Opinion
A147014
05-09-2018
KIMBERLY CROMWELL, Plaintiff and Appellant, v. WELLS FARGO, N.A. et al., Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] THE COURT: It is ordered that the opinion filed herein on May 9, 2018, be modified as follows:
On page 14, in the first full paragraph, add footnote 9 (which will require renumbering of all subsequent footnotes), following the citation to Civil Code section 2924h(c). Footnote 9 shall read:
9 In a petition for rehearing, Cromwell, relying upon a decision of the Appellate Division of the San Diego County Superior Court, argues that certain of her claims were not time-barred because the trustee's deed upon sale was not recorded until July 29, 2010, three days after the foreclosure sale. However, that case, U.S. Financial, L.P. v. McLitus (2016) 6 Cal.App.5th Supp. 1, concerned a different issue: when title is deemed perfected for purposes of Code of Civil Procedure section 1161a, which requires a plaintiff to have perfected both the sale and the title in order to bring a summary unlawful detainer action for possession. Regardless of the date on which title may have been technically perfected, Cromwell suffered harm for purposes of triggering the statute of limitations when her property was sold at foreclosure. In any event, the Second District Court of Appeal later disagreed with the holding in U.S. Financial, L.P. v. McLitus, supra,
and the California Supreme Court has granted review. (Dr. Leevil, LLC v. Westlake Health Care Center (2017) 9 Cal.App.5th 450, review granted June 14, 2017, S241324.)
There is no change in the judgment.
Cromwell's petition for rehearing is denied.
(Streeter, Acting P.J., Reardon, J., and Schulman, J. participated in the decision.) Dated: __________
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
/s/_________, Acting P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVMSC14-01351)
Plaintiff Kimberly Cromwell (Cromwell) defaulted on her home mortgage. In June 2008, Cromwell filed an action for declaratory relief, quiet title, and fraud against some of the parties involved in the foreclosure of her property. That case went to trial, the trial judge granted judgment in favor of defendants, and this Court affirmed. (Cromwell v. NDeX West, LLC (Oct. 18, 2012, A129374) [nonpub. opn.] ("Cromwell I").)
In July 2014, four years and three days after her property was sold at a trustee's sale, Cromwell filed this second action ("Cromwell II") asserting multiple causes of action against many of the same parties. The trial court sustained respondents' demurrers to her first amended complaint (FAC) without leave to amend and entered a judgment of dismissal. We affirm the judgment on two independent grounds: that Cromwell's claims are barred in substantial part by res judicata, and in their entirety by the applicable statutes of limitations. Finally, the trial court did not abuse its discretion in denying Cromwell leave to amend.
Respondents are Wells Fargo Bank, N.A. (Wells Fargo), Deutsche Bank National Trust Company, as Trustee of Morgan Stanley Capital I, Inc. Trust 2006-NC2 (Deutsche), NDeX West, LLC (NDeX), Morgan Stanley Mortgage Capital, Inc., and Morgan Stanley Capital I, Inc. (together, Morgan Stanley). All but Morgan Stanley were defendants in Cromwell I.
I. FACTUAL BACKGROUND
We summarize the record based on the properly pleaded factual allegations and matters subject to judicial notice, including the exhibits attached to the first amended complaint and our prior opinion. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) We assume the truth of Cromwell's allegations except for claims contradicted by judicially noticeable fact. (See Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751.)
A. The Loan and Deed of Trust
In November 2005, Cromwell obtained a loan in the amount of $509,600 to purchase a house at 2405 Shelbourne Way in Antioch (the property) from New Century Mortgage Corporation (NCMC). Cromwell executed a deed of trust on the property that named NCMC as the lender and beneficiary and Fidelity National Title Company as trustee. The deed of trust provided that "Lender, at its option, may from time to time appoint a successor trustee" by recording an instrument executed and acknowledged by Lender. NCMC sold the loan to The Morgan Stanley Loan Trust 2006-NC. Deutsche is the trustee for this trust and it retained Wells Fargo to service the loan.
