Filed 4/17/13 Russell v. Deutsche Bank National Trust CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


KARAN J. RUSSELL,                                                       B239767

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                        Super. Ct. No. BC409718)
         v.

DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee, etc., et al.,

         Defendants and Respondents.



         APPEAL from an order of the Superior Court of Los Angeles County,
Michelle R. Rosenblatt, Judge. Affirmed.

         Karan J. Russell, in pro. per., for Plaintiff and Appellant.

         Houser & Allison, Eric D. Houser and Brian J. Wagner for Defendants and
Respondents.



                                            _____________________
                                   INTRODUCTION
       Plaintiff and appellant Karan J. Russell appeals an order denying her motion to set
aside the judgment in favor of defendants and respondents Deutsche Bank National Trust
Company as Trustee under Pooling and Servicing Agreement Dated as of June 1, 2007
Securitized Asset Backed Receivables LLC Trust 2007-BR5 Mortgage Pass-Through
Certificates, Series 2007-BR5 (Deutsche Bank) and Barclay’s Capital Real Estate Inc.,
doing business as HomEq Servicing (HomEq). We affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       In August 2006, Russell and Fred Hemphill obtained a loan in the amount of
$880,000 from New Century Mortgage Corporation (New Century). Russell and
Hemphill executed a promissory note and deed of trust. The deed of trust memorialized
New Century’s security interest in Russell’s real property located at 3624 Fairway
Boulevard in Los Angeles (the property.) Neither the promissory note nor the deed of
trust are in the record.
       In about March 2007, HomEq began servicing Russell’s loan. HomEq contends
that as of October 1, 2007, Russell was in default on her obligations under the promissory
note. HomEq requested Quality Loan Service Corp. (QLS) to initiate foreclosure
proceedings.
       In about January or February 2008, Mortgage Electronic Registration Systems,
Inc. (MERS), as nominee for New Century, executed an assignment of the deed of trust
to Deutsche Bank.
       In April 2008, QLS conducted a non-judicial foreclosure sale of the property. The
record does not indicate who purchased the property at the sale.
       According to the superior court docket sheet, Russell commenced this action in
March 2009 by filing a complaint. A copy of the complaint is not in the record.
       The docket sheet also indicates that Deutsche Bank and HomEq filed a motion for
summary judgment on April 28, 2011. Russell did not file an opposition brief. Russell
did not include a copy of the motion or any of its supporting papers in the record.



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         On July 20, 2011, the trial court entered an order granting the motion for summary
judgment. In so doing, the court found that Russell was in default on her loan obligations
to Deutsche Bank and had failed to make a tender offer. The court further found that
respondents conducted a duly authorized non-judicial foreclosure sale of the property.
         On August 8, 2011, the trial court entered judgment in favor of Deutsche Bank and
HomEq.
         On January 13, 2012, Russell filed a motion to set aside the judgment dated
August 8, 2011. Russell argued, inter alia, that the judgment should be vacated pursuant
to Code of Civil Procedure section 4731 because it was entered due to surprise, mistake or
excusable neglect, and that the judgment should be vacated because it was entered as a
result of a “fraud on the court.” Additionally, Russell argued that the judgment should be
vacated because the trial court did not have “jurisdiction” over the matter. This argument
was based, in part, on Russell’s claim that the assignment of the deed of trust and
promissory note were “fraudulent and void.”
         On February 15, 2012, the trial court entered an order denying Russell’s motion to
set aside the judgment. The court determined that the motion appeared to be an untimely
motion for reconsideration pursuant to section 1008. The court further found that Russell
was not entitled to relief under section 473 , subdivision (b), because she failed to bring
the motion within a “reasonable” time and because her “jurisdictional argument is poorly
taken.”
         On March 13, 2012, Russell filed a notice of appeal of the February 15, 2012,
order.




1
         All future statutory references are to the Code of Civil Procedure.


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                                     CONTENTIONS
        The gravamen of Russell’s appeal is that the trial court erroneously granted
respondents’ motion for summary judgment. Russell claims that respondents did not
produce evidence showing that the promissory note was physically delivered to Deutsche
Bank. She also contends that MERS did not have authority to assign the promissory
note.
        Respondents do not directly address Russell’s arguments regarding whether their
motion for summary judgment should have been granted. Instead, they contend that to
the extent Russell’s appeal seeks review of the trial court’s order granting summary
judgment, the appeal is untimely. They also argue that because the motion to set aside
the judgment was nothing more than a motion for reconsideration, the order denying the
motion was not appealable.2 Finally, respondents contend that to the extent Russell’s
motion to set aside the judgment was brought pursuant to section 473, subdivision (b), the
trial court did not abuse its discretion in denying the motion.
                                      DISCUSSION
        1.    Russell Did Not Meet Her Burden of Showing That the Trial Court’s Denial
              of Her Motion to Set Aside the Judgment Constituted Reversible Error
        Russell did not appeal the judgment dated August 8, 2011. Rather, she appealed
the February 15, 2012, order denying her motion to set aside the judgment. Contrary to
respondents’ argument, the motion was not simply a motion for reconsideration. It was
also a motion for relief under section 473, subdivision (b), which Russell’s supporting
memorandum expressly cited.
        An order denying a section 473, subdivision (b) motion is appealable. (Generale
Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394; Doppes
v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 1004, 1008; § 904.1, subd. (a)(2).)



2
      An order denying a motion for reconsideration is not appealable. (Powell v.
County of Orange (2011) 197 Cal.App.4th 1573, 1576.)


