which would have warranted a cancellation of the foreclosure sale
which did occur on 02/06/2008.†The
notice further stated: “NOW THEREFORE,
[Recontrust] HEREBY RESCINDS THE TRUSTEE’S SALE AND PURPORTED [second trustee’s
deed] AND HEREBY ADVISES ALL PERSONS THAT THE [second trustee’s deed] IS HEREBY
RESCINDED AND IS AND SHALL BE OF NO FORCE AND EFFECT WHATSOEVER. THE DEED OF TRUST . . . IS IN FULL FORCE AND EFFECT.â€
7. The
Forcible Detainer Action
Plaintiffs contend that in late March or mid-April 2010, shortly after
they learned about the notice of rescission, they began living in the property
again. On June 30, 2010, U.S. Bank, as
trustee for the mortgage trust, filed a verified complaint for forcible entry
and forcible detainer against the Sarkisians.
(U.S. Bank National Association,
etc. v. Anooshavan Sarkisian et al. (Super. Ct. L.A. County, 2010, No.
10C04846) (forcible detainer action).)
The complaint alleged that U.S. Bank was the owner of the property
pursuant to a trustee’s sale conducted on February 6, 2008, and that the
Sarkisians forcibly entered the property without U.S. Bank’s consent and
remained on the property despite receiving a notice to surrender possession.
On August 8,
2011—after the present action commenced—the superior court held a bench trial
on the forcible detainer action. On the
same day, the court entered judgment for U.S. Bank and against the Sarkisians.
judgment in the forcible detainer action.
8. The
Complaint and First Amended Complaint in this Action
On April 1,
2011, plaintiffs commenced this action by filing a complaint in the superior
court. Plaintiffs filed the FAC on
August 13, 2011.
Although the
FAC is difficult to follow, the gravamen of the pleading is that the bank
defendants and other defendants
name="_ftnref6" title="">[6]
allegedly engaged in a “common plan or scheme†to obtain title and possession
of the property. This scheme was
executed by numerous individuals and entities, including U.S. Bank and its
attorneys, Recontrust,
B of A and its alleged subsidiaries, Countrywide and BAC, and
Darrell Schiffer, an alleged employee of BAC and agent of U.S. Bank, B of A,
Countrywide and Recontrust.
The FAC
alleged that the February 6, 2006, nonjudicial foreclosure and public auction
was achieved by “trickery and the utterance of false, confusing, misleading,
void or unlawful documents affecting title and possessory rights to [the
property].†In furtherance of this
scheme, the bank defendants allegedly “concealed†the notice of rescission,
which “return[ed] title to the Sarkisians.â€
The bank defendants also allegedly filed the UD and forcible detainer
actions without duly obtaining title to the property and with knowledge that
their claim to title and possessory rights to the property was contrary to the
notice of rescission. Additionally, the
bank defendants allegedly filed misleading documents in plaintiffs’ bankruptcy
proceedings.
title="">[7] These documents allegedly concealed the
notice of rescission and misrepresented to the court that the assignment was
executed on September 28, 2007, when in fact it was signed on February 14, 2008,
after the foreclosure sale, making the assignment void on its face.
Based on
these and a host of other allegations, the FAC purports to set forth causes of
action for (1) negligence, (2) waste, (3) “Set-Aside Trustee Foreclosure
Sale/Wrongful Listing for Sale,†(4) conspiracy to defraud, (5) unfair and
deceptive business practices, (6) conversion, (7) slander of title, (8) abuse
of process, (9) nuisance, (10) quiet title, (11) intentional infliction of
emotional distress, and (12) negligent infliction of emotional distress.
9. Plaintiffs’
Motion to Vacate the Judgment in the UD Action
On May 27,
2011—before filing their FAC—plaintiffs filed a motion in the present action to
vacate the judgment in the UD action.
The trial court denied the motion on July 7, 2011.
10. The
Bank Defendants’ Demurrer
On October
3, 2011, the bank defendants filed a demurrer to the FAC on the ground that the
FAC failed to state facts sufficient to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e)). The
superior court sustained the demurrer without leave to amend. In so doing, the court found that the FAC was
barred for two main reasons. The first
was that the FAC did not allege plaintiffs tendered the amount due on the
promissory note. The court determined
that under the “tender rule,†all of the FAC’s causes of action were
barred. In addition, the trial court
ruled that the judgment in the UD action conclusively adjudicated the issue of
title to the property, and thus the FAC was barred under the doctrine of res
judicata.
