Judge Deirdre Hill, Case 22CMCV00059 2022-07-27 Tentative Ruling

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The court considered the motion and reply papers. There was no opposition filed as to the demurrer.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1^st through 8^th causes of action.

On March 7, 2022, April Lenai Dean (self-represented) filed a complaint against People’s Choice Home Loan, Inc., F.C.I., a California corporation, California Reconveyance Company, National Default Servicing Corporation, Huey-Jen Chiu, Vice President MERS, Huey-Jen Chiu, Vice President JP Morgan Chase Bank, MERS, and all persons claiming any legal or equitable right, title, lien, estate or any interest in the real property for (1) quiet title, (2) fraud, (3) cancellation of instruments, (4) slander of title, (5) breach of written contract, (6) breach of the implied covenant of good faith and fair dealing, (7) abuse of process, and (8) declaratory relief as to property located at 19312 Huggins Drive, Carson, California 90746.

On March 30, 2022, plaintiff filed an amendment designating The Lending Trust as Doe 1.

On June 7, 2022, the court sustained defendants Huey-Jen Chiu and California Reconveyance Company’s demurrer without leave to amend as to the 1^st through 8^th causes of action and deemed the motion to strike moot in light of the ruling on the demurrer. Defendants were ordered dismissed.

On June 13, 2022, defendants California Reconveyance Company, Huey-Jen Chiu (VP MERS), and Huey-Jen Chiu (VP of Chase) were dismissed with prejudice, and an order of dismissal entered.

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. CCP §436(a). The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. CCP §436(b). The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. CCP §436. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. CCP §437.

Defendants MERS and National Default Servicing Corporation (“NDSC”) demur to the complaint and each of the causes of action on the ground that they fail to state sufficient facts to constitute a cause of action.

In the complaint, plaintiff allege that she seeks restitution and compensation for mortgage payments, all fees and costs illegally without authorization and wrongfully improperly collected by defendants and an accounting to determine the exact and true amount to be reimbursed to plaintiff. Complaint, ¶14. Plaintiffs also alleges that it appears that within the Assignment of the Deed of Trust recorded on March 4, 2009, as Instrument Number 20090302993, defendant Chiu acted as Vice President of MERS. Id., ¶16. It appears that within the Substitution of Trustee (“SOT”) coincidentally and also recorded on March 4, 2009, as successive Instrument Number 20090302994, defendant Chiu acted as Vice President of JP Morgan Chase Bank, National Association, as attorney in fact. Id., ¶17. The purported transfer is in violation of Civil Code §1095, which states, “when an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact, and if this is not followed exactly, the transfer is void, thereby making the SOT void as a matter of law. Id., ¶18. Defendant Chiu, while acting on behalf of her employer(s) fraudulently substituted a new trustee on behalf of her second employer of that particular day, and assigned away the DOT to her first employer of that particular day. Id., ¶19. It is clear that Chiu acted on behalf of two different employers with conflicting interest on the very same day, at the very same time within two separate instruments as the instruments pertain to plaintiff’s real property, and thereby failed to comply with the standards set forth in Hodge v. Hodge (1967) 257 Cal. App. 2^nd 31, as applied through Civil Code §1095. Id., ¶20. Plaintiff’s action seeks by this action only to establish and by the remedies of cancellation of the instruments recited herein and quiet title, affirming that the named defendants and only those other persons or entities or right therefrom are not the parties to whom plaintiff is (or can be) so indebted. Id., ¶22.

Plaintiff also alleges that California Reconveyance Company employed defendant Huey-Jen Chiu “who has unlawfully caused certain instruments to be illegally recorded against plaintiff’s real property.” Id., ¶4.

Plaintiff alleges that defendants lacked the capacity and standing to collect any debt on the subject property because their principal never acquired the loan contract. Id., ¶28. The causes of action accrued on February 25, 2022, the date of the completed Notice of Trustee’s Sale purportedly giving notice of the sale of plaintiff’s real property, because plaintiff suffered appreciable harm from defendants’ wrongdoing. Id., ¶29.

