Hansen v. Southside Neighborhood Stabilization 2021-5 CA5 ( 2023 )

Filed 10/5/23 Hansen v. Southside Neighborhood Stabilization 2021-5 CA5
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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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MARK HANSEN et al.,
F084564
Plaintiffs and Appellants,
(Super. Ct. No. MCV086034)
v.
SOUTHSIDE NEIGHBORHOOD OPINION
STABILIZATION 2021-5,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Madera County. Michael J.
Jurkovich, Judge.
Shapero Law Firm and Sarah Shapero for Plaintiffs and Appellants.
Sokolof Remtulla and Daniel I. Singer for Defendant and Respondent.
-ooOoo-
Plaintiffs Mark and Christina Hansen appeal the trial court’s decision to sustain a
demurrer to their second amended complaint in favor of defendant Southside
Neighborhood Stabilization 2021-5 (Southside). The allegations of the complaint address
the 2021 nonjudicial foreclosure of a residence plaintiffs purchased in Madera County in
1994. Based on our review of the record and the relevant legal doctrines, we conclude
the demurrer was properly sustained.
FACTUAL SUMMARY1
In April 1994, plaintiffs purchased a residence on Varden Drive in Madera County
(the property). Details of the purchase are unknown. In 2004 plaintiffs received a loan
from MortgageIT, Inc. for $102,000, secured by a first trust deed recorded on the
property.
In December 2020, all beneficial interest under the trust deed was assigned to US
Bank Trust National Association (Bank), which essentially became the lender and
beneficiary on the loan. At some point, SN Servicing Corporation (SN Servicing)
became the servicer on the loan and trust deed.
On February 2, 2021, Prestige Default Services, LLC substituted in as trustee.
Prestige filed a notice of default and election to sell. The default amount was $83,074 as
of this date.
On May 13, 2021, a notice of trustee’s sale was recorded, with the sale set for June
16, 2021. The unpaid loan balance and other charges were listed at $144,126 as of that
date. The trustee’s sale occurred on June 16, 2021. Southside was the successful bidder
at $151,100. A trustee’s deed to Southside was executed on August 3 and recorded on
August 18, 2021.
On July 20, 2021, plaintiffs filed a separate complaint against Ocwen Loan
Servicing, LLC, (a prior servicer of the loan), SN Servicing and US Bank in the Madera
County Superior Court,2 which allegedly resulted in a lis pendens recorded on July 28,
1 This factual summary is primarily taken from the allegations of the second
amended complaint (SAC) and exhibits which have been judicially noticed by the trial
court in ruling on the various motions included in the appellate record.
2 Plaintiffs make a claim in their opening brief that they filed a lis pendens against
the property on July 28, 2021, which we presume was related to this separate action.
Plaintiffs cite a request for judicial notice to support this claim. No such document exists
2.
2021 and a temporary restraining order (TRO) issued on August 13, 2021, preventing
these particular defendants (not Southside or Prestige Default Services, the trustee who
recorded the trustee’s deed) from recording a trustee’s deed against the property.3 On
August 21, 2021, plaintiffs discovered a trustee’s deed had been recorded against the
property on August 18, 2021, evidencing the transfer to Southside. On August 23, 2021,
the Ocwen case was removed to federal court and later dismissed.4
PROCEDURAL SUMMARY
Plaintiffs filed a complaint on September 8, 2021, against SN Servicing, Bank, and
Southside.5 Following a demurrer, a first amended complaint (FAC) was filed on
November 5, 2021. Southside again demurred, arguing generally that they were a
bonified purchaser for value (BFP), and therefore protected from suit. Plaintiffs objected
to the demurrer, arguing Southside was not a bona fide purchaser due to the separate
action against Ocwen, SN Servicing and US Bank, referred to above, which resulted in
the issuance of a TRO before the trustee’s deed was recorded.
Before ruling on the demurrer to the FAC, the trial court asked for supplemental
briefing on the issue of whether plaintiffs should be given leave to amend their complaint
to allege whether they were ready, willing, and able to tender the amount necessary to
redeem the property, in light of plaintiffs’ allegations of defects in the foreclosure
in the appellate record, and no request for judicial notice was made by plaintiffs to this
court.
3 This separate action is not part of this appeal.
4 The referred to TRO is not part of the appellate record. A TRO is a temporary
order that generally expires after a short period of time. (See Code Civ. Proc., § 527.)
