Opinion
E075493
05-08-2023
ALESIA ELLIS, Plaintiff and Appellant, v. BANK OF AMERICA, N.A. et al., Defendants and Respondents
Richland & Associates and Felipa Richland; Stoller Law Group and Michael T. Stoller for Plaintiff and Appellant. McGUIREWOODS, Tanya L. Greene and Adam F. Summerfield for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. CIVDS1812687, Donald R. Alvarez, Judge. Affirmed.
Richland & Associates and Felipa Richland; Stoller Law Group and Michael T. Stoller for Plaintiff and Appellant.
McGUIREWOODS, Tanya L. Greene and Adam F. Summerfield for Defendants and Respondents.
OPINION
FIELDS, J.
I. INTRODUCTION
In 2006, plaintiff and appellant Alesia Ellis's mother obtained a mortgage loan (the loan) secured by real property located in Yucca Valley (the property). The property was eventually sold in a nonjudicial foreclosure in January 2015. As a result, both plaintiff and her mother filed a civil suit against multiple financial institutions, including defendants and respondents Bank of America, N.A. and Countrywide Home Loans, Inc. (collectively, BOA defendants), in the Superior Court of San Bernardino County, bearing case No. CIVDS1503108 (Ellis I).
The complaint initially identified these defendants as BAC Home Loans Servicing, LP and America's Wholesale Lender. However, defendants answered the complaint with their correct names and were identified as such in subsequent pleadings.
While Ellis I was still pending, plaintiff's mother died and plaintiff was appointed the administrator of her mother's estate. Instead of seeking leave to amend the pleading in Ellis I, plaintiff filed a new suit in May 2018, bearing case No. CIVDS1812687 (Ellis II). The original complaint in Ellis II acknowledged that it was based upon the same facts asserted in Ellis I and that the two matters should be decided together, but it did not name BOA defendants as parties. However, on December 5, 2018, plaintiff filed a first amended complaint in Ellis II, adding all of the factual allegations and all of the named defendants from the original complaint in Ellis I.
In May 2019, plaintiff voluntarily dismissed Ellis I in response to a motion to compel discovery responses. BOA defendants then answered the first amended complaint in Ellis II and moved for judgment on the pleadings pursuant to Code of Civil Procedure section 438. The trial court granted judgment on the pleadings; denied plaintiff's separately filed motion for leave to file a second amended complaint; entered judgment in favor of BOA defendants; and denied a motion for reconsideration. Plaintiff appeals from the judgment, arguing that the trial court (1) erred in granting judgment on the pleadings; (2) abused its discretion in denying leave to file a second amended complaint; and (3) abused its discretion in denying a subsequent motion for reconsideration. For the reasons set forth below, we affirm the judgment.
Undesignated statutory references are to the Code of Civil Procedure.
II. PROCEDURAL HISTORY
A. Pleadings
On March 6, 2015, plaintiff and her mother filed their original complaint in Ellis I against multiple financial institutions, including BOA defendants. The complaint alleged that plaintiff and her mother resided on the property; plaintiff's mother obtained the loan secured by the property in 2006; plaintiff's mother was wrongfully denied a modification of the loan in 2010; the property was wrongfully encumbered by the lender in 2014; and that the property was wrongfully subjected to a nonjudicial foreclosure sale in January 2015. Based upon these allegations, the complaint purported to state causes of action for (1) violation of Civil Code section 2923.5; (2) wrongful foreclosure; (3) injunctive relief; (4) fraud; (5) intentional infliction of emotional distress; (6) slander of title; (7) quiet title; (8) declaratory relief; and (9) rescission of the loan instruments.
The complaint in Ellis I was subjected to multiple pleading challenges and amended multiple times. Ultimately, plaintiff dismissed herself from the action instead of amending the complaint in response to the trial court's decision to sustain a demurrer for lack of standing. However, Ellis I proceeded with respect to the claims brought by plaintiff's mother.
While Ellis I was still pending, plaintiff's mother died and plaintiff was appointed the administrator of her mother's estate. On May 24, 2018, plaintiff filed a new complaint and initiated a new case in the Superior Court of San Bernardino County in her capacity as the administrator of her mother's estate, Ellis II. The initial complaint in Ellis II consisted of a largely blank judicial council form as well as a document entitled "Summons Complaint." The documents did not purport to set forth any causes of action or name BOA defendants as parties but instead alluded to the causes of action already alleged in Ellis I and requested the court to "hold these cases together until all issues are heard."
On December 5, 2018, plaintiff filed a first amended complaint in Ellis II. This first amended complaint added all of the factual allegations and named defendants identified in the original complaint in Ellis I. Based upon these allegations, plaintiff purported to state causes of action for (1) violation of Civil Code section 2923.5; (2) wrongful foreclosure; (3) injunctive relief; (4) fraud in the concealment; (5) fraud in the inducement; (6) intentional infliction of emotional distress; (7) slander of title; (8) quiet title; (9) declaratory relief; and (10) rescission/cancellation of the loan instruments.