On August 3, 2006, a Deed of Trust was recorded reflecting that plaintiff and Aron Pritchard obtained a $552,000 loan from People’s Choice Home Loans, Inc. MERS was identified in the DOT as the beneficiary, as nominee for People’s Choice, its successors and assigns. RJN, Exh. 2.

On March 3, 2009, MERS assigned the DOT to Bank of America, National Association as successor by merger to “LaSalle Bank NA as trustee for Washington Mutual Asset-Backed Certificates WMABS Series 2006-HE5 Trust.” RJN, Exh. 3.

On March 4, 2009, a Substitution of Trustee was recorded reflecting that CRC was named successor trustee of the Deed of Trust. RJN, Exh. 4.

On March 4, 2009, a Notice of Default and Election to Sell Under Deed of Trust was recorded due to an existing default on the secured loan. RJN, Exh. 5.

On December 22, 2009, a Notice of Rescission was recorded rescinding the 2009 NOD. RJN, Exh. 6.

On February 12, 2015, a Corporate Assignment of Deed of Trust was recorded reflecting assignment of the DOT to U.S. Bank National Association as Trustee Successor in Interest to Bank of America, National Association as Trustee Successor by Merger to LaSalle Bank, National Association as Trustee for Washington Mutual Asset-Backed Certificates WMABS Series 2006-HE5 Trust. RJN, Exh. 7.

On January 31, 2020, a grant deed was recorded through which plaintiff transferred title to the Dean Family Trust. RJN, Exh. 8.

On March 23, 2020, a Substitution of Trustee was recorded substituting National Default Servicing Corporation as successor trustee of the DOT. RJN, Exh. 9.

On October 6, 2021, a Notice of Default and Election to Sell Under the Deed of Trust was recorded reflecting a default in the amount of $64,186.34. RJN, Exh. 10. The trustee identified in the NOD is National Default Servicing Corporation.

The court notes that case no. 20CMCV00200 was related to the herein case. In that case, plaintiff is the same and in the FAC sued for (1) adverse possession, (2) fraud, (3) rescission, (4) quiet title, (5) unfair business practices, and (6) breach of contract/intentional tort as to the same property and loans. On December 1, 2020, the court sustained without leave to amend the demurrer of Select Portfolio Servicing, MERS, National Default Corporation, and U.S. Bank National Association. Plaintiff dismissed JPMorgan Chase Bank, N.A. on January 4, 2021 with prejudice. The court took judicial notice of the March 4, 2009 documents, which are alleged in the herein complaint.

Defendants argue that the complaint is barred by res judicata and claim preclusion because the court in the 2020 case had sustained their demurrer without leave to amend and judgment was entered in their favor on December 14, 2020. Thus, defendants argue, plaintiff’s claims attacking authority to enforce the DOT have already been adjudicated involving the same parties and the same primary right asserted by plaintiff.

Defendants also argue that allegations as to MERS do not support a cause of action as MERS assigned the DOT in 2009, claims no title to the property, and no particular facts are alleged subsequent to that time.

As to NDSC, its duties are strictly limited by statute and NDSC is afforded a privilege under Civil Code §2924(b).

Defendants further argue that plaintiff is not the real property in interest because she transferred away title to the property to the Dean Family Trust.

Defendant contends also that plaintiff failed to name an indispensable party, her former husband Aron Pritchard because record title does not reflect a transfer from Pritchard of any of his rights in the property. The court notes that the court in the 2020 case found that he was not an indispensable party, after reviewing the dissolution order.

Moreover, defendants argue, plaintiff lacks standing to challenge “the right, power, and authority of a foreclosing ‘beneficiary’ or ‘beneficiary’s agent’ to initiate and pursue foreclosure.” Yvanova v. New Century Mortgage Corp. (2016) 62 Cal. 4^th 919, 924.

Plaintiff also lacks standing to challenge any purported signatory’s authority. See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4^th 1149, 1156. In any event, defendants contends, the purported defect would render the assignment voidable at the election of the parties to it, not void. See Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal. App. 5^th 802, 809-810.