We were provided no documentation that the referenced TRO was still in existence when
the trustee’s deed was recorded on August 13, 2021.
5 In 2021, Plaintiff’s filed three separate actions related to the foreclosure of their
property. Southside was named only in this action. Unless specified otherwise, the
details and status of the other cases is not relevant to our analysis or decision.
3.
procedures contained in the fifth and sixth causes of action. Following the filing of briefs
on this issue by the parties, and a tentative ruling, the court issued the following ruling:
“[T]he Demurrers by Defendants are sustained with leave to amend.
Plaintiffs’ request to allege an ability to tender the reinstatement amount is
denied. However, Plaintiffs are given leave to amend to allege an ability to
tender the redemption value. Plaintiffs agree that, if they cannot allege an
ability to tender the redemption value, they will amend to eliminate all
allegations and pleas for equitable relief (with the exception of Plaintiffs’
claim for violation of Cal. Business and Professions Code § 17200, et
seq).”6
Plaintiffs filed their SAC on April 12, 2022, which contained the same causes of
action as the FAC. The SAC is the operative complaint. In the factual summary,
plaintiffs added paragraph No. 20, to address the tender issue:
“Plaintiffs have the funds necessary to tender the entire outstanding balance
on this loan at the time of the sale, plus any interest, taxes and insurance
that has become due since the date of the sale. Plaintiffs are ready, willing
and able to tender all amounts outstanding on the loan, ie, the redemption
value of the property.”
The first cause of action for breach of contract was alleged only against defendants
SN Servicing and Bank. The remaining five counts were alleged against all defendants,
including Southside. These causes of action alleged unfair competition, in violation of
Business and Professions Code section 17200 et seq. (second cause of action);
cancelation of recorded instruments (third cause of action); slander of title (fourth cause
of action); violations of Civil Code7 sections 2924c and 2924d by including improper
financial demands in their foreclosure filings (fifth cause of action); and including false
information in the notice of default in violation of section 2924, subdivision (a)(1)(C)
(sixth cause of action).
6 As noted below, this is not the correct legal description of a proper tender under
Civil Code section 2903.
7 All further statutory references are to the Civil Code, unless otherwise specified.
4.
Southside demurred to the SAC on April 20, 2022. For each of the five causes of
action alleged against them, Southside demurred on the grounds that each failed to state a
cause of action, since they were bona fide purchasers for value of the property, with no
actual or constructive knowledge of another’s rights. A new request for judicial notice
was also filed on behalf of Southside, again attaching various recorded documents related
to the foreclosure.
On May 23, 2022, the trial court sustained Southside’s demurrer to each cause of
action brought against it by plaintiffs, without leave to amend. Based on an earlier
stipulation of the parties, the second (unfair business competition), fifth and sixth
(improper foreclosure filings) causes of action, were without leave to amend. With
respect to the third and fourth causes of action (cancellation of recorded documents and
slander of title), the court noted its ruling was subject to plaintiffs’ objections to the
sustaining of those demurrers without leave to amend. The court entered an order
expunging the lis pendens recorded on the property on October 14, 2021, and entered
judgment dismissing the action against Southside, with prejudice. This appeal followed.
DISCUSSION
While the demurrer to the SAC was sustained as to all five causes of action
alleged against Southside, plaintiffs are only asking for a review of the trial court’s order
on three causes of action—unfair competition under Business and Professions Code
section 17200 (second cause of action),8 cancellation of instrument (third cause of
action), and slander of title (fourth cause of action).
8 As noted above, the parties entered into a stipulation that this cause of action was
“without leave to amend.” The wording of this stipulation creates confusion because the
parties discuss this cause of action as if a reversal from this court would result in the
claim remaining viable. We choose to interpret the stipulation to mean the claim for
unfair competition against Southside will survive only if this court reverses the trial
court’s ruling that plaintiffs failed to state a cause of action as it is currently written, but
have given up the ability to further amend the cause of action to correct pleading
deficiencies.
5.
