Filed 10/9/14 Nottebohm v. American Home Mortgage Servicing CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


ANDREAS NOTTEBOHM et al.,
         Plaintiffs and Appellants,                                  A139030
v.
                                                                     (Marin County
AMERICAN HOME MORTGAGE                                               Super. Ct. No. CIV 1001551)
SERVICING, INC., et al.,
         Defendants and Respondents.


         In this wrongful foreclosure action, Andreas Nottebohm and Tess Nottebohm
appeal from a judgment of dismissal entered after the trial court sustained respondents’
demurrer to their third amended complaint without leave to amend. The Nottebohms
contend the court erred by: (1) granting their motion to set aside a prior dismissal of their
claims, but failing to do so nunc pro tunc; (2) granting respondents’ motion to expunge a
lis pendens that the Nottebohms had placed on the subject property; (3) sustaining
respondents’ demurrer to the third amended complaint and denying leave to amend;
(4) declining to continue the hearing on the demurrer; and (5) undertaking certain acts
after the Nottebohms requested disqualification of the judge under Code of Civil
Procedure section 170.3. We will affirm the judgment.




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                      I. FACTS AND PROCEDURAL HISTORY
       Several years ago, the Nottebohms filed this lawsuit to contest a proposed
nonjudicial foreclosure upon their real property after they defaulted on their mortgage
back in 2009. We summarize the proceedings to the extent germane to the appeal.
       A. Original Complaint and Demurrer
       The Nottebohms filed their complaint in March 2010 against respondent American
Home Mortgage Servicing, Inc. (AHMSI) and others, asserting fraud, breach of contract,
statutory violations, and other claims.
       AHMSI filed a demurrer to the complaint, contending the pleading failed to allege
facts sufficient to state a cause of action.1 A hearing was set for July 28, 2010.
       The day before the scheduled hearing date, the Nottebohms filed a first amended
complaint, mooting AHMSI’s demurrer. The first amended complaint added respondent
“Deutsche National Trust Company as Trustee for American Home Mortgage Assets
Trust 2007-2 Mortgage-Backed Pass-Through Certificates, Series 2007-2” (DBNTC) as a
defendant.
       B. First Amended Complaint and Demurrer
       In September 2010, AHMSI and DBNTC filed a demurrer to the first amended
complaint on the ground that it failed to state a cause of action against them because, like
the original complaint, it relied on conclusory allegations and erroneous legal theories.
       On January 21, 2011, the court sustained AHMSI and DBNTC’s demurrer to the
first amended complaint, with leave to amend.
       C. Second and Third Amended Complaints and Dismissals
       The Nottebohms filed a second amended complaint on March 16, 2011. The
second amended complaint asserted 12 causes of action, including federal law claims for
the first time.



1
        The respondents’ brief represents that AHMSI is now known as Homeward
Residential, Inc. To maintain consistency with the appellate record, we will continue to
refer to the entity as AHMSI in the text of this opinion.


                                              2
              1. Removal to Federal Court and Remanded Third Amended Complaint
        In April 2011, respondents removed the action to federal court based on federal
question jurisdiction. Respondents then filed a motion in federal court to dismiss the
second amended complaint.
        In June 2011, the federal court granted the Nottebohms leave to amend their
complaint again, because they had retained new counsel.
        The Nottebohms filed their third amended complaint on June 24, 2011, purporting
to assert a single cause of action for “wrongful foreclosure” against AHMSI, DBNTC,
respondent Mortgage Electronic Registration Systems, Inc. (MERS), and others.
        Respondents filed a motion to dismiss the third amended complaint in July 2011.
Because the third amended complaint no longer included any federal claim, however, the
federal court remanded the case to the Marin County Superior Court in August 2011.
              2. Initial Dismissal of Third Amended Complaint
        On September 26, 2011, respondents filed a demurrer to the third amended
complaint on the ground that the complaint failed to state a cause of action. Respondents
asserted that the Nottebohms could not proceed because they had not alleged a tender or
ability to pay the loan. Further, respondents maintained, the Nottebohms’ legal theories
were contrary to California law: they could not challenge respondents’ standing to
initiate the foreclosure action, MERS had a legal right to assign the deed of trust, and
California law did not require proof of the chain of title or recordation of a valid
assignment in order to foreclose. The Nottebohms did not file an opposition to
respondents’ demurrer.
        The court issued an order sustaining respondents’ demurrer to the third amended
complaint without leave to amend, as well as a judgment of dismissal, on February 7,
2012.
              3. Relief from Dismissal
        The Nottebohms filed a motion to set aside the February 2012 judgment (and
order sustaining the demurrer) based on the inadvertence, mistake and excusable and
inexcusable neglect of their attorney, Mitchell L. Abdallah, in failing to file an opposition