We disregard Cromwell's allegation in the FAC that the amount of the loan was $506,000, which is inconsistent with the face amount of the attached Note.
In 2006, Cromwell failed to make her required mortgage payments. On January 7, 2008, NDeX commenced nonjudicial foreclosure on the property by recording a Notice of Default and Election to Sell under Deed of Trust. On February 12, 2008, NDeX was substituted as trustee under the deed of trust. The Assignment of Deed of Trust was executed on March 26, 2008, and recorded on April 9, 2008. NDeX subsequently noticed a trustee's sale of the property to be held on May 22, 2008.
B. The Cromwell I Action
In 2008, Cromwell filed an action against all respondents other than Morgan Stanley. In her second amended complaint, filed on January 20, 2009, she sought a declaration that respondents lacked standing to foreclose because they were not entitled to enforce the deed of trust. She also sought to quiet title against respondents' claims that they had any interest in the property. Cromwell further alleged a fraud cause of action based on alleged misrepresentation of the terms of the loans and failure to disclose material facts.
Deutsche and ASC (America's Servicing Company, a division of Wells Fargo) moved to sever trial of the legal and equitable claims. The trial court granted the motion, ruling that it would try the declaratory relief and quiet title causes of action prior to the fraud claim. After a two-day bench trial, the trial court granted respondents' motion for a judgment pursuant to Code of Civil Procedure, section 631.8. The court found that respondents were entitled to foreclose on the loan, that Cromwell had defaulted on it, that notice of default was recorded, and that she had not made any payments on the loan since 2008 or shown that she had the ability to tender the sums due. Based on these findings, the court ruled that there was no basis on which to proceed on the fraud cause of action.
This Division affirmed, holding that "the statutory scheme for nonjudicial foreclosures ([Civ.] Code, §§ 2924-2924k) does not provide for a preemptive suit challenging standing to initiate a foreclosure." (Cromwell I, supra, A129374 at p. 1.) The court observed that rather than a preemptive suit challenging respondents' standing to seek nonjudicial foreclosure of her property, "Cromwell's remedy was to seek to set aside the trustee's sale of her property." (Id. at p. 5.) In the alternative, we held, the trial court properly found that Cromwell failed to prove that respondents lacked standing to pursue nonjudicial foreclosure. In particular, "the evidence adduced at the trial demonstrated that Deutsche was in possession of the promissory note at issue in this case. It further established that Deutsche had authority to foreclose on the note, that it authorized ASC to service the loan and NDeX to initiate foreclosure, and that Cromwell defaulted on the note." (Id. at p. 6.) The court also noted it was undisputed that Cromwell had not tendered the amount due on the loan. (Id. at fn. 4.) "On this record," the court concluded, "it is clear that Cromwell was not entitled to declaratory relief or to quiet title." (Id. at p. 6.)
C. The Trustee's Sale
On July 26, 2010, NDeX held a trustee's sale of the property to Deutsche as trustee of the Morgan Stanley Trust. The Trustee Deed Upon Sale was recorded on July 29, 2010. Cromwell was later evicted from the property, following an unlawful detainer judgment that was affirmed on the ground Cromwell had not tendered the amount due in order to dispute the acquisition of title.
D. The Current Action (Cromwell II)
On July 29, 2014, more than four years after the trustee's sale of the property, Cromwell filed the instant action. She filed her first amended complaint (FAC) in May 2015 before serving it on respondents. Cromwell sought to state seven causes of action: (1) cancellation of instruments, (2) slander of title, (3) wrongful foreclosure, (4) fraud and deceit, (5) violation of Business and Professions Code section 17200 et seq., (6) RICO and civil conspiracy to commit fraud, and (7) unjust enrichment. The FAC repeated allegations from the prior action challenging the validity of the assignment of the deed of trust, but also added allegations regarding, among other things, the practice of "table funding" of the original 2005 loan, which Cromwell alleged was concealed from her. It sought an order declaring the note and deed of trust void and unenforceable; an order cancelling the recorded deed of trust and related documents "so as to clear title to the Subject Property"; an order declaring the foreclosure wrongful and returning title to Cromwell; disgorgement of all profits made by respondents from the allegedly wrongful foreclosure; and unspecified damages and punitive damages.
