Case Name: Edward Perales v. JPMorgan Chase, N.A., et al.
Case No.: 18CV328058

This is an action brought by Pro per Plaintiff Edward Perales (“Plaintiff”) a holder of an option to purchase real property located at 1588 Calco Creek Drive, San Jose, California 95127 (“Subject Property”) against various defendants, alleging that an ambiguity exists as to ownership and title to the Subject Property.

Plaintiff’s initial verified complaint filed May 14, 2018 stated two causes of action: (1) Declaratory Relief (seeking an unspecified declaration of rights and duties regarding the Subject Property) and (2) Quiet Title.

Defendants Select Portfolio Services, Inc. (“SPS”) and U.S. Bank, NA, as successor trustee to Bank of America, NA, successor in interest to LaSalle Bank, NA, as trustee on behalf of the holders of WAMU Mortgage Pass-Through Certificates Series 2007-OA6 (“Trustee,” collectively “Defendants”) brought a demurrer to the original complaint.

On November 13, 2018 the Court (Hon. Zayner) adopted as the final order on the demurrer the uncontested tentative ruling, sustaining the demurrer to the first cause of action for declaratory relief on the ground that it failed to state sufficient facts without leave to amend and sustaining the demurrer to the second cause of action for quiet title on the same ground with ten days leave to amend, with the Court noting that “if Plaintiff cannot allege compliance with the tender rule the claim will not survive a further demurrer.” The Order also expressly cautioned Plaintiff that “when a demurrer is sustained with leave to amend, the leave must be construed as permission to the pleader to amend the cause of action to which the demurrer has been sustained, not add entirely new causes of action. (Patrick v. Alacer Corp. (2008) 167 Cal.App.4th 995, 1015.) To raise claims entirely unrelated to those originally alleged requires either a new lawsuit or a noticed motion for leave to amend. Absent prior leave of court an amended complaint raising entirely new and different causes of action may be subject to a motion to strike. (See Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023 [Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court’s order. 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.])”

The Court on its own motion takes judicial notice of the November 13, 2018 Order pursuant to Evidence Code §452(d) (court records).

No amended pleading consistent with the November 13, 2018 order was filed in the period of time permitted by the Court. Instead the operative verified First Amended Complaint (“FAC”) was not filed until March 28, 2019, more than four months later, in apparent response to Defendants’ filing of a motion to dismiss for failure to prosecute. Contrary to the Court’s order the FAC did not amend the Quite Title claim, the only claim for which leave to amend was given. Instead, that claim was abandoned and the FAC instead states four causes of action: (1) “Lack of Legal Standing”; (2) Declaratory Relief; (3) “Fraud Upon the Court,” and (4) Violation of Business & Professions Code §17200 et seq.

Currently before the Court is Defendants’ Demurrer to the FAC and their Motion to Strike the FAC in its entirety.

Request for Judicial Notice
In support of their demurrer and motion to strike Defendants have submitted a request for judicial notice of four documents “pursuant to Evidence Code § 451 and 452,” attached as exhibits A-D to the request. These same four documents were submitted for judicial notice by Defendants with the prior demurrer.

As the prior order noted, Exhibit A is a copy of Deed of Trust pertaining to the Subject Property, identifying Ralph Neal as the borrower and Washington Mutual Bank as the lender, recorded on May 25, 2007. Exhibit B is a copy of an Assignment of Deed of Trust recorded November 4, 2010, transferring the Deed of Trust from JPMorgan Chase to Bank of America, NA, as successor in interest to La Salle Bank, NA, as trustee on behalf of the holders of WAMU Mortgage Pass-Through Certificates Series 2007-OA6, which eventually became Defendant Trustee. Exhibit C is a copy of a Grant Deed recorded on April 19, 2018 whereby Ralph Neal purportedly transferred his interest in the Subject Property to himself and Plaintiff as tenants-in-common. Finally, Exhibit D is a copy of a Notice of Option Contract for Sale and Purchase recorded on April 19, 2018 whereby Ralph Neal (identified as Seller/Optionor) sold Plaintiff (identified as Buyer/Purchaser/Optionee) an option to purchase the Subject Property.

Notice of all four documents is GRANTED pursuant to Evidence Code § 452(c) only. As noted in the prior order, taking judicial notice of the recorded documents and considering the Purchase and Assumption Agreement attached to both the original complaint and the FAC establishes that anyone claiming to have acquired an interest in the Subject Property after the recording of the DOT on May 25, 2007 did so subject to the DOT now assigned to Defendant Trust, and that there is no ambiguity to the title of the Subject Property.

Motion to Strike the FAC
The Court will address Defendants’ motion to strike the entire FAC first.

Pursuant to Code of Civil Procedure (“CCP”) §436 the Court may strike out any irrelevant, false, or improper matter inserted into any pleading or strike out all or part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. The grounds for a motion to strike must appear on the face of the challenged pleading or from matters of which the court may take judicial notice. (See CCP §437(a).) In ruling on a motion to strike or demurrer the Court may not consider extrinsic evidence. Accordingly, apart from the required meet and confer declaration submitted by Defendants, the Court has not considered any submitted declarations, including the two declarations submitted by Plaintiff. Pro per Plaintiffs are held to the same standards as other civil litigants. “[W]hen a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys. Further, the in propria persona litigants is held to the same restrictive rules of procedure as an attorney.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267, internal citations omitted.)

Defendants move to strike the entire FAC on that basis that it fails to conform to the Court’s November 12, 2018 Order, noting that “Plaintiff waited more than four months before filing the FAC (on the eve of the hearing on Defendants’ noticed Motion to Dismiss for Failure to Prosecute). And, despite the crystal clear instructions in the Order, the FAC is inexplicably comprised of a claim for Declaratory Relief and three brand new claims. . . . As such, the entire FAC should be stricken.” (Defendants’ Memo. of Points and Authorities at p. 3:10-16.)

In the single opposition brief filed by Plaintiff (to the demurrer rather than the motion to strike) Plaintiff acknowledges what the prior Order plainly stated but claims, without any supporting argument or citation to authority, that “Plaintiff[‘s] amendments are not only within the scope of the order but [are] also based on the general set of facts within the liberal purview of amendments.” (Opp. to Demurrer at p. 4:16-18, brackets added.)

This is not persuasive and Defendants’ motion to strike is GRANTED as to the FAC’s first, second, third and fourth causes of action. The first (“Lack of Legal Standing”), third (“Fraud Upon the Court”) and fourth (Violation of Bus. & Prof. Code §17200) causes of action were added without leave of court as they were not authorized by the November 13, 2018 demurrer order. Contrary to Plaintiff’s assertion they cannot reasonably be considered as falling “without the scope” of the permitted leave to amend, which was only granted as to the now abandoned quiet title claim. The prior order clearly stated that leave to add new causes of action was not granted. The second cause of action (“Declaratory Relief”) was included in the FAC in direct violation of the November 13, 2018 order, which expressly denied leave to amend the declaratory relief claim then alleged as the first cause of action. The Court specifically noted that a plaintiff cannot use a declaratory relief claim to evade the procedures and requirements of a specific statutory scheme, such as that governing non-judicial foreclosures. (See Filarsky v. Superior Court (2002) 28 Cal.4th 419, 433.)

Leave to amend is DENIED as the defect (failure to conform to the Court’s November 13, 2018 order) cannot be cured by amendment.

Demurrer to the FAC
Defendants’ demurrer to the FAC is ordered off calendar as MOOT in light of the Court’s ruling granting the motion to strike the entire FAC.