Berkes v. San Diego Foreclosure
Services, Inc.
Filed 9/13/13 Berkes v. San Diego Foreclosure Services,
Inc. CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
JASON E. BERKES et al.,
Plaintiffs and Appellants,
v.
SAN DIEGO FORECLOSURE SERVICES,
INC. et al.,
Defendants and Respondents.
D050488
(Super. Ct.
No. GIN037150)
APPEAL from
a judgment of the Superior Court
of
County, Joel M. Pressman, Judge. Reversed as moot and remanded with
directions.
Law Office
of Bryan Pease and Bryan William
Pease for Plaintiffs and Appellants.
McCarthy
& Holthus, Terry Loftus for Defendant and Respondent San Diego Foreclosure,
Services, Inc.
Plaintiffs
and appellants Jason E. Berkes, Wendy L. Berkes, Jason E. Berkes, Trustee of
the Jason E. Berkes and Wendy Lee Berkes 2002 Family Trust and SeaSilver USA,
Inc. appeal from a judgment entered in favor of defendant San Diego Foreclosure
Services, Inc. (SDFS) after the court sustained without leave to amend a
demurrer to plaintiffs' third amended complaint seeking, inter alia,
property. Because the matter has become
moot, we will reverse the judgment as to SDFS and direct the trial court to
dismiss the underlying action against it.
(Paul v. Milk Depots, Inc. (1964)
62 Cal.2d 129, 134.)
FACTUAL AND
PROCEDURAL BACKGROUND
The basic
underlying facts and procedure in this matter are set forth in our prior
unpublished opinion on plaintiffs' consolidated appeals (Berkes v. San Diego Foreclosure Services, Inc. et al. (Oct. 3,
2006, D046224, D047346) [nonpub. opn.]), and we need not repeat them here other
than to say that in January 2005, the trial court entered a judgment in favor
of SDFS on plaintiffs' third amended complaint for quiet title and other
relief, from which plaintiffs' appealed.
In May 2006
and March 2007, this court issued orders staying the appeal of all proceedings
against SDFS under the automatic stay of section 362 of the Bankruptcy Code (11
U.S.C. § 362). After counsel
advised us that the bankruptcy case had closed, we vacated those stay orders in
June 2012.
Thereafter,
counsel of record for SDFS
name="_ftnref1" title="">[1]
notified this court that (1) the bankruptcy
proceeding had been converted to a chapter 7 bankruptcy and
had closed on April 3, 2012; (2) SDFS, a corporation, did not emerge from
bankruptcy upon completion of the case; (3) corporations in this position are
(4) SDFS's sole officer and director, Sally Clark, died just prior to the
filing of the involuntary chapter 11; and (5) there is no person or entity able
to respond to the current appeal on behalf of SDFS.
We directed
the parties' counsel of record to inform us why the appeal was not moot in
light of the above-referenced matters, and why the appeal should otherwise go
forward. Plaintiffs' counsel did not
respond; counsel for SDFS advised us that the appeal was "prudentially
moot."
DISCUSSION
" ' "[T]he
duty of this court, as of every other judicial tribunal, is to decide actual
controversies by a judgment which can be carried into effect, and not to give
opinions upon moot questions or
abstract propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it." ' [Citation.] . . . 'It necessarily follows that when,
pending an appeal from the judgment of a lower court, and without any fault of
the defendant, an event occurs which renders it impossible for this court, if
it should decide the case in favor of plaintiff, to grant him any effectual
relief whatever, the court will not proceed to a formal judgment, but will
dismiss the appeal.' " (Eye Dog Foundation v. State Bd. of Guide
Dogs for Blind (1967) 67 Cal.2d 536, 541; see In re Esperanza C.
(2008) 165 Cal.App.4th 1042, 1054; La Jolla Cove Motel and Hotel Apartments,
Inc. v. Superior Court (2004) 121 Cal.App.4th 773, 781.) "The
policy behind a mootness dismissal is that 'courts decide justiciable
controversies and will normally not render advisory opinions.' " (Giraldo v. Department of Corrections &
Rehabilitation (2008) 168 Cal.App.4th 231, 257.)
permit us to nevertheless consider this appeal: when issues are likely to
recur, when the issues are of broad public interest, or when a material question
remains for the court's determination.
(See Catholic Mut. Relief Soc. v.
Superior Court (2007) 42 Cal.4th 358, 365, fn. 5; Environmental Charter
High School v. Centinela
Valley Union
High School
District (2004) 122 Cal.App.4th 139, 144.) None of these exceptions apply here.
Under the circumstances, the
appeal as to SDFS is moot. (See, e.g., Paul
v. Milk Depots, Inc., supra, 62
Cal.2d at pp. 132-133 [proceeding to enforce marketing regulation rendered
cessation of business].)
controversy upon which a judgment could operate nor effectual relief that could
be granted to any party. (
on the merits, is to reverse it with directions to the trial court to
at pp. 134-135, see
Yucaipa v. City of Yucaipa (2011) 198 Cal.App.4th 939 [extensively
discussing Paul and the reason for
such disposition]; Wilson & Wilson v. City Council of Redwood City (2011)
191 Cal.App.4th 1559, 1585-1586; Giles v. Horn (2002) 100 Cal.App.4th
206, 229 [when an appeal is disposed of on the ground of mootness without
reaching the merits, in order to avoid ambiguity, the preferable procedure is
to reverse with directions to the trial court to dismiss the action]; County
of San Diego v. Brown (1993) 19 Cal.App.4th 1054, 1090.) "Reversal with directions to the trial
court to dismiss is the equivalent of dismissal of the appeal, but avoids the
ambiguity of the latter procedure which does not dispose of a subsisting trial
court judgment in a case wherein the issues are moot." (Bell v. Board of Supervisors (1976) 55
Cal.App.3d 629, 637.) This type
of reversal "does not imply approval of a contrary judgment . . . [it] is
merely a procedural step necessary to a proper disposition of this case." (Paul, 62 Cal.2d at p. 135.)
We express no opinion on the merits of the appeal.
DISPOSITION
The
judgment as to San Diego Foreclosure Services, Inc. is reversed solely for the
purpose of returning jurisdiction to the superior court. The matter is remanded with directions to the
superior court to dismiss the underlying action against San Diego Foreclosure
Services, Inc. The parties shall bear
their own costs on appeal.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
name="_ftn1" title="">[1] Attorney Terry Loftus advised us he "has no client"
in connection with this matter, but neither he nor counsel for plaintiffs have
filed a substitution or motion to withdraw as counsel. (Cal. Rules of Court, rule 8.36(b) &
(c).) Consequently, they remain counsel
of record for the parties in this appeal.
