Filed 3/26/13 U.S. Bank v. Super. Ct. CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

U.S. BANK, N.A., as Trustee, etc., 

 Petitioner, 

 v. 

THE SUPERIOR COURT OF ORANGE 

COUNTY, 

 Respondent; 

BELLA TERRA OFFICE JV, LLC, 

 Real Party in Interest. 

 G046642 

 (Super. Ct. No. 30-2010-00353214) 

 O P I N I O N 

 Original proceedings; petition for a writ of mandate to challenge an order of 

the Superior Court of Orange County, Luis A. Rodriguez, Judge. Petition denied. 

 Perkins Coie, J. David Larsen, Gabriel Liao, Vilma Palma-Solana and 

James D. DeRoche for Petitioner. 

 No appearance for Respondent. 
2

 Friedman Law Group, J. Bennett Friedman, Stephen F. Biegenzahn and 

Michael Sobkowiak for Real Party in Interest. 

* * * 

INTRODUCTION

Bella Terra Office JV, LLC (Bella Terra), obtained a loan to acquire three 

office buildings and two retail buildings in a retail center in Huntington Beach (the 

Property). Bella Terra executed a deed of trust in favor of the lender, granting it a 

security interest in certain real and personal property. U.S. Bank, N.A., as Trustee for the 

Registered Holders of ML-CFC Commercial Mortgage Trust 2007-7, Commercial 

Mortgage Pass-Through Certificates Series 2007-7, acting by and through Midland Loan 

Services, a division of PNC Bank, N.A., its Special Servicer (U.S. Bank), is the successor 

to the lender who made the loan to Bella Terra to acquire the Property. After Bella Terra 

defaulted on the loan, a receiver was appointed to oversee the Property. 

After the U.S. Bank loan funded, but before Bella Terra defaulted on the 

loan, Bella Terra made a separate loan to the owner of a parking structure adjacent to the 

Property to pay for improvements to that structure. U.S. Bank claims a security interest 

in the promissory note for the loan from Bella Terra. In this proceeding, U.S. Bank 

requested the trial court to order Bella Terra to turn over to the receiver the promissory 

note for the loan and payments on that note. The court denied the request, and this appeal 

followed. 

We resolve the serious questions regarding the appealability of the trial 

court’s order by exercising our discretion to treat U.S. Bank’s appeal as a petition for a 

writ of mandate. Both parties agree we should treat the appeal as such a petition. We 

deny writ relief because the promissory note in favor of Bella Terra, evidencing the loan 

for improvements to the parking structure, does not fall within the description of the 

collateral for the original loan made to Bella Terra to purchase the Property. 
3

STATEMENT OF FACTS AND PROCEDURAL HISTORY

In May 2007, Bella Terra obtained a $105 million loan from Merrill Lynch 

Mortgage Lending, Inc. (the U.S. Bank loan),1

 to acquire the Property. The U.S. Bank 

loan was memorialized by a written loan agreement and was secured by a deed of trust, 

assignment of leases and rents and security agreement (the Deed of Trust). The Deed of 

Trust secures an interest in the Property and in “[n]on-exclusive easements,” a term not 

defined in any documents contained in the appellate record. Through its ownership of the 

Property, Bella Terra acquired a majority voting interest in One Pacific Plaza 

Association, a California nonprofit mutual benefit corporation (One Pacific Plaza), which 

owns a parking lot and parking structure adjacent to the Property; the parking lot and 

parking structure are not owned by Bella Terra and are not a part of the Property. 

In 2007, after Bella Terra acquired the Property, the members of One 

Pacific Plaza determined capital improvements to the parking structure were necessary. 

Bella Terra agreed to lend over $680,000 to One Pacific Plaza (the One Pacific Plaza 

loan). One Pacific Plaza executed and delivered to Bella Terra a promissory note 

evidencing the One Pacific Plaza loan (the Note). 

In November 2009, Bella Terra defaulted on the U.S. Bank loan. 

U.S. Bank filed a complaint for specific performance and appointment of a receiver. The 

court appointed a receiver to collect rents from the tenants of the Property. U.S. Bank 

and Bella Terra stipulated to allow the receiver to manage and sell the Property in partial 

satisfaction of the U.S. Bank loan; the trial court approved the stipulation and entered it 

as an order in September 2010. The receiver moved for a court order authorizing the sale 

of the Property. Ultimately, the trial court granted the receiver’s motion, over the 

 1

 The U.S. Bank loan was entered into by Bella Terra and two affiliates; 

Bella Terra eventually assumed all of its affiliates’ obligations under the terms of the loan 

agreement and all related loan documents. U.S. Bank succeeded to all of Merrill Lynch 

Mortgage Lending’s rights under the loan agreement. We will refer only to Bella Terra 

and U.S. Bank through the remainder of this opinion to avoid confusion. 
4

objection of Bella Terra, and authorized the sale of the Property to GIV Bella Terra 

Investor, LLC (GIV). 