Specifically, the first amended complaint in Ellis II alleged that a dispute had arisen regarding the same parcel of real property; the same mortgage transaction entered into by plaintiff's mother in 2006; the same denial of a loan modification in 2010; and the same allegedly defective procedures by which a foreclosure sale was accomplished in 2015. However, it also added allegations that plaintiff's mother had passed away; that plaintiff had been appointed as administrator of her mother's estate; and general allegations regarding the nature and purpose of the California homeowner's bill of rights.
B. Dismissal of Ellis I and Judgment on the Pleadings in Ellis II
On May 6, 2019, plaintiff orally moved to dismiss Ellis I in open court in response to motions to compel discovery responses, and the trial court ordered Ellis I dismissed without prejudice.
On June 4, 2019, BOA defendants answered the first amended complaint in Ellis II and, on November 5, 2019, they filed a motion for judgment on the pleadings. BOA defendants advanced numerous grounds in their motion, including arguments that the claims were barred by the doctrine of res judicata; plaintiff lacked standing to assert any claims in her individual capacity; and that the claims were barred by the statute of limitations.
On February 14, 2020, the trial court held a combined hearing on BOA defendants' motion for judgment on the pleadings as well as a separately filed motion by plaintiff seeking leave to file a second amended complaint. The trial court granted a request for judicial notice of documents related to the proceedings in Ellis I; granted judgment on the pleadings in favor of defendants; and denied plaintiff's motion for leave to amend. The trial court was not asked to and did not provide any explanation for its decision to grant judgment on the pleading, either in writing or orally on the record.
III. DISCUSSION
On appeal, plaintiff argues the judgment must be reversed because the trial court (1) erred in granting judgment on the pleadings; (2) abused its discretion in denying leave to file a second amended complaint; and (3) abused its discretion in denying her motion for reconsideration. We disagree with each of these contentions and affirm the judgment.
A. The Motion for Judgment on the Pleadings Was Properly Granted
We first address plaintiff's contention that the trial court erred in granting BOA defendants' motion for judgment on the pleadings. While we disagree with many of the arguments asserted by the parties on appeal, our independent review of the first amended complaint and matters subject to judicial notice leads us to conclude that the motion was properly granted.
1. General Legal Principles and Standard of Review
" 'A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. [Citation.] A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review.'" (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777; see Greif v. Sanin (2022) 74 Cal.App.5th 412, 426.) "In reviewing the motion, we deem true all properly pleaded material facts, but not contentions, deductions, or conclusions of fact or law, and we may also consider judicially noticed matters. [Citation.] Our task is to determine, independently of the trial court, whether the challenged pleading states a cause of action." (Bear Creek Master Assn. v. Southern California Investors, Inc. (2018) 28 Cal.App.5th 809, 817.)
Additionally," '[w]e review the disposition, not the court's reasons for that disposition.'" (Greif v. Sanin, supra, 74 Cal.App.5th at p.426.) Thus," '[i]f the trial court's ruling on a motion for judgment on the pleadings is correct upon any theory of law applicable to the case, we will affirm it, even if we may disagree with the trial court's rationale.' . . . This is because we review the validity of the ruling on a motion for judgment on the pleadings and not the reasons given." (Tukes v. Richard (2022) 81 Cal.App.5th 1, 19; Dodlinger v. Los Angeles County Regional Park &Open Space Dist. (2019) 31 Cal.App.5th 994, 998 [same]; Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 598 [reviewing court should affirm judgment on pleadings if correct on any legal theory raised by the parties"' "even if the trial court did not rely on those grounds"' "].)
2. Plaintiff's Contentions on Appeal Are Unpersuasive
On appeal, plaintiff argues the trial court erred in granting judgment on the pleadings because it improperly considered matters outside the pleading and improperly resolved factual disputes in order to grant the motion. However," 'a trial court is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible,'" and" '[o]nly proof that the evidence actually figured in the court's decision will overcome these presumptions.'" (Hayward v. Superior Court (2016) 2 Cal.App.5th 10, 60-61.)
In this case, the record does not contain a statement of decision, written ruling setting forth the trial court's reasoning, or any oral statements at the time of hearing in which the trial court provided an explanation for its decision to grant judgment on the pleadings. Nor has plaintiff cited to any portion of the record that might suggest the reasons for the trial court's decision to grant the motion. On a silent record, we presume the trial court relied only on those grounds which it could properly rely in granting the motion. As such, plaintiff has simply not met her burden to show the trial court relied on matters outside the pleadings or resolved factual disputes in ruling on the motion.
