Filed 9/30/19 Cho v. Deutsche Bank National Trust Co. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

JUNG HYUN CHO,

Plaintiff and Appellant,

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY,

Defendant and Respondent.

A154170

(Solano County

Super. Ct. No. FCS049317)

Plaintiff Jung Hyun Cho, in propria persona, appeals from the judgment after the trial court sustained a demurrer to his complaint for quiet title, without leave to amend. Plaintiff contends the trial court erred in sustaining the demurrer and in denying motions challenging the impartiality of the trial judge. He also filed a motion in this court seeking sanctions against defendant. We affirm the judgment and deny the motion for sanctions on appeal.

I. BACKGROUND

Plaintiff filed a complaint in August 2017 asserting a single cause of action for quiet title. The complaint alleged plaintiff obtained two mortgage loans in September 2004 to purchase a property at 681 Tuscany Court in Fairfield, California. Plaintiff decided to take out the loans, despite their respective “usurious” interest rates of 6.99 percent and 10.875 percent, because the loan agent promised him that after one year of payments, he could refinance at a lower rate. The loan originator, WMC Mortgage, LLC, securitized the loans as pass-through mortgage-backed securities with defendant Deutsche Bank National Trust Company on Behalf of the Certificate Holders of Morgan Stanley ABS Capital I Inc. Trust 2004-WMC3 Mortgage Pass-Through Certificates, Series 2004-WMC3 (defendant).

Plaintiff alleged the loans were “racially-bracketed and dead-end,” and that while various servicers “coming and going” were obligated to help qualified homeowners under government programs, the servicers “cheated the federal and state governments as well as qualified homeowners in a massive lucrative profit seeking scheme: FRAUD.” The complaint alleged the servicers, including Option One, Countrywide Home Loans, Bank of America, BAC Home Loans, and Select Portfolio Servicing, Inc. (SPS), “deliberately made homeowners long-term defaulters by delaying the ongoing loan modification process for several years in the name of the runaround scheme and then changed hands to get away with their commitment.” Plaintiff alleged it was not until “more than a decade” later that he discovered the securitized loans were never going to be refinanced or modified.

Plaintiff’s complaint specifically alleges that in 2010, Bank of America offered plaintiff a three-month payment plan at a rate of $2,170 a month, but the rate was not made permanent despite plaintiff’s compliance with its terms. Plaintiff claims that once SPS was assigned the loan, it required plaintiff to make a monthly payment of $3,000, “which was not affordable and sustainable.” Based on these allegations, plaintiff asserts he holds title to the property.

Defendant filed a demurrer on September 19, 2017. Defendant argued plaintiff’s quiet title claim failed to state a cause of action because he failed to explain how he retained title superior to defendant’s following the sale of the property at foreclosure. Defendant filed a request for judicial notice of various documents including (1) a deed of trust recorded on September 29, 2004; (2) a substitution of trustee and assignment of deed of trust to defendant recorded on October 19, 2009; (3) a substitution of trustee recorded on August 28, 2014; (4) a notice of default recorded on August 28, 2014; (5) a notice of trustee’s sale recorded on August 8, 2016; and (6) a notice of trustee’s deed upon sale recorded on November 9, 2016. Defendant argued its right to title was discernible as a matter of law from the chain of title documents, which showed the deed of trust was assigned to defendant on October 19, 2009, and the trustee’s deed upon sale was issued to defendant in November 2016, following the foreclosure sale. Defendant also asserted plaintiff conceded he was in default on his mortgage and did not allege he tendered the outstanding debt.

Plaintiff opposed the demurrer, arguing his action was premised on a fraud based on “WMC Mortgage LLC’s fraudulent concealment on the dead-end nature of refinancing, Bank of America’s promissory estoppel fraud on HAMP-mandated[ ] and Select Portfolio Servicing, Inc’s coercive fraud and extortion attempts.” Plaintiff also argued he was seeking relief from defendant’s “adverse possession premised on an ‘imperfect title’ which is only good for ‘accommodation only’ without warranty.” He further asserted defendant was not eligible as a credit bidder at the foreclosure sale and generally denied defendant held title or any legal rights to the property. Plaintiff also argued the demurrer was untimely and procedurally defective.

