U.S. Bank v. Elstead CA1/2

Filed 6/27/23 U.S. Bank v. Elstead CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

U.S. BANK et al., Plaintiffs and Respondents, A166583 v. JOHN CLIFTON ELSTEAD, (Alameda County Super. Ct. No. RG07346492) Defendant and Appellant.

John C. Elstead, the defendant in a judicial foreclosure action, appeals an October 7, 2022 order directing the clerk’s office of the Alameda County Superior Court to issue a writ of sale to effectuate a judgment entered on May 2, 2022, ordering the sale of his home. We affirm the order. BACKGROUND On May 2, 2022, the trial court entered a judgment of judicial foreclosure in favor of respondent U.S. Bank (the Bank), ordering the sale of Elstead’s home in Oakland, California. The judgment was entered after summary judgment was granted in favor of the Bank on its foreclosure complaint, and against Elstead on a cross-complaint he filed against the Bank and related entities. As described by Elstead, his cross-claims concerned an alleged conspiracy to withhold the release of insurance proceeds

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to fund repairs to his home necessitated by damage from falling trees and rain. Elstead then appealed the judgment, and that appeal is presently pending in this court (No. A165202). Following the entry of judgment, the Bank asked staff members of the Alameda County Clerk’s Office to issue a writ of sale but was advised that, because Elstead had filed a notice of appeal, court approval was needed. After initially trying to secure court approval for the writ of sale on an ex parte basis, the Bank ultimately filed a noticed motion asking the trial court to (1) clarify that no automatic stay was in effect, and (2) direct the clerk to issue the writ of sale. Elstead opposed the motion on various grounds and, after a hearing, the trial court granted the motion. It confirmed that Elstead’s appeal did not automatically stay the judgment and directed the Alameda County Clerk’s Office to issue writ(s) of sale without further delay. That ruling is the subject of this appeal. DISCUSSION On appeal, the judgment is presumed correct and it is an appellant’s burden to affirmatively demonstrate the existence of an error that is prejudicial. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 601, 615.) An appellant’s burden to demonstrate prejudicial error “remains the same whether or not the respondent files a brief or provides argument or authority on an issue.” (Doe v. McLaughlin (2022) 83 Cal.App.5th 640, 655.) Elstead has not met his burden to show the trial court erred. Elstead argues, first, that the writ of sale was not authorized under Code of Civil Procedure section 712.010,1 the statute cited by the trial court.