Gonsalves v. Deutsche Bank Nat. Trust
Co.
Filed 7/16/13 Gonsalves v. Deutsche Bank Nat. Trust Co.
CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
ONE
MARY R. GONSALVES,
Plaintiff and Appellant,
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Defendant and Respondent.
B239671
(Los Angeles
County
Super. Ct.
No. BC464602)
APPEAL from a judgment of the Superior
Court of
County. John L. Segal,
Judge. Affirmed.
Mary R. Gonsalves, in pro. per.;
Juarez & Associates and Christian R. Juarez for Plaintiff and Appellant.
Wright, Finlay & Zak, Robin
Prema Wright, Jonathan D. Fink and Joshua R. Hernandez for Defendant and
Respondent.
___________________________________
>
In this
matter, plaintiff Mary R. Gonsalves did not oppose a demurrer of defendant
Deutsche Bank National Trust Company (Deutsche Bank), amend her complaint after
the demurrer was sustained with leave to amend, or oppose Deutsche Bank’s
subsequent motion to dismiss. Gonsalves
now appeals from the judgment entered after the court granted the
had been “justified†in failing to oppose the demurrer because codefendant JMO,
Inc., had filed a notice of automatic stay and that the court had erred in
dismissing the case with prejudice. We
disagree because Deutsche Bank did not have an identity of interest with JMO,
Inc., and the case properly was dismissed with prejudice when Gonsalves did not
amend. We affirm the judgment.
The background facts are taken from the complaint and
matters judicially noticed by the trial court.
(Evid. Code, § 459.)
In September 2006, JMO, Inc., loaned Gonsalves
$992,000 (loan) in return for Gonsalves’s execution of a
deed of trust on real property located in Los Angeles, California. Orange Coast Title was the trustee and
Mortgage Electronic Registration Systems, Inc. (MERS), was the nominee
beneficiary. After Gonsalves defaulted
on loan payments, a notice of default was recorded on February 10, 2010. As the nominee of JMO, Inc., MERS sold the
loan, which was pooled with other loans into a trust of which Deutsche Bank was
the trustee; the “assignment of deed of trust†in favor of Deutsche Bank was
recorded on April 16, 2010. A trustee’s sale took place on September 7, 2010, with title reverting to
Deutsche Bank. A trustee’s deed upon
sale was recorded on September 14, 2010.
Over four and one-half months after its assignment of
deed of trust to Deutsche Bank was recorded, JMO, Inc., filed a petition in the
bankruptcy court on September 3, 2010.
On July 1, 2011, Gonsalves filed a complaint for quiet
title, “invalid foreclosure,†and breach of the
against Deutsche Bank and JMO, Inc.; and fraud against JMO, Inc. On July 13,
2011, JMO, Inc., filed a notice of automatic stay, indicating that
Gonsalves’s action was stayed with regard to JMO, Inc.
On August 12,
2011, Deutsche Bank filed a request for judicial notice, which was
granted by the trial court, and
a demurrer to the complaint. Gonsalves
did not oppose the demurrer. Thereafter,
the trial court sustained Deutsche Bank’s demurrer with 10 days’ leave to amend. Gonsalves did not file an amended
complaint. On November 23, 2011,
pursuant to Code of Civil Procedure section 581, subdivision (f)(2), Deutsche
Bank filed a motion to dismiss Gonsalves’s complaint based on her failure to
amend the complaint within the time period allowed by the court.
dismiss. On January 11, 2012, the date of the hearing on
the motion to dismiss, Gonsalves filed an ex parte motion to continue the
hearing on the motion to dismiss. In
support of the ex parte motion, Gonsalves’s counsel declared that Gonsalves
had not filed an opposition to the demurrer because she “believed [JMO Inc.’s]
automatic stay would apply and no action was necessary.â€
On January 11, 2012, the trial court denied
Gonsalves’s ex parte motion and granted Deutsche Bank’s motion to dismiss. Deutsche Bank served a proposed order and
judgment of dismissal with prejudice on Gonsalves, to which Gonsalves objected
on January 19, 2012. On February 2,
2012,
the court filed the order granting the motion to dismiss with prejudice and
judgment of dismissal. Gonsalves
appealed.