Standard Of Review
“ ‘On appeal from a judgment of dismissal following the sustaining of a demurrer
without leave to amend, the appellant “has the burden to show either [that] the demurrer
was sustained erroneously or that to sustain the demurrer without leave to amend
constitutes an abuse of discretion.” ’ ” (Blickman Turkus, LP v. MF Downtown
Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 866 (Blickman Turkus, LP).) Because a
general demurrer raises only the pure question of law of whether the facts set forth in the
challenged pleading are sufficient to constitute a cause of action, the reviewing court
considers it without giving deference to the trial court’s determination. (Ibid.; see Code
Civ. Proc., § 430.10, subd. (e).) The standard of review is, therefore, de novo. (Villafana
v. County of San Diego (2020) 57 Cal.App.5th 1012, 1016.) In this examination of the
allegations of the challenged pleading, the reviewing court may also consider matters
judicially noticed. (Blickman Turkus, LP, at p. 866.) We may affirm the demurrer on
any basis, regardless of the ground relied upon by the trial court when making its ruling.
(Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance
Company (2021) 70 Cal.App.5th 341, 353.)
To properly state a cause of action, the SAC must allege every element of the
cause of action or actions raised. (Shaeffer v. Califia Farms, LLC (2020) 44 Cal.App.5th
1125, 1134.) For purposes of reviewing a demurrer, while we must accept the factual
allegations as true, we are not required to assume the truth of alleged “ ‘contentions,
deductions or conclusions of law’ because ‘appellate courts must independently decide
questions of law.’ ” (Ibid.) Once we complete that portion of the review, we must then
decide whether it is reasonably possible the defect or defects can be cured with an
amendment. (Ibid.)
I. APPLICATION OF THIS STANDARD OF REVIEW TO THE SAC
One crucial question presented in this appeal is whether plaintiffs adequately pled
in paragraph No. 20 of the SAC the required elements to constitute a proper tender of
6.
sufficient monies to redeem the property necessary to vacate the foreclosure of the
property. We conclude they have not. To appreciate the importance of this requirement
to the issues presented in this case, we provide a brief summary of the nonjudicial
foreclosure process.
A. Nonjudicial Foreclosures
The two methods generally available to foreclose property are commonly referred
to as judicial and nonjudicial foreclosures. The type of foreclosure involved in this case
was a nonjudicial foreclosure, which is governed by statute.
“Civil Code section 2924, subdivision (a)(1) is part of a broad statutory
system that creates a largely ministerial process leading to a foreclosure
sale that does not require any court oversight. ‘The purposes of this
comprehensive scheme are threefold: (1) to provide the
creditor/beneficiary with a quick, inexpensive and efficient remedy against
a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful
loss of the property; and (3) to ensure that a properly conducted sale is final
between the parties and conclusive as to a bona fide purchaser.’ ” (Arabia
v. BAC Home Loans Servicing, LP (2012) 208 Cal.App.4th 462, 471, citing
Moeller v. Lien (1994) 25 Cal.App.4th 822, 830.)
In fact, section 2924, subdivision (c) specifically provides:
“A recital in the deed executed pursuant to the power of sale of compliance
with all requirements of law regarding the mailing of copies of notices or
the publication of a copy of the notice of default or the personal delivery of
the copy of the notice of default or the posting of copies of the notice of
sale or the publication of a copy thereof shall constitute prima facie
evidence of compliance with these requirements and conclusive evidence
thereof in favor of bona fide purchasers and encumbrancers for value and
without notice.”
A suit in equity to set aside a nonjudicial foreclosure sale requires the pleading of
three elements: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully
oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust;
(2) the party attacking the sale suffered prejudice or harm; and (3) the trustor tenders the
amount of the secured indebtedness or was excused from tendering. (Ram v. OneWest
7.
Bank, FSB (2015) 234 Cal.App.4th 1, 10–11.) Nonjudicial foreclosures are presumed to
have been conducted regularly and properly, and thus, the party challenging the sale has
the burden of affirmatively pleading and proving an improper procedure. (Id. at p. 14.)
Again, the validity of the sale is presumed if the buyer is designated to be a BFP.
Furthermore, if the deed recites the necessary formalities, the presumption is rebuttable in
a post foreclosure case only against the trustee or mortgagee if it can be shown the
trustee’s sale was procedurally flawed. (Munger v. Moore (1970) 11 Cal.App.3d 1, 5–9.)
1. The Procedures Used and the Issue of Tender
Again, there were no allegations of procedural defects in how the nonjudicial
foreclosure was conducted in 2021.9 The allegations in the SAC fail to allege that the
actual procedures utilized were improper. There were also no allegations, even in
paragraph No. 20, suggesting a proper tender was made and had been rejected after the
nonjudicial foreclosure was initiated, or at some point before the process was completed.
