Van Dusen v. Bank of America

Filed 1/29/16 Van Dusen v. Bank of America
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

STEVEN VAN DUSEN,
Plaintiff and Appellant,
A141567
v.
BANK OF AMERICA, N.A., et al., (Contra Costa County
Super. Ct. No. MSC1300554)
Defendants and Respondents.

Steven Van Dusen appeals from the denial of his motion for relief from an order
dismissing his complaint. The complaint had been dismissed due to Van Dusen’s failure
to amend his pleading in a timely manner. Van Dusen contends the court erred, claiming
his amended pleading was timely. We will affirm.

I. FACTS AND PROCEDURAL HISTORY
A. Background
We set forth the following facts based on the allegations of Van Dusen’s
complaint and documents that respondents submitted to the trial court for judicial notice.1
In December 2004, Van Dusen obtained a $538,000 loan from BWC Mortgage
Services, secured by a deed of trust on residential real property in Martinez, California
(Property). The deed of trust identified BWC Mortgage Services as the lender and
Fidelity National Title as the trustee.

1
Van Dusen does not contend the documents, or the information contained therein,
were not the proper subject of judicial notice.

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 Van Dusen failed to make required loan payments beginning in 2009 and, after
December 2009, stopped making payments altogether.
In August 2011, Fidelity National Title assigned its interest in the deed of trust to
The Bank of New York Mellon, as Trustee for the Certificateholders of CWMBS, Inc.,
CHL Mortgage Pass-Through Trust 2005-1, Mortgage Pass-Through Certificates, Series
2005-1 (BNY). In November 2011, BNY substituted ReconTrust Company, N.A.
(ReconTrust) as trustee.
In November 2011, ReconTrust recorded a notice of default and election to sell the
Property, asserting that Van Dusen was in arrears by more than $79,000.
ReconTrust recorded a notice of trustee’s sale in February 2012. By this point, the
unpaid loan balance had reached over $650,000.
In July 2012, the Property was sold at a public auction, as evidenced by a trustee’s
deed upon sale.
Van Dusen filed this lawsuit against respondents in March 2013. Although he
filed the complaint in propria persona, by July 2013 he retained legal counsel who
represented him for the remainder of the case.

B. Van Dusen’s Complaint
Van Dusen’s complaint asserted causes of action for violation of Civil Code
sections 2923.5 and 2932.5, wrongful foreclosure under Civil Code section 2924,
declaratory relief, reformation, quiet title, breach of contract, violation of the unfair
competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.), injunctive relief, and
violation of the Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq.).
The causes of action for statutory violations, wrongful foreclosure, declaratory
relief, and injunctive relief were based on respondents’ alleged lack of authority to
foreclose due to invalid assignments, procedural irregularities, servicing improprieties
and securitization issues. The causes of action for reformation, quiet title, and violation
of the UCL and TILA asserted improper conduct during the origination of the loan, such

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as failing to disclose information about the loan terms and offering a loan Van Dusen
would not be able to afford.

C. Respondents’ Demurrer
Respondents filed a demurrer to the complaint in May 2013, setting forth the
deficiencies of each of Van Dusen’s causes of action. Van Dusen opposed the demurrer,
arguing that that all of his claims were properly pleaded.

D. Trial Court’s Order Sustaining Demurrer With Leave to Amend
After the issuance of a tentative ruling, the demurrer was heard on July 29, 2013,
and the court took the matter under submission. By minute order dated August 2, 2013,
the court adopted its tentative ruling and sustained the demurrer in its entirety. As
relevant here, the court concluded that Van Dusen had not alleged a wrongful foreclosure
claim because he did not allege that he had tendered his outstanding indebtedness.
The court granted Van Dusen leave to amend the complaint on a limited basis by a
specified date. In the tentative ruling and the ensuing minute order, the court stated that
Van Dusen “will be afforded one opportunity to amend to state a cause of action for
wrongful foreclosure” and denied leave to amend as to all other purported causes of
action. (Italics added.) The court specified that “[a]ny amended complaint must be filed
and served by August 8, 2013.” (Italics added.) At the conclusion of the minute order,
the court stated, “[Ten] day(s) leave to file amended complaint to the complaint of Van
Dusen.” Ten days after the hearing date was August 8, 2013.
On August 5, 2013, respondents served Van Dusen with notice of the order,
including a specific advisement that an amendment to the complaint would have to be
filed by August 8, 2013.