The court issued a tentative ruling, which was not contested. The trial court sustained the demurrer without leave to amend, ruling: “The complaint does not allege sufficient facts upon which plaintiff may base a claim that he has title to the property located at 681 Tuscany Court in Fairfield that is superior to the title held by defendant. Moreover, plaintiff has not indicated in his untimely opposition that sufficient facts could be alleged to state such a claim.”

After the trial court issued its order sustaining the demurrer, plaintiff filed a motion for peremptory challenge under Code of Civil Procedure, section 170.6, claiming Judge Harry S. Kinnicut was prejudiced against him. The trial court denied the motion as untimely. Plaintiff then filed a motion to disqualify the same judge for cause under Code of Civil Procedure section 170.1, on December 15, 2017. The trial court denied that motion on the grounds it was untimely and “seem[ed] to complain of the Court’s orders and rulings entered in the case.” On December 26, 2017, plaintiff filed a document titled “Notice of Disqualification, and Verified Statement of Jung Hyun Cho in Support with Points and Authorities [CCP § 170.3(c)(1)].” Plaintiff complained the trial judge had a conflict of interest and prior knowledge of his lawsuit because the same trial judge presided over defendant’s unlawful detainer action of the same property. Plaintiff complained that the trial judge refused to recuse himself and incorrectly ruled that his requests were untimely.

II. DISCUSSION

A. Standard of Review

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

“When a demurrer is sustained without leave to amend, this court decides whether a reasonable possibility exists that amendment may cure the defect; if it can we reverse, but if not we affirm. The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] Plaintiff may make this showing for the first time on appeal.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) “To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ ” (Ibid.) “[P]laintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Id. at pp. 43–44.)

B. Demurrer

The trial court correctly sustained the demurrer because plaintiff failed to allege facts showing the existence of a cause of action for quiet title. (Code Civ. Proc., § 430.10, subd. (e).)

First, plaintiff alleges his quiet title cause of action is premised on fraud. “The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 78 (Lueras), citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled with specificity. (Lazar, at p. 645.) Plaintiff fails to allege defendant made even a single false representation as to a past or existing material fact, that plaintiff relied on a representation by defendant, or that plaintiff suffered damages as a result.

Second, plaintiff’s quiet title cause of action fails because plaintiff does not allege he has tendered the amount of his outstanding debt. (Shimpones v. Stickney (1934) 219 Cal. 637, 649; Lueras, supra, 221 Cal.App.4th at pp. 86–87.) Plaintiff asserts this rule applies only when a quiet title action is not based on an allegation of fraud, but as noted above, plaintiff has failed to allege any facts supporting his claim that defendant committed fraud.

Third, to the extent plaintiff relies on defects in defendant’s title to challenge the underlying debt or bolster his claim to title to the property, such reliance is misplaced. A party seeking to quiet title “is not helped by the weaknesses of his adversary’s title but must stand upon the strength of his or her own.” (Shimpones v. Stickney, supra, 219 Cal. at p. 649.) Plaintiff’s claim that defendant “was never legally in the chain of title as per the title registry in Solano County records” and his conclusory denials of defendant’s status as beneficiary under the deed of trust in his opposition to the demurrer are contradicted by the judicially noticeable substitution of trustee and assignment of deed of trust showing defendant became the beneficiary under the deed of trust in 2009, and the trustee’s deed upon sale showing defendant purchased the property at the foreclosure sale in November 2016. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264–265 [in sustaining demurrer, court properly took judicial notice of recorded documents that contradicted plaintiff’s allegations], disapproved on other grounds in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13; Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1054–1055 [court may disregard conclusory allegations that contradict judicially noticeable facts].)

Nor has plaintiff demonstrated his ability to amend to allege a cognizable cause of action. In his opening brief on appeal, plaintiff reiterates his complaint is based on fraud, and generally describes what appears to be a series of unsuccessful loan modification efforts with various lenders and loan servicers beginning in 2004 and continuing through 2015. Plaintiff also alludes to alleged violations of the Homeowners’ Bill of Rights by servicer SPS, but fails to articulate the basis of a claim against defendant, present legal authority supporting his arguments, or provide citations to the record. (Rakestraw, supra, 81 Cal.App.4th at p. 44 [“Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.”].) Because plaintiff has failed to show there is a reasonable probability he could cure the defects in his complaint given the opportunity to do so, the trial court did not abuse its discretion in sustaining the demurrer without leave to amend.