A proper tender can redeem a debt in both judicial and nonjudicial foreclosures.
“A debtor on a loan secured by a deed of trust on real property has at least two ways
under state law to prevent a foreclosure sale.” (Crossroads Investors, L.P. v. Federal
National Mortgage Assn. (2017) 13 Cal.App.5th 757, 777.) The debtor in a nonjudicial
foreclosure has the power to either reinstate or cure the loan by bringing the payments
current, no later than five business days before the scheduled sale (§ 2924c, subds. (a)(1),
(e)), or the debtor may redeem or pay off the loan by paying off the entire amount owed
before the sale occurs. (Crossroads Investors, L.P., supra, at p. 778, discussing §§ 2903,
2905.)
Under section 2905:
9 Plaintiffs allege a failure to properly communicate during 2020 before the
nonjudicial foreclosure commenced. None of those allegations are connected to the
period of time relevant to the nonjudicial foreclosure.
8.
“Redemption from a lien is made by performing, or offering to perform, the
act for the performance of which it is a security, and paying, or offering to
pay, the damages, if any, to which the holder of the lien is entitled for
delay.”
A tender of the indebtedness is required before a judgment can be entered canceling a
sale under a deed of trust. (Py v. Pleitner (1945) 70 Cal.App.2d 576, 582.) However, a
tender of payment will be considered ineffective if the offeror did “not have the present
ability to make the tender good.” (Napue v. Gor-Mey West, Inc. (1985) 175 Cal.App.3d
608, 621.) “ ‘[I]t is a debtor’s responsibility to make an unambiguous tender of the entire
amount due or else suffer the consequence that the tender is of no effect.’ ” (Nguyen v.
Calhoun (2003) 105 Cal.App.4th 428, 439.) This issue is important because a trustor
who does not make a valid offer of tender before property is sold in a trustee’s sale can
no longer redeem or otherwise recover the property regardless of any present willingness
to pay the debt. (See 5 Miller & Starr, Cal. Real Estate (4th ed. 2022) § 13:266,
p. 13-1207.) At this point, the delivery of the trustee’s deed after the foreclosure sale is
considered “merely a ministerial act.” (Ballengee v. Sadlier (1986) 179 Cal.App.3d 1, 4.)
After the court sustained the demurrer to the first amended complaint, plaintiffs
added paragraph No. 20 to the SAC as follows:
“Plaintiffs have the funds necessary to tender the entire outstanding
balance on this loan at the time of the sale, plus any interest, taxes and
insurance that has become due since the date of the sale. Plaintiffs are
ready, willing and able to tender all amounts outstanding on the loan, ie, the
redemption value of the property.”
We observe two problems with this allegation. First, the allegation is stated in the
present tense, rather than referencing their ability to pay everything that was due before
the trustee’s sale in June 2021. When property is foreclosed nonjudicially and sold at a
trustee’s sale, the trustors’ interest in the property is totally and finally terminated, and
neither the trustor nor any other person with an interest in the property can redeem or
otherwise recover the property regardless of a subsequent willingness to satisfy the full
9.
amount of the debt owed. (5 Miller & Starr, Cal. Real Estate, supra, § 13:266, p. 13-
1207.)
Second, when a tender is required and not excused, a plaintiff seeking to set aside
a trustee’s sale must allege a tender was made of the full amount of the loan to maintain
any cause of action that is either based on wrongful foreclosure allegations or seeking
redress from that foreclosure.10 (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th
1101, 1109.) Besides the reference to a bond sent to another entity in 2018,11 there was
no allegation in the SAC that plaintiffs made an offer of proper tender between the time
of the notice of default and the trustee’s sale in 2021. Nor was there any allegation of the
existence of an enforceable agreement modifying the terms of the promissory note that
would have prevented the trustee’s sale from going forward. (Barroso v. Ocwen Loan
Servicing, LLC (2012) 208 Cal.App.4th 1001, 1017; see also Bank of America v. La Jolla
Group II (2005) 129 Cal.App.4th 706, 712 [“If, after a default, the trustor and beneficiary
enter into an agreement to cure the default and reinstate the loan, no contractual basis
remains for exercising the power of sale.”].)
