Yenokian v. Deutsche Bank CA2/4 ( 2015 )

Filed 1/26/15 Yenokian v. Deutsche Bank CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
PIERRE YENOKIAN, B252814
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC517784)
v.
DEUTSCHE BANK, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles Country, Michael
L. Stern, Judge. Affirmed.
Law Offices of Louisa Moritz and Louisa Moritz, for Plaintiff and Appellant.
Keesal, Young & Logan, David D. Piper and Tyson W. Kovash, for Defendant
and Respondent.
______________________________
Plaintiff Pierre Yenokian appeals from a judgment of dismissal following an order
sustaining defendant Deutsche Bank, N.A.’s demurrer without leave to amend the
complaint. Plaintiff challenges only the trial court’s denial of leave to amend. We find
no abuse of discretion and affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In November 2004, plaintiff obtained a mortgage loan secured by his home from
Washington Mutual Bank, F.A. (Washington Mutual) and executed a deed of trust with
power of sale. The recorded deed of trust listed Washington Mutual as beneficiary and
designated California Reconveyance Company as trustee. Subsequently, plaintiff
defaulted on his payments. On May 29, 2008, a substitution of trustee was executed,
designating Quality Loan Service Corporation (Quality) as the trustee. On May 30, 2008,
Quality recorded a notice of default against plaintiff’s home. In July 2008, the
substitution of trustee was recorded. In October 2010, Quality conducted a trustee’s sale
and in December issued a trustee’s deed upon sale to defendant.
In August 2013, plaintiff filed a complaint for declaratory relief and cancellation
of instruments. Plaintiff claimed the foreclosure sale was invalid because, at the time
Quality recorded the notice of default against the property, the substitution of trustee
authorizing Quality to act as a trustee had not yet been recorded.
Defendant filed a demurrer to the complaint, which was sustained without leave to
amend. The trial court issued a judgment of dismissal.
This timely appeal followed.
DISCUSSION
The only issue before us is whether the trial court abused its discretion by
sustaining defendant’s demurrer without leave to amend. “It is an abuse of discretion to
sustain a demurrer without leave to amend if there is a reasonable possibility that the
defect can be cured by amendment. [Citation.] The burden is on the plaintiff to
demonstrate how the complaint can be amended to state a valid cause of action.
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[Citation.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 226.) “[A] plaintiff
need not request leave to amend in order to preserve on appeal the issue of whether the
court abused its discretion in sustaining a demurrer without leave to amend. (Code Civ.
Proc., § 472c).” (Palm Springs Tennis Club v. Rangel (1999) 73 Cal.App.4th 1, 7.) But
the plaintiff still bears the burden of proof on appeal to show “there is a reasonable
possibility the defect in the pleading can be cured by amendment.” (Ibid.)
It is unclear how plaintiff would be able to amend his complaint as to sufficiently
state a cause of action. The record makes clear that the process by which Quality was
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named trustee and recorded the notice of default was lawful. Civil Code section 2934a
provides that a trustee named in a recorded substitution of trustee is “deemed to be
authorized to act as the trustee under the mortgage or deed for trust for all purposes from
the date the substitution is executed by the mortgagee, beneficiaries, or by their
authorized agents. . . . Once recorded, the substitution shall constitute conclusive
evidence of the authority of the substituted trustee or his or her agents to act pursuant to
this section.” (§ 2934a, subd. (d), italics added.) “That statute also provides a substituted
trustee may record a notice of default before the substitution empowering the trustee to
act is recorded,” as long as notice of substitution is mailed to the appropriate parties in
the manner provided in section 2924b and an affidavit of mailing is attached. (Rossberg
v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1495; § 2934a, subd. (b).) The
substitution of trustee designating Quality as trustee was executed on May 29, 2008, and
notice of the substitution was sent to the appropriate parties on June 5, 2008. The notice
of default was recorded on May 30, 2008. The substitution of trustee was recorded on
July 10, 2008, which constitutes “conclusive evidence” of Quality’s authority to act as a
trustee. (§ 2934a, subd. (d).)
Based on the record before us, plaintiff has not met his burden of proof to show he
is entitled to a leave to amend. “[I]t is not sufficient for the [plaintiff] to assert ‘an
abstract right to amend.’ [Citation.]” (Rossberg v. Bank of America, N.A., supra,
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Subsequent statutory references are to the Civil Code.
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219 Cal.App.4th at p. 1504.) Plaintiff makes no representation that he presented
arguments in the trial court to show a reasonable possibility of curing the defect through
amendment. Further, his briefing on appeal does not specify how the defect in his
complaint can be cured. We find no abuse of discretion by the trial court in sustaining
the demurrer without leave to amend.
DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
EPSTEIN, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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