Opinion
A145803
03-28-2018
LUMACK BELLOT Plaintiff and Appellant, v. THE BANK OF NEW YORK MELLON, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG14733932)
The dispositive issue of this appeal is whether the trial court abused its discretion by granting an ex parte application for judgment and dismissal of plaintiff Lumack Bellot's action, brought under Code of Civil Procedure section 581, subdivision (f)(2) and California Rules of Court, rule 1.1320(h) by defendants The Bank of New York Mellon, Bank of America, N.A., ReconTrust Company, N.A. and Mortgage Electronic Registration Systems, Inc. (collectively, defendants). Defendants based their application on the ground that plaintiff had not timely filed his first amended complaint after the trial court had granted defendants' demurrer to plaintiff's original complaint.
Defendants did not present sufficient evidence to the trial court that plaintiff failed to timely file his first amended complaint, the court's files indicate plaintiff timely filed it and defendants concede on appeal that plaintiff timely filed it. Defendants defend the trial court's ruling and judgment in their favor on other grounds, none of which were presented below or relied on by the trial court. Therefore, we conclude the trial court abused its discretion in granting defendants' ex parte application. We vacate the court's rulings and remand this matter to the trial court for further proceedings.
BACKGROUND
In July 2014, plaintiff filed a lawsuit against defendants alleging numerous causes of action in a mortgage loan dispute. Defendants demurred to the complaint. In a November 6, 2014 order (November 6 order), the trial court sustained defendants' demurrer, granting plaintiff leave to amend several causes of action and setting deadlines for both defendants' service of its order and plaintiff's filing and serving of a first amended complaint. As relevant to the present circumstances, the court gave defendants five days from the date of the court clerk's certificate of mailing of the order to serve it on plaintiff. The court gave plaintiff ten days after the date of service to file and serve his first amended complaint. The court stated, "[i]f Plaintiff fails to do so, Defendants may apply ex parte for a dismissal pursuant to Code of Civil Procedure section 581[, subd.] (f)(2)." The court clerk's certificate of mailing of the order is dated November 7, 2014.
Six and a half months later, on May 19, 2015, defendants applied ex parte for a judgment in their favor and dismissal with prejudice of plaintiff's action under Code of Civil Procedure section 581, subdivision (f)(2) and California Rules of Court, rule 3.1320(h). In their ex parte application, defendants stated only one ground for dismissal of plaintiff's action: "[Defendants] hereby apply ex parte for an order dismissing the entire action and entering judgment in their favor based upon the failure by [plaintiff] to file an amended complaint within the time period prescribed by this Court." They asserted that "good cause exists to dismiss the action and enter judgment in favor of Defendants because Plaintiff has failed to amend his operative pleading within the time allowed by the Court." Defendants stated their application was based on their notice, their memorandum of points and authorities, the declaration of their attorney and the court's files.
In their accompanying brief, defendants again raised only plaintiff's purported failure to timely file a first amended complaint. Defendants contended that plaintiff had "effectively abandoned this litigation" because, following the court's order sustaining defendants' demurrer with leave to amend, plaintiff "failed to amend within the period prescribed. Well over five months have passed since Defendants filed and served the notice of entry of order granting Plaintiff ten days' leave to file an amended complaint. In that time, Plaintiff has not filed any amended complaint" nor provided any explanation for his failure to do so to defendants upon their counsel's inquiry.
Defendants proceeded to summarize the procedural facts, supporting their contentions with citation to their counsel's declaration in support of their ex parte application. They contended that it did not "appear" that plaintiff had filed any first amended complaint, an assertion they based on their counsel's declaration statement, "I have neither seen, nor been served with any First Amended Complaint from Plaintiff in this case." In their legal argument section (entitled, "The Court Should Dismiss Plaintiff's Action with Prejudice Based on Their Failure to File a First Amended Complaint"), they asserted the trial court had previously sustained their demurrer and granted plaintiff "ten days to file any amended complaint from the date of notice of entry of order. Notice of Entry of Order was filed and served on December 17, 2014. As of the date of this application, Plaintiff has not filed any first amended complaint following the Notice of Entry of Order." For this reason, they requested dismissal of the action and entry of judgment in their favor.
Defendants' counsel also stated in his declaration that he wrote to plaintiff's counsel on January 6, 2015, by U.S. mail and email stating that he had not received a first amended complaint, asking if one had been or was to be filed, and requesting service if one was filed. He attached a copy of this letter to his declaration and asserted that he had not received a response to that communication.
Defendants' counsel further stated in his declaration that the day before the ex parte hearing, he provided notice of his ex parte application to plaintiff's counsel by voicemail and email at 9:45 a.m. and 9:56 a.m. respectively. He attached the email to his declaration. It states in relevant part, "Defendants . . . will be appearing ex parte tomorrow morning . . . seeking dismissal for failure to timely file a first amended complaint." Defendants' counsel further stated that as of the writing of his declaration on May 18, 2015, he had not received any response from plaintiff's counsel to his voicemail or email.