The issue of tender was a specific concern of the trial court when considering the
demurrer to the first amended complaint, with the court giving plaintiffs one final chance
to allege a proper tender had been made. This was especially important to the second
cause of action for unfair competition, presumably based on a wrongful foreclosure, and
the third cause of action seeking the cancellation of instruments. Both causes of action
required proper tender. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104 [in cases
where the trustor or mortgagor challenges the sale, the trustor or mortgagor must show
10 We note there were also no allegations that tender was either unneeded or that the
reinstatement/redemption value was incorrect. (See Onofrio v. Rice (1997) 55
Cal.App.4th 413, 424.)
11 Counsel for plaintiffs admitted in an earlier hearing that the bond was not alleged
to be an offer of tender.
10.
they tendered the amount of the secured indebtedness or were excused from tendering];
see Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 878 [plaintiffs were
required to allege tender or an offer of tender of the amounts borrowed as a prerequisite
to the claim].)
Without some language alleging plaintiffs actually tendered or attempted to tender
the outstanding balance, that there was some flaw in how the tender amount was
calculated, or that there had been a modification that should have excused the need for
tender, once the trustee’s sale occurred and Southside was the winning bidder, plaintiffs’
ability to pursue an action against Southside ended.12 (See Moeller v. Lien, supra, 25
Cal.App.4th at p. 832.)
2. Southside’s Status as a BFP
While conducting our de novo review, we restate the general proposition that
under section 2924, there is a statutory presumption created in favor of a BFP who
receives a trustee’s deed that contains language stating the trustee fulfilled the statutory
notice requirements. (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238,
1250.) The two elements that must exist for a buyer to be designated a BFP are that (1)
the purchase by the BFP was in good faith for value, and (2) the BFP had no knowledge
or notice of the asserted rights of another. (Melendrez, at pp. 1251–1252.) Therefore,
absent allegations of fraud or knowledge by the BFP, a trustor cannot set aside a
foreclosure sale to a BFP by alleging irregularities in the way the foreclosure sale
proceeded. (Id. at p. 1256.) “[A] bona fide purchaser is not chargeable with the fraud of
his predecessors and takes a title purged of any anterior fraud affecting it and free from
12 We decline to address Southside’s assertion that paragraph No. 20 in the SAC
created a sham pleading. As we have already stated above, the failure to allege an actual
tender or attempted tender and the ability to tender the full amount owed prior to the
trustee’s sale, or that they were excused from providing tender, is fatal to Plaintiffs’
appeal.
11.
any equities existing between the original parties.”13 (Marlenee v. Brown (1943) 21
Cal.2d 668, 675,)
The SAC contained no allegations suggesting Southside was not acting in good
faith when it purchased the Madera County property, or had any knowledge plaintiffs
were claiming to have a viable interest in the property. Nor were there any allegations
the statutory requirements for a nonjudicial foreclosure were not met.14 Plaintiffs
contend in their briefs that designating Southside a BFP at the demurrer stage was
improper because it appeared to resolve a question of fact. However, plaintiffs failed to
include any allegations challenging Southside’s status as a BFP, which is presumed once
a trustee’s deed is delivered with the required disclosures that all notices had been
provided. (Angell v. Superior Court (1999) 73 Cal.App.4th 691, 700.)
13 Such existing equities could include an action between the trustor and the
beneficiary or the trustee.
14 We are aware from Southside’s request for judicial notice filed with their demurrer
to the SAC that included a notice of default and election to sell under deed of trust was
recorded on February 8, 2021, and a notice of trustee’s sale was recorded on May 13,
2021. The trustee’s sale was held on June 16, 2021. On this court’s own motion, filed on
August 8, 2023, we expressed our intent to take judicial notice of various documents that
were the subject of Southside’s requests for judicial notice in the trial court. Because no
opposition was filed by August 30, 2023, as was required in the order, we now take
judicial notice of the following documents: 1) the deed of trust recorded in the official
records of the Madera County Recorder’s Office on May 27, 2004, as document No.
2004022632; 2) the assignment of deed of trust recorded in the official records of the
Madera County Recorder’s Office on December 15, 2020, as document No. 2020032696;
3) the substitution of trustee recorded in the official records of the Madera County
Recorder’s Office on February 8, 2021, as document No. 2021003872; 4) the notice of
default and election to sell under deed of trust recorded in the official records of the
Madera County Recorder’s Office on February 8, 2021, as document No. 2021003873; 5)
the notice of trustee’s sale recorded in the official records of the Madera County
Recorder’s Office on May 13, 2021, as document No. 2021015433; 6) the trustee’s deed
upon sale recorded in the official records of the Madera County Recorder’s Office on
August 18, 2021, as document No. 2021026041; and 7) the notice of pendency of action
recorded in the official records of the Madera County Recorder’s Office on October 14,
2021, as document No. 2021032070.
