Vivian v. California Condominium Assn. CA2/8

Filed 11/5/21 Vivian v. California Condominium Assn. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ARDINE VIVIAN, B301696
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC663072)
v.
CALIFORNIA CONDOMINIUM
ASSOCIATION, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Robert S. Draper, Judge. Affirmed in part,
reversed in part and remanded.
The Community Law Group and Mark S. Smith for
Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Ernest
Slome and Natasha Covarrubias for Defendant and Respondent.
_____________________________
This is the fourth lawsuit Ardine Vivian has filed against
the California Condominium Association, Inc. (the Association)
involving the foreclosure of her condo based on a lien for
delinquent association fees. The first three cases attempted to
prevent foreclosure. She lost each of them, and her condo has
since been sold via foreclosure sale. In the current case, Vivian
seeks damages for wrongful foreclosure and fraud. The trial
court sustained a demurrer based on the claim preclusion aspect
of res judicata.
On appeal, Vivian argues the trial court should have
overruled the demurrer to her second amended complaint (SAC)
because the court had already overruled a demurrer to the first
amended complaint (FAC) on claim preclusion grounds and the
SAC made only “typographical changes” to the FAC. She also
argues the SAC was based on “new events” not involved in the
prior cases.
We affirm in part and reverse in part. We reject Vivian’s
argument the trial court should not have considered the
demurrer to the SAC. We conclude claim preclusion bars Vivian
from asserting any claims based on the validity of the underlying
lien, which was finally decided against her in 2008. However,
claim preclusion does not bar her claims based on the most recent
allegedly faulty notice of the foreclosure sale. For other reasons,
her fraud claim fails. Because the Association did not brief the
merits of Vivian’s wrongful foreclosure claim based on faulty
notice, we leave it to the parties and trial court on remand.
BACKGROUND
We take the facts from the operative SAC, which we
assume are true. (Cansino v. Bank of America (2014) 224
Cal.App.4th 1462, 1468 (Cansino).) The trial court granted
2
judicial notice of a host of complaints, rulings, and judgments in
the prior cases, as well as recorded documents related to the
property. We may consider those documents in evaluating the
demurrer based on claim preclusion. (Boyd v. Freeman (2017)
18 Cal.App.5th 847, 855, fn. 3 (Boyd); Evid. Code, § 459, subd.
(a).) We must accept the facts set forth in the judicially noticed
material if they contradict allegations in the body of the
complaint. (Cansino, at p. 1468.)
1. Allegations in the SAC
Since 2007, Vivian owned a unit in a condominium complex
in Long Beach. In late July or early August 2016, she had
appraisers and potential buyers knocking at her door, asking to
inspect the unit because it was in foreclosure. Vivian hired
counsel to investigate.
She discovered a notice of default had been recorded
against her condo for delinquent condominium association dues,
even though she was current on her dues and the condo was paid
for. The notice of default was in the name of the prior owner,
Robert Wilday, and Vivian had not been mailed a copy. A notice
of trustee’s sale had also been recorded under Wilday’s name.
Despite appealing to the Association to stop foreclosure
activities, a foreclosure sale took place on August 5, 2016. Vivian
found out about the sale from a letter she received on August 11,
2016, from the buyer of the property, inquiring whether she
wanted to rent the home from him.
Due to the foreclosure sale, Vivian lost $131,000 in equity
1
in her condo. She asserted damages claims for wrongful
1 We understand from appellate counsel for both sides at oral
argument that the Association has yet to return the proceeds
3
foreclosure and fraud, alleging the Association did not have a
valid security interest in the condo, and she was not given notice
of the sale or the right to redeem, nor was she given the chance to
meet and confer to mediate the dispute, in violation of various
Civil Code provisions.
Procedural History of the Current Case
Vivian filed the original complaint in this case against the
Association in May 2017, alleging claims for quiet title, wrongful
2
foreclosure, breach of contract, fraud, and an accounting. The
Association demurred, arguing the claim preclusion aspect of res
judicata barred her claims because Vivian had filed three prior
actions to stave off foreclosure. The trial court agreed, sustaining
the demurrer and granting Vivian leave to amend her wrongful
foreclosure and fraud claims. Vivian withdrew the other claims.
