Case Name: Alan Slater vs Justin Crowley, CFO, Select Portfolio Servicing (SPS) Inc. et al
Case No.: 17CV308241

Defendants Select Portfolio Servicing, Matt Hollingsworth, and Justin Crowley (“Defendants”) demurred to the First Amended Complaint of Plaintiff Alan Slater.

In support of the demurrer, Defendants request judicial notice of the following documents recorded in Santa Clara County: (1) Deed of Trust recorded on April 6, 2007 as Instrument Number 19372202 (Exhibit 1); (2) Deed of Trust recorded on April 6, 2007 as Instrument Number 19372203 (Exhibit 2); and (3) Assignment of Deed of Trust recorded on December 13, 2017 as Instrument Number 22470209.

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Evidence Code section 452, subdivision (h) allows a court, in its discretion, to take judicial notice of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

“[C]ourts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged. [Citations.] The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [disapproved on other grounds in Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919].) Although it would be improper to take judicial notice of the truth of statements of fact recited within the documents, the trial court is permitted to take judicial notice of the legal effect of the documents’ language when that effect is clear. (Id. at p. 265.)
Here, Exhibits 1, 2 and 3 constitute real property documents recorded in Santa Clara County and thus subject to judicial notice under Evidence Code section 452, subdivision (h). Accordingly, the request for judicial notice is GRANTED.

Defendants’ demurrer to the single cause of action of the First Amended Complaint is SUSTAINED.

Generally, it is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) However, 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. (Ibid.; see Medina v. Safe-Guard Products (2008) 164 Cal.App.4th 105, 112.)

Here, Plaintiff fails to provide any guidance as to how he could amend the complaint to state a valid cause of action. Furthermore, the court is not able to discern how the defects in the complaint could be cured by amendment and it therefore appears that granting leave to amend would be futile. (See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459 [where the nature of the plaintiff’s claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result].) Plaintiff has not changed the complaint sufficiently to overcome the defects in the prior pleading as identified in the order sustaining demurrer, nor explained how he could properly modify the complaint. Accordingly, leave to amend is DENIED.

Prevailing parties are to prepare the order. After Defendant has filed and served notice of entry of the order signed by the Court, Defendant shall submit a proposed judgment either approved as to form or with proof of compliance with Rules of Court, Rule 3.1312.