On November
28, 2011, based on its ruling on demurrer, the court entered judgment in favor
of bank defendants and against plaintiffs.
Plaintiffs filed a timely notice of appeal of that judgment.
Plaintiffs
argue that the trial court erroneously sustained the bank defendants’ demurrer
to the FAC and abused its discretion by denying their motion to vacate the
judgment in the UD action. They contend
that no tender was required because the notice of rescission rescinded the nonjudicial
foreclosure sale of the property to U.S. Bank and rendered the first trustee’s
deed conveying title to U.S. Bank “void.â€
Additionally, plaintiffs argue that the FAC is not barred under the
judgment in the UD action was based on a “false-in-fact†and “void†sale and
deed. Finally, plaintiffs contend that
the trial court erroneously denied their motion to vacate the judgment in the
UD action.
1. Standard
of Review of an Order Sustaining a Demurrer
We review an order sustaining a
demurrer de novo and “will affirm a judgment based on the sustaining of a
demurrer on any properly supported ground, regardless of the trial court’s
reason for its ruling.†(
“ ‘ “We assume the truth of the properly pleaded factual
allegations, facts that reasonably can be inferred from those expressly
pleaded, and facts of which judicial notice can be taken. [Citation.]
We construe the pleading in a reasonable manner and read the allegations
in context. [Citation.]†’ [Citation.]
However, we need not accept as true plaintiff’s contentions, deductions
or conclusions of fact or law.†(
203 Cal.App.4th 81, 87 (Maxton).)
2.
“As a
general rule, a debtor cannot set aside [a nonjudicial] foreclosure based on
irregularities in the sale without also alleging tender of the amount of the
secured debt. [Citations.] ‘The rationale behind the rule is that if
[the borrower] could not have redeemed the property had the sale procedures
been proper, any irregularities in the sale did not result in damages to the
[borrower].’ †(Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505,
512 (Shuster).) Also, because a borrower’s action challenging
the validity of a trustee’s sale is in equity, the borrower is required to do
equity before the court will exercise its equitable powers. (Onofrio
v. Rice (1997) 55 Cal.App.4th 413, 424 (Onofrio).)
The major
exception to the tender rule is that a borrower is not required to tender the
amount due on the promissory note where it would be inequitable to require such
a tender. (Humboldt Sav. Bank v. McCleverty (1911) 161 Cal. 285, 291 (
Cal.App.4th at p. 424.) Hence, a tender
of the full amount due is not required when the borrower (trustor) has a
counter-claim or set-off against the lender (beneficiary), when the borrower
challenges the validity of the underlying debt, or when the borrower is not
liable for the underlying debt. (
Cal.App.4th at p. 512; Humboldt, at
p. 291.)
The tender
rule applies to a foreclosure sale that is “voidable†due to some irregularity
in the foreclosure process. (
81 Cal.App.4th 868, 877 (Dimock);
Karlsen v. American Sav. & Loan Assn.
(1971) 15 Cal.App.3d 112, 117.) The
borrower, however, is not required to tender the loan balance when the deed of trust (Shuster, supra, 211
Cal.App.4th at p. 512) or the trustee’s deed upon sale (Dimock, at p. 878) is void on its face. This is because when a borrower attacks a
void deed, he or she is not relying upon equity. (Ibid.)
In the
present case, each of the causes of action in the FAC are based on the alleged
invalidity of the February 6, 2006, foreclosure sale to U.S. Bank. Yet the FAC does not allege that plaintiffs
tendered at any time the amount of their secured debt. The FAC also does not allege any facts
indicating that a recognized exception to the tender rule applies. The trial court thus correctly sustained the
demurrer to the FAC on the ground that plaintiffs’ action is barred by the
tender rule.
Plaintiffs
argue that the first trustee’s deed conveying the property to U.S. Bank was
void because the notice of rescission rendered it so. We disagree.
The notice of rescission was filed pursuant to Civil Code section
1058.5. This statute provides: “Where a trustee’s deed is invalidated by a
pending bankruptcy or otherwise, recordation of a notice of rescission of the
trustee’s deed, which notice properly identifies the deed of trust, the
identification numbers used by the recorder or the books and pages at which the
trustee’s deed and deed of trust are recorded, the names of all trustors and
beneficiaries, the location of the property subject to the deed of trust, and
the reasons for rescission, shall
restore the condition of record title to the real property described in the
trustee’s deed and the existence and priority of all lienholders to the status
quo prior to the recordation of the trustee’s deed upon sale.†(Civ. Code, § 1058.5, subd. (b).)
