Spring 2007 appellate brief assignment u.s. v. belfast (prosecution)
Petition For Review + POS
1. S _
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
BEATRIZ LLANOS
Cross-complainant and Appellant
v.
BANK OF AMERICA CORPORATION ET. AI,
Cross-defendants and Respondents
After A Decision By The Court Of Appeal
Second Appellate District, Division One
Appellate Court Case Nos. B248355 & B253264 [Consolidated]
Superior Court Case No. LC094568
PETITION FOR REVIEW
Service on Attorney General, Consumer Law Section pursuant to Business & Professions
Code s. 17209; Service on District Attorney ofthe County of Los Angeles pursuant to
Business & Professions Code s. 17209
PACIFIC A1LANTIC LAW CORPORATION
CHINYE UWECHUE-AKPATI, State Bar #165352
Warner Center Towers, 21550 Oxnard Street, Ste 300, Woodland Hills, CA 91367
Tel.: 818-274-3074
Attorneys for Cross-complainant and Appellant
BEATRIZ LLANOS
2. TABLE OF CONTENTS
TABLE OF AUTHORITIES .ii
ISSUE STATEMENT 1
STATEMENT OF THE CASE 2
INTRODUCTION 4
LEGAL DISCUSSION
1. THE COURT OF APPEAL'S APPLICATION OF THE LOCUS STANDI
DOCTRINE IS INCONSISTENT WITH THE FACTS 7
II. SHOULD THE SUPERIOR COURT BE PERMITTED TO IGNORE THE
REQUIREMENT OF ADEQUATE NOTICE TO THE EXTENT THAT IT
VIOLATES THEDUEPROCESSRIGHTS 10
III. THE ENTERING JUDGMENT IN FAVOR OF A JOINT LIABILITY
TORTFEASOR/PARTY IS AN ABUSE OF JUDICIAL POWER 11
IV. IN THE ALTERNATIVE-THE COURT OF APPEAL IS IN ERROR IN ITS
CALCULATIONS WIlli REGARD TO THE MOTIONS TO COMPEL 12
V. CONCLUSION , 13
VI. CERTIFICATE OF COMPLIANCE 14
i
4. S _
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
BEA TRIZ LLANOS
Cross-complainant and Appellant
v.
BANK OF AMERICA CORPORATION ET. AI,
Cross-defendants and Respondents
PETITION FOR REVIEW
ISSUE STATEMENT
The Court of Appeal's application of the doctrine of locus standi is inconsistent
with the facts as stated by the Court of Appeal. Its application of the doctrine and the law
to the facts is incorrect.
1
5. STATEMENT OF THE CASE
If the Court of Appeal's conclusion that Ms. Llanos had no standing
to maintain the cross-complaints is followed to its logical, just and
equitable conclusion then portions of the Court of Appeal's rulings are
incorrect and should be reversed.
I addition, the Court of Appeal failed to address the instances of
judicial abuse of power by the Superior Court:
(1) The Superior Court ignored the requirement of adequate notice to
the extent that it violated the due process rights of a party to the
action (Ms. Llanos);
(2) The Superior Court entered judgment in favor of a joint liability
tortfeasor/party (Bank of America companies) in mid-litigation
and continued with the remainder of lawsuit as against the one
remaining jointly liable party (FIA Card Services, N.A.);
(3) The Court of Appeal is in error in repeating the Superior Court's
miscalculations with regard to the motions to compel.
The Superior Court case has been problematic from the beginning.
Starting with complaints based upon an impossibility, i.e. Ms. Llanos'
alleged violation of contracts (with FIA Card Services, N.A.) that never
existed to Ms. Llanos' payment for a court transcript of a hearing (for use
2
6. on appeal) which transcript was never produced despite being paid for.
Unless the Supreme Court intervenes this case could be the "poster child"
of the future of the failure of the judicial system.
3
7. INTRODUCTION
Bank of America Corporation, Bank of America N.A. and FIA Card
Services, N.A. are hereinafter collectively referred to as the "banks".
The banks through FIA Card Services, N.A. colluded to file two
lawsuits against Ms. Llanos. The two complaints filed by the banks
claimed facts that were impossible, erroneous and misleading. Both
complaints were based on an allegation that FIA Card Services, N.A.
(hereinafter "FIA") had privity of contract with Ms. Llanos. The complaints
alleged that she breached the credit card agreements issued to her by FlA.
FIA also claimed in the complaints that it had fulfilled all of its contractual
duties etc...
Ms. Llanos filed cross-complaints against the banks alleging the
same facts and causes of action against the same parties. Clerk's
Transcript, Vol 1, pages 000011 to 000017. During the discovery process
the banks failed to produce even a single contract.
The truth was that FIA did not exist in the 19805 when the credit
cards were issued to Ms. Llanos. FIA came into existence in 2006, more
than a decade after the credit cards were issued. The banks were misusing
the judicial process by making false allegations that were factually
impossible. The Superior Court and the Court of Appeal failed to address
this issue.
