Filed 10/17/18 Ng v. Trident Financial Group, Inc. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FIVE
| SAMUEL NG et al., Plaintiffs, Appellants, and Cross- Respondents, v. TRIDENT FINANCIAL GROUP, INC. et al., Defendants, Respondents, and Cross-Appellants. |
A150837
(Contra Costa County Super. Ct. No. MSC1601641)
|
The former residence of plaintiffs, appellants, and cross-respondents Samuel Ng and Angela Leung (plaintiffs) on Acalanes Avenue in Lafayette (Property) was sold in foreclosure proceedings in June 2016. Defendant, respondent, and cross-appellant Six P.I.D., Inc. (SPID) purchased the Property at the foreclosure sale.
In August 2016, plaintiffs filed a complaint seeking to quiet title to the Property. The complaint was brought against Trident Financial Group, Inc. (Trident), the lender; “[a]ll persons known and/or unknown claiming any legal or equitable right, title, estate, lien or interest in the property described in the complaint adverse to [p]laintiff[s’] title or any cloud on [p]laintiff[s’] title thereto” (capitalization altered); and ten Doe defendants. In September, default was entered against Trident.[1] In November, plaintiffs obtained a judgment quieting title to the Property in their favor (Judgment), obtained an order setting aside the deed of trust that was the basis for the foreclosure sale (Order), and recorded the judgment and order.
In December 2016, respondent SPID filed an answer to plaintiffs’ quiet title action and a cross-complaint. In January 2017, SPID filed a motion to set aside the Judgment and Order. SPID argued the Judgment and Order should be vacated on the ground of “surprise” under Code of Civil Procedure section 473, subdivision (b).[2] SPID also argued the Judgment and Order were void because plaintiffs did not serve SPID and because plaintiffs did not comply with the statutory procedures applicable to quiet title actions, including service by publication. Plaintiffs did not file an opposition to the motion. In March 2017, the trial court granted the motion, setting aside the Judgment and Order.
Plaintiffs appealed from the trial court’s order setting aside the Judgment and Order.[3] Plaintiffs’ appeal fails at the outset because they failed to oppose SPID’s motion below. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264–265; In re Dakota S. (2000) 85 Cal.App.4th 494, 501.) Plaintiffs cite no authority they can assert their claims on appeal where they did not object below.
On the merits, plaintiffs contend the trial court abused its discretion because defendant Trident did not object to entry of the Judgment and Order or request that they be set aside. However, although Trident was the only defendant identified by name in plaintiffs’ complaint and the Judgment, the complaint and Judgment were also directed against “[a]ll Persons Known and/or Unknown Claiming Any Legal Or Equitable Right, Title Estate, Lien or Interest In The Property Described In The Complaint . . . .” Indeed, plaintiffs were required to name all persons claiming an interest in the Property as defendants to their quiet title action. (§§ 762.010, 762.020, 762.060.) Moreover, section 762.050 provides that, “Any person who has a claim to the property described in the complaint may appear in the proceeding. Whether or not the person is named as a defendant in the complaint, the person shall appear as a defendant.” Plaintiffs cite no authority supporting their apparent claim that SPID could not move to vacate the Judgment and Order under section 473, subdivision (b).
The trial court’s order is affirmed. Costs on appeal are awarded to respondent SPID.
SIMONS, J.
We concur.
JONES, P.J.
NEEDHAM, J.
(A150837)
[1] Trident is not a party on appeal.
[2] All undesignated statutory references are to the Code of Civil Procedure. Section 473, subdivision (b) provides in part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
[3] SPID also filed a “protective cross-appeal,” alleging that the Judgment and Order are void. Because we reject plaintiffs’ appeal, we need not address the cross-appeal.