3. Plaintiff Has Standing To Bring This Action
Similarly, we are unpersuaded by BOA defendants' argument on appeal that plaintiff's lack of standing represents a "global deficienc[y]" warranting judgment on the pleadings." 'Because standing goes to the existence of a cause of action, lack of standing may be raised by demurrer or at any time in the proceeding" (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1345), including in a motion for judgment on the pleadings (Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1013). Nevertheless, on review of a judgment on the pleadings, we liberally construe the allegations of the complaint (Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227) and, on appeal, we are required to" 'liberally construe the issue of standing and resolve doubts in favor of the right to appeal'" (In re C.P. (2020) 47 Cal.App.5th 17, 26).
In this case, the claims asserted by plaintiff's mother in Ellis I survive her mother's death (Code Civ. Proc., § 377.20); a decedent's personal representative is permitted to commence or continue an action on behalf of the decedent's estate (Code Civ. Proc., §§ 377.30, 377.31); the administrator of a decedent's estate is considered the decedent's personal representative (Prob. Code, § 58); and the first amended complaint specifically alleges both in the caption and in the substantive allegations that plaintiff filed suit in Ellis II in her capacity as the administrator of her mother's estate. Thus, a liberal construction of the first amended complaint in Ellis II clearly affords plaintiff standing to bring claims on behalf of her mother's estate.
We acknowledge that plaintiff's first amended complaint is not artfully pleaded, creating some ambiguity in the pleading. However, BOA defendants have not developed their arguments to explain why we should interpret any of the causes of action in the first amended complaint as having been brought in plaintiff's individual capacity instead of liberally construing them as an imperfect attempt by plaintiff to state viable claims on behalf of her mother's estate. Absent such a showing, the first amended complaint is sufficient to support the conclusion that plaintiff has standing in this action.
4. The Record Does Not Support the Application of Claim or Issue Preclusion Under the Doctrine of Res Judicata
We also disagree with BOA defendants that the record supports affirming judgment on the pleadings based upon the doctrine of res judicata. Specifically, BOA defendants argue that the orders and dismissal in Ellis I should act as a complete bar to the claims asserted in Ellis II. However, as we explain, BOA defendants' arguments conflate two distinct aspects of the doctrine of res judicata.
The doctrine of res judicata" 'has two distinct aspects: claim preclusion and issue preclusion.... Claim preclusion . . . provides that "a valid, final judgment on the merits precludes parties or their privies from relitigating the same 'cause of action' in a subsequent suit." '" (Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1325-1326; DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) In contrast, "[i]ssue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action," and it may be raised by one who is not a party to the first action. (DKN Holdings LLC, at pp. 824-825.)
Here, BOA defendants argue that a summary judgment granted in favor of other defendants in Ellis I operates to bar plaintiff from asserting those same claims against BOA defendants in Ellis II. However, claim preclusion "applies only to relitigation of the same cause of action between the same parties or those in privity with them," and joint and several liability does not "put co-obligors in privity with each other." (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at pp. 825-826.) Thus, contrary to BOA defendants' claims, privity is required in order to assert the claim preclusion aspect of res judicata and, since they were not parties to the summary judgment proceeding and there was no showing that they were in privity with the parties in the prior proceeding, BOA defendants cannot rely on the grant of summary judgment to assert a complete bar to plaintiff's claims.
BOA defendants' reliance on Bernhard v. Bank of America Nat.'l Trust & Sav. Asso. (1942) 19 Cal.2d 807 to assert otherwise is misplaced. As subsequently recognized by the California Supreme Court, the use of the phrase "res judicata" in that case involved only issue preclusion. (DKN Holdings LLC v. Faerver, supra, 61 Cal.4t at p. 824.)
Nor can BOA defendants rely on the orders to which they were parties in Ellis I to assert the claim preclusion aspect of res judicata. With respect to BOA defendants, the claims asserted in Ellis I were disposed of as the result of two demurrers, with the exception of a cause of action for breach of contract, which was voluntarily dismissed. "[T]he res judicata effect of a judgment of dismissal . . . after the sustaining of a demurrer is of limited scope.... 'It is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action .... If, on the other hand, new or additional facts are alleged that cure the defects in the original pleading, it is settled that the former judgment is not a bar to the subsequent action whether or not plaintiff had an opportunity to amend his complaint.'" (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789-790; Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1220.) Thus, to the extent plaintiff alleged different theories of liability or additional factual allegations in Ellis II, the trial court could not have granted judgment on the pleadings based solely upon the doctrine of res judicata but was required to evaluate the sufficiency of the factual allegations anew.