After the sale was authorized, but before it closed, the receiver became 

aware of the existence of the One Pacific Plaza loan. Bella Terra refused to provide the 

receiver with the Note or any payments on the One Pacific Plaza loan made to Bella 

Terra since the receiver’s appointment. The receiver therefore filed an ex parte 

application for an order requiring Bella Terra to turn over the Note and all monies 

collected under it. After supplemental briefing and a hearing, the trial court denied the 

application (the turnover order). U.S. Bank timely appealed. 

The sale of the Property to GIV was completed. GIV entered into a consent 

and assumption agreement with U.S. Bank, under which GIV released U.S. Bank and 

others from any and all liabilities occurring prior to closing, known or unknown, in 

connection with the sale and acquisition of the Property. 

DISCUSSION

I. 

APPEALABILITY

The order from which U.S. Bank appeals is not a final judgment, and no 

judgment has been entered since the turnover order was filed. It is “[t]he substance and 

effect of the order, not its label or form, [that] determines whether it is appealable as a 

final judgment.” (Joyce v. Black (1990) 217 Cal.App.3d 318, 321.) We consider whether 

the order has the earmarks of a final judgment—that is, it leaves nothing for judicial 

consideration, it is the only judicial ruling on the issue, and there is no other opportunity 

to review the order by appeal. (Estate of Miramontes-Najera (2004) 118 Cal.App.4th 

750, 755; Joyce v. Black, supra, at p. 321.) 

In this case, the order has some of the earmarks of a final judgment. 

Although the order does not dispose of the entire action, it leaves nothing further for 
5

judicial consideration on the issue whether the Note is collateral of U.S. Bank, and is the 

only judicial ruling on that issue. However, nothing would have prevented U.S. Bank 

from obtaining review of the order on appeal from a final judgment. We conclude the 

trial court’s order is not itself a final judgment. 

U.S. Bank argues the turnover order is appealable as a final determination 

on a collateral matter. “When a court renders an interlocutory order collateral to the main 

issue, dispositive of the rights of the parties in relation to the collateral matter, and 

directing payment of money or performance of an act, direct appeal may be taken.” 

(In re Marriage of Skelley (1976) 18 Cal.3d 365, 368.) In supplemental briefing filed 

pursuant to an order of this court, U.S. Bank and Bella Terra advised this court that the 

dismissal of the underlying lawsuit is awaiting the trial court’s approval of the receiver’s 

final accounting, which, in turn, is awaiting the resolution of the issues raised by this 

appeal. We cannot see how the matter can truly be collateral when the finalization of the 

litigation depends on it. 

In this case, we exercise our discretion to treat the appeal as a petition for a 

writ of mandate, in the interests of justice and judicial economy. (Morehart v. County of 

Santa Barbara (1994) 7 Cal.4th 725, 744-747.) The merits of the issues have been fully 

briefed, and Bella Terra did not argue the lack of appealability, thereby conceding we 

could consider the case on its merits. (Indeed, in its supplemental briefing, Bella Terra 

argues that if this court determines the turnover order is not an appealable order, it should 

exercise discretion to treat the notice of appeal as a petition for a writ of mandate.) 

II. 

STANDING AND MOOTNESS

Bella Terra argues U.S. Bank does not have standing to pursue this writ 

proceeding because it is not an aggrieved party. (Code Civ. Proc., § 902.) An aggrieved 

party is one “whose rights or interests are injuriously affected by the judgment. 
6

[Citations.] Appellant’s interest ‘“must be immediate, pecuniary, and substantial and not 

nominal or a remote consequence of the judgment.”’ [Citation.]” (County of Alameda v. 

Carleson (1971) 5 Cal.3d 730, 737.) Bella Terra contends that U.S. Bank suffered no 

damage as a result of the denial of the turnover order because it has no liability to GIV 

for the failure to include the Note as part of the sale of the Property to GIV. Bella Terra 

argues the writ proceeding is moot because U.S. Bank released all personal property 

claims against Bella Terra when the sale to GIV was completed. 