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Russell’s appeal was timely because her notice of appeal was filed less than 30 days after
the order was entered. (Cal. Rules of Court, rule 8.104(a)(1).)
       We review an order denying a section 473, subdivision (b) motion for abuse of
discretion. (Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898.) “The court
abuses its discretion only if its ruling is arbitrary, capricious or patently absurd.” (Faigin
v. Signature Group Holdings, Inc. (2012) 211 Cal.App.4th 726, 748.)
       Section 473, subdivision (b) provides that “[t]he court may, upon any terms as
may be just, relieve a party or his or her legal representative from a judgment . . . taken
against him or her through his or her mistake, inadvertence, surprise or excusable
neglect.” A motion for relief from a judgment pursuant to section 473, subdivision (b)
“shall be made within a reasonable time, in no case exceeding six months, after the
judgment . . . was taken.” (§ 473, subd. (b).)
       Whether the motion was filed within a reasonable time depends on the particular
facts and circumstances of the case. (Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523,
532 (Benjamin).) The moving party must be “diligent.” (Zamora v. Clayborn
Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) If the moving party has
inexplicably delayed bringing the motion for several months, he or she has not
demonstrated diligence. (Benjamin, at p. 529.)
       Here, the trial court denied Russell’s motion, in part, because it determined that
she did not file the motion within a “reasonable” time. Russell filed the motion more
than five months after the judgment was entered. Yet in her declaration in support of the
motion, Russell provided no explanation for the delay.
       In a “supplemental statement” dated February 3, 2012, Russell claimed that she
“recently” discovered evidence that Deutsche Bank was not “duly authorized to conduct
business in the State of California.” She also claimed that “through diligent efforts” in
obtaining information from New Century’s bankruptcy proceedings, she discovered that
New Century “did not duly, legally or otherwise, authorize an Assignment of the Deed of
Trust, on January 3, 2008.” Russell did not, however, provide a coherent explanation as
to why she did not discover this information earlier. She also did not describe when or


                                              5
how she obtained information from the bankruptcy proceedings, or the exact nature of
that information. Based on the record before us, we cannot say that the trial court acted
in an arbitrary, capricious, or patently absurd manner when it determined that Russell’s
motion was untimely because it was not filed within a reasonable time.
       Russell argues that she diligently filed her motion within 25 days after receiving
interrogatory responses in New Century’s bankruptcy proceedings in the United States
Bankruptcy Court for the District of Delaware.3 As evidence in support of this argument,
Russell relies on documents attached to an undated declaration she filed in this court. We
cannot, however, consider these documents because they were not filed or lodged in the
superior court. (Sahadi v. Scheaffer (2007) 155 Cal.App.4th 704, 723.) Moreover, this
declaration does not constitute admissible evidence because Russell did not sign it under
penalty of perjury under the laws of the State of California. (§ 2015.5; Kulshrestha v.
First Union Commercial Corp. (2004) 33 Cal.4th 601, 606.)
       Even assuming Russell’s section 473, subdivision (b) motion was timely, the trial
court acted within its discretion by denying it on the merits. Russell did not provide any
evidence of mistake, inadvertence, surprise or excusable neglect related to the trial
court’s entry of the judgment. She thus did not meet her burden of showing she was
entitled to relief under section 473, subdivision (b).
       2.     Russell Did Not Meet Her Burden of Showing the Trial Court Erroneously
              Granted Respondents’ Motion for Summary Judgment
       Assuming, arguendo, that Russell can raise in this appeal the issue of whether the
trial court erroneously granted respondents’ motion for summary judgment, Russell has
not met her burden of showing reversible error.


3
        An entity called “New Century Liquidating Trust” stated the following in response
to an interrogatory: “[T]he Russell Loan was not ‘sold’ to a third party; rather, the
Russell Loan was seized by Barclays Bank PLC . . . on March 16, 2007 due to the
Debtors’ default on a certain credit facility provided by Barclays.” Russell claims that
this response proves that the assignment of deed of trust executed by MERS was a
“forgery.”


                                              6
       We begin our analysis by reviewing some basic rules for appeals. A judgment or
an order of the trial court is presumed correct on appeal. (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) It is the appellant’s burden to affirmatively show error and to
provide a record on appeal sufficient for us to determine whether there was error. (Ibid.;
Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003; Protect Our Water v. County
of Merced (2003) 110 Cal.App.4th 362, 364.)
       We are also mindful of the parameters for our review of an order granting
summary judgment. A summary judgment motion is properly granted when there are no
triable issues of material fact and the moving party is entitled to judgment as a matter of
law. (§ 437c, subd. (c).) We review an order granting a motion for summary judgment
de novo. (Gutierrez v. Girardi (2011) 194 Cal.App.4th 925, 931.) The first step in our
analysis is to identify the issues raised by the pleadings “ ‘since it is these allegations to
which the motion must respond.’ ” (Ibid.)
       Here, Russell did not include in the record the complaint or any other pleading,
respondents’ motion for summary judgment, and the affidavits or declarations supporting
that motion. These omissions are fatal to Russell’s arguments regarding the summary
judgment motion. Without the complaint, we cannot determine the issues raised by the
pleadings. Without the moving papers and supporting evidence, we cannot determine
whether the trial court correctly granted the motion. Under these circumstances, we must
presume that the trial court correctly entered judgment in favor of respondents.
       At the end of her reply brief, Russell argued: “Although I lack the expertise in
pleading that the attorneys possess, I do recognize that there are several inconsistencies to
the Defendant’s story and documents.” We recognize that Russell is in propria persona.
“Pro. per litigants,” however, “are held to the same standards as attorneys.” (Kobayashi
v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
       Russell simply did not meet her burden of showing that the trial court committed
reversible error. Based on the record on appeal, we cannot reverse the trial court.




                                               7
                                  DISPOSITION
      We affirm the order dated February 15, 2012. Respondents are awarded costs on
appeal.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             KITCHING, J.

We concur:




                   CROSKEY, Acting P. J.




                   ALDRICH, J.




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