Coconut Global v. Banca Financial
Filed 6/1/07 Coconut Global v. Banca Financial 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
COCONUT GLOBAL, LLC, Plaintiff and Appellant, v. BANCA FINANCIAL, INC., Defendant and Respondent. | E039988 (Super.Ct.No. SCV121088) OPINION |
APPEAL from the Superior Court of San Bernardino County. John P. Wade, Judge. Affirmed.
Larry Rothman & Associates and Larry Rothman for Plaintiff and Appellant.
Michael D. May for Defendant and Respondent.
Plaintiff and appellant Coconut Global, LLC, (hereafter plaintiff) appeals from the trial courts order dismissing its action after sustaining, without leave to amend, defendant and respondent Banca Financial, Inc.s (hereafter defendant) demurrer to its third amended complaint for assignment of rents. Plaintiff also challenges the award of attorney fees. As described below, we find plaintiffs contentions to be without merit and affirm the judgment.
Facts and Procedure
Plaintiff is the holder of a note, allegedly secured by one or more trust deeds upon the subject property, located at 1520 Coulston Street, #35 in San Bernardino. Defendant purchased the property, a condominium, at a trustee sale on March 9, 2004, but allegedly did not make payments on any underlying note(s) and trust deed(s).
Complaint and First Amended Complaint
Plaintiff filed its initial complaint on November 29, 2004, seeking specific performance of an assignment of rents clause in a deed of trust. The complaint asked that a receiver be appointed to collect rents on the property. Plaintiff claimed to be the holder of a single note and deed of trust on the subject property, which were described as attached to the complaint as exhibits. No note or deed of trust was attached. On December 30, 2004, plaintiff filed an ex parte application for a temporary restraining order requiring that rents on the subject property be paid to plaintiff. Attached were: 1) a note secured by deed of trust in the amount of $31,600, dated February 23, 1998, and maturing on February 27, 1999; and 2) a short form deed of trust and assignment of rents dated February 23, 1998, securing the above note in the amount of $31,600. The trial court denied the temporary restraining order on January 3, 2005. Plaintiff filed a first amended complaint on January 21, 2005, to add a second cause of action for rent skimming. No exhibits were attached.
On March 23, 2005, along with its demurrer to the first amended complaint, defendant asked the trial court to take judicial notice of the note and deed of trust, both dated February 23, 1998, that were attached as exhibits to plaintiffs December 30, 2004, application for temporary restraining order.
On April 28, 2005, the trial court sustained defendants demurrer with leave to amend. The court ordered plaintiff to attach the note and deed of trust to the amended complaint or at least refer to these documents by recordation number and quote the relevant language. The court also ordered plaintiff to explain why the action is not time-barred.
Second Amended Complaint
Plaintiff filed the second amended complaint on May 31, 2005, and attached the note and other documents, but not the corresponding deed of trust to support the relief requested. On August 9, 2005, the trial court sustained defendants demurrer with leave to amend. The court also found that plaintiff had failed to follow its orders to attach the deed of trust or identify and quote from it, and to explain why the action is not time-barred.
Third Amended Complaint
On October 20, 2005, plaintiff filed the third amended complaint, which referred in the plural to notes and deeds of trust. Plaintiff attached to the complaint a single 67-page exhibit of various notes (including the $31,600 note previously appended to the second amended complaint), deeds of trust and assignments of deeds of trust, showing various amounts and with various dates. The exhibit did not contain the deed of trust corresponding to the note for $31,600.
On December 14, 2005, the trial court sustained defendants demurrer without leave to amend, after the parties submitted on the points and authorities. The court took judicial notice of the contents of its own file, including the note and deed of trust attached to plaintiffs December 30, 2004, application for temporary restraining order. The court also found that plaintiffs counsel had failed to obey the courts previous orders to specifically identify the subject deed of trust which plaintiff seeks to enforce and either attach a copy of it or quote pertinent language from it. [] Furthermore, plaintiff failed to allege in the amended complaint why the action was not time barred. The order dismissing the action was filed December 23, 2005. Notice of entry of the order of dismissal was filed January 4, 2006.
On February 16, 2006, the trial court awarded defendant $14,000 in attorney fees. The written order was filed February 23, 2006. This appeal followed.
