Opinion
G053840
05-15-2018
GIGI E. RUEGSEGGER, Plaintiff and Appellant, v. MTGLQ INVESTORS, L.P., Defendant and Respondent.
Law Offices of David N. Lake and David N. Lake; Alan S. Yockelson for Plaintiff and Appellant. Wright, Finlay & Zak, Jonathan D. Fink and Bradford E. Klein for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2011-00442197) OPINION Appeal from an order of the Superior Court of Orange County, Deborah C. Servino, Judge. Affirmed. Law Offices of David N. Lake and David N. Lake; Alan S. Yockelson for Plaintiff and Appellant. Wright, Finlay & Zak, Jonathan D. Fink and Bradford E. Klein for Defendant and Respondent.
Gigi E. Ruegsegger appeals from an order dismissing her action against MTGLQ Investors (MTGLQ) on the operative fourth amended complaint. Ruegsegger argues the trial court erred by failing to enter judgment on MTGLQ's default on the first amended complaint. We disagree and affirm the order.
FACTS
The record on appeal does not include a reporter's transcript.
This is the third time this case is before us. We need not provide a detailed discussion of the substantive facts as they can be found in Ruegsegger v. CitiMortgage, Inc. (Feb. 16, 2017, G052454) [nonpub. opn.] (Ruegsegger I), and Ruegsegger v. Homeward Residential, Inc. (Sept. 19, 2017, G052879) [nonpub. opn.].
Suffice it to say, when Ruegsegger received a notice of trustee's sale on the family home, she filed a verified complaint against Mortgageit, Inc., CitiMortgage, Inc., CR Title Services, Inc., Mortgage Electronic Registration Systems Inc. (MERS), Litton Loan Servicing (Litton), and American Home Mortgage Servicing, Inc. (American) alleging numerous causes of action. A week later, CitiMortgage executed an assignment of deed of trust in favor of MTGLQ, which was later recorded. (Ruegsegger I, supra, G052454.)
Following successful demurrers from other defendants, Ruegsegger filed a verified first amended complaint (FAC) against the same defendants except Litton but adding MTGLQ. The July 2011 FAC alleged 14 causes of action, including the following causes of action against MTGLQ: unfair business practices (third); breach of the covenant of good faith and fair dealing (fourth); declaratory relief (fifth); set aside notice of default and notice of trustee sale (sixth); void or cancel assignment of deed of trust (seventh); quiet title (eighth); slander of title (ninth); and injunctive relief (thirteenth). The FAC was incorrectly served on MTGLQ Investments, LP rather than MTGLQ Investors, LP.
MTGLQ did not respond to the FAC. Ruegsegger filed a request for entry of default as to MTGLQ and served it on MTGLQ. In September 2011, the court entered MTGLQ's default. Ruegsegger did not request a prove-up hearing, and MTGLQ did not move to set aside the default.
The following month, Ruegsegger filed a verified second amended complaint (SAC) against the same defendants except Mortgageit. The SAC alleged seven causes of action, including the following against MTGLQ: unfair business practices (third); declaratory relief (fourth); set aside notice of default and notice of trustee sale (fifth); void or cancel assignment of deed of trust (sixth); and quiet title (seventh). Ruegsegger did not serve the SAC on MTGLQ.
A few months later, in January 2012, Ruegsegger filed a verified third amended complaint (TAC) against the same defendants. The TAC alleged seven causes of action, including the following against MTGLQ: unfair business practices (third); declaratory relief (fourth); set aside notice of default and notice of trustee sale (fifth); void or cancel assignment of deed of trust (sixth); and quiet title (seventh). Ruegsegger did not serve the SAC on MTGLQ.
Nearly three years later, November 2014, Ruegsegger filed a fourth amended complaint (4AC) against the same defendants. The 4AC alleged three causes of action, including one against MTGLQ, unfair business practices (third). The 4AC does not include a quiet title cause of action. Ruegsegger did not serve the 4AC on MTGLQ.
In April 2015, the trial court granted American and MERS's motion for judgment on the pleadings and we affirmed the court's ruling. (Ruegsegger I, supra, G052454.) The California Supreme Court denied review. (Ruegsegger I, supra, G052454, review den. May 17, 2017, S240850.) A couple weeks later, the trial court granted CR Title Services' motion for summary judgment. Five months later, the trial court dismissed the action against CitiMortgage on Ruegsegger's request. MTGLQ was the only remaining defendant.