                                              3
to the demurrer. The court granted this motion on September 7, 2012, pursuant to
Code of Civil Procedure section 473, subdivision (b).
              4. The Nottebohms’ Lis Pendens and Its Expungement
       Also on September 7, 2012, the Nottebohms filed a “Notice of Pendency of
Action” (lis pendens) in regard to the property.
       On September 28, 2012, respondents filed an ex parte application for an order
expunging the lis pendens. The court set the matter for a hearing on October 26, 2012.
On October 22, 2012, the Nottebohms filed a belated opposition to the motion to
expunge.
       The court ordered the expungement on October 26, 2012.
              5. Second Dismissal of Third Amended Complaint
       Despite having engaged new counsel (Michael Silberstein), the Nottebohms again
failed to timely oppose respondents’ demurrer to their third amended complaint. Instead,
they filed a motion for leave to amend on October 4, 2012, and an untimely opposition to
the demurrer on October 12, 2012.
       On October 23, 2012, the court again sustained respondents’ demurrer to the third
amended complaint without leave to amend. Judgment was entered for respondents for
the second time on November 7, 2012.
              6. Relief from Dismissal Yet Again
       On November 13, 2012, the Nottebohms (through counsel) moved the court to set
aside the November 2012 judgment entered in respondents’ favor and the October 2012
order sustaining the demurrer to the third amended complaint, based on the mistake of
attorney Silberstein in failing to oppose the demurrer.
       By order filed on March 26, 2013, the court granted the motion to set aside the
October 2012 order sustaining the demurrer and the November 2012 judgment of
dismissal. The court set a new hearing on respondents’ demurrer for April 12, 2013. The
court also ordered that the Nottebohms’ motion for leave to file a fourth amended
complaint would be heard at the same time.



                                             4
                7. Third Dismissal of Third Amended Complaint
          On March 19, 2013, the Nottebohms (apparently proceeding in pro per) filed an
opposition to respondents’ demurrer to the third amended complaint and a request for
judicial notice. The Nottebohms argued that the foreclosure sale was precluded by the
California Foreclosure Prevention Act (Civ. Code, former § 2923.52 et seq.); they did not
have to tender the amount owing on their loan; DBNTC lacked authority to proceed
because it was not the actual owner of the note or deed of trust; and DBNTC was neither
the lender nor a beneficiary as a result of the securitization of the loan.
          On April 2, 2013, respondents filed a reply in support of their demurrer, along
with a request for judicial notice, detailing the history of their attempts to challenge the
third amended complaint and explaining why the Nottebohms’ arguments on the merits
were incorrect under California law.
          On April 9, 2013, three days before the scheduled hearing on respondents’
demurrer and the Nottebohms’ request to file a fourth amended complaint, the
Nottebohms filed a request (through new counsel, The Harper Legal Group) for a
continuance. The sole basis for their request was that they had filed another lawsuit
against respondents (Nottebohm v. Homeward Residential, Inc. (Super Ct. Marin
County, 2012, No. CIV 1205335); hereafter Nottebohm II), which encompassed all the
claims in the proposed fourth amended complaint and added new parties and causes of
action. Because the Nottebohms had filed a motion in Nottebohm II to have the two
proceedings consolidated, and a hearing on the motion was set for June 14, 2013, the
Nottebohms requested a continuance of the demurrer hearing until then.
          On April 12, 2013, the trial court adopted its tentative ruling—which neither party
contested—and denied the Nottebohms’ request for a continuance, sustained respondents’
demurrer to the third amended complaint, and denied leave to amend. As discussed post,
the court’s written order of April 25, 2013, included an extensive explanation for its
ruling.
          Judgment of dismissal was thereafter entered in respondents’ favor.



