Bauman v. Wells Fargo Bank CA4/1 ( 2021 )

Filed 5/7/21 Bauman v. Wells Fargo Bank CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JORDANA BAUMAN, D076781
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00028859-CU-OR-CTL)
WELLS FARGO BANK, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Ronald F. Frazier, Judge. Affirmed.
Jordana Bauman, in pro. per., for Plaintiff and Appellant.
Severson & Werson and Jan T. Chilton; Severson & Werson and Kerry
W. Franich, for Defendant and Respondent.
INTRODUCTION
Plaintiff Jordana Bauman (Bauman) filed two lawsuits against
defendant Wells Fargo Bank, N.A. (Wells Fargo), both arising from loans
made in 2007 that were secured by deeds of trust on Bauman’s property.
This lawsuit was filed in 2018 and alleges various causes of action against
Wells Fargo arising out of the loans. The other lawsuit was filed in 2019
after Wells Fargo foreclosed on the property, Bauman v. Wells Fargo, case
No. D076767. Although there is considerable, but not complete, overlap
between the facts and issues in these separate lawsuits against Wells Fargo,
the parties have not moved to consolidate the appeals. We consider them
individually.
BACKGROUND
Bauman alleges in her second amended complaint (SAC) that she
executed a mortgage note on December 31, 2007, secured by a deed of trust
against her condominium on Albatross Street, in San Diego.1 The loan was
made by World Savings, which was forced to close and had its assets and
liabilities taken over by Wachovia Bank. Wachovia in turn was decertified
and merged into Wells Fargo.
Bauman contends that from the inception, the loan was never funded.
However, she states she made regular payments on the loan from 2007
through 2011. Bauman further alleges that she informed Wells Fargo in
April 2011 that the loan had not been funded. Wells Fargo refused to accept
further payments from her after May 1, 2011.
This lawsuit was filed on June 12, 2018. Bauman asserts she was
prevented from filing earlier due to the automatic stays imposed by a series
of bankruptcy proceedings that she filed from 2010 to 2018.
On March 1, 2019, the court sustained a demurrer filed by Wells Fargo
and granted a motion to strike. Bauman filed the SAC on March 26, 2019.
The court granted Wells Fargo’s demurrer to the SAC on August 23, 2019,
and dismissed the case without leave to amend.
DISCUSSION
1 There were two loans secured on the property, a first lien of $100,000
and a home equity line of credit of $225,000. Bauman does not distinguish
between the two loans. We refer to them collectively as a single loan.
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I
STANDARD OF REVIEW
General Principles of Appellate Review
A demurrer tests the legal sufficiency of the allegations of the
complaint to state valid causes of action. (People ex rel. Harris v. Pac Anchor
Transportation, Inc. (2014) 59 Cal.4th 772, 777 (Harris).) On review, we
exercise our independent judgment. (Id. at p. 777.) In doing so, we accept as
true all properly alleged material facts, but not deductions, contentions, or
conclusions of law or fact. (Ibid.) We may also consider matters that are
subject to judicial notice, and we must disregard allegations that are contrary
to facts judicially noticed. (Intengan v. BAC Home Loans Servicing L.P.
(2013) 214 Cal.App.4th 1047, 1052.)
We review the failure to grant leave to amend for an abuse of
discretion. The burden falls on the plaintiff to "show what facts he or she
could plead to cure the existing defects in the complaint." (Boyd v. Freeman
(2017) 18 Cal.App.5th 847, 853–854 (Boyd).) The plaintiff must set forth the
applicable substantive law and “factual allegations that sufficiently state all
required elements of that cause of action . . . .” (Rakestraw v. California
Physicians’ Service (2000) 81 Cal.App.4th 39, 43–44 (Rakestraw); People ex
rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112 [plaintiff must
“spell out in his brief the specific proposed amendments on appeal”].)
Bauman represented herself in both the trial and appellate courts. The
procedural rules apply to a self-represented party in the same manner as to a
party represented by counsel. (Burkes v. Robertson (2018) 26 Cal.App.5th
334, 344–345; McClain v. Kissler (2019) 39 Cal.App.5th 399, 416.)