E. Dismissal of the Complaint for Failure to Timely Amend
After Van Dusen failed to amend by August 8, 2013, respondents filed a motion to
dismiss the complaint on August 12, 2013. They contended that dismissal was
appropriate under Code of Civil Procedure section 581, subdivision (f)(2), because Van

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Dusen had not filed an amended complaint by the court-ordered deadline. A hearing on
the motion was scheduled for September 30, 2013.
On August 19, 2013, Van Dusen filed a document entitled “Plaintiff’s First
Amended Complaint: [] Wrongful Foreclosure Violation of [Civ. Code, §] 2924.” The
only cause of action mentioned within the first amended complaint, however, was not for
wrongful foreclosure, but for “Declaratory Relief.” Moreover, the allegations of the
cause of action did not assert that a tender had been made or that the tender requirement
for a wrongful foreclosure action was excused.
Van Dusen also filed an opposition to respondents’ motion to dismiss his
complaint, contending the tardiness of his first amended complaint was due to the
inadvertence, excusable neglect, and mistake of counsel; the filing was not untimely
because it occurred on August 18 (actually, August 19) and the court did not enter its
order until August 20, 2013; respondents would not be prejudiced if the first amended
complaint was deemed timely; and respondents’ counsel failed to disclose that the court
had taken the matter under submission on the date of the hearing.
In its reply papers in support of the motion to dismiss, respondents explained,
among other things, the circumstances of the court’s taking the matter under submission:
“The Court adopted its tentative ruling the day of the demurrer hearing—July 29, 2013.
While it is true that the Court took the matter under submission, the Court made clear to
counsel for Plaintiff and Defendants, both of whom were present at the demurrer hearing,
that the tentative ruling would become the order of the Court unless the Court informed
counsel otherwise by the close of business on July 29, 2013. As there was no
communication from the Court following the demurrer hearing, . . . the tentative ruling
became the order of the Court at that time.” (Italics omitted.)
On August 28, 2013, while respondents’ motion to dismiss the complaint was
pending, Van Dusen filed a motion for leave to file a second amended complaint. The
hearing on this motion was set for the same date as the motion to dismiss, September 30,
2013. The proposed second amended complaint contained causes of action for
declaratory relief, fraud, negligence, and promissory estoppel. Van Dusen asserted that

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the facts giving rise to the additional causes of action were “only recently discovered
after [he] retained his current attorney,” although the attorney who filed the motion for
leave to file the second amended complaint—Vernon Bradley—had also filed the first
amended complaint.
Respondents opposed Van Dusen’s motion for leave to file a second amended
complaint, contending that Van Dusen had not explained his delay in seeking to amend
(Cal. Rules of Court, rule 3.1324(b)(4)) and that the proposed pleading did not state a
valid cause of action.
On September 30, 2013, the court granted respondents’ motion to dismiss Van
Dusen’s complaint. The court also ruled that, in light of the dismissal order, Van Dusen’s
motion for leave to file a second amended complaint was moot. A formal order
(judgment) dismissing the action with prejudice was entered on October 16, 2013.

F. Van Dusen’s Motion for Relief
In October 2013, Van Dusen filed a motion under Code of Civil Procedure section
473 for relief from the order dismissing his complaint. Van Dusen argued that the late
filing of the first amended complaint was due to his counsel’s mistake, inadvertence, or
neglect arising from a calendaring issue. He contended he had viable claims based on
Glaski v. Bank of America (2013) 218 Cal.App.4th 1079 (Glaski). And although the
foreclosure sale had taken place in July 2012, he urged that he could obtain relief under
legislation that did not become effective until January 2013.
Respondents opposed Van Dusen’s motion, asserting that the mandatory relief
provision in Code of Civil Procedure section 473 did not apply because the dismissal was
entered after a contested hearing in which Van Dusen was represented by counsel. In
addition, respondents argued that the discretionary relief provisions under Code of Civil
Procedure section 473 did not apply because Van Dusen could not demonstrate
inadvertent mistake or excusable neglect and, in any event, he had not demonstrated that
he had any meritorious claims.

