Opinion
B223790
10-06-2011
ONE WEST BANK, FSB, et al., Plaintiffs, Cross-defendants and Respondents, v. Y. GINA LISITSA, as Trustee, Defendant, Cross-complainant and Appellant.
Lisitsa Law Corporation and Payam Mahram for Defendant, Cross-complainant and Appellant. >>>Page & Jorgensen and Jeanne M. Jorgensen for Plaintiffs, Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
(Los Angeles County Super. Ct. No. BC 385826)
APPEAL from a judgment of the Superior Court of Los Angeles County, Zaven V. Sinanian, Judge. Dismissed in part; affirmed in part.
Lisitsa Law Corporation and Payam Mahram for Defendant, Cross-complainant and Appellant.
Page & Jorgensen and Jeanne M. Jorgensen for Plaintiffs, Cross-defendants and Respondents.
Appellant Y. Gina Lisitsa appeals from a judgment following the trial court's orders granting the motion of respondents OneWest Bank, FSB and Deutsche Bank National Trust Company (collectively, the Bank) for summary adjudication of issues as to the third, fourth and fifth causes of action of the Bank's second amended complaint and sustaining the Bank's demurrer to appellant's first amended cross-complaint without leave to amend. The judgment provides that a 2007 foreclosure sale and trustee's deed pursuant to which appellant ostensibly acquired title to a high-rise condominium in Marina del Rey for the price of $11,687 be set aside and cancelled, and for the judicial foreclosure of the Bank's first priority purchase money deed of trust on the condominium. Appellant contends (1) the trial court should not have granted the Bank's motion for summary adjudication and (2) the trial court should not have sustained the Bank's demurrer to appellant's first amended cross-complaint without leave to amend.
We conclude a subsequent judicial foreclosure and sale of the subject property pursuant to the judgment has rendered the appeal as to the grant of summary adjudication moot, and we otherwise affirm.
FACTUAL AND PROCEDURAL HISTORY
This dispute arises from a series of real estate dealings involving the condominium. In January 2007, Morris Rothe obtained two loans totaling $750,000 from IndyMac Bank, FSB (IndyMac) and purchased the condominium in question for that amount. The loans were secured by two deeds of trust on the condominium. Rothe failed to make mortgage payments on the loans and failed to pay the homeowner's assessments and ground rents on the condominium.
Because of Rothe's failure to pay the homeowner's assessments and ground rents, Condominium Lien and Collection Services (CLCS) initiated a foreclosure process and conducted a foreclosure sale in Van Nuys on October 24, 2007. The trustee's deed upon sale listed the amount of unpaid debt as $11,686.84. Edward Akselrod bought the property for $11,687 and conveyed it to appellant, who took title.
In February 2008, IndyMac filed a complaint to set aside the trustee's sale and for restitution based on unjust enrichment. In June 2008, IndyMac filed a first amended complaint against appellant seeking (1) quiet title, (2) declaratory relief, (3) judicial foreclosure of IndyMac's senior deeds of trust, (4) to set aside the trustee's sale, (5) to cancel the trustee's deed, (6) damages for wrongful foreclosure, and (7) restitution for unjust enrichment. Appellant filed a cross-complaint alleging she was entitled to indemnity and/or contribution for the amounts paid to IndyMac. The trial court struck appellant's original cross-complaint, on the ground that appellant did not allege any concrete facts indicating that IndyMac created any contributory and indemnification rights sought by appellant. Appellant filed an amended cross-complaint, which was substantially identical to the original, and the trial court sustained a demurrer filed by IndyMac's conservator without leave to amend. Appellant's amended cross-complaint was ordered dismissed.
IndyMac apparently was in bankruptcy at this point. The Federal Deposit Insurance Corporation acted as conservator for IndyMac.
The Bank, as successor to IndyMac's interest, filed a second amended complaint on October 9, 2009. On November 12, 2009, the Bank filed a motion for summary adjudication of issues as to its second amended complaint. On February 18, 2010, the trial court granted the motion for summary adjudication as to the Bank's third, fourth and fifth causes of action. The Bank then dismissed its first, second, sixth and seventh causes of action without prejudice, leaving no undecided issue remaining. On March 22, 2010, the trial court entered a judgment for the Bank. The court set aside the foreclosure sale, cancelled appellant's deed of trust, reinstated the Bank's senior liens and ordered a judicial foreclosure and sheriff's sale of the property. Appellant filed this appeal on April 6, 2010.
While this appeal was pending, a writ of sale was issued on April 26, 2010, pursuant to the trial court judgment. The sale of the condominium was conducted on January 26, 2011. The Bank was the successful bidder at the sale.
The Bank filed a motion to dismiss the appeal in this case, arguing that, pursuant to Code of Civil Procedure section 701.680, the sale of the subject property has rendered the appeal moot because neither Rothe nor appellant commenced an action to set aside the sale within 90 days after the date of the sale. Appellant does not disagree, but she contends she is entitled to receive compensation for the $11,687 and for improvements she made to the condominium. We deferred ruling upon the motion to dismiss pending consideration of the appeal.