As such, she has the burden of demonstrating that the trial court committed
an error that justifies reversal of the judgment. (Jameson v. Desta (2018) 5
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Cal.5th 594, 609 (Jameson).) In this respect, Bauman has provided only
cursory arguments that are not grounded in the record and that lack relevant
supporting authorities. (Craddock v. Kmart (2001) 89 Cal.App.4th 1300,
1307.) This is insufficient. “To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and citations to
facts in the record that support the claim of error. [Citations.] . . . Hence,
conclusory claims of error will fail.” (In re S.C. (2006) 138 Cal.App.4th 396,
408.) “We are not bound to develop appellants' arguments for them” (In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830) or “to examine
undeveloped claims.” (Paterno v. State of California (1999) 74 Cal.App.4th
68, 106.)
Moreover, we review the issues raised by Bauman only to the extent
that she has developed her claims with facts in the record and legal
authorities that support her claims. Bauman has failed to provide a complete
record and to support references in her brief to matters of record by a citation
to the volume and page number of the record where the matter appears. (See
Cal. Rules of Court, rule 8.204(a)(1)(C); see also Jameson, supra, 5 Cal.5th at
p. 609.)
Bauman counters the deficient record and support for her arguments
by contending the court did not give her enough notice or time to request a
statement of decision. In ruling on a demurrer, the lower court must “include
in its decision or order a statement of the specific ground or grounds upon
which the decision or order is based.” (Code of Civ. Proc., § 472d.) Here, the
court posted tentative rulings before its rulings. Bauman, however, has not
included in the record the tentative decisions for the demurrers, minute
orders or reporter’s transcripts of the hearings, other than a minute order
from March 1, 2018, that states, “The court will hear this matter.” In the
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absence of any evidence to the contrary, we presume that the court stated the
grounds on which it sustained the demurrer in its tentative decisions or its
orders. (Evid. Code, § 664 [presumption that duty was regularly performed];
In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653–654
[presumption that court knew and followed the law].)
Failure to state grounds for sustaining a demurrer is harmless, in any
event, unless the appellant can show prejudice. (Lambert v. Carneghi (2008)
158 Cal.App.4th 1120, 1128, fn. 4.) Bauman apparently knows the basis for
the ruling because she asserts the SAC was dismissed due to the statute of
limitations. Bauman, however, has not created a record that shows any
prejudice from the lack of a written statement of grounds.
III
LEAVE TO AMEND
Bauman contends that the court erred in failing to grant her leave to
amend her complaint a third time. She contends that she could amend her
complaint to state that Wells Fargo waived the statute of limitations in its
loan contract with her. That alleged waiver was already included in her
SAC, however, so a third amendment would add no new fact.
In further support for her position, Bauman quotes a paragraph from
the 2007 deed of trust that states, “I will waive, within applicable law, the
pleading of the statute of limitations as a defense to enforce this Security
Agreement . . . .” The deed of trust defines “I” as the borrower, Bauman.
This is a waiver by the borrower, not by the lender.
The court has already rejected Bauman’s argument that Wells Fargo
waived the statute of limitations by this instrument when it sustained the
demurrer to the SAC. As we have already noted, amending the complaint a
third time would not add anything new. Therefore, we conclude court did not
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abuse its discretion in refusing to grant leave to amend. (Boyd, supra, 18
Cal.App.5th at pp. 853–854.)
IV
EFFECT OF BANKRUPTCY FILINGS ON THE STATUTE OF
LIMITATIONS
Bauman contends that the court erred in sustaining the demurrer on
statute of limitation grounds because she was stayed from filing this
complaint by multiple bankruptcy filings between 2010 and 2018. The SAC
mentions the filings in very general terms. The record shows that Bauman
filed for bankruptcy six times between 2010 and 2018: two proceedings in
chapter 7, and four proceedings in chapter 13.2
Voluntary bankruptcy filings stay only actions against the debtor.
Bankruptcy filings do not stay actions by the debtor against others. (ECC
Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 118
Cal.App.4th 1031, 1037, fn. 3 (ECC Construction); In re Palmdale Hills
Property, LLC (9th Cir. 2011) 654 F.3d 868, 875 (Palmdale).)
The purpose of bankruptcy’s automatic stay is to protect the debtor
from his or her creditors. It does not prevent the debtor from pursuing his or
her claims against others. The filing of a bankruptcy petition operates as an
automatic stay of “the commencement or continuation . . . of a judicial . . .
proceeding against the debtor that was or could have been commenced before
the commencement of the [bankruptcy proceeding] . . . .” (11 U.S.C. §
362(a)(1), emphasis added). The filing of a bankruptcy petition “tolls time
2 Wells Fargo requested judicial notice of the dockets of Bauman’s
bankruptcy proceedings. These court filings are properly subject to judicial
notice. (Evid. Code, § 452, subd. (d).) Bauman did not include in the record
on appeal the court’s ruling on the request for judicial notice, however. In the
absence of a record to the contrary, we presume the trial court granted the
request in support of the demurrer. (Jameson, supra, 5 Cal.5th at p. 609.)
