Perryv.First Am. Title Co.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONEOct 15, 2018
A152720 (Cal. Ct. App. Oct. 15, 2018)

A152720

10-15-2018

LEIGHTON LEE PERRY, Plaintiff and Appellant, v. FIRST AMERICAN TITLE COMPANY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSC15-01511) MEMORANDUM OPINION

This matter is properly decided by memorandum opinion pursuant to California Standards of Judicial Administration, section 8.1, subdivisions (1) and (3).

Appellant Leighton Lee Perry, who represented himself in the trial court and continues to do so on appeal, appeals from a judgment of dismissal following the sustaining of respondent First American Title Company's (First American) demurrer to his third amended complaint without leave to amend. We affirm.

This case has its origins in Perry's sale of residential property located in Martinez. After failing to stave off foreclosure through a "wrongful foreclosure" action, Perry found a buyer, and the parties opened escrow with First American. The buyer specified "review/approval of preliminary title report" was a contingency of sale.

The preliminary title report showed three liens on the property. According to Perry, his former wife died intestate and insolvent and, thus, no probate had been opened, and because no probate was opened, the judgment for support was never renewed. Perry therefore believed the judgment had "expired" and alleged he "resisted acknowledging" the obligation in order to preserve a statute of limitations defense to any enforcement action.

The apparent encumbrances triggered an e-mail exchange between Perry's real estate agent and the escrow officer. The agent told the officer Perry said items 9 and 10 did "not exist anymore" because they were "more than 10 years old" and his wife was deceased. The real estate agent thereafter inquired, "Will First American be able to give us clear title on these items?" The escrow officer replied she had already "requested releases" of the liens, explaining "[e]ven though the wife is deceased we still need a release for the spousal support judgment and release from her attorney for the lis pendens."

A week later, the buyer specified in the sale closing escrow instructions that he approved the contemplated title policy form "except" as to items 9, 10, and 11 in the preliminary report.

In the meantime, with respect to items 9 and 10, First American had contacted the attorney listed on the abstract of judgment, one Steven Stoltz (who Perry also named as a defendant in this case). Stoltz believed the judgment remained in full force and effect as a judgment made pursuant to the Family Code, and he provided a demand for satisfaction in the amount of $53,111.78, which included the amount due under the judgment, interest, and his attorney fees.

Perry alleges that following the e-mail exchange between his real estate agent and the escrow officer, he e-mailed his agent, stating, " 'Please make sure no money comes from me to bribe him [Stoltz] into submission. THAT is his sole mission.' " Perry then contacted Stoltz directly and "informed him" he had no authority to make any claim "for an expired judgment." Perry then prepared and sent to Stoltz "a memorandum" explaining why, according to Perry, the lis pendens and judgment were invalid. Perry also sent a copy of his memorandum to the escrow officer. Perry further alleges that he demanded that Stoltz produce proof of "probate authority." As Stoltz later explained in the instant case, it was his view he was the only person at the time attempting to act in the interests of the estate of Perry's former wife and her two heirs.

Perry then had a further e-mail exchange with the escrow officer about clearing title. He stated that had First American "read the legalese" it "might have noticed that since Stoltz is not an authorized personal representative or successor in interest, he IS a third party" and that "was the point of [Perry's] demanding copies of the required documents, which he apparently cannot produce." The escrow officer replied that Stoltz had "produced the documents" (that is, releases of the two encumbrances) and had signed off on them, and that she would receive them the next business day (which was a Monday). She further told Perry she had forwarded his communications questioning Stoltz's authority to Stoltz, and Stoltz had stated, "he does not have the authority to waive any claims arising out of the judgment." Perry then asked for any and all documents Stoltz had provided, except his demand letter, stating he wanted to review them before closing.

The following business day, the escrow officer received the signed documents from Stoltz, and e-mailed them to Perry. Perry responded that Stoltz may have sent them "before he received your email [attaching Perry's memorandum] outlining the legal requirements he failed to conform to, leading to his admission later in the day that he has no authority to establish the trust." Perry asked the officer to "make sure the underwriter has all the facts."

Later that afternoon, the escrow officer forwarded to Perry a communication she received from the senior underwriter. The underwriter stated: "It's not our position to argue the merits of the authority of the attorney. We require a Full Satisfaction of Judgment and a Withdrawal of Lis Pendens before we can close escrow. Said attorney in question prepared and recorded both the Support Judgment and Lis Pendens. [W]e therefore are comfortable accepting a Full Satisfaction of Judgment and Withdrawal of Lis Pendens from him. [¶] The attorney's position is that his demand on behalf of the estate be paid before he will provide the necessary documents. If Mr. Perry chooses to challenge this authority and refuses to authorize payment of the demand, we cannot close."

