Beriones v. IMH Assets Corp. CA4/1 ( 2021 )

Filed 2/23/21 Beriones v. IMH Assets Corp. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BABETTE BERIONES, D076507
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00063881-CU-OR-NC)
IMH ASSETS CORP. et al.,
ORDER MODIFYING OPINION
Defendants and Respondents. AND DENYING REHEARING
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on February 4, 2021, be
modified as follows:
On page 26, the disposition paragraph beginning, “The judgment is
affirmed,” is deleted and the following paragraph is inserted in its place:
The judgment is affirmed. The parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
There is no change in the judgment.
Appellant’s petition for rehearing is denied.
HUFFMAN, Acting P. J.
Copies to: All parties
2
Filed 2/4/21 Beriones v. IMH Assets Corp. CA4/1 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BABETTE BERIONES, D076507
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2018-
00063881-CU-OR-NC)
IMH ASSETS CORP. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy M. Casserly, Judge. Affirmed.
Babette T. Beriones, in pro. per., for Plaintiff and Appellant.
Schiffer & Buus, Eric M. Schiffer, and Libby Wong for Defendants and
Respondents IMH Assets Corp. and IMPAC Funding Corp.
Severson & Werson, Jan T. Chilton, Kerry W. Franich, and Robert
James Gandy for Defendants and Respondents Bank of America, N.A.,
Mortgage Electronic Registration Systems, Inc., and Deutsche Bank National
Trust Co.
Burke, Williams & Sorenson, Richard J. Reynolds, and Fabio R.
Cabezas for Defendant and Respondent MTC Financial Inc., d/b/a Trustee
Corps.
Hilbert & Satterly, John Forest Hilbert, and Joseph A. LeVota for
Defendants and Respondents Anthony Peter Vasilas a.k.a. Raymond Joseph
Vasilas and Jessie Menzel.
Loftin|Bedell, Linda Sue Loftin, and Patrick R. Tira for Defendant and
Respondent James Lowell Anthony, LLC.
After losing her home in foreclosure, Babette Beriones sued Bank of
America, N.A. (Bank of America), Mortgage Electronic Registration Systems,
Inc. (MERS), Deutsche Bank National Trust Co. (Deutsche Bank), IMH
Assets Corp. (IMH), IMPAC Funding Corporation (IMPAC), Peter Vasilas
and Jessie Menzel, MTC Financial Inc. doing business as Trustee Corps
(Trustee Corps), James Lowell Anthony, LLC (JLA) (collectively,
Respondents) and others asserting causes of action for wrongful foreclosure,
fraud, intentional or negligent infliction of emotional distress, slander of title
and quiet title. Beriones claimed the parties that originated her mortgage
did not comply with the Truth in Lending Act (TILA) (U.S.C. § 1601 et seq.)
and the Real Estate Settlement Procedures Act (RESPA) (12 U.S.C. §§ 2601-
2617), and she further claimed the foreclosing entities could not establish
they properly foreclosed on her home.
Her action was removed to federal court, where the district court
dismissed the federal law claims as time-barred. The district court remanded
the remaining claims to state court.
Respondents filed demurrers. Beriones opposed one demurrer on the
merits and filed papers contending all demurrers were untimely. At a
hearing, the trial court rejected Beriones’s contention that the demurrers
2
were untimely, and refused to grant Beriones additional time to respond.
The trial court ultimately concluded Beriones’s complaint did not state any
valid cause of action and sustained Respondents’ demurrers without leave to
amend. Judgments were entered in Respondents’ favor.
On appeal, Beriones contends the trial court improperly sustained the
demurrers, which she claims were “time-barred,” and further contends the
trial court erred when it declined to allow her additional time to respond to
the demurrers on the merits. We conclude the demurrers were timely filed
under Code of Civil Procedure section 430.90,1 the trial court properly
sustained the demurrers, and Beriones has not established any grounds for
reversing the court’s rulings. Accordingly, we affirm the judgment.
FACTS
A. Background
In 2004, Babette Beriones obtained a mortgage of $452,000.00 on her
home in Carlsbad, secured by a deed of trust which was signed by Beriones
and recorded with the San Diego County Recorder’s Office. The deed of trust
identified the trustee as Diversified Title Insurance Company and provided
that “[t]he beneficiary of this Security Instrument is MERS (solely as
nominee for Lender and Lender’s successors and assigns) and the successors
and assigns of MERS.” It further provided that “MERS (as nominee for
Lender and Lender’s successors and assigns) has the right . . . to foreclose
and sell the Property; and to take any action required of Lender . . . .”
In 2012, MERS assigned the deed of trust to Deutsche Bank as
“indenture trustee under the indenture relating to IMH Assets Corp.,
1 Unless otherwise indicated, statutory references are to the Code of
Civil Procedure.
3
collateralized asset-backed bonds, Series 2004-4.” The assignment was
recorded with the San Diego County Recorder’s Office.
In April 2014, Deutsche Bank substituted a new trustee, Trustee
Corps, and recorded notice thereof. Trustee Corps then recorded a notice of
default and election to sell.