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periods for commencing or continuing a judicial action against the debtor
[citation], such as the limitations period for commencing an action [citation]
or the time for enforcing or bringing an action to enforce a judgment against
a debtor [citations]. It does not toll any limitations period affecting an action
by the debtor.” (ECC Construction, supra, 118 Cal.App.4th at p. 1037, fn. 3,
emphasis added; Palmdale, supra, 654 F.3d at p. 875 [“[bankruptcy] stay
does not prevent a plaintiff/debtor from continuing to prosecute its own
claims”]; In re Merrick (B.A.P. 9th Cir. 1994) 175 B.R. 333, 337 (Merrick)
[“ ‘the automatic stay is inapplicable to suits by the bankrupt’ ”].)
Cases cited by Bauman are not to the contrary. Legal actions against
the debtor were stayed in Kertesz v. Ostrovsky (2004) 115 Cal.App.4th 369,
378 (Kertesz), and Wells v. California Tomato Juice Co. (1941) 47 Cal.App.2d
634, 637.3 Kertesz and Wells are not applicable because they do not address
the issue here, an action by the debtor against the bank.
Bauman also cites cases stating that a debtor in a chapter 7 proceeding
cannot initiate a complaint on his or her own because the trustee in chapter 7
has control over all of the debtor’s assets, including the debtor’s causes of
action. (Merrick, supra, 175 B.R. at p. 337 [cause of action is an asset of
estate in chapter 7]; Lane v. Vitek Real Estate Industries Group (E.D. Cal.
2010) 713 F.Supp.2d 1092, 1096 (Lane); In Re Corbett (Bankr. E.D. Cal. No.
14-01089, 2016) [2016 WL 1045667].) This assertion is correct. However, it
is not applicable in chapter 13 proceedings and does not prevent the debtor
from obtaining leave to pursue his or her claims against others.
“ ‘In [chapter 7] liquidation proceedings, only the trustee
has standing to prosecute or defend a claim belonging to
the estate. The same cannot be said for trustees under the
3 Bauman has cited an unpublished case as well. Unpublished opinions
may not be cited or relied upon. (Cal. Rules of Ct., rule 8.1115(a).)
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reorganization chapters. In those regimes, the debtor has
express authority to sue and be sued. [Citation.]
Bankruptcy Rule 6009, which applies to chapters 7, 11 and
13, directs that “[w]ith or without court approval, the
trustee or debtor in possession may prosecute or may enter
an appearance and defend any pending action or
proceeding by or against the debtor, or commence and
prosecute any action or proceeding in behalf of the estate
before any tribunal.” [Citation.] The Chapter 13 debtor
has been considered analogous to Chapter 11, which grants
the debtor full authority as representative of the estate
typical of a trustee. [Citation.]” (In re DiSalvo (9th Cir.
2000) 219 F.3d 1035, 1039 (DiSalvo).)
We note Bauman was in chapter 7 proceedings for no more than two
years in total. The rest of her proceedings were in chapter 13, and she could
sue as the representative of the estate. (Di Salvo, supra, 219 F.3d at p. 1039;
Kelsey v. Waste Management Co. of Alameda County (1999) 76 Cal.App.4th
590, 595 [chapter 13 debtor has standing to sue outside the bankruptcy
court].)
Moreover, a debtor in chapter 7 can sue in his or her own name if the
trustee abandons the claim. (Lane, supra, 713 F.Supp.2d at p. 1097.) The
debtor can force the trustee to prosecute the action or to abandon it to the
debtor. (Danielson v. ITT Industrial Credit Co. (1988) 199 Cal.App.3d 645,
656 (Danielson).) A chapter 7 proceeding, therefore, does not toll the period
for state court litigation. (Ibid.; see also A. Groppe & Sons Glass Co., Inc. v.
Fireman's Fund Ins. Co. (1991) 232 Cal.App.3d 220, 225 [reorganization
proceedings].)
Bauman contends that she could amend the complaint to state that she
asked the trustee to pursue these causes of actions against Wells Fargo and
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the trustee refused.4 This would not assist her, however, because if the
trustee refused to pursue the claims, Bauman could have obtained an order of
abandonment by the trustee to pursue the claims on her own. (Danielson,
supra, 199 Cal.App.3d at p. 656.)
Bauman’s multiple bankruptcy filings did not toll the statute of
limitations for her causes of action against Wells Fargo.
