I. BACKGROUND 

 In pro per plaintiff Lilia Euyoque Galvan (“Plaintiff”) filed a Third Amended Complaint (“TAC”) against U.S. Bank Trust National Association as Trustee of Tiki Series IV Trust, its Successor and/or Assigns (“US Bank”), et al., arising from the foreclosure of the real property commonly known as 26438 W. Kipling Place, City of Stevenson Ranch, County of Los Angeles (the “Property”). The TAC sets forth four causes of action for (1) wrongful foreclosure against US Bank, SN Servicing Corporation (“SN”) and Prestige Default Services, LLC, (2) fraud by deceit against US Bank, (3) quiet title against all defendants, and (4) declaratory relief. 

Defendants U.S. Bank and SN Servicing Corporation (“SN”) (collectively “Defendants”) demur to all four causes of action. Defendants further move to strike the first cause of action, and prayer for punitive damages. 

Any opposition was due on or before August 22, 2024. No opposition has been filed to date. 

II. REQUESTS FOR JUDICIAL NOTICE 

Defendants request the Court take judicial notice of (1) Deed of Trust recorded in the Official Records of Los Angeles County on June 18, 2007, as Instrument Number 20071460204., (2) Assignment of Deed of Trust, recorded in the Official Records of Los Angeles County on November 6, 2012, as Instrument Number 20121684796 ("Assignment 1"), (3) Assignment of Deed of Trust, recorded in the Official Records of Los Angeles County on November 3, 2014, as Instrument Number 20141163002 ("Assignment 2"), (4) Assignment of Deed of Trust recorded in the Official Records of Los Angeles County on July 18, 2017, as Instrument Number 20170800614, (5) Assignment of Deed of Trust recorded in the Official Records of Los Angeles County on July 19, 2021, as Instrument Number 20211110794 ("Assignment 4"), (6) Substitution of Trustee recorded in the Official Records of Los Angeles County on January 28, 2022, as Instrument Number 20220112495, (7) Notice of Default and Election to Sell under Deed of Trust recorded in the Official Records of Los Angeles County on January 28, 2022, as Instrument Number 20220112496, (8) Notice of Trustee’s Sale recorded in the Official Records of Los Angeles County on May 16, 2022, as Instrument Number 20220526811, (9) Chapter 13 Bankruptcy Case filed in the United States Bankruptcy Court, Case No. 2:22-bk-14011, case name: In re Lilia Galvan, (10) Chapter 13 Plan filed on July 25, 2022 in Chapter 13 Bankruptcy Case in the United States Bankruptcy Court, Case No. 2:22-bk-14011, case name: In re Lilia Galvan, (11) Proof of Claim filed on September 7, 2022 in Case No. 2:22-bk-14011, case name: In re Lilia Galvan, (12) Dismissal Order filed on February 2, 2023 in Case No. 2:22-bk-14011, case name: In re Lilia Galvan, and (13) Trustee’s Deed Upon Sale recorded in the Official Records of Los Angeles County on April 24, 2023, as Instrument No. 20230263338. 

Requests 1 to 8, and 13 are GRANTED. (Cal. Evid. Code § 452(d), (h).) The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language….¿ From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 939.) 

Requests 9 to 11 are GRANTED. (Cal. Evid. Code § 452(d).) 

III. DEMURRER 

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (CCP § 430.41(a).)¿¿¿ 

On June 27, 2024, defense counsel filed a declaration in support of automatic extension, Defense counsel attests that he telephonically attempted to reach out to Plaintiff and that he did not receive a call back. (Luu Decl. ¶¶ 8-9.) The Court finds Defendants have fulfilled the meet and confer requirement prior to filing the demurrer. 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿¿ 

“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. (Code Civ. Proc., §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 (internal citations omitted).) 

Defendants first contention is that Plaintiff has no standing, because the challenged assignments are voidable and not void as alleged. Indeed, under California law, a wrongful foreclosure plaintiff who wishes to challenge an assignment to a foreclosing entity as void has standing to do so. (Yvanova v. New Century Mortgage (2016) 62 Cal.4th 919, 942-943.) However, the plaintiff has no standing when the challenged assignment is not void but merely voidable. (Id. at p. 930 [a borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable asserts an interest “belonging solely to the parties to the assignment rather than to herself” and therefore lacks standing]; see also Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 815.) Therefore, Plaintiff’s standing to sue for wrongful foreclosure depends on whether the challenged assignment was void or voidable. 

