Filed 11/18/19 Bryer v. J.P. Morgan Chase, N.A. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

LINDA BRYER,

Plaintiff and Appellant,

v.

J.P. MORGAN CHASE, N.A., et al.,

Defendants and Respondents.

H045407

(Santa Cruz County

Super. Ct. No. 17CV00458)

In this appeal, plaintiff Linda Bryer seeks review of an order sustaining the demurrers of defendants J.P. Morgan Chase, N.A. (Chase), U.S. Bank, N.A. (U.S. Bank), and Select Portfolio Servicing, Inc. (SPS) in plaintiff’s action to prevent foreclosure of her property. Plaintiff raises numerous issues related to the validity of the deed of trust, the assignment of the deed of trust, and the notice of default; she also suggests that amendment would enable her to allege voidness of the substitution of trustee, breach of contract, and negligence. Plaintiff further contests the superior court’s denial of her motion under Code of Civil Procedure section 473, subdivision (b), for relief from the court’s order adopting its tentative ruling, after her attorney failed to appear to contest the ruling. We will affirm the judgments.

Background

The property at issue was plaintiff’s primary residence in Capitola. The 2006 deed of trust on the property listed First Magnus Financial Corporation (FMFC) as the lender on the $596,000 note, First American Title as the trustee, and Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary, “acting solely as a nominee for Lender and Lender’s successors and assigns.” In documents recorded June 2, 2011, MERS assigned the deed of trust to U.S. Bank as trustee, and on the same day U.S. Bank then substituted California Reconveyance Company (CRC) as trustee.

Also recorded on June 2, 2011 was CRC’s notice of default, stating that plaintiff owed $27,752.64. To determine the amount, plaintiff was directed to contact Chase. On September 6, 2011 CRC recorded a Notice of Trustee’s Sale, listing $623,910.20 as the estimated unpaid balance of plaintiff’s loan. Additional notices of trustee’s sale followed in November 2012 and September 2013.

Chase, which had acquired Washington Mutual Bank’s assets after that bank failed in 2008, had the servicing rights to plaintiff’s loan, but according to plaintiff, Chase transferred those rights to Select Portfolio Servicing (SPS) “prior to March 2014.” In March 2014 SPS substituted ALAW as trustee of the deed of trust, and on April 2, 2014 ALAW recorded another Notice of Trustee’s Sale, listing $713,517.94 as the estimated amount due. According to Chase (without citation to facts in the record), Quality Loan Service Corp. (Quality) eventually became the current trustee. Quality recorded its Notice of Trustee’s sale on January 27, 2017.

Plaintiff initiated her action on January 8, 2015, naming Chase, SPS, U.S. Bank, and ALAW, and stating claims for cancellation of instruments, violation of Business and Professions Code section 17200, declaratory relief, negligence, attempted wrongful foreclosure and wrongful foreclosure, breach of contract, and quiet title. U.S. Bank and SPS removed the case to the federal district court, which thereafter granted motions by SPS, U.S. Bank, Chase, and ALAW to dismiss the complaint with leave to amend. On May 13, 2015 plaintiff voluntarily dismissed Chase and filed a first amended complaint naming the remaining defendants. The district court dismissed that pleading and the next, plaintiff’s February 2016 second amended complaint against SPS, ALAW, and U.S. Bank. In July 2016, after SPS and U.S. Bank moved to dismiss plaintiff’s third amended complaint, she voluntarily dismissed the action.

Plaintiff returned to state court in February 2017 with a new complaint against multiple defendants, including Chase. In her first amended complaint, the operative pleading, she first sought a declaratory judgment to avoid defendant’s threatened foreclosure. In the second cause of action plaintiff alleged violations of the Homeowner Bill of Rights (HBOR)—specifically, Civil Code sections 2923.5 and 2923.55—by Chase and SPS. The third cause of action, directed at Chase, SPS, and U.S. Bank, alleged “emotional duress” caused by SPS, which had demanded that in order to avoid foreclosure plaintiff had to accept an adhesive contract in the form of a loan modification “with unduly burdensome terms.” Finally, plaintiff alleged that Chase, SPS, and U.S. Bank had engaged in “unfair and deceptive business practices” in violation of Business and Professions Code section 17200, by using the name of MERS to create “self to self assignments [sic]” and by continuing to “dual track borrowers who have completed modifications by resetting the trustee sale instead of suspending the trustee sale until the borrower has been fully reviewed.”