4
8. The Superior Court failed to follow the statutory notice periods on
several occasions and in doing so also failed to allow, or provide for,
adequate notice. This culminated in a total absence of prior knowledge of
the March 27,2013 hearing. Counsel for Ms. Llanos and Ms. Llanos did
not know about the March 27,2013, hearing prior to March 27, 2013. The
Court of Appeal's focus on, and use of, the March 27, 2013 hearing
highlights the judicial abuse and denial of due process that Ms. Llanos
suffered during the litigation process at the Superior Court level. For
example, see Clerk's Transcript, Vol.1,pages 000019 to 000022-
NOTICE OF RULING RE DECEMBER 5, 2012 HEARING I. This notice
highlights the problem of lack of sufficient notice that started in 2012
culminating in counsel for Ms. Llanos having no knowledge of the March
27, 2013 hearing until after it was over. She returned to her office and
heard the voicemail message left by opposing counsel on (he morning of
March 27, 2013. A phone message from opposing counsel on the very
morning of a hearing is not proper notice of a court hearing. The message
was left in the office when counsel was out of the office on an assignment.
After the March incident counsel for Ms. Llanos began checking the court
docket more often and it was not unusual for a document to appear on the
court docket and for the document not to have been received by counsel for
I For ease of convenience a copy of the NOTICE OF RULING RE
DECEMBER 5, 2012 HEARING is attached hereto as Exhibit A.
5
9. Ms Llanos. At one point counsel for Ms. Llanos sent a letter to the court.
For exampJe, attached hereto as Exhibit B is a true copy of one such letter
dated August 13, 2013 that was sent to the court. A notice had been posted
on the court docket in July 2013 and yet as of August 13,2013, it had not
been received by counsel for Ms. Llanos2
. Exhibit B also contains a copy
of the August 13,2013, e-mail that was sent to all counsel (including the
bankruptcy trustee, Mr. Gottlieb). Also attached as part of Exhibit B is a
copy of the evidence of mailing to the court (USPS stamped certificate of
mailing dated August 14, 2013).
The repeated failure of the Superior Court to provide, or allow for,
adequate notice was extremely detrimental to Ms. Llanos' ability to
prosecute and defend her position especially since her counsel is a sole
practitioner. This failure to provide properladequate notice and the
detrimental effect it had on Ms. Llanos' due process rights were not
addressed by the Court of Appeal.
III
III
III
III
III
2 There is no record in counsel's files of ever receiving the said document
from the court even after sending the letter to the court.
6
10. THE COURT OF APPEAL'S APPLICATION OF THE LOCUS
STANDI DOCTRINE IS INCONSISTENT WITH THE FACTS
If the Court of Appeal is correct in its analysis of locus standi, then
the cross-complaints filed by Ms. Llanos ought to have been dismissed as a
whole and not piecemeal. Consequently, a1lactions by the Superior Court
after March 1, 2013 should be deemed ultra vires and void.
The practical effect of ruling that Ms. Llanos had no standing is that
there were no causes of action before the court. Cloud v Northrop
Grumman Corp. (1998) 67 cal.App.d" 995, 1001 et seq.
The Court of Appeal found on the facts that the Superior Court came
to the conclusion of "no standing" by March 1,2013:
"After a hearing on March 1, 2013, the court sustained BAC and
BANA's demurrer without leave to amend, agreeing that Llanos
could not pursue her causes of action as they arose before she filed
bankruptcy and thus belonged to the bankruptcy estate. The trial
court also concluded that each cause of action failed to state a viable
claim. Notice of entry of judgment in favor of BAC and BANA was
filed March 11,2013." Slip Opn., p. 3_43
•
If Ms. Llanos had no standing to maintain her actions against the
banks then the Superior Court should have conducted itself uniformly,
consistently and without favoritism. Had the court followed the law that the
3 A copy of the Court of Appeal's decision is attached hereto.
7
11. Court of Appeal said it had reached on March 1,2013, the Superior Court's
ruling would (and should) have been applied to the entire lawsuit filed by
Ms. Llanos and not to only a portion of it.
Following the Court of Appeal's argument, Ms. Llanos' lack of
standing is exactly the same as for "BAC and BANA" as it is for
"FIA". Why then did the Superior Court continue half the case against
FIA but terminate the one against "BAC and BANA"? This
inconsistency is an abuse of judicial power and it should have been
corrected by the Court of Appeal.
If the Court of Appeal is correct with regard to its argument about
Ms. Llanos' lack of standing, then on the facts it should have decided that
the entire case should have been ruled on by the Superior Court on March
1, 2013. The ensuing notice of judgment filed on March 11, 2013, should
have covered all the banks since the same facts, the same parties and causes
of action applied to the banks. Ms. Llanos' lack of standing is exactly the
same for "BAC and BANA" as it is for "FIA".
The Court of Appeal should have ruled aU continuation of the
litigation after March 1,2013 void. The Court of Appeal should have
voided all Superior Court rulings, sanctions and decisions that were
issued after March 1,2013.
If it is true that Ms. Llanos had no standing and that the
Superior Court had correctly come to this conclusion by March 1,
8
12. 2013, then logically and practically there was no litigation to continue
with after March 1, 2013 because there were no causes of action before
the Superior Court. Consequently, there could be no ensuing discovery
and no motions to compel by the banks. After March 1, 2013, there
was no legally valid lawsuit within which any motion could be
entertained by the Superior Court. The Superior Court had no
jurisdiction to hear let alone rule on anything after March 1,2013,
since (according to the Court of Appeal) it had concluded that Ms.
Llanos had no standing to proceed with any action because the cross-
complaints belonged to the bankruptcy estate.
The Court of Appeal should have nullified all costs, sanctions,
orders, and rulings issued by the Superior Court after March 1, 2013 - there
was no legally valid lawsuit before the Superior Court after March 1,2013,
because the legal effect of lack of standing is a total absence of causes of
action with regard to Ms. Llanos - therefore there was nothing the court
could legally rule on after March 1, 20 l3 there being no case.