                                               5
       D. Appeal
       On June 19, 2013, the Nottebohms filed a notice of appeal, representing that they
were appealing the “judgment of dismissal after an order sustaining a demurrer” and the
“[f]ailure of the Court to continue Demurrer to be heard at same time as the hearing of
Plaintiffs’ Motion to Consolidate the instant matter with Marin Superior Court
Case No. CIV 1205335.”
                                    II. DISCUSSION
       We consider the Nottebohms’ contentions in turn.
       A. Setting Aside Dismissal, But Not Nunc Pro Tunc
       As mentioned, the court granted the Nottebohms’ motion to set aside the
February 2012 dismissal, and the underlying order sustaining the demurrer to their third
amended complaint, in September 2012. The Nottebohms now contend they “requested
that the Order granting relief be nunc pro tunc to January 27, 2012”—the date of the
court’s minute order that had sustained the demurrer—but the set-aside order was not
entered nunc pro tunc.
       The Nottebohms’ contention is unavailing. In the first place, they provide no
citations to the record to support their argument. It was respondents, not the Nottebohms,
who asked at the hearing whether the order would be entered nunc pro tunc. When the
Nottebohms’ attorney was queried about the issue, he did not advocate for nunc pro tunc
entry, but asserted “I am not prepared to argue whether it nunc pro tunc [sic] . . . .”
Furthermore, it was the Nottebohms’ attorney who prepared the order without a reference
to entry nunc pro tunc.
       In any event, the Nottebohms cannot challenge the set-aside order in this appeal.
An order under Code of Civil Procedure section 473 is directly and independently
appealable under Code of Civil Procedure section 904.1, subdivision (a)(2). (See Leader
v. Health Industries Of America, Inc. (2001) 89 Cal.App.4th 603, 611 [order denying
motion to vacate a dismissal under Code Civ. Proc., § 473 is appealable].) Because the
Nottebohms’ notice of appeal does not mention the order granting the motion to set aside
the dismissal, we have no jurisdiction to review it. (Cal. Rules of Court, rule 8.100(a)


                                              6
[notice of appeal must identify order appealed from]; see DeZerega v. Meggs (2000)
83 Cal.App.4th 28, 43 (DeZerga) [a separately appealable order must be identified in the
notice of appeal]; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990)
220 Cal.App.3d 35, 46-47 [no jurisdiction to review appealable postjudgment order that
was not identified in notice of appeal].)
       Even if we construed the notice of appeal broadly to include the order setting aside
the dismissal, the appeal from the order would be untimely. The order was entered on
September 7, 2012. Because no notice of its entry was given, the notice of appeal had to
be filed within 180 days after the entry, yielding a deadline in March 2013 for the notice
of appeal. (Cal. Rules of Court, rules 8.104(a)(3), 8.104(f).) The Nottebohms did not file
their notice of appeal until June 2013.
       B. Order Expunging Lis Pendens
       The Nottebohms next contend the court erred in granting respondents’ motion to
expunge the lis pendens that the Nottebohms had placed on the property.
       A trial court is required to order expungement of a lis pendens if the pleading on
which it is based does not contain a “real property claim.” (Code Civ. Proc., § 405.31.)
The court must also order expungement if the claimant has not shown the “probable
validity” of the real property claim. (Code Civ. Proc., § 405.32.)
       Here, the Nottebohms fail to show that they established the probable validity of
any real property claim contained in their third amended complaint. To the contrary, as
we discuss post, they do nothing to explain why they have any potentially meritorious
claim in the face of the law set forth by the court in its order sustaining the demurrer to
the third amended complaint. Accordingly, they fail to establish error.
       At any rate, an order expunging a lis pendens is not appealable. Review is
available only by a writ petition, filed within 20 days after service of the order. (Code
Civ. Proc. § 405.39; see Shah v. McMahon (2007) 148 Cal.App.4th 526, 529-530.) The
expungement order was served on October 26, 2012, and the Nottebohms fail to
demonstrate any entitlement to appellate review.



