AZUCENA BENTAJADO, Plaintiff and Appellant, v. WELLS FARGO BANK, N.A., Defendant and Respondent. No. H035052.

Court of Appeals of California, Sixth District. Filed July 11, 2011. NOT TO BE PUBLISHED IN OFFICIAL REPORTS RUSHING, P.J. AzucenaBentajado[1] appeals an order of the trial court denying her application for a preliminary injunction. In the application, appellant sought to prevent respondent Wells Fargo Bank, N.A. from proceeding on a trustee sale of her home following appellant's default on her loan. The basis of appellant's claim is that respondent failed to comply with the provisions of Civil Code, section 2923.5[2] in the foreclosure proceedings. Statement of the Facts and Case Appellant owns a home in San Jose on which respondent has two secured deeds of trust. The first loan is for $1,280,000, and the second is for $146,700. Both loans have adjustable interest rates, and were obtained in May 2007 when the home was valued at $1.5 million. Since 2007, appellant's home has decreased in value to approximately $980,000. Appellant has been in default on her loan obligations since September 2008, when she stopped making payments to respondent. Respondent recorded and served a notice of default under the first deed of trust loan on December 22, 2008. Along with the notice of default, respondent included a declaration under penalty of perjury that "[o]ne of the below necessary requirements was met by [respondent]: "[Respondent] has made contact with the borrower pursuant to CA Civil Code 2923.5(a)(2). Contact with the borrower was made in person or by telephone to assess the borrower's financial situation and explore options to avoid foreclosure. . . ." The trustee's sale was set for October 27, 2009 at 10:00 a.m. Appellant filed this lawsuit on October 22, 2009, alleging a single cause of action against respondent. Her suit seeks declaratory relief that respondent failed to comply with section 2923.5,[3] the declaration accompanying the notice of default was faulty, and any trustee's sale of appellant's home would be void. After filing her complaint, appellant applied for a temporary restraining order preventing the trustee's sale of her home on the ground that respondent failed to comply with section 2923.5. The court issued the temporary restraining order on October 23, 2009, and set the matter for a hearing on a preliminary injunction. In December 2009, the court denied appellant's application for a preliminary injunction, and appellant filed a notice of appeal with this court. The trustee sale was postponed several times to March 30, 2010. Prior to the sale date, in March 2010, appellant filed a petition in the United States Bankruptcy Court under Chapter 13 of the Bankruptcy Code.

The trustee's sale scheduled for March 30, 2010, was automatically stayed as a result of the bankruptcy petition, and will remain in effect until the case is closed or dismissed, or appellant is discharged after completing her bankruptcy plan. (See 11 U.S.C. 362, subd. (c)(2), 1328, subd. (a).) In February 2010, the court sustained respondent's demurrer to the complaint with leave to amend. Appellant filed a first amended complaint on March 9, 2010. In April 2010, respondent filed a demurrer to the first amended complaint. Appellant filed no opposition to the demurrer, but moved for a stay of the action in the trial court based on the bankruptcy proceeding. The court denied appellant's motion for a stay, and sustained the demurrer without leave to amend. On October 15, 2010, the court entered judgment in favor of respondent. Discussion The appeal in this case is of the court's denial of appellant's application for a preliminary injunction to block the trustee sale of her home. Respondent asserts the appeal should be dismissed because it is now moot. In particular, respondent argues the court's entry of judgment in favor of respondent following sustaining the demurrer renders the denial of a preliminary injunction moot. An appeal from an order denying a preliminary injunction is rendered moot by the trial court's judgment on the merits of the action. (MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623.) Here, the court sustained respondent's demurrer without leave to amend, and entered judgment in favor of respondent. Whether we were to affirm or reverse the prior order on the preliminary injunction, it would have no effect on the subsequent judgment.[4] (See Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Therefore, this appeal is moot. We reject appellant's argument that although this appeal is moot, we should consider the issues on the merits because they are of "significant societal interest and import." The merits of the issues presented herein will be considered in appellant's appeal of the final judgment. DISPOSITION The appeal is dismissed. WE CONCUR: DUFFY, J. GROVER, J.[*] [1] Appellant's name is spelled in two ways throughout the record in this case. She is referred to as "Acuzena," in the Notice of Appeal and other portions of the record, and "Azucena," in the body of her briefs filed with this court. We have adopted the spelling "Azucena," as this is the spelling appellant used in preparing her bankruptcy filings that are part of this record on appeal.

[2] All further statutory references are to the Civil Code. [3] Section 2923.5, provides that a trustee may not file a notice of default on a loan obligation until contact is made with the borrower. Specifically, section 2923.5, subdivision (a)(2) provides, in relevant part: "A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure." [4]The final judgment is subject to a second appeal in case number H036293. [*] Judge of the Monterey County Superior Court assigned by the Chief Justice pursua