1/1
III
/11
III
III
/1/
9
13. SHOULD THE SUPERIOR COURT BE PERMITTED TO
IGNORE THE REQUIREMENT OF ADEQUATE NOTICE TO THE
EXTENT THAT IT VIOLATES THE DUE PROCESS RIGHTS
There was a pattern at the Superior Court of failing to allow for
adequate notice which culminated in counsel for Ms. Llanos not knowing
about the March 27,2013, hearing until after it had occurred.
The Court of Appeal stated: "FIA's motion to compel came on for
hearing on March 27, 2013, LJanos and her counsel did not appear." Slip
4
Opn., p.4 .
The Court of Appeal's own use of the March 2013 hearing supports
Ms. Llanos' appeal because it highlights the detrimental effect the Superior
Court's refusal to follow proper and adequate notice periods had on Ms.
Llanos' due process rights.
Having counsel for the banks call counsel for Ms. Llanos on the very
morning of the March 27, 2013, is not proper or sufficient notice of the
hearing.
Furthermore, it should be noted that every other court hearing was
attended by counsel for Ms. Llanos except that of March 27,2013, because
neither counsel for Ms. Llanos nor Ms. Llanos knew about the hearing date
prior to March 27,2013.
4 A copy of the Court of Appeal's decision is attached hereto.
10
14. THE ENTERING JUDGMENT IN FAVOR OF A JOINT LIABILITY
TORTFEASORIPARTY IS AN ABUSE OF JUDICIAL POWER
Entering judgment in mid-litigation in favor of a joint liability party
to the detriment of Ms. Llanos' ability to prosecute her case is an abuse of
judicial power which Jed inter alia to confusion and the unjust imposition
of sanctions against counsel for Ms. Llanos.
There is good reason why the law does not allow judgments to be
entered in favor of ajointly liable party when the remaining lawsuit
pertains to the other jointly liable entity.
As a matter of practical reality, such entry of judgment against Ms.
Llanos: (1) unjustly triggered the notice of appeal period; (2) made
prosecution of the rest of the case against the remaining jointly liable party
extremely difficult if not impossible; (3) created an "empty chair" defense,
and (4) created confusion which increased the incidence of error.
It is the confusion created by having to file an appeal in mid-
litigation against a jointly liable party that led to the need for counseJ for
Ms. LJanos to file a CCP section 473 motion for mistake which resulted in
the unjust imposition of sanctions in the extraordinary amount of $25005
•
5 Unlike opposing counsel, counsel for Ms. Llanos is a sole practitioner and
therefore the Superior Court's failure to allow for adequate notice and its
entry of judgment in mid-litigation was bound at some point to (and did in
fact) create some confusion.
11
15. Had the Superior Court followed the law and had it not have
incorrectly entered judgment against a jointly liable cross-defendant in mid-
litigation no confusion/error would have ensued and there would have been
no need for counsel for Ms. Llanos to file a CCP section 473 motion and
there would have been no basis for any sanctions against counsel for Ms.
Llanos. Under the circumstances the sanctions are excessive, unfair and an
abuse of judicial power given that the court improperly entered judgment in
mid-litigation in favor of a jointly liable bank thereby triggering an appeal
while it continued the rest of the lawsuit against another jointly liable party.
IN THE ALTERNATIVE
THE COURT OF APPEAL IS IN ERROR IN ITS CALCULATIONS
WITH REGARD TO THE MOTIONS TO COMPEL
The Court of Appeal is in error in its calculations with regard to the
timing of the motions to compel filed the banks and therefore its ruling
should be reversed together with all sanctions imposed. The motions were
all untimely and this is a jurisdictional issue. See: Appendix to Appellant's
Opening Brief, pages 82 to 88.
III
III
III
II/
12
16. CONCLUSION
The Court of Appeal failed to properly apply the doctrine of locus
standi to the facts.
In affirming the actions of the Superior Court the Court of Appeal
endorsed judicial abuse of power and sanctioned the banks' misuse of the
judicial system. This will encourage future misuses of the judicial system
to the detriment of the due process rights of the individual citizens in the
State of California.
Only the Supreme Court can redress this error and restore much
needed balance, equity and justice.
Dated: July 8, 2015
13
17. CERTIFICATE OF COMPLIANCE
Counsel of Record hereby certifies that pursuant to Rule 8.204(c)(l)
and Rule 8.504( d)( 1) of the California Rules of Court, the enclosed
PETITION FOR REVIEW is produced using 13-point Roman type
including footnotes and contains approximately 2,515 words, which is less
than the total permitted by the Rules of Court. Counsel relies on the word
count of the computer program used to prepare this brief for this
information.
I declare under penalty of perjury under the laws of the State of
California and the United States of America that the foregoing is true and
correct, and that this certification was executed on July 3, 2015, in
Woodland Hills, California.
rney or Appellant,
BEA 1RIZ LLANOS
14
19. Filed 6/30/15
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 onIemd pUbtIshed, exce~ as soedfied by rule 8.1115(b). This opinion liaS not been certified for publication
or ordered published fOr purposes of rule 8.1115.
IN THE COURT OF APPEAL OF llIE STATE OF CALIFORNIA
(OUR! OF APPEAl- SECONDmST.
SECOND APPELLATE DISTRICT
DIVISION ONE
BEATRTZ 'LLANOS,
Cross-complainant and Appellant,
v.
BAl'JK OF AMERICA CORPORATION et
at,
Cross-defendants and Respondents.