The TAC alleges the October 13, 2014 Corporate Assignment Deed of Trust is void because (1) Kimberly Samonte was not authorized by CitiMortgage, Inc. to execute the documents to transfer CitiMortgage, Inc.’s interest to in the Deed of Trust to Federal National Mortgage Association (“FNMA”) (TAC ¶¶ 17, 19-20), (2) the August 4, 2016 substitution of Trustee is void because FNMA was never validly assigned Plaintiff’s Note and Deed of Trust and therefore lacked authority to substitute Clear Recon Corp. (“CRC”) as successor trustee (TAC ¶ 22), (3) the second substitution of trustee on September 16, 2019 is void because the party executing the substitution lacked contractual authority as a Loan Servicer of the Lender (TAC ¶ 32), and (4) the third assignment of Deed of Trust is void based on fraud for an allegedly forged signature of a former employee, and therefore U.S. Bank was never a valid successor beneficiary of Plaintiff’s Note and Deed of Trust to for the Property to be subject to a foreclosure sale process (TAC ¶ 35). 

Plaintiff’s allegations center around her dispute that the assignor or assignee lacked corporate authority to execute the documents. Such a defect can be challenged by the parties to the assignment, and not by Plaintiff. This is a question of apparent authority (Rest.3d Agency §§ 2.03, 3.03) or of ostensible authority (Civ. Code §§ 2317, 2334). The parties who have standing to challenge the assignment based on lack of legal authority are the parties to the assignment, not Plaintiff as mortgagor-borrower. Accordingly, the contract is merely voidable. That being the case, the Court agrees that Plaintiff lacks standing to challenge the assignments. Plaintiff has not opposed the motion demonstrating otherwise. 

Defendants’ second contention is that all four causes of action are barred due to Plaintiff’s failure to tender, which is a condition precedent to any action challenging a foreclosure sale. Defendants argue that Plaintiff’s allegations that she is excused from the tender rule fails because Plaintiff has only alleged irregularities with the sale notice and procedures, which would make the sale voidable rather than void. Additionally, Defendants argue Plaintiff has failed to allege fraud with specificity, and that the TAC’s allegations are nearly identical to those contained in the SAC. 

“The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.¿ They 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 but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.’” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.) 

Judge Feeney previously sustained Defendants’ demurrer against Plaintiff’s SAC with leave to amend. The court at the time explained that plaintiffs seeking to maintain a cause of action for irregularities in the sale procedure are generally required to allege tender of the amount owing. (FPCI RE-HAB 01 v. E&G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021–1022.) The court stated, “Plaintiff must plead that she satisfied the tender rule to bring the claims in the SAC because each claim is implicitly integrated with the foreclosure proceedings and the foreclosure sale of the subject property.” (Min. Order, Oct. 17, 2023.) 

Here, rather than add any allegations that Plaintiff satisfied the tender rule, Plaintiff instead adds to the TAC that she was excused from pleading satisfaction of the tender rule. TAC alleges that Plaintiff is excused from pleading as such because the trustee’s deed is void on its face as a result of the foreclosing trustee not being validly substituted in as a successor trustee, and therefore not having the contractual and legal authority to foreclose on the Property. (TAC ¶ 87.) Plaintiff also alleges she was not required to tender the amounts due because of offset, and that the prior assignments of Deeds of Trust and prior Substitutions of Trustee are defect, and therefore void. (TAC ¶¶88-90.) Where a complaint only alleges procedural irregularities with the sale notice and procedure, the trustee’s deed upon sale is voidable, not void. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802.) As explained above, the Court agrees with Defendants that the alleged irregularities are voidable rather than void, such that Plaintiff may not circumvent the tender rule. 

Defendants further argue that aside from the issue with the tender rule, Plaintiff has not specifically pled sufficient facts to maintain a cause of action for fraud by deceit and for quiet title, and pursuant to the judicially noticed documents. As to the last cause of action for declaratory relief, Plaintiff’s claim for declaratory relief is derivative of the foreclosure and related claims. As these claims are not viable, neither is Plaintiff’s claim for declaratory relief. Plaintiff has not opposed Defendants’ motion to present arguments demonstrating otherwise. 

III. CONCLUSION 

The burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff did not oppose the motion, and therefore necessarily fails to meet this burden. Further, a failure to oppose a motion may be deemed a consent to the granting of the motion. (CRC, Rule 8.54.) 

This is the second time Plaintiff’s operative complaint has been subject to a demurrer. Additionally, Plaintiff notably did not respond to defense counsel’s attempts to meet and confer, nor did she file any opposition to the motion. Defendants’ demurrer to the TAC is therefore SUSTAINED without leave to amend.  

Because the demurrer to the entirety of the TAC is sustained without leave to amend, the motion to strike the TAC is therefore MOOT. 

Moving Party is ordered to give notice. 

DATED: September 4, 2024 

__________________________ 

Hon. Michelle C. Kim