12.
3. The Lack of Specific Allegations Supporting Fraudulent Activity
There is also a lack of specificity in any allegations that might support a claim of
fraud, challenging Southside’s BFP status. While a separate cause of action for fraud
may not have been necessary here, several claims raised by plaintiffs suggest fraudulent
activity. Allegations of fraud in a complaint generally require specificity. (See
Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216.) In drafting the complaint,
“ ‘(a) [g]eneral pleading of the legal conclusion of “fraud” is insufficient;
the facts constituting the fraud must be alleged. (b) Every element of the
cause of action for fraud must be alleged in the proper manner (i.e.,
factually and specifically), and the policy of liberal construction of the
pleadings … will not ordinarily be invoked to sustain a pleading defective
in any material respect.’ ” (Committee on Children’s Television, Inc. v.
General Foods Corp., supra, 35 Cal.3d at p. 216.)
In the specific causes of action for unfair competition, cancellation of instrument, and
slander of title, there were only conclusory allegations suggesting the filing of the
trustee’s deed was improper and in violation of a court order.15
This is especially important with respect to plaintiffs’ cause of action for slander
of title. The recording of documents related to a nonjudicial foreclosure are protected, at
a minimum, by a qualified privilege that can only be overcome by fraud or malice.
(Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333; See also Sumner Hill
Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.)
Absolutely no allegations specifically describe any acts of fraud or malice by Southside
in the recording of the trustee’s deed. There is only a generalized statement that the
document contained “false statements,” without addressing Southside’s BFP status and
15 Again, Southside was not a party bound by any court order issued in the other
case. Furthermore, there were no allegations in the complaint specifically stating
Southside was bound to a court order in an action they were not a party to. (See Freeman
v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th 171, 204.)
13.
the protections that status is afforded. Plaintiffs allege no facts challenging Southside’s
status as a BFP, and therefore, Southside was justified in making a claim of title to the
property and were protected by a qualified privilege against a claim of slander of title.
(Kachlon v. Markowitz, supra,168 Cal.App.4th, at p. 333.)
II. OTHER CHALLENGES RAISED BY PLAINTIFFS
Plaintiffs’ briefs, both opening and in reply, contain conclusory statements that
raise generalized contentions of unfairness. Yet, as in their SAC, there are no specific
statements about how the process was unfair or unlawful.
For instance, plaintiffs repeatedly state that the trustee’s deed was filed improperly
either because there was already a lis pendens on the property or because Southside was
enjoined from recording the trustee’s deed due to the injunctive relief granted in another
action. However, the SAC lacks any allegation that a lis pendens was in effect on the
property when the trustee’s sale of the property occurred on June 16, 2021. Plaintiffs
admit in the SAC the action plaintiffs filed against SN Servicing, US Bank, and Ocwen
was not filed until July 20, 2021, after the trustee’s sale. Again, Southside and the trustee
who recorded the trustee’s deed were not parties to that action. A temporary restraining
order issued in the Ocwen case was issued on August 13, 2021. When the trustee’s deed
was recorded on behalf of Southside on August 18, 2021, Southside was still not a party
to the action in which the TRO was issued.
Plaintiffs also contend the trial court did not have the ability to take judicial notice
of the information contained within the trustee’s deed, beyond the date it was recorded.
When considering the allegations of a challenged pleading, a reviewing court may also
consider matters judicially noticed. (Blickman Turkus, LP, supra, 162 Cal.App.4th at p.
866.) Courts often take judicial notice of the existence and recordation of real property
records, including deeds of trust, when the authenticity of the documents are not
challenged. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264.) In
fact, trial courts reviewing rulings on demurrers often take judicial notice of the parties
14.
involved in a transaction, the dates listed in the document, and sometimes the legal
consequences of a series of recorded documents related to a real estate transaction. (Id. at
p. 265, citing Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152
Cal.App.4th 1106, 1117–1118.) “[A] demurrer may be sustained where judicially
noticeable facts render the pleading defective .…” (Scott v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 743, 751.)
Southside sought judicial notice of the trustee’s deed three times in the trial court.