FIA CARD SERVICES,
Plaintiff, Cross-defendant and
Respondent,
v.
BEATRIZ LLANOS,
Defendant, Cross-complainant and
Appellant.
F 1][1, lR D!.·.•.••• -AI-... ~ _~
'-~f;~
.:s
JOSEPH A. LANE, Clerk
B248355
(Los Angeles County
Super. Ct. No. LC094568)
B253264
(Los Angeles County
Super. Ct. No. LC094568)
APPEAL from judgments of the Superior Court of Los Angeles County, Huey E.
Cotton, Jr., Judge. Affirmed.
20. Pacific Atlantic Law Corporation and Chinye Uwechue for Defendant, Cross-
complainant and Appellant.
Reed Smith, Margaret M. Grignon, Abraham 1.Colman, Zareh A. laltorossian and
Raagini Shah for Cross-defendants and Respondents Bank of America Corporation and
Bank of America.
Reed Smith, Margaret M. Grignon, Abraham J. Colman, Zareh A. Jaltorossian and
Ilana R. Herscovitz for Plaintiff, Cross-defendant and Respondent FIA Card Services.
FIA Card Services, N.A. (FJA) filed a complaint on August 16,2011 against
Beatriz Llanos in Los Angeles Superior Court, alleging that Llanos defaulted on her
credit card debt of$26,062.67.1 Llanos answered on September 21,2011, and also filed
a cross-complaint alleging that FIA breached its contract with Llanos by failing to give
her notice of fees and charges, or the right to opt out; breached fiduciary duties to Llanos;
committed negligent and intentional misrepresentation in promotional materials; violated
the Business and Professions Code, sections 17500 et seq. and 17200 et seq.; and
breached the implied covenant of good faith and fair dealing. In January 2012, Llanos
added Bank of America Corporation (BAC) and Bank of America, National Association
(BANA) as cross-defendants.
Llanos filed a bankruptcy petition on June 7, 2012, notifying the trial court and the
parties on June 8,2012. The petition listed Llanos's FIA credit card debt (and separate
) A separate limited jurisdiction action filed by FIA against LJanos also resulted in
a cross-complaint by Llanos and was deemed related by the trial court. We granted
judicial notice of a second amended cross-complaint in the limited appeaL We do not
have jurisdiction over an appeal in a limited civil case, and we therefore do not discuss
the limited action, which in any event is not relevant to our reasoning. (Anchor Marine
Repair Co. v, Magnan (2001) 93 Cal.App.4th 525, 528; Code Civ. Proc., § 904.1,
subd. (a).) Llanos has requested judicial notice of what she deems a tentative ruling in
the limited jurisdiction case. We deny the request and deny her motion to submit the
same document as new evidence. Llanos also requests judicial notice of an objection she
filed in the case on appeal, and of the documents in her appellant's appendix. We also
deny these requests, as all those documents appear in the clerk's transcript filed by
Llanos.
2
21. credit card debt to each ofBAC and BANA) on the schedule identifying creditors holding
unsecured claims. but did not list the cross-complaint's causes of action against FIA,
BAC. or BANA on the schedule identifying her personal property, which required that
she list "contingent and unliquidated claims of every nature, including ... counterclaims
of the debtor" and the estimated value of each. The trial court stayed the action, taking
off calendar (as to the cross-complaint) a pending motion for judgment on the pleadings
by FIA and a pending demurrer by BAC and BANA. The bankruptcy court granted '
Llanos a discharge on September 17,2012, eliminating her obligation to pay the debts
existing on the date she filed for bankruptcy.
On December 5,2012, the trial court held a hearing regarding the status of
Llanos's bankruptcy. The court lifted the stay and dismissed FIA's complaint, leaving in
place Llanos's cross-complaint. On January 15,2013, FIA filed a motion for judgment
on the pleadings, and BAC and BANA filed a demurrer. All three defendants argued that
because Llanos did not list her causes of action in her bankruptcy schedules, she did not
have standing to pursue them. BA NA and BAC also demurred separately to each cause
of action as legally insufficient, and FIA argued that each cause of action failed to state a
claim.
On January 18,2013, FIA moved to compel Llanos's responses to discovery that
FlA had propounded in June 2012" before Llanos filed her bankruptcy petition, stating
that Llanos had failed to respond to two meet and confer letters, and requesting sanctions
of$3,141.36. In the meet and confer requests, FIA had written that as a result of the
bankruptcy stay, it understood its last day to file a motion to compel was January 18, and
Llanos's counsel should contact PIA if Llanos disagreed. Llanos did not respond. In her
opposition to FIA's motion to compel, however, she argued the motion to compel was
untimely.
After a hearing on March 1,2013, the court sustained BAC and BANA's demurrer
without leave to amend, agreeing that Llanos could not pursue her causes of action as
they arose before she filed bankruptcy and thus belonged to the bankruptcy estate. The
trial court also concluded that each cause of action failed to state a viable claim. Notice
3
22. of entry of judgment in favor of BAC and BANA was filed March 11, 2013. Llanos filed
a notice of appeal on April 19, 2013.