                                              7
       C. Order Sustaining Demurrer to Third Amended Complaint
       The Nottebohms further contend that the trial court erred in sustaining
respondents’ demurrer to the third amended complaint and denying their request for leave
to amend.
              1. Sustaining Demurrer
       “In our de novo review of an order sustaining a demurrer, we assume the truth of
all facts properly pleaded in the complaint or reasonably inferred from the pleading, but
not mere contentions, deductions, or conclusions of law. [Citation.] We then determine
if those facts are sufficient, as a matter of law, to state a cause of action under any legal
theory. [Citation.] [¶] In making this determination, we also consider facts of which the
trial court properly took judicial notice. [Citation.]” (Intengan v. BAC Home Loans
Servicing LP (2013) 214 Cal.App.4th 1047, 1052 (Intengan).)
       “In order to prevail on appeal from an order sustaining a demurrer, the appellant
must affirmatively demonstrate error. Specifically, the appellant must show that the facts
pleaded are sufficient to establish every element of a cause of action and overcome all
legal grounds on which the trial court sustained the demurrer. [Citation.] We will affirm
the ruling if there is any ground on which the demurrer could have been properly
sustained. [Citation.]” (Intengan, supra, 214 Cal.App.4th at p. 1052.)
       Here, in its order sustaining the demurrer, the trial court explained that the third
amended complaint failed to state a cause of action because the Nottebohms’ legal
theories were contrary to California law: (1) MERS has the authority to effectuate an
assignment (citing Herrera v. Federal Nat. Mortg. Assn. (2012) 205 Cal.App.4th
1495, 1498); (2) a substitution of trustee does not have to be recorded prior to a notice of
default (citing Civ. Code, § 2934a); (3) Civil Code section 2932.5 does not apply to deeds
of trust (citing Herrera, supra, 205 Cal.App.4th at p. 1509); (4) the Commercial Code
does not govern nonjudicial foreclosures (citing Debrunner v. Deutsche Bank National
Trust Co. (2012) 204 Cal.App.4th 433, 440-441); (5) Civil Code section 2923.5 does not
provide relief after a trustee’s sale has taken place (citing Mabry v. Superior Court (2010)
185 Cal.App.4th 208, 214); and (6) the securitization of a loan does not void the