In August 2017, Chase filed its demurrer to plaintiff’s first amended complaint. U.S. Bank and SPS followed soon thereafter with their demurrer. Chase argued that (1) plaintiff had waived her claims against it by failing to name Chase in her amended complaint in the federal action; (2) it had “no alleged relationship” to plaintiff’s loan or the foreclosure proceedings; (3) declaratory relief and emotional duress were not recognized causes of action; and (4) no facts supported the allegation that Chase had violated the HOBR or engaged in unfair business practices. U.S. Bank and SPS asserted the bar of the statute of limitations as applied to the note and deed of trust; they further claimed that the disposition of the federal action precluded the challenges to the assignment of the deed of trust and substitution of trustee, based on the doctrines of res judicata and collateral estoppel. Finally, U.S. Bank and SPS contended that all of plaintiff’s claims contesting the validity of the documents at issue were “substantively untenable.”

Plaintiff filed opposition. However, after the superior court issued a tentative ruling sustaining the demurrers without leave to amend, the court held a hearing at which no party appeared, and the court sustained the demurrers. Following plaintiff’s unsuccessful motion for relief from the tentative ruling, the court entered judgments dismissing the action with prejudice. This timely appeal followed.

Discussion

1. Standard of Review

On appeal from a judgment after an order sustaining a demurrer without leave to amend, we review the ruling de novo, independently examining the complaint to determine whether it alleges facts sufficient to state a cause of action. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1335; McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) “We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]” City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 (Dinuba); Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924 (Yvanova).) “And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The burden is on the plaintiff to show a reasonable possibility of curing a defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

2. Dismissal of Chase

In its demurrer Chase contended, as it continues to argue on appeal, that by failing to name Chase in her amended federal complaint plaintiff waived any further claims against it. Chase also argued that the claims against it were time-barred, as it had transferred its servicing obligations to SPS in March 2014 and had no further involvement with plaintiff’s loan thereafter.

We agree that none of the claims asserted in the first amended complaint properly implicate conduct by Chase. In her first cause of action plaintiff alleged that “the loan is illegal, the contracts are void, and even if the loan legal [sic] and contracts valid [sic], Defendants are strangers without rights to collect on the loan or enforce collection through the deed of trust; the modification is unconscionable and Defendants are estopped from taking the steps they have taken as they have not fulfilled the condition precedent of the deed of trust.” Asserting that the “loan is void,” plaintiff sought a determination of the “validity” of the loan, the note, and the deed of trust, and thus “the legal rights, if any, of the defendants to seek to enforce the deed of trust, and the legal obligation of defendants to offer a modification in good faith that is not a contract of adhesion or unconscionable.” To the extent that these allegations pertain to conduct that has already occurred—the initiation of the loan and execution of the deed of trust—declaratory relief is unavailable to plaintiff. “There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.” (Travers v. Louden (1967) 254 Cal.App.2d 926, 931; accord, Babb v. Superior Court (1971) 3 Cal.3d 841, 848.) As in Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, plaintiff’s declaratory relief cause of action “lacks any factual allegations indicating that an actual, present controversy exists” between her and Chase. (Id. at p. 1014, italics added.)

Chase was accused in the second cause of action of violating Civil Code section 2923.5, by making no attempt “to contact Plaintiff prior to recording of [sic] the Notice of Default.” This allegation, as the superior court recognized, was untimely as beyond the limitations period of section 338. Even if considered timely, the claim is accompanied by no allegation of prejudice. The second cause of action contained no other allegations regarding violations of the HBOR by Chase.

