Opinion
D071268
02-22-2018
ELENA A. LOUCKS, Plaintiff and Appellant, v. BARRETT DAFFIN FRAPPIER TREDER & WEISS LLP et al., Defendants and Respondents.
Elena A. Loucks, in pro per., for Plaintiff and Appellant. No appearance for the 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2014-00022342-CU-BC-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joan M. Lewis, Judge. Affirmed. Elena A. Loucks, in pro per., for Plaintiff and Appellant. No appearance for the Defendants and Respondents.
I
INTRODUCTION
This appeal arises from a wrongful foreclosure action filed by Elena A. Loucks against various defendants. Loucks appeals a judgment of dismissal entered against her pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1), for delay in prosecution when "[s]ervice is not made within two years after the action is commenced against the defendant." Loucks contends she properly served the defendants or they made general appearances. She also appears to challenge an order denying her request for a temporary restraining order to prevent the sale of her home. We conclude we are precluded from reviewing the order denying her request for a temporary restraining order because she did not timely appeal that separately appealable order. We further conclude the trial court did not err in dismissing the action as to defendant JPMorgan Chase Bank, N.A. (JPMorgan Chase) because Loucks did not properly serve JPMorgan Chase with the summons and complaint within two years and JPMorgan Chase did not make a general appearance. Finally, we conclude defendants Barrett Daffin Frappier Treder & Weiss LLP (Barrett LLP) and Quality Loan Service Corporation (Quality Loan) were nonmonetary nominal defendants and were not required to participate in the proceedings pursuant to Civil Code section 2924l . We, therefore, affirm the judgment.
II
BACKGROUND
The trial court denied Loucks's motion for a settled statement, but summarized the court proceedings as follows:
"Plaintiff filed her complaint on July 7, 2014.
"On November 4, 2014, the court heard an ex parte where the issue of service was discussed and counsel for the Defendants gave Plaintiff the proper addresses for service.
"At a CMC (Case Management Conference) held on December 12, 2014, before the Hon. William R. Nevitt, Jr. Attorney Joseph V. Quattrocchi for Defendant JPMorgan Chase informed the Court that Defendants had still not been served with the complaint. The CMC was continued to January 16, 2015.
"The January 16, 2015, CMC was continued to May 22, 2015.
"On May 22, 2015, the Court considered a scheduled 'motion for lis pendens' which the Court took off calendar. The CMC was continued to June 12, 2015.
"In addition to a CMC scheduled for June 12, Plaintiff had reserved that same date for a motion to set aside wrongful foreclosure. When she rescheduled the motion to October 2, 2015, the CMC was continued to that date as well.
"The minutes from the October 2, 2015 hearing reflect various problems with the motion calendared (including Plaintiff attempting to obtain an order on a motion that had not been calendared).
"The CMC was again continued and was set for hearing on January 8, 2016. Plaintiff calendared a motion to consolidate to be heard on that date. But, once again, Plaintiff rescheduled her motion and the CMC was continued as a result with both set for hearing on May 20, 2016.
"The motion to consolidate was taken off calendar at the time of the May 20 hearing. The CMC was continued to August 19, 2016."
On August 19, 2016, the court dismissed the entire matter pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1), because service was not made within two years after the action was commenced against the defendants.
The trial court concluded its summary by stating, "[t]he Court has a clear recollection that on multiple occasions it informed and reminded Plaintiff that she needed to effectuate proper service on the Defendants. She repeatedly submitted papers trying to argue that proper service had been accomplished when it had not. Notwithstanding having had over two years to serve the Defendants—with defense counsel even specially appearing and providing the Plaintiff with the proper addresses for service—Plaintiff could still not obtain proper service and the case was dismissed."
III
DISCUSSION
A
Loucks challenges the court's November 12, 2014, order denying her request for a temporary restraining order regarding the sale of her home. This was an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(6); Nakamura v. Parker (2007) 156 Cal.App.4th 327, 332.) Loucks did not timely appeal that order, which now precludes our review of the order. (Code Civ. Proc., § 906; Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1315-1316.)
