Case Name: Wilmington Trust, National Association v. Nelson R Herrera, et al.
Case No.: 18CV334162

I. Background

This is a post-foreclosure unlawful detainer action brought by Wilmington Trust, National Association, as Successor Trust to Citibank, N.A., as Trustee for Bear Sterns Alt-A Trust, Mortgage Pass-Through Certificates, Series 2007-1 (“Plaintiff”) against Nelson R. Herrera and Nenebeth T. Herrera (collectively the “Herreras”); Maria Aires Tabula and John David Tabula (collectively the “Tabulas”); and Maria Sarmiento.

According to the allegations of the verified complaint, Plaintiff acquired the subject real property in March 2018 at a foreclosure sale conducted pursuant to a deed of trust executed by the Herreras. Plaintiff subsequently served the defendants a 90-day notice to vacate the premises and deliver possession, but they did not vacate the property and refused to deliver possession. Plaintiff consequently seeks possession of the premises as well as holdover damages.

The Herreras and the Tabulas (collectively “Defendants”) filed separate demurrers to the complaint, and Plaintiff opposes both. Because each demurrer and opposition raise identical grounds and arguments, they will be addressed jointly below.

II. Merits of Demurrers

Defendants demur to the complaint on the grounds of another action pending, failure to state facts sufficient to constitute a cause of action, and uncertainty. (See Code Civ. Proc., § 430.10, subds. (c), (e), (f).)

A. Another Action Pending

A pleading is subject to demurrer where “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) A demurrer on this ground is referred to as a statutory plea in abatement because, if a court concludes it is proper to sustain the demurrer, it may not order dismissal and instead must abate or stay the second action pending termination of the first action. (Childs v. Eltinge (1973) 29 Cal.App.3d 843, 848; see also Beehler v. Beehler (1979) 100 Cal.App.3d 376, 384; Hagan v. Fairfield (1961) 194 Cal.App.2d 240, 247.) “The rule that the pendency of one action abates another is based in part upon the practical supposition that the first suit is effective and affords an ample remedy to the party and that the second is unnecessary and vexatious, and in part upon the legal principle that the law abhors a multiplicity of actions.” (National Auto. Ins. Co. v. Winter (1943) 58 Cal.App.2d 11, 16.)
“Despite the benefits of abating unnecessary actions, the plea is considered dilatory and not judicially favored. [Citation]. Because of its disfavored status the statutory language has been strictly interpreted to defeat pleas in abatement. Thus, the plea is successful only if it can be shown ‘(1) That both suits are predicated upon the same cause of action; (2) that both suits are pending in the same jurisdiction; and (3) that both suits are contested by the same parties.’ [Citation].” (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 176.) Stated alternatively, the demurring party “ ‘must show that the parties, causes of action, and issues are identical, and that the same evidence would support the judgment in each case.’ [Citation.]” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856.)

Here, Defendants simply state “there is another matter pending concerning arguments over title.” (Dems., p. 6:21.) Beyond this statement, they make no further mention of the other matter and do not indicate that the parties, cause of action, and issues are identical. Likewise, there are no allegations on the face of the complaint regarding any other proceeding between the parties. When a party demurs on the ground of another action pending, it is incumbent upon it to file a request for judicial notice of the pleadings from the other action so the court can determine whether the elements for abatement are satisfied. (See, e.g., California Union Ins. Co. v. Trinity River Land Co. (1980) 105 Cal.App.3d 104, 108.) Since such information is not before the Court, the demurrer on this basis is unsubstantiated. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)

For these reasons, the Herreras’ demurrer and the Tabulas’ demurrer on the ground of another action pending are OVERRULED.

B. Failure to State Sufficient Facts to Constitute a Cause of Action

Defendants assert Plaintiff has not alleged facts sufficient to constitute a cause of action. In their presentation, they advance a variety of arguments without explicitly tethering them to this specific ground. With that said, the Court will assume these arguments were intended to support the ground of failure to state sufficient facts.

1. Legal Standing

Defendants argue Plaintiff lacks standing to maintain this action.

“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” (Code Civ. Proc., § 367.) “The purpose of the real party in interest requirement is to assure that any judgment rendered will bar the owner of the claim sued upon against relitigating. It is to save a defendant, against whom a judgment may be obtained, against further harassment or vexation at the hands of some other claimant to the same demand.” (O’Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1094.) Where the plaintiff lacks standing to sue, the complaint is subject to a general demurrer for failure to state facts sufficient to state a cause of action in this plaintiff. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1002.)
Defendants argue the complaint fails to adequately explain whether Plaintiff is the owner of the property, or whether a management agreement exists between the owner and Plaintiff as a property manager. Defendants provide no further discussion on this point. Regardless, the complaint clearly and explicitly alleges that Plaintiff is the owner of the property. (See Compl., ¶ 5.) For purposes of a demurrer, this fact must be accepted as true. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383.) Therefore, the face of the complaint reflects Plaintiff has standing to bring this action.

The demurrers are therefore not sustainable on the basis Plaintiff lacks standing.