The third cause of action claimed “emotional duress” against Chase, SPS, and U.S. Bank, who allegedly “caused to be recorded instruments in the public land records in order to make demands upon Plaintiff for payments SPS and US Bank are not entitled to collect.” Chase is not mentioned beyond this vague allegation. Instead, plaintiff focused on SPS’s attempt “to intimidate Plaintiff into accepting the terms of a contract of adhesion” through a modification that would inhere to SPS’s “own personal financial benefit.” On appeal, plaintiff does not direct any of her contentions at the allegation of “emotional duress”; Chase’s extensive attention to that subject will therefore be disregarded.

The fourth cause of action for violating Business and Professions Code section 17200 is not based on any specific conduct by Chase beyond the “unfair and deceptive business practice of Defendants” (1) to “use the name of ‘MERS’ to create self to self-assignments [sic], assigning interest to themselves”; (2) to “identify MERS on a deed of trust, in violation of 10 [California Code of Regulations] § 1460(b) and to use deceptive and unfair descriptions of MERS [sic] role in the deed of trust”; and (3) to “identify” MERS because MERS was not legally operating in this state. Although on appeal plaintiff attributes this self-to-self assignment as one in which Chase participated by acting for U.S. Bank, it is the latter entity that is alleged to be at fault. And in discussing the statute of limitations, plaintiff claims that the improper assignment consisted in MERS’s acting for U.S. Bank. Plaintiff otherwise does not mention Chase in connection with the fourth cause of action except to list, under the heading “Deceptive and Unfair Acts,” “Chase alleging it is MERS, when really it was an agent of US Bank when executing the assignment.” Plaintiff has not stated her position in a comprehensible way that permits a reasoned analysis by this court. We therefore regard the contention as waived or abandoned. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant’s “conclusory presentation, without pertinent argument or an attempt to apply the law to the circumstances of this case, is inadequate” and therefore treated as abandoned]; see also Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331, 1350 [given absence of comprehensible reasoning, appellate argument treated as waived].) To the extent that plaintiff would reaffirm the allegations of the fourth cause of action pertaining to the identification of MERS on the 2006 deed of trust, that act cannot be attributed to Chase, which was not a participating entity when the deed of trust was executed in 2006.

None of the four causes of action was stated as the basis for plaintiff’s background allegation that the recording of the notice of default was by “CRC at the direction of Chase,” “on behalf of” and “as an agent of” U.S. Bank, which she alleged was “not the true beneficial holder of the debt.” But Chase, as the servicing agent, was not represented to be the beneficiary in the notice of default. On appeal, plaintiff continues to argue that the notice of default was “statutorily deficient” by inaccurately showing the beneficiary as Chase, which “was never the beneficiary.” Plaintiff’s assertion, however, is not supported by the document itself; moreover, the cited provision, Civil Code section 2924, subdivision (a)(1)(D)(6), was not in effect when the notice of default was recorded. No ground is stated, therefore, for maintaining Chase as a defendant in this action.

3. Denial of Declaratory Judgment against U.S. Bank and SPS

It is apparent that the substance of plaintiff’s position on appeal is based primarily on her allegations against U.S. Bank and SPS. In her first “cause of action,” she sought a declaration of the invalidity of the note and deed of trust, which rendered the loan void. She further asserted the invalidity of the June 2011 assignment of the deed of trust, the invalidity of the substitution of Quality as trustee, and the inadequacy of SPS’s offer to modify the loan terms. As to the assignment, she asserted that it “fails to subscribe the principal as required by California law.” It allegedly purported to be from MERS to U.S. Bank but in fact was a “self to self-assignment” [sic] by U.S. Bank.

To the extent that these allegations pertain to past wrongful conduct, they are beyond the scope of declaratory relief, as noted above; and those assertions pertaining to the loan origination documents exceeded the applicable limitations periods defined by statute. It is therefore unnecessary to address plaintiff’s new contention on appeal relating to her characterization of the loan transaction as procured by illegal table funding.