B
Loucks contends she properly served the summons and complaint on JPMorgan Chase and JPMorgan Chase made a general appearance. We disagree with both contentions.
1
Loucks attempted to serve JPMorgan Chase by mailing the complaint by certified mail on September 3, 2014, to a post office box addressed in care of the "Chase Fulfillment Center." She later attempted to serve the attorney for JPMorgan Chase by substitute service on October 28, 2015, with a series of documents, including a document entitled "Plaintiff Opposition To Minute Order Date Oct. 2, 2015 Summon And Complaint Was Defective Submitted On Oct. 3, 2014." However, the documents served on October 28, 2015, do not appear to include the summons and complaint.
These service attempts were not adequate. Code of Civil Procedure section 415.40 permits service to individuals outside the state "by sending a copy of the summons and the complaint to the person to be served by first-class mail, postage prepaid, requiring a return receipt." However, Code of Civil Procedure section 416.10 requires a summons to be served on a corporation by delivering a copy of the summons and complaint to "the person designated as agent for service of process" or to "the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process." (Code Civ. Proc., § 416.10, subds. (a), (b).) The proofs of service do not indicate Loucks served a person authorized to accept service for JPMorgan Chase.
2
JPMorgan Chase's attorney specially appeared to oppose the motion for a temporary restraining order regarding the sale of the property and included a request for judicial notice in support of the opposition to the temporary restraining order. An appearance for purposes of opposing a request for a provisional remedy, such as a temporary restraining order, is not a general appearance. (Code Civ. Proc., § 418.11; Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250-251.)
3
Loucks did not effectuate service on JPMorgan Chase within two years after the action was commenced and JPMorgan Chase did not acquiesce to jurisdiction by making a general appearance. Therefore, the court properly dismissed the matter for delay pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1).
C
Loucks also appears to contend she properly served Barrett LLP and Quality Loan. Whether service attempts on these defendants were adequate or not is inconsequential because these defendants made general appearances when they sought and obtained status as nonmonetary defendants who were excused from participating in the action. (ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 210 ["A defendant submits to the court's jurisdiction by making a general appearance in an action and thereby waives the defense of lack of personal jurisdiction. [Citation.] ' "A general appearance occurs when the defendant takes part in the action or in some manner recognizes the authority of the court to proceed." [Citation.] Such participation operates as consent to the court's exercise of jurisdiction in the proceeding"].) However, both defendants Barrett LLP and Quality Loan had nonmonetary status pursuant to Civil Code section 2924l and were not required to participate in the proceedings.
The record cites provided by Loucks indicated a sheriff served documents on Barrett LLP in October 2015. This included an objection to the court's October 2, 2015, minute order stating prior service was defective, but there is no evidence of service of the summons and complaint. Similarly, Loucks served Quality Loan with various documents in December 2015, but they do not appear to include the summons and complaint. --------
Barrett LLP filed a declaration of nonmonetary status pursuant to Civil Code section 2924l , subdivision (a), stating its belief it was sued solely in its capacity as a substitute trustee under the deed of trust and not for any wrongful acts or omissions on its part. It agreed to be bound by any nonmonetary order or judgment. More than 15 days later, Loucks served and filed a responsive document, but she did not present a factual objection to the declaration of nonmonetary status as required by Civil Code section 2924l , subdivision (c). With no factual basis, Loucks questioned whether Barrett LLP was actually the trustee, but did not dispute the contention Barrett LLP was being sued solely in its capacity as a trustee and not for any wrongful conduct on its own behalf. Therefore, pursuant to Civil Code section 2924l , subdivision (d), Barrett LLP was not required to participate in the proceedings.
Similarly, Quality Loan filed a declaration of nonmonetary status, which the court found valid. Since Plaintiff did not timely oppose the declaration, Quality Loan was excused from further participation in the action.
IV
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
McCONNELL, P. J. WE CONCUR: BENKE, J. DATO, J.