Opinion
E072068
03-09-2021
TRINA R. PATTERSON, Plaintiff and Appellant, v. SELECT PORTFOLIO SERVICING, INC., Defendant and Respondent.
J. Wright Law Group, Jamie Wright and Michael J. Yesk, for Plaintiff and Appellant. Kutak Rock and Steven M. Dailey, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. CIVDS1808276) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed. J. Wright Law Group, Jamie Wright and Michael J. Yesk, for Plaintiff and Appellant. Kutak Rock and Steven M. Dailey, for Defendant and Respondent.
I.
INTRODUCTION
Plaintiff and appellant, Trina R. Patterson's home went into foreclosure after she defaulted on her mortgage. She sued defendant and respondent, Select Portfolio Servicing, Inc. (SPS), generally alleging that SPS unlawfully tried to collect on her debts and foreclose on her property. The trial court sustained SPS's demurrer without leave to amend, and Patterson timely appealed. We conclude the trial court properly sustained SPS's demurrer without leave to amend and therefore affirm the judgment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In 2006, Patterson obtained a mortgage for a property in Rancho Cucamonga (the Property). About a year later, she suffered financial hardship and could no longer afford her mortgage payments. In 2008, foreclosure proceedings on the Property were initiated. The proceedings continued through 2018.
In 2013, Patterson sued several defendants in federal court, asserting various claims related to the foreclosure proceedings. The district court dismissed Patterson's sole federal claim, declined to exercise supplemental jurisdiction over her remaining state law claims, and dismissed those claims without prejudice to Patterson filing them in state court.
In 2017, Patterson sued again in federal court for claims related to the foreclosure proceedings. The district court again dismissed Patterson's federal causes of action, declined to exercise supplemental jurisdiction over her state law claims, and dismissed those claims without prejudice to Patterson refiling them in state court.
In 2018, Patterson filed this case, alleging claims for violations of the Rosenthal Fair Debt Collection Practices Act (Civ. Code, §§ 1788 et seq.; Rosenthal Act), violations of Business and Professions Code sections 17200 et seq. (UCL), intentional infliction of emotional distress (IIED), and injunctive relief. The thrust of the claims in her operative First Amended Complaint is that SPS unlawfully tried to foreclose on the Property, unlawfully charged her improper fees, and unlawfully tried to collect debts she owed.
SPS demurred. The trial court found, among other things, that none of Patterson's causes of action stated a valid claim. The trial court therefore sustained SPS's demurrer without leave to amend. Patterson timely appealed.
III.
DISCUSSION
Patterson asserts the trial court erroneously sustained SPS's demurrer without leave to amend. We disagree.
At the outset, we reject SPS's argument that res judicata bars Patterson's claims. The doctrine of res judicata applies requires a final decision on the merits. A federal court's refusal to exercise supplemental jurisdiction over state law claims and dismissing those claims is not a final judgment on the merits as to those claims. (Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285.) (Id. at p. 286 ["A federal court's discretionary refusal to exercise pendent jurisdiction over a state claim does not bar further litigation of the state claim in state court."]; accord, Harris v. Grimes (2002) 104 Cal.App.4th 180, 188.)
A. Applicable Law and Standard of Review
"'A trial court's order sustaining a demurrer without leave to amend is reviewable for abuse of discretion "even though no request to amend [the] pleading was made." [Citation.] While it is the plaintiff's burden to show "that the trial court abused its discretion" and "show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading" [citation], a plaintiff can make "such a showing . . . for the first time to the reviewing court" [citation].'" (Mercury Ins. Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1072.) Accordingly, "[t]o meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action. [Citations.] Absent such a showing, the appellate court cannot assess whether or not the trial court abused its discretion by denying leave to amend." (Cantu v. Resolution Trust Corp. (1994) 4 Cal.App.4th 857, 890.)
"'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.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citation.]" (McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1206.)
"If the court sustained the demurrer without leave to amend, as here, we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]" (Shifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
On appeal from an order sustaining a demurrer without leave to amend, "[t]he plaintiff 'bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law' and 'must show the complaint alleges facts sufficient to establish every element of [the] cause of action.' [Citation.]" (Sui v. Price (2011) 196 Cal.App.4th 933, 938.) The plaintiff "must clearly and specifically set forth the 'applicable substantive law' . . . and the legal basis for amendment, i.e., the elements of the cause of action and authority for it . . . [and] must set forth factual allegations that sufficiently state all required elements of that cause of action." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.)
B. Rosenthal Act Claim
In her opening brief, Patterson argues she sufficiently alleged that SPS violated Civil Code § 1788.13(l), a provision of the Rosenthal Act. That statute prohibits "[a]ny communication by a licensed collection agency to a debtor demanding money unless the claim is actually assigned to the collection agency." (Civ. Code, § 1788.13, subd. (l).)
