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A148156 (Cal. Ct. App. Sep. 10, 2018)



FAYE MYRETTE-CROSLEY, Plaintiff and Appellant, v. ONEWEST BANK, FSB, et al., Defendants and Respondents.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. CIVMSC15-01688)

After sustaining a demurrer without leave to amend, the court entered an order dismissing with prejudice plaintiff Faye Myrette-Crosley's complaint for damages arising out of the threatened foreclosure of her home mortgage by defendants OneWest Bank, FSB (OneWest) and Ocwen Loan Servicing, LLC. (Ocwen). On appeal, plaintiff asserts numerous procedural grounds for reversal, but fails to adequately assert any argument addressing the merits of the demurrer or the sufficiency of her proposed amended complaint to cure those defects. We find no merit in plaintiff's procedural arguments and, particularly since this is plaintiff's fourth lawsuit against these defendants involving the mortgage, we find no error in the court's order sustaining the demurrer without leave to amend.

Factual and Procedural Background

In November 2007, plaintiff obtained a $495,000 loan to refinance the debt on her home. By January 2009, plaintiff was in default on her loan allegedly as the result of unforeseen financial hardship. In July 2012, plaintiff filed an action against OneWest and others "to postpone the looming trustee sale" of the property. The action was dismissed in February 2012, when OneWest offered a "trial period plan" for repayment of the mortgage.

The loan was not originated by a defendant and was assigned multiple times before being assigned to defendants.

In April 2012, OneWest delivered to plaintiff's counsel a "Final Home Affordable Modification Agreement" with instructions that plaintiff execute and return the agreement, which she alleges she did. The agreement plaintiff signed, however, incorrectly named plaintiff as "Faye Crosley" rather than "Faye Myrette-Crosley." Plaintiff alleges she did not receive the corrected agreement OneWest purportedly sent to her attorney for execution.

In August 2012, OneWest rejected plaintiff's monthly installment and demanded payment of over $170,000. OneWest informed plaintiff that it would not offer her a loan modification due to her failure to execute the corrected permanent Final Home Affordable Modification Agreement. A letter sent by OneWest to plaintiff in February 2013 explains, "Despite our significant efforts to obtain a properly signed copy of the permanent modification agreement, we were unable to complete the modification of your loan because you did not return a properly executed copy of the agreement. According to our records, we contacted you on six (6) occasions by mail or email between October 19, 2012 and December 21, 2012, to obtain the properly signed agreement. The modification agreement is now null and void, and standard servicing of the loan will commence." At that time, plaintiff's loan had a past due balance of $168,549.38.

In August 2013, a notice of default and election to sell was recorded. In November 2013, plaintiff filed an action against OneWest and Ocwen. On June 16, 2015, while a demurrer to her third amended complaint was pending, plaintiff dismissed that lawsuit without prejudice.

On August 28, 2015, a notice of trustee's sale was recorded, indicating that plaintiff owed $741,401.89 on the loan and setting the trustee's sale for September 28, 2015.

On September 9, 2015, plaintiff filed her complaint in the present action alleging causes of action for breach of security instrument; fraud; negligence; violation of the security first rule; specific performance; wrongful foreclosure; elder abuse; civil rights violation; violation of Business and Professions Code section 17200; intentional infliction of emotional distress; declaratory relief; slander of title; and quiet title. The complaint alleges that defendants "violated numerous California laws, breached various contracts, and repeatedly and intentionally failed to honor their agreements with the plaintiff as borrower, or to fulfill their promises, negligently or intentionally, . . . to plaintiff."

On October 28, 2015, plaintiff filed a motion for a preliminary injunction to stop the foreclosure of her home. The motion was denied in January 2016 and the property was sold shortly thereafter. In early January, before the trustee's sale, plaintiff filed a Chapter 7 bankruptcy petition.

In the meantime, on November 9, 2015, defendants filed a general demurrer to the complaint. By way of introduction, defendants argued that the alleged loan modification agreement was not enforceable and that Ocwen, the current assignee of the deed of trust, had authority to foreclose under the original deed of trust. The moving papers asserted specific grounds for granting the demurrer as to each cause of action. The moving papers also noted that "this is the fourth lawsuit plaintiff has filed regarding this loan and property since 2009." On this basis, defendants argued the demurrer should be sustained without leave to amend.

