Filed 8/11/20 Fortner v. Bank of America, N.A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

BRIAN FORTNER,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A. et al.,

Defendants and Respondents.

E071935

(Super.Ct.No. PSC1700551)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Affirmed.

Brian Fortner, in pro. per., for Plaintiff and Appellant.

McGuireWoods, Leslie M. Werlin, and Adam F. Summerfield, for Defendants and Respondents.

I.

INTRODUCTION

In this wrongful foreclosure action, plaintiff and appellant, Brian Fortner, appeals in pro. per. from the trial court’s judgment dismissing his case for failure to state a claim. Fortner asserts the trial court erred in sustaining defendants’ demurrer to his Third Amended Complaint (3AC) and denying his request for leave to amend. We disagree and affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Facts
B.
In 2005, Fortner obtained a loan for a mortgage on a home in Desert Hot Springs, California (the property). The loan was secured by a deed of trust (the DOT), which named MERS as a beneficiary. MERS later assigned the DOT to another entity.

MTC Financial, Inc. dba Trustee Corps became the trustee of the DOT in 2015. Shortly afterward, Trustee Corps recorded a notice of default under the DOT because Fortner was in arrears on the loan. After the property was foreclosed on, it was sold at a trustee’s sale in April 2016.

C. Procedural history
D.
Fortner sued BANA, MERS, and various other entities for claims associated with the foreclosure. Fortner’s operative 3AC alleged five causes of action: (1) to set aside the trustee’s sale; (2) to cancel the trustee’s deed; (3) to quiet title; (4) for an accounting; and (5) wrongful foreclosure.

Defendants demurred to the 3AC. Fortner did not oppose the demurrer, but instead filed a motion for leave to file a proposed Fourth Amended Complaint (4AC). In the 4AC, Fortner proposed five causes of action: (1) wrongful foreclosure; (2) to void or cancel trustee’s deed upon sale; (3) to void or cancel assignment of deed of trust; (4) quiet title; and (5) slander of title. The second claim was not alleged against BANA or MERS.

The trial court sustained Defendants’ demurrer without leave to amend and denied Fortner’s request to file the 4AC on the ground that it was a “canned complaint” that failed to state a cause of action. After the trial court denied Fortner’s motion for reconsideration of both orders, he timely appealed.

III.

DISCUSSION

In his opening brief, which is at times difficult to follow, Fortner asserts the trial court erred in numerous ways. The thrust of Fortner’s appeal, however, is that the trial should have allowed him to file the 4AC instead of sustaining Defendants’ demurrer without leave to amend because the 4AC sufficiently stated viable claims. We disagree.

A. Applicable Law and Standard of Review
B.
“‘A trial court’s order sustaining a demurrer without leave to amend is reviewable for abuse of discretion “even though no request to amend [the] pleading was made.” [Citation.] While it is the plaintiff’s burden to show “that the trial court abused its discretion” and “show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading” [citation], a plaintiff can make “such a showing . . . for the first time to the reviewing court” [citation].’” (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) Accordingly, “[t]o meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.] Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend.” (Cantu v. Resolution Trust Corp. (1994) 4 Cal.App.4th 857, 890.)

“‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citation.]” (McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1206.)

“If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]” (Shifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

C. Analysis
D.
At the outset, we address three preliminary issues: (1) the effect of Fortner’s pro. per. status; (2) whether Fortner forfeited his right to appeal due to the deficiencies in his opening brief; and (3) which proposed causes of action Fortner permissibly asserted in the 4AC.

In his briefs, Fortner repeatedly references the fact that he represented himself in the trial court. In doing so, he seems to suggest that the trial court should have been more lenient given his pro. per. status because “it is a slap in the face to pretend that In Pro Per parties do not make mistakes and that they are fully cognizant of the procedures and laws.”

But “[p]ro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.) Pro. per. litigants therefore are “treated like any other party and [are] entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) This means pro. per. litigants must follow the courts’ rules. (Ibid.)

This brings us to the next issue. One of those rules is that, on appeal, the appellant has the burden “to support claims of error with meaningful argument and citation to authority.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52; see Cal. Rules of Court, rule 8.204(a)(1)(C).) “We need not address points in appellate briefs that are unsupported by adequate factual or legal analysis.” (Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814.) Accordingly, “‘[w]hen an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.’” (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.)

Fortner’s opening brief is deficient in a critical respect. On appeal from an order sustaining a demurrer without leave to amend, “[t]he plaintiff ‘bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law’ and ‘must show the complaint alleges facts sufficient to establish every element of [the] cause of action.’ [Citation.]” (Sui v. Price (2011) 196 Cal.App.4th 933, 938.) Specifically, the plaintiff “must clearly and specifically set forth the ‘applicable substantive law’ . . . and the legal basis for amendment, i.e., the elements of the cause of action and authority for it . . . [and] must set forth factual allegations that sufficiently state all required elements of that cause of action.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.)

Fortner fails to meet this burden. Fortner argues the trial court erred in sustaining Defendants’ demurrer to the 3AC without leave to amend because he “can allege sufficient facts” to argue seven causes of action, which mirror those the 4AC purportedly alleges. We therefore conclude Fortner contends the 4AC cured the deficiencies in the 3AC and states several viable claims.

