Filed 1/10/20 Hudspeth v. U.S. Bank National Assn. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

MILDRED HUDSPETH,

Plaintiff and Appellant,

v.

U.S. BANK NATIONAL ASSOCIATION, as Trustee, etc. et al.,

Defendant and Respondent.

E071353

(Super.Ct.No. RIC1803648)

OPINION

APPEAL from the Superior Court of Riverside County. Irma Poole Asberry, Judge. Reversed and remanded with directions.

Law Office of David Akintimoye and David A. Akintimoye for Plaintiff and Appellant.

Wright, Finlay & Zak and James J. Ramos for Defendant and Respondent.

Mildred Hudspeth filed this action for wrongful foreclosure and intentional infliction of emotional distress against four defendants, including an entity that we will call US Bank and US Bank’s loan servicing agent, Select Portfolio Servicing, Inc. (Select) (collectively the Bank). She alleged that a notice of default was recorded against her home, but on the same day, a notice of rescission rescinding the notice of default was recorded. Moreover, the notice of default was never served on her. Three years later, based on the notice of default, the Bank foreclosed on her home.

The Bank filed a demurrer. By way of judicial notice, it showed that the notice of rescission actually rescinded a different notice of default, which had been recorded years earlier. It also showed that Hudspeth had filed — and lost — a previous wrongful foreclosure action against Select in small claims court. The trial court sustained the demurrer, based on the fact that the notice of default had not actually been rescinded, and based on res judicata/claim preclusion.

We will reverse. The small claims judgment is not res judicata, because it was based on occurrences before the foreclosure, whereas this action is based on the foreclosure itself. Also, even though the relevant notice of default was not rescinded, the allegation that it was not served on Hudspeth is sufficient to state a wrongful foreclosure claim.

The Bank asks us to affirm on the ground that Hudspeth failed to allege tender — a ground that it raised in its demurrer, but the trial court did not reach. We will conclude, however, that Hudspeth was not required to allege tender because she alleged instead that, if the Bank had given her due notice, she would have been able to prevent the foreclosure.

I

FACTUAL BACKGROUND

Consistent with the applicable standard of review (see part III, post), the following facts are drawn from the allegations of the operative complaint and from matters of which the trial court took judicial notice.

In May 2005, Hudspeth took out a $376,200 home loan.

In June 2010, a notice of default (2010 Notice) was recorded against the property.

In August 2011, the loan was assigned to US Bank. Select acted as US Bank’s servicing agent for the loan.

On November 6, 2013, a new notice of default (2013 Notice) was recorded against the property. Also on November 6, 2013, a notice of rescission was recorded.

The complaint alleged that the notice of rescission rescinded the 2013 Notice. However, the notice of rescission actually rescinded the 2010 Notice. Moreover, the notice of rescission was recorded before the 2013 Notice; the notice of rescission is recorder’s document number 2013.526256, whereas the 2013 Notice is recorder’s document number 2013.526258.

The complaint also alleged that the 2013 Notice was never served on Hudspeth. This “prevented [her] from having a meaningful opportunity to cure any alleged default before her home was sold” — e.g., by making up any missed payments or by filing a bankruptcy.

In April 2016, the Bank recorded a notice of trustee’s sale.

In July 2016, Hudspeth filed an action against Select in small claims court. She asserted claims including “breach of contract,” “unlawful foreclosure proceeding,” and “wrongful foreclosure.” The Judicial Council small claims court form did not require her to state the factual basis of these claims. However, she did state that her damages consisted of “trial payments” totaling $8,365.

In August 2016, the small claims court entered judgment against Hudspeth and in favor of Select. The judgment stated: “Defendant does not owe plaintiff any monies on plaintiff’s claim.”

In December 2016, the property was foreclosed and sold to Onuldo, Inc. (Onuldo).

II

PROCEDURAL BACKGROUND

In 2018, Hudspeth, in propria persona, commenced this action by filing a complaint solely against Select. Select demurred. The trial court sustained the demurrer with leave to amend.