While the issue preclusion aspect of res judicata may be asserted by someone who was not a party to the original action, "issue preclusion does not bar entire causes of action" and only "prevents relitigation of previously decided issues." (DKN Holdings LLC v. Faerber, supra, 61 Cal.4th at pp. 824-825.) However, in moving for judgment on the pleadings, BOA defendants requested judicial notice only of exhibits that had been submitted in support of their co-defendants' motion, as well as an order granting summary judgment that stated only that the motion had been granted. Such a record was simply insufficient for the trial court or this court to determine what issues were actually litigated and decided against plaintiff in the motion for summary judgment brought in Ellis I. Thus, we are not persuaded by BOA defendants' contention that judgment on the pleadings may be affirmed under the doctrine of res judicata.
5. The Allegations of Each Individual Cause of Action Were Deficient
While we are unconvinced by BOA defendants' arguments based upon "global deficiencies," upon our independent review of the pleadings and matters subject to judicial notice, we agree that the individual causes of action in the first amended complaint in Ellis II were defective and, as a result, judgment on the pleadings was properly granted.
(a) The First Cause of Action Has No Remedy
The first cause of action is premised upon a purported violation of Civil Code section 2923.5. However, as BOA defendants correctly argue, plaintiff does not have a private cause of action to sue for a violation of the statute. Generally, Civil Code section 2923.5 imposes various procedural requirements before a notice of default on a mortgage loan can be recorded. (Civ. Code, § 2923.5.) At the time the notice of default was recorded in this case in 2014, "[t]he only remedy afforded by section 2923.5" was "a onetime postponement of the foreclosure sale before it happens" and, as a result, a complaint filed after the conclusion of a foreclosure sale could not "as a matter of law state a claim for violation of Civil Code section 2923.5." (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 77.) Thus, judgment on the pleadings was properly granted on the first cause of action.
The Legislature amended the statutory scheme while this action was pending in order to provide for a private cause of action for damages arising from a material violation of Civil Code section 2923.5. (Civ. Code, § 2924.19.) However, the application of a statute "to a cause of action which arose prior to the effective date of the statute but which is tried after the statute's effective date . . . constitute[s] a retroactive application of the statute" (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206) and "the general rule [is] that legislation operates prospectively unless there is clear language of retroactivity" (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 844).
(b) The Second, Fourth, Fifth, Sixth, and Seventh Causes of Action Are Barred by the Statute of Limitations
Of the remaining claims, at least five are clearly barred by the applicable statutes of limitations: the second cause of action for wrongful foreclosure, fourth cause of action for fraud in the concealment, fifth cause of action for fraud in the inducement, sixth cause of action for intentional infliction of emotional distress, and seventh cause of action for slander of title. Each of these causes of action is subject to a three-year statute of limitations (§ 338, subds. (b), (d), (g)), with the exception of the cause of action for intentional infliction of emotional distress, which is subject to a shorter two-year limitations period (§ 335.1; Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 852-853).
In this case, plaintiff included all of these causes of action in the original complaint filed in Ellis I on March 6, 2015. Regardless of the factual basis of these claims, these causes of action must necessarily be deemed to have accrued, and the statute of limitations began to run no later than this date. However, because plaintiff voluntarily dismissed Ellis I, she cannot claim the benefit of the filing date of Ellis I and the statute of limitations continued to run on each of her claims. (Thomas v. Gilliland (2002) 95 Cal.App.4th 427, 433 ["' "[A] party cannot deduct from the period of the statute of limitations applicable to his case the time consumed by the pendency of an action in which he sought to have the matter adjudicated, but which was dismissed without prejudice to him."' "]; Martell v. Antelope Valley Hosp. Medical Ctr. (1998) 67 Cal.App.4th 978, 985 [" '[D]ismissal includes the very real risk that an applicable statute of limitations will run before the party is in a position to renew the dismissed cause of action,'" and "a plaintiff dismisses a complaint at his peril."].) By the time the original complaint in Ellis II was filed in May 2018, the limitations period for bringing each of these causes of action had clearly expired.
While a plaintiff may sometimes benefit from the" 'discovery rule,'" "which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action," for purposes of accrual, "we look to whether the plaintiffs have reason to at least suspect that a type of wrongdoing has injured them." (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) It cannot reasonably be disputed that plaintiff had actual suspicion of the very wrongs alleged at least by the time she filed a complaint asserting a right to recovery against defendant based upon the very causes of action at issue.
The fact that Ellis II was filed prior to the dismissal of Ellis I does not compel a different conclusion. There is no authority for the proposition that the claims asserted in Ellis II should be deemed to benefit from the filing date of Ellis I simply because the two cases proceeded in a parallel fashion for some period of time. To hold so would allow a plaintiff to skirt the statutory requirement that a case be brought to trial within five years (§ 583.310), while simultaneously permitting a plaintiff to avoid the bar of the statute of limitations by continuously filing parallel actions.
