Turner v. Bank of America CA2/3

Filed 7/21/15 Turner v. Bank of America CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
EDDIE TURNER, B247883
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. GC049341)
v.
BANK OF AMERICA CORPORATION et al.,
Defendants and Respondents.
APPEAL from an order and a judgment of the Superior Court of Los Angeles
County, C. Edward Simpson, Judge. Affirmed.
Eddie Turner, in pro per., for Plaintiff and Appellant.
Bryan Cave , Brian J. Recor and Andrea N. Winternitz for Defendants and
Respondents.
_____________________
INTRODUCTION
Plaintiff and Appellant Eddie Turner appeals from the trial court’s order sustaining
Defendants and Respondents’ demurrer without leave to amend and judgment dismissing
Plaintiff’s case with prejudice. We affirm the court’s order and judgment in favor of
Defendants and Respondents Bank of America Corporation, Bank of America N.A.,
Countrywide Home Loans, Inc., Landsafe Title of California, ReconTrust Company,
N.A., and Jeffrey Gleason because Plaintiff’s claims were barred by the three-year statute
of limitations for fraud.
FACTS AND PROCEDURAL BACKGROUND
In January 2005, Plaintiff borrowed $896,00 from Countrywide to purchase a
residential property in Altadena, California by signing an adjustable rate promissory note
and deed of trust. In August 2005, Plaintiff borrowed an additional $250,000 from
Countrywide secured with another deed of trust to the Altadena property. In late March
2007, the property was refinanced, paying off the 2005 loans with two new loans from
Countrywide, one for $1,000,000 and another for $218,000. Countrywide recorded deeds
of trust for both loans in March 2007 and reconveyances of the 2005 deeds of trust.
Following the creation of the 2007 loan, Plaintiff’s monthly payments increased by more
than $800 (in comparison to the payments due under the 2005 loans as of March 2007),
and Plaintiff thereafter began making the increased payments.
In January 2008, Plaintiff defaulted. At this time, Bank of America had taken over
servicing Plaintiff’s loans from Countrywide. After Plaintiff failed to make payments for
five months, Bank of America and ReconTrust (the trustee) initiated non-judicial
foreclosure proceedings and recorded a notice of default. The notice of default was sent
to Plaintiff and specifically provided that Plaintiff had defaulted on the 2007 $1,000,000
loan. In August 2008, ReconTrust recorded a notice of trustee’s sale reiterating that
Plaintiff was in default on the 2007 deed of trust. Shortly thereafter, Plaintiff filed for
Bankruptcy, which was discharged in January 2011. Notably, Plaintiff identified the
2007 loans as undisputed debts in his May 2009 bankruptcy petition.
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Plaintiff brought the present action in April 2012, alleging that Defendants
fraudulently signed his name to the 2007 $1,000,000 loan and that Plaintiff first learned
of the 2007 loan in 2011. Defendants demurrered to Plaintiff’s second amended
complaint, which alleged causes of action for actual fraud, fraud by conspiracy, fraud by
respondeat superior, false certification of acknowledgment, and false certification of
acknowledgement by respondeat superior. In the demurrer, Defendants argued that
Plaintiff’s claims were barred by the three-year statute of limitations for fraud, and by
Plaintiff’s judicial admissions within the bankruptcy filings, where he stated that the 2007
loans were undisputed debts. Defendants supported their demurrer with a request for
judicial notice of the recorded 2008 notice of default and Plaintiff’s bankruptcy petition,
as well as other documents. The court sustained the demurrer on the grounds that
Plaintiff’s claims for fraud were barred by the three-year statute of limitations and by
Plaintiff’s judicial admissions in his bankruptcy filing, and the court dismissed the case
with prejudice.
DISCUSSION
1. Standard of Review
Plaintiff argues generally that the court erred in sustaining the demurrer without
leave to amend. We review the court’s order sustaining the demurrer de novo. (Burns v.
Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486 [“Treating as true all
material facts properly pleaded, we determine de novo whether the factual allegations of
the complaint are adequate to state a cause of action under any legal theory, regardless of
the title under which the factual basis for relief is stated. [Citation.]”].) “In reviewing the
sufficiency of a complaint against a general demurrer, we are guided by long-settled
rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also consider
matters which may be judicially noticed.’ [Citation.] 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 the complaint states facts sufficient
to constitute a cause of action. [Citation.] And when it is sustained without leave to
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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. [Citation.]” (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
2. Plaintiff’s Claims are Time-Barred
Plaintiff asserted four claims for fraud against Defendants. Pursuant to Code of
Civil Procedure section 338, subdivision (d), Plaintiff had three years to bring his fraud
claims from the date of the fraud’s discovery. “ ‘The discovery rule provides that the
accrual date of a cause of action is delayed until the plaintiff is aware of [his] injury and
its negligent cause. [Citation.] A plaintiff is held to [his] actual knowledge as well as
knowledge that could reasonably be discovered through investigation of sources open to
[him]. [Citation.]’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822.)