Plaintiff maintains, however, that the statute of limitations did not apply to the deed of trust or its assignment, because the harm was ongoing and those instruments were void. We disagree. Plaintiff has alleged no facts connecting the loan origination to the alleged harm thereafter created by either the identification of MERS in the subsequent assignment or the failure of SPS to offer her a workable modification on reasonable terms. As for the assignment itself, plaintiff did not raise the argument she now offers on appeal, that MERS was falsely identified as the assigning party. In her opposition to respondents’ demurrer she protested the identification of MERS by FMFC: MERS, she argued, “never should have been on this deed of trust in the first place.” That argument was consistent with the allegations of the first “cause of action” in her pleading, which were directed at the voidness of the note and deed of trust, except for the allegation of a void “self to self-assignment [sic].”

In any event, plaintiff has not cited pertinent authority for the assumption that MERS lacked authority to represent itself as the party assigning the interest in the property to U.S. Bank. MERS was identified in the deed of trust as the beneficiary, “solely as nominee for Lender and Lender’s successors and assigns,” and the document stated that “Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender’s successors and assigns) has the right: to exercise any or all of those interests, including . . . the right to foreclose and sell the Property; and to take any action required of Lender including . . . releasing and canceling this Security Instrument.” Plaintiff’s agreement to these terms cannot support any inference of misinformation regarding the role of MERS in either the loan initiation or the subsequent assignment. (Cf. Cervantes v. Countrywide Home Loans, Inc. (9th Cir. 2011) 656 F.3d 1034, 1042 [By signing the deed of trust, plaintiffs were on notice of the contents and were not “misinformed about MERS’s role” in their home loans].) Nor can plaintiff establish voidness of the assignment based on the failure of Colleen Irby to disclose that she was an employee of CRC, as alleged in the complaint—or, as plaintiff later asserted, an employee of Chase. “MERS relies on its members to have someone on their own staff become a MERS officer with the authority to sign documents on behalf of MERS.” (Id. at p. 1040.)

In addition, plaintiff did not allege how the improper assignment caused prejudice to her; she did not plead that she was not in default or that defendants prevented her from paying the Note or curing her default. “Prejudice is not presumed from “mere irregularities” in the process . . . Because a promissory note is a negotiable instrument, a borrower must anticipate [that] it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note. Plaintiff effectively concedes [that] she was in default, and she [has] not allege[d or argued on appeal] that the transfer to [U.S. Bank] interfered in any manner with her payment of the note.” (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1507-1508 [finding it “difficult to conceive how plaintiff was prejudiced by MERS’s purported assignment”], disapproved on another ground by Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.; see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272, disapproved on another ground in Yvanova, supra, at p. 939, fn. 13].) Any damages plaintiff suffered were due to her default, not the imperfection in the assignment. Without prejudice, her claim based on defects in the assignment must fail.

4. HBOR Allegations against U.S. Bank and SPS

In her second cause of action plaintiff renewed her claims that the June 2011 assignment was void, that she was not contacted before the notice of default was recorded, and that SPS recorded a substitution of trustee unsupported by “competent or reliable evidence of the right to collect.” She insists that her attack on the notice of default should not have subjected her complaint to dismissal, because “there is no statute of limitations for challenging that which is void.” In her view, the harm in this “arguably” void notice of default is ongoing in that SPS continues to threaten foreclosure.

The foundation of the voidness argument, however, is that the wrong beneficiary was identified, and the supporting declaration “held false statements.” Plaintiff alleged that SPS, “in material violation of the [HBOR], has failed to notify Plaintiff of her right to seek a copy of the Note, evidence of the debt and alleged arrears, and evidence of Defendants [sic] right to enforce the Note and Deed of Trust,” in violation of Civil Code section 2923.55. The cited statute, however, was not in effect at the time the notice of default was executed and recorded; consequently, the lower court properly rejected this challenge. Moreover, plaintiff did not show how the allegedly defective notice of default prevented her from bringing her debt payments current. (See Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 443-444 [technical defects in notice of default not shown to be prejudicial].)

Plaintiff further alleged, and contends on appeal, that during “modification discussions” between SPS and her, SPS engaged in “dual tracking,” in violation of Civil Code section 2923.6: It encouraged her to renegotiate her loan, but then, in January 2017, it wrongfully instructed Quality to record the Notice of Trustee’s Sale and demanded that she “accept the onerous and unduly burdensome terms” of the proposed modification or else lose her home.

