Obiekea v. Kim CA2/2 ( 2014 )

Filed 11/7/14 Obiekea v. Kim CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
IFEANYI C. OBIEKEA, B250723
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC412904)
v.
YOUNG CHUL KIM,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County.
Malcolm Mackey, Judge. Affirmed.
Ifeanyi C. Obiekea, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
___________________________________________________
Ifeanyi Obiekea brought a wrongful foreclosure action against several defendants.
The trial court struck the complaint as to defendant Asset Foreclosure Services (AFS).
Plaintiff did not timely appeal that order. Next, the trial court conducted a prove-up
hearing as to defaulting defendant Young Chul Kim: it found that plaintiff failed to
prove his case and entered judgment for Kim. We affirm the judgment.
ALLEGATIONS1
Plaintiff Obiekea owned real property in Los Angeles, which he purchased in 2000
for $265,000. He assumed an existing note secured by a first trust deed on the property.
In March 2008, the note was sold to defendant Young Chul Kim. At the time, plaintiff
was admittedly in default on his mortgage payments. Plaintiff claims to have cured the
default in June 2008, by paying Kim $33,252.19.
In August 2008, Kim paid delinquent property taxes due on the property, without
notifying plaintiff or making a demand for payment of the taxes, or for monthly payments
on the note, or for any other payments that may have been due. In September 2008, AFS,
as the trustee on the deed of trust, recorded a notice of default and election to sell, which
was sent to plaintiff by certified mail. On December 22, 2008, AFS recorded a notice of
trustee’s sale. Plaintiff alleges that he was not sent a copy of the notice. The property
was sold at a foreclosure sale on March 23, 2009, for $305,000.
PROCEDURAL HISTORY
Plaintiff filed suit against those involved in the foreclosure, including Kim and
AFS, asserting claims for wrongful foreclosure; to set aside the trustee’s sale; to quiet
title; and for declaratory relief. A default was taken against Kim in 2011, when he failed
to answer the second amended complaint.
AFS moved to strike the complaint, claiming that it is exempt from suit under an
unobjected-to 2009 declaration of nonmonetary status. Over plaintiff’s opposition, the
trial court struck the pleading as to AFS on March 13, 2012; AFS promptly served notice
1 Plaintiff did not include any pleadings in the record on appeal, but AFS provided
the second amended complaint in an augmentation.
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of the ruling on plaintiff’s counsel. Plaintiff did not appeal after the court struck his
complaint and ended his suit against AFS.
The trial court conducted a prove-up hearing against defendant Kim. On June 13,
2013, the trial court entered judgment for Kim. This appeal was filed by plaintiff, in
propria persona, on August 13, 2013.
DISCUSSION
Appeal is taken from the judgment entered in favor of defendant Young Chul Kim.
(Code Civ. Proc., § 904.1, subd. (a)(1).) Plaintiff served his notice of appeal and briefs
on AFS, and AFS responded. However, AFS is not a party to this appeal: after the trial
court struck the complaint against AFS in March 2012, plaintiff did not pursue a timely
appeal. (See Wilson v. Sharp (1954) 42 Cal. 2d 675, 677 [an order striking the complaint
against a defendant is an appealable final judgment as to that defendant]. Accord: Adohr
Milk Farms, Inc. v. Love (1967) 255 Cal. App. 2d 366, 370.) We have no jurisdiction to
review or overturn the judgment in favor of AFS. The only proper respondent in this
appeal is defendant Kim, who has not appeared in this lawsuit.
Further confusing matters, plaintiff’s opening brief poses the question of whether
his complaint can “survive a demurrer.” There is no demurrer at issue here, at least not
one that we can see. There is no document entitled “demurrer” in the record, nor is there
an opposition to a demurrer, nor is there a ruling on a demurrer. The judgment that is the
subject of this appeal does not arise from a demurrer: the trial court’s minute order for
June 13, 2013, is titled “Default Prove-up Hearing.”
Plaintiff’s argument regarding appellate review of a ruling on demurrer is
irrelevant and inapposite with respect to AFS. Absent a timely appeal from the 2012
judgment in favor of AFS, we cannot hear plaintiff’s claims that AFS was not the trustee,
or caused an illegal, fraudulent or oppressive sale of his property. Because there is no
ruling on demurrer to review, there is no reason to grant leave to amend the complaint,
which plaintiff requests in his brief.
Plaintiff provided this court with six pages of reporter’s transcript from the
June 13, 2013 hearing. In the transcript, the trial court referenced 10 hearings it had
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already conducted in plaintiff’s case against defendant Kim. Plaintiff does not say a
word in his brief about what happened at these hearings, and did not provide us with
transcripts from any of them. During the June 13 hearing, the court told plaintiff, “You
have to prove your case against Mr. Kim,” adding, “You haven’t done that, sir.”
It is an appellant’s burden to provide an adequate record to demonstrate error and
failure to do so results in affirmance of the trial court’s determination. (Hearn v. Howard
(2009) 177 Cal. App. 4th 1193, 1200-1201.) Lacking plaintiff’s testimony at the prove-up
hearing, and lacking any argument challenging the trial court’s ruling that plaintiff failed
to prove his case, we must uphold the trial court’s judgment.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
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