All future undesignated statutory references are to the Code of Civil Procedure.
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CONTENTIONS
Appellant argues (1) she was a bona fide purchaser for value; (2) the Bank's deeds of trust were junior to that of the homeowner's association, and thus the foreclosure sale should not have been set aside; and (3) the court should fashion some method to return the money appellant spent in purchasing and improving the property.
In its motion to dismiss the appeal, the Bank argues that the January 26, 2011 sale of the condominium renders this appeal moot. The Bank asserts that pursuant to section 701.680 an action to set aside the foreclosure sale must be commenced within 90 days of the sale in order to challenge the sale. The Bank contends that because no such action was brought, the sale is now final and may not be set aside for any reason, and this appeal is therefore moot. Alternatively, the Bank argues the trial court properly entered a judgment in favor of the Bank.
DISCUSSION
Generally, an appeal should be dismissed as moot when an intervening event makes it impossible for the appellate court to give appellant effective relief. (Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 77-78.) However, "[o]n a motion to dismiss an appeal where it is necessary to review the record, . . . the motion will be denied, and any contention that the question has become moot will be considered on its merits." (Gogerty v. Coachella Valley Junior College Dist. (1962) 57 Cal.2d 727, 729.)
"The perfecting of an appeal shall not stay enforcement of the judgment or order [which] directs the sale . . . of real property . . . unless an undertaking in a sum fixed by the trial court is given." (§ 917.4.) Appellant did not post an undertaking. Accordingly, a sale was conducted on January 26, 2011, and the Bank was the successful credit bidder.
The sale of real property to enforce a money judgment may not be set aside. (§ 701.680, subd. (a).) The exception to this rule is if "the sale was improper because of irregularities in the proceedings, because the property sold was not subject to execution, or for any other reason." (§ 701.680, subd. (c).) When such exception applies and the judgment creditor was the purchaser at the sale, "[t]he judgment debtor, or the judgment debtor's successor in interest, may commence an action within 90 days after the date of sale to set aside the sale . . . ." (§ 701.680, subd. (c)(1).)
In First Federal Bank of California v. Fegen (2005) 131 Cal.App.4th 798, the court dismissed as moot an appeal on facts similar to those present here. The plaintiff bank perfected a lien on defendant's dwelling pursuant to a money judgment. The bank obtained an order for a sale of the dwelling and bought the dwelling at the sale. The defendant appealed the order for sale of dwelling. (Id. at p. 800.) The appellate court held that because the defendant neither posted an undertaking staying enforcement of the order pursuant to section 917.4, nor filed an action challenging the sale of the dwelling within 90 days after the sale, the sale of the property rendered the appeal moot. (Fegen, at p. 801.)
Here, neither Rothe nor appellant commenced an action to set aside the sale. Moreover, appellant has not contended there were any irregularities in the sale itself. It is unclear how this court might fashion effective relief. Appellant states in her opposition to the motion to dismiss the appeal that "if Indy[M]ac (or any party involved in this Appeal or the case below) agrees to simply pay the $11,687.00 that Appellant paid to obtain the property, Appellant will stipulate to have this Court reverse the judgment with an order that the lower court dismiss the Action." She also claims without citation to any authority that the court can order a limited remand so that the trial court can order the bank to pay her the money that she paid to obtain and improve the property.
There are only three recognized exceptions allowing an appellate court to retain an appeal even when moot: (1) when the case poses an issue of broad public interest likely to recur, (2) the same controversy between the parties is likely to recur, or (3) there remains a material question for the appellate court's determination. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶¶ 5:31-5:33.1, at pp. 5-12 to 5-15.)
Appellant does not claim to come within these three exceptions.
Finally, we address appellant's contention that the court erred in striking both her original cross-complaint and her amended cross-complaint, which was almost identical to the original. We disagree.
After reviewing the original cross-complaint, the court said in its August 10, 2009 minute order, "There is not a single allegation of concrete fact concerning what Indymac is alleged to have done to create the contributory and indemnification rights Lisitsa seeks." At that time appellant was given 30 days in which to "refile a conforming indemnity and contribution cross-complaint." Appellant filed an amended cross-complaint significantly similar to the original and therefore the court sustained a demurrer filed by IndyMac's conservator without leave to amend. The amended cross-complaint was subsequently ordered dismissed. We have reviewed the record and determined the trial court did not err in dismissing the cross-complaint. Nothing in the record suggests a link between appellant and IndyMac.
Appellant failed to allege sufficient facts that would lead to the conclusion that cross-defendants owed any obligation for indemnity or contribution to appellant.
DISPOSITION
The appeal as to the grant of summary adjudication is dismissed as moot, and the judgment is otherwise affirmed. Appellant is to bear costs on appeal.
FLIER, J. WE CONCUR:
RUBIN, Acting P. J.
GRIMES, J.