On March 6, 2013, the trial court granted FIA's motion for judgment on the
pleadings with prejudice as to the claims alleging breach of contract, breach of fiduciary
duty, breach of the covenant of good faith and fair dealing. and declaratory relief, noting
that Llanos "conceded in oral argument that no contract exist [s] between [Llanos] and
[FIA] Card Services," (boldface omitted) and a credit card agreement gave rise to no
fiduciary duty. The court granted leave to amend as to the claims for negligent and
intentional misrepresentation and statutory violations. Although Llanos could not pursue
these claims as they were the property of the bankruptcy estate, the court allowed 30 days
for amendment. to give the trustee the opportunity to substitute into the case or abandon
the claims. No amended cross-complaint was filed within the 30-day period.
FIA's motion to compel came on for hearing on March 27,2013. Llanos and her
counsel did not appear. After waiting tor 35 minutes, the court adopted its tentative
ruling granting the motion to compel and imposing sanctions of$I,OOO, finding it
"reasonable that the plaintiff calculated the 45-day period from the date defendant's
counsel informed the Court and plaintiff's counsel that the bankruptcy stay was lifted."
On April 16. 2013, FIA moved for entry of judgment pursuant to Code of Civil
Procedure section 438, subdivision (h)(4)(C), as Llanos had failed to timely amend the
cross-complaint. Llanos's counsel filed a motion for relief from excusable mistake
stating she had believed the case was under appeal. An attached first amended cross-
complaint alleged, for the first time, that "Llanos has never entered into any credit card
contract with FIA" but had instead acquired credit cards from BANA and BAC, who
used FIA as a front to attempt to extort money from Llanos by having FIA file the lawsuit
against Llanos (and all three had misrepresented in court that "FIA was the same entity as
BOA"), when "[tjhe reality is that FIA is a separate legal entity within the [Bank of
America] group."
4
23. FlA opposed Llanos's counsel's motion for relief from excusable mistake. The
court granted the motion, and ordered Llanos's counsel to pay sanctions of $2,500 in
addition to the $1.000 previously imposed regarding the motion to compel.
FIA then demurred to the first amended cross-complaint on the same grounds as in
the first demurrer, including lack of standing. Llanos opposed the demurrer, arguing that
the bankruptcy trustee had authorized Llanos to pursue the cross-complaint in an email
exchange, a copy of which she had lodged with the court.
After hearing, the trial court sustained the demurrer without leave to amend,
stating that in the absence ofa formal abandonment of her claim, Llanos's claims
belonged to the bankruptcy trustee. The court also concluded that the remaining causes
of action failed because they were not pleaded specifically and were not supported by
facts describing statutory violations. The notice of entry of judgment was filed on
October 16,2013, and Llanos appealed on December 10,2013, electing to proceed
without a reporter's transcript. We consolidated the two appeals.
DISCUSSION
Llanos's initial cross-complaint alleged that she had a contract with FIA which
FIA violated. Her amended cross-complaint alleged that she did not have a contract with
FIA but instead had acquired credit cards from BANA and BAC who then used FIA as a
"front" to sue her. Llanos did not provide account numbers, and did not describe or
attach any information or documentation to either cross-complaint regarding any
accounts, agreements, or promotional materials. The trial court dismissed the cross-
complaint as to BAC, BANA, and FIA after sustaining demurrers. Llanos's briefs on
appeal argue that her credit cards were issued in the 1980's, and were with BANA and
BAC and not with FIA, which she claims did not exist at the time, and that she had no
contract with FlA. Her appellate briefs repeat her cross-complaint'S bare and nonspecific
allegations and do not contain legal analysis explaining why the demurrers should not
have been granted or why the court abused its discretion in not allowing her to amend,
and the record on appeal does not include any transcripts of the hearings after which the
demurrers were sustained. Most importantly, however, once Llanos had obtained a
5
24. discharge in bankruptcy, her debts to FIA, BAC, and BANA were discharged and the
lawsuit was no longer hers to pursue.
,••As a general matter, upon the filing of a petition for bankruptcy. «all legal or
equitable interests of the debtor in property" become the property of the bankruptcy
estate and will be distributed to the debtor's creditors. [11 D.S.C. section] 541 (a)(1).'
[Citation.]" (Iv!& M Foods. Inc. v. Pacific American Fish Co., Inc. (2011) 196
CaI.App.4th 554, 561 (M & M Foods).) The property of the estate includes causes of
action. (ld. at p. 562.) "Tn the context of bankruptcy proceedings, it is well understood
that "a trustee. as the representative of the bankruptcy estate, is the rea) party in interest.
and is the only party with standing to prosecute causes of action belonging to the estate
once the bankruptcy petition has been filed." [Citation.] The commencement of Chapter
7 bankruptcy extinguishes a debtor's legal rights and interests in any pending litigation,
and transfers those rights to the trustee, acting on behalf of the bankruptcy estate. See 11
V.S.C. § 541(a)(1) (indicating that a bankruptcy estate includes "all legal or equitable
interests of the debtor in property"); id. § 323 (establishing the bankruptcy trustee as the
"representative" of the estate with the "capacity to sue and to be sued" on its behalf).
rhus, "[gjenerally speaking, apre-petition cause a/action is the property of the Chapter
7 bankruptcy estate, and only the trustee in bankruptcy has standing to pursue it."
[Citations.]' [Citation.]" (Ibid) Llanos's litigation was pending when she filed her
chapter 7 bankruptcy petition. The causes of action in the cross-complaint thus were the
property of the bankruptcy estate, and only the trustee in bankruptcy had standing to
pursue the claims.