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 In December 2013, the trial court denied Van Dusen’s motion for relief. The court
ruled that Van Dusen was not entitled to mandatory relief under Code of Civil Procedure
473, subdivision (b), because mandatory relief pertains only to a dismissal that occurred
due to an attorney’s failure to oppose a dismissal motion that is the procedural equivalent
of a default, Van Dusen had not met his burden of showing excusable neglect, and Van
Dusen had not demonstrated a meritorious case.2 In addition, the court found that
respondents would be prejudiced if the requested relief were granted.
The formal written order denying Van Dusen’s motion for relief was filed on
March 4, 2014. Respondents served notice of the entry of the order on March 12, 2014.
Van Dusen thereafter filed a notice of appeal from the “Order denying Motion for
Relief” entered on “March 13, 2014.”

II. DISCUSSION
A. Scope of the Appeal
As mentioned, Van Dusen’s notice of appeal states that he is appealing from the
trial court’s “Order denying Motion for Relief.” In his opening brief in this appeal,
however, he does not address the order denying his motion for relief; instead, he argues
that the court erred in granting respondents’ motion to dismiss and denying his motion for
leave to file a second amended complaint.
The notice of appeal generally governs the scope of our review. Where there has
been both an appealable judgment and an appealable postjudgment order, each one is
subject to appellate review only to the extent it is expressly specified in a notice of
appeal. (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239 (Sole
Energy) [appeal from judgment did not perfect appeal from postjudgment order granting
new trial]; Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220

2
Specifically, the court concluded that Van Dusen had no cause of action under
Civil Code section 2924, subdivision (a)(6), because the provision was enacted months
after the foreclosure sale took place, and Glaski was unpersuasive in light of Jenkins v.
JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497 and Gomes v. Countrywide
Home Loans, Inc. (2001) 192 Cal.App.4th 1149.

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Cal.App.3d 35, 46-47 [appeal from judgment did not entitle appellant to review of
postjudgment order].) Although we construe notices of appeal broadly, a notice that
clearly identifies only one appealable ruling or aspect of a judgment usually precludes
review of any other portion of the judgment. (Filbin v. Fitzgerald (2012) 211
Cal.App.4th 154, 173; Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91-92
[notice of appeal stating plaintiff was appealing “ ‘from so much of the judgment herein
as denies relief to the plaintiffs against the said defendant’ ” did not include a “separate
and distinct portion of the judgment denying plaintiffs a lien”]; see Luz v. Lopes (1960)
55 Cal.2d 54, 59 [a notice of appeal is liberally construed if it is reasonably clear what
appellant was trying to appeal and other party could not have been misled or prejudiced].)
Here, Van Dusen clearly appealed only from the trial court’s denial of his motion
for relief. Although he argues in his reply brief that the notice of appeal “encompasses
four ‘interwoven’ orders that cannot be ‘severed’ from each other”—including the order
of dismissal as well as the order denying relief under Code of Civil Procedure section
473—he is incorrect. The notice of appeal targets only the order denying relief under
Code of Civil Procedure section 473, which may stand alone as an appealable order
(Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, 294, fn. 4) and
therefore must be separately mentioned in a notice of appeal (Sole Energy, supra, 129
Cal.App.4th at p. 239).
While the notice of appeal challenges only the court’s ruling on the motion for
relief, Van Dusen presented no arguments in his opening brief regarding the court’s
denial of that motion. Furthermore, his arguments concerning the underlying order
dismissing the case (i.e., whether the first amended complaint was timely filed) do not
address all of the requirements for relief under Code of Civil Procedure section 473.
Because Van Dusen has not provided pertinent legal argument or citation to relevant
legal authority affirmatively demonstrating error in the denial of his motion for relief, the
issue is waived or abandoned. (Associated Builders & Contractors, Inc. v. San Francisco
Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2 (Associated Builders); Landry v.
Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) And since the order