Vivian filed the FAC, alleging claims for wrongful
foreclosure, fraud, and unjust enrichment, based on the same
basic set of facts set forth above. However, in the FAC, she
alleged the foreclosure sale took place on August 5, 2017, not on
August 5, 2016, and she received the letter from the new owner
on August 11, 2017. The Association again demurred, arguing
the claims were barred by claim preclusion.
The trial court overruled this demurrer. In rejecting claim
preclusion, it relied on the 2017 dates alleged in the FAC:
“Whether Vivian was served with proper notice of her foreclosure
is [a] matter that has not been adjudicated on the merits.
from the foreclosure sale belonging to Vivian but instead has
placed the proceeds into an escrow account.
2
Vivian also named Nationwide Reconveyance Co. as a
defendant, but it is not a party to this appeal.
4
Vivian’s Complaint by its terms only references foreclosure notices
and sales that were issued in 2017. Although similar allegations
were made in Vivian’s complaint in her last action, her case was
dismissed for failure to pay fees before any adjudication of the
issue could take place.” (Internal citations omitted and italics
added.)
Vivian then filed an unopposed ex parte application to file
the SAC to correct the 2017 foreclosure sale and discovery dates
to 2016, characterizing the 2017 dates as the result of a “clerical
error.” The court granted the request and allowed the SAC to be
filed with the 2016 dates. The SAC alleged claims for fraud and
wrongful foreclosure, dropping the unjust enrichment claim.
The claims rested upon the Association’s alleged invalid interest
in the condo and defects in the foreclosure notice.
The Association once again demurred to the SAC, arguing
claim preclusion. In opposition, Vivian argued the Association
was barred from raising the same argument rejected in the
demurrer to the FAC. In any case, Vivian argued the SAC was
based on different notices of foreclosure than the prior cases.
The trial court sustained the demurrer without leave to amend,
3
finding claim preclusion barred the SAC.
2. Prior Lawsuits
Vivian’s SAC omits her lengthy history of battling the
foreclosure on her condo due to delinquent association fees.
The documents judicially noticed by the trial court show the
following.
3
The court denied a motion to strike the SAC’s request for
punitive damages as moot. That ruling is not at issue on appeal.
5
The 2008 Case
Vivian filed her first lawsuit to prevent foreclosure in 2008.
It alleged she purchased the condo from Robert Wilday in 2002,
who already had delinquent association fees. She alleged she
paid extra on her dues, so she was caught up on payments.
Nonetheless, the Association refused to recognize her ownership,
and a foreclosure sale was scheduled for August 27, 2008 due to a
lien based on unpaid association dues.
This complaint alleged claims for (1) fraudulent billing;
(2) breach of contract; (3) conspiracy to create fraudulent billing;
(4) violation of former Civil Code section 1367.1; (5) civil rights
violations; (6) quiet title; (7) declaratory relief; (8) injunctive
relief; and (9) an accounting. Her claims rested on two theories:
she did not owe the dues so the lien was invalid; and the
foreclosure was wrongful because it was improperly noticed.
The trial court sustained demurrers to the first five claims
with leave to amend because Vivian “failed to state sufficient
facts to support these causes of action.” The court sustained the
demurrer to the injunctive relief claim without leave to amend.
The court overruled the demurrer to the claims for quiet title,
declaratory relief, and an accounting. There is no indication
Vivian filed an amended complaint.
While the case was pending, Wilday transferred title to the
property to Vivian in July 2009. The quiet title claim was
thereafter resolved and removed from the complaint.
The remaining two claims went to trial, and the court
entered judgment in favor of the Association on November 16,
2009. It found, “based upon the evidence presented, plaintiff
owed defendant in excess of $8,000 for homeowners association
fees and dues, which included late fees. The court found that
6
plaintiff did not meet her burden of proof in proving by a
preponderance of the evidence that she paid more to the
defendant than she owed.”
The next day, Vivian transferred title back to Wilday with
the lien unsatisfied.
The Association reinitiated foreclosure proceedings during
2010 and 2011. Vivian filed for bankruptcy, but her case was
dismissed in September 2011.
In March 2012, Wilday again transferred title back to
Vivian. Oddly enough, Vivian signed the grant deed both for
herself and for Wilday as his power of attorney.
The Association again initiated foreclosure proceedings in
2014, recording a notice of default. The Association notified both
Wilday and Vivian that it intended to foreclose on the condo.
A notice of trustee’s sale was recorded in January 2015.