On January 27, 2017,when the Notice of Trustee’s Sale was recorded , Civil Code section 2923.6, subdivision (c), provided, in pertinent part: “If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.” (Stats. 2012, ch. 87, § 7, p. 2303].) In her first amended complaint, plaintiff alleged that her loan modification application was denied on November 19, 2016. Plaintiff wrote to SPS to appeal the decision on December 7, 2016, but the appeal was denied two days later. On December 5, 2016, SPS offered her a Trial Period Plan (TPP), subject to her making the first payment (of approximately $3,499.62 per month) by January 31, 2017.

The TPP offer, however, was not a loan modification application. The application and its appeal having been denied more than a month before the January 27, 2017 Notice of Trustee’s Sale, SPS was not subject to the restrictions of former Civil Code section 2923.6, subdivision (c).

Likewise unavailing is plaintiff’s reliance on Civil Code section 2924.17 to support her challenge to the assignment and notice of default “as being fatally deficient and void.” That provision, like Civil Code section 2923.55, was not in effect in 2011, when those documents were executed. As there is no indication that the legislation was intended to be applied retroactively, defendants cannot be held liable for violating it. (Cf. Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818 [no standing to challenge alleged defects in pre-HBOR assignment of deed of trust based on Civil Code sections 2924.17 and 2924.12, as no provision indicates legislative intention to make those statutes retroactive].)

5. Allegations of Deceptive, Unfair, and Unlawful Acts

Plaintiff’s arguments that defendants violated Business and Professions Code section 17200 et seq. are directed at the initiation of the 2006 loan, the identity of the party making the 2011 assignment, and the recording of the 2017 Notice of Trustee’s Sale “while a completed application and offer for a TPP is pending.” All of these contentions have already been discussed and found to be without merit.

6. Leave to Amend the Complaint

Plaintiff does not attempt to resurrect the allegations of her third cause of action for emotional duress, in which she asserted that SPS was “seeking to intimidate” her into accepting the terms of their modification offer, for which she was entitled to damages for the “emotional duress caused by SPS and its acts.” Instead, she recasts those allegations as causes of action for negligence and breach of contract. Recognizing that these theories were not raised below, she further suggests that we remand this case to permit her to amend her pleading to add claims for breach of contract and negligence.

In her opposition to the demurrers, plaintiff asked the court to give her the opportunity to amend her complaint if it found “any claim deficient,” but without suggesting how any amendment would cure such defect. Although her pleading does not contain causes of action for negligence or breach of contract— and she insists that she did not allege breach of contract in her first cause of action—plaintiff nonetheless suggests that her “undue influence and economic factual allegations show breach of contract and negligence claims.” (Capitalization omitted.)

Plaintiff did not allege anything relating her third cause of action—which, again, was for “emotional duress”—to either breach of contract or negligence. If viewed as a suggestion that plaintiff should be allowed to amend her complaint to add these claims, then we agree with U.S. Bank that such a disposition would be unwarranted. Plaintiff offers the vague assertion that defendants’ “breached the contract [presumably the deed of trust] by failing to provide her with . . . notice [of her right to bring a legal challenge to the foreclosure] and violating both federal and state laws.” But such an allegation would again be rejected as untimely, as any violation would be said to have occurred at the latest on the day the recorded notice of default was issued. Furthermore, the only paragraphs specifically identified as having been breached were paragraph Nos. 16 and 22 of the deed of trust. But as U.S. Bank and SPS point out, plaintiff failed to allege facts constituted damages proximately caused by defendants’ conduct following execution of the deed of trust. Clearly, plaintiff was aware of—and, in fact, availed herself of—the opportunity to bring a legal action challenging the foreclosure attempts on her residence. As for negligence, even assuming SPS had a duty of care in processing plaintiff’s loan modification, plaintiff alleged no facts indicating a failure to adhere to that duty in processing her application.