In August 2014, a notice of trustee’s sale was recorded, indicating a
foreclosure sale of the property would take place on September 10.
Apparently, that foreclosure sale did not occur. A new notice of trustee’s sale
recorded in November 2014 advised a foreclosure sale would occur on
December 16. At that sale, the property was sold to Deutsche Bank as the
highest bidder for $753,267.51. A trustee’s deed upon sale reflecting that sale
was recorded on December 19, 2014.
In May 2015, a grant deed was recorded reflecting that Deutsche Bank
sold the property “for a valuable consideration” to JLA.
In May 2016, another grant deed was recorded reflecting that JLA sold
the property “for a valuable consideration” to Vasilas and Menzel.
B. Prior Unlawful Detainer Proceedings and Related Lawsuit
In September 2015, JLA obtained a judgment of unlawful detainer
against Beriones and another individual (a resident in the home who is not
involved in this appeal) (James Lowell Anthony LLC v. Beriones (Super. Ct.
San Diego County, 2015, No. 37-2015-00026337-CL-UD-NC)). Around that
same time, Beriones sued JLA and certain individuals (not involved in this
appeal), asserting causes of action including wrongful eviction and abuse of
legal process (Beriones v. James Lowell Anthony LLC (Super. Ct. San Diego
County, 2015, No. 37-2015-00029334-CU-OR-NC)). Beriones’s civil suit was
dismissed in 2015.
4
In July 2016, Beriones obtained a reversal of the unlawful detainer
judgment on appeal to the appellate division of the superior court (Beriones v.
James Lowell Anthony LLC (Super. Ct. San Diego County, 2016, No. 37-2015-
00200178-CL-UD-CTL)). The appellate division ruled that JLA’s evidence
was insufficient to support an unlawful detainer judgment for possession
because the only evidence presented was a trustee’s deed upon sale, with no
evidence the trustee was authorized to conduct the sale. The court further
ruled that JLA—a limited liability company—could not rely on allegations in
its verified complaint as evidence because the verification was made by an
agent of the business. (§ 446, subd. (a) [when a verification is made by an
officer of a corporation “the pleadings shall not . . . be considered as an
affidavit or declaration establishing the facts therein alleged”].)
In subsequent proceedings in the unlawful detainer proceeding, the
trial court refused to restore title in the property to Beriones, finding “[t]here
was insufficient evidence presented at the hearing showing [Beriones]
possess[es] valid title to, or a valid ownership interest in the subject
property.” The court further found “[t]here was no evidence presented
showing Deutsche Bank’s foreclosure on the property for nonpayment of
mortgage payments . . . was improper.” The court awarded Beriones
restitution of $6,600.00 (three months of the property’s fair market rental
value). Despite Beriones’s attempts to attack this order, it was upheld on
appeal to the appellate division of the superior court.
In 2019, Beriones moved to set aside the judgment of dismissal in her
wrongful eviction case; it appears her motion in that case was still pending
when the trial court ruled on Respondents’ demurrers in the instant case.
5
C. Current Lawsuit
1. Complaint
In December 2018, Beriones initiated this action, challenging her
original mortgage loan and the 2014 foreclosure.2 She named the following
entities as defendants, alleging they participated in an “imperfect
securitization” scheme in various ways: IMH, as loan “[o]riginator”;3 IMPAC,
as “[m]aster [s]ervicer for [the] [s]ecuritized [t]rust”; Bank of America, as a
subsequent loan servicer; MERS, as nominee and beneficiary under the deed
of trust; Deutsche Bank, as subsequent beneficiary and foreclosing bank;
Trustee Corps, as subsequent trustee; JLA, as first third-party purchaser;
and Vasilas and Menzel, as second third-party purchasers.
In her complaint, Beriones acknowledged obtaining a $452,000.00
mortgage loan against her residence in 2004, secured by a deed of trust.
2 Beriones included a file-stamped copy of her first amended complaint
as an “exhibit” to her reply brief on appeal. Pursuant to our order filed
October 30, 2019 partially granting Beriones’s request to augment the record,
we deem the first amended complaint to be part of the record on appeal.
(Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3
(Vons).) Alternatively, we take judicial notice of the first amended complaint.
(Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 719, fn. 4 [“ ‘Matters that
cannot be brought before the appellate court through the record on
appeal . . . may still be considered on appeal by judicial notice.’ ”].)
3 In her opening brief on appeal, Beriones describes IMH and IMPAC as
the original loan servicers. The deed of trust identified Decision One
Mortgage Company, LLC as the original lender, Diversified Title Insurance
Company as the trustee, and MERS as the beneficiary. Decision One
Mortgage Company and Diversified Title Insurance Company were not
named as defendants in Beriones’s complaint. Recorded documents indicate
that, in 2012, MERS assigned the deed of trust to Deutsche Bank as
“indenture trustee under the indenture relating to IMH Assets Corp.,
collateralized asset-backed bonds, Series 2004-4.”
