Fannie Mae v. Gardner CA1/3

Filed 3/25/14 Fannie Mae v. Gardner CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

FANNIE MAE, Plaintiff and Respondent, A138821 v. HONG JACQUELINE NGUYEN (Alameda County GARDNER, Super. Ct. No. RG11589720) Defendant and Appellant.

Defendant Hong Jacqueline Nguyen Gardner purports to appeal from a voluntary dismissal without prejudice of a judicial foreclosure action filed by plaintiff Fannie Mae. Because there is no appealable judgment, we dismiss the appeal. PROCEDURAL BACKGROUND Fannie Mae commenced this action in August 2011 by filing a complaint against Gardner for the appointment of a receiver and for judicial foreclosure. Fannie Mae alleged that Gardner was in default under the terms of a loan secured by a residential apartment building located in Oakland (the “property”). Fannie Mae requested that the court appoint a receiver with respect to the property. Fannie Mae also sought a judgment foreclosing on a deed of trust secured by the property. The court appointed a receiver with respect to the property in December 2011. The property was sold in a nonjudicial foreclosure at a trustee’s sale conducted in October 2012. Following the sale of the property in a nonjudicial foreclosure sale, Gardner filed a voluntary petition under Chapter 11 of the United States Bankruptcy

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Code in November 2012.1 The case was subsequently converted to a Chapter 7 proceeding. In the bankruptcy proceeding, Gardner filed an adversary complaint against Fannie Mae seeking to set aside the October 2012 nonjudicial foreclosure and quiet title to the property. In her adversary complaint in the bankruptcy proceeding, Gardner contended that Fannie Mae had violated Code of Civil Procedure section 726, subdivision (a) by filing a complaint for judicial foreclosure and subsequently proceeding in a nonjudicial foreclosure. She claimed that there can only be one form of action for enforcement of a secured right over real property under section 726, subdivision (a) of the Code of Civil Procedure. The bankruptcy court dismissed Gardner’s adversary complaint in March 2013. On April 26, 2013, the trial court in this action entered an order approving the receiver’s final accounting and requested fees. The order also discharged the receiver. On May 9, 2013, Fannie Mae filed a voluntary request for dismissal without prejudice of the complaint in this action. The clerk entered the dismissal the same day. Thereafter, on May 29, 2013, Gardner filed a notice of appeal. Her notice of appeal does not identify the order or judgment that is the subject of the appeal. Likewise, Gardner’s Civil Case Information Statement filed in this court does not identify the order or judgment from which she is appealing, nor does it list the date of any challenged order or judgment. The instructions on the Civil Case Information Sheet direct the appellant to attach “a copy of the judgment or order being appealed” to the form. Gardner attached a copy of the voluntary dismissal entered by the trial court to her Civil Case Information Statement. DISCUSSION A party has standing to appeal only if the party is legally aggrieved by an appealable order. (See Code Civ. Proc., § 902, 904.1.) The voluntary dismissal of an action against a defendant is not an appealable order. (H.D. Arnaiz, Ltd. v. County of San