Redwood Mortgage Investors VIII v. Gilerman CA2/1

Filed 1/24/22 Redwood Mortgage Investors VIII v. Gilerman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
REDWOOD MORTGAGE B306199
INVESTORS VIII,
(Los Angeles County
Plaintiff, Cross-defendant and Super. Ct. No. 19STCV46014)
Respondent,
v.
ERINA GILERMAN,
Defendant, Cross-complainant
and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David J. Cowan, Judge. Dismissed.
The Sands Law Group, Thomas D. Sands; Michael Yesk for
Defendant, Cross-complainant and Appellant.
Law Office of Benjamin R. Levinson and Benjamin R.
Levinson for Plaintiff, Cross-defendant and Respondent.
____________________________
Erina Gilerman appeals from the denial of a temporary
restraining order (TRO) against a foreclosure sale of two
properties securing her debt to respondent Redwood Mortgage
Investors VIII (Redwood). Gilerman concedes in her appellate
briefing that the foreclosure sale took place two days after the
trial court denied her TRO. This appeal therefore is moot and we
dismiss it.
FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Redwood lent Gilerman $3 million in return for a
promissory note secured by two deeds of trust against properties
owned by Gilerman. On December 20, 2019, Redwood filed a
complaint for judicial foreclosure of the deeds, alleging default by
Gilerman. Gilerman cross-complained on February 10, 2020,
alleging wrongdoing by Redwood related to the refinancing of the
loan.
Also in February 2020, Redwood served Gilerman notice of
a nonjudicial foreclosure sale of the properties to take place on
March 24, 2020. The sale was postponed several times at
Redwood’s request, and ultimately was set for June 4, 2020.
On May 29, 2020, Gilerman filed an ex parte application for
a TRO blocking the upcoming June 4 foreclosure sale, and also
requested an order to show cause regarding a preliminary
injunction against the sale. Gilerman argued the sale was in
violation of several orders issued in response to the COVID-19
pandemic, including the Judicial Council’s suspension of judicial
foreclosure proceedings, the Governor’s order limiting
foreclosures, the Los Angeles County Department of Public
Health’s order prohibiting gatherings of certain sizes, and the
Governor’s stay-at-home order. Gilerman further contended
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Redwood had not provided proper notice of the sale pursuant to
Civil Code section 2924g, subdivision (d).
Redwood filed a written opposition to Gilerman’s ex parte
application, and both parties appeared telephonically for
argument before the trial court.
After hearing argument and taking the matter
under submission, the trial court issued a written order on
June 2, 2020, denying the TRO and the request for an order to
show cause regarding a preliminary injunction. The court ruled
the various pandemic-related orders were inapplicable to the
particular nonjudicial foreclosure sale at issue. The court also
found that Redwood had provided adequate notice of the sale
both to Gilerman and to the general public.
In addition to the above findings that Gilerman was
unlikely to prevail on the merits, the trial court found Gilerman
was not likely to suffer hardship should the sale go forward. The
court found no evidence that Gilerman would lose equity in the
properties by virtue of the sale. Also, “though the properties to be
foreclosed upon are residential, there is no evidence that
Gilerman has any personal attachment to these, or that she
resides there, to suggest damages would be an inadequate
remedy were wrongful action ultimately determined here. In
fact, the evidence was that Gilerman’s interest in these
properties was for investment purposes.”
Gilerman filed a notice of appeal from the trial court’s
denial that same day.
Although not in the appellate record, in her appellate
briefing, Gilerman represents that after her TRO was denied,
“the properties were purchased at the nonjudicial foreclosure
proceeding by way of a credit bid” on June 4, 2020, with Redwood,
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the foreclosing lender, as the buyer. Redwood similarly
represents in its respondent’s brief that “[t]he two nonjudicial
foreclosures of the two properties were completed . . . .”
Gilerman filed a complaint on June 5, 2020, seeking to
set aside the sale.1 Gilerman also sought a second TRO on
June 8, 2020, preventing Redwood and others from executing
trustee’s deeds and taking physical possession of the properties
following the foreclosure sale. In opposition to the second TRO
request, a general partner of Redwood submitted a declaration
stating the trustee’s deeds had already been recorded as of June
8, 2020. The trial court denied the second TRO request as moot.