2. Element of Duly Perfected Title

Defendants contend Plaintiff has not satisfied the requirements of perfecting title and has failed to provide documentary evidence on that issue of which the court may take judicial notice.
Section 1161a of the Code of Civil Procedure provides that an unlawful detainer action may be brought against one holding over and continuing in possession of real property “[w]here the property has been duly sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person . . . and the title under the sale has been duly perfected.” (Code Civ. Proc. § 1161a, subd. (b)(3).) “A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.” (Code Civ. Proc. § 2924, subd. (c).)

Here, Defendants raise disjointed contentions asserting Plaintiff has failed to perfect title to the property by acquiring it at a regularly conducted sale. But in the complaint, Plaintiff affirmatively alleges that its title pursuant to the sale has been duly perfected. (See Compl., ¶ 4.) Plaintiff also attached to the complaint the Trustee’s Deed Upon Sale, which contains a recital stating compliance with all requirements of law. Plaintiff was not required to request judicial notice of any documentary evidence in support of its complaint, as suggested by Defendants. Plaintiff has therefore adequately alleged the element of duly perfected title.

Accordingly, Defendants’ demurrers are not sustainable on the basis that Plaintiff did not perfect title and request judicial notice.

3. Judicial Estoppel

Defendants state that a court may sustain a demurrer on the ground of judicial estoppel.

“Judicial estoppel is an equitable doctrine designed to maintain the integrity of the courts and to protect the parties from unfair strategies.” (Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121.) “The doctrine prohibits a party from asserting a position in a legal proceeding that is contrary to a position he or she successfully asserted in the same or some earlier proceeding.” (Ibid.)

Defendants assert judicial estoppel is proper when the facts pleaded and judicially noticed indicate as a matter of law the doctrine should be applied. Defendants further provide legal authority generally addressing the application of judicial estoppel. However, they offer no discussion or analysis addressing the application of this doctrine to the case and it is unclear to the Court how it applies. A point asserted “ ‘without any argument of or authority for its proposition . . . is deemed to be without foundation and requires no discussion.’ ” (People v. Dougherty (1982) 138 Cal.App.3d 278, 282, quoting People v. Ham (1970) 7 Cal.App.3d 768, 783.)

As such, the demurrers are not sustainable on the basis of judicial estoppel.

4. Failure to Attach Required Exhibits to the Complaint

Defendants contend Plaintiff failed to attach the required exhibits to its complaint.

In an unlawful detainer action regarding residential real property, the plaintiff must attach a copy of the notice of termination served on the defendants and any written lease or rental agreement regarding the premises, with addenda or attachments included. (Code Civ. Proc. § 1166, subd. (d)(1)(A)-(B).) The plaintiff is not required to attach the written lease or rental agreement if the complaint alleges any of the following: (1) the agreement is oral, (2) the plaintiff or his agent is not in possession of the agreement, or (3) the action is based solely on nonpayment of rent. (Id. at subd. (d)(1)(B)(i)-(iii).)

Here, Plaintiff attached to its complaint the notice of termination served on Defendants. While Plaintiff did not attach any lease or rental agreement, there is nothing on the face of the complaint suggesting the existence of a written lease between Plaintiff and Defendants. Since this unlawful detainer arises from a nonjudicial foreclosure, “‘strictly speaking’ there is no landlord-tenant relationship.” (Kessler v. Bridge (1958) 161 Cal.App.2d Supp. 837, 840.) As such, there is no presumption of the existence of any lease and no indication Plaintiff neglected to attach anything. A demurrer only challenges defects appearing on the face of the pleading. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Accordingly, there is no basis to conclude Plaintiff did not comply with the statute and include the required exhibits.

For these reasons, the demurrers cannot be sustained on the basis Plaintiff failed to attach all required exhibits.

5. Conclusion

For the reasons stated above, the Herreras’ demurrer and the Tabulas’ demurrer on the ground of failure to state facts sufficient to constitute a cause of action are OVERRULED.

C. Uncertainty

Demurrers on the ground of uncertainty are disfavored and will be sustained only where the pleading is so unintelligible the defendant cannot reasonably respond, i.e., the party cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against it. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.; see also Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2.) Therefore, a demurer for uncertainty “should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be clear and as detailed as might be desired.” (Merlino v. West Coast Macaroni Mfg. Co. (1956) 90 Cal.App.2d 106, 108.)

Defendants contend: “The 3-Day Notice is uncertain, because it references a 90 Day Notice. Therefore, the statement in plaintiff’s complaint referencing that 3 days has passed after service of the notice is a circumstance of uncertainty. There should have been a separate 3 Day Notice to the Mortgage holder, and a separate 90 day notice to unknown tenants. The Notice to Quit is Defective.” (Dems., p 6:9-14.) The Court is puzzled by Defendants’ contention because there is no reference to a 3-day notice or a time frame of three days passing in the complaint. Regardless, Defendant’s contention does not demonstrate the pleading is uncertain under applicable standards. This is an unlawful detainer action and the bases for evicting Defendants are clearly alleged. As such, there is simply no basis for concluding that the pleading is so unintelligible that Defendants cannot respond.

Accordingly, the Herreras’ demurrer and the Tabulas’ demurrer on the ground of uncertainty are OVERRULED.