Smith v. Carrington Mortgage Services CA5

Filed 6/17/13 Smith v. Carrington Mortgage Services CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

BESSIE MAE SMITH, F065376 Plaintiff and Appellant, (Super. Ct. No. 621515) v.

CARRINGTON MORTGAGE SERVICES, et OPINION al.,

Defendants and Respondents.

APPEAL from judgments of the Superior Court of Stanislaus County. Roger M. Beauchesne, Judge. Bessie Mae Smith, in propria persona, for Plaintiff and Appellant. Wolfe & Wyman, Kelly Andrew Beall, Alice M. Dostalova-Busick, and Meagan S. Tom for Defendant and Respondent Carrington Mortgage Services. Buchalter Nemer, Robert M. Dato and Mia S. Blackler for Defendant and Respondent Fremont Reorganizing Corporation, fka Fremont Investment & Loan as succeeded in interest by Signature Group Holdings, Inc. -ooOoo- Plaintiff Bessie Mae Smith (Smith) purports to appeal, in propria persona, from an order denying her motion to set aside an order granting terminating sanctions to

defendants Carrington Mortgage Services, LLC (Carrington) and Fremont Reorganizing Corporation, fka Fremont Investment and Loan as succeeded in interest by Signature Group Holdings, Inc. (Fremont) (collectively respondents) and the resulting judgments. Because such an order is not appealable except under limited circumstances which are not present here, we dismiss the appeal. FACTUAL AND PROCEDURAL BACKGROUND Smith filed this lawsuit in December 2007, naming Fremont and two others as defendants, whereby she sought to set aside a trustee‟s deed upon sale of her residence and to quiet title to the property on the ground that the trustee‟s sale was procedurally defective and she was not given adequate notice of the sale. Smith later filed a third amended complaint, in which she added Carrington as a defendant, included causes of action for unfair business practices, breach of contract and declaratory relief, and alleged the property could not be foreclosed because she entered into an agreement with Fremont to extend the time for payment of the mortgage loan. Both Fremont and Carrington filed motions to compel Smith to provide responses to form interrogatories and requests for production of documents, as well as for orders deeming requests for admissions granted. The trial court granted both motions and required Smith to substantively respond to the discovery without objection. While Smith served both Fremont and Carrington with responses, the responses were not substantive and consisted primarily of boilerplate objections. Carrington filed a motion for a terminating sanction based on Smith‟s failure to comply with the trial court‟s discovery order. Fremont filed a joinder to the motion and requested the same sanction. On May 16, 2011, the trial court issued a minute order granting the motions, finding that Smith had “misused the discovery process by failing to respond to discovery as to both defendants” and that “the failure has been willful.” While the trial court recognized termination was a drastic sanction, it found the circumstances