It is also true, however, that "'[a]n outstanding legal claim that is abandoned by
the trustee reverts back to the original debtor-plaintiff."? (M & M F'oods, supra, 196
Cal.App.4th at p. 563.) '''Whatever interest passed to the trustee when [the debtor] filed
for Chapter 7 bankruptcy [is] extinguished when [the trustee] abandon[s] the cause of
action .... [Citation]. In other words. "when property of the bankrupt is abandoned, the
title reverts to the bankrupt nunc pro tunc, so that he is treated as having owned it
continuously." [Citation].' [Citation.]" (Ibid.) Nevertheless, ""'Abandonment requires
6
25. affirmative action or some other evidence of intent by the trustee." [Citation]. During
the pendency of the case, the notice and hearing requirements of [the federal bankruptcy
statute] must be observed for an "abandonment" to occur. [Citation]. m (Bostonian v,
Liberty Savings Bank (1997) 52 Cal.App.4th 1075, 1086-1087.) Formal notice and a
hearing are required. (11 U.S.c. § 554(a).) Llanos asserts that the bankruptcy trustee
abandoned the claims in the cross-complaint in an email dated February 20, 2013 when,
in response to her counsel's email suggesting that counsel represent Llanos and the
bankruptcy estate take the money jf Llanos prevailed, the trustee stated, "That is how you
should proceed." This is far from the formal procedure required for abandonment.
In addition, it is undisputed that the bankruptcy petition did not list as an asset the
claims Llanos asserted in the cross-complaint. As the claims in the cross-complaint were
not listed as an asset, any purported abandonment by the trustee would not return the
claims to Llanos. "[P]roperty not formally scheduled in the bankruptcy proceeding is not
abandoned at the close of the bankruptcy proceeding, even if the trustee was aware of the
existence of the property. [Citation. J [~] ... In a bankruptcy proceeding, the "bankruptcy
code placers] an affirmative duty on [the debtor] to schedule his assets and liabilities. [11
u.s.c.] § 521(1). Ifhe fail]s] properly to schedule an asset, including a cause of action,
that asset continues to belong to the bankruptcy estate and [does] not revert to [the
debtor].'" (M & 11Foods, supra, 196 CaLAppAth at p. 563.)
Absent proper listing of the claims in the bankruptcy schedules and timely
subsequent formal abandonment by the trustee, neither of which occurred in this case,
Llanos did not have standing to pursue the claims in the cross-complaint. When a
defendant raises on a demurrer that the plaintiff does not possess the substantive right or
standing to prosecute the action, the complaint "'is vulnerable to a general demurrer on
the ground that it fails to state a cause of action. m (Schauer v. Mandarin Gems of Cal..
Inc. (2005) 125 Cal.App.4th 949, 955; TGIT v. Merco Constr. Engineers, Inc. (1978) 84
CaLApp.3d 701,713.) Llanos's lack of standing was sufficient grounds for the court to
sustain the demurrers to the cross-complaint without leave to amend. (Jenkins v.
JPMorgan Chase Bank, NA. (2013) 216 Cal.AppAth 497,538.)
7
26. Llanos also appeals the trial court's awards of discovery sanctions to FlA. We
review the rulings on discovery sanctions for an abuse of discretion, and "'{a) court's
decision to impose a particular sanction is "subject to reversal only for manifest abuse
exceeding the bounds of reason .•••., (Doe v, United States Swimming, Inc. (2011) 200
CaI.AppAth 1424, 1435.)
Regarding the $1,000 sanction related to FIA's motion to compel, Llanos's only
argument on appeal is that the motion was untimely and the trial court therefore had no
jurisdiction. The trial court rejected this argument, and we agree. FIA propounded
special interrogatories, form interrogatories, and requests for admission. Llanos did not
respond to the special interrogatories. There is no time limit for filing motions to compel
initial responses. (Code Civ. Proc., § 2030.290, subd. (b).) Llanos filed boilerplate
objections to the form interrogatories and requests for admissions on June 12,2012, after
the bankruptcy stay was in effect. FIA had 45 days to file a motion to compel additional
responses. (Code Civ. Proc., § 2030.300, subd. (c).) The trial court was correct to
calculate the 45-day period beginning December 5,2012, when Llanos informed the
court and counsel that the bankruptcy stay was lifted, and FIA's motion to compel filed
on January 18, 2013 therefore was timely.
As to the $2,500 sanction the court imposed on Llanos when it granted Llanos's
motion for relief from excusable mistake (and allowed her to file her amended cross-
complaint), Code of Civil Procedure section 473, subdivision (b) provides: "The court
shall, whenever relief is granted based on an attorney's affidavit of fault, direct the
attorney to pay reasonable compensatory legal fees and costs to opposing counselor
parties." The imposition of fees and costs on the attorney whose mistake is excused is
mandatory, and Llanos does not make any argument that the amount was excessive or an
abuse of discretion.
8
27. DISPOSITION
The judgments are affirmed. Costs are awarded to Bank of America Corporation,
Bank of America, N.A., and FIA Card Services, N.A.
NOT TO BE PUBLISHED.
JOHNSON,J.
Ve concur:
CH.ANEY, Acting P. J.
BENDIX, J.*
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
9
29. 2
Notice of Ruling - I
III
3
Chinye Uwechue-Akpati, Esq.
State Bar No. 165352
Warner Center Towers,
21550 Oxnard Street, Ste 300,
Woodland Hills, CA 91367
TeL: 818-274-3074
4
5
Attorneys for Defendant, BEATRIZ LLANOS
6
7
8
FILEDLOS ANGELES SUPERIOR COURT
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, NORTHWEST DISTRICTN AN NUYS
10
11 FIA CARD SERVICES, N.A., )
) Case No.: LC094568
12
Plaintiff, )
) NOTICE OF RULING RE
13 ) DECEMBER 5, 2012 HEARINGvs.
