Henry Walsh, Judge Superior Court County of Ventura (Super. Ct. No. 56-2010-00378817-CU-OR-VTA)
The opinion of the court was delivered by: Yegan, J.
Some appeals are filed to delay the inevitable. This is such an appeal. It is frivolous and was " 'dead on arrival' at the appellate courthouse." (Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1449.)
Jane Brown was/is in default on a home mortgage. Foreclosure proceedings were commenced and she filed suit to prevent the sale of her home. She appeals from a June 8, 2011 order dissolving a preliminary injunction and allowing the sale to go forward. This was attributable to her failing to deposit $1,700 a month into a trust account as ordered by the trial court. The preliminary injunction required that the money be deposited in lieu of an injunction bond. (Code Civ. Proc., § 529, subd. (a).)
In her opening brief appellant claims that the order dissolving the injunction is invalid because it issued "ex parte." After calendar notice was sent to him, trial and appellate counsel, Jason W. Estavillo, asked that we dismiss the appeal. We will deny this request. We will affirm the judgment and refer the matter to the California State Bar for consideration of discipline.
Facts and Procedural History
In 2010 appellant defaulted on her $480,000 World Savings Bank FSB loan secured by a deed of trust.*fn1 Wachovia Mortgage, a division of Wells Fargo Bank NA (respondent) recorded a Notice of Trustee's Sale on May 12, 2010. The trustee's sale was postponed to August 9, 2010.
Appellant sued for declaratory/injunctive relief on August 5, 2010. The trial court granted a temporary restraining order to stop the trustee's sale. On September 7, 2010, the trial court granted a preliminary injunction on condition that appellant deposit $1,700 a month in a client trust account in lieu of a bond.
On June 2, 2011, respondent filed an ex parte application to dissolve the preliminary injunction because appellant had not made a single payment. It argued that "we're facing a deadline under the trustee sale date of next week. And we have no reason to believe these payments . . . will be made. She has not paid anything on her mortgage in over two years. There is no reason to believe she's going to make this payment. It's all been simply a delay tactic."
Appellant, represented by Mr. Estavillo, appeared at the June 3, 2011 ex parte hearing and argued that the proposed order should not issue ex parte. The trial court agreed, set a June 8, 2011 hearing date, and told appellant's trial counsel "to scramble on this. Find out from your client what she has done or hasn't done. And I should tell you that one of the myths that sometimes creeps into this [type of] case is that if the plaintiff is successful, they end up with a free house. It doesn't work that way." Counsel told the court that he would "make sure" the payments would "get made."
On June 7, 2011, appellant filed opposition papers but failed to explain why the money was not deposited in lieu of a bond. Respondent argued that appellant has "not complied with the preliminary injunction. They have not made a payment. There is nothing in there about their ability to make the payment . . . . They have defied [the] court order since December and they continue to do so."
The trial court dissolved the preliminary injunction and signed the proposed order. The June 8, 2011 order provides: "The foreclosure sale scheduled for June 10, 2011 may go forward as scheduled."
On June 8, 2011, appellant filed a notice of appeal. The filing of the notice of appeal works as a "stay" of the trial court's order and stops the trustee's sale. (Code Civ. Proc., § 916, subd. (a); Royal Thrift & Loan ...