Hudspeth obtained counsel and filed an amended complaint. It named not only Select, but also US Bank, Quality Loan Service Corp. (Quality), and Onuldo.

The first cause of action, for wrongful foreclosure, alleged that the defendants foreclosed on and sold Hudspeth’s home without serving and recording a valid notice of default. The second cause of action, for intentional infliction of emotional distress, alleged that the defendants did so “with the intention of causing severe emotional distress . . . .” The prayer of the complaint sought an order setting aside the foreclosure sale as well as damages.

The Bank demurred. It argued, among other things, that:

1. The order granting Select’s demurrer with leave to amend did not allow Hudspeth to add new causes of action without leave of court.

2. The entire action was barred by res judicata.

3. The entire action was based on the factually false premise that the 2013 Notice was rescinded.

4. With respect to the cause of action for wrongful foreclosure, the complaint failed to allege tender.

5. With respect to the cause of action for infliction of emotional distress, the Bank did not have any duty and did not breach any duty; moreover, Hudspeth was not harmed.

In her opposition, Hudspeth argued:

1. She did not need leave of court to add new causes of action.

2. Res judicata did not apply, because the small claims action involved different causes of action and (except for Select) different parties.

3. The 2013 Notice was never served on Hudspeth.

4. She was not required to plead or prove tender.

Her opposition did not address the emotional distress cause of action.

The trial court sustained the demurrer, without leave to amend. It agreed with the Bank’s contentions that the action was barred by res judicata and that the 2013 Notice was not rescinded; it did not address the Bank’s other contentions. Accordingly, it entered judgment against Hudspeth and in favor of the Bank. Thereafter, on its own motion, it dismissed Onuldo without prejudice.

III

STANDARD OF REVIEW

“A demurrer is properly sustained when ‘[t]he pleading does not state facts sufficient to constitute a cause of action.’ [Citation.] On appeal, a resulting judgment of dismissal is reviewed independently. [Citation.] ‘“‘[W]e accept as true all the material allegations of the complaint’”’ [citation], but do not ‘assume the truth of contentions, deductions or conclusions of law’ [citation].” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) “We affirm the judgment if it is correct on any ground stated in the demurrer, regardless of the trial court’s stated reasons. [Citation.]” (Mexia v. Rinker Boat Co., Inc. (2009) 174 Cal.App.4th 1297, 1303.)

“‘“ . . . [I]t ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]”’ [Citations.] This abuse of discretion is reviewable on appeal ‘even in the absence of a request for leave to amend’ [citation], and even if the plaintiff does not claim on appeal that the trial court abused its discretion in sustaining a demurrer without leave to amend. [Citation.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971.)

IV

FAILURE TO REQUEST ORAL ARGUMENT IN THE TRIAL COURT

Preliminarily, the Bank contends that Hudspeth forfeited any challenge to the order sustaining the demurrer by failing to request oral argument in the trial court.

Rule 3.1308(a)(1) of the California Rules of Court (Rule 3.1308(a)(1)) provides that, if a trial court offers a tentative ruling procedure, oral argument will be permitted only if (1) the trial court so directs or (2) a party gives timely notice of its intent to appear. It further provides: “The tentative ruling will become the ruling of the court if the court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given.” Riverside County offers a tentative ruling procedure that is consistent with Rule 3.1308(a)(1). (Super. Ct., Riverside County, Local Rule 3316.)

The trial court posted a tentative ruling. Counsel for Hudspeth did not make a timely request for oral argument. Belatedly, at the time set for the hearing, he made a motion for oral argument, but the trial court denied it.

As a result, Hudspeth did forfeit the right to oral argument. Arguably, Rule 3.1308(a)(1) could be read to mean that she also forfeited the merits of her opposition to the demurrer. At most, however, it is ambiguous on that point.

The common understanding in the legal community is that a waiver of oral argument on a motion does not forfeit the merits. Certainly that is how it works in the analogous instance of a waiver of oral argument in an appellate court. We confess that we have not found any authority on the point; however, that may be because no one ever thought to question it before.