Later that day, the escrow officer inquired if Perry wanted to schedule the signing, commenting it looked like he would have "to pursue this outside of escrow." Perry agreed to close the following morning, and signed the "Estimated Settlement Statement" showing payment to Stoltz.

In his 29-page, third amended complaint, Perry made numerous accusations connected with the foregoing events. He repeatedly alleged the spousal support judgment had "expired" and that First American's refusal to recognize this was "more than mere obstinacy" but rose to the "level of negligence or malice." (Italics omitted.) He further claimed Stoltz had no authority to "enforce" the assertedly expired judgment and also disputed the amount of fees Stoltz was claiming.

Following two hearings, the trial court took First American's demurrer under submission and ultimately sustained it without leave to amend.

DISCUSSION

"We review an order sustaining a demurrer without leave to amend de novo [citation], assuming the truth of all properly pleaded facts inferred from the pleadings, and giving the complaint a reasonable interpretation by reading it as a whole and its parts in context. [Citation.] A complaint will be construed 'liberally . . . with a view to substantial justice between the parties.' [Citation.] '[I]f there is a reasonable possibility the defect in the complaint could be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend.' [Citations.] . . . The plaintiff has the burden of demonstrating how the complaint can be amended to state a valid cause of action." (Morales v. 22nd Dist. Agricultural Assn. (2016) 1 Cal.App.5th 504, 537.) "If the allegations in the complaint conflict with attached exhibits, we rely on and accept as true the contents and legal effect of the exhibits." (Chisom v. Board of Retirement of Fresno County Employees' Retired Assn. (2013) 218 Cal.App.4th 400, 410.) Furthermore, " 'we do not review the validity of the trial court's reasoning but only the propriety of the ruling itself.' " (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034-1035.)

Before turning to the specifics of Perry's various causes of action, we reiterate the oft-stated role of an escrow company. "The parameters of an escrow holder's agency and fiduciary obligations to the parties are set by the express provisions of the escrow instructions. Absent clear evidence of fraud, an escrow holder's relationship with the parties to the escrow is thus limited to complying strictly with the parties' instructions." (Greenwald et al., Cal Practice Guide: Real Property Transactions (The Rutter Group 2018) ¶ 4:581, p. 4-278.)

Perry acknowledges that the buyer's closing instructions required clearing title as to items 9 and 10 of the preliminary title report, and that he (Perry) ultimately authorized closing escrow pursuant to those instructions and, specifically, authorized payment to Stoltz and filing the releases Stoltz executed. However, Perry claims he did so under duress because "if escrow didn't close, the sale would be lost, with possible greater losses from the impending foreclosure sale." He complains that had First American "simply followed the business practice of its competitor" and treated the family court judgment as "expired," then "the Buyer's instruction to remove [the lis pendens and judgment lien] would not have been necessary," and he would have received "an additional $53k to purchase a replacement home." Perry has cited no authority, however, supporting his assertion that because another escrow company purportedly might have closed escrow without a release of the lis pendens and satisfaction of judgment, First American was required to do so despite the buyer's instructions to remove the encumbrances and provide clear title.

We now turn to the specifics of the causes of action Perry alleged.

Cause of Action for Conversion. "The elements of a conversion claim are: (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damage." (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) To begin with, Perry failed to allege any "wrongful" act by First American, as the attachments to his complaint demonstrate First American was instructed to remove clouds 9 and 10 on the title and it did so. Additionally, Perry cannot allege that First American caused him "damage." The title company did not require Perry to close. Rather, it gave Perry the choice of proceeding with an immediate closing with the documents from Stoltz its underwriter was prepared to accept, or delaying closing while Perry pursued his assertion that Stoltz had no authority to protect the interests of Perry's deceased former wife's estate and the interests of her heirs. Perry chose to proceed with an immediate close. That he felt pressured to do so because he was facing foreclosure is not an issue that was within First American's realm of concern. Rather, First American's sole concern was handling the immediate escrow in accordance with the instructions given to it. (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711 [" '[A]n escrow holder must comply strictly with the instructions of the parties. [Citations.]' [Citation.] On the other hand, an escrow holder 'has no general duty to police the affairs of its depositors'; rather, an escrow holder's obligations are 'limited to faithful compliance with [the depositors'] instructions.' "].) Given Perry's failure to plead these two elements, we need not, and do not, consider whether he adequately alleged any of the other requisite elements of a claim for conversion.

While Perry submitted an additional memorandum in the trial court on "duress" and continues to assert he was under extreme "duress" during the escrow, this does not change the fact his buyer submitted sale closing instructions that required First American to remove the clouds on title due to items 9 and 10 in the preliminary title report. Furthermore, Perry's duress was, according to his own allegations, caused because he was facing foreclosure if the sale did not close and he believed he would recoup more from an immediate sale than he would from a foreclosure sale. While Perry no doubt faced a worrisome situation, this was not duress of First American's making.

