Filed 7/1/22 Barnes v. WVBAGD CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
BRADLEY BARNES et al., B310667
Cross-complainants and (Los Angeles County
Appellants, Super. Ct. No. EC068581)
v.
WVBAGD, LLC,
Cross-defendant and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Curtis A. Kin, Judge. Dismissed.
De Castro, West, Chodorow, Mendler & Glickfeld, Mark L.
Share; Benedon & Serlin, Gerald M. Serlin and Wendy S. Albers
for Cross-complainants and Appellants.
Fidelity National Law Group and Kevin R. Broersma for
Cross-defendant and Respondent.
Cross-complainants and appellants Bradley Barnes and
BABBB, LLC (collectively, borrowers) appeal from the judgment
entered in favor cross-defendant and respondent WVBAGD, LLC
(lender) after the trial court sustained, without leave to amend,
lender’s demurrer to borrowers’ fourth amended cross-complaint
seeking to prevent the foreclosure sale of property securing a debt
owed to lender. Borrowers concede in their appellate briefing
that the foreclosure sale took place while this appeal was
pending. The appeal is therefore moot, and we dismiss it.
BACKGROUND
This action arises out of a $250,000 loan made in 2008 to
borrowers and others by lender’s assignor, Dove Street Capital
Lenders, secured by deeds of trust on two separate residential
properties, one of which was owned by borrowers. Lender
commenced this action against borrowers seeking initially to
judicially foreclose on the deeds of trust. That action was later
dismissed as time-barred.
Before the dismissal of lender’s action, borrowers filed the
cross-action that is the subject of this appeal, seeking to prevent
foreclosure and to obtain declaratory relief as to the rights and
obligations of the parties. Borrowers obtained a preliminary
injunction in October 2018 barring foreclosure of the property
during pendency of the action.
In their operative fourth amended cross-complaint,
borrowers asserted causes of action for declaratory relief,
accounting, cancellation of the deed of trust, and quite title.
Lender demurred, and the trial court sustained the demurrer,
without leave to amend, on the ground that California law
2
prohibits a defaulting borrower from maintaining a preemptive
lawsuit seeking to prevent a nonjudicial foreclosure.
An order dissolving the preliminary injunction was entered
on February 8, 2021. On that same date, judgment was entered
in lender’s favor.
This appeal followed. While the appeal was pending,
lender foreclosed and borrower’s property securing the deed of
trust was sold.
DISCUSSION
An appellate court will address only actual controversies.
(Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) This
rule applies when injunctive relief is sought and, pending appeal,
the act sought to be enjoined has been performed. (Ragland v.
U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 208
(Ragland).)
Borrowers’ cross-action sought to enjoin lender from
initiating a nonjudicial foreclosure. While this appeal was
pending, the foreclosure sale occurred,1 rendering the appeal
moot. (Ragland, supra, 209 Cal.App.4th at p. 208.)
Borrowers argue their appeal is not moot because the
$40,001 bond they posted to obtain the preliminary injunction is
still being held by the trial court and entitlement to the bond
proceeds remains at issue. Borrowers further contend the
amount of the secured debt owed to lender, which was the subject
of their accounting cause of action, remains a disputed issue.
1 We construe borrowers’ concession in their appellate
briefing that the foreclosure sale occurred while this appeal was
pending as an admission. (Thompson v. Ioane (2017) 11
Cal.App.5th 1180, 1186, fn. 4.)
3
Those issues are not the subject of this appeal, however, and we
do not address them.
DISPOSITION
The appeal is dismissed. Lender shall recover its costs on
appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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