The statute of limitations was specifically asserted as a basis for judgment on the pleadings in the trial court proceedings, and plaintiff has not explained on appeal why this would not have been a proper basis for granting the motion as to these causes of action. (Tukes v. Richard, supra, 81 Cal.App.5th at p.20 ["Since showing merely that the trial court sustained a motion for judgment on the pleadings for the wrong reason is insufficient to show reversible error . . ., an appellant must address in its opening brief each ground argued to the trial court in support of the motion."].) Because each of these causes of action was barred by the applicable statutes of limitation, judgment on the pleadings was properly granted on the second cause of action for wrongful foreclosure, fourth cause of action for fraudulent concealment, fifth cause of action for fraud in the inducement, sixth cause of action for intentional infliction of emotional distress and seventh cause of action for slander of title. In light of this conclusion, we need not address the other grounds for affirming the judgment raised by BOA defendants with respect to these claims.
(c) The Eighth, Ninth, and Tenth Causes of Action State Only One Cause of Action, Which is Also Time-Barred
We also conclude that plaintiff's eighth cause of action to quiet title, ninth cause of action for declaratory relief, and tenth cause of action for rescission/cancellation of the loan instruments are, in substance and effect, a single cause of action for cancellation of the loan instruments. Further, once the gravamen of this cause of action is examined, it is apparent that the cause of action is also time-barred.
1. Plaintiff has stated only one equitable cause of action
While framed as three different causes of action, plaintiff has stated only one equitable cause of action for cancellation of a written instrument. Generally, "[a]n action to cancel an instrument is distinct from an action to quiet title." (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 523.) However, where the plaintiff seeks "to quiet title and also to have the instrument under which [the opposing party] claims an interest in the Property declared void; these comprise a single cause of action." (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 292-293; Leeper v. Beltrami (1959) 53 Cal.2d 195, 216 [A quiet title action is incidental to the action to cancel a written instrument where "[i]t is apparent that the quiet title suit [is] completely dependent upon plaintiffs' success in attacking the [written instrument]."].) Here, plaintiff's cause of action for cancellation seeks to cancel the very loan documents upon which she also claims defendants rely to support their competing claims to the property. Thus, according to plaintiff's own allegations, cancellation of the loan documents will necessarily resolve the quiet title claim; the quiet title claim is, in substance, merely incidental to the rescission/cancellation claim; and the two are not independent causes of action.
Likewise, the ninth cause of action for declaratory relief seeks a declaration of the parties' "rights and duties" regarding the loan documents; "a judicial determination of the rights, obligations, and interests of the parties with regard to the property"; and a determination regarding the merits of "all adverse claims to the real property." In essence, the ninth cause of action seeks resolution of the same issues and the same relief pursued in plaintiff's claims to quiet title and for rescission/cancellation of the loan instruments. Where a request for declaratory relief relies upon the same facts as a claim to quiet title and cancel a written instrument, "they will be treated as one." (Tiedje v. Aluminum Taper Milling Co. (1956) 46 Cal.2d 450, 452 [treating claim for declaratory relief, quiet title, and the voiding of an illegal stock sale as single cause of action].)
Finally, we clarify that while styled as a cause of action for rescission and cancellation, the substantive allegations of the first amended complaint clearly disclose that the cause of action is one for cancellation. California no longer recognizes an independent cause of action for judicial rescission. (Wong v. Stoler (2015) 237 Cal.App.4th 1375, 1385; Runyan v. Pacific Air Industries, Inc. (1970) 2 Cal.3d 304, 310-313.) Instead, a party to a contract may unilaterally effect a rescission and then file an action to enforce the out-of-court rescission if the opposing party refuses to accept the rescission. (Wong, at p. 1385.) However, in order to effect a rescission, a party must restore or offer to restore to the other party everything of value received under the contract. (Civ. Code, § 1691.) The first amended complaint contains no allegations setting forth that plaintiff or her mother ever returned or offered to return the full $270,000 received pursuant to the loan. Thus, despite the use of the term rescission, plaintiff's cause of action cannot be considered a legal action to enforce an out-of-court rescission.
"Before 1961, California recognized two methods by which a party to a contract could obtain rescissionary relief: (1) unilateral rescission, followed by an action to enforce the out-of-court rescission; or (2) an action for judicial rescission in which specific judicial relief is granted.... In 1961, however, the Legislature abolished the action to obtain judicial rescission and left only an action to obtain relief based on a party effecting rescission." (Wong, supra, 237 Cal.App.4th at p. 1385; Runyan, supra, 2 Cal.3d at pp. 311-312.)
In substance, plaintiff's eighth, ninth, and tenth causes of action are but one cause of action for cancellation of a written instrument, which is "an equitable claim that is codified in Civil Code section 3412" that "allows a plaintiff to obtain cancellation of an instrument that creates a cloud on the plaintiff's title." (Weeden, supra, 70 Cal.App.5th at p. 292; Civ. Code, § 3412.) Nevertheless, as we explain, the first amended complaint and facts subject to judicial notice establish that this cause of action was also untimely.
