Filed 9/19/18 Cal. Bank & Trust v. Balderacchi CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from an order of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.

Charles L. Abrahams, in pro. per., and for Defendant and Appellant Yolanda Balderacchi.

Troutman Sanders, Martin W. Taylor, and Nicholas J. Schuchert for Plaintiff and Respondent.

Attorney Charles Abrahams appeals on behalf of himself and defendant Yolanda Balderacchi, raising a number of issues—most of which are outside the scope of this appeal—including our dismissal of a prior appeal, proceedings in various other state and federal courts, and the entry of an order appointing a receiver. We allowed the appeal to proceed only as to the receiver order, which we now affirm.

BACKGROUND

In 2003, Abrahams took out a loan secured by a deed of trust on certain real property in National City (the Property). The deed of trust contained an assignment of rents provision and provided that the transfer of any interest in the Property would constitute an event of default, triggering the lender's right to foreclose. In 2010, Abrahams filed for bankruptcy. When his bankruptcy later converted to chapter 7, a bankruptcy trustee was appointed; the trustee abandoned the Property to Abrahams. In June 2014, Abrahams executed two grant deeds purporting to transfer the Property to Balderacchi, who, in a sworn declaration, explained that the deeds were executed "for only one purpose and that was to facilitate a loan on the subject Property[,] and [she] did not receive an interest in the subject Property." Abrahams declared it "was necessary" to grant the property to Balderacchi "to refinance the loan in order to pay off [the bank]."

California Bank and Trust (CBT), successor-in-interest to the original lender, contends Abrahams's transfer of the Property to Balderacchi by grant deed triggered a noncurable default on the loan and filed this action (the foreclosure action) in January 2016 to judicially foreclose on the Property. CBT's complaint included a cause of action for specific performance of the assignment of rents provision. CBT filed the original complaint against Balderacchi (as the Property's record owner) and other lienholders. Although the complaint identified Abrahams as the borrower on the loan, it did not name him as a defendant. The case was assigned to Judge Katherine Bacal. CBT moved to appoint a receiver, arguing that the trust deed that pledged the Property as collateral provided for the appointment of a receiver over that collateral in the event of default.

In February 2016, Abrahams appeared in the foreclosure action and indicated he, not Balderacchi, was the Property owner, he was not named as a party, and he was in bankruptcy. He subsequently filed, on Balderacchi's behalf, a "Notice to Dismiss" the foreclosure action, arguing that it amounted to a violation of the bankruptcy stay, title 11 United States Code section 362.

In April 2016, Balderacchi executed and recorded a grant deed transferring her interest in the Property back to Abrahams. Abrahams then obtained an order from the bankruptcy court declaring that the automatic bankruptcy stay applied to the foreclosure action. CBT promptly filed a notice of stay in the foreclosure action and then sought relief from the stay in Abrahams's bankruptcy proceedings.

As the parties litigated in the foreclosure action and in the bankruptcy court, Abrahams filed three separate, state-court actions against CBT, apparently attempting to collaterally attack the foreclosure proceeding. In one case, Abrahams contended CBT's attempted foreclosure on the Property was illegal and violated the bankruptcy stay.[1] CBT removed that case to bankruptcy court; the bankruptcy court severed the stay violation claim and remanded the state law claims to superior court. On remand, CBT filed a peremptory challenge to assigned Judge Randa Trapp and the case was reassigned to Judge Joan M. Lewis.

In November 2016, Abrahams and Balderacchi (collectively, Appellants) filed a notice of appeal in the foreclosure action (prior appeal number D071563), purporting to appeal from a scheduling order. The notice of appeal also referenced numerous rulings made in the bankruptcy proceedings and the other superior court cases.[2]

Shortly thereafter, the bankruptcy court granted CBT's request for relief from the bankruptcy stay, which allowed the foreclosure action to proceed. CBT filed an amended complaint, adding Abrahams as a defendant in the foreclosure action. CBT then filed and served a supplemental brief and request for judicial notice in support of its motion for appointment of a receiver and obtained a new hearing date. Appellants did not oppose the motion.

Meanwhile, in D071563, this court requested briefing explaining why that appeal should not be dismissed as being taken from a nonappealable order. In lieu of a response, Appellants filed an amended notice of appeal, indicating that the trial court had entered a new scheduling order and arguing the court lacked jurisdiction to do so "and is in violation of the automatic stay." On March 6, 2017, we dismissed the appeal because it was taken improperly from a nonappealable scheduling order.

On March 10, 2017, after a hearing, the trial court granted CBT's unopposed motion and entered an order appointing a receiver.

Appellants filed another notice of appeal, initiating this appeal. In it, they contested, among other things, the dismissal of their prior appeal and the order appointing a receiver, apparently challenging the court's jurisdiction to enter the receiver order due to the then-pending appeal in D071563.

We issued an order allowing this appeal to proceed solely as to the receiver order, and directed Appellants to limit their briefing accordingly. Appellants failed to comply with this order.[3] The brief includes incoherent claims and raises issues not relevant to the receiver order, including issues from proceedings in other state and federal courts. Appellants purport to challenge certain orders entered in the bankruptcy action on the grounds that they impose cruel and unusual punishment and are "void" or otherwise erroneous. They also purport to challenge the disqualification and reassignment orders, a vexatious litigant order, and other orders entered in other superior court actions.[4]

As relevant to the foreclosure action and the receiver order, Appellants reiterate their argument that the receivership order is void because it was entered in violation of the automatic stay, but Appellants now contend the notice of appeal that initiated this action "divested the superior court of jurisdiction." Appellants also argue that CBT has not established it is the lender or is otherwise authorized to request foreclosure on the property. Appellants do not address the merits of the receiver order.