A viable complaint for quiet title must include: (a) description of the property that is the subject of the action; (b) the title of the plaintiff as to which a determination is sought and the basis of the title; (c) the adverse claims to the title of the plaintiff against which a determination is sought; (d) the date as of which the determination is sought; (e) a prayer for the determination of the title of the plaintiff against the adverse claims. CCP §761.020.

As argued by defendants, there is no allegation that they have adverse claims to the title. MERS assigned the DOT in 2009. NDSC is acting as trustee for the beneficiary.

The elements of a fraud claim are (1) misrepresentation; (2) knowledge of falsity; (3) intent to deceive; and (4) reliance and resulting damage. Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal. App. 4th 282, 290. “To withstand demurrer, the facts constituting every element of fraud must be alleged with particularity, and the claim cannot be salvaged by references to the general policy favoring the liberal construction of pleadings.” Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal. App. 4th 772, 782. The particularity requirement necessitates pleadings facts that “show how, when, where, to whom, and by what means the representations were tendered.” Lazar v. Superior Court (1996) 12 Cal. 4th 631, 645. With regard to fraud claims, pleadings must allege facts as to “how, when, where, to whom, and by what means the representations were tendered.” Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 73. Additionally, “[t]he requirement of specificity in a fraud action against a corporation requires the plaintiff to 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 Mut. Auto Ins. Co. (1991) 2 Cal. App. 4th 153, 157.

The complaint alleges that defendants appropriated the real property of plaintiff for a wrongful use and with the intent to defraud plaintiff when defendants MERS and JPMorgan allowed defendant Chiu to falsely claim to be Vice President of MERS and Vice President of JPMorgan in successive instruments. Complaint, ¶120.

Defendants argue that the claim is time barred to the extent it is based on conduct prior to March 2019. CCP §338(d). Further, plaintiff does not specifically allege a misrepresentation by defendants. The only allegation as to MERS concerned its role of original beneficiary, and its assignment of the DOT in 2009, which was authorized by the provisions of the DOT. Plaintiff does not plead any conduct by NDSC other than recording documents on behalf of the beneficiary. Further, there are no allegations to support detrimental reliance or resulting damages.

“A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may upon his application be so adjudged, and ordered to be delivered up and canceled.” Civil Code §3412. A plaintiff must allege facts to show the instrument was void or voidable against that particular plaintiff. See Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal. App. 4^th 808, 818. A plaintiff must provide facts, “not mere conclusions, showing the apparent validity of the instrument designated, and point out the reason for asserting that it is actually invalid.” Ephraim v. Metropolitan Trust Co. of California (1946) 28 Cal. 2d 824, 833.

The allegations are insufficient that either the 2009 assignment or 2009 substitution of attorney are void or voidable.

The elements of slander of title are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. See Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal. App. 4^th 999, 1030.

Defendants argue that the claim is time barred. Further, defendants contend, the alleged conduct was privileged pursuant to Civil Code §47. Defendants also argue that plaintiff cannot allege that defendants knowingly made any false statements about title or that they acted with actual malice.

“To state a cause of action for breach of contract, [plaintiff] must plead the contract, his performance of the contract or excuse for nonperformance, [defendant’s] breach and the resulting damage. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290). Further, the complaint must indicate on its face whether the contract is written, oral, or implied by conduct. If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 59.)” Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal. App. 3d 452, 458-59. “To state a cause of action for breach of contract, it is absolutely essential to plead the terms of the contract either in haec verba or according to legal effect.” Twaite v. Allstate Ins. Co. (1989) 216 Cal. App. 3d 239, 252.

In the complaint, it appears that plaintiff is alleging that moving defendants breached the DOT recorded in 2006 by Chiu executing an assignment and substitution of trustee in different capacities on the same date in 2009.