                                               8
beneficiary’s power of sale (citing Robertson v. Citibank, N.A. (N.D.Cal., Feb. 27, 2013,
No. C 12-02996-JSW) 2013 WL 752491, *3; In re Cedano (9th Cir. 2012) 470 B.R.
522).
        In their opening brief in this appeal (AOB), the Nottebohms insist that their
pleading “contains factual assertions which, given the presumption of truth for pleading
purposes, inform the Defendant of the causes of action. . . . In other words, the factual
allegations do raise a right to relief above the level of speculation.” But they fail to
indicate which factual assertions in the third amended complaint they believe state a
cause of action or why. Moreover, they do not address the cases on which the trial court
based its conclusion that the third amended complaint was insufficient as a matter of law,
or provide any argument or legal authority to the contrary. It is the Nottebohms’ burden
on appeal to show error affirmatively through argument, citations to the record, and
relevant legal authority. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003, fn. 2
(Pringle).)
        In their reply brief, the Nottebohms argue that they alleged the elements of causes
of action for breach of contract and breach of the implied covenant of good faith and fair
dealing, as well as facts supporting a special relationship for the purposes of establishing
a tortious breach of the implied covenant. Their argument is unavailing, for several
reasons. First, the third amended complaint purports to allege only a cause of action for
“wrongful foreclosure,” not breach of contract or breach of the implied covenant, and the
Nottebohms did not contend in the trial court that those causes of action were sufficiently
alleged. Second, while we may sometimes consider arguments raised for the first time on
appeal, particularly in the context of a demurrer, the Nottebohms waived their right to
assert the argument by failing to raise it in their AOB. (REO Broadcasting Consultants
v. Martin (1999) 69 Cal.App.4th 489, 500.) Third, although they make the argument in
their reply brief, they do not cite to the record or identify any allegations that satisfy the
requisite elements of the causes of action. (Pringle, supra, 73 Cal.App.4th at p. 1003,
fn. 2.) Fourth, the Nottebohms still fail to address the case law cited by the trial court in



                                               9
its order, let alone demonstrate why those authorities do not preclude claims for breach of
contract and breach of the implied covenant, or any other claim.
       The Nottebohms therefore fail to establish error in the court’s order sustaining the
demurrer to their third amended complaint.
              2. Denying Leave to Amend
       We review a denial of leave to amend for an abuse of discretion. (Debro v. Los
Angeles Raiders (2001) 92 Cal.App.4th 940, 946.) Typically, an appellant must
demonstrate a reasonable possibility that the defects in the operative pleading can be
cured by amendment. (E.g., Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081; see Vaca v. Wachovia Mortgage Corp. (2011) 198 Cal.App.4th 737, 744.)
Thus, the Nottebohms must show how the third amended complaint could further be
amended and why, as so amended, the pleading would state a cause of action.
       The Nottebohms fail to demonstrate how they could further amend the third
amended complaint to state a cause of action. They merely “assert that adequate factual
allegations were presented to permit, at the very least, further amendment.” They do not
explain what factual allegations indicated that they would be able to state a claim, or
specify any additional allegations they could allege in good faith to cure the deficiencies
of their pleading.
       The Nottebohms insist they were entitled to “some concessions at the pleading
stage” because they were “self-represented.” They cite no California precedent for that
proposition. To the contrary, under California law, pro per litigants are generally not
entitled to greater consideration than litigants with attorneys. (E.g., Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 984-985; Burnete v. La Casa Dana Apartments (2007)
148 Cal.App.4th 1262, 1267.) In any event, the Nottebohms had multiple opportunities
to state a cause of action—with and without the help of legal counsel—yet repeatedly
failed to do so, and they continue to fail to articulate any possibility that they could allege
a cognizable cause of action.




                                              10
       D. Denial of Continuance of Demurrer Hearing
       The Nottebohms contend the court erred in declining to continue the hearing on
respondents’ demurrer to their third amended complaint for over two months, from
April 12, 2013, to some date on or after June 14, 2013. We review the order for an abuse
of discretion. (In re V.V. (2010) 188 Cal.App.4th 392, 399.)
       To obtain a continuance of a hearing, a party must show good cause. (Cotton v.
StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444.) Here, the sole basis for
the Nottebohms’ request was that they had filed Nottebohm II against respondents and
had moved in that action for consolidation of the proceedings. However, the Nottebohms
did not provide the trial court with any authority indicating that their consolidation
motion would be granted. Nor did they demonstrate that a continuance of the demurrer
hearing would not prejudice respondents or unduly delay the proceedings. After all,
Nottebohm II had been filed back in November 2012, yet the motion to consolidate was
not brought until April 4, 2013, a few days before the demurrer hearing in this action.
The Nottebohms’ request for a continuance was filed just three days before the demurrer
hearing. And by that time, more than a year and a half had elapsed since respondents
first demurred to the third amended complaint in September 2011. The court did not
abuse its discretion in concluding the Nottebohms failed to show good cause for the
continuance.
       In addition, the Nottebohms do not demonstrate that they were prejudiced by the
denial of a continuance. The briefing on the demurrer had already been completed, and
there was no indication that the Nottebohms would have had a better defense to the
demurrer if the hearing had been continued. And, since they have not shown that their
third amended complaint states a cause of action, there is no prejudice in those claims not
being consolidated with the claims in Nottebohm II.
       In their reply brief, the Nottebohms point to the rule against splitting a cause of
action, arguing that they “sought to continue the hearing on the Demurrer in order to
preempt possible assertion of res judicata and/or collateral estoppel,” and assert that
“[t]he trial court failed to properly consider this issue . . . .” Their request for a