)
14
BEATRIZ LLANOS, and DOES 1 through 5, )
15
Inclusive )
Defendants. )
16
)
)
i7
)
)
18
BEA TRIZ LLANOS, an individual, )
)
19
Cross-Complainant, )
)
20
vs. )
)
21
FIA CARD SERVICES, N.A. a business entity of )
unknown form, and ROES I through 50, Inclusive )
22
)
Cross-Defendants. )
23
)
)
24
TO ALL PARTIES AND COUNSEL OF RECORD FOR ALL PARTIES PLEASE
NOTICE:25
000 19
30. 10
11
12
13
14
5
16
17
18
19
20
21
22
23
<,.;'; 24
25
Notice of Ruling - 2
The court previously set a hearing for December 5, 2012 in order to ascertain the status 0
2 matters at the Bankruptcy Court. All parties being present through their respective counsel of
3 record (Ms. Raagini Shah for the plaintiffs and cross-defendants (hereinafter referred to as
4 "plaintiffs counsel") and Ms. Uwechue for the defendant and cross-complainant (hereinafter
5 referred to as "defense counsel")) the hearing was heard on Wednesday, December 5, 2012 at
6 8:30 AM or or soon thereafter in Department D of the court located at 6230 Sylmar Ave, Van
7 Nuys, CA 91401.
8 After giving an opportunity for all parties to be heard through their respective counsel
9 the court ruled as follows:
1. Complaint dismissed without prejudice.
2. Defense counsel's objection and request for dismissal of complaint with prejudice
due to Bankruptcy discharge - overruled.
3. Defense counsel's request that the time periods set for the filing and service of
motion documents in the CCP govern the filing of documents with regard to the
motion to amend the cross-complaint - overruled.
4. Motion to amend cross-complaint to be filed and served by December 27,2012.
5. Defense counsel's request for more time due to the moving of offices and pending
appellate litigation requiring filing of briefs - overruled.
6. All Opposition documents to the motion to amend to be filed and served by Friday,
January 4, 2013.
7. Hearing of motion to amend the cross-complaint is set for Monday, January 7, 2013.
8. Defense counsel's objection that there is insufficient time to review the opposition
documents and prepare a reply since there is a total absence of a business day
between Friday, January 4, 2013 (when Opposition documents are due) and Monday,
000 20
31. 2
3
4
5
::~.~;;'.,
6
7
8
January 7, 2013 when the court set the hearing of defense counsel's motion to amend
- overruled.
9. Defense counsel's request for more time to review opposition documents and prepare
a reply before the January 7, 2013 hearing of the motion to amend - overruled.
10. Defense counsel is to bring the reply documents to the courthouse and file and serve
them on Monday, January 7, 2013, the day of the hearing.
II. Plaintiff's counsel's Demurrer/motions with regard to the operative cross-complaint
are set to be heard on March 1,2013.
'.{':~
9
10 Dated: December 12,2012 .
II
12
13
14
15
16
17
18
19
20
21
22
23'
24
25
PACIFIC ATLANTIC LAW CORPORATION
By: c:s:§ii..~Esq=- -
Attorneys for Defendant/Cross-Complainant,
BEA TRIZ LLANOS
Notice of Ruling - 3
o 0021
32. 1
PROOF OF SERVICE - I
2
PROOF OF SERVICE
FIA v Llanos
Case No.: LC094568
3
4 I am employed in the County of Los Angeles, State of California. I am over the age of 1
'and not a party to the within action; my business address is 21550 Oxnard St., Suite 300
Woodland Hills, CA 91367.
On December 13,2012, Iserved the foregoing docwnent(s) described as: "Notice Of
Ruling Re December 5,2012 Hearing" on all interested parties in this action at the addresses
listed below, as follows:
5
6
7
8
Raagini Shah
Reed Smith LLP
355 South Grand Ave, Suite 2900
Los Angeles, CA 90071
Attorneys forCross-Defendants,
Bank of America NA. and Bank of America Corporation
9
10
11
(X) BY MAIL. By placing a true copy (copies) thereof enclosed in a seale
envelopets), addressed as above, and by placing said sealed envelope(s) for collection an
mailing on that date following ordinary business practices. I am "readily familiar" with th
business' practice for collection and processing of correspondence for mailing the U.S. Posta
Service. Under that practice, it would be deposited with the U.S. Postal Service on that same da
with postage thereon fully prepaid at Los Angeles County, California, in the ordinary course 0
business.
12
13
14
15
16
( ) OVERNIGHT DELIVERY. By placing a true copy(ies) thereof enclosed in
sealed envelope(s) or package(s) as designated by [Overnight Express] or [Federal Express]
addressed as above, and depositing said envelope(s) or package(s), with delivery fees provide
for, in a box regularly maintained by [Overnight Express] or [Federal Express] at 3701 Wilshir
Boulevard, Los Angeles, California 90010.
17
18
19 o VIA EMAIL. AS A COURTESY. By transmitting a true copy(ies) thereof to eac
of the designated counsel on the service list to their facsimile nwnbers as listed herein.
20
21
( ) PERSONAL DELIVERY. Iserved the foregoing docwnents in a sealed envelop
to the person( s) listed in the attached proof of service list.
