Filed 3/23/20 Keo v. Nationstar Mortgage CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

CHANHT REATREY KEO,

Plaintiff and Appellant,

v.

NATIONSTAR MORTGAGE LLC,

Defendant and Respondent.

A157359

(Marin County

Super. Ct. No. CIV1803401)

The trial court sustained a demurrer filed by respondent Nationstar Mortgage LLC after appellant Chanht Reatrey Keo failed to oppose it. Keo promptly filed a motion to set aside the order sustaining the demurrer, claiming she failed to file an opposition because of her mistake, inadvertence, surprise, or excusable neglect (Code Civ. Proc., § 473, subd. (b)). The trial court denied the motion, and Keo appealed. Because Keo has not met her burden to show that the trial court abused its discretion, we affirm.

I.
FACTUAL AND PROCEDURAL
BACKGROUND

This is the third lawsuit Keo has brought related to the foreclosure of her San Rafael home, and this is the fifth appeal related to those proceedings. (Keo v. Nationstar Mortgage, LLC, et al. (Oct. 30, 2018, A150606) [nonpub. opn.] (Keo III); Keo v. Nationstar Mortgage LLC (Sept. 28, 2015, A141781) [nonpub. opn.] (Keo II); Keo v. Bank of America, N.A. et al. (Feb. 25, 2015, A138826) [nonpub. opn.] (Keo I); Keo v. Nationstar Mortgage, LLC (A155864) [app. dismissed Feb. 25, 2020].) We briefly summarize the factual allegations as set forth in the court’s previous opinions.

Keo executed a promissory note in December 2008 for $417,000 with Countrywide Bank, FSB. By August 2011 Keo was behind in her payments. A notice of default was recorded in September 2011, and a notice of trustee’s sale was recorded in December.

Keo initiated her first lawsuit involving the property in April 2012. Her first amended complaint alleged that Nationstar became the servicer for her loan beginning in November 2012. The trial court sustained demurrers filed by various defendants (including Nationstar), and this court affirmed in Keo I and Keo II, supra, A138826 and A141781.

In January 2016 Keo initiated her second lawsuit involving the property. Nationstar and another defendant filed a motion for summary judgment, which the trial court granted. This court affirmed and concluded that Keo’s causes of action were barred by res judicata, the statute of limitations, and other grounds. (Keo III, supra, A150606.)

Proceeding without an attorney, Keo initiated her third lawsuit, the subject of this appeal, in September 2018. She alleged violations of California’s Homeowner’s Bill of Rights and other causes of action. Keo also requested a temporary restraining order (TRO) to prevent the sale of her home, which the trial court denied.

Based on the denial of her request for a TRO, Keo sought to disqualify the trial judge for cause under section 170.1, but the statement of disqualification was stricken on October 10, 2018. Nationstar on November 1 demurred to the complaint based on res judicata and other grounds. While the demurrer was pending, on November 19, Keo filed an “errata” to her request for disqualification, saying the request should have been based on section 170.6, but this second disqualification request also was denied. On November 27, Keo filed a writ of mandate in this court challenging the denial of her disqualification request and also seeking a stay of the hearing on Nationstar’s demurrer. (Keo v. Marin County Superior Court (A155866).) This court denied the petition on December 20.

Meanwhile in the trial court, the court granted Keo’s request to continue the hearing on Nationstar’s demurrer. Keo had requested that the hearing be continued until February 14, 2019, but the trial court’s order stated that her application was “GRANTED, in part. The hearing is continued to Feb 1, 2019 1:30.” The continuation meant that her opposition was due at least nine court days before February 1. (§ 1005, subd. (b) [opposition papers must be served nine court days before hearing].)

Keo’s home was sold at a foreclosure auction in November 2018, and the purchaser initiated an unlawful detainer action against Keo. That meant that she began receiving notices in two different cases concerning the same property. At one point she received notice of a hearing in the unlawful detainer action that was to take place on February 8, 2019, and she apparently became confused and thought that was when the hearing on the demurrer in this action would take place.