7
denying relief is the only order expressly challenged in the notice of appeal, we could
dismiss the appeal.
Nonetheless, in light of the overlap of issues arising from the dismissal order and
the order denying relief from the dismissal order, as well as the fact that respondents have
had the opportunity to fully brief their response to the arguments in Van Dusen’s opening
brief, we will view the notice of appeal broadly and consider Van Dusen’s arguments on
their merits.

B. The Trial Court Did Not Err in Granting the Motion to Dismiss
Code of Civil Procedure section 581, subdivision (f)(2) authorizes a trial court to
dismiss a complaint when, “after a demurrer to the complaint is sustained with leave to
amend, the plaintiff fails to amend it within the time allowed by the court and either party
moves for dismissal.” (Cano v. Glover (2006) 143 Cal.App.4th 326, 330 [dismissal with
prejudice].) We review for an abuse of discretion. (Gitmed v. General Motors Corp.
(1994) 26 Cal.App.4th 824, 827.)

1. The Trial Court Properly Dismissed the Complaint
At the hearing on July 29, 2013, the trial court informed counsel that the tentative
ruling—sustaining the demurrer with leave to amend a wrongful foreclosure cause of
action by August 8, 2013—would become the order of the court unless counsel were
notified later that day.3 There is no indication that the court advised counsel that day that
it would divert from its tentative ruling. To the contrary, the written minute order of
August 2, 2013, set forth the language of the tentative order, stating, “Plaintiff will be
afforded one opportunity to amend to state a cause of action for wrongful foreclosure,”
“[a]ny amended complaint must be filed and served by August 8, 2013,” and “10 day(s)

3
The reporter’s transcript is not in the appellate record, so there is no official
transcript of the court’s statement. Because Van Dusen elected to proceed in this appeal
without a reporter’s transcript, we would affirm any ruling for which our analysis
depends on our review of the oral proceedings. (See Estate of Fain (1999) 75
Cal.App.4th 973, 992 [without a reporter’s transcript, the evidence is conclusively
presumed to support the judgment].) We rely on the description of the hearing provided
by respondents’ counsel in the trial court, which is contained in the clerk’s transcript.

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leave to file amended complaint to the complaint of Van Dusen.” Since the hearing was
on July 29, 2013, the 10-day period for filing an amendment ended on August 8, 2013.
Van Dusen did not file an amended complaint by August 8, 2013. His filing on
August 19, 2013, was untimely, and no abuse of discretion appears in granting the motion
to dismiss.

2. Van Dusen’s Arguments Are Meritless
Van Dusen contends the court erred because his first amended complaint “was
timely filed before entry of the demurrer order” on August 20, 2013. (Italics added.) He
insists that, “[o]nly after the formal order had been entered, could Respondent properly
serve a notice of entry of order triggering deadlines for compliance with the order.” He
provides no authority for that proposition where, as here, the order provides a specific
deadline for the amendment. In any event, his argument is irrelevant because, regardless
of when the formal order was entered, the order requiring any amended pleading by
August 8 had issued; indeed, if that order was not effective, there was no order allowing
him to file any amended complaint at all.
Van Dusen further maintains that the order granting leave to amend stated, in
addition to a deadline of August 8, “10 day(s) leave to file [an] amended complaint.” As
mentioned ante, however, since the deadline of August 8 is specified explicitly in the
order, and August 8 was in fact 10 days from the date of the hearing, the reasonable
reading of this language is that the amendment was due by the specified date of August 8,
2013. Accordingly, Van Dusen’s first amended complaint was not timely filed.
Furthermore, even if we ignored the trial court’s express deadline of August 8,
2013, and calculated a 10-day period as Van Dusen suggests, we would conclude the
court did not err in dismissing the complaint.
Where a court has specified a time period within which to amend, the period runs
from the date of the notice of the ruling. (Code Civ. Proc., § 472b [“When a demurrer to
any pleading is sustained or overruled, and time to amend or answer is given, the time so
given runs from the service of notice of the decision or order . . .”].) Ten days from the