This consensus view makes sense from a policy perspective. Rule 3.1308(a)(1) eases the work of overburdened trial courts by shortening their oral argument calendars. An attorney may rationally decide that, even though his or her position is well-founded, in light of the tentative decision, oral argument is unlikely to change the trial court’s mind. If we were to hold that waiving oral argument results in a forfeiture on the merits, no rational attorney could ever waive oral argument. That would eliminate the benefits of Rule 3.1308(a)(1).

We therefore conclude that Hudspeth did not forfeit her present contentions.

V

RES JUDICATA

Hudspeth contends that the trial court erred by ruling that this action was barred by res judicata.

Res judicata has two aspects — claim preclusion and issue preclusion. (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823.) The Bank is asserting only claim preclusion.

Claim preclusion “applies when (1) the claim raised in the prior adjudication is identical to the claim presented in the later action; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior adjudication. [Citation.]” (In re Anthony H. (2005) 129 Cal.App.4th 495, 503.)

“[I]t is well-settled that the claim preclusion aspect of the doctrine of res judicata applies to small claims judgments. [Citation.]” (Bailey v. Brewer (2011) 197 Cal.App.4th 781, 791; accord, Allstate Ins. Co. v. Mel Rapton, Inc. (2000) 77 Cal.App.4th 901, 907.)

“To determine whether two proceedings involve identical causes of action for purposes of claim preclusion, California courts have ‘consistently applied the “primary rights” theory.’ [Citation.]” (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) Under this theory, “‘a “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding “primary duty” of the defendant, and a wrongful act by the defendant constituting a breach of that duty. [Citation.]” (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 630-631.) “The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. [Citation.]” (Boeken v. Philip Morris USA, Inc., supra, at p. 798.)

“The converse is also true; namely, cases involve distinct and separate primary rights where the injuries and wrongs associated with the two cases differ, regardless of the theories of recovery pleaded.” (Brenelli Amedeo, S.P.A. v. Bakara Furniture, Inc. (1994) 29 Cal.App.4th 1828, 1837.)

Here, the two actions involved different primary rights for one simple reason: The foreclosure occurred after the judgment in the first action and before the complaint in the second action. “Res judicata is not a bar to claims that arise after the initial complaint is filed. These rights may be asserted in a supplemental pleading, but if such a pleading is not filed a plaintiff is not foreclosed from asserting the rights in a subsequent action. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [citations].’ [Citation.]” (Allied Fire Protection v. Diede Construction, Inc. (2005) 127 Cal.App.4th 150, 155.)

The factual basis for Hudspeth’s claims in the small claims action is not clear. (Indeed, it could be argued that, for this reason alone, the trial court should not have sustained the demurrer based on res judicata.) However, because she was seeking to recover her trial payments as damages, she seems to have been claiming that Select had promised to offer her a loan modification, but started foreclosure proceedings instead. While she asserted causes of action for an “unlawful foreclosure proceeding” and “wrongful foreclosure,” these labels necessarily referred to a foreclosure that had not happened yet. And she could not hardly have been trying to enjoin the foreclosure in small claims court. (Code Civ. Proc., § 116.220.) The primary right asserted was to prevent the initiation of foreclosure proceedings by making trial payments.

By contrast, in this action, the primary right asserted in the first cause of action is a right not to have one’s property foreclosed except in compliance with the law. The primary right asserted in the second cause of action is a right not to suffer emotional distress due to an unlawful foreclosure. The concomitant primary duty of the defendants is a duty not to foreclose except in compliance with the statutory scheme. The alleged breach of duty occurred when the foreclosure occurred.

The Bank cites Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907. There, a homeowner brought four successive actions against the same lender, each seeking to prevent the lender from foreclosing in connection with the same loan, though on different theories. (Id. at pp. 910-911.) The appellate court held that “each sought to vindicate the same primary right.” (Id. at p. 910; see also id. at p. 914.) Gillies is not controlling, because here the two actions sought different relief based on different harms.

We conclude that the small claims action is not res judicata here.

