Filed 8/10/15 Hernandez v. Wells Fargo Bank 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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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


ELIZABETH MARIE HERNANDEZ,                                                    B252079

          Plaintiff and Appellant,                                            (Los Angeles County
                                                                              Super. Ct. No. EC059728)
          v.

WELLS FARGO BANK, N.A., et al.,

          Defendants and Respondents.



          APPEAL from a judgment of the Superior Court of Los Angeles County,
William D. Stewart, Judge. Dismissed.
          Elizabeth Hernandez, in pro. per., for Plaintiff and Appellant.
          Houser & Allison, Robert W. Norman and Jeannette R. Marsala for Defendants
and Respondents Wells Fargo Bank, N.A., as Trustee under Pooling and Servicing
Agreement dated as of September 1, 2006 Securitized Asset Backed Receivables LLC
Trust 2006-HE2 Mortgage Pass-Through Certificates, Series 2006 HE2; Mortgage
Electronic Registration Systems, Inc.; Western Progressive, LLC; Ocwen Loan
Servicing, LLC; and Barclay’s Capital Real Estate, Inc. dba Homeq Servicing.
                                                   _________________________
                                    INTRODUCTION
       Plaintiff and appellant Elizabeth Hernandez sued defendants and appellants
Wells Fargo Bank, N.A., as Trustee under Pooling and Servicing Agreement dated as of
September 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-HE2
Mortgage Pass-Through Certificates, Series 2006 HE2; Mortgage Electronic Registration
Systems, Inc.; Western Progressive, LLC; Ocwen Loan Servicing, LLC; and Barclay’s
Capital Real Estate, Inc. dba Homeq Servicing (collectively, defendants) to prevent a
foreclosure of real property. Defendants’ demurrer was sustained without leave to
amend, and the trial court issued an order of dismissal. Hernandez does not appeal that
order of dismissal and instead purports to appeal from subsequent orders of the trial court
denying her relief under Code of Civil Procedure section 4731 and temporarily staying
dissolution of a preliminary injunction. Because the orders are not appealable, we
dismiss the appeal.
                  FACTUAL AND PROCEDURAL BACKGROUND
I.     Factual background.
       On April 26, 2006, Hernandez executed a note in the amount of $516,000 secured
by a deed of trust against property located at 330 North Griffith Park Drive (the
Property).2 She stopped making payments in 2008, and a notice of default was recorded
in January 2011. After a notice of trustee’s sale was recorded, the Property was sold at a
foreclosure sale in June 2014.
II.    Procedural background.
       A.     The pleadings and demurrers.
       On November 26, 2012, Hernandez filed her complaint for negligence, fraud and
deceit, fraud by trick and device, an accounting, breach of contract, unjust enrichment,
quiet title, and for declaratory and injunctive relief. The trial court temporarily restrained


1
       All undesignated statutory references are to the Code of Civil Procedure.
2
       The deed of trust was assigned to Wells Fargo.


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defendants from foreclosing on the Property, and, on January 4, 2013, the court issued a
preliminary injunction.
       After the trial court sustained defendants’ demurrer to the complaint with leave to
amend, Hernandez filed her first amended complaint. It alleged causes of action for
fraud, deceit, concealment, intentional and negligent misrepresentation, violation of
Business and Professions Code section 17200, breach of the covenant of good faith and
fair dealing, violation of Civil Code section 2923.5, quiet title, declaratory relief, and to
set aside trustee sale.
       On June 14, 2013, the trial court sustained defendants’ demurrer to all causes of
action in the first amended complaint without leave to amend on the grounds that plaintiff
had alleged new causes of action without leave and that plaintiff failed to state a cause of
action. Hernandez, who was represented by counsel, did not file opposition and no
appearance was made on her behalf at the hearing.3 The trial court entered an order of
dismissal with prejudice the same day.4 On June 18, 2013, a “Notice of Ruling at
Demurrer and Motion to Strike Hearing” was filed, with the order of dismissal attached
as exhibit B.
       Because there was no longer an operative complaint, the trial court scheduled, for
June 28, 2013, an order to show cause (OSC) why the preliminary injunction should not
be dissolved.
       B.       Hernandez’s applications.
       After the order of dismissal was entered Hernandez filed a series of “applications”:
       1.       On June 24, 2013, Hernandez filed an ex parte application “for order
shortening time for hearing for relief from order of June 14, 2013, and for stay order
preventing preliminary injunction being dissolved pending hearing of motion for relief


3
      Defendants also filed a motion to strike. Neither that motion nor defendants’
demurrer is in the record on appeal.
4
     The order of dismissal constitutes a final judgment. (§ 581d; Kong v. City of
Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1032, fn. 1.)