2. The equitable cause of action is time-barred
Generally, "[a]ctions for cancellation of an instrument are subject to the four-year limitations period in the catchall provision of [Code of Civil Procedure] section 343." (Salazar v. Thomas (2015) 236 Cal.App.4th 467, 477, fn. 8; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 429-430 [same].) However, if the underlying theory upon which a plaintiff relies to seek cancellation is subject to a shorter statute of limitations, then the shorter limitations period will apply. (Walters, supra, [claim for cancellation of instrument based on fraud subject to the shorter three-year statute of limitations for fraud claims]; Estate of Young (2008) 160 Cal.App.4th 62, 78 [same].) Thus, "[t]o determine the statute of limitations which applies . . . it is necessary to identify the nature of the cause of action, i.e., the 'gravamen' of the cause of action." (Hensler v. City of Glendale (1994) 8 Cal.4th 1, 22.)
The applicable limitations period may also extend to five years where the opposing party has adverse possession of real property. (§§ 318, 319; Robertson v. Superior Court (2001) 90 Cal.App.4th 1319, 1321, 1327-1329 [applying five-year limitations period in sections 318 and 319 to claim for cancellation of instruments where defendant was in possession of and lived in property in dispute]; Hensler v. City of Glendale (1994) 8 Cal.4th 1, 23-24 [section 318 and 319 apply to cases involving "physical invasion" of the property].) However, that is not the scenario presented in this case, as there were no allegations to suggest BOA defendants had ever taken physical possession of the property.
Here, the first amended complaint suggests seven grounds for cancellation of the loan instruments: (1) violations of the Truth in Lending Act (15 U.S.C. §1601 et seq.)(TILA); (2) failure to provide a copy of the mortgage loan originator's agreement; (3) fraudulent concealment; (4) fraudulent inducement; (5) failure to abide by the terms of the pooling and servicing agreement governing the loan; (6) a fraudulent transfer of a note and deed of trust pertaining to the property; and (7) violation of public policy. It is entirely unclear why the second and seventh grounds would support a cause of action for cancellation of the loan instruments. The first amended complaint contains no additional allegations to identify a purported public policy that would render the loan void or voidable, nor does it contain any allegations to explain why the failure to disclose a mortgage loan originator's agreement could constitute grounds for cancellation. Thus, these otherwise conclusory allegations cannot be considered the gravamen of plaintiff's cause of action.
A" 'mortgage loan originator'" is "an individual who takes a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan for compensation or gain." (Bus. & Prof. Code, § 10166.01, subd. (b)(1).) In some cases, mortgage loan originators may enter into agreements to sell the loans they originate to third parties. (See First American Title Ins. Co. v. XWarehouse Lending Corp. (2009) 177 Cal.App.4th 106, 109-110.)
The remaining grounds are all subject to a three-year limitations period. TILA contains its own three-year limitations period for rescission or cancellation of a loan agreement based upon a substantive or technical violation of its provisions. (15 U.S.C. § 1635; Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1350 [if there is" 'a single violation of TILA, whether it be substantive or technical,'" "the borrower's right to rescind is . . . three years after the date of consummation of the transaction."].) To the extent a claim for cancellation is premised upon fraud, the statute of limitations is three years. (§ 338, subd. (d); Walters v. Boosinger, supra, 2 Cal.App.5th at p. 430.) Finally, the alleged failure to abide by the terms of a pooling and servicing agreement is, in effect, a claim of wrongful foreclosure (see Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 942 [Because a borrower is not a party to a pooling and servicing agreement, the borrower cannot bring a claim for breach of its terms but may rely on such allegations to contest the foreclosing entity's status as the current holder of the beneficial interest under the deed of trust in support of a wrongful foreclosure claim.]), which is also subject to a three-year limitations period (Robin v. Crowell (2020) 55 Cal.App.5th 727, 741 [three-year limitations period applied to quiet title claim where gravamen of claim was error in foreclosure proceedings]).
Because all of the potential grounds for cancellation alleged in the first amended complaint are subject to a three-year limitations period, plaintiff was required to bring her equitable cause of action for cancellation within three years, regardless of which theory she might ultimately pursue. However, this claim was also alleged in the original complaint filed in Ellis I. Thus, like the other causes of action discussed in the preceding sections, more than three years had elapsed from the time the cause of action must necessarily have been deemed to accrue and the time Ellis II was filed. The equitable cause of action was therefore untimely, and judgment on the pleadings was properly granted as to the cause of action represented by plaintiff's purported eighth, ninth and tenth causes of action.