Instead of responding to Nationstar’s demurrer, Keo filed a first amended complaint on January 31, 2019, the day before the scheduled hearing on the demurrer. According to a February 1 minute order, the trial court sustained Nationstar’s unopposed demurrer without leave to amend after concluding that res judicata barred the entire complaint. A signed order was filed on February 7 dismissing the complaint with prejudice. Keo attended the February 8 hearing in the separate unlawful detainer case, at which point she learned that the trial court had sustained the demurrer to her complaint in this action. Keo told the trial court she had filed a first amended complaint, at which point the trial court struck the complaint as having been untimely filed.

Also on February 8, and still proceeding without an attorney, Keo filed a motion for reconsideration of the order sustaining the demurrer and claimed her failure to timely oppose the demurrer was based on her mistake, inadvertence, surprise, or excusable neglect (§ 473, subd. (b)). She also submitted a proposed opposition to Nationstar’s demurrer.

Nationstar filed on February 27 a notice of entry of the order sustaining its demurrer without leave to amend.

Meanwhile, Keo retained an attorney, who filed another motion for relief from default/dismissal under section 473, subdivision (b). Nationstar opposed the motion. It argued that Keo chose not to oppose its demurrer for strategic reasons and that the trial court properly sustained the demurrer in any event.

By order filed on March 15, 2019, the trial court denied Keo’s motion for relief from the order sustaining Nationstar’s demurrer and dismissing the case. It concluded that Keo had failed to establish mistake, inadvertence, surprise, or excusable neglect. Nationstar filed a notice of entry of the order on April 4, 2019. Keo filed a notice of appeal pro per on May 6, 2019.

II.
DISCUSSION

A. This Court May Consider Only the Court’s Denial of Keo’s Motion for Relief from Default.
B.
We begin by observing that the merits of the order sustaining Nationstar’s demurrer are not before us. On her form notice of appeal, Keo did not check the box indicating she appealed from a “[j]udgment of dismissal after an order sustaining a demurrer.” Instead, she checked only the box indicating she appealed from “[a]n order or judgment under Code of Civil Procedure, § 904.1(a)(3)–(13).” Keo did not identify the order appealed from, but in her civil case information statement filed in this court she clarified that she appealed from the order denying her motion for relief from default.

Even if Keo had asked this court to construe her appeal as being from the sustaining of the demurrer, we could not grant her request because the order was not appealable or, if it was, she did not timely appeal from it. Orders sustaining demurrers are not appealable, and an appeal can be taken only after the court enters an order of dismissal. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.) The record does not contain such a formal judgment or dismissal order. It appears that the trial court may have intended its February 7 “Order Sustaining Defendant Nationstar Mortgage LLC, d/b/a Mr. Cooper’s Demurrer to Plaintiff’s Complaint Without Leave to Amend” to be a final judgment. (Some capitalization omitted.) It stated that the action was “DISMISSED WITH PREJUDICE,” that Keo should “take nothing by way of her claims” against Nationstar, and that Nationstar was entitled to its costs of suit. Because this language evidenced a clear intent to finally dispose of Keo’s complaint against Nationstar, we arguably could construe it as an appealable judgment. (Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6; Smith v. Hopland Band of Pomo Indians (2002) 95 Cal.App.4th 1, 3, fn. 1.) But that would render untimely Keo’s May 6, 2019 notice of appeal, filed more than 60 days after Nationstar filed its notice of entry of the demurrer ruling on February 27.

Although Keo devotes most of her short opening brief to arguing why the trial court should not have sustained Nationwide’s demurrer and should have granted her leave to amend, and Nationstar responds at length in its own brief, we disregard these arguments. We proceed to consider only the merits of the order denying Keo’s motion from relief from the order sustaining Nationstar’s demurrer.