Perry's reliance on Penal Code section 115, which deals with offering false or forged instruments for filing, is misplaced. First American did not offer any "false" or "forged" instrument for filing.

Cause of Action for Fraud. "The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage." (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) Each element of fraud must be pled with specificity. (See Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 837-838.)

To begin with, Perry failed to allege any misrepresentation. Rather, he alleged that "First American stated that 'We require a Full Satisfaction of Judgment and a Withdrawal of Lis Pendens before we can close escrow. . . . If Mr. Perry chooses to challenge this authority [of Stoltz] and refuses to authorize payment of the demand, we cannot close.' " None of Perry's allegations suggest this statement was false. On the contrary, the buyer's escrow instructions required clear title, and First American told Perry that its underwriter was prepared to accept releases by Stoltz, and if Perry declined to authorize this, escrow would not close as scheduled. Perry also cannot allege reliance. On the contrary, his own allegations and the exhibits attached to his complaint show that he was aware the judgment lien and lis pendens were old and that he questioned Stoltz's authority to clear items 9 and 10 on the preliminary title report. He nevertheless chose to proceed with the close of escrow. Given Perry's failure to plead these two elements, we need not, and do not, consider whether he adequately alleged any other requisite elements of a fraud claim.

Cause of Action for Financial Elder Abuse. As pertinent here, the requisite elements of a cause of action for financial elder abuse require allegations that First American took, obtained, or retained Perry's real property for "a wrongful use or with intent to defraud, or both." (Welf. & Inst. Code, § 15610.30, subd. (a)(2).) However, as we have explained above, Perry has failed to allege that First American's acts were wrongful. Rather, it complied with its legal obligations as an escrow company and closed escrow in accordance with the parties' instructions.

Cause of Action for Negligence. "The elements of a cause of action for negligence are: the 'defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury.' " (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278.) Again, as we have discussed, Perry failed to allege either a breach of First American's duty of care as an escrow holder or that Perry's alleged damages were caused by First American. Rather, First American complied with its duty to abide by the escrow instructions given to it. Nor did it require Perry to close, but rather, gave him the choice between immediately closing with the documents Stoltz provided or delaying closing while he pursued claims against Stoltz. Given Perry's failure to plead these two elements, we need not, and do not, consider whether he adequately alleged any other requisite elements of a negligence cause of action.

Cause of Action for Violation of the UCL. Perry acknowledges his UCL cause of action is entirely "derivative" of his other causes of action. Since those claims fail for the reasons we have discussed, so too does Perry's UCL claim. (See Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1474 [when fraud claims fail for lack of specificity, UCL claim based on fraud also fails].)

Cause of Action for Declaratory Relief. Declaratory relief is an equitable remedy. It is not an independent cause of action. (Artus v. Gamercy Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 930.) Accordingly, given that Perry has failed to allege any substantive claim to which he could append a request for declaratory relief, this "cause of action" necessarily fails, as well.

Perry makes no separate argument that the trial court abused its discretion in denying him leave to file a fourth amended complaint. Nor has he offered any discussion of or authorities in support of such point. He has therefore waived the issue on appeal and we do not address it. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 ["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."]; Morales v. 22nd Dist. Agricultural Assn., supra, 1 Cal.App.5th at p. 537 ["The plaintiff has the burden of demonstrating how the complaint can be amended to state a valid cause of action."].)

Statement of Decision. In addition to the other issues raised, Perry also contends the trial court committed reversible error in failing to issue a statement of decision. A statement of decision is not required upon the sustaining of a demurrer. Code of Civil Procedure section 632, which Perry cites, applies only to trials. Code of Civil Procedure section 472d applies to orders sustaining demurrers, and it provides in pertinent part, "Whenever a demurrer in any action or proceeding is sustained, the court shall include in its decision or order a statement of the specific ground or grounds upon which the decision or order is based which may be by reference to appropriate pages and paragraphs of the demurrer." (Code Civ. Proc., § 472d.) Here, the court stated its reasons in its adopted tentative ruling, which was more than sufficient under section 472d. (See Marin Assn. of Public Employees v. Marin County Employees' Retirement Assn. (2016) 2 Cal.App.5th 674, 691-692, review granted Nov. 22, 2016, S237400.) Furthermore, even if Code of Civil Procedure section 632 applied to orders sustaining demurrers, that section states, in pertinent part, that a request for a statement of decision "must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision." Here, Perry asserts he made a request for a statement of decision on March 29, 2017. However, that request pertained to First American's demurrer to his second amended complaint. The record does not include any request for a statement of decision in connection with First American's demurrer to his third amended complaint, which is the operative pleading at issue here.