(d) Plaintiff Cannot Maintain an Independent Cause of Action for Injunctive Relief
Finally, we address the purported third cause of action for injunctive relief. "Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted." (Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168; Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.) Thus, where "none of [plaintiff's] other causes of action may be maintained, her request for injunctive relief necessarily fails as well." (Ibid.) As we have explained, plaintiff does not have a private right of action with respect to the first cause of action and the remaining causes of action are all barred by the applicable statutes of limitations. In the absence of any viable cause of action, the request for injunctive relief cannot stand on its own and judgment on the pleadings was properly granted as to this claim.
B. Motion for Leave To File Amended Complaint
Plaintiff also claims that the trial court abused its discretion in denying her request for leave to file a second amended complaint. We disagree.
1. Relevant Procedural History
Plaintiff's original complaint in Ellis II was filed on May 24, 2018. However, that document consisted of a largely blank judicial council form and an attachment that did not purport to set forth any specific causes of action.
On December 5, 2018, plaintiff filed a first amended complaint in Ellis II. This first amended complaint added all of the factual allegations and named defendants identified in the original complaint in Ellis I. However, at the time of the filing of this document, the complaint in Ellis I had already been subjected to numerous pleading challenges, leaving only a pending cause of action for breach of contract against BOA defendants.
On September 3, 2019, plaintiff filed a motion seeking leave to file a second amended complaint in Ellis II. The motion was accompanied by a proposed amended pleading. However, neither the motion nor the proposed pleading identified the page, paragraph or lines where any of the proposed changes could be located. Nor did the accompanying declaration state the nature of any proposed changes or when the facts supporting any amendments were discovered. As a result, the trial court denied the motion without prejudice.
On November 12, 2019, plaintiff filed a renewed motion for leave to file a second amended complaint in Ellis II. However, the renewed motion did not include a proposed pleading; did not specifically identify what matters were proposed additions or deletions from the operative complaint; and was not accompanied by a declaration.
On February 10, 2020, plaintiff filed a supplemental points and authorities in support of her renewed motion for leave to file a second amended complaint. However, the supplemental submissions in the record before us do not include a proposed pleading or declaration in support of her request for leave to amend.
On February 14, 2020, the trial court heard plaintiff's renewed motion in conjunction with BOA defendants' motion for judgment on the pleadings. In addition to BOA defendants, other named defendants appeared to oppose plaintiff's motion for leave to amend, arguing, in part, that they were named in the proposed second amended complaint despite the fact they had already obtained judgments in their favor against plaintiff. The trial court denied the motion for leave to amend, specifically noting: that plaintiff had already unsuccessfully attempted to amend on a prior occasion; had failed to comply with the requirements of the Rules of Court with respect to supporting her request for leave to amend; and that the proposed second amended complaint attempted to reintroduce causes of action that had already been determined against plaintiff.
2. Analysis
Whether made in response to a demurrer, judgment on the pleadings or in an independent request, we review the trial court's denial of a motion for leave to file an amended complaint for an abuse of discretion. (Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 797 [abuse of discretion standard applies to denial of independent motion for leave to file amended complaint]; Manderson-Saleh v. Regents of University of California (2021) 60 Cal.App.5th 674, 707 [abuse of discretion standard applies to denial of leave to amend in response to demurrer].) "Bearing in mind that abuse of discretion is shown by an arbitrary determination, capriciousness or whimsical thinking, we must determine whether the trial court's ruling in denying leave to amend so exceeded the bounds of reason as to constitute an abuse of discretion." (Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 840; Shamblin v. Brattain (1988) 44 Cal.3d 474, 478 ["The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason."].) Here, the record shows the trial court had multiple grounds upon which it could properly deny leave to amend.
First, plaintiff's motion for leave to amend failed to comply with the requirements of the Rules of Court. Plaintiff did not identify the specific proposed additions or deletions to the pleading; did not set forth the intended effect of any proposed amendment; did not explain when the facts giving rise to the amendments were discovered and did not explain why a request to amend was not made earlier. (Cal. Rules of Court, rule 3.1324(a), (b).) While leave to amend in conjunction with a judgment on the pleadings is not always subject to this requirement, a cursory review of the proposed second amended complaint reveals that plaintiff attempted to add new causes of action, reintroduce defendants who had already obtained judgments in the case, and substantially change the nature of existing causes of action. Such amendments would have been beyond the scope of the issues tendered in BOA defendants' motion, requiring plaintiff to justify the need for the amendments under the normal rules pertaining to requests for leave to amend. (See Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023 [following an order on a motion for judgment on the pleadings, leave to amend does not authorize adding new parties or causes of action absent seeking specific permission to do so].)
