Sharma v.
Bank
Filed 10/18/13
Sharma v. Bank CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
ARUNA SHARMA,
Plaintiff
and Appellant,
v.
BANK OF AMERICA,
N.A., et al.,
Defendants
and Respondents.
B237983
(Los
Angeles County
Super. Ct.
No. KC061854)
APPEAL from a judgment of the Superior Court of
County, Salvatore T. Sirna, Judge. Affirmed.
Aruna Sharma, in pro. per., for
Plaintiff and Appellant.
Reed Smith, David J. de Jesus,
Rosalie Euna Kim and Michael Gerst for Defendants and Respondents.
_______________________________________
Plaintiff
Aruna Sharma (plaintiff) appeals from a judgment in favor of defendants Bank of
America, N.A. (Bank of America), ReconTrust Company, N.A. (ReconTrust),
and U.S. Bank, National Association as Trustee for the Benefit of Harborview
2005-12 Trust Fund (U.S. Bank) (collectively defendants) following the trial
court’s dismissal of the action due to plaintiff’s failure to file an amended
complaint after defendants’ demurrer was sustained. Plaintiff contends that her failure to oppose
the demurrer should be excused because she was ill. We conclude that plaintiff has shown no
error, and affirm the judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
On
June 27, 2005, plaintiff obtained a $386,150 loan from First Magnus Financial
Corporation and executed a deed of trust against real property located in
Pomona, California (Property). The deed
of trust named Mortgage Electronic Registration Systems, Inc. (MERS) as the
holder of the beneficial interest in the deed of trust. On March 10, 2010, ReconTrust, as MERS’s
agent, recorded a notice of default and election to sell under deed of trust
stating that plaintiff’s arrears exceeded $17,000. A substitution of trustee and assignment of
deed of trust was recorded on March 23, 2010, stating that MERS was
appointing ReconTrust as the substitute trustee and assigning its interest in
the deed of trust to U.S. Bank. On July
26, 2011, ReconTrust recorded a notice of trustee’s sale.
Plaintiff
filed this action against defendants
on August 9, 2011, alleging causes of action for “failure to comply with
California Civil Code section 2923.5,†“misrepresentation/fraud,†“validity of
loan / non notification of transfer to trustee holder / MERS prohibited,â€
“extortion of loan and property,†and “request to set aside default sale.†Plaintiff’s claims arose from defendants’
alleged failure to modify her mortgage and wrongful initiation of foreclosure
proceedings.
title="">[2]
On
September 8, 2011, defendants raised a general demurrer and special demurrer
for uncertainty to the complaint.
Defendants argued that (1) although the complaint alleged that the
assignment of the deed of trust was invalid, judicially noticeable documents
established defendants’ right to foreclose in response to plaintiff’s default;
(2) plaintiff could not challenge the foreclosure proceedings without
first alleging an ability to tender; (3) defendants were not under an
obligation to modify plaintiff’s loan; and (4) the complaint did not
allege fraud with the required specificity, among other arguments.
Plaintiff
did not file an opposition to the demurrer or attend the hearing.
the demurrer with 10 days leave to amend.
complaint. On November 15, 2011,
defendants applied ex parte for
dismissal of the action. Plaintiff did
not oppose the application. The court
granted the application and dismissed the action with prejudice. (Code Civ. Proc., § 581, subd.
(f)(2).) Plaintiff timely appealed.
Plaintiff
contends that her failure to oppose the demurrer should be excused because she
was ill.
1. The
Demurrer
When reviewing a judgment dismissing
a complaint after the court sustains a demurrer, we assume the truth of
the complaint’s properly pleaded or implied factual allegations, and also
consider judicially noticeable matters.
(Schifando v. City of
Los Angeles (2003) 31 Cal.4th 1074, 1081.) We review de novo whether the complaint
alleges facts sufficient to state a cause of action. (Farm
Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10.)
Plaintiff does not argue that her
complaint adequately alleges facts stating a cause of action, but only
argues that the court should “forgive[]†her for not opposing the
demurrer. At this stage of the
proceedings, we cannot grant plaintiff another opportunity to oppose the
demurrer. The only issue properly before
us, with respect to the demurrer, is whether the complaint failed to allege
facts sufficient to state a cause of action such that the trial court correctly
sustained the demurrer.