The plain
terms of the notice of rescission provided that Recontrust, the trustee of the
deed of trust, merely rescinded the sale of the property to Countrywide and the second
trustee’s deed. The notice of rescission
did not rescind the sale of the property to
U.S. Bank or the first trustee’s deed. The
status quo before the second trustee’s deed was rescinded was that U.S. Bank
held title to the property. Under Civil
Code section 1058.5, subdivision (b) and the terms of the notice of rescission,
Recontrust simply revived the status quo by recording the notice of rescission.
Plaintiffs
argue that because the notice of rescission stated that the deed of trust was
in “full force and effect,†the first trustee’s deed was necessarily void. We disagree.
In order to adopt plaintiffs’ position, we would be required to
interpret the notice of rescission as impliedly
rescinding the first trustee’s deed.
Civil Code section 1058.5, subdivision (b), however, provides that a
notice of rescission must specify, inter alia, “the identification numbers used
by the recorder or the books and pages at which the trustee’s deed . . . [is]
recorded†and the names of “all . . . beneficiaries.†Here, the notice of rescission identified the
instrument number and date of the second trustee’s deed and the beneficiary of
that deed, Countrywide, but did not so identify the first trustee’s deed or
U.S. Bank. The notice of rescission thus
only rescinded the second, not the first, trustee’s deed, despite the
ostensibly incongruous statement that the deed of trust was still in effect.
We note that
the FAC alleges that the assignment was executed on February 14, 2008, and not
on September 28, 2007, as the bank defendants claim. The assignment itself is ambiguous. It is “DATED†September 28, 2007, and
notarized on February 14, 2008. For
purposes of demurrer, we must accept the plaintiffs’ allegation that the
assignment was executed on February 14, 2008, after U.S. Bank purchased the property at the foreclosure sale.
Even
assuming the assignment to U.S. Bank was invalid
the notice of rescission was defective, the FAC is still deficient because it
contains no facts showing prejudice to plaintiffs. (Fontenot,
supra, 198 Cal.App.4th at p. 272 [“a
plaintiff in a suit for wrongful foreclosure has generally been required to
demonstrate the alleged imperfection in the foreclosure process was prejudicial
to the plaintiff’s interestâ€].) In
situation. There, the plaintiff
challenged the validity of a foreclosure on the ground that MERS, the original
lender’s nominee, did not transfer the promissory note to the successor lender,
HSBC, because it lacked the authority to do so.
The court, however, held that even if MERS lacked authority to transfer
the note, the plaintiff could not prevail because she did not show
prejudice. (Ibid.) “If MERS indeed
lacked authority to make the assignment,†the court reasoned, “the true victim
was not plaintiff but the original lender, which would have suffered the
unauthorized loss of a $1 million promissory note.†(Ibid.)
The same is true here. The FAC alleged no facts indicating
plaintiffs were prejudiced by any of the alleged irregularities or defects in
the assignment or notice of rescission.
It did not, for example, allege that plaintiffs had the means to tender the
amount due under the promissory note but as a result of the bank defendants’
conduct were unable to do so. Moreover,
plaintiffs do not dispute that at the time of the foreclosure sale they were in
default of their payment obligations under the promissory note, that they were
duly notified of the foreclosure sale, that the assignment merely substituted
U.S. Bank for their original creditor without changing any of plaintiffs’
obligations, that the notice of rescission was recorded 20 months after the
foreclosure sale, and that they did not tender the amount due under the
promissory note at any time.
Accordingly, any irregularities or defects in the assignment or notice
of rescission had no prejudicial impact on plaintiffs and cannot be the basis
for invalidating the sale of the property to U.S. Bank.
3. The
FAC is Barred by the Doctrine of Collateral Estoppel
“The
aspect of res judicata known as issue preclusion or collateral estoppel bars a
party from relitigating any issues necessarily included in a prior, final
judgment.†(Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968,
973, fn. 4, italics omitted (Malkoskie).) For the reasons that follow, we shall
conclude that plaintiffs are collaterally estopped from challenging the
validity of U.S. Bank’s title to the property in this action.
