Opinion
D071152
04-20-2017
GEORGE NEWMAN et al., Plaintiffs and Appellants, v. QUALITY LOAN SERVICE CORPORATION, Defendant and Respondent.
George Newman, in pro. per., for Plaintiffs and Appellants. McCarthy & Holthus, LLP and Leticia "Tia" Butler, for Defendant and Respondent.
ORDER MODIFING OPINION AND DENYING REHEARING NO CHANGE IN JUDGMENT THE COURT:
It is ordered that the opinion filed in this appeal on April 20, 2017 is ordered modified as follows:
The second sentence of the first full paragraph on page 3 is amended to read: "Quality Loan later noticed a trustee's sale of the property for October 23, 2014, indicating that that loan had an unpaid balance of $590,916.89."
There is no change in the judgment.
Appellants' petition for rehearing is denied.
McCONNELL, P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2016-00023697-CU-FR-CTL) APPEAL from an order of the Superior Court of San Diego County, Richard E.L. Strauss, Judge. Affirmed. George Newman, in pro. per., for Plaintiffs and Appellants. McCarthy & Holthus, LLP and Leticia "Tia" Butler, for Defendant and Respondent.
George and Perlita Newman appeal from an order of the superior court declining to consider their request for an injunction to prevent Quality Loan Service Corporation (Quality Loan) from foreclosing on their home. The Newmans contend that the superior court improperly considered written materials that Quality Loan submitted in opposition to their application and denied them opportunity to review or refute those materials, and that Quality Loan neither provided them with, nor recorded, a notice of default before noticing the sale of the property. On the record presented on appeal, we must affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The record on appeal is very limited. Certain information in this recitation of the factual and procedural background is taken from the record in an earlier related appeal (Newman v. Bank of America (D067960, Mar. 2, 2016) [nonpub. opn.]), of which this court takes judicial notice.
The Newmans owned a property in Ramona, California as joint tenants. In 2006 George executed a quitclaim deed conveying his interest in the property to Perlita "as her sole and separate property" and she took out two loans (for $500,000 and $50,000, respectively) against the property, each of which was secured by a separate deed of trust identifying Perlita as the borrower. Both deeds of trust designated Mortgage Electronic Registration Systems, Inc. (MERS), as beneficiary nominee of the lender.
Although the loans were in Perlita's name alone, the parties proceed as if George were also a signatory; for the purposes of this appeal, we will do the same.
The deed of trust securing the $500,000 loan was recorded on March 16, 2006, under document number 2006-0183767 (the $500,000 Deed of Trust). The deed of trust securing the $50,000 loan was recorded the same day under document number 2006-0183768 (the $50,000 Deed of Trust). In September 2012 MERS reconveyed its interest in the $50,000 Deed of Trust to the Newmans and transferred its interest in the $500,000 Deed of Trust to Bank of America. (Newman v. Bank of America, supra, D067960.)
In 2014 Bank of America recorded a substitution of trustee designating Quality Loan as the new trustee under the $500,000 Deed of Trust. Within a few months, Quality Loan recorded a notice of default relating to the $500,000 loan and later noticed a trustee's sale of the property for October 23, 2014, indicating that that loan had an unpaid balance of $590,916.89.
Two and a half weeks before the scheduled sale of the property, George filed an action against Bank of America and Quality Loan alleging that (1) MERS had no authority to assign any deed of trust and thus, its purported assignment of the $500,000 deed of trust to Bank of America and the subsequent notice of default were fraudulent; (2) Bank of America violated certain provisions of the California Homeowner's Bill of Rights (Civ. Code, § 2923.4 et seq.); and (3) Quality Loan committed fraud and elder abuse (the 2014 Action). (Newman v. Bank of America, supra, D067960.) The trial court sustained Quality Loan's demurrer to the Newmans' complaint without leave to amend and entered judgment in Quality Loan's favor in March 2015. The Newmans did not appeal from that judgment. (Ibid.)
In May 2015 the superior court dismissed the Newmans' claims against Bank of America. (Newman v. Bank of America, supra, D067960.) On George's appeal from the judgment of dismissal, this court affirmed the judgment in March 2016, finding that George lacked standing to sue since he was neither an owner of the property nor a signatory to the $500,000 loan agreement. George's petitions for rehearing in this court and for review by the California Supreme Court were unsuccessful and the matter was remitted to the superior court in May 2016.