22
I declare under penalty under the laws of the State of California that the above is true an
correct. Executed on December 13,2012, at Woodland Hills, California.23'
24
25 Ray W. Kirk
000 22
34. PACIFIC
ATLANTIC
WARNER CENTER TOWERS
21 SSO OXNARD ST.,
SUITE :300
WOODLAND HILLS,
CA 91 :367
LAW CORPORATION TEL: ca 1a) 274-3074
F'AX: (a 1a) 274-:3073
WWW.PACATLANTICLAW.CDM
WRITER'S EMAIL:
CHINYE@PACATLANTICLAW.CDM
August 13,2013
Superior Court Of California
Clerk in Department NWD
6230 Sylmar Ave.
Van Nuys, CA 91401
Re: FIA v Llanos
Case # LC094568
Dear Clerk,
This evening Ireviewed the court docket and saw an entry stating: "0712312013 Notice
(PP)". I am not sure what it is but my office did not receive a copy as of today.
Please send me (counsel for Ms. Llanos) a copy of the above mentioned document if a
copy was also served on the Defense by the court. If the latter occurred I have not received my
copy and it is now 9:00 PM on August 13,2013.
- __ ,"""""".mflye~.
Attorney for Defendant, Beatriz
Llanos
cc (bye-mail): Abraham Colman, Esq.
Raagini Shah, Esq.
David Gottlieb, Esq.
36. Certificate Of Mailing
warner Center Tower'S;
21650 OxnaP<l Street. Ste 300.
WoodlandHills. ~3S7
a:
u
UJ
(!) (J)
<I: ...I <":
~ ...I
u> -r- t-
OOIW'Z0.........MV:=l
<1:0--0
·Q.zm ~
(J) a: Cla:
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3:
o
c::>
c::>
37. PROOF OF SERVICE
BEATRIZ LLANOS vs BANK OF AMERICA et al
RE: COURT OF APPEAL - B253264, B248355
(Superior Court-LC094568)
I am employed in the County of Los Angeles, State of California. I
am over the age of 18 and not a party to the within action; my business
address is Warner Center Towers, 21550 Oxnard Street, Ste 300, Woodland
Hills, CA 91367.
On July 9, 2015, I served the foregoing document(s) described as:
"PETITION FOR REVIEW"
on all interested parties in this action at the addresses listed below, as
follows:
SEE ATTACHED SERVICE LIST
(X) BY FIRST CLASS MAIL. By placing a true copy (copies)
thereof enclosed in a sealed envelope(s), addressed as above, and by
placing said sealed envelope(s) for collection and mailing on that date
following ordinary business practices. I am "readily familiar" with the
business' practice for collection and processing of correspondence for
mailing the U.S. Postal Service. Under that practice, it would be deposited
with the u.S. Postal Service on that same day with postage thereon fully
prepaid at Los Angeles County, California, in the ordinary course of
business.
() VIA EMAILfE-FILING. By transmitting a true copy(ies)
thereof to each of the designated counsel/entities on the service list.
( ) PERSONAL DELIVERY. I served the foregoing documents
in a sealed envelope to the person(s) listed in the attached proof of service
list.
(X) ELECTRONIC SUBMISSION. to the Supreme Court at:-
www.courts.ca.gov/supremecourt.htm
I declare under penalty under the laws of the State of California that
the above is true and correct. Executed on Jul 9 2015, at Woodland Hills,
California.
38. PROOF OF SERVICE LIST
Beatriz Llanos v Bank of America Corp. et al
SERVICE BY FIRST CLASS MAIL
OFFICE OF THE ATTORNEY GENERAL
Consumer Law
300 South Spring Sf.
Los Angeles, CA 90013
LOS ANGELES COUNTY DISTRICT AITORNEY'S OFFICE
210 West Temple St.,
Los Angeles, CA 90012
SUPERIOR COURT OF THE COUNTY OF LOS ANGELES -
CENTRAL
Clerk of the Superior Court of Los Angeles
III North Hill Street
Los Angeles, CA 90012
COURT OF APPEAL
Second Appellate District, Division 1
300 S. Spring Street
2nd Floor, North Tower
Los Angeles, CA 90013
ABRAHAM COLMAN, ESQ.
REED SMITH
355 South Grand Ave., Ste 2900
LA, CA 90071
ELECTRONIC SUBMISSION & FED£)( MAILING
Supreme Court of California
www.courts.ca.gov
1
![S _
IN THE SUPREME COURT OF THE STATE OF CALIFORNIA
BEATRIZ LLANOS
Cross-complainant and Appellant
v.
BANK OF AMERICA CORPORATION ET. AI,
Cross-defendants and Respondents
After A Decision By The Court Of Appeal
Second Appellate District, Division One
Appellate Court Case Nos. B248355 & B253264 [Consolidated]
Superior Court Case No. LC094568
PETITION FOR REVIEW
Service on Attorney General, Consumer Law Section pursuant to Business & Professions
Code s. 17209; Service on District Attorney ofthe County of Los Angeles pursuant to
Business & Professions Code s. 17209
PACIFIC A1LANTIC LAW CORPORATION
CHINYE UWECHUE-AKPATI, State Bar #165352
Warner Center Towers, 21550 Oxnard Street, Ste 300, Woodland Hills, CA 91367
Tel.: 818-274-3074
Attorneys for Cross-complainant and Appellant
BEATRIZ LLANOS](https://image.slidesharecdn.com/e42131a1-e862-4f17-ae17-8f114df00b8c-151023014011-lva1-app6892/85/Petition-For-Review-POS-1-320.jpg)