Plaintiff also apparently contends the trial court erred because defendant initiated a belated attempt to meet and confer before filing its demurrer. On the contrary, it appears defendant engaged in timely “meet and confer” efforts and timely filed its demurrer. The record reflects the summons and complaint were served by substituted service, which was complete on August 18, 2017, making the responsive pleading due on September 18, 2017. (Code Civ. Proc., §§ 415.20, subds. (a), (b), 430.40, subd. (a), 412.20, subd. (a)(3), 12.) Defendant attempted to reach plaintiff by telephone, mail, and e-mail on September 11 and 12, 2017, before filing its demurrer, as required by Code of Civil Procedure section 430.41, subdivision (a)(2). Defendant filed a declaration to obtain an automatic extension of time (until Oct. 18, 2019) to file the demurrer, and filed the demurrer on September 19, 2017.

Even if the demurrer were late, however, plaintiff did not seek entry of default but opposed the demurrer on the merits. A trial court may consider an untimely demurrer in its discretion. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) To the extent plaintiff alleges defendant’s meet and confer efforts were inadequate, we note Code of Civil Procedure section 430.41, subdivision (a)(4) provides, “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Subdivision (f) also provides, “Nothing in this section affects appellate review or the rights of a party pursuant to Section 430.80.” Even if defendant’s meet and confer efforts were insufficient, the trial court could not have overruled the demurrer on that basis and we will not reverse the judgment of dismissal for this reason.

C. Motions Challenging Judge

Plaintiff filed two motions challenging the trial judge in this matter, one peremptory (Code Civ. Proc., § 170.6) and one for cause (id., §§ 170.1, 170.3). Both motions were filed after entry of the court’s order sustaining the demurrer without leave to amend. Plaintiff contends on appeal that the trial judge was biased against him.

The orders denying plaintiff’s peremptory and for cause challenges are nonappealable and may only be reviewed by writ of mandate. (Code Civ. Proc., § 170.3, subd. (d); People v. Hull (1991) 1 Cal.4th 266, 276.) Arguments about the trial court’s disqualification may not be raised in this appeal. (Roberts v. County of Los Angeles (2009) 175 Cal.App.4th 474, 487.)

D. Motion for Sanctions and Request for Judicial Notice

Plaintiff filed a “Motion to Impose Sanction” in this court on August 9, 2019, arguing attorneys for defendant committed perjury and a fraud upon the court, which in turn rendered the trial court’s order sustaining the demurrer void ab initio. Plaintiff bases his motion on many of the same arguments asserted in his opening brief. For example, plaintiff asserts defense counsel made a “[m]aterial misstatement on the date of process served” because the process server personally served the summons and complaint on August 4, 2017. As noted above, however, the record reflects the summons and complaint were served by substituted service, which was completed on August 18, 2017. (Code Civ. Proc., § 415.20, subds. (a), (b).) Plaintiff also faults defense counsel for mailing the demurrer to an evacuated property (his former address), but the record reflects defense counsel also e-mailed the demurrer to plaintiff and plaintiff filed an opposition on the merits. Plaintiff makes other vague, unintelligible, and/or conclusory accusations—for example, that opposing counsel “suppressed Default in responsive pleading that was due on Sept. 4, 2017” and submitted a “sham affidavit, which constitutes a perjured declaration.” Plaintiff’s other claims are either not cognizable or not supported by the record citations provided. Plaintiff also appears to rely on the Civil Discovery Act as authority for his sanctions motion. Those provisions (Code Civ. Proc., § 2023.010 et seq.) have no application to his sanctions motion on appeal, nor to the trial court proceedings in this action, which never made it past the pleading stage.

Plaintiff’s request for judicial notice filed on August 6, 2019 is denied. The exhibits attached to the request, including discovery requests and responses from the unlawful detainer action, a notice of returned document from the trial court, a “Special Exhibit” submitted by plaintiff in the unlawful detainer action, and a “Request for Service of Judgment” in this action, are irrelevant to the issues raised in this appeal.

III. DISPOSITION

The judgment is affirmed. In the interests of justice, both parties are to bear their own costs on appeal.

 

____________________________

Margulies, J.

We concur:

_____________________________

Humes, P. J.

_____________________________

Banke, J.

A154170

Cho v. Deutsche Bank National Trust Company