                                               11
continuance in the trial court, however, never mentioned any split cause of action. In any
event, they fail to explain how any cause of action was impermissibly split between this
case and Nottebohm II, let alone why their own act of splitting it would entitle them to a
continuance.
       E. The Nottebohms’ Request for Disqualification of the Judge
       According to the Nottebohms’ representation in their AOB, they filed a request for
the disqualification of the judge who was scheduled to hear respondents’ motion for
attorney fees, a day before the hearing date, pursuant to Code of Civil Procedure
section 170.3, subdivision (c)(1). In their AOB, the Nottebohms contend the court erred
by nonetheless proceeding to rule on respondents’ motion for attorney fees. In their reply
brief, they contend the court erred by issuing an order denying or striking their statement
of disqualification. (See Code Civ. Proc., § 170.4, subd. (d) [“[e]xcept as provided in this
section, a disqualified judge shall have no power to act in any proceeding after his or her
disqualification . . . has been determined”].)
       The Nottebohms fail to establish any right to appellate review in this regard. In
the first place, the order striking the Nottebohms’ disqualification statement was entered
on November 22, 2013. Both this order, and any ensuing order on respondents’ motion
for attorney fees, were therefore issued after entry of the judgment in this case. As
postjudgment orders, they are separately appealable and, therefore, must be explicitly
identified in a notice of appeal. (DeZerega, supra, 83 Cal.App.4th at p. 43.) Neither the
order striking the disqualification statement nor any order awarding respondents attorney
fees are mentioned in the Nottebohms’ notice of appeal. We therefore do not have
jurisdiction to review them. (Ibid.) Indeed, the appellate record does not contain the
Nottebohms’ disqualification statement, respondents’ motion for attorney fees, or the
order awarding attorney fees.
       Finally, an order determining whether a judge should be disqualified is not
reviewable on appeal. Such an order may be reviewed only upon the timely filing of a
writ petition. (Code Civ. Proc. § 170.3, subd. (d); People v. Barrera (1999)
70 Cal.App.4th 541, 550; Guedalia v. Superior Court (1989) 211 Cal.App.3d 1156,


                                             12
1159-1160.) Based on the record in this appeal, the Nottebohms are not entitled to
appellate review of the court’s actions in connection with the disqualification request.2
                                   III. DISPOSITION
       The judgment is affirmed.




2
       In their reply brief, the Nottebohms contend that respondents’ motion for
attorney fees was heard on February 7, 2014, and the court awarded fees in the amount
of $118,000. None of this is in the appellate record, and, as mentioned, the attorney
fees order was not identified in the notice of appeal or any amendment thereto. The
Nottebohms also represent that a federal bankruptcy order discharged any obligation
they had to pay the fees. These matters are not properly before us.
       On September 15, 2014, the Nottebohms filed a motion for an order staying any
action by respondents that could cause the sale of the property or the Nottebohms’
removal from the property during the pendancy of this appeal. We now deny the
motion.


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                            NEEDHAM, J.



We concur.




SIMONS, Acting P. J.




BRUINIERS, J.




                       14
