Tah v. U.S. Bank CA1/3

Filed 3/12/13 Tah v. U.S. Bank CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

ELSI TAH, Plaintiff and Appellant, A135289 v. U.S. BANK, N.A., as Trustee, etc., (Sonoma County Super. Ct. No. SCV-249909) Defendant and Respondent.

Plaintiff Elsi Tah (Tah) appeals from a judgment dismissing her case against U.S. Bank N.A. (the Bank), as Trustee for Citigroup Mortgage Loan Trust, Inc. Mortgage Pass-Through Certificates, Series 2007-AR-1, after the Bank’s demurrer to Tah’s complaint was sustained without leave to amend. The sole issue is whether a court may grant relief pursuant to Code of Civil Procedure section 473, sua sponte, from an entry of default to enable a defendant to file a demurrer.1 Our answer is “yes,” and we affirm the judgment. I. BACKGROUND According to the trial court docket, designated as part of the clerk’s transcript on appeal, Tah filed her complaint on June 28, 2011. The complaint, which Tah has not included in the appellate record, is attached as an exhibit to her brief. The complaint alleges that the Bank is the trustee of a deed of trust securing a $622,300 mortgage loan

1 Unless otherwise indicated, subsequent statutory references are to the Code of Civil Procedure.

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on Tah’s residence. It seeks to postpone foreclosure of the deed of trust, rescind the loan agreement, and recover damages on various theories. When the court ruled on the Bank’s demurrer, it took judicial notice of its file in this case and a previous case filed by Tah against the Bank and others for the same relief sought in the present suit (Tah v. Wells Fargo Bank, N.A., et al; Sonoma County Super Ct. No. SVC-248866).2 The Bank, which was sued in the prior action as trustee of a different trust—the Harborview 2005-2 Trust Fund—demurred to the first amended complaint in that action, and the demurrer was sustained without leave to amend in May 2011. On June 28, 2011, Tah dismissed the prior action without prejudice, and filed the complaint in this case. The attorney who handled both cases for the Bank declared in support of the demurrer in this case that when he received the complaint he mistakenly believed it was the complaint in the prior action that Tah had dismissed. Thus, he did not timely file a responsive pleading. On June 30, 2011, Tah moved for an order postponing foreclosure, and the motion was granted in an order filed on August 5. The order, drafted by Tah’s counsel, stated: “Plaintiff’s motion to postpone non-judicial foreclosure is granted, because defendants have failed to contact the borrower before recording a Notice of Default,[3] pursuant to Civil Code §2923.5(a), and failed to include a declaration that the defendants have tried with due diligence to contact the borrower, pursuant to Civil Code § 2923.5(b). The foreclosure sale is postponed until compliance with Civil Code §2923.5 can be shown.” On October 3, 2011, Tah filed a request for entry of default against the Bank. The clerk of the superior court entered the default as requested on that date. After receiving Tah’s request for entry of default, the Bank’s counsel said he tried unsuccessfully to