Pielstick v. MidFirst Bank

Filed 3/26/14

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

STEPHEN H. PIELSTICK, B247106

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC475838) v.

MIDFIRST BANK et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Steven J. Kleifield, Judge. Affirmed.

Stephen H. Pielstick, in pro. per., for Plaintiff and Appellant.

Levinson Arshonsky & Kurtz, Richard I. Arshonsky and Jason J. Jarvis for Defendant and Respondent MidFirst Bank.

McCarthy & Holthus, Melissa Robbins Coutts and Gregory Belnap for Defendants and Respondents MidFirst Bank, Midland Financial Co., Quality Loan Service Corporation, and Mortgage Electronic Registration Systems, Inc.

Stephen H. Pielstick (appellant) appeals from a judgment dismissing his second amended complaint (SAC) against MidFirst Bank (MidFirst), Midland Financial Company (Midland), and Quality Loan Service Corporation (Quality) (collectively “respondents”) with prejudice after the trial court sustained respondents’ demurrer to the SAC without leave to amend. Appellant’s sole contention on appeal is that the trial court erred in denying his oral request at the hearing on the demurrer to voluntarily dismiss his case without prejudice pursuant to Code of Civil Procedure section 581 (section 581). We find no error and affirm. BACKGROUND This matter arises out of a nonjudicial foreclosure sale of property previously owned by appellant. Appellant alleged that the property consisted of two subdivided parcels of land in Los Angeles County, APN No. 3039-019-065 and APN No. 3039-019- 064. During a refinance in 2008, the properties were improperly recorded as a single property, APN No. 3039-019-040. Appellant alleged that due to the inaccurate recording, he suffered through a series of erroneous default notices from respondents. Appellant alleged that respondents began impounding appellant’s taxes and insurance from both subdivided APN numbered parcels into the refinanced single APN parcel. This caused an alleged escrow deficiency. A “Notice of Default and Election to Sell Under Deed of Trust” was recorded on or about December 20, 2010. The sale took place on December 28, 2011, and the “Trustee’s Deed Upon Sale” was recorded on January 12, 2012. MidFirst became the record owner of the property. On December 23, 2011, appellant filed a verified complaint against MidFirst and Midland, among others, alleging negligence, violation of the one action rule, reformation of deed of trust, quiet title, and tortious interference. Appellant filed his first amended complaint on January 13, 2012, adding Quality as a defendant and adding causes of action for financial elder abuse and wrongful foreclosure. Quality demurred to the first amended complaint on April 12, 2012. MidFirst and Midland demurred to the first amended complaint on May 10, 2012. The trial court