204 Cal. App. 4th 1353
Cal. Ct. App.2012Background
- Brown defaulted on a $480,000 loan secured by a deed of trust; notice of trustee's sale recorded May 12, 2010 and postponed to August 9, 2010.
- Brown sued for declaratory/injunctive relief on August 5, 2010; court granted TRO and then a preliminary injunction conditioned on depositing $1,700 monthly into a client trust account in lieu of a bond.
- On June 2, 2011, Wells Fargo moved ex parte to dissolve the injunction due to Brown's nonpayment and imminent sale deadline.
- At the June 3, 2011 hearing, Brown's counsel promised payments and the court set a June 8, 2011 hearing to hear the motion.
- The June 8, 2011 order dissolved the injunction and allowed the trustee sale to proceed; Brown filed a notice of appeal the same day.
- The appellate court denied dismissal, affirmed the order, ordered costs to respondent, and referred discipline to the California State Bar.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was dissolution of the injunction proper? | Brown contends nonpayment and ex parte issues; argues improper dissolution. | Wachovia asserts noncompliance and imminent sale justify dissolution under CCP 529(a). | Yes; dissolution proper under CCP 529(a). |
| Was the order ex parte in form or substance? | Brown argues the order was ex parte and error. | Wachovia contends hearing was noticed; no ex parte relief occurred. | Not ex parte; form over substance rejected. |
| Does the appeal constitute frivolous abuse of the appellate process? | Brown asserts due process concerns; seeks reversal. | Wachovia argues delay tactic and frivolous appeal. | Frivolous; affirmed; sanctions and referral to Bar discussed. |
Key Cases Cited
- Estate of Gilkison, 65 Cal.App.4th 1443 (Cal. Ct. App. 1998) (appellate delay tactics; sanctions considerations)
- In re Marriage of Flaherty, 31 Cal.3d 637 (Cal. 1982) (frivolous appeals; appellate abuse)
- In re Marriage of Greenberg, 194 Cal.App.4th 1095 (Cal. Ct. App. 2011) (limits on frivolous appeals; costs/fees)
- Royal Thrift & Loan Co. v. County Escrow, Inc., 123 Cal.App.4th 24 (Cal. Ct. App. 2004) (stay of sale upon notice; procedural timing)
- Critzer v. Enos, 187 Cal.App.4th 1242 (Cal. Ct. App. 2010) (form over substance; importance of substance)