A hearing on the demurrer was scheduled for February 19, 2016. Under Code Civil Procedure section 1005, subdivision (b), plaintiff's opposition to the demurrer was due no later than February 5, 2016, nine court days before the scheduled February 19 hearing. Plaintiff did not file an opposition to the demurrer. Instead, on February 9, 2016, she filed a first amended complaint. The amended complaint largely restates the allegations of the original complaint but also asserts two new causes of action based on the allegation that the foreclosure was in violation of an automatic bankruptcy stay.

All statutory references are to the Code of Civil Procedure unless otherwise noted.

On February 18, 2016, the trial court issued a tentative ruling stating: "For all of the reasons stated in the moving papers, the unopposed demurrer is sustained without leave to amend." After a hearing the following day, the trial court struck plaintiff's amended complaint, as having been filed without the necessary leave of court, and adopted the tentative ruling sustaining the demurrer without leave to amend. Thereafter, the trial court entered an order of dismissal in favor of defendants. Plaintiff timely filed a notice of appeal.

Plaintiff elected to proceed on appeal without a transcript of this hearing.


1. The trial court did not err in ruling on the demurrer.

Plaintiff argues that the trial court was required to vacate the hearing on the demurrer because defendants failed to comply with the meet and confer requirement in section 430.41 and because pursuant to section 472 plaintiff filed an amended complaint prior to the hearing.

Section 430.41, subdivision (a) requires that "[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." As defendants note, this provision was not effective until January 1, 2016, almost two months after defendants filed their demurrer. (§ 430.41, added by Stats. 2015, ch. 418, § 1, eff. Jan. 1, 2016.) Accordingly, the meet and confer requirement was not applicable.

Plaintiff's argument that the filing of her amended complaint mooted the hearing is similarly without merit. Plaintiff relies on Barton v. Khan (2007) 157 Cal.App.4th 1216, 1221, in which the court held that "a plaintiff has a right to amend his or her pleading . . . up to the time of the hearing on the demurrer." (See also JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477 [If an amended pleading has been filed properly, it supersedes the original pleading, which in turn ceases to serve any pleading function and moots any motion directed at a prior pleading.].)

Barton v. Khan, supra, 157 Cal.App.4th 1216, however, interpreted an earlier version of section 472 which read, "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party . . . ." (Enacted in 1872; amended by Stats. 1983, ch. 142, § 4.) Effective January 1, 2016, section 472 was amended in relevant part to read, "A party may amend its pleading once without leave of the court at any time before the answer or demurrer is filed, or after a demurrer is filed but before the demurrer is heard if the amended complaint, cross-complaint, or answer is filed and served no later than the date for filing an opposition to the demurrer." (Stats. 2015, ch. 418, § 2, eff. Jan. 1, 2016.) As noted above, the amended complaint was filed less than nine court days before the hearing on the demurrer, after the date on which an opposition to the demurrer was required to be filed.

Defendants argue the trial court properly determined that plaintiff's amended complaint was untimely. Plaintiff contends the applicable version of section 472 was the version in effect when the demurrer was filed. She argues, "If the 'meet and confer' requirement did not apply when respondents filed their demurrer, then neither did the abolition of a party's right to amend a pleading apply, in the face of a pending demurrer's hearing."

In In re Vaccine Cases (2005) 134 Cal.App.4th 438, 454-457, the court held that a statute addressing procedures to be utilized in legal proceedings not yet concluded operates prospectively for acts to be performed after the effective date of the statute. At issue in that case was an amendment to a provision of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.) regarding the notice to be given to enumerated public entities 60 days before filing the complaint. The amendment, which became effective after plaintiffs had given notice but before they filed their complaint, added the requirement that the notice contain a certificate of merit. (In re Vaccine Cases, supra, at pp. 454-457.) In affirming the order sustaining the demurrers to the complaints on the ground that the notice was defective, the appellate court concluded that the amended statute governed the filing of the complaints. (Ibid.) The court stated: " 'A statute addressing procedures to be utilized in legal proceedings not yet concluded operates prospectively for acts to be performed after the effective date of the statute.' [Citation.] . . . Parties do not have vested rights in existing rules of procedure." (Id. at p. 455, quoting Florence Western Medical Clinic v. Bonta (2000) 77 Cal.App.4th 493, 503.)