As defendants argue, plaintiff fails to plead facts to support the elements for breach of contract. She does not allege the provision that was purportedly breached in any contract. Plaintiff does not allege that she performed or was excused from performing her loan obligations. She also does not allege facts to show that she was damaged by moving defendant’s alleged breach.

6^th cause of action for breach of the implied covenant of good faith and fair dealing

“[A]buse of process arises when one uses the court’s process for a purpose other than that for which the process was designed.” Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056. The elements of an abuse of process cause of action are: (1) an ulterior motive by the person using the process; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Id. at 1057. A “cause of action for abuse of process cannot be viable absent some harm to the plaintiff caused by the abuse of process.” Yee v. Superior Court (2019) 31 Cal. App. 5^th 26, 37.

The complaint alleges that she previously filed an unlimited action that was dismissed on March 1, 2022 by Judge Long, but in the instant matter, defendants willfully made use of the court’s judicial process with an ulterior purpose other than that for which it was intended for. Complaint, ¶161.

The allegations are insufficient as moving defendants prevailed on their demurrer in the 2020 case and were dismissed and judgment entered in their favor. Further, as defendants argue, she is barred from attacking any publications made by defendants in the context of her prior civil action under the litigation privilege. See Civil Code §47(b). Plaintiff also does not plead facts to support ulterior motive. She filed her prior cases and defendants’ acts were in conjunction with their defense.

The complaint alleges that a dispute exists as “to the ownership of the Subject Property, and the validity, if any, of the liens on the Subject Property.” Complaint, ¶178.

There are no allegations of actionable conduct with respect to defendants. Thus, there is no justiciable controversy. MERS has had no role since the 2009 assignment. See RJN.

The court notes that in the reply, defendants respond to plaintiff’s “notice” of MERS to demonstrate compliance with Corp. Code §§2105(a) and 2203(c) and “amended notice” of an opposition to “representation for and/or on behalf of” MERS. Defendants point out that courts have concluded that MERS, as a foreign corporation, was exempt from the requirement to be licensed in California. MERS notes that it has been registered to conduct intrastate business in California since July 21, 2010 and its prior transactions have been given full effect. See, e.g., Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 256; Siliga v. MERS (2013) 219 Cal. App. 4^th 75, 84. Defendants also reiterate that defendants’ authority to enforce the DOT has already been adjudicated by the court in the 2020 case.

The demurrer is SUSTAINED WITHOUT LEAVE TO AMEND as to the 1^st through 8^th causes of action in the complaint. The motion to strike is deemed MOOT in light of the ruling on the demurrer.

On March 30, 2022, plaintiff filed an amendment designating The Lending Trust as Doe 1.

On June 13, 2022, defendants California Reconveyance Company, Huey-Jen Chiu (VP MERS), and Huey-Jen Chiu (VP of Chase) were dismissed with prejudice, and an order of dismissal entered.

Defendant JPMorgan Chase demurs to the complaint and each of the causes of action on the ground that they fail to state sufficient facts to constitute a cause of action.

On March 4, 2009, a Substitution of Trustee was recorded reflecting that CRC was named successor trustee of the Deed of Trust. RJN, Exh. 8.

On March 4, 2009, a Notice of Default and Election to Sell Under Deed of Trust was recorded due to an existing default on the secured loan. RJN, Exh. 9.

On December 22, 2009, a Notice of Rescission was recorded rescinding the 2009 NOD. RJN, Exh. 10.

On October 6, 2021, a Notice of Default and Election to Sell Under the Deed of Trust was recorded reflecting a default in the amount of $64,186.34. RJN, Exh. 12. The trustee identified in the NOD is National Default Servicing Corporation. It had been substituted in as trustee by the recordation of Substitution of Trustee on March 23, 2020. RJN, Exh. 13.

The court notes that case no. 20CMCV00200 was related to the herein case. In that case, plaintiff is the same and in the FAC sued for (1) adverse possession, (2) fraud, (3) rescission, (4) quiet title, (5) unfair business practices, and (6) breach of contract/intentional tort as to the same property. On December 1, 2020, the court sustained without leave to amend the demurrer of Select Portfolio Servicing, MERS, National Default Corporation, and U.S. Bank National Association. Plaintiff dismissed JPMorgan Chase Bank, N.A. on January 4, 2021 with prejudice. The court took judicial notice of the March 4, 2009 documents, which are alleged in the herein complaint.