" 'Table-funding' is defined as 'a settlement at which a loan is funded by a contemporaneous advance of loan funds and an assignment of the loan to the person advancing the funds.' [Citation] In a table-funded loan, the originator closes the loan in its own name, but is acting as an intermediary for the true lender, which assumes the financial risk of the transaction. The timing of the assignment is therefore sometimes pivotal in determining whether a residential mortgage loan is table-funded because the determinative question is who bears the risk of the transaction." (Easter v. American West Financial (9th Cir. 2004) 381 F.3d 948, 955 (fn. omitted).)
Respondents demurred to the FAC on three grounds: that it was barred by res judicata, that each cause of action was barred by the applicable statutes of limitations, and that the FAC failed to allege facts constituting viable claims. The trial court took judicial notice of Cromwell I, including Cromwell's complaint and our opinion in that case, and sustained the demurrer on the first ground. The court reasoned that both actions concerned the same property and recorded instruments and involved the same primary right: Cromwell's right to void the recorded instruments. As to the Morgan Stanley entities, which were not parties to the prior action, the court reasoned that issue preclusion applied because Cromwell I had rejected Cromwell's theory that respondents had no valid interest in the subject loan. The court denied leave to amend, ruling that Cromwell had not met her burden of showing in what manner she could amend the complaint and how that amendment would change the legal effect of her pleading. It entered a judgment of dismissal. This appeal followed.
II. DISCUSSION
Cromwell challenges the trial court's ruling that her lawsuit is barred by the res judicata effect of the judgment in Cromwell I. She also contests respondents' alternative ground for demurrer, arguing that her claims are not time-barred. We agree that the lawsuit is barred in substantial part by res judicata. We also hold that all of the claims in the FAC are time-barred. Finally, we hold that the trial court properly sustained the demurrer to the FAC without leave to amend.
A. Res Judicata
Cromwell contends that the trial court erred in finding her action barred by res judicata, arguing that although the two actions involved the same property and recorded instruments and nearly all of the same parties, they were premised on different factual allegations and different primary rights. Respondents disagree, contending that the action is barred in its entirety by res judicata, including claim preclusion and issue preclusion.
" 'As generally understood, "[t]he doctrine of [res judicata] gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy.' [Citation.] The doctrine "has a double aspect." . . . "In its primary aspect," commonly known as claim preclusion, it "operates as a bar to the maintenance of a second suit between the same parties on the same cause of action. . . ." "In its secondary aspect," commonly known as collateral estoppel, "[t]he prior judgment . . . 'operates' " in "a second suit . . . based on a different cause of action . . . 'as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.'. . ." "The prerequisite elements for applying the doctrine to either an entire cause of action or one or more issues are the same: (1) A claim or issue raised in the present action is identical to a claim or issue litigated in a prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. . . ." ' " (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 (citations omitted); see also DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823-825.)
Here, there is no dispute that the last two elements of res judicata are satisfied as to those respondents who were also named as defendants in Cromwell I: that prior action resulted in a final judgment on the merits; and Cromwell was a party to both suits. The parties disagree, however, as to whether the first element is met. Cromwell contends that the first element is not met because the two actions involve separate theories and primary rights.
At the outset, it is important to establish what claims or issues were (and were not) decided in the prior action. There can be little question that to the extent Cromwell's action challenges the validity of the assignment of the deed of trust, it is barred by res judicata. As Cromwell acknowledges, her first amended complaint repeated "too many of the 2010 litigation issues." Indeed, Cromwell admitted below that "I made a mistake where I brought up too many of the issues of 2010," and she urged the trial court to "go in and cross out" the allegations she had repeated from the previous complaint. Despite those admissions, she nevertheless continues to challenge the validity of the assignment of the deed of trust, which she asserts was the product of a fraudulent conspiracy that resulted in a "fabricated and void Assignment." But the validity of that assignment was a key issue that was actually decided against her in the prior action. Indeed, Cromwell goes so far as to allege that the judgment in Cromwell I was the result of fraud on the court, an argument she repeats in her reply brief. As respondents correctly observe, Cromwell's insistence in the current action that the assignment was invalid is "an improper collateral attack on the judgment in Cromwell I and its findings." It would be hard to imagine a clearer admission that the current action is, in fact, barred in large part by the res judicata effect of the judgment in Cromwell I.
