Russell v. Deutsche Bank National Trust
Filed 4/17/13 Russell v. Deutsche Bank National Trust 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
KARAN
J. RUSSELL,
Plaintiff and Appellant,
v.
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee, etc., et al.,
Defendants and Respondents.
B239767
(Los Angeles County
Super. Ct. No. BC409718)
APPEAL
from an order of the Superior Court
of
County,
Michelle R. Rosenblatt, Judge. Affirmed.
Karan
J. Russell, in pro. per., for Plaintiff and Appellant.
Houser
& Allison, Eric D. Houser and Brian J. Wagner for Defendants and
Respondents.
_____________________
Plaintiff
and appellant Karan J. Russell appeals an order denying her motion to set aside
the judgment in favor of defendants and respondents Deutsche Bank National
Trust Company as Trustee under Pooling and Servicing Agreement Dated as of June
1, 2007 Securitized Asset Backed Receivables LLC Trust 2007-BR5 Mortgage
Pass-Through Certificates, Series 2007-BR5 (Deutsche Bank) and Barclay’s
Capital Real Estate Inc., doing business as HomEq Servicing (HomEq). We affirm.
In August 2006,
Russell and Fred Hemphill obtained a loan in the amount of $880,000 from New
Century Mortgage Corporation (New Century). Russell and Hemphill executed a
security interest in Russell’s real property located at 3624 Fairway
Boulevard in Los Angeles
(the property.) Neither the promissory
note nor the deed of trust are in the record.
In
about March 2007, HomEq began servicing Russell’s loan. HomEq contends that as of October 1, 2007, Russell was in
default on her obligations under the promissory note. HomEq requested Quality Loan Service Corp.
(QLS) to initiate foreclosure proceedings.
In
about January or February 2008, Mortgage Electronic Registration Systems, Inc.
(MERS), as nominee for New Century, executed an assignment of the deed of trust
to Deutsche Bank.
In
April 2008, QLS conducted a non-judicial foreclosure sale of the property. The record does not indicate who purchased
the property at the sale.
According
to the superior court docket sheet, Russell commenced this action in March 2009
by filing a complaint. A copy of the
complaint is not in the record.
The
docket sheet also indicates that Deutsche Bank and HomEq filed a motion for
summary judgment on April 28, 2011. Russell did not file an
or any of its supporting papers in the record.
On
July 20, 2011, the trial
court entered an order granting the motion for summary judgment. In so doing, the court found that Russell was
in default on her loan obligations to Deutsche Bank and had failed to make a
tender offer. The court further found
that respondents conducted a duly authorized non-judicial foreclosure sale of
the property.
On August 8, 2011, the trial court
entered judgment in favor of Deutsche Bank and HomEq.
On January 13, 2012, Russell filed a
motion to set aside the judgment dated August
8, 2011. Russell argued,
inter alia, that the judgment should be vacated pursuant to Code of Civil
Procedure section 473
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because it was entered due to surprise, mistake or excusable neglect, and that
the judgment should be vacated because it was entered as a result of a “fraud
on the court.†Additionally, Russell
argued that the judgment should be vacated because the trial court did not have
“jurisdiction†over the matter. This
argument was based, in part, on Russell’s claim that the assignment of the deed
of trust and promissory note were “fraudulent and void.â€
On
February 15, 2012, the
trial court entered an order denying Russell’s motion to set aside the
judgment. The court determined that the
motion appeared to be an untimely motion for reconsideration pursuant to
section 1008. The court further found
that Russell was not entitled to relief under section 473 , subdivision (b),
because she failed to bring the motion within a “reasonable†time and because
her “jurisdictional argument is poorly taken.â€
On
March 13, 2012, Russell
filed a notice of appeal of the February
15, 2012, order.
The
gravamen of Russell’s appeal is that the trial court erroneously granted
respondents’ motion for summary judgment.
Russell claims that respondents did not produce evidence showing that
the promissory note was physically delivered to Deutsche Bank. She also contends that MERS did not have
authority to assign the promissory note.
Respondents
do not directly address Russell’s arguments regarding whether their motion for
summary judgment should have been granted.
Instead, they contend that to the extent Russell’s appeal seeks review
of the trial court’s order granting summary judgment, the appeal is
untimely. They also argue that because
the motion to set aside the judgment was nothing more than a motion for
reconsideration, the order denying the motion was not appealable.
extent Russell’s motion to set aside the judgment was brought pursuant to
section 473, subdivision (b), the trial court did not abuse its discretion in
denying the motion.
1. Russell
Did Not Meet Her Burden of Showing That the Trial Court’s Denial of Her Motion to Set
Aside the Judgment Constituted Reversible Error
Russell
did not appeal the judgment dated August 8, 2011. Rather, she appealed the February 15, 2012, order denying her motion to
set aside the judgment. Contrary to
respondents’ argument, the motion was not simply a motion for
reconsideration. It was also a motion
for relief under section 473, subdivision (b), which Russell’s supporting
memorandum expressly cited.
An
order denying a section 473, subdivision (b) motion 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; § 904.1, subd. (a)(2).) Russell’s appeal was timely because her notice
of appeal was filed less than 30 days after the order was entered. (Cal. Rules of Court, rule 8.104(a)(1).)
