Vildosola v. Countrywide Home Loans, Inc. CA4/1 ( 2015 )

Filed 9/10/15 Vildosola v. Countrywide Home Loans, Inc. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
MIGUEL A. VILDOSOLA et al., D066094
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2013-00079436-
CU-BT-CTL)
COUNTRYWIDE HOME LOANS, INC. et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County, Joel M.
Pressman, Judge. Affirmed.
Joseph La Costa for Plaintiffs and Appellants.
Severson & Werson, Jan T. Chilton and Michael G. Cross for Defendants and
Respondents.
Like the trial court in this wrongful foreclosure case, we reject the plaintiff's
attempt to avoid responsibility for more than $1 million in loans, the proceeds of which
they admit they received, on the grounds the lender was not fully and accurately
identified in the underlying loan documents. The record shows the loan documents
identify the lender by use of the fictitious name under which it carried on its business.
The lender's use of its fictitious name did not invalidate the notes or deeds of trust or
otherwise relieve the plaintiffs of their obligations. Accordingly, we affirm the trial
court's judgment entered on its order sustaining the defendant lender's demurrer.
FACTUAL AND PROCEDURAL BACKGROUND
According to the allegations of their complaint, in 2006 plaintiffs and appellants
Miguel A. Vildosola and Iris Vildosola (collectively Vildosolas) purchased a home in
Chula Vista. They financed the purchase by borrowing a total of $1,080,000; $960,000
of the financing was in the form of a promissory note, secured by a first deed of trust on
the home they were purchasing, and an additional $120,000 was financed by way of a
separate note, secured by a second deed of trust on the home.
In 2011, the Vildosolas were in default under the terms of the notes and deeds of
trust and a notice of default and election to sell under a deed of trust was recorded against
their home.
On December 10, 2013, the Vildosolas filed their complaint against:
"AMERICA'S WHOLESALE LENDER, a New York Corporation." The complaint
attached, as exhibits, the two notes and accompanying deeds of trust. The deeds of trust
state: "'Lender' is [¶] AMERICA'S WHOLESALE LENDER [¶] Lender is a
CORPORATION [¶] organized and existing under the laws of NEW YORK."
The Vildosolas allege there has never been a corporation organized under New
York law named America's Wholesale Lender. The Vildosolas further allege that
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because no such corporation has ever existed, the notes and deeds of trust they executed
are null and void.
Countrywide Home Loans, Inc. (Countrywide) is a corporation existing under the
laws of the state of New York.1 Countrywide filed a demurrer to the Vildosolas'
complaint. In support of the demurrer, Countrywide asked that the trial court take
judicial notice of fictitious business name statements it first recorded in 1993, by which
Countrywide stated that it would be doing business as America's Wholesale Lender. The
trial court sustained Countrywide's demurrer without leave to amend and entered
judgment dismissing the Vildosolas complaint.
DISCUSSION
I
We review de novo an order sustaining a demurrer without leave to amend.
(Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) The issue is whether, assuming the truth of
all well-pleaded facts and those subject to judicial notice, the complaint alleged facts
sufficient to state a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal. 4th
1112, 1126.) We disregard contentions, deductions or conclusions of fact or law. (Ibid.)
"'Further, we give the complaint a reasonable interpretation, reading it as a whole and its
parts in their context. [Citation.] When a demurrer is sustained, we determine whether
1 Upon Countrywide's request, we have taken judicial notice of documents from the
office of the New York State Department of State, Division of Corporations and the
California Secretary of State. (Evid. Code, §§ 452, subd. (h) & 459, subd. (a).) These
documents show that at all pertinent times Countrywide was a duly organized New York
corporation doing business in California.
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the complaint states facts sufficient to constitute a cause of action. [Citation.] And when
it is sustained without leave to amend, we decide whether there is a reasonable possibility
that the defect can be cured by amendment: if it can be, the trial court has abused its
discretion and we reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on the
plaintiff.' [Citations.]" (Ibid.) However, if any one of the several grounds of demurrer is
well taken, the judgment must be affirmed. (Aubry v. Tri–City Hospital Dist. (1992) 2
Cal. 4th 962, 967.)
II
"Use of a fictitious business name does not create a separate legal entity. As the
First District Court of Appeal recently noted, '"[t]he designation [DBA] means 'doing
business as' but is merely descriptive of the person or corporation who does business
under some other name. Doing business under another name does not create an entity
distinct from the person operating the business." [Citation.] The business name is a
fiction, and so too is any implication that the business is a legal entity separate from its
owner.' [Citations.]" (Pinkerton's, Inc. v. Superior Court (1996) 49 Cal. App. 4th 1342,
1348; see Cleveland v. Johnson (2012) 209 Cal. App. 4th 1315, 1330.) Thus, in using the
fictitious name America's Wholesale Lender in the loan documents, Countrywide acted
properly and did not create or purport to create any new juridical entity. (Ibid.) The fact
that the loan documents went further and stated that America's Wholesale Lender is a
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New York Corporation was not inaccurate or misleading.2 Countrywide, doing business
as America's Wholesale Lender, is and was a New York corporation and, like a multitude
of other businesses, is permitted to operate under its fictitious name. (Ibid.)
The obvious lack of merit in the Vildosolas' contentions required that the trial
court not only sustain Countrywide's demurer, but that it does so without leave to amend.
DISPOSITION
The judgment is affirmed. Countrywide to recover its costs of appeal.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
2 Contrary to the Vildosolas argument on appeal, the loan documents do not
describe the lender as "America's Wholesale Lender, a New York Corporation." Rather,
as we noted, the deeds of trust state that "'Lender' is [¶] AMERICA'S WHOLESALE
LENDER [¶] Lender is a CORPORATION [¶] organized and existing under the laws of
NEW YORK." As we have indicated, this statement is accurate.
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