Gilerman challenged the denial of the second TRO with a petition
for a writ of mandate filed June 10, 2020, which we summarily
denied on June 30, 2020.
DISCUSSION
Redwood argues this appeal is moot given Gilerman’s
concession in her appellate briefing that the foreclosure sale she
sought to enjoin has now taken place. We agree.
“An appeal from an order denying a temporary restraining
order or preliminary injunction will not be entertained after the
act sought to be enjoined has been performed. [Citation.] ‘An
appeal should be dismissed as moot when the occurrence of
events renders it impossible for the appellate court to grant
appellant any effective relief. [Citation.]’ [Citation.]” (Ragland
1 The information in this paragraph comes from the record
in Gilerman v. Superior Court, case No. B306246, a writ
proceeding initiated by Gilerman. We took judicial notice of that
record on our own motion in a separate order.
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v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 208
(Ragland).)
In Ragland, the trial court denied a preliminary injunction
against a foreclosure sale of a home, and the sale was conducted
the next day. (Ragland, supra, 209 Cal.App.4th at pp. 190–191.)
Although the homeowner did not properly file a notice of appeal
from the order denying the injunction, the appellate court noted
that had she done so, “the sale of her home at foreclosure would
have rendered the appeal moot.” (Id. at p. 208.)
We may construe Gilerman’s concession in her appellate
briefing that the foreclosure sale took place as an admission.
(Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1186, fn. 4.)
Similarly, the record in case No. B306246 of which we have taken
judicial notice indicates the sale took place—indeed, Gilerman
filed a complaint seeking to set aside that sale. Thus, under the
reasoning of Ragland, this appeal is moot.
Gilerman claims, without citation to supporting evidence,
that her appeal is not moot because she “maintains possession of
the Properties” and “title to the Subject Properties is still in the
hands of [Redwood].” Gilerman contends we therefore may
simply undo the sale and “restore the status quo of the parties” as
of June 2, 2020. She cites case law purportedly establishing
that a party may challenge a foreclosure sale after the fact.
(See Royal Thrift & Loan Co. v. County Escrow, Inc. (2004)
123 Cal.App.4th 24; 6 Angels, Inc. v. Stuart-Wright Mortgage,
Inc. (2001) 85 Cal.App.4th 1279; Wellborn v. Wellborn (1945)
67 Cal.App.2d 540.)
None of Gilerman’s cited cases involved an appeal from the
denial of a TRO or preliminary injunction blocking a foreclosure
sale, and therefore none stands for the proposition that an
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appellate court may revive a moot TRO by voiding the sale the
TRO was intended to prevent. Undoing a completed foreclosure
sale a year and a half after it took place is a much taller order
than temporarily halting a sale before it has gone forward.
Restoring the status quo of June 2, 2020, as Gilerman suggests
we do, could require voiding deeds, restoring possession, and
other acts far in excess of what Gilerman sought in her original
TRO application. We of course may not grant greater relief than
was requested of the trial court.
Even assuming arguendo we had the power to restore the
status quo, we are in no position to do so given that we do not
have before us a full record of what has transpired in the year
and a half since the sale took place, including who currently has
possession of or title to the properties. These are issues the trial
court may address in adjudicating Gilerman’s later filed
complaint seeking to set aside the sale, a matter on which we
express no opinion.
Gilerman argues that the cases upon which Ragland relied
concerned “attempts at stopping elections” rather than
foreclosure sales. To the extent Gilerman is suggesting Ragland
therefore was wrongly decided, we disagree. The general
principle that “[a]n appeal from an order denying a temporary
restraining order or preliminary injunction will not be
entertained after the act sought to be enjoined has been
performed” (Ragland, supra, 209 Cal.App.4th at p. 208), is broad
enough to encapsulate elections and foreclosure sales. Gilerman
offers no rationale for treating elections and foreclosure sales
differently for purposes of mootness analysis.
Gilerman asks us to decide whether the foreclosure sale is
void for reasons arising after the trial court issued the order that
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is the subject of this appeal. Those arguments are not properly
before us and we express no opinion on them.
DISPOSITION
The appeal is dismissed as moot. Redwood Mortgage
Investors VIII is awarded its costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, Acting P. J.
We concur:
CHANEY, J.
CRANDALL, J.*
* Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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