Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC368111, Aurelio Munoz, Judge.
Melike Dewey, in pro. per., for Plaintiff and Appellant.
Spierer, Woodward, Corbalis & Goldberg, Peter Rustin and Eileen M. Horschel for Defendants and Respondents David Kim, John A. Woodward, Corporation Services, Inc., Peter Rustin, Eileen M. Horschel, and Spierer, Woodward, Corbalis & Goldberg.
Lawrence T. Higgins, in pro. per., for Defendant and Respondent.
KLEIN, P. J.
Plaintiff and appellant Melike Dewey (Dewey), in propria persona, appeals a judgment of dismissal following the sustaining without leave of demurrers interposed by defendants and respondents David Kim (Kim), John A. Woodward (Woodward), Corporation Services, Inc. (CSI), Peter Rustin (Rustin), Eileen M. Horschel (Horschel), Spierer, Woodward, Corbalis & Goldberg (the Spierer firm), and Lawrence T. Higgins (Higgins).
The essential issue presented is whether Dewey stated a cause of action for wrongful foreclosure of certain real property.
The record reflects Dewey previously has litigated her claim of wrongful foreclosure and that claim was resolved adversely to her. We conclude Dewey’s complaint fails to state a cause of action and is incapable of being amended to state a claim. Therefore, the judgment of dismissal is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Higgins was a real estate agent affiliated with Dewey, a real estate broker.
Dewey was the trustor on a deed of trust on certain real property in Blue Jay, California (the Blue Jay property). Higgins was the beneficiary of said deed of trust.
On February 8, 2006, a notice of default was filed on the Blue Jay property.
1. Dewey’s first lawsuit against Higgins.
In March 2006, Dewey filed suit against Higgins in the Los Angeles Superior Court for breach of contract. In that action, Dewey claimed she was owed $11,250 in broker’s compensation in a certain transaction, as well as $27,800 in lost compensation after a certain property owned by Dominique Reid was taken off the market.
2. Dewey’s second lawsuit against Higgins.
In April 2006, Dewey filed a second lawsuit against Higgins, this time in the San Bernardino Superior Court. This complaint reiterated Dewey’s claims for lost commissions on the Reid property, and added a claim against Higgins for wrongful foreclosure of the Blue Jay property.
3. Foreclosure proceedings.
On May 22, 2006, a notice of trustee’s sale was filed on the Blue Jay property.
On July 11, 2006, the San Bernardino Superior Court stayed the foreclosure until proper notice of default was served upon Dewey.
4. Arbitration and related proceedings.
In November 2006, Dewey and Higgins stipulated to binding arbitration for both cases.
In an award filed February 20, 2007, the arbitrator found in favor of Higgins on various issues, including the Higgins loan.
On March 9, 2007, Dewey moved to vacate the arbitration award and to vacate foreclosure. Dewey’s theory was that Higgins, as the beneficiary of the deed of trust on the Blue Jay property, took an “action” for the recovery of the $60,000 loan by engaging in the arbitration without a foreclosure of the security, and was therefore barred by the one form of action rule (Code Civ. Proc., § 726) from proceeding with the foreclosure.
The trial court denied the motion to vacate the award and continued the hearing on the motion to vacate foreclosure to April 11, 2007.
On March 20, 2007, the Blue Jay property was sold at a trustee’s sale.
On April 11, 2007, the trial court denied the motion to vacate foreclosure.
Thereafter, the trial court granted a petition by Higgins to confirm the arbitration award and ordered Dewey to pay Higgins attorney fees in the sum of $24,584 as well as $4,127 in costs. The trial court also granted Higgins’s motion to declare Dewey a vexatious litigant, so as to prohibit Dewey from filing any new litigation in California without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. The order requires Dewey to furnish security in the sum of $25,000 for the benefit of the moving defendant.
5. The instant lawsuit.
On March 19, 2007, before entry of the order declaring Dewey a vexatious litigant, Dewey filed a third lawsuit against Higgins. The instant lawsuit, which was filed in the Los Angeles Superior Court, alleges causes of action for (1) wrongful foreclosure of the Blue Jay property and (2) fraud. In addition to Higgins, the lawsuit named as defendants Kim, Woodward, CSI, Rustin, Horschel and the Spierer firm. The complaint alleged Higgins, Woodward, Kim and CSI (trustee on the deed of trust) conducted the trustee’s sale of the Blue Jay property. The other defendants, Rustin, Horschel and the Spierer firm, were mentioned only in the caption of the complaint.
a. Entry of default as to two of the seven defendants.
On June 21, 2007, the clerk of the court entered default as to defendants Rustin and Kim.
Dewey’s attempts to obtain entry of default as to the five other defendants were rejected by the clerk.
The clerk rejected default as to Woodward because the original signed return receipt was not submitted to the clerk and the proof of service was incomplete. Default was rejected as to Higgins because the attempted service of the summons and complaint by mail was not acceptable; personal service was required. The clerk rejected default as to Horschel because the name of the defendant on the proof of service did not match the name on the complaint. With respect to CSI, entry of default was rejected because the name of the defendant on the proof of service did not match the name of the defendant on the complaint. Finally, with respect to the Spierer firm, entry of default was rejected because the name and title of the person served were not identified.
b. Demurrer by all seven defendants.
