Opinion
D068449
01-18-2017
ARVIND PATEL, Plaintiff and Appellant, v. JPMORGAN CHASE BANK, N.A. et al., Defendants and Respondents.
Law Offices of Jason W. Estavillo and Jason W. Estavillo, for Plaintiff and Appellant. Parker Ibrahim & Berg, John M. Sorich and Bryant S. Delgadillo, for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2013-00030601-CU-BC-NC) APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern, Judge. Affirmed. Law Offices of Jason W. Estavillo and Jason W. Estavillo, for Plaintiff and Appellant. Parker Ibrahim & Berg, John M. Sorich and Bryant S. Delgadillo, for Defendants and Respondents.
INTRODUCTION
Arvind Patel appeals a summary judgment entered against him after he failed to file an opposition to a motion for summary judgment and, instead, requested dismissal without prejudice. The court vacated the request for dismissal and entered summary judgment in favor of JPMorgan Chase Bank, N.A. for itself and as acquirer of certain assets and liabilities of Washington Mutual Bank from the Federal Deposit Insurance Corporation, as receiver for Washington Mutual Bank (Chase) and California Reconveyance Company (CRC) (collectively defendants). Patel contends the court erred in vacating his request for dismissal and in granting summary judgment, as he contends the defendants did not meet their burden of establishing entitlement to judgment. We disagree and affirm the judgment.
BACKGROUND
A
Since Patel did not oppose the motion for summary judgment, we draw the factual background from the undisputed evidence submitted with the defendants' motion for summary judgment.
According to Patel's complaint, he is a cotenant with a one-half interest in a parcel of residential real property located in Rancho Santa Fe, California. He lives at the property with the other cotenant, Eva Patel (Eva), who owns the other one-half interest. They are not married to each other.
Patel and Eva obtained a loan in 2004 to purchase the property and build a house. Washington Mutual Bank made a new loan of $2.76 million in 2007, which was secured by a deed of trust encumbering the property naming CRC as the trustee. Patel has alleged the refinanced loan was taken only by Eva, although Patel cosigned the deed of trust as a borrower.
Chase began servicing the loan in September 2008 after it acquired certain assets and liabilities of Washington Mutual Bank.
The deed of trust states a borrower "who co-signs this Security Instrument but does not execute the Note ... (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer's consent." --------
Patel and Eva executed and, in April 2009, recorded a quit claim deed transferring title in the property to Michael A. Alfred, as the trustee under a trust for the property. Thereafter, CRC recorded a notice of default and election to sell the property in May 2009.
Patel sued defendants in 2010 challenging the foreclosure proceedings and contending Chase made contradictory statements about whether he was on the loan. He also contended Chase refused to discuss the loan with him after issuing the foreclosure notice.
Patel eventually agreed to settle the lawsuit with Chase and CRC. In doing so, he agreed to pay Chase $1.8 million by December 15, 2011, or $1.9 million no later than January 15, 2012, and to dismiss the lawsuit in exchange for which Chase would consider the loan paid and transfer legal title into Patel's name. The agreement stated if Patel failed "to perform by making either of the two payments within the time periods set forth herein, Chase and CRC shall be permitted to proceed with foreclosure proceedings." The parties agreed to extend the payment deadline to January 30, 2012.
When Patel failed to make the payment within the time required by the amended settlement agreement, Chase sent letters to Patel at both the property address and his post office box address notifying him the loan was in default and indicating failure to pay would result in acceleration of the maturity of the loan and commencement of foreclosure proceedings. Patel responded with a letter sent by facsimile on August 16, 2012, in which he stated he would like to "settle the note" for $1.9 million. Because the offer did not include proof of funds, Chase left a voice message for Patel asking him to call back.
Chase proceeded with the foreclosure. A corporate assignment of deed of trust was recorded along with a notice of default and election to sell. The notice of default was mailed to Patel at both his property address and his post office box address, and to the address of the trustee. It was also mailed to Eva at various addresses. Patel agreed to be the point of contact for the loan and engaged in further discussions to negotiate a settlement of the loan. When the negotiations failed, Chase recorded a notice of trustee's sale in December 2012.
B
Patel filed his complaint in this action on January 18, 2013, asserting causes of action for (1) violation of Civil Code section 2924b, (2) breach of contract, (3) breach of implied covenant of good faith and fair dealing, and (4) violation of Business and Professions Code section 17200. He recorded a notice of lis pendens in May 2013 to stop foreclosure proceedings.
Defendants filed a motion for summary judgment in May 2014 with a hearing date set for July 25, 2014. At the request of Patel's attorney, the court continued the hearing date to September 19, 2014, with Patel's opposition due on September 5, 2014.
Patel did not file an opposition to the motion for summary judgment. Instead, after the time expired for filing an opposition, he submitted a request for dismissal of the action without prejudice.
