Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC492035. Douglas E. Weathers, Judge. Affirmed.
Linda J. Walton, in pro. per., for Plaintiff and Appellant.
Elliott Luchs for Defendant and Respondent.
OPINION
MILLER, J.
Plaintiff and appellant Linda J. Walton purported to purchase the property that is the subject of the dispute below, pursuant to a somewhat complicated series of transactions. She brought the underlying action against the seller when the seller foreclosed; respondent J & K Equities, Inc. (J&K) purchased the property at a foreclosure sale, and then filed an unlawful detainer action against plaintiff. The trial court consolidated plaintiff’s suit with the J&K eviction action and had granted a temporary restraining order (TRO) in plaintiff’s favor, as well as a preliminary injunction to halt the unlawful detainer proceedings. The TRO and preliminary injunction were conditioned upon plaintiff’s procurement of bonds. Plaintiff failed to secure the bonds within a reasonable time and the court dissolved the injunction. Plaintiff now urges that J&K Equities was a non-party to the action and thus lacked standing to move to dissolve the injunction. She also urges that she was indigent and thus could not secure the bonds. We conclude that neither point is meritorious and we affirm the trial court’s order dissolving the injunction.
FACTUAL AND PROCEDURAL HISTORY
The appellate record is somewhat abbreviated, and we do not have the pleadings filed in the actions below. No testimony has been taken. We derive the factual background from some remarks of the court and counsel at the hearing to grant the preliminary injunction; we do not state these matters definitively, but merely to set the context for understanding the present proceedings.
Defendant Joe Walker Moody owned the subject property, a home in Perris, California. He sold the house to the Zieglers in the 1980’s. Moody took back a deed of trust from the Zieglers, which he later assigned to Riverside National Bank. Riverside National Bank became City National Bank; City National Bank apparently assigned the deed of trust back to Moody in 2007.
Plaintiff and her coplaintiff, Marvin Lehrer, purchased the home from the Zieglers, and apparently assumed the Moody deed of trust. Plaintiff had occupied the Perris home since 1988. Apparently, plaintiff did not make payments on the deed of trust or pay property taxes or other charges against the property.
Plaintiff’s parents died in 1991. In approximately 1998, she inherited their home in Oceanside. The Oceanside property was free and clear of any encumbrance. Plaintiff offered to Moody to exchange the Oceanside property for cancellation of the entire debt on the Perris home. Moody opened an escrow; the terms of the escrow would credit plaintiff for $120,000 against the deed of trust, leaving a $30,000 balance unpaid. Plaintiff refused to agree, because she believed the Oceanside property was worth substantially more than $120,000.
During the next two years, plaintiff made a couple of payments on the Perris home’s deed of trust. Then Moody approached her again, saying that he would accept the Oceanside property in full cancellation of the outstanding debt on the Perris home. Plaintiff and Moody agreed to make the exchange outside of escrow. Plaintiff executed a grant deed to Moody on the Oceanside property. She asked Moody for the reconveyance on the Perris property; Moody promised to deliver the reconveyance, but he never did so. Apparently, this involved Moody’s transfer of the note and deed of trust to the bank. Moody asked the bank for a reconveyance, but the bank allegedly had lost the note. Moody resold the Oceanside property for $385,000, well more than the amount of the note and deed of trust on the Perris property.
Because she believed that she owned the Perris home free and clear, plaintiff made no further payments on the deed of trust, and no one ever asked her for further payments. Plaintiff did acknowledge that the property taxes were in arrears by three years; the tax payments had been brought current in 2004.
Moody evidently credited plaintiff with only $120,000 on the note and deed of trust, claiming that an additional $30,000 was still due. This was the same deal that plaintiff had refused two years earlier. Moody began foreclosure proceedings against the Zieglers. Plaintiff asserted that she was unaware of the foreclosure proceedings but found out inadvertently. Plaintiff then filed the action below for injunctive relief and filed a lis pendens against the Perris home. Plaintiff’s complaint apparently alleged, first, that the Zieglers no longer owned the property, second, that the alleged debt had been paid (via the property exchange), and third, that plaintiff had no notice of the foreclosure proceedings.
J&K purchased the property at Moody’s foreclosure sale, even though plaintiff also attended the sale and warned J&K about the lis pendens. J&K filed an unlawful detainer action against plaintiff to evict her from the home. Plaintiff moved in the underlying action for a temporary restraining order and preliminary injunction to halt the unlawful detainer action.
The court consolidated the unlawful detainer action with plaintiff’s action. It also granted plaintiff’s petition for a preliminary injunction, but conditioned the preliminary injunction on plaintiff’s posting of a $40,000 bond to protect J&K’s interests, and a $10,000 bond against the unpaid property taxes.
Plaintiff failed to obtain the bonds, and J&K moved to dissolve the injunction. The trial court granted J&K’s request, and ordered the preliminary injunction and the TRO dissolved. It is this ruling, dissolving the preliminary injunction against the unlawful detainer action, which plaintiff now appeals.