VI

CONSIDERATION OF ALTERNATIVE GROUNDS

As previously stated (see part III, ante), we may affirm on any basis stated in the demurrer, regardless of the ground on which the trial court based its ruling.

Hudspeth argues that the trial court erred by sustaining the demurrer based on res judicata. In part IV, ante, we agreed. In her opening brief, however, Hudspeth does not argue that the trial court erred by sustaining the demurrer on the alternative ground that the 2013 Notice had not been rescinded. She likewise does not take issue with the alternative grounds that the Bank asserted in its demurrer, but the trial court did not address.

The Bank therefore contends that Hudspeth has forfeited any challenge to any of these alternative grounds.

“We recognize that we . . . have the discretion to deem the issue[s] waived, as respondent[] urge[s]. [Citations.] We decline to do so, in light of our de novo review and the trial court’s error as to [the res judicata issue]. ‘[B]ecause the court may decide a case on any proper points or theories, whether urged by counsel or not, there is no reason why it cannot examine the record, do its own research on the law, or accept a belated presentation.’ [Citation.]” (City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477, 1496, fn. 17.) The Bank has fully briefed these issues; thus, it has not been deprived of the opportunity to address them. (See Jameson v. Desta (2009) 179 Cal.App.4th 672, 674, fn. 1.) And Hudspeth has addressed them in her reply brief.

VII

THE VALIDITY OF THE 2013 NOTICE

The Bank contends that its demurrer was properly sustained because Hudspeth’s central allegation — that the notice of rescission rescinded the 2013 Notice, rather than the 2010 Notice — was not true.

Hudspeth alleged that the that the notice of rescission rescinded the 2013 Notice. Ordinarily, on a demurrer, we accept the allegations of the complaint as true. (Summers v. Colette (2019) 34 Cal.App.5th 361, 367.) However, “‘“[w]e may also consider matters that have been judicially noticed. [Citations.]” [Citation.] “[W]hen the allegations of the complaint contradict or are inconsistent with such facts, we accept the latter and reject the former.”’ [Citation.]” (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561.) The documents themselves, of which the trial court took judicial notice, established that the notice of rescission rescinded the 2010 Notice, not the 2013 Notice, which was not even on record at the time when the notice of rescission was recorded.

Hudspeth also alleged, however, that the 2013 Notice was never served on her. Within 10 business days of recording a notice of default, the trustee must send a copy of the notice of default to the trustor. (Civ. Code, § 2924b, subd. (b)(1).) The failure to do so can constitute grounds to set aside the subsequent foreclosure sale. (See Estate of Yates (1994) 25 Cal.App.4th 511, 523; see also Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 10-11 [“wrongfulness” element of cause of action to set aside trustee’s sale can be satisfied by noncompliance with notice requirements].)

The Bank notes that the trustee’s deed recited that all requirements to mail copies of notices had been complied with, which raises a presumption that the recital is true. (Civ. Code, § 2924, subd. (c).) However, a mere presumption cannot prevent Hudspeth from pleading and proving otherwise.

Moreover, Hudspeth alleges that, if the notice of default had been properly served, she would have taken action to prevent the foreclosure, e.g., by curing the default or by filing a bankruptcy. This sufficiently states that the notice defect was prejudicial. (Falcocchia v. Saxon Mortg., Inc. (E.D. Cal. 2010) 709 F.Supp.2d 873, 886-887.)

Finally, the Bank argues that the allegation that the notice was not served should be disregarded as a mere legal conclusion. Not so; this is an appropriate allegation of an ultimate fact. If something did not occur, we fail to see how its nonoccurrence could be more particularly alleged. How Hudspeth knows it was not served is merely an evidentiary fact.

VIII

TENDER

The Bank contends that Hudspeth failed to allege tender.