The next day, May 19, 2015, defendants' counsel appeared ex parte and presented defendants' application to the court. Plaintiff's counsel did not appear and there is no indication in the record that he notified the court that plaintiff opposed the application. The court modified defendants' proposed order, executed it and filed it as both an order and a judgment. The court ordered that for "good cause," defendants' application was granted, the action was dismissed with prejudice, and judgment was entered in defendants' favor.
The next day, May 20, 2015, before defendants served the court's order and judgment, plaintiff's counsel filed via facsimile plaintiff's opposition to defendants' ex parte application, supported by counsel's declaration. Plaintiff's counsel contended that plaintiff had in fact timely filed a first amended complaint on November 19, 2014, and attached to his declaration a printout of the court's register of action for the case as proof. He further contended that plaintiff served this first amended complaint on defendants' counsel that same day, November 19, 2014, as also indicated in the register of action. However, plaintiff asserted, because the first amended complaint and its exhibits totaled 329 pages, the facsimile was "problematic." To ensure that defendants' counsel received all of the pages of the first amended complaint, plaintiff's counsel's law office also emailed a courtesy copy of the first amended complaint to defendants' counsel the next day, November 20, 2014, as indicated by a one-page email exchange attached to plaintiff's counsel's declaration. In it, a legal assistant in plaintiff's counsel's office wrote on November 20, 2014, "Please see attached courtesy copy of the served First Amended Complaint," to which defendants' counsel replied the same day, "Thanks for providing this, but I have not agreed to accept service via email in this case. Please also serve as required by statute."
Based on these contentions, plaintiff's counsel asserted that defendants' claim that plaintiff had not timely filed a first amended complaint in the action was "demonstrably false" and that any service issue was "cured" by the emailing of the first amended complaint to defendants' counsel on November 20, 2014. Plaintiff's counsel further contended that defendants' counsel's failure to attend a March 2015 case management conference had contributed to the confusion, and that he had written to defendants' counsel twice by email on May 19, 2015, the day before the ex parte hearing, to state his intention to oppose the application and to propose a new "briefing schedule" regarding the first amended complaint. These two emails were attached to plaintiff's counsel's declaration as well.
The record does not indicate that the trial court took any action regarding plaintiff's opposition. On June 1, 2015, defendants served notice of the court's order and judgment in the case. Plaintiff filed a timely notice of appeal.
DISCUSSION
Plaintiff argues the trial court abused its discretion by granting defendants' ex parte application because he in fact timely filed and served his first amended complaint. However, in their ex parte application, defendants relied entirely on their contention that plaintiff's purported failure to timely file his first amended complaint merited judgment in their favor and dismissal, and there is no indication in the record that the trial court considered any service issue in making its rulings. Accordingly, the only dispositive question before us is whether the trial court abused its discretion when it granted defendants' unopposed ex parte application and entered judgment in their favor on May 19, 2015.
Defendants urge that we not consider plaintiff's arguments to the extent they are based on evidence that can be found only in his opposition to defendants' ex parte motion, which he filed after the trial court entered judgment against him. They rely on the "general rule and understanding that 'an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.' [Citation.] This rule reflects an 'essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .' [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal." (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics added.) Plaintiff points out that courts have made exceptions to this general rule under certain circumstances. (See, e.g., In re B.D. (2008) 159 Cal.App.4th 1218, 1239-1241.) We do not resolve this issue because our conclusion is the same whether or not we consider plaintiff's postjudgment evidence. Instead, we assume for the sake of argument that we should not consider it under these circumstances.
Defendants based their ex parte application on Code of Civil Procedure section 581 (section 581) and California Rules of Court, rule 3.1320(h). Section 581 provides that a trial court may dismiss a complaint when, after the court sustains a demurrer to the complaint, "the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal." (§ 581, subd. (f)(2).) California Rules of Court, rule 3.1320(h) provides, "A motion to dismiss the entire action and for entry of judgment after expiration of the time to amend following the sustaining of a demurrer may be made by ex parte application to the court under Code of Civil Procedure section 581 [, subdivision] (f)(2)."
As we will discuss, the record that was available to the trial court on May 19, 2015, indicated that plaintiff filed and served, but did not necessarily properly serve, a first amended complaint on November 19, 2014, and that this was within the time allowed by the trial court in its November 6 order. It is not clear that section 581, subdivision (f)(2) governs such a circumstance, i.e., where a plaintiff has timely filed and served, but not properly served, an amended complaint after the court has sustained a demurrer. Section 581 refers to a party's failure to timely "amend" a complaint without reference to service. (§ 581, subd. (f)(2); see also Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 828 ["we conclude that the filing of the amended complaint prevented the trial court from entertaining the motion to dismiss" under section 581, subdivision (f)(2)], italics added.) We do not need to decide this issue, however, because assuming for the sake of argument that section 581, subdivision (f)(2) applies to the present circumstances, the trial court nonetheless abused its discretion in granting defendants' application.
