Adkins v. EMC Mortgage Corp. CA1/1

Filed 10/4/13 Adkins v. EMC Mortgage Corp. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

DORAN ADKINS, Plaintiff and Appellant, A135574 v. EMC Mortgage Corporation, (Contra Costa County Super. Ct. No. MSC1001661) Defendant and Respondent.

Plaintiff Doran Adkins appeals a judgment dismissing his action against defendant and respondent EMC Mortgage Corporation, following the sustaining of its demurrer to his first amended complaint (FAC) without leave to amend. The essential issue presented is whether plaintiff was entitled to mandatory relief under Code of Civil Procedure section 473, subdivision (b),1 based on his counsel‟s failure to file an opposition to the demurrer. Because mandatory relief does not lie in these circumstances, the trial court properly denied plaintiff‟s motion for relief under section 473. The judgment is affirmed. FACTUAL AND PROCEDURAL BACKGROUND In or around February 2010, plaintiff defaulted on a residential home loan. On February 19, 2010, a notice of default was recorded. On May 20, 2012, a notice of trustee‟s sale in connection with the deed of trust was recorded. On June 9, 2010, plaintiff filed a complaint against various parties, including defendant.

1 All further statutory references are to the Code of Civil Procedure.

1

On November 29, 2010, defendant filed a demurrer as to the three claims raised against it in the complaint. Rather than opposing the demurrer, plaintiff elected to file his FAC on February 1, 2011. The FAC contains a single cause of action against defendant for wrongful foreclosure. On March 2, 2011, defendant filed a demurrer to the FAC. The demurrer was originally scheduled to be heard on April 27, 2011. The trial court continued the hearing on the demurrer to August 17, 2011 and then to August 24, 2011. Plaintiff was provided notice of both of those continuances but failed to file an opposition to defendant‟s demurrer. On August 24, 2011, the demurrer came on for hearing before the trial court. Both counsel for plaintiff and for defendant were present at the hearing. The court sustained the demurrer without leave to amend. On September 6, 2011, the court‟s order sustaining defendant‟s demurrer without leave to amend was entered. On September 15, 2011, the trial court issued its judgment of dismissal based on the demurrer. On September 28, 2011, plaintiff filed a motion to set aside the dismissal on the grounds of attorney fault under section 473. Plaintiff‟s counsel attached an affidavit admitting that the failure to timely submit an opposition was due to his own neglect. On November 30, 2011, the trial court denied the motion to set aside. This appeal followed. DISCUSSION Plaintiff contends he was entitled to mandatory relief from the order sustaining the demurrer without leave to amend (and the resulting dismissal), based on counsel‟s