Mystifyingly, Cromwell asserts that the court "found the Assignment to be void in [Cromwell I]." The court reached no such conclusion; to the contrary, it explicitly found that "the evidence adduced at the trial demonstrated that Deutsche was in possession of the promissory note at issue in this case" and had authority to foreclose on the note.
Respondents, for their part, contend that the current action is barred because "the Cromwell I judgment necessarily decided that Cromwell's note and deed of trust were enforceable." Respondents appear to give an overly broad reading to our prior opinion, which held only that the statutory scheme for nonjudicial foreclosures does not allow a borrower to file a preemptive suit challenging a lender's standing to initiate a foreclosure, and that the evidence presented at trial established respondents' standing to pursue such nonjudicial foreclosure. We made clear, however, that our holding would not preclude Cromwell from seeking to set aside the trustee's sale after it occurred by way of a claim for wrongful foreclosure, which is among the claims Cromwell sought to plead in the FAC. Nor, apart from the standing issue, did we squarely decide any of Cromwell's claims on their merits. Accordingly, the res judicata effect of the prior judgment requires us to delve into the intricacies of California's primary rights doctrine.
Under the bar rule of claim preclusion, " 'a judgment for the defendant serves as a bar to further litigation of the same cause of action.' [Citation.] . . . [¶] For purposes of the bar rule, California law identifies a single cause of action as 'the violation of a single primary right.' [Citation.] 'The plaintiff's primary right is the right to be free from a particular injury, regardless of the legal theory on which liability for the injury is based. [Citation.] The scope of the primary right therefore depends on how the injury is defined. A cause of action comprises the plaintiff's primary right, the defendant's corresponding primary duty, and the defendant's wrongful act in breach of that duty. [Citation.]' [Citation.] Thus, under the bar rule, a complaint may contain several counts, each of which relies on a different legal theory, yet collectively assert only a single violation of a specific primary right, that is, a single cause of action. [Citation.]" (Boyd v. Freeman (2017) 18 Cal.App.5th 847, 854-855.) In applying the doctrine of res judicata, a "cause of action" is "the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced." (Boeken, supra, 48 Cal.4th at p. 798.) "Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right." (Ibid.)
Respondents assert that both actions sought to vindicate the same primary right, "namely, the asserted right to ownership of the property free and clear of Deutsche Bank's nonjudicial foreclosure proceedings." Cromwell disagrees. Without clearly articulating the distinct primary rights she contends are involved, she contrasts the two actions as follows: "[Cromwell I] assumed and admitted the Note and Deed of Trust as enforceable as she sought to prevent harm from the wrong parties claiming ownership. [Cromwell II] reaches beyond these instruments to the Defendants' tortious conduct in financing table funded loans in violation of California State law, resulting in Cromwell being deceived into a defective, sham financial transaction; and of [Deutsche] and Wells Fargo collusion in indorsing the Note to convert it to a negotiable instrument."