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under CCP [§] 473 . . . .” The application invoked the mandatory relief provision of
section 473, subdivision (b), based on the failure of Hernandez’s attorney, due to a
misunderstanding and illness, to obtain a continuance of the demurrer hearing and to
oppose the demurrer.5
       The trial court denied the application on June 25 and notice of ruling was served
by mail the same day.6 The court found that plaintiff was not entitled to mandatory relief
because the “order sustaining the demurrers was not a dismissal or default”; the
demurrers were sustained on the merits and not because of the attorney’s failings; and
plaintiff failed to submit a proposed opposition to demonstrate that her pleading was
sufficient or that she could amend.7
       2.     On June 28, 2013, Hernandez filed an ex parte application “for stay order
preventing preliminary injunction being dissolved for lack of changed circumstances and
pending appeal after judgment under CCP § 526(A)(3), et seq.; to set a hearing after ex
parte of 6-24-13.” The application appeared to be opposition to the OSC to dissolve the
preliminary injunction. The trial court therefore set a hearing on the application for
July 19, 2013 and continued the OSC to that date.
       3.     On July 11, 2013, Hernandez filed: a proposed “opposition and objections
to demurrer and motion to strike”; another attorney affidavit of fault; and a “supplemental
ex parte application for hearing on motion for relief and stay order preventing
preliminary injunction being dissolved and pending appeal after judgment under CCP
§ 526(A)(3, et seq.; to set a hearing after ex parte of 6-24-13; . . .”8 The supplemental


5
       Hernandez signed the attorney affidavit of fault on her attorney’s behalf.
6
       The proceeding was unreported.
7
      The trial court noted that although Hernandez’s application sought an order
preventing dissolution of the preliminary injunction, the request was unsupported by
argument.
8
       Hernandez asserted that she filed “paperwork” July 18, but there is nothing in the
record with a file stamp of that date.


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application addressed “untouched issues” like whether mandatory relief under
section 473 should have been granted and preservation of the status quo. There is some
dispute as to whether the trial court received these documents in time for the upcoming
July 19, 2013 hearing.
         4.   On July 19, 2013, the trial court dissolved the preliminary injunction,
“[s]ince the Plaintiff no longer has an operative complaint, there is no cause of action that
provides the Plaintiff with the remedy of an injunction.”
         5.   On July 23, 2013, Hernandez filed a “second refiled supplemental ex parte
application for hearing on motion for relief and stay order preventing preliminary
injunction being dissolved and pending appeal after judgment under CCP § 526(A)(3),
et seq; and jointly, to set a hearing to grant relief under CCP § 473 based on changed
circumstances after ex parte of 6-24-13.” The application argued that the preliminary
injunction should not have been dissolved and that the trial court’s June 25 order
violated, for example, Hernandez’s rights to counsel and to procedural due process.
Defendants opposed the motion. The trial court set a hearing on the application for
September 27, 2013 and issued a temporary stay of any pending foreclosure sale until
then.
         6.   At the September 27, 2013 hearing on this second application, the trial
court found it in substance to be an untimely motion for reconsideration of the June 25,
2013 order denying plaintiff relief under section 473, subdivision (b). The court also
found, in any event, that plaintiff failed to state any ground to reconsider the June 25
order.
         7.   On October 15, 2013, Hernandez filed an ex parte application “for stay
order preventing preliminary injunction being dissolved pending appeal.” The
application asked the court to “[p]reserve the status quo of the existing case pending




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Appellate Review.” The trial court granted a temporary stay until November 4, 2013 to
allow Hernandez time to file an appeal or writ.9
       C.     The notices of appeal.
       On October 18, 2013, Hernandez filed a notice of appeal from the trial court’s
October 15, 2013 order “Vacating Writ of Mandate staying sale.”
       On November 6, 2013, Hernandez filed a notice of appeal from the trial court’s
September 27, 2013 order.
                                       DISCUSSION
I.     The appeal from the September 27, 2013 order.
       There is a dispute as to what was the subject of the trial court’s September 27,
2013 order. The matter on calendar was Hernandez’s “second refiled supplemental
ex parte application for hearing on motion for relief and stay order preventing
preliminary injunction being dissolved and pending appeal after judgment under CCP
§ 526(A)(3), et seq; and jointly, to set a hearing to grant relief under CCP § 473 based on
changed circumstances after ex parte of 6-24-13.” Defendants and the trial court treated
that application as a motion for reconsideration (§ 1008). On appeal, however,
Hernandez argues that the application was a “refiling” or a “continuation” of a prior
application opposing dissolution of the preliminary injunction.
       The name of the application makes little difference, because it was not an
appealable order. The application referred to the prior June 24, 2013 application, which
sought relief under the mandatory provision of section 473, subdivision (b). Given that
reference, the trial court correctly found that Hernandez was asking the court to
reconsider its prior order denying the June 24, 2013 application. Such an order denying a
motion for reconsideration is not separately appealable. (§ 1008, subd. (g).) “However,
if the order that was the subject of a motion for reconsideration is appealable, the denial
of the motion for reconsideration is reviewable as part of an appeal from that order.”