Defendants moved to vacate the request for dismissal and asked the court to hear the unopposed motion for summary judgment pursuant to Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253 (Cravens).) Patel's counsel opposed the motion to vacate arguing dismissal may be untimely after a failure to oppose a motion for summary judgment only if the motion establishes the absence of triable issues of fact to support a plaintiff's claims. Patel's counsel also argued the dismissal was not a maneuver to defeat summary judgment, but to file a new complaint naming the co-borrower on the note.
The court granted the motion to vacate the request for dismissal concluding it continued to have jurisdiction to rule on the motion for summary judgment. The court placed the unopposed motion back on calendar noting no further papers were to be filed by either side on the motion.
At the hearing on the motion for summary judgment, counsel for Patel argued failure to file an opposition does not require entry of summary judgment under Code of Civil Procedure section 437c, subdivision (b)(3). The court determined summary judgment was appropriate based upon the evidence and papers submitted, in which the defendants established there were no triable issues of fact as to any of the causes of action. The court entered judgment in favor of the defendants.
DISCUSSION
I
Patel contends the court erred in vacating his dismissal of the complaint and proceeding with the summary judgment hearing. We disagree.
"When a court considers the 'facts and circumstances' of a voluntary dismissal to evaluate 'whether allowing the dismissal to stand would be unfair or would endorse dishonest litigation tactics,' its conclusion is reviewed for an abuse of discretion." (Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 899-900.) Under this standard, we "defer to the trial court's factual findings so long as they are supported by substantial evidence, and determine whether, under those facts, the court abused its discretion. If there is no evidence to support the court's findings, then an abuse of discretion has occurred." (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)
Code of Civil Procedure section 581, subdivision (c), allows a plaintiff to dismiss his or her complaint "with or without prejudice prior to the actual commencement of trial." However, the right to file a voluntary dismissal is not absolute. "[P]arties are not permitted to voluntarily dismiss their actions after the court has made a dispositive ruling or given some indication of the legal merits of the case, or when the procedural posture is such that it is inevitable the plaintiff will lose." (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 877.)
In Cravens, supra, 52 Cal.App.4th at pp. 255-256 a plaintiff filed a request for dismissal one day before the hearing on a motion for summary judgment, to which the plaintiff had not filed opposition papers. The court concluded a plaintiff could not avoid summary judgment "by the stratagem of filing a last minute request for dismissal without prejudice" when the moving papers met the burden of negating the plaintiff's claims and the plaintiff failed to file an opposition to the motion within the requisite time. (Id. at p. 257.)
After summarizing numerous cases interpreting the statutory phrase "commencement of trial," the court in Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187 (Franklin) observed dismissals have been held ineffective when "either the trial court had already publicly indicated that the impending motion would result in a substantive dismissal of the action (Mary Morgan [, Inc. v. Melzark (1996) 49 Cal.App.4th 765 (dismissal not permitted where tentative summary judgment ruling had been announced and continuance granted)] and Groth Bros. [Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60 (dismissal not effective where tentative ruling announced on demurrer)]), or the plaintiff was in a position to deduce that there was nothing to be done to prevent the substantive dismissal of the action—the dice had already been thrown (Cravens[, supra, 52 Cal.App.4th 253])." (Franklin, supra, at p. 200.)
The Franklin court contrasted these cases with those in which a dismissal was held to be effective because there was "no reason at all to believe that the case was inherently a loser as a matter of law, (Mossanen [v. Monfared (2000) 77 Cal.App.4th 1402] where the court in fact pointed out that the case would have survived a summary judgment motion in the hands of a competent attorney)," there was "affirmative reason to believe that the case had at least enough merit to warrant settlement (Tire Distributors[, Inc. v. Cobrae, supra, 132 Cal.App.4th 538 (dismissal of one defendant the day before summary judgment hearing was effective because there was evidence the plaintiff filed the dismissal as term of settlement rather than to avoid summary judgment)])," or there was "a complete absence of any reason to conclude that an adverse result on an impending motion was a foregone conclusion (Zapanta [v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167 (dismissal effective when filed before summary judgment opposition deadline)])." (Franklin, supra, 148 Cal.App.4th at pp. 200-201.)
We conclude the facts of this case are in line with Cravens, supra, 52 Cal.App.4th 253. After the summary judgment motion was filed, Patel obtained a continuance to a date when his attorney would be in town. However, instead of filing a timely opposition based on the new hearing date, Patel submitted a request for dismissal after the opposition deadline had passed.
Patel's counsel argued in opposition to the motion to vacate that he submitted the request for dismissal so he could file a new complaint naming the co-borrower in the same action, not to avoid summary judgment. In response, defense counsel pointed out Patel was served with the summary judgment motion papers months before the motion and the defendants agreed to a continuation of the motion at Patel's counsel's request. Defense counsel also noted Patel had not sought to amend the operative complaint or to add a party over the years this case had been pending and it was disingenuous to suggest he "only realized days before the hearing ... that the co-borrower should have been named," particularly since the co-borrower was a party to the action Patel filed in 2010.
