Filed 6/30/15 Llanos v. Bank of America CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 ONE

BEATRIZ LLANOS,

Cross-complainant and Appellant,

v.

BANK OF AMERICA CORPORATION et 

al.,

Cross-defendants and Respondents.

 B248355

 (Los Angeles County

 Super. Ct. No. LC094568)

FIA CARD SERVICES,

Plaintiff, Cross-defendant and 

Respondent,

v.

BEATRIZ LLANOS,

Defendant, Cross-complainant and 

Appellant.

 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.
2

Pacific Atlantic Law Corporation and Chinye Uwechue for Defendant, Crosscomplainant and Appellant.

Reed Smith, Margaret M. Grignon, Abraham J. Colman, Zareh A. Jaltorossian 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. (FIA) 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 

 

1 A separate limited jurisdiction action filed by FIA against Llanos 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.
3

credit card debt to each of BAC 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. BANA 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 

FIA 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 FIA 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 
4

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 for 35 minutes, the court adopted its tentative 

ruling granting the motion to compel and imposing sanctions of $1,000, 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 crosscomplaint 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 “[t]he reality is that FIA is a separate legal entity within the [Bank of 

America] group.”
5

FIA 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 of a 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 crosscomplaint 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 FIA. 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 
6

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 U.S.C. section] 541(a)(1).’ 

[Citation.]” (M & M Foods, Inc. v. Pacific American Fish Co., Inc. (2011) 196 

Cal.App.4th 554, 561 (M & M Foods).) The property of the estate includes causes of 

action. (Id. at p. 562.) “‘In the context of bankruptcy proceedings, it is well understood 

that “a trustee, as the representative of the bankruptcy estate, is the real 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 

U.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). 

Thus, “[g]enerally speaking, a pre-petition cause of 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 Foods, 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 
7

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].’” (Bostanian 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 if 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.] [¶] . . . In a bankruptcy proceeding, the ‘bankruptcy 

code place[s] an affirmative duty on [the debtor] to schedule his assets and liabilities. [11 

U.S.C.] § 521(1). If he 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 & M Foods, supra, 196 Cal.App.4th 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.’” (Schauer v. Mandarin Gems of Cal., 

Inc. (2005) 125 Cal.App.4th 949, 955; Tarr v. Merco Constr. Engineers, Inc. (1978) 84 

Cal.App.3d 707, 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, N.A. (2013) 216 Cal.App.4th 497, 538.)
8

Llanos also appeals the trial court’s awards of discovery sanctions to FIA. 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 

Cal.App.4th 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 crosscomplaint), 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 counsel or 

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.
9

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.

We concur:

CHANEY, 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.