The 2015 Case
Vivian filed her second lawsuit in June 2015. She alleged
claims for (1) quiet title; (2) breach of contract; (3) fraud;
(4) common counts; (5) wrongful foreclosure; and (6) declaratory
relief. She alleged she was not given notice of the foreclosure
sale, now scheduled for June 5, 2015, and she disputed the
amount owed.
Vivian sought a preliminary injunction, which was denied.
The court reasoned that Vivian was unlikely to prevail on her
claims because they were barred by the claim preclusive effect of
the 2008 judgment. The court held the cases involved the same
primary right, that is, “Vivian’s right as owner of the Property
not to suffer a foreclosure based on fraudulent billing for
delinquencies incurred by Wilday.”
7
The Association demurred to the complaint based on claim
preclusion. The trial court sustained the demurrer with leave to
amend. Vivian did not amend the complaint, so judgment was
entered dismissing the case with prejudice.
The 2016 Case
The Association renoticed the foreclosure sale for August 5,
2016. Vivian filed a third lawsuit on August 2, 2016, alleging the
same basic facts and the identical claims as in her 2015 case.
She also sought an injunction to prevent a foreclosure sale. The
court denied the preliminary injunction based on claim preclusion
and because the property had been sold. The court ultimately
dismissed this complaint on May 17, 2017, because Vivian failed
to pay initial filing fees.
The Current Case
Within two weeks, Vivian filed her fourth case on May 30,
2017, the case at issue here. By that time, her condo had been
sold in the foreclosure sale.
DISCUSSION
I. Standard of Review
We independently review the sustaining of a demurrer.
(Cansino, supra, 224 Cal.App.4th at p. 1468.) We assume the
truth of properly pleaded facts, and we give the complaint a
reasonable interpretation, reading it in context. (Ibid.)
We review the denial of leave to amend for abuse of discretion.
The plaintiff bears the burden to show there is “a reasonable
possibility that the plaintiff could cure the defect by amendment.”
(Ibid.)
8
II. The Trial Court Properly Considered the Demurrer
to the SAC
Vivian contends the trial court procedurally erred by
sustaining the Association’s demurrer to the SAC because the
court had already overruled a demurrer to the FAC. In her view,
she added “no new facts or circumstances” to the SAC, so she
argues the Association’s demurrer was an improper motion for
4
reconsideration. She is incorrect.
Code of Civil Procedure section 1008 allows a party to
“make a subsequent application for the same order upon new or
different facts, circumstances, or law, in which case it shall be
shown by affidavit what application was made before, when and
to what judge, what order or decisions were made, and what new
or different facts, circumstances, or law are claimed to be shown.”
(Code Civ. Proc., § 1008, subd. (b).) This provision “does not
apply when a party files a demurrer to an amended cause of
action.” (Goncharov v. Uber Technologies, Inc. (2018) 19
Cal.App.5th 1157, 1166 (Goncharov).) Thus, “ ‘a party is within
its rights to successively demur to a cause of action in an
amended pleading notwithstanding a prior unsuccessful
demurrer to the same cause of action. [Citation.]’ [Citation.]”
(Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228
Cal.App.4th 1200, 1211 (Carlton).)
The rule relates to judicial economy: “ ‘ “The interests of all
parties are advanced by avoiding a trial and reversal for defect in
pleadings. The objecting party is acting properly in raising the
4
The Association argues Vivian forfeited this argument by
failing to raise it in the trial court. She included it in her
opposition to the Association’s demurrer. We find no forfeiture.
9
point at his first opportunity, by general demurrer. If the
demurrer is erroneously overruled, he is acting properly in
raising the point again, at his next opportunity. If the trial judge
made the former ruling himself, he is not bound by it. [Citation.]
And, if the demurrer was overruled by a different judge, the trial
judge is equally free to reexamine the sufficiency of the pleading.
[Citations.]” ’ ” (Carlton, supra, 228 Cal.App.4th at pp. 1210–
1211.)