C. The Trial Court Did Not Abuse Its Discretion When Denying the Request for Relief Under Section 473.
D.
Keo argues, as she did below, that the trial court should have granted her motion under section 473, subdivision (b), because her failure to oppose Nationstar’s demurrer “came from a mistake [she made] due to changes in the scheduling of the case.” The relevant statute provides that a court “may, upon any terms as may be just, relieve a party . . . from a judgment . . . [or] order . . . through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) To obtain discretionary relief under the statute, “the moving party must show the requisite mistake, inadvertence, or excusable neglect.” (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 694.) We review the trial court’s ruling on a motion for discretionary relief under section 473 for abuse of discretion and will not reverse absent a clear showing of abuse. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) Where there is a conflict in the evidence but the prevailing party has presented evidence supporting its contentions, the trial court’s determination of the controverted facts will not be disturbed. (Id. at p. 258.)

In her motion asking to set aside the order sustaining the demurrer, Keo represented that she was “confused” about the deadline to respond to the demurrer and that as a pro per litigant, she was “not accustomed to juggling multiple matters involving the same subject matter, and any confusion she may have experienced is understandable.” But even if the hearing on the demurrer had been scheduled for February 8, as Keo mistakenly believed, her filing of an amended complaint on January 31 still would have been untimely. True, a party may amend its pleading without leave of the court after a demurrer has been filed and before the demurrer is heard “if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer.” (§ 472, subd. (a), italics added.) But Keo’s opposition was due nine court days before the hearing. (§ 1005, subd. (b).) Keo filed her amended complaint on January 31, nine days (as opposed to nine court days) before February 8.

In any event, Nationstar presented evidence that it was Keo who served Nationstar with a copy of the order continuing the demurrer hearing until February 1, 2019 (meaning she was well aware of the hearing date), as well as evidence that Keo had developed knowledge of trial court procedures during her years of pro per litigation regarding her property. The trial court held a hearing on the matter, but no reporter’s transcript of the hearing appears in the appellate record. We therefore have no way of knowing whether the trial court addressed the arguments Keo advances on appeal. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [judgment or order of trial court is presumed correct and appellant must affirmatively show error]; Sanowicz v. Bacal (2015) 234 Cal.App.4th 1027, 1034, fn. 5 [because no reporter’s transcript provided, appellate court could not know whether trial court addressed and resolved various evidence issues].) Given Keo’s years of litigation experience, we cannot say it was an abuse of discretion for the trial court to conclude that Keo did not miss her deadline based on excusable neglect. This is especially true in light of the rule that “mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984–985.)

Keo relies on Wilcox v. Ford (1988) 206 Cal.App.3d 1170, but that case does not help her. Wilcox held that section 473 does not provide grounds to oppose a motion to dismiss based on a plaintiff’s failure to bring an action to trial within five years (§ 583.310). (Wilcox, at pp. 1173, 1178.) True, Wilcox acknowledged that a motion may be brought under section 473 where dismissal has already been granted and a plaintiff seeks to belatedly contest the dismissal motion on the merits, which is what Keo did here. (Wilcox, at p. 1178.) But Wilcox does not support Keo’s argument that she should be excused from her failure to timely oppose Nationstar’s demurrer.

Because Keo has not established that the trial court abused its discretion, we decline to set aside the order sustaining Nationstar’s demurrer.

III.
DISPOSITION

The trial court’s March 15, 2019 order is affirmed. Nationstar shall recover its costs on appeal.

 

_________________________

Humes, P.J.

WE CONCUR:

_________________________

Margulies, J.

_________________________

Sanchez, J.

Keo v. Nationstar Mortgage LLC A157359

Parties and Attorneys
Keo v. Nationstar Mortgage, LLC
Division 1
Case Number A157359
Party Attorney

Chanht Reatrey Keo : Plaintiff and Appellant
18 Falmouth Cove
San Rafael, CA 94913

Jonathan Matthews
Attorney at Law
13885 Doolittle Drive, #105
San Leandro, CA 94577

Nationstar Mortgage, LLC : Defendant and Respondent
Raffi Kassabian
Reed Smith LLP
355 South Grand Avenue, Suite 2900
Los Angeles, CA 90071

Katalina Baumann
Akerman LLP
601 W 5th St
Ste 300
Los Angeles, CA 90071-3506

Justin Donald Balser
Akerman LLP
601 West Fifth Street, Suite 300
Los Angeles, CA 90071