“Generally, ‘as a condition precedent to an action by the borrower to set aside the trustee’s sale on the ground that the sale is voidable because of irregularities in the sale notice or procedure, the borrower must offer to pay the full amount of the debt for which the property was security.’ [Citation.] ‘“The rationale behind the rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower].”’ [Citation.]” (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 47.) “‘Allowing plaintiffs to recoup the property without full tender would give them an inequitable windfall, allowing them to evade their lawful debt.’ [Citation.]” (Barroso v. Ocwen Loan Servicing, LLC (2012) 208 Cal.App.4th 1001, 1016.)

“There are, however, recognized exceptions to the tender rule. [Citation.] Courts have found that tender is not required [1] where the borrower attacks the validity of the underlying debt [citation], [2] where the borrower has a counterclaim or setoff against the beneficiary [citation], [3] where it would be inequitable to impose the requirement [citation], and [4] where the trustee’s deed is void on its face. [Citation.]” (Kalnoki v. First American Trustee Servicing Solutions, LLC, supra, 8 Cal.App.5th at p. 47.)

Hudspeth argues that the tender rule does not apply here because the foreclosure sale was void. This exception applies, however, only if it is claimed that the sale was “facially void” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 929, fn. 4) — i.e., “void and not merely voidable.” (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 819.) Here, the trustee’s deed was valid on its face. Hudspeth is claiming, at most, that it was voidable. (See West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802.)

Nevertheless, the tender rule does not apply here, although for a different reason. In light of the rationale for the rule, it does not make sense to apply it when, as here, the borrower alleges that the lender did not give statutory notice of the foreclosure proceedings, and that if the lender had, the borrower would have prevented foreclosure, by bringing the loan current or otherwise. In that event, we cannot say the sale would have occurred eventually; thus, the irregularity in the sale did result in damages to the borrower, even if the borrower could not have paid off the loan in full. Under these circumstances, it would be inequitable to impose a tender requirement.

Two recent cases, although not strictly on point, support this reasoning.

In Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, borrowers sued to set aside a foreclosure sale. (Id. at p. 1362.) They alleged that the lender had failed to meet with them before the foreclosure to discuss alternatives to foreclosure, and had thereby violated the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.), other federal statutes and regulations, and the trust deed itself, which incorporated the relevant statutes and regulations. (Fonteno v. Wells Fargo Bank, N.A., supra, at pp. 1360, 1362.)

The court held that tender was not required (Fonteno v. Wells Fargo Bank, N.A., supra, 228 Cal.App.4th at pp. 1373-1374): “To do so would be to defeat the purpose of paragraph 9 of the deed of trust and the relevant HUD regulations. The parties agreed that, should plaintiffs default, they would attempt to meet face-to-face to discuss loan modifications before any authority to foreclose accrued. Obviously, this provision was intended to govern a circumstance in which plaintiffs could not make full payment of the delinquent amount owed. In other words, defendants could not proceed with foreclosure without first attempting to discuss alternatives with plaintiffs, even though plaintiffs could not tender the full amount owed. To require plaintiffs now to make such a tender in order to obtain cancellation of a sale allegedly conducted in disregard of this condition precedent and without any legal authority is inequitable under the circumstances. [Citation.] Therefore, plaintiffs were not required to do so to plead claims for equitable relief.” (Id. at p. 1374.)

Similarly, in Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th 1293, a borrower sought to set aside a foreclosure sale; he alleged that it was held while his loan modification application was still pending, in violation of federal guidelines under the Home Affordable Modification Program (HAMP). (Id. at pp. 1298-1299, 1300-1302.)

The appellate court — citing Fonteno — held that tender was not required. (Majd v. Bank of America, N.A., supra, 243 Cal.App.4th at pp. 1305-1306.) It explained: “The purpose of the modification rules is to avoid a foreclosure despite the borrower being incapable of complying with the terms of the original loan. It would be contradictory to require the borrower to tender the amount due on the original loan in such circumstances. Moreover, the purpose of the tender rule is to dismiss suits at an early stage, where, despite any irregularities in the lender’s foreclosure activities, the borrower will ultimately have to pay the amount due on the loan, but cannot do so. Such suits are essentially futile. This is not such a case, as a loan modification is an alternative to foreclosure that does not require the borrower to pay pursuant to the terms of the original loan.” (Id. at p. 1306.)