Second, plaintiff's proposed second amended complaint continued to assert causes of action and claims against defendants who had already obtained judgments in their favor. "[A]mendments after judgment are allowed only on an application for relief, and after the judgment has been vacated." (LaForge v. Groendyke (1952) 108 Cal.App.2d 522, 525.) Thus, granting plaintiff leave to file her proposed second amended complaint would clearly have prejudiced multiple defendants in the action, because it would have required vacating the judgments in their favor. Where an amendment "has prejudiced or will prejudice the opposing party, the trial court in its discretion may deny leave to amend." (M&F Fishing, Inc. v. Sea-Pac Ins. Managers, Inc. (2012) 202 Cal.App.4th 1509, 1534.)
Finally, plaintiff has not explained how her proposed second amended complaint would have cured the defects in the first amended complaint such that leave to amend should have been granted. "To demonstrate an abuse of discretion, the burden is on the plaintiff to show there is a reasonable possibility that the proposed amendment will cure the defect . . . by showing in what manner the amendment to the complaint can be amended and how the amendment will change the legal effect of the pleadings." (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.) As we have already explained, each of the causes of action alleged in the first amended complaint are barred by the applicable statute of limitations. Absent some explanation of how plaintiff's proposed amendments could cure these defects, plaintiff has not met her burden to show the trial court abused its discretion in denying her further leave to amend.
Instead of addressing the substantive defects in the first amended complaint, plaintiff asserts on appeal that she can state a viable cause of action for breach of contract based upon BOA defendants' denial of her loan modification request. However, the proposed second amended complaint submitted with her motion did not include a cause of action for breach of contract. More importantly, a breach of contract cause of action is subject to a four year statute of limitations. (§ 337.) The first amended complaint affirmatively alleges that plaintiff's request for a loan modification was wrongfully denied in December 2010. Thus, any such claim would have been untimely, even at the time the original complaint in Ellis I was filed in March 2015. Although we are mindful of plaintiff's unfortunate asserted hardships set forth in her opening brief, plaintiff simply cannot state a viable cause of action for breach of contract.
We are unpersuaded by plaintiff's argument that section 439, subdivision (e)(1) requires the trial court to grant litigants at least three attempts to amend a complaint in response to a judgment on the pleadings. The statute provides, in pertinent part, that "[i]n response to a motion for judgment on the pleadings and before the case is at issue, a pleading shall not be amended more than three times, absent an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured." (§ 439, subd. (e)(1).) On its face, the statute constrains the number of times a plaintiff may voluntarily amend a pleading in response to a motion for judgment on the pleadings. Nothing in the statute purports to constrain the trial court's discretionary authority to deny a request for leave to amend.
Given the above record, we find no abuse of discretion in the trial court's denial of plaintiff's motion for leave to file a second amended complaint or denial of leave to amend upon granting judgment on the pleadings.
C. The Motion for Reconsideration Was Properly Denied
Finally, plaintiff claims the trial court erred in denying her motion requesting reconsideration of the order granting judgment on the pleadings and order denying leave to amend. While not independently appealable (see Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1576-1577), an order denying reconsideration may be reviewed as part of the appeal from the judgment (Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211, 217). Nevertheless, we conclude that regardless of the merits of the motion, plaintiff could not have been prejudiced by the trial court's denial of the motion for reconsideration in this case.
"A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment." (Passavanti v. Williams (1990) 225 Cal.app.3d 1602, 1606.) Thus, a "trial court may not grant reconsideration after judgment has been entered." (APRI Ins. Co. S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 180; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192.) This is true even if the motion for reconsideration was pending at the time judgment was entered. (Ibid. [trial court could not rule on motion for reconsideration filed the same day judgment was entered]; APRI Ins., at p. 180 [trial court could not grant reconsideration after it signed an order of dismissal while motion for reconsideration was pending].)
As relevant here, plaintiff filed her motion for reconsideration on February 28, 2020. On March 16, 2020, before the motion for reconsideration was heard, the trial court entered judgment in favor of BOA defendants. The trial court did not hold a hearing on plaintiff's motion for reconsideration until July 9, 2020, after which it denied the motion. Because the trial court had already entered a judgment in favor of BOA defendants, it was without power to grant a motion for reconsideration at the time the motion was heard and denied. Thus, regardless of the merits of the motion or the reasons for the trial court's denial, plaintiff could not have been prejudiced by the order denying reconsideration and reversal is not warranted.
Plaintiff could have moved to set aside the judgment in the interests of justice to permit her motion for reconsideration to be properly heard prior to entry of judgment. (§ 473, subd. (b); Bonfilio v. Ganger (1943) 60 Cal.App.2d 405, 410 [so long as request is made within statutory time period, trial courts have substantial discretion to set aside a judgment in the interests of justice].) However, plaintiff made no such request in this case.
IV. DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
We concur: McKINSTER Acting P. J., SLOUGH, J.