The first cause of action for
“failure to comply with California Civil Code § 2923.5†alleges that
defendants gave plaintiff “false-information [sic]†and that the loan was no
longer valid because it had been transferred numerous times. Civil Code section 2923.5 provides, in
relevant part, that a “mortgage servicer, mortgagee, trustee, beneficiary, or
authorized agent†may not record a notice of default before it has contacted
the borrower “to assess the borrower’s financial situation and explore options
for the borrower to avoid foreclosure.â€
Here, the first cause of action does not allege facts showing that
defendants failed to contact plaintiff prior to recording a notice of
default. Therefore, the complaint does
not allege facts stating a cause of action for violation of Civil Code
section 2923.5.
title="">[5]
The second, third and fourth causes
of action all allege forms of fraud. The
second cause of action for “misrepresentation/ fraud†alleges that Bank of
America misrepresented to plaintiff that it would modify her loan and that
“there was NO DEFAULT SALE.†The third
cause of action entitled “validity of loan/non notification of transfer to
trustee holder/MERS prohibited†alleges that Bank of America made
misrepresentations to plaintiff and government agencies regarding its ownership
of the loan at issue. The fourth cause
of action for “extortion of loan and property†alleges that the subject loan
was “predatory†and that defendants “over‑valued pricing of loan
[sic].†(Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d
408, 426, overruled on other grounds in Silberg
v. Anderson (1990) 50 Cal.3d 205
[providing that, in a civil context, extortion is a form of fraud].)
“ ‘[T]he facts constituting []
fraud must be alleged with sufficient specificity to allow defendant to
understand fully the nature of the charge made.’
[Citation.] . . . [¶] This particularity requirement necessitates
pleading facts which ‘show how, when,
where, to whom, and by what means the representations were tendered.’ [Citation.]â€
(Stansfield v. Starkey (1990)
220 Cal.App.3d 59, 73.) Here, the
second, third and fourth causes of action do not allege facts showing how,
when, where, and by what means the alleged misrepresentations were tendered,
therefore, the complaint fails to state a cause of action for fraud.
Lastly, a request for injunctive
relief cannot succeed without an underlying claim to support it. (County
of Del Norte v. City of Crescent City (1999) 71 Cal.App.4th 965, 973 [“A
permanent injunction is an equitable remedy, not a cause of action, and thus it
is attendant to an underlying cause of action.â€].) Therefore, plaintiff’s fifth cause of action
for “request to set aside default sale†fails because none of the underlying
claims adequately state a cause of action.
sustained defendants’ demurrer to the complaint.
Furthermore, plaintiff has not met
her burden of showing that there is a reasonable possibility of curing the
defects in her complaint by amendment.
a general demurrer is sustained the plaintiff must be given leave to amend
her complaint when there is a reasonable possibility that the defect can be
cured by amendment. (
81 Cal.App.4th 39, 43.) “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.’ [Citation.]†(Ibid.) Here, the trial court gave plaintiff an
opportunity to amend and there is nothing in the record indicating that she
attempted to do so. Although plaintiff
claims that she was too ill to oppose the demurrer she does not explain what
prevented her from filing an amended complaint within the three week period
after the demurrer was sustained and before dismissal. In addition, plaintiff has not explained to
this court how she could cure the defects in her complaint if given further
leave to amend. Therefore, plaintiff has
not met her burden of showing that there is a reasonable probability she could
cure the defects in the complaint by amendment.
2. Dismissal
Under Code of Civil Procedure Section 581, Subdivision (f)(2)
To the extent that plaintiff challenges
the court’s order of dismissal based on her failure to file an amended
complaint, we also affirm. Under Code of Civil Procedure section 581, subdivision (f)(2), the
trial court may dismiss a complaint if “after a demurrer to the complaint
is sustained with leave to amend, the plaintiff fails to amend it within the
time allowed by the court and either party moves for dismissal.†“The decision to dismiss an action under
section 581, subdivision (f)(2) rests in the sound discretion of the trial
court and a reviewing court will not disturb the ruling unless the trial court
has abused its discretion.
[Citation.] It is appellant’s
burden to establish an abuse of discretion. [Citation.]†(Gitmed
v. General Motors Corp. (1994) 26 Cal.App.4th 824, 827.) Here, plaintiff did not oppose the demurrer,
amend the complaint in a timely fashion or at any point after the demurrer was
sustained, or oppose defendants’ application to dismiss the complaint. Therefore, the court did not abuse its discretion
in dismissing the action.
The
judgment is affirmed. Defendants shall
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS
CROSKEY,
J.
We
Concur:
KLEIN, P. J.
KITCHING, J.
name="_ftn1" title="">[1] It
appears that First Magnus Financial Corporation, at some point, transferred
ownership of the loan to Bank of America.
name="_ftn2" title="">[2] Plaintiff
represented to the court at oral argument that Bank of America has since
reduced her loan balance by about $125,000 and apparently forgiven
approximately $75,000.
