Gonsalves v. Deutsche Bank Nat. Trust Co. CA2/1

Filed 7/16/13 Gonsalves v. Deutsche Bank Nat. Trust Co. CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

MARY R. GONSALVES, B239671

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC464602) v.

DEUTSCHE BANK NATIONAL TRUST COMPANY,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. John L. Segal, Judge. Affirmed. Mary R. Gonsalves, in pro. per.; Juarez & Associates and Christian R. Juarez for Plaintiff and Appellant. Wright, Finlay & Zak, Robin Prema Wright, Jonathan D. Fink and Joshua R. Hernandez for Defendant and Respondent.

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In this matter, plaintiff Mary R. Gonsalves did not oppose a demurrer of defendant Deutsche Bank National Trust Company (Deutsche Bank), amend her complaint after the demurrer was sustained with leave to amend, or oppose Deutsche Bank‟s subsequent motion to dismiss. Gonsalves now appeals from the judgment entered after the court granted the motion to dismiss, contending that she had been “justified” in failing to oppose the demurrer because codefendant JMO, Inc., had filed a notice of automatic stay and that the court had erred in dismissing the case with prejudice. We disagree because Deutsche Bank did not have an identity of interest with JMO, Inc., and the case properly was dismissed with prejudice when Gonsalves did not amend. We affirm the judgment. BACKGROUND The background facts are taken from the complaint and matters judicially noticed by the trial court. (Evid. Code, § 459.) In September 2006, JMO, Inc., loaned Gonsalves $992,000 (loan) in return for Gonsalves‟s execution of a promissory note which was secured by a deed of trust on real property located in Los Angeles, California. Orange Coast Title was the trustee and Mortgage Electronic Registration Systems, Inc. (MERS), was the nominee beneficiary. After Gonsalves defaulted on loan payments, a notice of default was recorded on February 10, 2010. As the nominee of JMO, Inc., MERS sold the loan, which was pooled with other loans into a trust of which Deutsche Bank was the trustee; the “assignment of deed of trust” in favor of Deutsche Bank was recorded on April 16, 2010. A trustee‟s sale took place on September 7, 2010, with title reverting to Deutsche Bank. A trustee‟s deed upon sale was recorded on September 14, 2010. Over four and one-half months after its assignment of deed of trust to Deutsche Bank was recorded, JMO, Inc., filed a petition in the bankruptcy court on September 3, 2010. On July 1, 2011, Gonsalves filed a complaint for quiet title, “invalid foreclosure,” and breach of the covenant of good faith and fair dealing against Deutsche Bank and JMO, Inc.; and fraud against JMO, Inc. On July 13, 2011, JMO, Inc., filed a notice of automatic stay, indicating that Gonsalves‟s action was stayed with regard to JMO, Inc.