DISCUSSION
A. J&K Was a Proper Party to Move to Dissolve the Preliminary Injunction
Plaintiff first argues that J&K “lacked standing” because it had never intervened in plaintiff’s action against Moody. (Code Civ. Proc., § 387.) Thus, plaintiff contends, J&K was a nonparty to the action and thus lacked standing to bring the motion to dissolve the injunction.
We reject the contention. Preliminarily, we note that plaintiff has provided only a very abbreviated record of the proceedings. We do not have her moving papers on the petition for a preliminary injunction, for example, nor anything relating to the request to consolidate the actions. We can glean from the register of actions that additional pleadings besides plaintiff’s action and J&K’s unlawful detainer action have been filed and consolidated. The failure to provide an adequate record for review justifies resolving a contention against the appellant, who bears the burden of providing an adequate record which affirmatively demonstrates error. (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.)
In any case, the trial court consolidated plaintiff’s action and J&K’s unlawful detainer action. Plaintiff purported to file her petition for a preliminary injunction in her own action, not the unlawful detainer action, but she sought to enjoin the (formerly) separate unlawful detainer proceedings. The trial court responded by granting the TRO, staying the unlawful detainer action pending consolidation with plaintiff’s action, and pending the hearing on the preliminary injunction. The preliminary injunction was not issued until the cases were consolidated.
Plaintiff maintains that “[t]he consolidation of the Temecula eviction proceeding and the Riverside action was done for judicial economy and their mere consolidation did not afford [J&K] the right to file pleadings in the Riverside matter, nor should those pleadings ever ha[ve] been heard.” Plaintiff’s contention that the consolidation was done merely for “judicial economy” overlooks that a significant aspect of judicial economy is to forestall the necessity of making separate motions to intervene in the various actions.
Code of Civil Procedure section 387 allows discretionary intervention by a person who has an interest in the proceedings. The purpose of allowing intervention is to promote fairness by involving all the parties who are potentially affected by a judgment. (Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499, 1504.) J&K was the person or entity to whom the preliminary injunction was directed. Although the right to intervene is statutory (People v. City of Long Beach (1960) 183 Cal.App.2d 271, 274), certain affected persons are entitled to intervene. (Siena Court Homeowners Ass’n v. Green Valley Corp. (2008) 164 Cal.App.4th 1416, 1424.) If J&K had moved to intervene, the trial court would have abused its discretion in denying such a motion. (Id. at p. 1428.) In addition, J&K’s motion addressed the unlawful detainer action, and, as part of the relief requested, sought an order that plaintiff and her coplaintiff file answers in the unlawful detainer action. The trial court granted this request. Patently, the injunction was directed to and only affected the unlawful detainer action, the motion to dissolve the injunction was directed to that action, and the relief requested included orders as to that action. J&K’s motion was brought as a party to the unlawful detainer action, which had been consolidated with plaintiff’s action against Moody.
B. Plaintiff’s Purported Indigence Did Not Excuse Her Failure Either to Comply With the Undertaking or Seek Relief
Plaintiff urges that she and her coplaintiff, Marvin Lehrer, were indigent and could not afford the $50,000 bond ordered by the trial court as a condition of the preliminary injunction. Plaintiff relies on Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427 for the proposition that precluding a party from litigating a claim because he or she is too indigent to post a bond results in a miscarriage of justice. The instant case is distinguishable from Baltayan. In that case, before the deadline for posting the bond, the party applied to the court for a waiver or reduction of the undertaking on the ground of indigency. (Id. at pp. 1431-1432.)
Here, plaintiff never made any such motion or application. Plaintiff urges that she and Lehrer “attempted to be heard before the Riverside Court in an emergency hearing to inform the Court of their attempts to comply with the order,” but there is nothing in the record to substantiate this claim. The register of actions does contain notes concerning requests for ex parte hearings which were denied, continued or taken off calendar, but nothing identifies the substance of these requests or even, in many instances, who the moving or requesting party was.
Plaintiff points to some colloquy during the hearing to grant the preliminary injunction, in which she explained the property tax arrearage by stating that she had not had the funds to pay the taxes. Plaintiff, based upon the record before us, never made any of her financial information the subject of any motion for relief from the undertaking. In addition, plaintiff’s claims in her brief notwithstanding, the record is entirely devoid of any indication as to the financial status of coplaintiff Lehrer. Likewise, the record contains no indication as to any efforts the plaintiffs made to secure the bond.
On the record before the trial court, plaintiff failed to comply with the conditions attached to the preliminary injunction, and never moved for relief. She failed to raise the indigency issue below. The trial court properly dissolved the injunction against J&K.
Finally, we note in passing that plaintiff’s brief concedes that, after the court dissolved the preliminary injunction, she “has since been evicted from her home of nearly 20 years.” Reversing the trial court’s order lifting the preliminary injunction thus cannot restore the parties to their former positions and would result in a futile order. (See Civ. Code, § 3532 [“law neither does nor requires idle acts”].)
DISPOSITION
For the reasons stated, the trial court’s order dissolving the preliminary injunction is affirmed. In the interests of justice, each party shall bear its own fees and costs on appeal.
We concur: RICHLI, Acting P. J., GAUT, J.