The Association’s demurrer to the SAC fell well within
these rules. Notwithstanding Vivian’s contrary argument, the
SAC made a substantive change to the FAC. Her FAC alleged
the Association wrongfully foreclosed on her condo in August
2017. The trial court overruled the Association’s demurrer in
light of that 2017 date, since the prior lawsuits and rulings did
not involve a foreclosure sale during that year. When she
changed the foreclosure date to 2016 in the SAC, that
fundamentally altered the allegations, opening up the SAC to
another demurrer based on claim preclusion. The Association
was not required to comply with the provisions for a
reconsideration motion; its “ ‘second demurrer was an
appropriate responsive pleading to a new complaint.’ ”
(Goncharov, supra, 19 Cal.App.5th at p. 1166.)
This distinguishes Vivian’s case from Bennett v. Suncloud
(1997) 56 Cal.App.4th 91 (Bennett) and Le Francois v. Goel (2005)
35 Cal.4th 1094 (Le Francois). In Bennett, the court held that
“after the specified causes of action were amended, [the
defendant] was free to demur to those causes of action on any
ground,” including by raising arguments previously asserted.
(Bennett, supra, at p. 96.) The court only found the order
10
sustaining the demurrer improper as to claims that had not been
amended. (Ibid.)
Le Francois involved a repetitive summary judgment
motion, which our high court held was improper unless it
complied with Code of Civil Procedure sections 437c, subdivision
(f)(2) and 1008. (Le Francois, supra, at p. 1105.) The case
specifically did not involve a change between the first and second
motion. In fact, the Court of Appeal had “found that the second
summary judgment motion at issue here was based on the same
law and evidence as the first motion and hence violated [Code of
Civil Procedure] sections 437c, and 1008.” (Id. at p. 1099.) The
high court did not grant review of that issue and accepted the
Court of Appeal’s finding. (Ibid.) Unlike both Bennett and Le
Francois, Vivian made a substantive change to the FAC when she
changed the foreclosure sale date, a foundational allegation for
all her claims. The SAC was open to fresh attack.
In any event, any error in this respect would not prevent
our review of the merits. Our role “ ‘entails review of the trial
court’s ruling, not its rationale. Thus, even if the trial
court . . . were constrained by its prior rulings . . . . , [an appellate
court is] not so constrained and [is] free to render an opinion
based on the correct rule of law.’ [Citations.] As such, we are not
bound by either trial court order.” (Goncharov, supra, 19
Cal.App.5th at p. 1167.)
III. Claim Preclusion Bars Any Challenge to the Validity
of the Lien But Not Challenges to the Most Recent
Foreclosure Sale Notice
“Claim preclusion, the ‘ “ ‘primary aspect’ ” ’ of res judicata,
acts to bar claims that were, or should have been, advanced in a
previous lawsuit involving the same parties.” (DKN Holdings
11
LLC v. Faerber (2015) 61 Cal.4th 813, 824.) Claim preclusion
“ ‘prevents relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them.’
[Citation.] Claim preclusion arises if a second suit involves:
(1) the same cause of action (2) between the same parties (3) after
a final judgment on the merits in the first suit. [Citations.] If
claim preclusion is established, it operates to bar relitigation of
the claim altogether.” (Ibid.)
The only contested element here is whether the prior and
current cases involve the same causes of action. The claims need
not be identical; claim preclusion applies if the lawsuits involve
the same “primary right.” “ ‘ “The plaintiff’s primary right is the
right to be free from a particular injury, regardless of the legal
theory on which liability for the injury is based.” ’ ” (Gillies v.
JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914
(Gillies).) “ ‘A cause of action comprises the plaintiff’s primary
right, the defendant’s corresponding primary duty, and the
defendant’s wrongful act in breach of that duty. [Citation.]’
[Citation.] Thus, under the bar rule [of claim preclusion], a
complaint may contain several counts, each of which relies on a
different legal theory, yet collectively assert only a single
violation of a specific primary right, that is, a single cause of
action.” (Boyd, supra, 18 Cal.App.5th at p. 855.) “[T]he
determinative factor is the harm suffered. When two actions
involving the same parties seek compensation for the same harm,
they generally involve the same primary right.” (Boeken v. Philip
Morris USA, Inc. (2010) 48 Cal.4th 788, 798 (Boeken).)
The SAC contains two claims: wrongful foreclosure and
fraud. The wrongful foreclosure claim is based on allegations the
Association (1) lacked a valid security interest in her condo;
12
(2) violated Civil Code section 2924, subdivision (A)(1)(a);
(3) violated former Civil Code section 1367.4 for failing to offer
dispute resolution; and (4) violated former Civil Code sections
1367 and 2924, subdivision (f) by not notifying Vivian of the right
5
to redeem. The fraud claim is based on allegations the
Association did not give her notice of the foreclosure sale. The
SAC therefore asserts two distinct harms and two primary rights:
Vivian’s harm from a wrongful foreclosure based on an invalid
lien; and Vivian’s harm from the violation of specific statutory
procedures to enable the foreclosure sale to proceed.