The trial court did not abuse its discretion in granting Deutsche
Bank’s motion to dismiss with prejudice
Gonsalves urges that the trial
court erred in granting Deutsche Bank’s motion to dismiss, contending that she
had been “justified†in failing to oppose the demurrer because codefendant JMO,
Inc., had filed a notice of automatic stay and that the court had erred in
dismissing the case with prejudice. We
disagree because Deutsche Bank did not have an identity of interest with JMO,
Inc., and the case properly was dismissed with prejudice when Gonsalves did not
amend.
Gonsalves
argues that her failure to file opposition to Deutsche Bank’s demurrer was “justifiedâ€
because she “did not want to take the risk of proceeding against the
nonbankrupt†Deutsche Bank, which she claimed had a “substantial identity of
interest†with “debtor†JMO, Inc. She
cites A.H. Robins Co., Inc. v. Piccinin
(1986) 788 F.2d 994 for the proposition that a bankruptcy court may stay
proceedings against a nonbankrupt codefendant in the “‘unusual
situation’. . . when there is such identity between the debtor and
the third-party defendant that the debtor may be said to be the real party
defendant and that a judgment against the third-party defendant will in effect
be a judgment or finding against the debtor.â€
(Id. at p. 999.) But Gonsalves did not plead identity of
interest in her complaint; nor does she establish identity of interest between
JMO, Inc., and Deutsche Bank on appeal.
Thus, the stay as contemplated in A.H.
Robins Co. does not apply here.
With respect to the trial court’s ruling sustaining the
demurrer, Gonsalves states in her opening brief, “It is unclear upon what
grounds the court ruled with respect to the demurrer. It is not necessary to speculate. The better procedure would be to vacate the
dismissal with prejudice and return the matter to the trial court for further
proceedings. It is clear that whatever
the defects were in the original complaint, the Court believed that the
Appellant should have another opportunity to amend the pleadings. The Court granted leave originally even
though Appellant did not respond to the demurrer. The court’s determination amounted to nothing
more than that the plaintiff had failed . . . to establish a right of
recovery against the defendant by that particular complaint. The judgment was based upon formal matters of
pleading, and concluded nothing more than the form in which the claim was then
presented, did not entitle Appellant to go to trial on the merits. Such a judgment is clearly not on the merits,
and under the rules set forth above, is not res judicata.â€
Based on the foregoing, Gonsalves has forfeited any
challenge of the merits of the trial court’s ruling sustaining the
demurrer. (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,
545–546 [if appellant’s brief does not contain legal argument with citation of
authorities on point made, court need not furnish argument or search record for
support for appellant’s contention but may treat it as forfeited and pass it
without consideration].)
We conclude
that Gonsalves has not established that the trial court abused its discretion
in granting Deutsche Bank’s motion to dismiss with prejudice. Under section 581, the trial court may
dismiss a complaint if
“after a demurrer to the complaint is sustained with leave to
amend, the plaintiff fails to amend it within the time allowed by the court and
either party moves for dismissal.†(§
581, subd. (f)(2).) “The decision to
dismiss an action under section 581, subdivision (f)(2) rests in the sound
discretion of the trial court and a reviewing court will not disturb the ruling
unless the trial court has abused its discretion. [Citation.]
It is appellant’s burden to establish an abuse of discretion. [Citation.]â€
(Gitmed v. General Motors Corp.
(1994) 26 Cal.App.4th 824, 827; see Cano v. Glover
(2006) 143 Cal.App.4th 326, 329–330 [dismissal pursuant to section 581, subd.
(f)(2) is with prejudice].)
There is no
abuse of discretion here. It is
undisputed that Gonsalves failed to oppose the demurrer, amend her complaint
within the time allowed by the court, or oppose the motion to dismiss. We affirm the judgment.
The judgment is affirmed.
NOT TO BE
PUBLISHED.
MALLANO,
P. J.
We concur:
ROTHSCHILD,
J.
CHANEY, J.
to the Code of Civil Procedure.