"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." (Gitmed v. General Motors Corp., supra, 26 Cal.App.4th at p. 827; accord, Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) "Discretion is abused only when . . . the trial court 'exceeds the bounds of reason, all of the circumstances before it being considered.' [Citation.] There must be a showing of a clear case of abuse and miscarriage of justice in order to warrant a reversal. [Citation.] A trial court will abuse its discretion by action that is arbitrary or 'that transgresses the confines of the applicable principles of law.' [Citations.] In appeals challenging discretionary trial court rulings, it is the appellant's burden to establish an abuse of discretion." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 281.) Among other things, a court abuses its discretion when insufficient evidence supports its decision. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 805 [holding that, "because the trial court's decision is not supported by substantial evidence, it abused its discretion"].)
The record available to the trial court on May 19, 2015, indicated that plaintiff filed a proof of service on November 19, 2014, stating that he had served his first amended complaint by facsimile on defendants on that same date. The parties extensively debate whether this service was proper. Defendants argue it was improper because Code of Civil Procedure section 1013, subdivision (e) permits service by facsimile transmission "only where the parties agree and a written confirmation of that agreement is made," and they had made no such agreement. We do not discuss this issue further because it is inconsequential, since there is no indication that defendants raised an issue about service in their ex parte application or that the trial court considered the matter. Rather, as we have discussed, defendants asserted to the trial court that they were entitled to a judgment because plaintiff had not timely filed a first amended complaint. We turn now to this issue.
Plaintiff's November 19, 2014 proof of service is not in the clerk's transcript. Plaintiff contends he served the first amended complaint on defendants on November 19, 2014, by mail, as indicated in a description of the proof of service in a register of action that he included in his tardy opposition to the ex parte application, and plaintiff further contends he emailed a copy of the first amended complaint to plaintiff's counsel the next day, as indicated by the one-page email exchange also included in that opposition. As we have discussed, we shall not consider this postjudgment evidence. However, because we granted defendants' motion to augment the record with a conformed copy of this proof of service, we know the proof of service indicates plaintiff served defendants by facsimile on November 19, 2014.
In their ex parte application, defendants asserted plaintiff had not timely filed a first amended complaint, but they offered almost nothing to establish this contention. When making an ex parte application, "[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, rule 3.1202(c).) Given the requirements of section 581, subdivision (f)(2) and the stated ground for their ex parte application, defendants were required to make an affirmative factual showing, based on personal knowledge, that plaintiff had not timely filed a first amended complaint. They did not meet this burden of proof. Instead, they merely contended that it did not "appear" that plaintiff had filed a first amended complaint based on their counsel's declaration statement that he had "neither seen, nor been served with any First Amended Complaint from Plaintiff in this case." This declaration statement does not assert any personal knowledge about whether or not plaintiff had timely filed a first amended complaint, which, again, was the only issue defendants raised in their ex parte application. And defendants did not indicate anywhere in their application that anyone had reviewed the court's register of action to determine whether a complaint had been filed.
If they had, defendants would have known that plaintiff had timely filed a first amended complaint—a fact that they now concede, switching on appeal to a focus on plaintiff's purportedly improper service of this complaint despite their failure to raise this issue below. This is because by the terms of the court's November 6 order, defendants were to file and serve a notice of the court's order within five days of the clerk's certificate of mailing. The court further ordered, "Plaintiff shall have 10 days from service of the Notice of Entry of Order to serve and file a first amended complaint." Defendants did not serve notice until more than a month later, on December 17, 2014. Regardless, by the terms of the November 6 order, plaintiff had until December 27, 2014, to file and serve his first amended complaint. The court's files, which defendants expressly relied on as a basis for their ex parte application, indicate plaintiff filed his first amended complaint on November 19, 2014—almost a month before defendants served their notice of the order. Therefore, plaintiff's filing was timely.
Indeed, it appears that the trial court also did not review its own files. If it had done so, it too would have seen that plaintiff had timely filed his first amended complaint. Even when presented with an unopposed ex parte application, trial courts are wise to always review their files to determine if a party's representations about the contents are accurate. (See Grappo v. McMills (2017) 11 Cal.App.5th 996, 1000 [reminding "trial courts that however burdened they be, they must vigilantly attend to their duty in connection with the default process, ' "to act as gatekeeper, ensuring that only appropriate claims get through" ' "].)
In short, there was insufficient evidence to support granting defendants' ex parte application, and the trial court abused its discretion when it granted it.
Along with the inconsequential issue of service, the parties extensively debate whether or not plaintiff was unfairly prejudiced by dismissal of his action because of the merits of his claims, or the lack thereof for numerous reasons, including case law regarding similar actions and plaintiff's bankruptcy history. We have no reason to, and do not, address these issues in light of our conclusion that the trial court abused its discretion. We also have no reason to, and do not, address defendants' contentions about the insufficiency of plaintiff's appellate briefing in certain respects because plaintiff's brief adequately addresses the trial court's rulings on the ground that he timely filed his complaint. --------
DISPOSITION
The trial court's order and judgment appealed from are vacated and this matter is remanded to the trial court for further proceedings. Plaintiff is awarded costs of appeal.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.