6
Beriones alleged her loan was securitized under a Pooling and Servicing
Agreement (PSA) and transferred into the Series 2004-4 Trust, a common
law trust organized under New York law, of which Deutsche Bank was
trustee. She alleged the PSA requires “a complete and unbroken chain of
transfers/assignments” and that Respondents “cannot prove a complete and
unbroken chain of assignments.” She claimed that the PSA required the
“[n]ote or [d]eed of [t]rust . . . to be endorsed and assigned, or transferred to
the Trust,” and further claimed her promissory note was not properly
transferred to Deutsche Bank and Wilmington Trust, who acted as trustees.4
She also alleged that MERS, as nominee for the original lender, lacked
authority “to assign [Beriones’s] mortgage, making any assignment from
MERS defective.” She claimed the foreclosure sale was thus invalid, made in
violation of California law, and contrary to the PSA’s express terms.
Beriones asserted ten causes of action, without delineating which
causes were directed at which defendants: (1) “[l]ack of [s]tanding/[w]rongful
[f]oreclosure,” (2) fraud in the concealment, (3) fraud in the inducement,
(4) intentional infliction of emotional distress, (5) slander of title, (6) quiet
title, (7) declaratory relief, (8) violations of the TILA and the Home
Ownership and Equity Protection Act (15 U.S.C. § 1601, et seq.),
(9) violations of RESPA, and (10) rescission. Through her lawsuit, she sought
a declaration that she was entitled to title and exclusive possession of the
property, as well as money damages.
2. Removal
In February 2019, Beriones’s complaint was removed to the United
States District Court for the Southern District of California (Beriones v. IMH
4 Beriones named Wilmington Trust as a defendant in her complaint;
Wilmington Trust is not a party to this appeal.
7
Asset Corp. (S.D.Cal., No. 19-cv-00301-CAB-NLS)). In an order filed on
April 16, 2019, the district court ruled the TILA and RESPA claims were
time-barred. The district court dismissed with prejudice the federal law
claims, declined to exercise supplemental jurisdiction over the remaining
state law claims, and remanded the case back to state court.
Respondents filed a notice of order remanding the case to state court on
May 22, 2019.
3. Demurrers
Between May 29 and June 20, Respondents filed demurrers, arguing
Beriones’s complaint failed to state a viable cause of action, there was no
reasonable possibility she could cure the complaint’s defects through
amendment, and leave to amend was unwarranted.5 Respondents also filed
requests for judicial notice of the recorded deed and documents reflecting
Beriones’s residential mortgage and the nonjudicial foreclosure of her home.
(Evid. Code, §§ 452, 453; see Poseidon Development, Inc. v. Woodland Lane
Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-1118 [taking judicial notice
of recorded documents].)
Beriones filed an “[o]pposition to [n]oticed [m]otion and [s]upporting
[d]eclarations” as well as a request for judicial notice of her own on June 28.
These documents do not appear in the record.6 According to Bank of
5 Bank of America, MERS, and Deutsche Bank National Trust Co. filed a
demurrer on May 29, 2019. IMH and IMPAC filed a demurrer on June 5.
Trustee Corps filed a demurrer on June 6. Vasilas and Menzel filed a
demurrer on June 20. JLA filed a demurrer on June 21. The demurrers and
supporting papers filed by (1) Trustee Corps and (2) Bank of America, MERS,
and Deutsche Bank do not appear in the record. The filing of these
documents is reflected in the register of actions.
6 The filing of these documents is reflected in the register of actions.
8
America, MERS, and Deutsche Bank, Beriones’s opposition was directed at
their demurrer. Beriones neglected to respond to the other demurrers on the
merits; rather, she filed a “Motion to Extend Time to Reply to Demurrers,”
and a “Notice of Motion and Motion for Order to Strike Entire Pleading.”
Although these documents do not appear in the record, Beriones claims that,
in them, she argued that “all the Respondents’ demurrers were filed many
days past 30 days from the date of order of remand to the State Court, and
thus were time-barred by the statue [sic] of limitations.” She requested the
demurrers to be stricken from the record, or, in the alternative, additional
time to respond to them.
In their reply papers, Respondents contended their demurrers were
timely filed, but even if they were not, the court had discretion to consider a
late-filed demurrer. (§ 473, subd. (a)(1) [“The court may, in furtherance of
justice, and on any terms as may be proper . . . enlarge the time for answer or
demurrer.”].) Respondents also argued that Beriones’s motions were
procedurally defective, made without adequate notice, and failed to explain
good cause for an extension of time to respond to the demurrers.
4. Hearing
The parties appeared for a hearing on Respondents’ demurrers on
July 19.7 Beriones argued the trial court should not grant the demurrers
because they were filed late. Respondents responded that the demurrers
were timely filed under section 430.90, which provides that the 30-day period
to respond to a complaint starts when the superior court “receives the case on
remand.” Counsel for Respondents Bank of America, MERS, and Deutsche
Bank told the court that, when he initially attempted to file a demurrer to
7 Beriones elected to proceed on appeal with a settled statement of the
hearing proceedings.
9
the operative complaint, he was unable to do so because the superior court
clerk was not accepting documents “due to the case appearing in the
electronic system as having been removed to federal court.” Counsel stated
this prompted him to file a notice of the order remanding the case to state
court. In response to the trial court’s query as to why she did not answer the
demurrers, Beriones responded that “[t]hey were late” and requested an
additional 15 days to answer them. The court denied Beriones’s request for
additional time.