In his opposing brief, Plaintiff admitted that he received the notice of default in
2008. The 2008 notice of default, which was recorded in the Los Angeles County
Recorder’s Office and supplied by Defendants as part of their request for judicial notice
in support of the demurrer, clearly stated that Plaintiff was in default on the March 2007,
$1,000,000 loan. The notice of default itself expressly placed Plaintiff on notice of the
existence of the 2007 loan. Moreover, the increased loan payments should have alerted
Plaintiff that some change had been made to his loan. An investigation at the county
recorder’s office would have reinforced the fact that the 2005 loans were replaced by the
2007 loans. Based on these facts, we conclude that Plaintiff was on notice of the 2007
loans by 2008, when he received the notice of default. Plaintiff filed the present action in
2012, more than three years after Plaintiff should have been aware of the 2007 loan.
Plaintiff’s fraud claims are thus barred by the three-year statute of limitations.
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Although not argued on appeal, we note that this Court properly relies on
Plaintiff’s admission within his brief filed in opposition to his demurrer that he received
notice of default, when evaluating the sufficiency of the second amended complaint.
“Although on demurrer the court ordinarily looks only at the complaint and matters
judicially noticed, ‘[w]hen a party opposing a demurrer admits that it does not dispute
facts extrinsic to the complaint, the trial court may properly treat these facts as judicial
admissions for the purpose of testing the sufficiency of the complaint.’ [Citation.]”
(Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1368, fn.10; Scafidi v.
Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 561-562 [stating that the trial court
may rely on admissions made by counsel to render judgment on the pleadings].) His
admission establishes that he received the notice of default on the 2007 loan.
In addition, we also properly take judicial notice of the recorded notice of default
in assessing the sufficiency of the second amended complaint. Although the trial court
did not expressly rule on the request for judicial notice, “we may ourselves take judicial
notice of appropriate matters.” (Requa v. Regents of University of California (2012)
213 Cal.App.4th 213, 223.) “When a court is required to rule on a demurrer, the
discretion provided by Evidence Code section 452 allows the court to take judicial notice
of a fact or proposition within a recorded document ‘ “that cannot reasonably be
controverted, even if it negates an express allegation of the pleading.” [Citation.]’
[Citation.]” (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 536.)
Here, we judicially notice the fact that the notice of default sent to Plaintiff in 2008
identified the 2007 $1,000,000 loan. We are not noticing the truth of the notice of
default; rather we are acknowledging that the 2008 notice of default contained
information to make Plaintiff aware of the 2007 loan. This cannot be reasonably
controverted as the notice of default expressly identifies the 2007 loan.
Based on the foregoing, Plaintiff was or should have been aware of the existence
of the 2007 loan in 2008, more than three years before filing this action. We therefore
affirm the court’s order sustaining the demurrer without leave to amend and entry of
judgment against Plaintiff.
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3. Plaintiff Has Waived His Arguments on Appeal
One of the fundamental rules of appellate review is that an appealed judgment is
presumed to be correct and “ ‘error must be affirmatively shown.’ ” (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564.) Plaintiff, as the appellant, has the burden of
overcoming the presumption of correctness. “To demonstrate error, [the] appellant must
present meaningful legal analysis supported by citations to authority and citations to facts
in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th
396, 408.) Plaintiff’s burden on appeal requires “more than simply stating a bare
assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court
to figure out why; it is not the appellate court’s role to construct theories or arguments
that would undermine the judgment and defeat the presumption of correctness.”
(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014)
¶ 8:17.1, p. 8–6, citing Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) In cases like
this one, when the appellant asserts a point but fails to support it with reasoned argument
and citations to authority, we may treat it as waived and pass it without consideration.
(People v. Stanley (1995) 10 Cal.4th 764, 793; see, e.g., Taylor v. Roseville Toyota, Inc.
(2006) 138 Cal.App.4th 994, 1001, fn. 2 [contention forfeited, where it is “merely
asserted without argument or authority”].)
Plaintiff sets forth bare assertions in his brief regarding how the court erred in
sustaining the demurrer and dismissing his case. Plaintiff fails to address the statute of
limitations and his judicial admissions with citation to relevant authority and reasoned
argument. Plaintiff thus failed to overcome the presumption of correctness and has
waived these arguments. We therefore affirm on this basis as well.
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DISPOSITION
The order sustaining the demurrer and judgment against Plaintiff are affirmed.
Defendants and Respondents Bank of America Corporation, Bank of America N.A.,
Countrywide Home Loans, Inc., Landsafe Title of California, ReconTrust Company,
N.A., and Jeffrey Gleason are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KITCHING, J.
I concur:
EDMON, P. J.
EGERTON, J.*
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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