Case Name: Baimba & Fatmata John v. Bank Of New York Mellon,et al.
Case No.: 17CV316091

This is an action brought by Self-Represented Plaintiffs Baimba and Fatmata John (“Plaintiffs”) against several defendants. The claims concern real property located at 3354 Casalegno Court, San Jose, California 95148 (“Subject Property”). Currently before the Court is the demurrer to Plaintiffs’ Complaint brought by Defendants Nationstar Mortgage LLC, The Bank of New York Mellon fka The Bank of New York, successor Trustee to JP Morgan Chase Bank, N.A., as Trustee for Holders of Structured Asset Mortgage Investment II Trust, Mortgage Pass Through Certificates, Series 2006-AR1 (collectively “Defendants”). The verified Complaint states five causes of action: 1) “Void Assignment of Deed of Trust”; 2) “Void Recordation of Foreclosure Documents”; 3) Interference with Contractual Relations (through alleged “void” assignment of deed of trust); 4) Intentional Fraud, and; 5) Declaratory Relief.

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 12 documents (attached to the request as exhibits 1-12) pursuant to Evidence Code §§ 452 (c), (d) & (h) and 453. These 12 documents are: 1) A copy of a Deed of Trust executed by Plaintiffs which encumbered the Subject Property and was recorded in Santa Clara County on December 2, 2005; 2) A copy of a Notice of Default and Election to Sell under Deed of Trust, recorded in Santa Clara County on May 2, 2008; 3) A copy of a Notice of Trustee’s Sale of the Subject Property, recorded in Santa Clara County on August 26, 2008; 4) A copy of another Notice of Trustee’s Sale of the Subject Property, recorded in Santa Clara County on June 17, 2010; 5) A copy of another Notice of Trustee’s Sale of the Subject Property, recorded in Santa Clara County on March 12, 2012; 6) a copy of a Corrective Corporation Assignment of Deed of Trust, recorded in Santa Clara County on April 27, 2012; 7) A copy of another Notice of Default and Election to Sell under Deed of Trust, recorded in Santa Clara County on July 15, 2014; 8) A copy of a Notice of Trustee’s Sale for the Subject Property recorded in Santa Clara County on October 17, 2014; 9) A copy of Plaintiffs’ verified Complaint in their prior action, case no. 2015-1-CV-286315 (“2015 action”), filed September 20, 2015, stating claims against various defendants (including all of the Defendants in the present action) for wrongful foreclosure, wrongful assignment of deed of trust, lack of legal standing, violation of California bill of rights, fraud, quiet title, declaratory relief, accounting, violation of consumer financial protection act, violation of business and professions code § 17200, unjust enrichment, and injunctive relief; 10) A copy of a June 7, 2016 order of the Court (Hon. Elfving) on a demurrer to the First Amended Complaint (“FAC”) in the 2015 action. The Order notes in pertinent part that a demurrer to Plaintiffs’ third and twelfth causes of action as pled in the original complaint (exhibit 9) had previously been sustained without leave to amend, and it goes on to sustain the demurrer to the ten remaining claims as alleged in the FAC without further leave to amend; 11) A copy of July 18, 2016 Judgment of Dismissal, dismissing the 2015 action as to all of the presently demurring Defendants and also as to Mortgage Electronic Registration Systems (“MERS”), and; 12) A copy of another Notice of Trustee’s Sale for the Subject Property, recorded in Santa Clara County on July 20, 2016.

Defendants’ request for judicial notice (“RJN”) of all twelve documents is GRANTED pursuant to Evidence Code §§ 452(c) and (d). Exhibits 9, 10 and 11 are noticed pursuant to Evidence Code § 452(d) as court records. The Court’s order on the demurrer in the prior action (exhibit 10) and the judgment in the prior action (exhibit 11) are noticed as to their contents and legal effect. Exhibits 1-8 and 12 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, disapproved of on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, [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]. See also Witkin, California Evidence (4th Ed., 2000) 1 Judicial Notice §3(3) [“It has long been established in California that allegations in a pleading contrary to judicially noticed facts will be ineffectual; i.e., judicial notice operates against the pleader.”])

The Court may not consider extrinsic evidence in ruling on a demurrer. Therefore, the Court has not considered the “exhibits” attached to Plaintiffs’ Opposition. The Court also notes that Plaintiffs’ opposition exceeds ten pages and does not include a table of contents or a table of authorities (See Cal. Rules of Court, rule 3.1113(f) [memorandum that exceeds 10 pages must include a table of contents and table of authorities]). Pro per Plaintiffs are held to same standards as other civil litigants. The Court has exercised its discretion to consider Plaintiffs’ opposition despite these defects.

Defendants’ demurer to all of Plaintiffs’ causes of action on the ground that they all fail to state sufficient facts because they are all barred by the res judicata effect of the dismissal of the 2015 action, case no. 2015-1-CV-286315. (See Defendants’ Memorandum of Points & Authorities at 11:3-10.) 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 of Plaintiffs’ claims in the present Complaint on res judicata/claim preclusion grounds is SUSTAINED as the present 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 2015 action. The 2015 action ended at the trial court level with a dismissal of the complaint after Defendants’ demurrer to the FAC 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 judicially noticed material also makes clear that all of Plaintiffs’ present claims either were or could have been raised in the 2015 action.

The argument by Plaintiffs in their opposition that res judicata does not bar their current claims for interference with contractual relations or declaratory relief is unpersuasive. The third cause of action for interference with contractual relations is based on the allegation that Defendants “interfered” with the contract between Plaintiffs and their original lender “through an alleged assignments of deed of trust and promissory note.” (Complaint at 52.) Plaintiffs’ ability to attack the allegedly improper assignments was clearly adjudicated in the prior action and the third cause of action is barred by res judicata. The fifth cause of action for Declaratory Relief is entirely based on the preceding causes of action, all of which are barred by the res judicata effect of the judgment in the prior action. In particular the fifth cause of action claims that a declaration of rights and duties under the Homeowners’ Bill of Rights and Consumer Financial Protection Act is necessary. (See Complaint at 71 and 73.) These claims were pled as Plaintiffs’ third cause of action and eighth cause of action in the prior action, were both found defective (see exhibit 10 to Defendants’ RJN at 10:5-25 and 13:3-17), and were dismissed, as was the similar declaratory relief claim in the prior action pled as the seventh cause of action. The res judicata effect of the prior judgment thus clearly bars the fifth cause of action as well. Plaintiffs’ argument that the Yvanova decision supports their current claims is not only unpersuasive, but was previously made and expressly rejected in the 2015 action (see exhibit 10 to Defendants’ RJN at 7:14-8:13.)

While Plaintiffs request leave to amend if the demurrer is sustained to any cause of action their opposition offers no 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.’”])