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August 5, 2013, service of notice of the order sustaining the demurrer was August 15,
2013; adding five days because service of the notice was by mail, the deadline for filing
the amended complaint would be August 20, 2013. (Code Civ. Proc., § 1013, subd. (a).)
By that calculation, Van Dusen’s filing of the first amended complaint on August 19,
2013, would be timely.
Nonetheless, the first amended complaint still did not comply with the court’s
order permitting the amendment. The court ruled that Van Dusen would be afforded a
single opportunity to “amend to state a cause of action for wrongful foreclosure.” (Italics
added.) The allegations of the first amended complaint did not purport to state a cause of
action for wrongful foreclosure, but a claim for declaratory relief, to which the court had
already sustained a demurrer without leave to amend. Moreover, Van Dusen has not
established that the allegations of the first amended complaint cured the defect that had
led the court to sustain the demurrer to the wrongful foreclosure cause of action in the
first place, since he has not pointed to any allegations of either a tender of the outstanding
indebtedness or facts indicating the existence of a lawful excuse from the tender
requirement. Because Van Dusen’s first amended complaint did not comply with the
court’s order allowing the amendment, the court did not err in dismissing the complaint.
(See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [following
an order sustaining a demurrer, the plaintiff may not amend the pleading to assert a cause
of action that is not within the scope of the order that granted leave to amend].)
Van Dusen does not explain in his opening brief in this appeal how the allegations
of his first amended complaint set forth a cause of action for wrongful foreclosure. He
attempts to do so in his reply brief, but his efforts are too little, too late. We generally do
not consider arguments raised for the first time in the reply brief. (See REO
Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500.) And even if we
did, Van Dusen’s arguments are unpersuasive. He relies on Glaski, supra, 218
Cal.App.4th 1079, to contend he could challenge the foreclosure proceedings, but Glaski
has been repeatedly rejected by California courts and federal courts alike. (See, e.g., Kan

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v. Guild Mortgage Co. (2014) 230 Cal.App.4th 736, 742-744.)4 He identifies a number
of exceptions to the tender requirement, but he still does not explain how any of them are
applicable to this case, in light of the facts alleged in the first amended complaint.
Van Dusen fails to establish that the trial court improperly dismissed the complaint
for failing to timely amend his pleading.

C. Van Dusen’s Motion for Leave to File a Second Amended Complaint
Van Dusen states in the opening brief that “[t]he [first amended complaint] was
timely filed and should not have been dismissed,” so “it was reversible error for the trial
court to summarily dismiss Appellant’s motion for leave to file the [second amended
complaint] on the improper ground that the request was mooted by its order on the [first
amended complaint].” His challenge to the denial of leave to file a second amended
complaint is meritless for several reasons.
First, Van Dusen has not appealed from the denial of his motion for leave to file a
second amended complaint.
Second, Van Dusen has not affirmatively demonstrated error. His opening brief
contains only the conclusory statement set forth above, without any substantive argument
or citation to legal authority. The issue is therefore waived or abandoned. (Associated
Builders, supra, 21 Cal.4th at p. 366, fn. 2.)
Third, because we have concluded ante that the trial court did not err in dismissing
the complaint, the order denying leave to file a second amended complaint is, indeed,
moot.
III. DISPOSITION
The judgment is affirmed.

4
The validity of Glaski and the issue of a borrower’s standing to challenge a
foreclosing party’s authority to foreclose based on the securitization of a debt is presently
before our Supreme Court in Yvanova v. New Century Mortgage Corp., review granted
August 27, 2014, S218973.

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 NEEDHAM, J.

We concur.

SIMONS, ACTING P.J.

BRUINIERS, J.

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