Filed 7/1/22 Barnes v. WVBAGD CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

BRADLEY BARNES et al.,

Cross-complainants and 

Appellants,

v.

WVBAGD, LLC,

Cross-defendant and 

Respondent.

 B310667

 (Los Angeles County

 Super. Ct. No. EC068581)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Curtis A. Kin, Judge. Dismissed.

De Castro, West, Chodorow, Mendler & Glickfeld, Mark L. 

Share; Benedon & Serlin, Gerald M. Serlin and Wendy S. Albers 

for Cross-complainants and Appellants.

Fidelity National Law Group and Kevin R. Broersma for 

Cross-defendant and Respondent.
2

Cross-complainants and appellants Bradley Barnes and 

BABBB, LLC (collectively, borrowers) appeal from the judgment 

entered in favor cross-defendant and respondent WVBAGD, LLC 

(lender) after the trial court sustained, without leave to amend, 

lender’s demurrer to borrowers’ fourth amended cross-complaint 

seeking to prevent the foreclosure sale of property securing a debt 

owed to lender. Borrowers concede in their appellate briefing 

that the foreclosure sale took place while this appeal was 

pending. The appeal is therefore moot, and we dismiss it.

BACKGROUND

This action arises out of a $250,000 loan made in 2008 to 

borrowers and others by lender’s assignor, Dove Street Capital 

Lenders, secured by deeds of trust on two separate residential 

properties, one of which was owned by borrowers. Lender 

commenced this action against borrowers seeking initially to 

judicially foreclose on the deeds of trust. That action was later 

dismissed as time-barred.

Before the dismissal of lender’s action, borrowers filed the 

cross-action that is the subject of this appeal, seeking to prevent 

foreclosure and to obtain declaratory relief as to the rights and 

obligations of the parties. Borrowers obtained a preliminary 

injunction in October 2018 barring foreclosure of the property 

during pendency of the action.

In their operative fourth amended cross-complaint, 

borrowers asserted causes of action for declaratory relief, 

accounting, cancellation of the deed of trust, and quite title. 

Lender demurred, and the trial court sustained the demurrer, 

without leave to amend, on the ground that California law 
3

prohibits a defaulting borrower from maintaining a preemptive 

lawsuit seeking to prevent a nonjudicial foreclosure.

An order dissolving the preliminary injunction was entered 

on February 8, 2021. On that same date, judgment was entered 

in lender’s favor. 

This appeal followed. While the appeal was pending, 

lender foreclosed and borrower’s property securing the deed of 

trust was sold.

DISCUSSION

An appellate court will address only actual controversies. 

(Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) This 

rule applies when injunctive relief is sought and, pending appeal, 

the act sought to be enjoined has been performed. (Ragland v. 

U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 208 

(Ragland).)

Borrowers’ cross-action sought to enjoin lender from 

initiating a nonjudicial foreclosure. While this appeal was 

pending, the foreclosure sale occurred,1 rendering the appeal 

moot. (Ragland, supra, 209 Cal.App.4th at p. 208.)

Borrowers argue their appeal is not moot because the 

$40,001 bond they posted to obtain the preliminary injunction is 

still being held by the trial court and entitlement to the bond 

proceeds remains at issue. Borrowers further contend the 

amount of the secured debt owed to lender, which was the subject 

of their accounting cause of action, remains a disputed issue. 

1 We construe borrowers’ concession in their appellate 

briefing that the foreclosure sale occurred while this appeal was 

pending as an admission. (Thompson v. Ioane (2017) 11 

Cal.App.5th 1180, 1186, fn. 4.)
4

Those issues are not the subject of this appeal, however, and we 

do not address them.

DISPOSITION

The appeal is dismissed. Lender shall recover its costs on 

appeal.

________________________

CHAVEZ, J.

We concur:

________________________

LUI, P. J.

________________________

ASHMANN-GERST, J.