Plaintiff further suggests that she could amend her complaint to challenge, for the first time, the substitution of trustee, which was recorded together with the assignment on June 2, 2011. However, plaintiff did include allegations regarding the substitution of trustee in her first amended complaint; she alleged that it was illegal because (1) U.S. Bank “was not the true beneficial holder or beneficiary of the [deed of trust] and therefore, held no legal authority to execute or record the [substitution of trustee]”; (2) Chase had no legal authority to execute or record the [substitution of trustee] because it was acting on behalf of U.S. Bank; and (3) “only the Lender, or it’s [sic] agent, may substitute the trustee of the [deed of trust].” Even if these allegations were not time barred, they are based on the same arguments as those unsuccessfully proffered in plaintiff’s challenge to the assignment made the same day. Plaintiff has therefore failed to supply a legal basis for finding the substitution of trustee to be void. The trial court therefore did not abuse its discretion in sustaining the demurrer to plaintiff’s amended complaint without leave to amend. (Dinuba, supra, 41 Cal.4th at p. 865.)

7. Denial of Oral Argument

Plaintiff next argues that “[b]oth [sic] defendants were required to notice the Plaintiff of the court’s local rule requiring that any party wishing to orally argue a tentative, must call and provide notice to all parties and the court, the day before.” Plaintiff’s counsel concedes that the call “was inadvertently left off of Appellants counsel’s calendar” and that he thus “erred in not calling in.” But he also asserts that defendants themselves “erred in not noticing Appellants [sic] attorney of the requirements.” Plaintiff therefore argues on appeal that the court should have granted her petition under section 473 and permitted her to make the argument that the court had erred in its tentative ruling by “misapprehending the TPP was not for the first lien modification.”

Plaintiff’s argument must be rejected. First, she fails to acknowledge that an application for relief under section 473, subdivision (b), is a matter within the sound discretion of the superior court, which may grant relief if the moving party demonstrates the requisite “mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) On appeal, our review is “highly deferential,” allowing reversal only for a clear showing of abuse of that discretion. (McClain v. Kissler (2019) 39 Cal.App.5th 399.)

Applying that standard, we see no abuse of discretion in the lower court’s adoption of its tentative ruling without oral argument. Plaintiff cites no authority, by rule or statute, that required defendants to inform her counsel of the rule that a party must notify the court the day before the hearing that he or she wished to contest the tentative ruling by oral argument. Indeed, counsel’s declaration in support of the motion for relief made no mention of his unawareness of the local court rule (or even the basis of the intended objection); instead, he apologized for the inadvertent failure of his office calendaring system. At the hearing on the motion the court commented that plaintiff was not prejudiced by counsel’s nonappearance to contest the tentative ruling, because nothing counsel might have said about the ruling would have changed the outcome of the demurrers. As plaintiff offers no viable basis for finding an abuse of discretion on the facts presented, reversal is not warranted on this ground.

8. Expungement of Lis Pendens and Attorney Fees Order

Plaintiff’s final argument is that the court “erred in allowing expunge [sic] of the lis pendens and award of attorney fees.” This ruling is not properly before us, however. Plaintiff filed her notice of appeal on January 8, 2018, seeking review of the November 21 and December 5, 2017 judgments of dismissal. The motion by U.S. Bank and SPS to expunge plaintiff’s notice of pending action was argued long thereafter, and only on May 14, 2018 did the court grant the motion to expunge the lis pendens and award SPS $2,952 for the motion. “Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.” (Polster, Inc. v. Swing (1985) 164 Cal.App.3d 427, 436.) “If an appeal is from the judgment, the general rule is that the appeal will review the correctness of a judgment at the time it is rendered and matters occurring later are irrelevant.” (Soldate v. Fidelity Nat. Financial, Inc. (1998) 62 Cal.App.4th 1069, 1073.) Because the expungement order is beyond the scope of review in this appeal, we express no opinion regarding the merits of plaintiff’s challenge.

Disposition

The judgments are affirmed.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

Bryer v. Morgan Chase, N.A. et al.

H045407