5. Order
On July 23, the trial court issued an order sustaining Respondents’
demurrers without leave to amend.8
With respect to Beriones’s motions, the trial court found they were
procedurally defective for two reasons. First, they were filed without
obtaining a hearing date from the calendar clerk. (Super. Ct. San Diego
County, Local Rules, rule 2.1.19(a) [“Any party . . . who desires to have any
demurrer, motion, or order to show cause set for hearing must contact the
calendar clerk for the judge assigned to the case to reserve a hearing date.
Failure to reserve a date for hearing will result in the demurrer, motion, or
order to show cause hearing not being heard.”].) Second, even if hearing
dates had been obtained from the calendar clerk (to allow the motions to be
heard on the same date as the pending demurrers), the papers were not filed
at least 16 days before the hearing date, as required by statute.9 (Code Civ.
8 The order also granted various requests for judicial notice, including
many of the requests submitted by Beriones.
9 Beriones’s motions were filed on July 8, 2019, only 11 days before the
July 19, 2019 hearing date.
10
Proc., § 1005, subd. (b).) The trial court ordered Beriones’s motions stricken
from the record.
With respect to Beriones’s wrongful foreclosure cause of action, the trial
court observed that Beriones’s allegations challenged a securitization process
that may have been voidable under New York law, but not one that is void,
and ruled that Beriones consequently lacks standing to challenge the
assignment. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th
919, 929, 935 (Yvanova) [a borrower may base a wrongful foreclosure claim
on allegations that the foreclosing party acted without authority because the
assignment by which it purportedly became beneficiary under the deed of
trust was not merely voidable but void]; Hacker v. Homeward Residential,
Inc. (2018) 26 Cal.App.5th 270, 280 (Hacker) [“A number of cases have held
that assignments which ‘allegedly breach[ ] a term or terms of a PSA’ are
voidable rather than void because ‘the beneficiaries, not the borrower, have
the right to ratify the trustee’s unauthorized acts.’ ”].) With respect to
Beriones’s challenges to MERS’s authority to act as nominee, the trial court
found the claims lacked legal merit. (See Saterbak v. JPMorgan Chase Bank,
N.A. (2016) 245 Cal.App.4th 808, 813-815 (Saterbak) [borrower lacks
standing to challenge alleged defects in MERS’s assignment of the deed of
trust to bank as trustee]; Gomes v. Countrywide Home Loans, Inc. (2011)
192 Cal.App.4th 1149, 1156-1157 (Gomes) [rejecting legal challenge to
MERS’s authority to initiate a foreclosure].) The trial court found that
judicially noticeable documents established the foreclosure was lawful and
valid, Beriones failed to plead fraud allegations with the required specificity,
and the remaining claims were premised on Beriones’s flawed theory that
Respondents lacked the legal right to foreclose.
11
Beriones appealed.10
DISCUSSION
I.
Inadequate Record on Appeal
Beriones elected to proceed on appeal with a clerk’s transcript and
designated certain documents to appear in the record.11 (Cal. Rules of
Court, rule 8.122.) Before the record was filed, Beriones requested to amend
her record designation and to augment the record with additional documents.
In an order filed October 30, 2019, we partially granted Beriones’s request to
augment the record on appeal with documents filed or lodged in the superior
10 Beriones appealed from the trial court’s order sustaining Respondents’
demurrers. That order is not appealable. (Powell v. County of Orange (2011)
197 Cal.App.4th 1573, 1577-1578.) We exercised our discretion to construe
the appeal as being taken from the appealable judgments subsequently
entered by the trial court in favor of Respondents: (1) July 29, 2019, in favor
of Bank of America, MERS, and Deutsche Bank; (2) August 2, in favor of IMH
and IMPAC; (3) August 5, in favor of Vasilas and Menzel; (4) August 7, in
favor of Trustee Corps; and (5) August 29, in favor of JLA. (§§ 904.1,
subd. (a)(1), 581d; Los Altos Golf & Country Club v. County of Santa Clara
(2008) 165 Cal.App.4th 198, 202; Brown v. County of Los Angeles (2014)
229 Cal.App.4th 320, 322, fn. 1; Groves v. Peterson (2002) 100 Cal.App.4th
659, 666, fn. 2; Bame v. City of Del Mar (2001) 86 Cal.App.4th 1346, 1353,
fn. 5.) Not all of the judgments appear in the record.
11 Beriones initially designated the following documents to appear in the
clerk’s transcript: notice of appeal filed August 9, 2019, notice designating
record on appeal, filed August 19, 2019, a notice of entry of judgment,
purportedly dated July 19, 2019, “ROA number #35,” purportedly dated
May 22, 2019, and “[d]ecision from [h]earing on [m]otion to [s]et [a]side
[d]efendant’s [s]ustained [d]emurrer,” purportedly dated July 12, 2019.
Beriones also requested that the clerk include certain documents she
categorized as “exhibits,” including the first amended complaint, the decision
and statement of reasons, and various other documents, without specifying
filing dates.