In asserting that her "table funding" theory of recovery is not barred by res judicata, Cromwell relies primarily on Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, but that case does not support her position. In Sawyer, sellers of land alleged defendants had conspired to cause a default on a note and first deed of trust and to hold a sham foreclosure sale to eliminate the purchasers' obligation to the sellers on a non-recourse note. In a prior action, they had sued essentially the same parties for breach of contract arising out of alleged nonpayment. The court emphasized that the two actions involved entirely distinct factual allegations and claims: "The first action is solely on contract and is based upon the note, deed of trust, and loan and development agreement. At the time of trial the principal issue litigated was the effectiveness of the waiver of deficiency judgment, and this issue was presented in the context of contractual theories. There was no contention and no evidence was presented relating to a possible invalidation of the waiver on grounds of fraud, misrepresentation or any other tort." (Id. at p. 402.) The later action, in contrast, "rests upon a completely separate set of facts. The complaint assumes and admits that the forms of the waiver of deficiency and the subordination are technically appropriate and enforceable. The pleading reaches beyond these documents, however, to highlight other conduct of the parties alleged to be tortious." (Ibid.) "Surely," the court concluded, "one's breach of contract by failing to pay a note violates a 'primary right' which is separate from the 'primary right' not to have the note stolen. . . . While the monetary loss may be measurable by the same promissory note amount, and hence in a general sense the same 'harm' has been done in both cases, theoretically the plaintiffs have been 'harmed' differently by tortious conduct destroying the value of the note, than by the contractual breach of simply failing to pay it." (Id. at pp. 402-403.) Accordingly, the court held that the second action was not barred by res judicata. (Id. at p. 403.)
In a transparent effort to bring her action within Sawyer, Cromwell mischaracterizes her own allegations and claims in Cromwell I. In her reply brief, Cromwell asserts that in Cromwell I, "all harms were based strictly in contract," contrasting that with the tort and statutory theories advanced here. But as we have shown, that contention is false: in Cromwell I, Cromwell brought fraud claims as well as contract claims. Further, far from "assum[ing] and admit[ing]" that the note and deed of trust were enforceable, as in Sawyer, the second amended complaint in Cromwell I expressly alleged that defendants had no authority to foreclose on the property because of their purported misrepresentations to her regarding the note and deed of trust, and she sought a declaration "that the mortgages securing the Subject Property are cancelled and void and that any security interests and promissory notes are void." Thus, the distinction Sawyer drew between contract claims for breach due to non-payment and tort claims seeking to invalidate the underlying note does not apply here.
Cromwell sought in both actions to vindicate the same primary right: her claim to ownership of the property, free and clear of the nonjudicial foreclosure proceedings and of the assertedly void promissory note and deed of trust. While she seeks in this action to advance that right on the basis of a somewhat different legal theory, the res judicata bar applies "regardless of the specific remedy sought or the legal theory (common law or statutory) advanced." (Boeken, supra, 48 Cal.4th at p. 798.) "This case is a clear instance of a single 'primary right' which is sought to be asserted, after an adverse judgment in a first lawsuit, in a second proceeding, albeit somewhat 'based on a different theory . . . or seek[ing] a different remedy. . . .' " (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1250 [res judicata barred second lawsuit by shopping center owner addressing same primary right concerning plaintiff's interest in constructing building on portion of property]; see also Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914 ["It matters not that appellant has a new theory of wrongful foreclosure. It is the same primary right which appellant has always claimed"].) Accordingly, Cromwell's claims against all respondents other than Morgan Stanley are barred by res judicata.
Because Morgan Stanley was not a party to Cromwell I, the res judicata analysis of Cromwell's claims in the FAC against Morgan Stanley is somewhat different. Under those circumstances, the question is whether issue preclusion or "collateral estoppel," the secondary aspect of the res judicata doctrine, applies. (See DKN Holdings, LLC, supra, 61 Cal.4th at pp. 824-825.) Issue preclusion differs from claim preclusion in two ways: it prevents relitigation of previously decided issues, and can be invoked by one who was not a party or privy in the first suit. (Id. at p. 824.) Thus, "issue preclusion applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." (Id. at p. 825.) Whether the two lawsuits involved the same primary right is beside the point. (Ibid.)