Defendant argues that the complaint is barred by res judicata and claim preclusion because it was a party to the 2020 case and was dismissed with prejudice.

Defendant further argues that the complaint is barred by the estoppel doctrine because plaintiff recently filed a bankruptcy petition under Ch. 13 and failed to schedule the claims presented in the complaint by identifying any dispute in connection with the loan or the pending action. See, e.g., Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal. App. 4^th 1602, 1609 (failure to disclose a claim or action in bankruptcy schedules precludes later prosecution of the action).

Defendant also argues that the complaint is barred by the statute of limitations as against defendant. Plaintiff filed the complaint in 2022 but the allegations pertaining to the period when Chase was servicing the loan relate to instruments recorded in 2009.

Moreover, defendant argues, plaintiff lacks standing to challenge “the right, power, and authority of a foreclosing ‘beneficiary’ or ‘beneficiary’s agent’ to initiate and pursue foreclosure.” Yvanova v. New Century Mortgage Corp. (2016) 62 Cal. 4^th 919, 924. She alleges that the NOS was recorded in March 2022 but not that the trustee’s sale was completed. Plaintiff also lacks standing to challenge any purported signatory’s authority. See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal. App. 4^th 1149, 1156. In any event, defendant contends, the purported defect would render the assignment voidable at the election of the parties to it, not void. See Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal. App. 5^th 802, 809-810.

As argued by defendant, there is no allegation that it has adverse claims to the title and it has not serviced the loan for years, as reflected in the RJN.

As to Chiu, defendant argues, an individual can hold capacity and/or titles within more than one company at once. Further, there are no allegations to support detrimental reliance, existence of any misrepresentation, or any intent to defraud. Plaintiff has not shown a causal connection between the 2009 assignment and 2009 substitution of trustee and any purported conduct resulting in harm.

The allegations are insufficient that either the 2009 assignment or 2009 substitution of attorney are void or voidable.

Defendant argues that this claim fails for the same reasons as the claims above, including that it is “based on the same faulty challenges to the chain of assignments.” Plaintiff has also not alleged sufficient facts to show that any of the recorded instruments involving moving defendant were false. She also has not shown that she suffered a direct pecuniary loss caused by the 2009 instruments. There are no allegations that moving defendant foreclosed on the property and it has not serviced the loan for years.

In the complaint, it appears that plaintiff is alleging that moving defendant breached the DOT recorded in 2006 by Chiu executing an assignment and substitution of trustee in different capacities on the same date.

As defendant argues, plaintiff fails to plead facts to support the elements for breach of contract. Plaintiff does not allege that she performed or was excused from performing her loan obligations. She also does not allege facts to show that she was damaged by moving defendant’s alleged breach.

6^th cause of action for breach of the implied covenant of good faith and fair dealing

The allegations are insufficient as moving defendant was dismissed with prejudice before it was required to file a responsive pleading.

The complaint alleges that a dispute exists as “to the ownership of the Subject Property, and the validity, if any, of the liens on the Subject Property.” Complaint, ¶178.

There are no allegations of actionable conduct with respect to defendant. Thus, there is no justiciable controversy.

Defendant Chase requests that the court strike the following: paras. 11, 14, 126, 127, 180 and prayer for relief at items 6, 8, 9.

The court considered the moving and opposition papers, plaintiff’s response, and defendants’ response.

On March 23, 2022, the court (Judge Tanaka) denied plaintiff’s ex parte application for a TRO and ex parte application for a court order to serve the Secretary of State.

On March 28, 2022, the court (Judge Tanaka) denied plaintiff’s motion for reconsideration.

On March 30, 2022, plaintiff filed an amendment designating The Lending Trust as Doe No. 1.