12
court. (Vons, supra, 14 Cal.4th at p. 444, fn. 3 [appellate court generally
“ ‘consider[s] only matters which were part of the record at the time the
judgment was entered’ ”].) After the record was filed, Beriones submitted to
this court a file-stamped copy of the first amended complaint.12 However,
she did not request to further augment the record to include any additional
documents.
As noted, multiple documents necessary to review the trial court
proceedings—including two demurrers and the papers filed in support thereof
and Beriones’s opposition and motions—are not included in the record. (See
Cal. Rules of Court, rule 8.204(a)(1)(C) [appellant must support all
statements of fact in her briefs with citations to the record];
rule 8.204(a)(2)(C) [appellant must confine her statements “to matters in the
record” on appeal].) Beriones contends the record is incomplete because
Respondents did not designate certain documents, she worked “in good
faith . . . to perfect the record,” and “an incomplete record does not preclude
this [c]ourt from determining the merits of [her] case.”
“It is . . . a fundamental rule of appellate review that an appealed
judgment or order is presumed correct. [Citation.] . . . To overcome this
presumption, the appellant must provide an adequate appellate record
demonstrating error. [Citation.] ‘ “A necessary corollary to this rule [is] that
a record is inadequate . . . if the appellant predicates error only on the part of
the record he [or she] provides the trial court, but ignores or does not present
to the appellate court portions of the proceedings below which may provide
12 See footnote 2, ante. Beriones submitted several additional documents
as “exhibits,” some of which are incomplete, and others which do not appear
to be part of the trial court record. Pursuant to our order dated October 30,
2019, we disregard these documents. (Vons, supra, 14 Cal.4th at p. 444,
fn. 3.)
13
grounds upon which the decision of the trial court could be affirmed.”
[Citation.]’ [Citation.] Where the appellant fails to provide an adequate
record of the challenged proceedings, we must presume that the appealed
judgment or order is correct, and on that basis, affirm.” (Jade Fashion & Co.
Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 643-644;
Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson) [appellant has the
burden of providing an adequate appellate record; “[f]ailure to provide an
adequate record on an issue requires that the issue be resolved against [the
appellant]”].)
By failing to furnish an adequate record of the trial court proceedings,
Beriones has forfeited her appellate claims. As the California Supreme Court
has emphasized, if the appellate record is inadequate for meaningful review,
“ ‘ “the appellant defaults and the decision of the trial court should be
affirmed.” ’ ” (Jameson, supra, 5 Cal.5th at p. 609; see Maria P. v. Riles
(1987) 43 Cal.3d 1281, 1295-1296 [“Because they failed to furnish an
adequate record of the . . . proceedings, defendants’ claim must be resolved
against them.”].)
Even considering the merits of Beriones’s contentions, we conclude she
is not entitled to relief.
II.
Timeliness of the Demurrers
Beriones contends the trial court erred when it ruled on Respondents’
demurrers, which she claims were not timely filed. She contends the
deadline for Respondents to demur was triggered by the order of remand
from the district court, which was filed in the district court on April 16, 2019,
not by the notice of remand, which was filed in the trial court on May 22,
2019. Here, the time for Respondents to file demurrers is governed by
14
section 430.90. Whether the trial court properly interpreted a statute is a
question of law we review de novo. (Goodman v. Lozano (2010) 47 Cal.4th
1327, 1332.) The trial court has discretion to enlarge the time for filing
demurrers pursuant to section 473, subdivision (a)(1). (McAllister v. County
of Monterey (2008) 147 Cal.App.4th 253, 281-282 (McAllister).) “ ‘ “The
appropriate test for abuse of discretion is whether the trial court exceeded the
bounds of reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.” ’ ” (Goodman, at p. 1339.) We conclude the
demurrers were timely filed, but even if they were untimely, Beriones has not
established the trial court abused its discretion when it ruled on them.
“Where the defendant has removed a civil action to federal court
without filing a response in the original court and the case is later remanded
for improper removal, the time to respond shall be as follows: [¶] . . . [¶] If
the defendant has not filed an answer in the original court, then 30 days from
the day the original court receives the case on remand to do any of the
following: [¶] . . . [¶] Demur or move to strike all or a portion of the
complaint . . . .” (§ 430.90, subd. (a)(2)(B).)13 “For the purposes of this
section, time shall be calculated from the date of the original court’s receipt of
the order of remand.” (Id., subd. (b).) The parties agree this statute governs
the timeliness of Respondents’ demurrers, and Beriones acknowledges that
“ ‘[i]t is the [s]uperior [c]ourt’s receipt of the remand order that starts the
30[-]day deadline to demur to a complaint.’ ”
13 JLA requested that this court take judicial notice of certain legislative
materials that it acknowledges were not part of the trial court record. We
deny the request, as these materials were not presented to the trial court
(Vons, supra, 14 Cal.4th at p. 444, fn. 3), and they are unnecessary to our
resolution of the appeal.