Cromwell argues that issue preclusion is inapplicable because Morgan Stanley is "[n]ot [i]n [p]rivity" with the other respondents. That argument is confused: the privity requirement applies to the person against whom issue preclusion is asserted (if that person or entity was not a party to the first suit), not to the nonparty who seeks to invoke issue preclusion. Thus, in DKN Holdings, LLC, supra, DKN was a landlord that sued Caputo, one of several tenants that were jointly and severally liable on a lease, and secured a final judgment on the merits against him. It then sued the other two tenants, who had been named but were never served in the first action. One of those tenants, Faerber, urged that the claim against him was barred because DKN had successfully sued Caputo on the claim. The court rejected that argument, explaining, "Claim preclusion does not bar DKN from suing Faerber because Faerber is not 'the same party' who defended the cause of action in the first suit, nor was he in privity with Caputo based on their business partnership or cosigner status." (61 Cal.4th at p. 825.) Here, in contrast, Morgan Stanley is seeking to invoke claim preclusion against Cromwell, who is the same party who defended the cause of action in the first suit. Privity has nothing to do with it.
Independent of Cromwell I, respondents argue that Cromwell is barred by the judgment against her in the unlawful detainer proceeding from challenging the trustee's sale and the validity of title. (See, e.g., Ayala v. Dawson (2017) 13 Cal.App.5th 1319; Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968.) However, respondents have not complied with California Rules of Court, rule 8.204(a)(1)(B) in making that argument, it does not appear to have been raised below, and the record on appeal does not contain the unlawful detainer judgment or pleadings. Accordingly, we do not reach this issue.
That said, we are not persuaded by respondents' argument that the issues actually litigated and decided in Cromwell I are "identical" to those raised in the instant action. As discussed above, while the trial court found that respondents had standing to bring a nonjudicial foreclosure action, it did not determine the validity of the foreclosure sale itself, which had not yet occurred at the time of its ruling. Ultimately, however, we find it unnecessary definitively to resolve that question because the trial court's judgment must be sustained on the independent ground that all of Cromwell's claims are time-barred.
While the trial court did not reach this alternative ground, we may, of course, affirm its judgment on any ground supported by the record. (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)
B. Statute of Limitations
" 'Statute of limitations' is the collective term applied to acts or parts of acts that prescribe 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 (Fox).) A plaintiff must bring a claim within the limitations period after the cause of action accrued, which happens " 'when the cause of action is complete with all of its elements.' " (Id.) Under the "last element" accrual rule, the statute of limitations ordinarily runs from the occurrence of the last element essential to the cause of action—wrongdoing, causation, and harm. (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.)
Here, Cromwell does not dispute that all of her claims in the FAC are governed by statutes of limitations of at most four years. It is also undisputed that the trustee's sale of the property occurred on July 26, 2010, and that Cromwell filed this action more than four years later, on July 29, 2014.
The statute of limitations is three years for cancellation of instruments (Code Civ. Proc., § 338, subd. (d)); three years for slander of title (Code Civ. Proc., § 338, subd. (g)); three years for wrongful foreclosure (Code Civ. Proc., § 338, subds. (a), (d)); three years for fraud (Code Civ. Proc., § 338, subd. (d)); four years for violation of the Business and Professions Code (Bus. & Prof. Code § 17208); four years for RICO (Agency Holding Corp. v. Malley-Duff & Associates, Inc. (1987) 483 U.S. 143)); and three years for unjust enrichment (Code Civ. Proc., § 338, subd. (d)).
Here, the latest possible date that all the causes of action accrued was on the sale of the property in July 26, 2010. Without bothering to distinguish among her various claims, Cromwell contends first that they did not accrue on the date of the trustee's sale, but instead on the later date in 2011 on which she was evicted from the property. However, that contention is unsupported by any authority or analysis, and we may disregard it for that reason alone. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [each point must appear under a separate subheading and must be supported by argument and citation of authority]; Collin v. CalPortland Co. (2014) 228 Cal.App.4th 582, 600 [contention not presented under separate heading, with supporting factual analysis, forfeited].)