Patterson's claim fails because judicially noticeable documents refute her assertion that SPS was not entitled to try to collect on her debt. Those documents show that U.S. Bank, N.A. became the beneficiary of Patterson's mortgage loan, and that SPS serviced the loan on U.S. Bank N.A.'s behalf. In other words, these documents show that SPS was entitled to try to collect on the loan on behalf of U.S. Bank N.A. Patterson therefore failed to allege SPS violated Civil Code section 1788.13, subdivision (l). And because she has not tried to explain how SPS violated any other aspect of the Rosenthal Act, her claim under the Act fails. The trial court therefore did not err in sustaining SPS's demurrer to Patterson's Rosenthal Act claim without leave to amend.
We assume the truth of the facts as alleged unless contradicted by judicially noticeable facts. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) Relevant here, we may take judicial notice of "the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity." (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919.) We also may consider "documents attached to th[e] complaint as exhibits . . . . If recitals in those documents are inconsistent with the allegations of the complaint, the recitals take precedence, and we disregard allegations inconsistent with the unambiguous text of the documents." (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 714, fn. 6.)
Patterson argues the trial court improperly took judicial notice of filings in other matters. We need not address the issue because it is irrelevant to resolve the issues Patterson raises on appeal.
C. UCL Claim
To have standing to pursue a claim under the UCL, the plaintiff must show "injury in fact, i.e., economic injury." (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322, italics in original.) Here, the trial court impliedly found that Patterson failed to allege facts showing she had standing under the UCL because she did not "allege that she lost money or property" because of SPS's actions. Patterson does not address this finding in her opening brief, so she has failed to meet her burden on appeal of showing that the trial court erroneously sustained SPS's demurrer to her UCL claim without leave to amend. (See Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052 [appellant must "overcome all legal grounds on which the trial court sustained the demurrer" for appellate court to reverse order sustaining demurrer without leave to amend]; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879 [plaintiff bears burden on appeal of showing trial court erroneously sustained demurrer without leave to amend]; see also Antounian v. Louis Vuitton Malletier (2010) 189 Cal.App.4th 438, 455 ["Ordinarily, an argument not raised in the opening brief is forfeited on appeal."].)
D. IIED Claim
"'The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. [Citations.] . . . Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.)
Patterson failed to allege facts showing that SPS's conduct was "'extreme and outrageous.'" "At most, this was a creditor/debtor situation, whereby [SPS was] exercising [its] rights under the loan agreements. There are no allegations that in conducting the foreclosure proceedings [SPS] threatened, insulted, abused or humiliated [Patterson]. Thus, [Patterson] cannot state a claim for intentional infliction of emotional distress." (Wilson v. Hynek, supra, 207 Cal.App.4th at p. 1009.) As a result, the trial court did not err in sustaining SPS's demurrer to Patterson's IIED claim without leave to amend.
E. Injunctive Relief
Patterson's final claim is for injunctive relief. She does not mention the claim in her opening brief. She has therefore waived any argument that the trial court erroneously sustained SPS's demurrer without leave to amend to her injunctive relief claim. (Wilson v. Hynek, supra, 207 Cal.App.4th at p. 1009.) In any event, there is no cause of action for injunctive relief; an injunction is an equitable remedy, not an independent claim for relief. (McDowell v. Watson (1997) 59 Cal.App.4th 1155, 1159.) The trial court therefore properly sustained SPS's demurrer to Patterson's injunctive relief claim without leave to amend.
F. Temporary Restraining Order and Patterson's Motion
While SPS's demurrer was pending, Patterson filed an ex parte application and "Motion for Cancellation of Void Instrument." Judge Gilbert Ochoa denied the application, set Patterson's motion for a regularly noticed hearing in November 2018, and stayed the case. In accordance with Judge Ochoa's order, Patterson refiled her motion in October 2018.
Patterson's case was transferred to Judge John Tomberlin. Judge Tomberlin sustained SPS's demurrer without leave to amend, vacated the stay and the hearing on Patterson's motion, and entered judgment for SPS. Patterson contends Judge Tomberlin erred in vacating the stay imposed by Judge Ochoa and failing to consider her motion.
We disagree. "[A] judgment may not be set aside unless the challenged error results in a miscarriage of justice." (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 603.) So even if Judge Tomberlin improperly disregarded Judge Ochoa's stay order when ruling on SPS's demurrer, we cannot reverse the judgment unless Judge Tomberlin erroneously sustained SPS's demurrer without leave to amend. (See ibid.; People v. Edward D. Jones & Co. (2007) 154 Cal.App.4th 627, 634-635.) Because we conclude Judge Tomberlin did not do so, the judgment "must be affirmed regardless of any procedural error committed along the way." (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1313-1314.) And because Judge Tomberlin sustained SPS's demurrer without leave to amend, Patterson's motion was moot because the trial court could not have granted her any relief. (See Vernon v. State (2004) 116 Cal.App.4th 114, 120 [an issue is moot when no effective relief can be granted]; MaJor v. Miraverde Homeowners Assn. (1992) 7 Cal.App.4th 618, 623 [plaintiff's motion for injunction rendered moot by sustaining of demurrer to plaintiff's sole cause of action].)
IV.
DISPOSITION
The judgment is affirmed. SPS shall recover its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.