Discussion
1. The Demurrer
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. 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.] (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)
B. Plaintiffs Contention on Appeal
Plaintiff asserts that the trial court erred in sustaining defendants demurrer without leave to amend because the statute of limitations has not run on the integrated notes and deeds of trust. After spending pages 12 to 38 of its opening brief setting forth the law on the standard of review, the overruling of demurrers, and the integration of contracts, plaintiff begins on the bottom of page 38, of the 41-page brief, to set forth its substantive argument.
The thrust of this argument is that the action is not time-barred because the assignment of rents contained in the deed of trust is not subject to the four-year statute of limitations that normally begins to run once the note matures,[1]per Code of Civil Procedure section 337.
As stated above, we must affirm the judgment if any of the grounds for the demurrer is correct. Here, the trial courts written order sustains the demurrer on two separate bases that do not involve the statute of limitations that the first cause of action fails to state facts sufficient to constitute a cause of action (Code Civ. Proc., 430.10, subd. (e)), and that the cause of action is vague and ambiguous and therefore uncertain because it fails to allege operating facts supporting the legal conclusions asserted (Code Civ. Proc., 430.10, subd. (f)).
The action here is based on a promissory note and an alleged corresponding deed of trust and assignment of rents. When a cause of action is based on contract, then a demurrer is properly sustained where the complaint fails to allege the terms of the contract with specificity or attach a copy, as the trial court in this action requested each time it sustained defendants demurrer with leave to amend. If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. [Citation.] (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 458-459.) Here, plaintiff failed to either attach a copy of the deed of trust or set forth its terms in the third amended complaint, despite being specifically ordered to do so by the trial court on two prior occasions. Thus, the trial court properly sustained the demurrer on the ground that it failed to state facts, namely the language of the deed of trust authorizing an assignment of rents, sufficient to constitute a cause of action for assignment of rents.
In addition, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise. Otherwise, the complaint is subject to special demurrer for uncertainty. (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.) Here, again, plaintiff did not provide a copy of the specific deed of trust authorizing an assignment of rents. Plaintiff did attach a 67-page exhibit containing 14 different promissory notes, six deeds of trust, and several assignments of deeds of trusts. However, the complaint did not refer specifically to any of these documents as support for plaintiffs contention that it was entitled to an assignment of rents, and as far as this court can tell, none of the deeds of trust corresponds to the promissory note. In fact, in its opposition to defendants demurrer to its third amended complaint, plaintiff simply argues: As long as even one of the notes and deed of trust is valid, Defendant is obligated to pay rents to the Plaintiff pursuant to the Assignment of Rents . . . . This indicates that plaintiff believes it could produce a multitude of documents, without pointing to an individual document as factual support for the cause of action, and hope that the court would find and read something into one of them that would support its request for an assignment of rents.
More to the point, in the third amended complaint, plaintiff generally refers to the notes and deeds of trust in the 67-page exhibit without pointing out any specific document or language that gives it the authority to bring this action. Plaintiff is the holder in due course and owner of all notes and deeds of trust against the property. All note holders assigned all of their respective interest in these notes and deeds of trust to Coconut Global, LLC. A true and correct copy of notes, deeds of trusts and assignments have been attached as Exhibit 1 to this Complaint, and made a part hereof. Because of this uncertainty in the complaint as to exactly what language in which deed of trust authorizes the action, we conclude that the trial court did not abuse its discretion when it sustained the demurrer on the ground of uncertainty.
Plaintiff does not specifically discuss the second cause of action, for rent skimming, it its opening brief, and so we will not address that issue.
2. Attorney Fees
Plaintiffs entire argument challenging the award of attorney fees is set forth here. If even allowed, attorney fees should have been proportioned since Civil Code Section 891, only allows for the recovery [of] attorney fees for the damaged party and not the prevailing party. Plaintiff then cites the third amended complaint and minute order awarding attorney fees. Because plaintiff raises this point only perfunctorily and without the support of adequate argument, we reject it as not properly raised. (People v. Marshall (1990) 50 Cal.3d 907, 945, fn. 9; People v. Bonin (1989) 47 Cal.3d 808, 857, fn. 6.)
Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ Richli
J.
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