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PICHAI CHANCHANG v. BARCLAYS CAPITAL REAL ESTATE, INC.
PICHAI CHANCHANG, Plaintiff and Appellant,
v.
BARCLAYS CAPITAL REAL ESTATE, INC. et al., Defendants and Respondents.
G042182.
Court of Appeals of California, Fourth Appellate District, Division Three.
March 11, 2010.
Pichai Chanchang in pro. per. for Plaintiff and Appellant.
Houser & Allison, Eric D. Houser, and J. Owen Campbell for Defendants and Respondents.
Not to be Published in Official Reports
OPINION
THE COURT:[ 1 ]
Appellant Pichai Chanchang filed an action against respondents Barclays Capital Real Estate, Inc., doing business as Homeq Servicing, and Wells Fargo Bank, N.A., as Trustee under Pooling and Servicing Agreement dated as of April 1, 2005 Asset-Backed Pass-Through Certificates Series 2005-WHQ2. The nature of the action is unclear because no copy of the complaint or any amended complaint is included in the record on appeal. The record consists solely of respondents' motion to dismiss, appellant's motion to set aside the dismissal, and a minute order (entered nunc pro tunc) ordering the entire action dismissed with prejudice.
As best we can determine from the documents that were provided, appellant failed to pay the mortgage on his home and this action was filed in an effort to stop a foreclosure sale. Respondents' demurrer to the second amended complaint was sustained with 20 days leave to amend. The superior court granted respondents' motion to dismiss when appellant failed to file a third amended complaint, and later denied appellant's motion to set aside the dismissal.
Code of Civil Procedure section 581, subdivision (f)(2) provides that the trial court may dismiss an action where "after a demurrer to a complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal." (See Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.) Dismissal under this section is discretionary; therefore, we reviewed the record on appeal and appellant's opening brief (which included attachments not part of the record) to determine if the court abused its discretion. It does not appear appellant ever submitted a proposed third amended complaint to the court, explained why a third amended complaint had not been submitted, or what changes a proposed third complaint could allege which would state a cause of action against these defendants. Consequently, we conclude the superior court did not abuse its discretion in dismissing the action with prejudice.
Accordingly, the judgment is affirmed. Respondents may recover their costs on appeal.
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