Because an unlawful detainer action is a summary
proceeding usually limited to the issue of immediate possession of real
property, a judgment in such an action usually has limited res judicata effect
“and will not prevent one who is dispossessed from bringing a subsequent action
to resolve questions of title.†(
251, 255 (Vella).) An exception to this rule is contained in
Code of Civil Procedure section 1161a, which extends the summary eviction
remedy beyond the conventional unlawful detainer suit brought by a landlord to
include actions by certain purchasers of property. (Vella,
at p. 255.) In these cases, title to the
property may be an issue.
In Malkoskie,
the court applied the exception to the rule that title cannot be tried in
unlawful detainer in circumstances similar to the present case. There, Wells Fargo Bank, N.A. (Wells Fargo),
after purchasing real property at a nonjudicial foreclosure sale, brought an
unlawful detainer action against the previous homeowners pursuant to Code of
Civil Procedure section 1161a, subdivision (b)(3). This subdivision permits an unlawful detainer action against a person
who holds over and continues possession of real property after receiving a
three-day written notice to quit the property, “[w]here the property has been
sold in accordance with Section 2924 of the Civil Code, under a power of sale
contained in a deed of trust executed by such person, or a person under whom
such person claims, and the title under
the sale has been duly perfected.â€
(Code Civ. Proc., § 1161a, subd. (b)(3), italics added.) In a subsequent action by the previous
homeowners seeking to set aside the nonjudicial foreclosure sale, the court held
that the judgment in the unlawful detainer action “conclusively resolved†the
validity of title to the property in Wells Fargo’s favor. (Malkoskie,
supra, 188 Cal.App.4th at p. 974.)
Likewise, in the UD action, the complaint alleged that U.S. Bank
purchased the property at a foreclosure sale in accordance with Civil Code
section 2924, and that it was seeking possession of the property pursuant to
Code of Civil Procedure section 1161a, subdivision (b). Subdivision (b) sets forth five
circumstances under which an unlawful detainer action may be commenced, all of
which require the plaintiff to purchase the property and to duly perfect
title. Subdivision (b)(3) appears to be
the only circumstance which applies to the facts stated in the complaint.
the issue of title to the property. (
Although the judgment in
the UD action was obtained by default, the issue of title was necessarily and
actually decided. By permitting their
default in the UD action to be entered, the Sarkisians confessed the truth of
all material allegations in the complaint, including U.S. Bank’s allegations
that it purchased the property at a foreclosure sale and thereafter perfected
its interest in the property. (
127, 131.) The Sarkisians therefore are
collaterally estopped from denying that U.S. Bank holds title to the
property. (Murray v. Alaska Airlines, Inc. (2010) 50 Cal.4th 860, 871 [“Even a
judgment of default in a civil proceeding is ‘res judicata as to all issues
aptly pleaded in the complaint and defendant is estopped from denying in a
subsequent action any allegations contained in the former complaint’ â€].)
Each
of plaintiffs’ causes of action in this case rest on the premise that U.S. Bank
did not acquire title to the property.
Because U.S. Bank conclusively established in the UD action that it
holds title to the property, the trial court correctly sustained the bank
defendants’ demurrer to the FAC.
4. We
Do Not Reach Bank Defendants’ Other Arguments
In addition
to their arguments based on the tender rule and res judicata, the bank
defendants contend that the FAC fails to state a cause of action for two
additional reasons. The first is that
much of their alleged wrongful conduct, including obtaining a writ of
possession and filing the complaints in the UD action and forcible detainer
action, was privileged. The bank
defendants also argue that the FAC does not include facts supporting essential
elements of particular causes of action.
Because we have concluded that the trial court correctly sustained the
bank defendants’ demurrer to the FAC based on the tender rule and
bank defendants’ remaining arguments.
5. Plaintiffs’
Request for Leave to Amend
When a
general demurrer is sustained, “the plaintiff must be given leave to amend his
or her complaint when there is a reasonable possibility that the defect can be
cured by amendment. [Citations.] ‘The burden of proving such reasonable
possibility is squarely on the plaintiff.’ â€
(Maxton, supra, 203 Cal.App.4th at p. 95.)
“ ‘To
satisfy that burden on appeal, a plaintiff “must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.†[Citation.] The assertion of an abstract right to amend
does not satisfy this burden.’
