1141 E. 7th St. Note, LLC v. Balderacchi

• Decision Date: 17 November 2021
• Docket Number: D077708
• Parties: 1141 EAST 7TH STREET NOTE, LLC Plaintiff and Respondent, v. YOLANDA BALDERACCHI et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

1141 EAST 7TH STREET NOTE, LLC Plaintiff and Respondent, v. YOLANDA BALDERACCHI et al., Defendants and Appellants.

D077708

California Court of Appeals, Fourth District, First Division

November 17, 2021

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of San Diego County Super. Ct. No. 37-2016-00000428-CU-OR-CTL, Katherine A Bacal, Judge. Dismissed.

Charles L. Abrahams, in pro. per. and for Defendants and Appellants.

Kirby & McGuinn, Martin T. McGuinn, and Dean T. Kirby, for Plaintiff and Respondent.

GUERRERO, J.

In 2019, 1141 East 7th Street Note, LLC (Respondent) obtained certain real property located in National City (the Property) through a trustee's sale and nonjudicial foreclosure. The Property was previously owned by attorney Charles Abrahams who deeded it to Yolanda Balderacchi. The Property was subject to a receivership when Respondent purchased it, and Respondent moved the court for an order directing the receiver to turn over possession and control of the Property. On June 3, 2020, the trial court ordered that the property be turned over from the receiver to the buyer effective June 15, 2020 and directed the receiver to file an updated final accounting by July 8, 2020.

Abrahams and Balderacchi (Appellants) appealed from the June 3, 2020 turnover order. On appeal, they raised various arguments, none of which is related to the appealed order. We requested that the parties file supplemental briefs addressing the appealability of the June 3, 2020 turnover order. We conclude the order directing the receiver to turn over possession of the property is not appealable and dismiss the appeal. (Code Civ. Proc., §904.1, subd. (a).)^[1]

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Abrahams took out a loan secured by a deed of trust on the Property. The deed of trust contained an assignment of rents provision and provided that the transfer of any interest in the Property would constitute an event of default, triggering the lender's right to foreclose. In 2010, Abrahams filed for bankruptcy. When his bankruptcy later converted to chapter 7, a bankruptcy trustee was appointed; the trustee abandoned the Property to Abrahams. In June 2014, Abrahams executed two grant deeds purporting to transfer the Property to Balderacchi. Balderacchi subsequently attested in a sworn declaration that the deeds were executed "for only one purpose and that was to facilitate a loan on the subject Property[, ] and [she] did not receive an interest in the subject Property." Abrahams declared it "was necessary" to grant the property to Balderacchi "to refinance the loan in order to pay off [the bank]." Balderacchi subsequently deeded the Property back to Abrahams.

California Bank and Trust (CBT), successor-in-interest to the original lender, contended Abrahams's transfer of the Property to Balderacchi by grant deed triggered a noncurable default on the loan and filed this action (the foreclosure action) in January 2016, initially seeking to judicially foreclose on the Property. CBT's complaint included a cause of action for specific performance of the assignment of rents provision. CBT filed the original complaint against Balderacchi (as the Property's record owner) and other lienholders. Although the original complaint identified Abrahams as the borrower on the loan, it did not name him as a defendant. However, CBT subsequently filed an amended complaint naming Abrahams as a defendant. The case was assigned to Judge Katherine Bacal.

Abrahams and Balderacchi filed a "Notice to Dismiss" CBT's complaint, claiming the court "does not have jurisdiction because the filing of the [c]omplaint requesting foreclosure is a violation of the bankruptcy automatic stay." The "Notice to Dismiss" did not specify a hearing date or otherwise comply with rules applicable to noticed motions. (See § 1003 et seq.; Cal. Rules of Court, rule 3.1110.) The court never formally ruled on the "Notice to Dismiss."