Plaintiffs never included any allegations in the two amendments to their complaint
suggesting the information contained in the trustee’s deed was inaccurate, such as the
dates when the documents were recorded.
Finally, plaintiffs argue Southside should not have been dismissed from this action
because they were in “privity” with the other defendants. Other than a general allegation
that each defendant was an agent of the others, there were no specific allegations
suggesting Southside was in privity with either SN Servicing or US Bank in the handling
of the mortgage or the trustee sale.
III. SHOULD PLAINTIFFS BE GIVEN ANOTHER OPPORTUNITY TO
AMEND THEIR COMPLAINT AGAINST SOUTHSIDE?
The relevant standard of review requires that once we decide a demurrer was
properly sustained, we must next decide whether it is reasonably possible the defect or
defects in the complaint can be cured with an amendment. (Boyd v. Freeman (2017) 18
Cal.App.5th 847, 853–854.) On this point, the burden belongs to the plaintiffs to show
what facts they could have pled to cure the existing defects in the complaint. (Cantu v.
Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.) “To meet this burden, a plaintiff
must submit a proposed amended complaint or, on appeal, enumerate the facts and
demonstrate how those facts establish a cause of action.” (Ibid.) Moreover, A trial court
does not abuse its discretion when it sustains a demurrer without leave to amend if either:
15.
“the facts and nature of the complainant’s claim are clear and under the
substantive law no liability exists or it is probable from the nature of the
defects and previous unsuccessful attempts to plead that complainants
cannot state a cause of action.” (Kately v. Wilkinson (1983) 148
Cal.App.3d 576, 581.)
In their reply brief to this court, plaintiffs state:
“Appellants were on record raising additional factual issues such as
(1) the Lis Pendens filed before Respondent recorded the [trustee’s deed],
(2) additional facts to establish the issue of ‘tendering reinstatement’,
(3) Respondent’s supposed BFP status, even though Appellants suspect that
Respondent did not buy the property at the Sale, but after[,] during the
‘Notice of Intent to Bid’ period, and (4) the fact that Respondent seems to
be profit-motivated, rather than non-profit as it originally contended.”
Based on our review of the record, this list constitutes general allegations plaintiffs have
made before when opposing each demurrer or represent speculation on their part now at
the very end of the process. The first two “factual issues” listed by plaintiffs address
information that would have been within their own knowledge from the very beginning.
The third and the fourth “factual issues” suggest fraud on Southside’s part, which would
have required much more specificity, as discussed before, and which we cannot confirm
was actually presented to the trial court below.16
Again, we are permitted to affirm a demurrer on any basis, regardless of the
specific ground or grounds relied upon by the trial court when making its ruling.
16 Plaintiffs reference hearings in the trial court for which we do not have transcripts.
It was plaintiffs’ obligation to provide an adequate record for this appeal. “If an appellant
intends to raise any issue that requires consideration of the oral proceedings in the
superior court, the record on appeal must include a record of these oral proceedings .…”
(Cal. Rules of Court, rule 8.120(b).) A record of the lower court proceedings is required
to both support allegations of claimed error, and to facilitate an appellate court’s review
of those claims. (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 498–499.)
There will be no reversal of an order when there is no record explaining what occurred at
the underlying hearing or the trial court’s reasoning. (Rhule v. WaveFront Technology,
Inc. (2017) 8 Cal.App.5th 1223, 1228–1229.) Finally, a party to an appeal cannot rely on
documents referenced in any pleadings submitted to the trial court when those documents
have not been transmitted to the appellate court as part of the appellate record. (See
Hiser v. Bell Helicopter Textron Inc. (2003) 111 Cal.App.4th 640, 656–657.)
16.
(Travelers Indemnity Company of Connecticut v. Navigators Specialty Insurance
Company, supra, 70 Cal.App.5th at p. 353.) We believe it is improbable, based on their
prior efforts, that plaintiffs can make the necessary changes to the SAC that would allow
this case to proceed against Southside for unfair competition, cancellation of instruments,
or slander of title due to Southside’s status as a BFP. Plaintiffs have, therefore, not met
their burden to overturn the trial court’s ruling on the SAC.
DISPOSITION
The judgment dismissing plaintiffs’ action against Southside is affirmed. Costs
are award to Southside in this appeal.
FRANSON, J.
WE CONCUR:
HILL, P. J.
SMITH, J.
17.