Case Name: Vidal Preciado v. Bank Of America, N.A., et al.
Case No.: 17CV315401

This is an action alleging wrongful foreclosure and other claims brought by Pro per Plaintiff Vidal Preciado (“Plaintiff”) against several defendants. The claims concern real property located at 1343 State Street, San Jose 95002 (“Subject Property”). Currently before the Court is the demurrer to Plaintiff’s complaint brought by Defendants Bank of America, N.A., Recontrust Company, N.A., Mortgage Electronic Registration Systems, Inc., and The Bank of New York Mellon fka The Bank of New York as trustee for the Benefit of the Certificate Holders of the CWALT Inc. Alternative Loan Trust 2005-59, Mortgage Pass Through Certificates, Series 2005-59 (collectively “Defendants”). The Complaint Plaintiff states claims for: 1) “Improper and Imperfect Title”; 2) Violation of Civil Code § 2923.5; 3) Violation of Business and Professions Code § 17200; 4) “Unlawful Possession” (wrongful foreclosure); 5) “mortgage fraud,” and; 6) Promissory Estoppel.

Request for Judicial Notice
A precondition to judicial notice in either its permissive or mandatory form is that the matter to be noticed be relevant to the material issue before the Court. (Silverado Modjeska Recreation and Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282, 307, citing People v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 fn. 2.)

In support of their demurrer, Defendants have submitted a request for the Court to take judicial notice of five documents (exhibits A-E to the request): 1) A copy of a Deed of Trust executed by Plaintiff which encumbered the subject property and was recorded in Santa Clara County on June 27, 2005 (Ex. A); 2) A copy of a Trustee’s Deed Upon Sale for the subject property, recorded in Santa Clara County on August 8, 2011, showing that pursuant to the Deed of Trust the subject property was foreclosed upon and sold on July 25, 2011 (Ex. B); 3) A copy of Plaintiff’s Complaint in case no. 2013-1-CV-250011, filed July 24, 2013, which named as defendants all of the presently demurring Defendants (Ex. C); 4) A slip copy of the Sixth District Court of Appeal’s November 30, 2016 unpublished decision in Preciado v. Bank of America, et al. (2016) 2016 WL 6996262, in which it affirmed the trial court’s dismissal of Plaintiff’s action in case no. 2013-1-CV-250011 (Ex. D), and; 5) A copy of a printout of the docket of the California Supreme Court as of October 5, 2017, showing that Plaintiff’s petition for review of the Sixth District’s decision had been denied as of that date (Ex. E).

Notice of all five documents is GRANTED pursuant to Evidence Code §§ 452(c) and (d). Exhibits C, D and E are noticed pursuant to Evidence Code § 452(d) as court records. The Court of Appeal’s decision is noticed as to its contents and legal effect. Exhibits A and B are noticed pursuant to Evidence Code § 452(c), which states the court may take judicial notice of “any official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.” This has been interpreted to include documents recorded by a government department. “The court may take judicial notice of recorded deeds.” (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549. See also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-65 [stating that “a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language . . . [and, f]rom this, the court may deduce and rely upon the legal effect of the recorded document.”])

Demurrer to the Complaint
In ruling on a demurrer the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) Allegations are not accepted as true on demurrer if they contradict or are inconsistent with facts judicially noticed. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 [rejecting allegation contradicted by judicially noticed facts].)

Defendants demur to all of Plaintiff’s causes of action on the ground that they fail to state sufficient facts because they are all barred by the res judicata effect of the dismissal of case no. 2013-1-CV-250011, as upheld by the Court of Appeal.

A general demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a plaintiff’s claim is barred by res judicata or collateral estoppel. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 792 (“Boeken”).) Res judicata, i.e. claim preclusion, “prevents relitigation of the same cause of action in a second suit between the same parties” and “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.” (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (“DKN Holdings”).) “When a matter is within the ‘scope of the [prior] action, related to the subject matter and relevant to the issues, so that it could have been raised, the judgment is conclusive on it…. Hence the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable….’” (Federal Home Loan Bank of San Francisco v. Countrywide Financial Corporation (2013 214 Cal.App.4th 1520, 1529, internal citation omitted.) “Claim preclusion, the ‘ ‘primary aspect’ ’ of res judicata, acts to bar claims that were, or should have been, advanced in a previous suit involving the same parties.” (DKN Holdings, supra, at p. 824, citation omitted.)

Defendants’ demurrer to all six of Plaintiff’s present claims on res judicata/claim preclusion grounds is SUSTAINED as the complaint and the judicially noticed material establishes that all of the elements of res judicata have been satisfied. All of the parties in the present action were parties in the 2013 action. The 2013 action ended at the trial court level with a dismissal of the complaint with prejudice after defendants’ demurrer was sustained without leave to amend and “for purposes of applying the doctrine of res judicata . . . a dismissal with prejudice is the equivalent of a final judgment on the merits.” (Boeken, supra, at p. 792.) The trial court’s dismissal was affirmed by the Court of Appeal. The judicially noticed material also makes clear that all of Plaintiff’s present claims were or could have been could have been raised in the 2013 action. The 2013 complaint expressly alleged claims for Quiet Title and Slander of Title, Violation of Business and Professions Code § 17200, Wrongful Foreclosure, Fraud (during foreclosure) and promissory estoppel, among others, all based on the same foreclosure and sale of the subject property as the present action. While the 2013 complaint did not allege a violation of Civil Code § 2923.5 as a separate cause of action the Court of Appeal noted that, in attempting to defend his § 17200 claim, “plaintiff shifts to a new theory: that he ‘suffered injury based on Respondent’s [sic] violation of [Civil Code section] 2923.5.’ But plaintiff neither alleged specific conduct amounting to a violation of that statute nor explains on appeal what that conduct was and how it constituted a violation of the UCL. . . . In neither the complaint nor his appellate brief has plaintiff set forth the nature of any defendant’s failure to comply with the provisions of Civil Code section 2923.5.” (See Defendants’ RJN, Exhibit D, at pp. 19-20.) Therefore that cause of action in the present Complaint is also barred by the res judicata effect of the 2013 action.

The Court notes that Plaintiff’s opposition offers no response to Defendants’ res judicata argument or any explanation as to how the Complaint could be amended to state claims not barred by res judicata. Accordingly, leave to amend is DENIED. (See Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 535 [court should deny leave to amend where the facts are not in dispute and no liability exists under substantive law]; Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112 fn. 8 [“As the Rutter practice guide states: ‘It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.’”])