In view of In re Vaccine Cases, the trial court did not err in striking the amended complaint as untimely and by ruling on defendants' demurrer. Contrary to plaintiff's suggestion, there is nothing unfair about refusing to impose retroactively the obligation to meet and confer on a demurrer that has already been filed but applying prospectively the requirement that an amended pleading be filed at least nine court days before the hearing on a demurrer, particularly in this case, where plaintiff had ample time to comply with the new requirement.

2. The court did not err in sustaining the demurrer without leave to amend.

" '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.' " (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043, quoting Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.)

On appeal, a plaintiff "bears the burden of demonstrating that the trial court erred." (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879.) To establish that a cause of action has been adequately pled, a plaintiff must demonstrate he or she has alleged "facts sufficient to establish every element of that cause of action." (Ibid.) In challenging the denial of leave to amend, plaintiff must " 'demonstrate the manner in which the complaint might be amended.' " (Gutkin v. Univ. of So. California (2002) 101 Cal.App.4th 967, 976.)

Plaintiff's half-hearted attempt to establish the legal sufficiency of her original complaint is not persuasive. She writes, "If trial court only evaluated original complaint objectively and [took] into account that defendants accepted then refused plaintiff's payments under permanent modification agreement, and breached its own agreement without any explanation whatsoever, then foreclosed on the property, then this court will recognize that the demurrer should not have been sustained even without the plaintiff's amendment." In support, she offers five pages of argument, undivided by cause of action, with limited citation to authority or the record. As best we can tell, plaintiff has not included any argument regarding her causes of action for fraud; negligence; violation of the security first rule; specific performance; violation of Business and Professions Code section 17200; intentional infliction of emotional distress; declaratory relief; or quiet title. To the extent she has included argument that is directed to the remaining causes of action, it is conclusory and fails to respond to the grounds on which the demurrer was sustained. Accordingly, plaintiff has waived any challenge to the sustaining of the demurrer. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" ' "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." ' "].)

Plaintiff's primary argument is that the court abused its discretion in denying leave to amend. Citing McDonald v. Superior Court (1986) 180 Cal.App.3d 297, she argues that failure to grant her leave to amend was a per se abuse of discretion because the demurrer was sustained to her original complaint. In McDonald, the court held, "Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not. Liberality in permitting amendment is the rule, not only where a complaint is defective as to form but also where it is deficient in substance, if a fair prior opportunity to correct the substantive defect has not been given." (Id. at pp. 303-304, italics added.) While plaintiff is correct that the demurrer was sustained to her original complaint in this action, the record does not support her contention that she has been deprived of a fair opportunity to present her claims. Plaintiff's proposed amended complaint acknowledges that this is the fourth lawsuit she has filed against OneWest and/or Ocwen challenging the manner in which these defendants have handled her mortgage. She alleges that the present action "follows the events after February 24, 2012, follows an invalid foreclosure process of plaintiff's property, with intentional breach of a loan modification agreement/contract by OneWest, recordation of invalid notice of default and foreclosure related documents." As noted, however, plaintiff's last complaint against defendants was filed in November 2013, after the loan modification agreement was rejected and after the notice of default was recorded, and was dismissed in June 2015. The only event occurring after the dismissal of that complaint was the filing of the notice of trustee's sale on August 28, 2015.

Moreover, in her appellate brief plaintiff makes no attempt to suggest what allegations she might add to overcome the deficiencies for which the demurrer to the original complaint was sustained. Notably, she makes no attempt to demonstrate how her rejected amended complaint cured any of those defects. While the rejected amended complaint added the allegation that the foreclosure sale violated a bankruptcy stay, defendants correctly point out that any claim in this regard could be asserted only by the bankruptcy trustee, who held all interest in plaintiff's assets at the time of the foreclosure. (11 U.S.C. §§ 348, subd. (f)(2), 554.) Under these circumstances, it was not an abuse of discretion to deny plaintiff the ability to file an amended complaint.

In her reply, plaintiff asserts that the bankruptcy petition was dismissed on March 7, 2016, when the interest in her assets and causes of action reverted to her. But by that date this action had already been dismissed and the subsequent events have no bearing on the correctness of the trial court's rulings based on the matters then before it.


The order dismissing the complaint with prejudice is affirmed.

Pollak, J. We concur: Siggins, P.J.
Ross, J.

Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------