In any event, Cromwell's argument verges on the frivolous. As respondents have shown without dispute, all of Cromwell's claims accrued no later than July 26, 2010. It was on that date that her property was sold at foreclosure, resulting in the loss of title. (See Civ. Code, § 2924h(c) [trustee's sale shall be deemed final upon acceptance of last and highest bid].) That alleged harm is common to nearly all of her causes of action, including wrongful foreclosure, cancellation of instruments, fraud, and unjust enrichment. Indeed, other causes of action accrued earlier. For example, her claim for slander of title, which relates to the substitution of trustee and amended deed of trust, accrued on March 27 and April 9, 2008, when those instruments were recorded. (Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 929-930.) Similarly, her claim under the Unfair Competition Law relates to the origination of the loan and to the recording of the amended deed of trust, substitution of trustee, and notice of default, which occurred in 2005 and 2008.
Because Cromwell's causes of action all accrued outside the statutory limitations periods, the burden shifts to Cromwell to demonstrate her claims survive based on one or more nonstatutory exceptions to the basic limitations periods. (Aryeh, supra, 55 Cal.4th at p. 1197.) She has not carried that burden.
Cromwell contends primarily that the statute of limitations was tolled until May 23, 2012, when she claims to have discovered the facts underlying her allegations regarding "table funding," facts she alleges respondents fraudulently concealed from her. We disagree.
The discovery rule is an exception to the general rule governing when a cause of action accrues. It postpones the accrual of a cause of action "until the plaintiff discovers, or has reason to discover, the cause of action." (Fox, supra, 35 Cal.4th at p. 807.) Under the discovery rule, "suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period." (Id.) Thus, the limitations period is not tolled merely because a plaintiff is not yet sure that every specific legal element of a cause of action is met. (Id.)
In order to rely on the discovery rule for delayed accrual of a cause of action, a plaintiff must allege facts in the complaint to support its application. More specifically, a plaintiff must specifically plead facts to show " '(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.' " (Fox, supra, 35 Cal.4th at p. 808.) "In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to 'show diligence'; 'conclusory allegations will not withstand demurrer.' [Citation.]" Simply put, "a potential plaintiff who suspects that an injury has been wrongfully caused must conduct a reasonable investigation of all potential causes of that injury." (Ibid.) "A plaintiff need not be aware of the specific 'facts' necessary to establish the claim; that is a process contemplated by pretrial discovery. . . . So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her." (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)
Here, the undisputed record establishes that Cromwell suspected wrongdoing long before July 2010. As discussed above, by that time, she had already sued all respondents other than Morgan Stanley, gone to trial, lost, and appealed to this Court. Tellingly, among her original claims against respondents were claims for fraud and nondisclosure that substantially overlap with those she seeks to assert here. Further, in May 2010—even before the foreclosure sale took place—Cromwell filed a claim against NCMC in its bankruptcy proceeding. But, as Fox confirms, a plaintiff must conduct a reasonable investigation upon forming a general suspicion of some wrongdoing. (Fox, supra, 35 Cal.4th at p. 808.) Cromwell may not have known the full extent of respondents' alleged misconduct until an evidentiary hearing was held in NCMC's bankruptcy proceeding, but her suspicions—embodied in claims on which she had already conducted discovery and gone to trial—obligated her to conduct a reasonable investigation or to explain why she could not have acted sooner. She failed to do so. Nowhere in the FAC does Cromwell allege that she could not have earlier discovered the "table funding" of her loan and other purported misconduct by respondents through the exercise of reasonable diligence.
The bankruptcy claim itself is not included in the record on appeal.
For the same reasons, Cromwell's reliance on the fraudulent concealment doctrine is misplaced. Fraudulent concealment tolls the statute of limitations only while "the claim is undiscovered by plaintiff or until such time as plaintiff, by the exercise of reasonable diligence, should have discovered it." (Sanchez v. South Hoover Hospital (1976) 18 Cal.3d 93, 99; Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 821.) For the reasons discussed above, Cromwell has not carried her burden to show that she exercised reasonable diligence in discovering her purported new claims.
Cromwell also contends that equitable tolling of the limitations periods is appropriate. Again, we disagree.