We
review an order denying a section 473, subdivision (b) motion for abuse of
discretion. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892,
898.) “The court abuses its discretion
only if its ruling is arbitrary, capricious or patently absurd.†(Faigin
v. Signature Group Holdings, Inc. (2012) 211 Cal.App.4th 726, 748.)
Section
473, subdivision (b) provides that “[t]he court may, upon any terms as may be
just, relieve a party or his or her legal
representative from a judgment . . . taken against him or her through his
or her mistake, inadvertence, surprise or excusable neglect.†A motion for relief from a judgment pursuant
to section 473, subdivision (b) “shall be made within a reasonable time, in no
case exceeding six months, after the judgment . . . was taken.†(§ 473, subd. (b).)
Whether
the motion was filed within a reasonable time depends on the particular facts
and circumstances of the case. (
Cal.2d 523, 532 (Benjamin).) The moving party must be “diligent.†(Zamora
v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) If the moving party has inexplicably delayed
bringing the motion for several months, he or she has not demonstrated
diligence. (Benjamin, at p. 529.)
Here,
the trial court denied Russell’s motion, in part, because it determined that
she did not file the motion within a “reasonable†time. Russell filed the motion more than five
months after the judgment was entered.
Yet in her declaration in support of the motion, Russell provided no explanation
for the delay.
In
a “supplemental statement†dated February 3, 2012, Russell claimed that she
“recently†discovered evidence that Deutsche Bank was not “duly authorized to
conduct business in the State of California.â€
She also claimed that “through diligent efforts†in obtaining information
from New Century’s bankruptcy proceedings, she discovered that New Century “did
not duly, legally or otherwise, authorize an Assignment of the Deed of Trust,
on January 3, 2008.†Russell did not,
however, provide a coherent explanation as to why she did not discover this
information earlier. She also did not
describe when or how she obtained information from the bankruptcy proceedings,
or the exact nature of that information.
Based on the record before us, we cannot say that the trial court acted
in an arbitrary, capricious, or patently absurd manner when it determined that
Russell’s motion was untimely because it was not filed within a reasonable
time.
Russell
argues that she diligently filed her motion within 25 days after receiving
interrogatory responses in New Century’s bankruptcy proceedings in the United
States Bankruptcy Court for the District of Delaware.
Russell relies on documents attached to an undated declaration she filed in
this court. We cannot, however, consider
these documents because they were not filed or lodged in the superior
court. (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 723.) Moreover, this declaration does not
constitute admissible evidence because Russell did not sign it under penalty of
perjury under the laws of the State of California. (§ 2015.5; Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601,
606.)
Even
assuming Russell’s section 473, subdivision (b) motion was timely, the trial
court acted within its discretion by denying it on the merits. Russell did not provide any evidence of
mistake, inadvertence, surprise or excusable neglect related to the trial
court’s entry of the judgment. She thus
did not meet her burden of showing she was entitled to relief under section
473, subdivision (b).
2. Russell
Did Not Meet Her Burden of Showing the Trial Court Erroneously
Granted
Respondents’ Motion for Summary Judgment
Assuming,
arguendo, that Russell can raise in this appeal the issue of whether the trial
court erroneously granted respondents’ motion for summary judgment, Russell has
not met her burden of showing reversible error.
We
begin our analysis by reviewing some basic rules for appeals. A judgment or an order of the trial court is
presumed correct on appeal. (
557, 564.) It is the appellant’s burden
to affirmatively show error and to provide a record on appeal sufficient for us
to determine whether there was error. (
(2003) 110 Cal.App.4th 362, 364.)
We
are also mindful of the parameters for our review of an order granting summary
judgment. A summary judgment motion is
properly granted when there are no triable issues of material fact and the
moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) We review an order granting a motion for
summary judgment de novo. (
Cal.App.4th 925, 931.) The first step in
our analysis is to identify the issues raised by the pleadings “ ‘since it is
these allegations to which the motion must respond.’ †(Ibid.)
Here,
Russell did not include in the record the complaint or any other pleading,
respondents’ motion for summary judgment, and the affidavits or declarations
supporting that motion. These omissions
are fatal to Russell’s arguments regarding the summary judgment motion. Without the complaint, we cannot determine
the issues raised by the pleadings.
Without the moving papers and supporting evidence, we cannot determine
whether the trial court correctly granted the motion. Under these circumstances, we must presume
that the trial court correctly entered judgment in favor of respondents.
At
the end of her reply brief, Russell argued:
“Although I lack the expertise in pleading that the attorneys possess, I
do recognize that there are several inconsistencies to the Defendant’s story
and documents.†We recognize that
Russell is in propria persona. “Pro. per
litigants,†however, “are held to the same standards as attorneys.†(Kobayashi
v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Russell
simply did not meet her burden of showing that the trial court committed
reversible error. Based on the record on
appeal, we cannot reverse the trial court.
We affirm the order dated February
15, 2012. Respondents are awarded costs
on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
CROSKEY,
Acting P. J.
ALDRICH,
J.
future statutory references are to the Code of Civil Procedure.
order denying a motion for reconsideration is not appealable. (Powell
v. County of Orange (2011) 197 Cal.App.4th 1573, 1576.)