The court apparently found Patel's counsel's explanation incredible because it granted the motion to vacate the request for dismissal in part and determined it had discretion to rule on the summary judgment motion. We conclude there is substantial evidence to support this finding and the court did not abuse its discretion.
II
Patel contends the court erred in granting summary judgment because the defendants did not meet their initial burden of establishing a complete defense to his claims. The only specific contention Patel makes in this regard is that Chase did not meet its burden of negating his allegations he was not a borrower on the loan at issue in the litigation and therefore the defendants had no right to foreclose on the property. We disagree.
A
We review the trial court's summary judgment ruling de novo, using the same standards applicable to the trial court. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) A motion for summary judgment "should be granted if no triable issue exists as to any material fact and the defendant[s] [are] entitled to a judgment as a matter of law." (Ibid., citing Code Civ. Proc., § 437c, subd. (c).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A plaintiff may not rely on the allegations or denials in his or her pleadings, but must set forth specific facts showing a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(2).) Where, no opposition is presented, the appellate court reviews the record to ensure the moving party met the burden of eliminating all triable issues of fact. (Hufft v. Horowitz (1992) 4 Cal.App.4th 8, 13.)
B
The settlement of claims, executed by Patel in 2011 settling his 2010 lawsuit, released the defendants from all obligations, known or unknown, related to the prior lawsuits, including all claims to prevent or preclude foreclosure with respect to the subject property. Patel agreed to pay Chase a certain sum of money as full repayment of the loan and if he did not do so by the agreed upon date, the defendants were "permitted to proceed with foreclosure proceedings."
The fact the court declined to enforce the settlement agreement as a judgment in the current case under the terms of Code of Civil Procedure section 664.6, does not mean the settlement agreement is irrelevant in this action. The court did not consider the extent to which the terms of the settlement agreement could have a preclusive effect on the current claims.
"A written release generally extinguishes any obligation covered by its terms, provided it has not been obtained by fraud, deception, misrepresentation, duress or undue influence. [Citation.] When a person with the capacity of reading and understanding an instrument signs it, he is, in the absence of fraud and imposition, bound by its contents and estopped from saying that its provisions are contrary to his intentions or understanding." (Tarpy v. County of San Diego (2003) 110 Cal.App.4th 267, 276.)
The settlement agreement here provided for a release of Chase and CRC from all known or unknown claims "which may relate to or in any way arise out of the Lawsuit ... including but not limited to any claim or cause of action seeking to delay, prevent or preclude a foreclosure sale by Chase and/or CRC in connection with the Subject Property." The agreement further provided, "This Release may be pleaded as a full and complete defense to, and the parties hereby consent that it may be used as the basis for an injunction against any action, suit or other proceeding based on claims released by this Release."
We conclude the plain terms of the settlement agreement preclude Patel's contention he was not obligated to repay the loan prior to 2011 or to have foreclosure proceedings taken against the property. According to the terms of the release, Patel obligated himself to pay a certain sum as full repayment of the loan and further agreed the defendants could commence foreclosure proceedings if he failed to do so. As a result, the defendants met their burden of establishing a complete defense to Patel's claims on this issue. (Code Civ. Proc., § 437c, subd. (p)(2).)
C
As to Patel's other claims, defendants presented evidence in support of their summary judgment motion establishing CRC sent the notice of default not only to the trustee of the property, but also to Patel both at his residential address and to his post office box address, thereby precluding his claim for violation of Civil Code section 2924b, subdivision (b)(1). Defendants also presented evidence showing there was no basis for Patel's claims of breach of contract or breach of implied covenant of good faith and fair dealing because notice of foreclosure proceedings was provided to Patel and, contrary to his allegations, Chase did not refuse to reinstate the loan or to speak to Patel. The defendants presented evidence Patel communicated with Chase. He did not seek to reinstate or modify the loan, but rather attempted to negotiate a short pay-off of the loan. Finally, the defendants contended Patel could not establish a claim for violation of Business and Professions Code section 17200 because there was no evidence the defendants engaged in unlawful, unfair or a fraudulent business practices since the evidence showed defendants gave Patel notice of the foreclosure and communicated with him regarding the loan. The court concluded the defendants met their burden and were entitled to judgment as to each cause of action.
Because Patel did not raise specific issues on appeal related to the defendants' summary judgment burden as to these causes of action, we deem any such issues waived. (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287 ["to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record" otherwise the issue may be deemed waived]; Roberts v. Assurance Co. of America (2008) 163 Cal.App.4th 1398, 1410 [issues not raised in opening brief are waived].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
MCCONNELL, P. J. WE CONCUR: BENKE, J. NARES, J.