We conclude U.S. Bank has standing to pursue this writ proceeding, and 

the proceeding is not moot, because the denial of the turnover order affects U.S. Bank’s 

claimed security interests. When GIV assumed the U.S. Bank loan, U.S. Bank continued 

to have a security interest in all secured property transferred by the receiver to GIV. The 

consent and assumption agreement specifically provides that U.S. Bank “shall continue to 

have a security interest (and is hereby granted a security interest) in all Collateral [(earlier 

defined as ‘all fixtures, personal property and other property described in the Loan 

Documents’)] whether such Collateral is now owned by [GIV] or is hereafter acquired by 

[GIV].” Therefore, if the Note is ultimately transferred to GIV, U.S. Bank might have a 

security interest in it. This is a sufficient claimed interest to give U.S. Bank standing to 

bring the writ petition, and means the writ proceeding is not moot despite the completion 

of the sale of the Property. 

III. 

STANDARD OF REVIEW

This case involves a single issue of contract interpretation, and there are no 

disputed facts; therefore, we review the matter de novo. (Dowling v. Farmers Ins. 

Exchange (2012) 208 Cal.App.4th 685, 694; Founding Members of the Newport Beach 

Country Club v. Newport Beach Country Club, Inc. (2003) 109 Cal.App.4th 944, 

955-956.) 
7

IV. 

IS THE NOTE WITHIN THE DEED OF TRUST’S DESCRIPTION OF THE 

COLLATERAL FOR THE U.S. BANK LOAN? 

A. The Deed of Trust

The Deed of Trust gives U.S. Bank a security interest in the following 

property of Bella Terra to secure the U.S. Bank loan: 

“ . . . [Bella Terra] does hereby irrevocably mortgage, grant, bargain, sell, 

pledge, assign, warrant, transfer, convey and grant a security interest to Trustee, its 

successors and assigns, for the benefit of [U.S. Bank] and its successors and assigns, the 

following property, rights, interests and estates now owned, or hereafter acquired by 

[Bella Terra] (collectively, the ‘Property’): 

“(a) Co-Tenancy Agreement. . . . [;] 

“(b) Land. The real property described in Exhibit A attached hereto and 

made a part hereof (the ‘Land’); 

“(c) Additional Land. . . . ; 

“(d) Improvements. The buildings, structures, fixtures, additions, 

enlargements, extensions, modifications, repairs, replacements and improvements now or 

hereafter erected or located on the Land (collectively, the ‘Improvements’); 

“(e) Easements. . . . ;[2]

“(f) Fixtures and Personal Property. . . . ; 

“(g) Leases and Rents. . . . ; 

“(h) Insurance Proceeds. . . . ; 

“(i) Condemnation Awards. . . . ; 

“(j) Tax Certiorari. . . . ; 

“(k) Rights. . . . ; 

 2

 There is no argument by U.S. Bank that article 1., section 1.1.(e) of the 

Deed of Trust is relevant to our analysis. 
8

“(l) Agreements. All agreements, contracts, certificates, instruments, 

franchises, permits, licenses, plans, specifications and other documents, now or hereafter 

entered into, and all rights therein and thereto, respecting or pertaining to the use, 

occupation, construction, management or operation of the Land and any part thereof and 

any Improvements or any business or activity conducted on the Land and any part thereof 

and all right, title and interest of [Bella Terra] therein and thereunder, including, without 

limitation, the right, upon the happening of any default hereunder, to receive and collect 

any sums payable to [Bella Terra] thereunder; 

“(m) Intangibles. . . . ; 

“(n) Accounts. . . . ; 

“(o) Conversion. . . . ; 

“(p) REA. . . . ; and 

“(q) Other Rights. Any and all other rights of [Bella Terra] in and to the 

items set forth in subsections (a) through (p) above.” (Underscoring omitted.) 

B. U.S. Bank’s Argument That the Note Is Included in the Deed of Trust

The parking structure is not part of the land, as defined in the Deed of 

Trust. The term “Land” is defined as the real property acquired by Bella Terra, i.e., the 

retail and office buildings it purchased with the proceeds of the U.S. Bank loan, and 

“[n]on-exclusive easements,” which, as we shall discuss post, are not defined in any of 

the documents in the appellate record. 

U.S. Bank argues the Note constitutes collateral for the U.S. Bank loan 

under section 1.1.(l) of article 1. under the Deed of Trust because it is an after-acquired 

instrument “respecting or pertaining to the use, occupation, construction, management or 

operation of the Land.” U.S. Bank’s argument is premised on the assumption that the 

“[n]on-exclusive easements,” included in the definition of the land in the Deed of Trust, 

are easements for ingress and egress of the parking structure adjacent to the Property, 

which is used by the Property’s tenants and patrons. There is no support for this 
9

assumption in the appellate record, however, and U.S. Bank does not cite to any 

document so stating. Indeed, all of the documents referencing the Property acquired by 

Bella Terra describe the easements as follows: “Non-exclusive easements as more 

particularly described and set forth in” other recorded documents; those recorded 

documents do not appear in the appellate record. Therefore, we have no evidence of the 

scope of the easements, and whether they are, in fact, for ingress and egress of the 

parking structure. Nor has U.S. Bank shown that the easements for ingress and egress of 

the parking structure are otherwise included in the description of “Land” under the Deed 

of Trust. It is the burden of the party challenging an order on appeal to provide an 

adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; 

Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) U.S. Bank has 

failed to do so, and we could deny the petition on that ground alone. 