Any claim based on the harm from the allegedly invalid
lien is barred by the judgment in the 2008 case. In the 2008 case,
Vivian sought redress for the harm stemming from an alleged
invalid lien based on delinquent association dues. That issue was
litigated on the merits to a final judgment that validated the lien.
That judgment prevents Vivian from asserting any claims that
rest on a challenge to the validity of the lien. That theory of
wrongful foreclosure in the SAC is thus barred by claim
preclusion.
5
Former Civil Code sections 1367 and 1367.4 were part of
the Davis-Stirling Common Interest Development Act (the Davis-
Stirling Act), which has since been reorganized and renumbered
effective January 1, 2014. (Diamond v. Superior Court (2013)
217 Cal.App.4th 1172, 1183, fn. 2 (Diamond); Stats. 2012,
ch. 180, §§ 1, 2.) This act sets forth notice requirements to
perfect an assessment lien and foreclosure on a homeowner’s
property in a common interest development. Compliance with
the statutory notice provisions is strictly required. (Diamond,
supra, at p. 1198.)
13
Vivian’s wrongful foreclosure and fraud claims based on
improper notice for the August 2016 foreclosure sale are not
barred by the prior cases. In the 2008 and 2015 cases, Vivian
alleged a distinct harm—the failure of the Association to follow
proper notice procedures for the prior notices at issue. In the
2008 case, Vivian alleged the Association violated former Civil
Code section 1367.1, subdivisions (d) and (g) by sending notices to
the wrong owner (Wilday) at an invalid address. In the 2015
case, Vivian alleged wrongful foreclosure because the Association
violated Civil Code section 2924, subdivision (a)(5) by not giving
her written notice of the new sale date of June 5, 2015. In the
current case, Vivian alleges wrongful foreclosure due to defects in
the August 5, 2016 sale notice, namely, that the Association did
not offer her the opportunity for dispute resolution or to redeem.
The fraud claim rests on her allegations she never received the
notice at all. The 2008 and 2015 cases predated the notice for the
August 2016 foreclosure sale and involved different notices, so
Vivian could not have raised any defects in the most recent notice
in those prior cases. As a result, Vivian suffered a distinct harm
that was not previously adjudicated.
While the 2016 case (Vivian’s third case) challenged the
notice for the August 5, 2016 sale, that case does not bar her
claims, either. It was dismissed for Vivian’s failure to pay filing
fees. The minute order dismissing the case does not indicate the
dismissal was with prejudice, and the Association does not argue
this was an adjudication on the merits for claim preclusion
purposes. (Cf. Boeken, supra, 48 Cal.4th at p. 793 [“[A] dismissal
with prejudice is the equivalent of a final judgment on the merits,
barring the entire cause of action.”].)
14
The Association incorrectly suggests the notice procedures
for the August 2016 sale were decided against Vivian when the
trial court denied her motion for a preliminary injunction to
prevent the sale. A ruling on a preliminary injunction does not
have preclusive effect in future proceedings. (See Upland Police
Officers Assn. v. City of Upland (2003) 111 Cal.App.4th 1294,
1300 [“ ‘[A] request for temporary equitable relief pending the
determination of a case on its merits is an entreaty to the court to
exercise its discretion and a ruling thereon is not a determination
of the merits of the case. [Citation.] Such a pretrial ruling may
not be given issue-preclusive effect with respect to the merits of
the action. [Citations.]’ ”].)
In applying claim preclusion to the SAC, the trial court
relied on Gillies, but we find it distinguishable. In Gillies, the
Court of Appeal put an end to the plaintiff’s pattern of four
successive lawsuits to stave off the foreclosure on his property
based on his failure to pay his loan. (Gillies, supra, 7 Cal.App.5th
at pp. 910–911.) Each lawsuit alleged different defects in the
foreclosure, all of which were directed at preventing foreclosure.