In February 2016, CBT moved to appoint a receiver, arguing that the trust deed that pledged the Property as collateral provided for the appointment of a receiver over that collateral in the event of default. On March 10, 2017, after a hearing, the trial court granted CBT's unopposed motion and entered an order appointing a receiver. In a prior appeal, we affirmed the order appointing a receiver. (California Bank & Trust v. Balderacchi, (Sept. 19, 2018, D072209) [nonpub. opn.], review denied November 28, 2018 (Balderacchi))`^[2]

Meanwhile, Abrahams filed at least three separate state court actions against CBT, apparently attempting to collaterally attack the foreclosure proceeding. Abrahams has since been declared a vexatious litigant in state court and in bankruptcy court. ^[3]

In December 2019, the property was sold to Respondent in a trustee's sale and nonjudicial foreclosure.^[4] Respondent moved for an order directing the receiver to turn over possession and control of the real property. Abrahams filed an objection on Balderacchi's behalf, raising claims of lack of standing and claiming the foreclosure action was "in violation of the automatic stay according to the Bankruptcy Court." Abrahams stated he would not attend the hearing on the motion "because he is not a party." None of the other defendants opposed the turnover motion.

On June 3, 2020, after a hearing, the court ordered that the property be turned over from the receiver to the buyer, effective June 15, 2020, and directed the receiver to file an updated final accounting by July 8, 2020. On June 15, the receiver turned over possession of the property. ^[5]

On June 17, Abrahams, "In Pro[.] Per[.] and [as] Attorney for Defendant, Yolanda Balderacchi," filed this appeal, appealing the June 3, 2020 turnover order "and [the court's] previous orders." The notice of appeal also claimed to list various "points . . . that are being appealed from Court of Appeal[] Case No. D072209." Abrahams subsequently designated transcripts to be included in the appellate record, listing 18 hearings, all of which occurred in cases other than this one. Appellants were notified they were in default and were afforded an opportunity to correct the reporter's transcript designation but failed to do so. Based on Appellants' failure to correct this defect, in September 2020, this court ordered the appeal would proceed with a clerk's transcript only.

Appellants filed an opening brief on appeal that does not contain a single citation to the record, again contesting jurisdiction and raising claims of a violation of the bankruptcy stay. Specifically, Appellants: (1) argue" [a]n [a]ppeal of [v]oid [o]rders [c]an [b]e [r]aised at [a]ny [t]ime"; (2) reference an order filed by a superior court judge in a separate action filed by Abrahams, which defendants removed to federal court, claiming it shows the state court lacked jurisdiction; (3) claim the "Notice to Dismiss" was deemed admitted because CBT did not respond to it, rendering subsequent orders entered in the trial court "void"; (4) claim the foreclosure action violated the bankruptcy automatic stay;^[6] (5) argue "[t]he [a]pprovalof [s]ales of [r]entals [o]wned by a [l]imited [p]artnership and the LLC [p]roperties are [v]oid [o]rders," referencing orders apparently made by the district court; (6) argue Abrahams "was [d]enied his [r]ight to have the [c]ourt [c]onsider the [c]laims [p]rocedure," referencing district court and bankruptcy court proceedings; and (7) claim a motion for summary judgment purportedly filed in bankruptcy court should be granted.

Respondent argues that the order directing transfer of the property is interlocutory and not appealable, requiring dismissal. ^[7] Further, Respondent contends "the turnover order was correct on the merits," refutes Abrahams's claims regarding violation of the bankruptcy stay and lack of jurisdiction, and argues Appellants have waived their claims by failing to comply with the rules of court. (See Cal. Rules of Court, rule 8.204(a) [requiring appellant to identify the order appealed from, explain why that order is appealable, provide a summary of facts limited to matters in the record, and support each reference to a matter in the record with a citation to the volume and page number of the record where the matter appears].) In a separate motion, Respondent seeks sanctions for filing a frivolous appeal and a prefiling order declaring Abrahams a vexatious litigant. ^[8]

We requested that the parties provide supplemental briefing addressing whether the June 3, 2020 turnover order is an appealable order, including whether it is appealable as a form of mandatory injunction, and, if so, whether the appeal should be dismissed as moot.

DISCUSSION

"The existence of an appealable judgment is a jurisdictional prerequisite to an appeal. A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1." (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)

An order granting a mandatory injunction is an appealable order. (§ 904.1, subd. (a)(6).) An order appointing a receiver is also appealable. (Id., subd. (a)(7).) An order settling the account of a receiver and directing the payment of the receiver's compensation by one of the parties is appealable as a final order against that party. (Steinberg v. Goldstein (1954) 122 Cal.App.2d 516 518.) However, interim orders directing a receiver to perform various acts have been held to be nonappealable. (Title Insurance & Trust Co. v. California Development Co. (1911) 159 Cal. 484, 492-494 (Title Insurance) [order authorizing receiver to issue receiver certificates and impose lien on receivership property not...