Gonsalves v. Deutsche Bank Nat. Trust Co. CA2/1 ( 2013 )

Filed 7/16/13 Gonsalves v. Deutsche Bank Nat. Trust Co. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE
MARY R. GONSALVES, B239671
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC464602)
v.
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles 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 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. We affirm the judgment.
BACKGROUND
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 promissory note which was secured by 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 covenant of good faith and fair dealing 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.
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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.1 Gonsalves did not oppose the motion to
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.”
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.
DISCUSSION
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.
1 Undesignated statutory references are to the Code of Civil Procedure.
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Gonsalves argues that her failure to file opposition to Deutsche Bank‟s demurrer
was “justified” 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 994for 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.” (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.”
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
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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.]” (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.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
MALLANO, P. J.
We concur:
ROTHSCHILD, J.
CHANEY, J.
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