In early July 2016, Quality Loan re-noticed a sale of the property for July 28 to recover $633,382.70 that it contended was owed on the $500,000 loan. Shortly thereafter, the Newmans filed a new lawsuit against Quality Loan for fraud, harassment and attempted elder abuse, apparently contending that they did not owe any money on loans against the property and that the deed of trust held by Quality Loan had been reconveyed; on the same day, the Newmans filed an ex parte application for an order enjoining the sale of the property. At the hearing, the superior court "decline[d] to take action on the [Newmans'] application" because their claims had been adjudicated in the 2014 Action. The Newmans appeal from the resulting order.
The minute order from the ex parte hearing indicates that the court considered not only the Newmans' application, but also written opposition thereto and comments from "both sides". The record includes a written request by Quality Loan that the court take judicial notice of the complaint, docket and appellate opinion in the 2014 Action, but does not include any written opposition. The minute order does not indicate whether the court granted the request for judicial notice.
DISCUSSION
The general purpose of a preliminary injunction is to preserve the status quo pending a determination on the merits of the action. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) A decision granting or denying a preliminary injunction is not an adjudication of the ultimate rights in controversy, but instead merely reflects a determination by the court, based on a balancing of the equities involved, whether the non-moving party should be restrained from taking certain action. (Ibid.) In making such a determination, a trial court must weigh (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the relative interim harms to the parties from granting or denying injunctive relief. (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109; Butt v. State of California (1992) 4 Cal.4th 668, 677-678 (Butt).)
On appeal from a trial court's order granting or denying a motion for preliminary injunction, we review the trial court's decision for an abuse of discretion. (Butt, supra, 4 Cal.4th at p. 678; see Yu v. University of La Verne (2011) 196 Cal.App.4th 779, 786-787.) Under this standard of review, the appealing party bears the burden to show that the trial court's decision "exceeded the bounds of reason or contravened the uncontradicted evidence." (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69.)
The Newmans raise two arguments in their opening brief. First, they contend that the superior court improperly considered Quality Loan's request for judicial notice in opposition to their application, which they first received at the outset of the hearing and were not given any opportunity to review or refute, and thereafter refused to give them an opportunity to explain that their current complaint was different from the complaint that provided the basis for the 2014 Action. Second, they contend that Quality Loan neither provided them with, nor recorded, a notice of default before noticing the sale of the property.
The 2014 Action challenged the 2014 notice of sale, while the 2016 action challenged the 2016 notice; however, as the Newmans essentially admit, their challenges to the notices were the same.
The record on appeal does not substantiate the Newmans' contentions. Although their opening brief avers that they never received a notice of default and recites what they say happened at the ex parte hearing, these recitations are not evidence that this court can consider in reviewing the superior court's order. (See generally Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125 [recognizing that a party challenging the judgment on appeal has the burden to show error by an adequate record and where no reporter's transcript is provided and no error appears on the face of the appellate record, the reviewing court must affirm the judgment]; Sui v. Landi (1985) 163 Cal.App.3d 383, 385-386 [similar].) Further, although the record does show that the court considered Quality Loan's request for judicial notice in opposition to the ex parte application, it does not also establish that the Newmans objected to the court's consideration of those materials, that they requested additional time to review the materials or that the court denied them the opportunity to review and respond to the materials.
On appeal, we must presume that the court conducted itself properly. (See Evid. Code, § 664 [creating a presumption that official duties have been regularly performed]; Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9 [establishing the applicability of this presumption to superior courts and noting that if the invalidity of a superior court's actions does not appear on the face of the record, the court of appeal must presume that "what ought to have been done was not only done but rightly done"].) Similarly, we must presume that the evidence presented at the hearing was sufficient to support the superior court's ruling. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Because the record does not substantiate the Newmans' contentions, they have not met their burden to show that the superior court abused its discretion in declining to stay the sale of the property. (See IT Corp. v. County of Imperial, supra, 35 Cal.3d at p. 69.) We therefore must affirm the order.
DISPOSITION
The order is affirmed. Quality Loan is awarded its costs on appeal.
/s/_________
AARON, J. WE CONCUR: /s/_________
McCONNELL, P. J. /s/_________
BENKE, J.