Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M94602
Premo, J.
Plaintiff Steven Mora lost his home when it was sold in a nonjudicial foreclosure sale. He sued defendant Litton Loan Servicing, LP (Litton), among others, seeking to avoid the sale on the ground that the sale violated a recently enacted section of the Civil Code. (Civ. Code, § 2923.5, hereafter, section 2923.5.) The trial court sustained Litton’s demurrer on the ground that section 2923.5 did not apply in this case. We agree and affirm.
The complaint actually refers to Civil Code section 2935.5, but there is no such section. The substantive allegations of the complaint make it clear that plaintiff intended to refer to section 2923.5.
I. Background
Plaintiff purchased real property in Castroville in 2002. He financed the purchase with a loan secured by a deed of trust dated November 26, 2002, which was recorded on December 6, 2002. In time, plaintiff fell behind on his payments. On June 2, 2008, defendant Quality Loan Service Corp. (Quality), acting as trustee under the deed of trust, recorded a notice of default. Thereafter, plaintiff attempted to negotiate a loan modification with Litton but no agreement was reached. On September 4, 2008, Quality recorded a notice of trustee’s sale, announcing that the property was scheduled to be sold later that month. The sale went forward as scheduled and defendants Richard W. McMahan and Coralee McMahan purchased the property. A trustee’s deed conveying the property to the McMahans was recorded on October 3, 2008.
Plaintiff, in propria persona, filed this case to avoid the sale. He sought a temporary restraining order, injunction, and damages and named Litton, Quality, and the McMahans as defendants. Although the pleading does not list any separate causes of action, in substance it contains three: violation of section 2923.5 by Litton and Quality and wrongful eviction and conversion of personal property by the McMahans. This appeal concerns only the first cause of action as it applies to Litton.
Plaintiff alleged that section 2923.5 required that, prior to filing the notice of default, the lender must notify the borrower, follow up telephonically, advise the borrower of his right to a meeting, and provide a toll free number for a certified housing counseling agency. Plaintiff further alleged that, even if the notice of default had already been filed when section 2923.5 became effective, the lender still had to try to contact the borrower and was required to include in the notice of sale a declaration that the borrower was contacted to assess the borrower’s financial situation and to explore options to avoid foreclosure or list the efforts made to contact the borrower. According to plaintiff, these requirements were not met in this case.
Litton filed a demurrer on the ground the complaint failed to state a cause of action against it. Litton argued that section 2923.5, which applies only to “loans made from January 1, 2003, to December 31, 2007, inclusive” (§ 2923.5, subd. (i)), did not apply to plaintiff’s loan, which was made in November 2002. Litton also argued that since the effective date of section 2923.5 was September 6, 2008, it could not apply here because the notice of default and notice of trustee’s sale were both recorded before the effective date of the statute.
The trial court agreed with Litton. The court stated, “Here we have a situation where a particular code section is not retroactive, and because of the particular time line involved, the Court simply cannot do otherwise than to sustain the demurrer without leave to amend.” A judgment of dismissal as to Litton was entered on March 4, 2009.
II. Procedural Considerations
Before reaching the substance of plaintiff’s appeal we consider several procedural points. First, plaintiff filed his notice of appeal immediately after the trial court entered its order sustaining the demurrer but prior to entry of judgment. Since an appeal must be taken from the judgment, the notice was premature. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761.) Nevertheless, we deem the premature notice of appeal to have been filed after the entry of judgment so that it is timely. (Cal. Rules of Court, rule 8.104(e)(2).)
Another question involves the fact that this is a multiparty lawsuit and that the judgment relates only to Litton and has no bearing upon plaintiff’s claims against Quality or the McMahans. Usually we are bound by the one-final-judgment rule, and must dismiss an appeal when the matter is not fully concluded. (Code Civ. Proc., § 904.1, subd. (a)(1); Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740-741.) “The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1293.) But if the judgment resolves all issues between a plaintiff and one defendant, either party may appeal from an adverse judgment, even though the action remains pending between the plaintiff and other defendants. (Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880 [dismissal after demurrer as to some but not all defendants].) Thus, even if plaintiff’s action is still pending against Quality or the McMahans, the judgment is final as between plaintiff and Litton and, therefore, we may consider the appeal. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 437.)
Finally, plaintiff argues that he did not have an opportunity to oppose the demurrer. But the record is otherwise. Litton’s moving papers contain a proof of service showing that they were mailed to plaintiff at the address shown on his complaint on December 19, 2008. Although plaintiff did not file any written opposition to the demurrer, he did appear at the hearing held January 23, 2009. Even then he made no argument in opposition. Thus, although the record shows that plaintiff did not oppose the demurrer, there is nothing in the record to show that he did not have the opportunity to do so.
III. Violation of Section 2923.5
Plaintiff’s only substantive argument pertaining to Litton is that Litton failed to comply with section 2923.5. Section 2923.5, which became operative on September 6, 2008, applies to specified loans on owner-occupied residential real property and imposes several requirements upon lenders seeking to foreclose on defaulted loans. The section was one of several designed to “avoid unnecessary foreclosures of residential properties and thereby provide stability to California’s statewide and regional economies and housing market by requiring early contact and communications between mortgagees, beneficiaries, or authorized agents and specified borrowers to explore options that could avoid foreclosure and by facilitating the modification or restructuring of loans in appropriate circumstances.” (Stats. 2008, ch. 69 (S.B. 1137) § 1(g).)
In the present case, the trial court did not consider whether Litton complied with the several requirements of section 2923.5 because the trial court found that the statute did not apply to the foreclosure in this case. The court held, in effect, that Litton could not have violated section 2923.5 because section 2923.5 had not yet taken effect when Litton filed the notice of default and notice of trustee’s sale.
“On appeal from a dismissal entered after an order sustaining a demurrer, we review the order de novo, exercising our independent judgment about whether the petition states a cause of action as a matter of law.” (City of Morgan Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th 861, 869.) “We deem to be true all material facts that were properly pled. [Citation.] We must also accept as true those facts that may be implied or inferred from those expressly alleged. [Citation.] We may also consider matters that may be judicially noticed, but do not accept contentions, deductions or conclusions of fact or law.” (Id. at pp. 869-870.) “We independently construe statutory law, as its interpretation is a question of law on which we are not bound by the trial court’s analysis.” (Id. at p. 870.)
As Litton urges on appeal, the judgment may be affirmed on several bases. The most straightforward basis for affirming the judgment lies in the scope of section 2923.5. Subdivision (i) of section 2923.5 specifies, “This section shall apply only to loans made from January 1, 2003, to December 31, 2007, inclusive, that are secured by residential real property and are for owner-occupied residences.” The publicly recorded documents submitted in connection with Litton’s demurrer (the deed of trust, notice of default, and notice of trustee’s sale) show that plaintiff’s loan was made in 2002. It follows that section 2923.5, by its express terms, does not apply. Therefore the trial court did not err in concluding that plaintiff had not stated a cause of action against Litton. The judgment must be affirmed.
IV. Disposition
The judgment is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: Rushing, P.J., Elia, J.