The Court of Appeal held claim preclusion barred the plaintiff’s
latest lawsuit because he sought to vindicate the same “primary
right” challenging alleged wrongful foreclosure procedures and
the standing of the lender to foreclose. (Id. at p. 910.)
In contrast to Gillies, Vivian’s condo has been sold in a
foreclosure sale. Vivian is not trying to undo that sale. Instead,
she seeks damages for statutory violations in the notice
procedures leading to the August 5, 2016 foreclosure sale. While
a plaintiff’s successive lawsuits advancing different theories
“in an attempt to retain possession of his house” might involve
15
the same primary right (Gillies, supra, 7 Cal.App.5th at p. 915),
Vivian’s most recent post-foreclosure lawsuit does not.
Thus, Vivian’s wrongful foreclosure claim based on any
challenge to the validity of the Association’s lien is barred by
claim preclusion, so the trial court properly sustained the
demurrer to this claim. However, her wrongful foreclosure and
fraud claims based upon irregularities in the Association’s notice
are not barred by claim preclusion, so the court erred in
sustaining the demurrer on this basis.
IV. Vivian’s Fraud Claim Fails But Part of Her Wrongful
Foreclosure Claim Must Be Remanded
On appeal, the Association has not briefed the merits of the
irregularities of the August 2016 notice of foreclosure sale
underlying Vivian’s wrongful foreclosure claim. We express no
opinion on the viability of that claim. Nothing in this opinion
precludes the parties and the trial court from addressing the
6
sufficiency of this claim on remand.
6
As noted above, the SAC cites two portions of the Davis-
Stirling Act that have been repealed: Civil Code sections 1367.4
and 1367. In her briefs on appeal, Vivian cites the current Civil
Code sections 5705, subdivision (a) (former Civil Code section
1367.4) and 5710, subdivision (b) (former Civil Code section
1367.1, subd. (j)), both of which regulate foreclosures based upon
liens for assessments in common interest developments. (Civil
Code, § 5700, et seq.) We leave it to the trial court on remand to
evaluate these or any other applicable provisions of the Davis-
Stirling Act in light of Vivian’s allegations in the SAC.
Vivian also cites Civil Code sections 5660 (lien notice
requirements) and 5665 (meetings with board and payment
plans), but those relate to the lien itself, so any violations of those
sections are barred by the judgment in the 2008 case.
16
As for fraud, we agree with the Association that Vivian
cannot allege sufficient facts to state a claim. Her claim is one for
fraudulent concealment, so she must allege facts to show
“(1) concealment of a material fact; (2) by a defendant with a duty
to disclose; (3) the defendant intended to defraud by failing to
disclose; (4) plaintiff was unaware of the fact and would not have
acted as it did had it known of the fact; and (5) damages.” (Butler
America, LLC v. Aviation Assurance Co., LLC (2020) 55
Cal.App.5th 136, 144.)
Vivian alleges the Association deliberately omitted her
name from the Notice of Default and did not mail it or post it to
her home, so she did not know her home was in foreclosure. But
according to the documents judicially noticed by the trial court,
she did know about the foreclosure sale. She filed her 2016 case
to stop it. In fact, she filed a motion for a temporary restraining
order and preliminary injunction, which included her declaration
admitting, “On July 13, 2016, I received a notice that a
foreclosure sale date was set for August 5, 2016.” Because these
documents were properly subject to judicial notice, they override
her contrary allegations. (Cansino, supra, 224 Cal.App.4th at
7
p. 1468.) Having admitted she knew about the sale, she cannot
state a fraudulent concealment claim.
Vivian has not suggested in the trial court or on appeal how
the SAC could be amended to state a valid fraud claim, so the
trial court did not abuse its discretion in denying leave to amend.
7
Vivian contends the Association waived this argument by
only raising it in its demurrer to the SAC and not in its demurrer
to the FAC. For the reasons already discussed, the Association
was free to attack the SAC on this ground.
17
(Centex Homes v. St. Paul Fire & Marine Ins. Co. (2015) 237
Cal.App.4th 23, 32.)
DISPOSITION
The judgment sustaining the demurrer to Vivian’s wrongful
foreclosure claim based upon defects in the foreclosure sale notice
is reversed. The matter is remanded for further proceedings
consistent with this opinion.
In all other respects, the judgment is affirmed. The parties
shall bear their own costs on appeal.
OHTA, J. *
We Concur:
STRATTON, Acting P. J.
WILEY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
18