At a hearing on December 18, 2015, Ruegsegger requested the trial court set a default prove-up hearing, which the court granted. At the hearing a few days later, Ruegsegger offered evidence and testimony on the quiet title cause of action. The court took the matter under submission. Later the same day, the trial court issued an order to show cause (OSC). The court questioned whether the default prove-up hearing was proper because Ruegsegger failed to properly serve the FAC and MTGLQ was not in default. The court added that even if default was proper, the SAC superseded the FAC because each amended complaint had substantive changes that "'opened'" the default as to MTGLQ even though it did not respond to the FAC. The court concluded the 4AC was the operative pleading and because MTGLQ was not in default as to that complaint, the default prove-up hearing was improper.
On December 21, 2015, the trial court issued an OSC as follows: "[T]his [c]ourt orders [Ruegsegger] to show cause why this matter should not be dismissed for delay in prosecution under Code of Civil Procedure sections 583.410 to 583.430, based upon [Ruegsegger's] (1) failure to serve the [4AC] upon . . . MTGLQ . . . [citation]; (2) failure to file a proof of service of summons and the [4AC on] . . . MTGLQ . . . [citation]; and/or (3) failure to request entry of default against . . . MTGLQ . . . after the [4AC] was filed [citation]. [Ruegsegger] is further ordered to show cause why the matter should not be dismissed because the action was not brought to trial within five years after the action was commenced against [MTGLQ] on January 20, 2011. [Citations.]" The court set the matter for hearing in February 2016.
Before the OSC hearing, Ruegsegger filed a declaration from David N. Lake, her attorney. Lake stated the FAC was properly served on MTGLQ Investors and the proof of service had been corrected. Lake added that SAC included no substantive changes from the FAC, and in fact the claims against MTGLQ "were narrowed and reduced." Lake did not address the five-year rule (Code Civ. Proc., § 583.310), or its exceptions (Code Civ. Proc., § 583.340).
On appeal, MTGLQ does not assert it was not in default because service of the FAC was improper.
A few days later, on February 5, 2016, the trial court ruled as follows: "[The] [c]ourt finds the matter should be dismissed for delay in prosecution under Code of Civil Procedure sections 583.410 to 583.430, based upon [Ruegsegger's] (1) failure to serve the [4AC] upon . . . MTGLQ . . . (Cal. Rules of Court, [r]ule 3.110); (2) failure to file a proof of service of summons and the [4AC] [on] . . . MTGLQ . . . (Code Civ. Proc., § 583.210); and/or (3) failure to request entry of default against . . . MTGLQ . . . after the [4AC] was filed (Cal. Rules of Court, [r]ule[] 3.110)[.] [¶] The [c]ourt orders MTGLQ . . . be dismissed without prejudice on [the 4AC]."
DISCUSSION
Ruegsegger asserts the FAC is the operative complaint and argues the trial court erred by refusing to enter judgment on MTGLQ's default under the FAC's eighth cause of action for quiet title. We disagree.
A plaintiff must bring an action to trial within five years of commencing it. (Code Civ. Proc., § 583.310.) If the plaintiff does not meet this deadline, dismissal is mandatory unless as relevant here it was impossible, impracticable, or futile to bring the action to trial. (Code Civ. Proc., §§ 583.360, 583.340; Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1174.) "We do not review the trial court's reasoning, but rather its ruling. A trial court's order is affirmed if correct on any theory, even if the trial court's reasoning was not correct. [Citations.]" (J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16.)
Here, although the trial court did not expressly rely on the five-year rule in its order dismissing Ruegsegger's 4AC, the court did mention it in the OSC. It is of no consequence as we review the trial court's ruling, not its reasoning. Ruegsegger filed the FAC on January 20, 2011. She concedes the five-year period ended on January 20, 2016, and she did not "bring" the action to trial against MTGLQ within five years.
However, Ruegsegger, for the first time in her reply brief, claims it would have been impossible to do so because MTGLQ was in default. Ruegsegger requested and the trial court entered default against MTGLQ in September 2011. When she requested a default prove-up hearing in late 2015, MTGLQ was the only remaining defendant. She had not served MTGLQ with the SAC, TAC, or 4AC, and the five-year deadline was looming. We cannot say Ruegsegger exercised reasonable diligence in prosecuting her case within the statutory time constraints and therefore her claim of impossibility is meritless. (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1270 [reasonable diligence a guideline in evaluating impossibility, impracticability, or futility].) Thus, the trial court did not err dismissing MTGLQ from the 4AC.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
O'LEARY, P. J. WE CONCUR: FYBEL, J. IKOLA, J.