Equitable tolling is a judicially created doctrine that, where applicable, will " 'suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.' " (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.) The doctrine applies " ' "[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one." ' " (Id. at p. 100.) For example, the plaintiff in McDonald pursued an internal administrative remedy before filing an untimely lawsuit. The California Supreme Court ruled that the statute of limitations was tolled because the plaintiff diligently pursued one of many possible legal avenues before the limitations period ran out. (Id. at p. 114.) Here, in contrast, Cromwell did not pursue an "alternate remedy" by filing her prior lawsuit. Rather, as discussed above, she unsuccessfully asserted fraud and other claims, but has failed to plead any facts establishing that she could not have discovered the additional facts she now seeks to assert or that she exercised reasonable diligence. Without a good faith pursuit of alternate remedies before four years elapsed, the equitable tolling doctrine simply does not apply. (See Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 434.)
Cromwell also contends her claims are not time-barred because the underlying deed of trust and trustee's deed upon sale are void and "[t]here is [n]o [t]ime [l]imit for [v]oid [i]nstruments." In Walters v. Boosinger (2016) 2 Cal.App.5th 421, the court recently rejected an identical argument. There, plaintiff brought a quiet title claim in 2013 challenging a 2003 grant deed that he asserted was void ab initio by reason of alleged fraud. (Id. at pp. 423-425 & fn. 17.) The trial court sustained a demurrer on the ground that the quiet title cause of action was barred by a three-year statute of limitations. (Id. at p. 427.) On appeal, appellant—like Cromwell here—asserted that "a quiet title claim based on the theory that a deed is void ab initio is not subject to any statute of limitation and that 'an action thereon can be brought at any time.' " (Id. at p. 428.) The court flatly rejected the contention, observing that numerous courts had concluded that an action to cancel a deed on the ground that the deed is void is subject to a statute of limitations, and that the sparse contrary authority, which dated to 1901, was no longer valid and should not be followed. (Id. at pp. 428-433.) Accordingly, the court held the trial court did not err in determining that the quiet title claim was time-barred by the applicable statute of limitations. (Id. at p. 433.)
The single dated case on which Cromwell relies likewise does not support her position. (See Richman v. Bank of Perris (1929) 102 Cal.App. 71, 90-91 [six-month statute of limitations on claims to recover for delinquent assessments, former Civ. Code, § 347, does not apply if assessment was void].)
Finally, Cromwell refers in passing to the continuing violation doctrine, but fails to cite any allegations of wrongs or injuries that occurred less than four years before she filed the action that could justify the application of that doctrine. Cromwell's unsupported argument is insufficient to preserve the issue. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) In any event, "nothing in the operative complaint alleges the presence of factors that might warrant application of the continuing violation doctrine." (Aryeh, supra, 55 Cal.4th at p. 1198.)
C. Leave to Amend
The trial court denied Cromwell leave to amend, ruling that she had "not met her burden of showing in what manner she can amend her Complaint and how that amendment will change the legal effect of her pleading." We review that ruling to determine "whether on the pleaded and noticeable facts there is a reasonable possibility of an amendment that would cure the complaint's legal defect or defects." (Yvanova v. New Century Mortgage Corp., supra, 62 Cal.4th at p. 924.) "[T]he burden falls upon the plaintiff to show what facts he or she could plead to cure the existing defects in the complaint. [Citation.] 'To meet this burden, a plaintiff must submit a proposed amended complaint or, on appeal, enumerate the facts and demonstrate how those facts establish a cause of action.' [Citation.]" (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 792.) "The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the 'applicable substantive law' [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.]' " (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491.)
Cromwell contends that the trial court abused its discretion in denying her leave to amend. Although she refers in her briefs to a handful of facts she contends could be added in a further amended complaint, however, that discussion falls far short of meeting the standards delineated above. Cromwell has not met her burden to show a reasonable possibility that she could further amend the complaint to overcome the dispositive defects we have discussed.
Respondents also argue that Cromwell's claims failed to state facts sufficient to constitute a cause of action. We need not reach those additional arguments.
III. DISPOSITION
The judgment of dismissal is affirmed.
/s/_________
Schulman, J. We concur: /s/_________
Streeter, Acting P.J. /s/_________
Reardon, J.
Judge of the Superior Court of California, City and County of San Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------