15
Beriones claims, without citation to any material that appears in the
record, that the superior court received the remand order the same day it was
filed in the district court (April 16, 2019).14 This claim is speculative and is
not supported by the record. Based on the faulty premise that the federal
court filing date (rather than the superior court’s receipt of the order of
remand) controls, Beriones contends “[a]ll demurrers had to be filed by
May 16, 2019.”
Here, however, the trial court indicated that it received the remand
order on May 22, 2019, when Respondents filed the notice of remand. There
is no evidence in the record indicating the court received the remand order
any earlier than May 22.15 Respondents’ demurrers, filed between May 29
and June 20, were timely filed within 30 days of that date. (§ 430.90,
subd. (a)(2) [demurrers due “30 days from the day the original court receives
the case on remand”].)
Even if the demurrers had not been timely filed, it was within the trial
court’s discretion to enlarge the time for filing demurrers and thus to
entertain any late-filed demurrer. (§ 473, subd. (a)(1) [“The court may, in
furtherance of justice, and on any terms as may be proper, . . . enlarge the
time for answer or demurrer.”]; Jackson v. Doe (2011) 192 Cal.App.4th 742,
750 (Jackson) [trial court acted within its broad discretion by considering
14 Referencing information that does not appear in the record, Beriones
claims that “[t]he postage mark on the envelope of the Remand Order from
the Federal Court to Appellant Beriones was dated April 17, 2019.”
15 Beriones contends the trial court improperly relied on the register of
actions, which indicated that notice of remand was filed on May 22, 2019.
However, it is apparent the trial court relied on the notice of remand itself,
not its reflection within the register of actions.
16
defendant’s demurrer and sustaining it without leave to amend even though
plaintiff contended it was untimely].)
Beriones erroneously contends that any demurrer filed after the 30-day
deadline is automatically “time-barred.” This position misinterprets the
demurrer filing deadline as something akin to a statute of limitations, which
establishes a procedural bar to an action by prescribing the periods beyond
which a plaintiff may not bring a cause of action. (Fox v. Ethicon Endo-
Surgery, Inc. (2005) 35 Cal.4th 797, 806.)
Contrary to Beriones’s claim, the plain language of the statute gives
the trial court discretion to consider an untimely demurrer. The statute
expressly provides that the trial court may enlarge the time to file a
demurrer “in the furtherance of justice, and on any terms as may be proper.”
(§ 473, subd. (a)(1).) The trial court could reasonably have concluded
additional time for Respondents to file their demurrers was warranted in
light of the inability to file the demurrers sooner due to the case “appearing
in the electronic system as having been removed to federal court,” as counsel
represented to the court at the hearing. In exercising its discretion to
entertain the demurrers, even if they were late, the trial court did not affect
Beriones’s “ ‘ “substantial rights.” ’ ” (Jackson, supra, 192 Cal.App.4th at
p. 750; see McAllister, supra, 147 Cal.App.4th at p. 282 [trial court’s
consideration of untimely demurrer did not affect plaintiff’s substantial
rights where plaintiff did not take steps to obtain a default judgment and did
not establish delay in filing a demurrer prejudiced his case].) Beriones was
not precluded from responding to the demurrers and she had an opportunity
to be heard before the trial court rendered its decision. We thus conclude the
trial court did not err in finding the demurrers were timely and did not abuse
17
its discretion in considering the merits of the demurrers even assuming they
were untimely.
III.
Beriones’s Initial Responses and Request for an Extension of Time to Respond
Beriones contends the trial court misinterpreted the papers she filed as
motions when she intended them to be replies or responses to Respondents’
demurrers.16 Even though the trial court rejected the papers Beriones styled
as “[m]otions,” the record demonstrates that the trial court considered and
rejected the merits of Beriones’s contention that the demurrers were
untimely, as well as her request for additional time to respond. We have
already concluded the demurrers were timely filed. Beriones next argues the
trial court erred when it declined to grant her an extension of time to respond
to the demurrers.
When considering a request for a continuance, “the court must
determine whether the party requesting the continuance has . . . established
good cause therefor. That determination is within the court’s discretion.”
(Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716; Cotton v.
StarCare Medical Group, Inc. (2010) 183 Cal.App.4th 437, 444 [parties
seeking continuance of hearing on demurrers required to show good cause].)
“[T]he trial court has a wide discretion in granting or denying continuances,”
16 In Beriones’s motions, she argued that “all the Respondents’ demurrers
were filed many days past 30 days from the date of order of remand to the
State Court, and thus were time-barred by the statue [sic] of limitations.”
She sought to have the demurrers stricken from the record, or, in the
alternative, requested additional time to respond to them. At the hearing on
Respondents’ demurrers, Beriones told the court she had not responded to
most demurrers because “[t]hey were late” and requested an additional
15 days to respond. The court refused to allow Beriones additional time to
respond.
18
and its “decision will not be disturbed on appeal unless a clear abuse of
discretion is shown.” (Muller v. Tanner (1969) 2 Cal.App.3d 445, 457.)