On April 28, 2022, plaintiff filed an amendment designating JP Morgan Chase Bank, National Association as Doe No. 2.

On June 6, 2022, the court deemed related 20CMCV00200 (filed on August 7, 2020).

On June 13, 2022, defendants California Reconveyance Company, Huey-Jen Chiu (VP MERS), and Huey-Jen Chiu (VP of Chase) were dismissed, and an order of dismissal entered.

Under CCP §1008(a), “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As stated by the court in Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, CCP §1008 governs reconsideration of court orders whether initiated by a party or the court itself. “It is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.” Id. at 1499.

CCP §128(a) states, “Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .”

Plaintiff requests that the court reconsider its order dated June 7, 2022, sustaining California Reconveyance and Huey-Jen Chiu’s demurrer to the complaint.

Plaintiff did not file an opposition to the demurrer. At the hearing on June 7, plaintiff orally requested a continuance to file an opposition, which the court denied. The court found that plaintiff had been aware at least since May 9, 2022 (see minute order of status conference), if not earlier, that the filing of a bankruptcy does not stay the action and elected not to oppose the demurrer.

In the herein motion, she reargues that through mistake and inadvertence and because plaintiff is an “inept pleader acting in pro per,” she failed to respond to the demurrer because she believed there was a bankruptcy filing, which prevented her from filing an opposition.

In opposition, defendants argue that the motion is procedurally defective, pointing out that plaintiff filed to file a supporting declaration in support of her motion. Defendants also argue that plaintiff fails to identify new or different facts, circumstances or law to support the motion.

The court finds that plaintiff has not met her burden. Plaintiff presents no new or different facts, circumstances, or law or supporting declaration.

The court considered the moving and opposition papers, plaintiff’s response, defendants’ response, and plaintiff’s sur-reply.

On March 23, 2022, the court (Judge Tanaka) denied plaintiff’s ex parte application for a TRO and ex parte application for a court order to serve the Secretary of State.

On March 28, 2022, the court (Judge Tanaka) denied plaintiff’s motion for reconsideration.

On March 30, 2022, plaintiff filed an amendment designating The Lending Trust as Doe No. 1.

On April 28, 2022, plaintiff filed an amendment designating JP Morgan Chase Bank, National Association as Doe No. 2.

On June 6, 2022, the court deemed related 20CMCV00200 (filed on August 7, 2020).

On June 13, 2022, defendants California Reconveyance Company, Huey-Jen Chiu (VP MERS), and Huey-Jen Chiu (VP of Chase) were dismissed with prejudice, and an order of dismissal entered.

CCP §473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a . . . dismissal . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the . . . dismissal . . . . was taken. . . . Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. . . .”

Pursuant to CCP §473(b), plaintiff requests that the court set aside and vacate the dismissal ordered on June 7, 2022.

On June 7, 2022, the court had sustained the demurrer without leave to amend as to California Reconveyance Company and Huey-Jen Chiu. The court denied plaintiff’s oral request for a continuance to file an opposition. She had argued that she mistakenly believed that the filing of her bankruptcy petition stayed the proceeding. The court found that she was aware on May 9, 2022, if not earlier, that the action was not stayed. On June 13, 2022, a judgment of dismissal was entered.

Plaintiff contends again that she had a mistaken belief that she was unable to respond to the demurrer and motion to strike based on the filing of plaintiff’s bankruptcy petition.

In opposition, defendants contend that the motion is moot because the June 7, 2022 order of dismissal was superseded by the court’s June 13, 2022 order of dismissal, which was entered nunc pro tunc to correct the earlier dismissal that had been entered without prejudice and instead, enter the dismissal in favor of defendants, with prejudice.

The dismissal was not the result of plaintiff’s neglect in not filing an opposition. Rather, the court had determined that the allegations failed to constitute a cause of action as to each cause of action and the order of dismissal was an adjudication on the merits. Further, plaintiff’s neglect was not excusable. Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal. App. 4^th 1096, 1112 (“’[c]onduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.’”) (citation omitted).