In his opening brief, however, Fortner makes no attempt (1) to enumerate the elements for each claim or (2) to explain how the proposed 4AC alleges sufficient facts for each cause of action. Instead, in the argument section of his opening brief, Fortner cites and quotes various authorities interposed with brief allegations about his case and the trial court proceedings. Simply put, Fortner fails to explain how either the 3AC or 4AC states a viable claim. (See Rakestraw v. California Physicians’ Service supra, 81 Cal.App.4th at p. 43 [“Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show the complaint alleges facts sufficient to establish every element of each cause of action.”]; accord, Los Altos Golf & Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 203 [“To show entitlement to reversal the plaintiff must show that the complaint alleged facts sufficient to establish every element of each cause of action.”].) Fortner therefore forfeited his argument that trial court erred in sustaining Defendants’ demurrer to the 3AC without leave to amend and denying his request to file the proposed 4AC. This means we need not address Fortner’s arguments on the merits. (See Keyes v. Brown (2010) 189 Cal.App.4th 647, 655 [“The fact that we examine the complaint de novo does not mean that plaintiffs need only tender the complaint and hope we can discern a cause of action.”].) Nonetheless, we exercise our discretion to do so.

In the 3AC, Fortner alleged the following claims against Defendants: (1) wrongful foreclosure; (2) quiet title; and (3) to set aside the trustee’s sale.

We address the first and third claims together because their elements are the same. (Lona v. Citibank, N.A., (2011) 202 Cal.App.4th 89, 104.) “To obtain the equitable set-aside of a trustee’s sale or maintain a wrongful foreclosure claim, a plaintiff must allege that (1) defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff tendered the amount of the secured indebtedness or was excused from tendering. [Citation.]” (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.)

The rationale behind the third element—the tender requirement—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.]” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 112.) “Recognized exceptions to the tender rule include when: (1) the underlying debt is void, (2) the foreclosure sale or trustee’s deed is void on its face, (3) a counterclaim offsets the amount due, (4) specific circumstances make it inequitable to enforce the debt against the party challenging the sale, or (5) the foreclosure sale has not yet occurred.” (Chavez v. Indymac Mortgage Services, supra, 219 Cal.App.4th at p. 1062.)

Fortner does not allege he satisfied the debt he owed on the loan. Instead, he appears to argue the second exception to the tender rule applies here. In the 3AC, Fortner did not allege in his claims for wrongful foreclosure and to set aside the trustee’s sale that he tendered the amount due under the deed of trust, but he alleged (without explanation) that the foreclosure sale was void. In his opening brief, Fortner argues the sale was void because the foreclosing entity, Quality Loan Servicing Corporation, did not have the authority to conduct the foreclosure.

Fortner’s argument on appeal contradicts the allegations of the 3AC and the documents attached to it. In the 3AC, Fortner alleged that Trustee Corps initiated and completed the foreclosure. The Notice of Trustee’s Sale attached to the 3AC confirms that Trustee Corps was the trustee at the time of the foreclosure. Nothing in the 3AC or the documents attached to it plausibly suggests that Trustee Corps lacked the authority to conduct the foreclosure. Because Fortner did not sufficiently allege facts showing that he was excused from tendering the amount he owed for the loan, he failed to adequately state a claim for wrongful foreclosure or to set aside the trustee’s sale.

For the same reason, Fortner failed to allege a viable quiet title claim. “It is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured.” (Shimpones v. Stickney (1934) 219 Cal. 637, 649.) “The cloud upon [Fortner’s] title persists until the debt is paid.” (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477.) Fortner thus cannot “quiet title without discharging his debt.” (Ibid.) Because Fortner did not allege that he has paid off his debt, he failed to properly allege a claim for quiet title in the 3AC.

Fortner did not oppose Defendants’ demurrer to the 3AC, and instead requested leave to file the 4AC. As noted, Fortner seems to argue that the 4AC properly stated viable claims. In the 4AC, Fortner purported to allege four claims against Defendants: (1) wrongful foreclosure; (2) quiet title; (3) to void or cancel assignment of deed of trust; and (4) slander of title. As the trial court correctly ruled, however, Fortner was not permitted to amend his complaint to assert entirely new theories and causes of action. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [scope of leave to amend after demurrer sustained did not include adding new causes of action].) The trial court therefore did not abuse its discretion in declining to accept Fortner’s 4AC insofar as it alleged new claims for slander of title and to void or cancel assignment of deed of trust, as neither was alleged in the 3AC. Accordingly, we need not consider whether those claims stated a viable cause of action.

Fortner’s claims for wrongful foreclosure and to quiet title in the 4AC contain the same deficiencies as those in the 3AC outlined above. The 4AC does not contain, and Fortner’s opening brief does not propose, any allegations that suggests MERS lacked the authority to assign the DOT to Trustee Corps or that Trustee Corps was not authorized to foreclose on the property. In short, Fortner has failed to allege facts showing that the foreclosure was unauthorized or otherwise illegal. We therefore conclude the 4AC, like the 3AC, failed to state a viable cause of action against Defendants. Because Fortner failed to explain in his opening brief how he could sufficiently amend his pleadings, we conclude the trial court did not abuse its discretion in sustaining Defendants’ demurrer without leave to amend and denying his request to file the 4AC.

IV.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

RAMIREZ

P. J.

FIELDS

J.

Parties and Attorneys
Brian Fortner v. Bank of America, N.A. et al.
Case Number E071935
Party Attorney

Brian Fortner : Plaintiff and Appellant
9072 Clubhouse Boulevard
Desert Hot Springs, CA 92240 Pro Per

Bank of America, N.A. : Defendant and Respondent
Leslie Mark Werlin
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067-1501

Adam Frederick Summerfield
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067-1501

Mortgage Electronic Registration System, Inc. : Defendant and Respondent
Leslie Mark Werlin
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067-1501

Adam Frederick Summerfield
McGuireWoods LLP
1800 Century Park East, 8th Floor
Los Angeles, CA 90067-1501