Motion for New Trial. On August 4, 2017, the trial court issued a written order sustaining First American's demurrer without leave to amend. The register of actions indicates the matter was set for a further hearing on September 29 to "check for order/judgment if [sic] favor of Defendant." On October 4, the court signed a written "Judgment Of Dismissal As To Defendant First American Title Company," which was filed October 5. The judgment recited that it was being entered pursuant to the court's earlier order adopting its tentative decision and sustaining First American's demurrer without leave to amend.

In the meantime, on August 9, five days after the trial court's written order sustaining First American's demurrer without leave to amend, Perry filed a notice of intent to move for a new trial. (Code Civ. Proc., § 659.) Less than two weeks later, in a minute order dated August 18, the court acknowledged the filing of Perry's notice of intent, but stated there "was never a trial in this case a Motion for New Trial is improper." Perry nevertheless filed his memorandum in support of his new trial motion that same day, on the first page of which he specified "Expiration Date: October 3, 2017." The trial court did not reject the memorandum and set the matter for hearing on October 4.

Perry claims this minute order was issued in response to an e-mail he sent to the court complaining that the October 4 hearing date was outside the statutory time.

Perry maintains the trial court made two procedural errors—in stating a motion for new trial was improper because there had been "no trial," and in setting the motion for hearing "past the 60-day limit" set forth in Code of Civil Procedure section 660.

Perry is correct only as to his first procedural point. A "new trial" motion can be used to challenge a judgment of dismissal following the sustaining of a demurrer without leave to amend. (E.g., 20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1261.)

While he is also correct that a trial court must act on a motion for new trial within the statutory time frame (Code Civ. Proc., § 660), he is incorrect in stating the trial court set his motion for hearing past the statutory period. Code of Civil Procedure section 660 ties two of its three statutory time periods to the "entry of judgment," one where the clerk serves "notice of entry of judgment" in accordance with Code of Civil Procedure section 664.5 and one where any party serves "notice of the entry of judgment" on the moving party. (Code Civ. Proc., § 660.) Neither of these provisions was applicable because the trial court had not yet entered "judgment"; indeed, "judgment" was not entered until October 5. Accordingly, the third statutory period was applicable. That time period specifies that the trial court's power to act on a new trial motion expires "60 days after filing of the first notice of intention to move for a new trial." (Code Civ. Proc., § 660; Fischer v. First Internat. Bank (2003) 109 Cal.App.4th 1433, 1451 ["where there has been no notice of entry of judgment, 'section 660 unambiguously provides that the filing of the first notice of intention to move for a new trial is the operative event for determining the 60-day period' "].) Accordingly, the trial court's power to rule on Perry's motion expired 60 days after August 9, namely on October 10. Thus, the trial court did not improperly set Perry's new trial motion outside the applicable 60-day statutory period.

We note that First American is likewise incorrect in agreeing with Perry that the court set his motion for hearing beyond the statutory time limit.

It is apparent that neither Perry nor counsel for First American, recognized the significant distinction between an "order" that merely sustains a demurrer without leave to amend (but does not dismiss the case) and a "judgment" of dismissal. (E.g., Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306, 1310, fn. 2; Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1590, fn. 4.)

Sixty days from August 9, 2017 (the day Perry filed his notice of intent) was October 8. However, that was a Sunday and October 9 was a holiday (Columbus Day), so the 60-day time limit would have fallen on October 10.

Although he is the appellant, Perry has not provided any record as to what transpired at the October 4, 2017, hearing on his new trial motion (nor has First American). From what we can tell based on an e-mail Perry has included in his appendix, he apparently informed the court clerk that he would not appear at the scheduled hearing because the court would not "have jurisdiction to hold such hearing." And apparently counsel for First American, sharing Perry's erroneous view the trial court could no longer rule on the motion, did not appear either. However, as we have explained, the trial court set the hearing for timely disposition and had until October 10 to rule on his motion. We can also discern from the trial court's publicly accessible records that the case was, indeed, called on October 4 and the court denied Perry's motion. However, there is no clue in these records as to the court's reasoning or the basis of its ruling.

We take judicial notice of the Contra Costa County Superior Court's register of actions in the below proceeding (case No. MSC15-01511). (See Evid. Code, § 452, subd. (d)(1).) Perry states in his opening brief a hearing occurred but that neither party attended. --------

Since Perry has failed to provide an adequate record of the challenged proceedings, we must presume the trial court correctly exercised its discretion in denying his new trial motion and, on that basis, affirm. (See Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 ["[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [appellant]"]; Price v. Giles (1987) 196 Cal.App.3d 1469, 1472 [trial court is afforded wide discretion and its ruling on a motion for new trial " ' "will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears" ' "].)

DISPOSITION

The judgment of dismissal is affirmed. Respondent to recover costs on appeal.

/s/_________

Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.