On June 25, 2007, even though two of the defendants were in default, all seven defendants filed a demurrer to the original complaint. The moving papers asserted both the first cause of action for wrongful foreclosure, and the second cause of action for fraud, failed to state facts sufficient to constitute a cause of action. The demurrer was accompanied by a request for judicial notice of various materials, including the April 11, 2007 ruling by the San Bernardino Superior Court denying Dewey’s motion to vacate foreclosure.
On July 31, 2007, the matter came on for hearing. The trial court sustained the demurrers to the original complaint without leave to amend, ruling “the subject matter of the instant complaint has been the subject of an arbitration before a retired judge of the Superior Court. That ruling is now final. The complaint in this case appears to be an attempt to avoid the effects of the prior rulings. This she cannot do.”
On August 24, 2007, the trial court entered a judgment of dismissal in favor of all the defendants. This appeal followed.
CONTENTIONS
Dewey contends: the demurrer filed by Kim and Rustin was a legal nullity because their defaults already had been entered; defaults should have been as to all the defendants; and the trial court erred in sustaining the demurrers without leave to amend.
DISCUSSION
1. Trial court erred in entertaining demurrers by defendants Kim and Rustin, but error was harmless.
As noted, on June 21, 2007, the clerk entered the defaults of defendants Kim and Rustin. The effect of the entry of default is to cut off a defendant’s right to take further affirmative steps such as filing a pleading or motion. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960.) Therefore, the trial court erred in subsequently entertaining the demurrers as to these two defaulting defendants.
Nonetheless, the trial court’s error in this regard was harmless because, as explained in section 3 of our opinion, the complaint failed to state a cause of action. Therefore, irrespective of the entry of default against Kim and Rustin, Dewey could not have obtained default judgments against them. A complaint which fails to state a cause of action cannot serve as the basis for a default judgment, and the insufficiency of the pleading would have been reviewable on an appeal from a default judgment. (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767.) Further, the failure of a complaint to state a cause of action is never waived and may be raised for the first time on appeal. (Code Civ. Proc., § 430.80, subd. (a); Falahati v. Kondo (2005) 127 Cal.App.4th 823, 831, fn. 18.)
In sum, because the complaint against Kim and Rustin was not well pled, the trial court’s procedural error in entertaining their demurrers was harmless. Because the complaint failed to state a cause of action against Kim and Rustin, the judgment of dismissal in favor of said defendants was correct in result and must be affirmed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
2. No merit to contention defaults should have entered as to all the defendants.
Dewey asserts defaults should have been entered as to all seven of the defendants. The contention fails.
As set forth in footnote 1, ante, the clerk rejected the requests for entry of default against Woodward, Higgins, Horschel, CSI and the Spierer firm on various grounds. For example, the clerk rejected default as to Woodward because the original signed return receipt was not submitted to the clerk and the proof of service was incomplete.
Although Dewey asserts she was entitled to entry of default as to all of the defendants, she has not shown any error with respect to the clerk’s grounds for refusing to enter default as to these five defendants. Therefore, we reject this contention.
3. Trial court properly sustained demurrers without leave to amend.
The remaining issue is whether the complaint states a cause of action against any of the defendants.
a. Wrongful foreclosure.
In the first cause of action of the instant complaint, Dewey pled wrongful foreclosure of the Blue Jay property, based on “the violation of One-Action Rule.” Dewey’s theory was that because Higgins engaged in, and prevailed in, the arbitration proceeding, Higgins was barred from foreclosing on the property.
The record reflects that previously, in the lawsuit filed in San Bernardino Superior Court, Dewey already had sued Higgins for wrongful foreclosure of the Blue Jay property. That claim was arbitrated and was resolved in Higgins’s favor in the award filed February 20, 2007.
Thereafter, the Blue Jay property was sold at a trustee’s sale.
Dewey filed an unsuccessful motion in the San Bernardino Superior Court to vacate the foreclosure. Dewey’s theory was that Higgins, as the beneficiary of the deed of trust on the Blue Jay property, took an “action” for the recovery of the $60,000 loan in the arbitration without a foreclosure of the security, and was therefore barred by the one form of action rule (Code Civ. Proc., § 726) from proceeding with the foreclosure. That failed theory is identical to the theory which Dewey is attempting to assert in the first cause of action of the instant complaint.
Therefore, as the trial court found in sustaining the demurrers without leave to amend, the subject matter of the instant complaint, i.e., the alleged wrongful foreclosure of the Blue Jay property, already has been litigated and resolved against Dewey. “The complaint in this case appears to be an attempt to avoid the effects of the prior rulings. This she cannot do.” We conclude, as did the trial court, that Dewey has not stated a cause of action for wrongful foreclosure of the Blue Jay property, and that she is incapable of amending her pleading to do so.
Therefore, the trial court properly sustained the demurrers to the wrongful foreclosure claim without leave to amend.
b. Fraud.
It is settled that fraud must be pled with particularity. (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 362.) Here, with respect to fraud, Dewey merely checked box 10c (Intentional Tort) on the form complaint. Next to box 10c, Dewey interlineated “Fraud Case #BC349817.” It is self evident these “allegations” do not state a cause of action for fraud.
Further, Dewey has not indicated how she could amend her complaint to plead a proper claim for fraud.
Therefore, the trial court properly sustained the demurrers to the fraud claim without leave to amend.
DISPOSITION
The judgment of dismissal is affirmed. Respondents shall recover their costs on appeal.
We concur: KITCHING, J., ALDRICH, J.