We issued an order acknowledging Appellants' failure to conform with our order limiting briefing to the receiver order and directed CBT to limit its briefing accordingly. CBT noted that Appellants' opening brief "barely even addresses the sole issue in the Appeal, which is the receivership order." CBT argued that the trial court's decision to grant the receiver motion was proper and that the bankruptcy stay did not protect the property from receivership.

Appellants filed motions to augment the record and to extend time, which were denied. CBT also filed a motion to augment the record which was denied. Appellants did not file a reply brief. Just days before oral argument, Appellants again moved to augment the record with documents filed in federal district court and the Ninth Circuit Court of Appeals, a 2014 letter from Bank of America to Mr. Abrahams, and Mr. Abrahams's personal medical records. As there is no indication that any of these documents were part of the record in the proceedings below, we deny Appellants' latest motion to augment. (Cal. Rules of Court, rule 8.155(a)(1)(A) ["the reviewing court may order the record augmented to include . . . [¶] [a]ny document filed or lodged in the case in superior court . . . ."].) We further deny the request on the ground that these documents are not relevant to the sole issue on appeal.

DISCUSSION

I. The Scope of This Appeal

We expressly limited this appeal to the order appointing a receiver, which is subject to interlocutory review, and Appellants' notice of appeal was timely filed as to that order. (Code Civ. Proc., § 904.1, subd. (a)(7); Cal. Rules of Court, rule 8.104(a)(1).) Orders entered in other actions and in other courts are not properly before us. (See Cal. Rules of Court, rule 8.100(a) ["To appeal from a superior court judgment or an appealable order of a superior court, other than in a limited civil case, an appellant must serve and file a notice of appeal in that superior court."], italics added; Code Civ. Proc., § 906 [powers of the reviewing court]; Giles v. Horn (2002) 100 Cal.App.4th 206, 227 [" '[T]he appellate court cannot render 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.' " ' "], italics added.)

II. The Court's Jurisdiction to Enter the Receiver Order

We reject Appellants' contention that the "automatic stay" deprived the trial court of jurisdiction to enter the receiver order. It is unclear which "automatic stay" Appellants attempt to invoke: the bankruptcy automatic stay, title 11 United States Code section 362, or the stay of proceedings in the trial court effected by the perfecting of an appeal, Code of Civil Procedure section 916, subdivision (a). Neither of these provisions deprived the court of jurisdiction here. The bankruptcy court entered an order terminating the bankruptcy stay as to the Property in November 2016, allowing the foreclosure action to proceed. Thus, the bankruptcy stay did not deprive the court of jurisdiction. Nor did Appellants' purported appeal from a nonappealable order in D071563 deprive the court of jurisdiction. Although "the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby" (Code Civ. Proc., § 916, subd. (a)), the purported appeal from an interlocutory, nonappealable order is "ineffectual" and does not divest the trial court of jurisdiction. (Maxwell v. Superior Court (1934) 1 Cal.2d 294, 297; see also Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1409, fn. 4 [collecting cases] ["A sizable body of precedent holds that an appeal from a nonappealable order will not divest the trial court of jurisdiction."]; Pazderka v. Caballeros Dimas Alang (1998) 62 Cal.App.4th 658, 666 [appeal from nonappealable order "was never perfected and the trial court retained jurisdiction over the issue"]; Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 124 ["The trial court is not divested of jurisdiction by an appeal from a nonappealable order."]; Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146-147 [untimely notice of appeal results in an "invalid" appeal, which does not divest trial court of jurisdiction pending appeal].)

Appellants' contention that the current appeal divested the court of jurisdiction is similarly misguided. The appeal from an order appointing a receiver does not stay proceedings in the absence of an undertaking, and there is no indication in the record that Appellants obtained (or even attempted to obtain) an undertaking. (Code Civ. Proc., § 917.5; City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 682 ["Without such a bond or undertaking, the proceedings cannot be stayed."].)

III. The Merits of the Receiver Order

We also reject any challenge to the receiver order on the merits. The trial court is authorized to appoint a receiver in an action by a secured lender for specific performance of an assignment of rents provision in a deed of trust. (Code Civ. Proc., § 564, subd. (b)(11).) We review an order appointing a receiver for abuse of discretion. (People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51, 157.)

CBT's motion for appointment of a receiver was unopposed. The order granting the motion acknowledged this and acknowledged the court's authority to appoint a receiver in cases such as this one, where CBT seeks specific performance of the assignment of rents provision contained in the deed of trust. The court indicated that CBT's proffered evidence—including the note, the deed of trust, and the grant deeds transferring the Property from Abrahams to Balderacchi—established that Abrahams was in default and CBT was presumptively entitled to a receiver under the law and the loan documents.

By failing to file an opposition below, Appellants waived any challenge to the entry of the receiver order on the ground that CBT is not the lender. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 [" 'issues not raised in the trial court cannot be raised for the first time on appeal' "]; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400 ["[a]n appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method"].)

Even if Appellants had raised this argument below, it would be unavailing. The trust deed provides that it is binding on the successors and assigns of both the lender and the borrower. CBT provided a sworn declaration stating that the bank was the successor-in-interest to ABN AMRO Mortgage Group, Inc., the original lender and party to the deed of trust. In support of this position, CBT submitted a copy of the publicly recorded assignment of the trust deed, which indicated that the original lender merged with Bank of America, N.A., which subsequently assigned the trust deed to CBT. Appellants have not demonstrated why this evidence is insufficient to establish that CBT is the successor-in-interest to the original lender on the deed of trust.

On this record, there is no indication of error.

DISPOSITION

The receiver order is affirmed. CBT is entitled to costs on appeal.

GUERRERO, J.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.