[Citation.] The plaintiff must
clearly and specifically state ‘the legal basis for amendment, i.e., the
elements of the cause of action,’ as well as the ‘factual allegations that
sufficiently state all required elements of that cause of action.’ [Citation.]â€
(Maxton, supra, 203 Cal.App.4th at p. 95.)
Here, on the
last page of its opening brief, plaintiffs requested this court for “leave to
amend the complaint and cure any defects in pleading.†Plaintiffs did not, however, specifically
state the additional facts or new legal theories they would allege if given
leave to amend. Accordingly, plaintiffs
did not meet their burden of showing there is a reasonable possibility that the
defects in the FAC can be cured by amendment.
6.
Plaintiffs argue that the trial court
erroneously denied their motion to vacate the judgment in the UD action.
judgment pursuant to Code of Civil Procedure section 663, on the grounds that
(1) the judgment was based on an incorrect or erroneous legal basis or was not
consistent with or supported by the facts, or (2) the judgment was not
consistent with or supported by the special verdict. A party or his or her counsel may also seek
relief from a judgment pursuant to Code of Civil Procedure section 473,
subdivision (b) on the grounds of mistake, inadvertence, surprise, or excusable
neglect. In this case, plaintiffs
brought the motion under both statutes.
The bank
defendants claim that the order denying plaintiffs’ motion to vacate was not
appealable. But under well established
case law, an order denying a motion for relief from a default judgment under
Code of Civil Procedure section 473, subdivision (b), is appealable. (Generale
Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th
1384, 1394; Doppes v. Bentley Motors,
Inc. (2009) 174 Cal.App.4th 1004, 1008.)
The case law, however, does not clearly resolve the issue of whether an
order denying a motion to set aside or vacate a judgment under Code of Civil
Procedure section 663 is separately appealable.
(See Clemmer v. Hartford Insurance
Co. (1978) 22 Cal.3d 865, 890 (Clemmer)
[the order is “nonappealableâ€]; Howard v.
Lufkin (1988) 206 Cal.App.3d 297, 302 [“the precedential value of
Cal.App.4th 813, 820-823 [discussing split in authority].)
In any case,
regardless of whether the order denying plaintiffs’ motion was appealable, the
trial court correctly denied the motion because it was untimely. In order to file a motion to set aside or
vacate a judgment under Code of Civil Procedure section 663, a party must file
a notice of intention of filing such a motion either (1) after the decision is
rendered and before the entry of judgment, or (2) within 15 days of being
served by a notice of entry of the judgment or within 180 days after entry of
judgment, whichever is earliest. (Code
Civ. Proc., § 663a, subd. (a).) Here,
plaintiffs filed their motion more than three years after the judgment in the
UD action was entered. Nothing in the
record indicates plaintiffs filed a notice of intent to file their motion. Accordingly, to the extent the motion was
based on Code of Civil Procedure section 663, it was untimely.
A motion for
relief from a judgment pursuant to Code of Civil Procedure section 473,
subdivision (b) “shall be made within a reasonable time, in no case exceeding
six months, after the judgment . . . was taken.†(Code Civ. Proc., § 473, subd. (b).) Plaintiffs’ motion in this case was made long
after the six-month deadline expired. We
therefore affirm the trial court’s order denying plaintiffs’ motion to vacate
the judgment in the UD action because the motion was untimely.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
KITCHING,
J.
We
concur:
KLEIN, P. J.
CROSKEY, J.
Because the principal issue on
appeal is whether the trial court erroneously sustained the bank defendants’
demurrer to the FAC, our summary of the relevant facts assumes the factual
allegations in the FAC are true, but we do not assume the truth of the FAC’s
contentions, deductions or conclusions of law.
(Bower v. AT&T Mobility, LLC
(2011) 196 Cal.App.4th 1545, 1552 (Bower).) Many of the facts in our summary are based on
documents recorded in the Los Angeles County Recorder’s office and attached to
the FAC. To the extent there is a
conflict in the facts alleged in the body of the FAC and the attached exhibits,
the exhibits take precedence. (
(2001) 86 Cal.App.4th 1443, 1447.)
“A ‘nominee’ is a person or
entity designated to act for another in a limited role—in effect, an
agent.†(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 270
(Fontenot).) “MERS is a private corporation that
administers a national registry of real estate debt interest transactions.†(Id.
at p. 267.)