Beriones has not demonstrated an abuse of discretion or the prejudice
required for reversal. (Cal. Const., art. VI, § 13 [no reversal unless “error
complained of has resulted in a miscarriage of justice”].) The record, albeit
incomplete, demonstrates Beriones had adequate time under applicable rules
to oppose the demurrers. (Cal. Rules of Court, rule 3.1320(c) [“A party filing
a demurrer must serve and file therewith a notice of hearing that must
specify a hearing date in accordance with the provisions of Code of Civil
Procedure section 1005 . . . .”]; § 1005, subd. (b) [moving papers must be filed
and served at least 16 court days before hearing; opposition papers must be
filed at least nine court days before the noticed hearing date].) The
demurrers were filed between May 29 and June 20, more than 16 court days
prior to the date of the hearing on July 19. Beriones thus had adequate time
under the rules to respond to the properly noticed demurrers. In fact,
Beriones timely filed a response to one demurrer. On her last day to file
oppositions, Beriones filed only motions. Beriones claims she was “not given
the opportunity to present a simple explanation,” but even on appeal she still
has not explained why she did not respond to the remaining demurrers, how
her failure to timely respond was justified, or what arguments she would
assert if given additional time to respond. She does not raise any arguments
against the merits of the trial court’s determination. Beriones therefore has
not established good cause to support a continuance.
Beriones relies on California Rules of Court, rule 3.110(d), which
permits parties to stipulate without leave of court to one 15-day extension
beyond the 30-day time period prescribed for the response after service of the
initial complaint. This rule is not applicable here, as there is no indication
19
Beriones sought a stipulation, and Beriones was seeking additional time to
respond to Respondents’ responsive pleadings.
We also reject Beriones’s contention the trial court’s refusal to grant
her additional time to respond deprived her of “substantial due process,
including the right to enter material and relevant evidence.”17 Beriones has
not explained what evidence she intended to proffer, how this evidence was
material or relevant to the present action, and how it could change the
outcome of her lawsuit. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund
(1998) 65 Cal.App.4th 1422, 1432.)
IV.
The Demurrers Were Properly Sustained
Beriones does not present any argument regarding the merits of the
causes of action asserted in the complaint. Applying our independent
judgment, we conclude the trial court properly sustained the Respondents’
demurrers to each of Beriones’s causes of action, and further conclude the
trial court did not abuse its discretion in sustaining the demurrers without
leave to amend.
“ ‘On appeal from an order of dismissal after an order sustaining a
demurrer, the standard of review is de novo: we exercise our independent
judgment about whether the complaint states a cause of action as a matter of
law.’ ” (Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012, 1016.)
When a demurrer is sustained without leave to amend, “ ‘ “we decide whether
there is a reasonable possibility that the defect can be cured by
17 Beriones indicated she wanted to call a witness at the demurrer
hearing to “testify about his submitted declaration.” It is unclear whether
the referenced declaration was filed in this action or in connection with the
prior unlawful detainer proceedings.
20
amendment . . . .” ’ [Citations.] ‘ “The burden of proving such reasonable
possibility is squarely on the plaintiff.” ’ ” (Centinela Freeman Emergency
Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010
(Centinela).)
Beriones’s first cause of action asserted the parties lacked standing to
foreclose and the foreclosure was wrongful. The elements of a wrongful
foreclosure cause of action are (1) the trustee or mortgagee caused an illegal,
fraudulent, or willfully oppressive sale of real property pursuant to a power of
sale in a mortgage or deed of trust; (2) the party attacking the sale (usually
the trustor or mortgagor) was prejudiced or harmed; and (3) the trustor or
mortgagor tendered the amount of the secured indebtedness or was excused
from tendering. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 525.)
Beriones did not allege that she tendered or attempted to tender the loan
debt to challenge or cancel the foreclosure sale. (Id. at pp. 525-526.) The
recorded documents demonstrated the propriety of the foreclosure.
Moreover, the trial court correctly determined that Beriones’s
allegations challenged a securitization process that may have been voidable
under New York law, but not one that is void, and that Beriones thus lacks
standing to challenge the assignment. (See Yvanova, supra, 62 Cal.4th at
pp. 929, 935 [a borrower may base a wrongful foreclosure claim on allegations
that the foreclosing party acted without authority because the assignment by
which it purportedly became beneficiary under the deed of trust was not
merely voidable but void]; Hacker, supra, 26 Cal.App.5th at p. 280 [“A
number of cases have held that assignments which ‘allegedly breach[ ] a term
or terms of a PSA’ are voidable rather than void because ‘the beneficiaries,
not the borrower, have the right to ratify the trustee’s unauthorized acts.’ ”].)
21
The trial court also correctly rejected Beriones’s challenges to MERS’s
authority to act as nominee, which conflict with the terms of the deed of trust
she signed and are not supported by law. (Saterbak, supra, 245 Cal.App.4th
at pp. 813-815 [borrower lacks standing to challenge alleged defects in
MERS’s assignment of the deed of trust to bank as trustee]; Gomes, supra,
192 Cal.App.4th at pp. 1156-1157 [rejecting legal challenge to MERS’s
authority to initiate a foreclosure].) Thus, Beriones failed to state a cause of
action for wrongful foreclosure.