V
ADDITIONAL CLAIMS
Bauman contends that the trial court did not consider her causes of
action that were based on Wells Fargo’s conduct in 2017 and 2018. She
claims that the statute of limitations did not run as to those causes of action.
Bauman identifies these claims in general terms only, without citations to
the record. Therefore, there are no citations or applicable authorities to
support her arguments.
Bauman mentions a claim for “[r]ecoupment and set-off” in her opening
brief, but there is no such cause of action in the SAC. She also claims in her
brief that she stated a conversion claim for unauthorized ads for sale of her
property, but that is not correct. She alleged a conversion claim in the SAC
that was based on an action on January 28, 2013, when Wells Fargo allegedly
seized her bank accounts to cure the loan default. This claim was not filed
within the three-year statute of limitations for conversion. (Code Civ. Proc.
§ 338, subd. (c).)
Bauman’s additional claims for “false light,” false statements, and
personal injury are based in part on Wells Fargo’s recording of notices of
default and foreclosure on her property. Recording and publication of notices
4 Bauman refers, without a record citation, to a proposed third amended
complaint. The record does not contain a proposed third amended complaint.
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of default and foreclosure sale are privileged communications under Civil
Code section 2924, subdivision (d)(1) and (d)(2) and thus protected from tort
claims. (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.) The
claims are also based on Wells Fargo’s reporting to credit agencies of
Bauman’s failure to make monthly mortgage payments after 2011. The
Federal Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) preempts all
state common law tort claims against furnishers of credit information.
(Sanai v. Saltz (2009) 170 Cal.App.4th 746, 773.) Thus, these additional
claims are barred for reasons other than the statute of limitations.
We have reviewed the cases5 cited by Bauman and find none that
support her argument. (Addison v. State of California (1978) 21 Cal.3d 313,
319 [equitable tolling suspends statute of limitations for period plaintiff
pursued claim in court that did not have jurisdiction]; Neitzke v. Williams
(1989) 490 U.S. 319, 328–329 [claim that is dismissed for failure to state
cause of action is not necessarily frivolous]; Idaho Sporting Congress, Inc. v.
Rittenhouse (9th Cir. 2002) 305 F.3d 957, 964–965 [no res judicata when
operative facts are different].)
We conclude that the trial court did not err in dismissing all of
Bauman’s causes of action without leave to amend.
5 We disregard the unpublished decision cited by Bauman. (See Cal.
Rules of Ct., rule 8.1115(a).)!
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FAILURE TO FOLLOW NINTH CIRCUIT LAW
Without identifying which law, Bauman contends that Wells Fargo
disregarded Ninth Circuit law. Bauman cites only to the Register of Actions
and appears to cite documents that she submitted to the court.
Bauman has cited In re Blenheim (9th Cir. 2015) 803 F.3d 477 and In
re Mann (9th Cir. 1990) 907 F.2d 923, 926–927, at the beginning of her
opening brief for the legal principle that it is proper to file bankruptcy
petitions to prevent foreclosure on a mortgage. If these are the cases that
Bauman claims Wells Fargo disregarded, they are not relevant here.
Blenheim and Mann are both bankruptcy proceedings that do not involve
discussion of causes of actions filed by a debtor against a lender in state
court.
Bauman also criticizes Wells Fargo for failing to respond to Kertesz,
supra, 115 Cal.App.4th at p. 378. As noted above, that case states that legal
actions against the debtor are stayed by bankruptcy proceedings. Kertesz did
not address the effect of bankruptcy on legal actions by the debtor.
DUE PROCESS AND LACK OF JURISDICTION
Bauman claims, in cursory fashion and without legal support, that
dismissal of her SAC without leave to amend was a violation of due process
and that the court lacked subject matter jurisdiction to dismiss the complaint
without leave to amend.
Bauman’s theories are not supported by legal authority. We would,
however, consider Bauman’s request for leave to amend if she provided
factual allegations and applicable substantive law that would support a valid,
timely cause of action against Wells Fargo. (Rakestraw, supra, 81
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Cal.App.4th at pp. 43–44; Boyd, supra, 18 Cal.App.5th at pp. 853–854.) She
has not.
DISPOSITION
Bauman has not carried her burden of showing that the trial court
committed any error that justifies reversal of the judgment. (Jameson, supra,
5 Cal.5th at p. 609; In re S.C., supra, 138 Cal.App.4th at p. 408.)
The judgment is affirmed. Costs on appeal to be awarded to defendant.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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