9
       Hernandez, on October 28, 2013, filed a writ of supersedeas in this court. After
issuing a temporary stay, we denied the writ on January 22, 2014.


                                              6
(Ibid.) The order denying relief under section 473 was the subject of the
“reconsideration” application. But Hernandez did not appeal from the June 25, 2013
order. Hernandez also did not appeal the June 14, 2013 order of dismissal. (See
Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 [appeal from an order denying
reconsideration that did not designate the underlying judgment could not be construed as
an appeal from the judgment].)
       Hernandez, however, ambiguously says the application was “a continuation of the
ex parte application/motion under CCP § 473(b), set in effect as a noticed motion.”
(Italics added.) It is unclear either what this means or how it renders the September 27,
2013 order appealable. To the extent it means Hernandez was “continuing” to argue she
was entitled to relief under section 473, subdivision (b), that issue was adjudicated
adversely to her on June 25, 2013, when the trial court denied Hernandez relief under that
section. As we have said, Hernandez did not appeal from the June 25, 2013 order or from
the June 14, 2013 order of dismissal. No appealable order is therefore before us. (See
generally In re Marriage of Loya (1987) 189 Cal.App.3d 1636, 1638 [when we determine
an appeal has been taken from a nonappealable judgment or order, it is our duty to
dismiss the appeal].)
       In any event, the trial court did not err by denying Hernandez relief under
section 473, subdivision (b). That section allows a party relief from a judgment,
dismissal, order or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect. (§ 473, subd. (b).) If the motion is
accompanied by an attorney affidavit of fault, relief is mandatory, “unless the court finds
that the default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.” (Ibid.) The court here said, “Plaintiff’s failure to file
opposition papers did not cause the Court to sustain the demurrers; instead, the Court
sustained the demurrers because an analysis of the pleadings . . . failed to state sufficient
facts; . . .” The court therefore sustained the demurrer because plaintiff failed to state a
cause of action. On appeal, she does not clearly address why the court was wrong. Nor
is the record adequate to demonstrate error. The record does not contain the demurrer.

                                              7
Hernandez, as appellant, had a duty to provide an adequate record to demonstrate error.
(Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1; Rossiter v. Benoit (1979)
88 Cal.App.3d 706, 712, overruled on another ground by Wilson v. Garcia (1985)
471 U.S. 261.)
II.    The appeal from the October 15, 2013 order.
       The trial court dissolved the preliminary injunction on July 19, 2013.10 On
October 15, 2013, the trial court temporarily stayed, to November 4, that dissolution
order. Hernandez appeals from the October 15 order but not from the July 19 order.
Assuming that the October 15 order is appealable, Hernandez was not aggrieved by it—
she asked for and was granted a temporary stay to allow her to file a writ in the Court of
Appeal.
       And even if we construed the appeal to be from the July 19, 2013 order dissolving
the injunction, Hernandez still cannot establish error. The trial court dissolved the
injunction because there was no likelihood she would succeed on the merits of her case.
There was no such likelihood because defendants’ demurrer had been sustained without
leave to amend and the court had issued an order of dismissal. Hernandez did not appeal
from that order and, as we have said, failed to provide an adequate record showing that
the trial court erred by sustaining the demurrer without leave to amend.
       In what appears to be an attempt to avoid the consequences of her failure to appeal
the July 19, 2013 order, Hernandez mischaracterizes the trial court’s September 27, 2013
order as the “final order” that dissolved the preliminary injunction. Although the trial
court refused to issue “any further stay” of the order dissolving the preliminary
injunction, it was not the dissolution order. The dissolution order was issued on
July 19, 2013.




10
       This order was appealable. (§ 904.1, subd. (a)(6).)


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                                   DISPOSITION
      The appeal is dismissed. Defendants and respondents are to recover their costs on
appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                     ALDRICH, J.




We concur:




             EDMON, P. J.




             KITCHING, J.




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