Admittedly, Hudspeth does not rely on any of the federal statutes, regulations, or guidelines that were at issue in Fonteno or Majd. However, Civil Code section 2924b, subdivision (b)(1), which requires that the lender give the borrower notice of the default, serves a similar purpose — it gives the borrower a three-month window before the sale is scheduled in which to cure the default. (See Civ. Code, § 2924, subd. (a)(2).) If the lender fails to give such notice, and if, for this reason, the borrower is unable to cure the default before the sale, the rationale behind the tender rule simply does not apply.

Accordingly, Hudspeth was not required to allege tender.

IX

THE SECOND CAUSE OF ACTION

The Bank contends that Hudspeth failed to state a cause of action for negligent infliction of emotional distress, because she failed to allege (1) a duty, (2) a breach of duty, or (3) harm.

Hudspeth, however, pleaded intentional infliction of emotional distress, to which these requirements do not apply. The only one even arguably applicable is harm. Hudspeth, however, alleged that the defendants proximately caused her to “suffer[] severe and extreme emotional distress . . . .” This was a sufficient allegation of harm.

X

ADDING NEW PARTIES AND NEW CAUSES OF ACTION

WITHOUT LEAVE OF COURT

The Bank contends that Hudspeth could not amend to add new parties or to state new causes of action without leave of court.

A party can amend its complaint once without leave of court, provided certain deadlines have not run. After a demurrer has been filed and heard — as here — an amendment requires leave of court. (Code Civ. Proc., § 472, subd. (a).)

“‘Following an order sustaining a demurrer . . . , the plaintiff may amend his or her complaint only as authorized by the court’s order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.’ [Citation.]” (Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.) The same is true of an amendment to add a new party. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.)

By contrast, a plaintiff may add new causes of action or new parties if the amendments “directly respond[] to the court’s reason for sustaining the earlier demurrer.” (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.)

Here, Hudspeth, in propria persona, filed a two-page Judicial Council form complaint. It asserted a cause of action solely against Select. There were check boxes to characterize the cause of action as breach of contract, common counts, or “[o]ther”; Hudspeth checked “[o]ther.”

The trial court sustained the demurrer on the ground that the complaint was “uncertain, ambiguous and unintelligible.” It noted that Hudspeth had filed a document entitled “Supporting Documents to the Complaint,” but the trial court refused to consider it, because it alleged matters that were not alleged in the complaint itself. The trial court gave Hudspeth 30 days’ leave to amend.

Select’s demurrer is not in the appellate record. The “Supporting Documents to the Complaint” are also not in the appellate record.

On this record, we cannot say that the amended complaint was outside the scope of the order sustaining the demurrer. The original complaint was skeletal. Almost any allegations relating to the foreclosure of Hudspeth’s home would be responsive to the trial court’s ruling that it was uncertain, ambiguous, and unintelligible. Indeed, because it did not assert any particular cause of action, we cannot see how it could have been fixed without alleging some new cause of action. And naming new parties seems reasonably related to making the complaint clear.

Moreover, the trial court clearly intended to allow Hudspeth to amend so as to allege the material that was in her “Supporting Documents to the Complaint.” Because we do not have those documents, we cannot say that she exceeded that scope.

Separately and alternatively, the Bank cannot show that it was prejudiced. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) “In the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint . . . .” (Lemoge Elec. v. County of San Mateo (1956) 46 Cal.2d 659, 664.) If Hudspeth had moved for leave of court to file her amended complaint, the trial court undoubtedly would have granted it. Moreover, if we were to affirm the order sustaining the demurrer on this ground, we would have to give her leave to amend; that would allow her to refile her amended complaint on remand. Accordingly, Hudspeth’s failure to seek leave to amend before filing the amended complaint was harmless.

XI

DISPOSITION

The order sustaining the demurrer and the judgment are reversed. The trial court is directed to vacate its order sustaining the demurrer and to enter an order overruling the

demurrer. Hudspeth is awarded costs on appeal against the Bank.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

SLOUGH

J.