Even if we were to examine the merits of U.S. Bank’s arguments based on 

the incomplete record before us, we would find no error. The definition of the land in the 

Deed of Trust includes certain nonexclusive easements, which, for purposes of this 

portion of the opinion, we will assume are easements for ingress and egress of the 

parking structure. The question is whether the Note “respect[s] or pertain[s] to the use, 

occupation, construction, management or operation of” the nonexclusive easements to 

ingress and egress of the parking structure.3

 

We conclude the Note evidencing the One Pacific Plaza loan to improve the 

parking structure is not in respect to and does not pertain to Bella Terra’s use of 

easements to enter or exit the parking structure. The Note has no effect on Bella Terra’s 

right or ability to use its nonexclusive easements. That the purpose of the One Pacific 

 3

 U.S. Bank cites to Black’s Law Dictionary which defines “pertain” as 

“[t]o relate to.” (Black’s Law Dict. (9th ed. 2009) p. 1260, col. 2.) U.S. Bank then 

quotes from cases discussing the meaning of “relate[s] to.” However, the Deed of Trust 

itself does not use the term “relates to,” and the meaning of that phrase is not relevant to 

this opinion. 
10

Plaza loan was to make improvements to the parking structure does not necessarily mean 

the Note is in respect to or pertains to the use of easements to get in or out of the parking 

structure. Bella Terra had the right and the ability to use its easements whether or not 

improvements to the parking structure were made. Therefore, the Note, which evidences 

the One Pacific Plaza loan made to fund improvements to the parking structure, is not in 

respect to and does not pertain to the easements. As discussed ante, U.S. Bank’s 

argument has no support in the governing documents. 

U.S. Bank argues the Note is in respect to or pertains to the Property itself, 

excluding the nonexclusive easements, because “[i]n California, where most employees 

and customers drive, it is not practical to lease an office or retail building where no 

parking is available.” This argument stretches credulity almost to the breaking point. 

The Property also requires electricity to operate; U.S. Bank’s argument, taken to its 

logical conclusion, would mean U.S. Bank had rights of collateral in any promissory 

notes related to property on which easements for power lines exist.4

 

U.S. Bank also argues the Note is in respect to or pertains to improvements 

on the land because the One Pacific Plaza loan was made to fund improvements to the 

parking structure. But the Deed of Trust only creates a collateral interest in instruments 

respecting or pertaining to the use of improvements; the Deed of Trust defines the 

improvements as “[t]he buildings, structures, fixtures, additions, enlargements, 

extensions, modifications, repairs, replacements and improvements now or hereafter 

erected or located on the Land.” Even assuming that the nonexclusive easements, 

referenced in the Deed of Trust as part of the land, include easements to enter and exit the 

parking structure, the upgrades to the parking structure are modifications, repairs, or 

 4

 Bella Terra contends this argument fails because “there are hundreds of 

parking spaces available for tenants and customers of the shopping center, other than 

those in the parking structure.” We cannot find any evidence in the appellate record 

supporting this claim. U.S. Bank, however, does not dispute the accuracy of Bella 

Terra’s factual statement. 
11

improvements to the structure itself, not the easements. The easement has not undergone 

any changes or modifications, so section 1.1.(d) of article 1. of the Deed of Trust is 

inapplicable. 

U.S. Bank further argues that Bella Terra is estopped from disputing the 

Note is part of the collateral for the U.S. Bank loan because in both the loan agreement 

and in Bella Terra’s operating agreement, Bella Terra agreed and covenanted that it 

would not engage in any other business activities, acquire assets other than the Property, 

or make any loans or advances until the U.S. Bank loan was repaid. U.S. Bank contends 

that because the loan documents evidence an intent that Bella Terra not acquire any assets 

other than those used as collateral for the U.S. Bank loan, any assets acquired in violation 

of the terms of the loan documents must become collateral. We disagree. Any 

acquisition of assets or any business activities that violate the terms of the loan 

documents may constitute a breach of contract and an act of default. They do not 

transmute property that is not otherwise collateral for the U.S. Bank loan. 

DISPOSITION

The petition for a writ of mandate is denied. Real party in interest shall 

recover costs on appeal. 

 

 FYBEL, J. 

WE CONCUR: 

MOORE, ACTING P. J. 

ARONSON, J.