Beriones’s second and third causes of action for fraud in the
concealment and inducement are likewise deficient. To plead a claim for
fraud, a plaintiff must establish (1) a misrepresentation (false representation,
concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to defraud
or induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar
v. Superior Court (1996) 12 Cal.4th 631, 638.) For fraudulent concealment,
plaintiff must additionally establish defendant had a duty to disclose the fact
to plaintiff. (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992)
6 Cal.App.4th 603, 612-613; see LiMandri v. Judkins (1997) 52 Cal.App.4th
326, 336-337 [listing four circumstances in which nondisclosure or
concealment may constitute actionable fraud].) To state a fraud claim
against a corporation, the plaintiff must allege “the names of the persons who
made the allegedly fraudulent representations, their authority to speak, to
whom they spoke, what they said or wrote, and when it was said or written.”
(Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2 Cal.App.4th
153, 157.) Beriones’s fraud claims were premised on her assertions that the
parties’ alleged misrepresentations and omissions induced her to take the
residential mortgage. The lender that originated Beriones’s residential
mortgage was not named as a defendant in her lawsuit. Beriones did not
22
plead allegations with the specificity required under Tarmann, as she failed
to allege the names of the persons who made misrepresentations or
omissions, their authority to speak, the contents of the misrepresentations or
omissions, or when the misrepresentations were made. Beriones therefore
failed to state causes of action for fraud in the concealment or inducement.
Beriones’s fourth cause of action for intentional infliction of emotional
distress required Beriones to establish (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
emotional distress by the defendant’s outrageous conduct. (Wilson v. Hynek
(2012) 207 Cal.App.4th 999, 1009.) In an action arising out of nonjudicial
foreclosure proceedings, a trial court properly sustains a demurrer to this
cause of action where, like here, the borrower has not pled facts showing
“outrageous” conduct by defendants. (Ibid.) Beriones simply alleged in her
complaint that the foreclosure caused her the “emotional nightmare of losing
the [p]roperty.” “At most, this was a creditor/debtor situation, whereby
defendants were exercising their rights under the loan agreements. There
are no allegations that in conducting the foreclosure proceedings any of the
defendants threatened, insulted, abused, or humiliated [Beriones].” (Ibid.)
Beriones thus failed to state a cause of action for intentional infliction of
emotional distress.
Beriones’s fifth cause of action for slander of title required that she
establish (1) a publication which is (2) without privilege or justification,
(3) false, and (4) causes pecuniary loss. (La Jolla Group II v. Bruce (2012)
211 Cal.App.4th 461, 472.) Beriones’s slander of title claim is premised on
her wrongful foreclosure claim, which we have already concluded lacks merit.
23
Additionally, Beriones failed to allege a nonprivileged, false publication. (See
Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333 [rejecting slander of
title claim by homeowner in response to nonjudicial foreclosure proceedings,
and holding that Civil Code “section 2924 deems the statutorily required
mailing, publication, and delivery of notices in nonjudicial foreclosure, and
the performance of statutory nonjudicial foreclosure procedures, to be
privileged communications under the qualified, common interest privilege of
[Civil Code] section 47, subdivision (c)(1)”].)
Beriones’s sixth cause of action for quiet title required her to file a
verified complaint and to establish the following: (1) a description of the
property that is the subject of the action, (2) the title of the plaintiff as to
which a determination is sought and the basis of the title; (3) the adverse
claims to plaintiff’s title as to which a determination is sought; (4) the date as
of which the determination is sought; and (5) a prayer for the determination
of plaintiff’s title against adverse claims. (§ 761.020.) Here, Beriones’s
complaint was not verified, and she merely alleged that “[a]ll
defendants . . . claim an interest and estate in the property . . . in that
defendant asserts he is the owner of the note secured by the Deed of
Trust . . . .” Additionally, Beriones did not aver that she paid or attempted to
pay the outstanding mortgage balance. (Lueras v. BAC Home Loans
Servicing, L.P. (2013) 221 Cal.App.4th 49, 86 [borrower cannot quiet title
without paying the outstanding indebtedness].)
24
Beriones’s seventh and tenth causes of action for declaratory relief and
rescission were predicated on her wrongful foreclosure claims and fail
accordingly.18
In sum, all of Beriones’s causes of action fail and the trial court
properly sustained Respondents’ demurrers to the complaint.
We further conclude the trial court did not abuse its discretion when it
sustained the demurrers without leave to amend. Even on appeal, Beriones
has not articulated how she proposes to amend her complaint or how any
amendment will cure the defects in her complaint. She has thus failed to
meet her burden to justify granting leave to amend. (San Diego Unified
School Dist. v. Yee (2018) 30 Cal.App.5th 723, 742 [“To meet [her] burden the
[plaintiff] must affirmatively demonstrate how the complaint can be amended
and how the amendment will cure the deficiencies.”]; see Centinela, supra,
1 Cal.5th at p. 1010.) The trial court properly sustained Respondents’
demurrers in their entirety without leave to amend.
18 As previously indicated, the eighth and ninth causes of action alleged
violations of federal law and were dismissed by the United States District
Court for the Southern District of California.
25
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on
appeal.
GUERRERO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
26