Opinion
E051607
09-19-2011
THOMAS J. FORBES, Plaintiff and Appellant, v. LITTON LOAN SERVICING, LP, Defendant and Respondent.
Thomas J. Forbes, in pro. per., for Plaintiff and Appellant. Mark V. Asdourian and James L. Ackerman for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. RIC540139)
OPINION
APPEAL from the Superior Court of Riverside County. Gloria Connor Trask, Judge. Affirmed.
Thomas J. Forbes, in pro. per., for Plaintiff and Appellant.
Mark V. Asdourian and James L. Ackerman for Defendant and Respondent.
This case relates to a foreclosure on the home of plaintiff and appellant, Thomas Forbes. Forbes sued defendant and respondent Litton Loan Servicing, LP (Litton), for (1) violating Civil Code section 2923.5, which concerns notices of default; (2) violating Civil Code section 2923.6, which relates to loan modifications; (3) fraud; (4) actual fraud (Civ. Code, § 1572); (5) intentional misrepresentation; and (6) unfair competition (Bus. & Prof. Code, § 17200). The trial court sustained Litton's demurrer without leave to amend.
Forbes raises four issues on appeal. First, Forbes asserts the trial court denied him due process by not granting him leave to amend his first amended complaint. Second, Forbes contends the trial court showed that it was biased in favor of Litton. Third, Forbes contends the trial court erred by not considering his evidence. Fourth, Forbes asserts that the trial court erred by disregarding Forbes's motion to file an amended complaint. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS
The following facts are taken from Forbes's first amended complaint. Forbes owned a parcel of real property in the City of Riverside (the property). Forbes purchased the property on April 18, 2006, with a mortgage from Litton. Litton alleged that Forbes defaulted on his mortgage on March 12, 2009. Default Resolution Network (DRN) was listed on the notice of default related to the property; however, a declaration of due diligence was not attached to the notice of default. Fidelity National Title Company (Fidelity) was listed on the notice of trustee's sale for the property. Forbes alleged that neither DRN nor Fidelity were assigned rights under the deed of trust for the property, such that they could legally conduct a foreclosure sale.
B. CAUSES OF ACTION
This section contains descriptions of the causes of action set forth in Forbes's first amended complaint. In the first cause of action, for a violation of Civil Code section 2923.5, which concerns notices of default, Forbes alleged that the notice of default in this case was invalid because (1) the notice was not mailed within 10 business days; (2) the notice was not posted and mailed within one month; (3) the sale date was not properly set; (4) the notice of sale was not published 20 days prior to the sale date; and (5) the notice of sale was not properly recorded. Forbes further alleged that the notice of default was invalid because there was not a declaration attached to it. Further, Forbes alleged that the trustee sale occurred too quickly, because the law provided for an additional 90 days to be given to him after the notice of default was recorded.
All further statutory references are to the Civil Code unless indicated.
In the second cause of action, Forbes alleged Litton committed fraud. Forbes asserted that DRN and Fidelity were not assigned rights under the deed of trust at the time they commenced foreclosure proceedings. Forbes alleged that DRN and Fidelity did not have the authority to go forward with the trustee's sale because they were "strangers to this transaction." Forbes noted that Litton was the only party entitled to foreclose on the deed of trust. Forbes alleged Litton fraudulently represented that the notice of default was validly executed. Forbes further asserted that "[d]efendants recorded a false document."
In Forbes's first amended complaint, he writes: "Defendants have no standing to enforce a nonjudicial foreclosure. Defendants are strangers to this transaction, and have no authority to go forward with the foreclosure and Trustee's Sale because an assignment was not acknowledged or recorded." The only named defendant in the lawsuit is Litton, as a result, "defendants" should refer to Litton; however, it appears from the context of the complaint that Forbes meant to refer to DRN and Fidelity.
It is not clear if "Defendants" refers to Litton, the named defendant in this matter, or to DRN and Fidelity, who are not named as defendants in this case. We infer the "false document" is the notice of default, although that also is not clear from the complaint.
The third cause of action concerned an allegation of intentional misrepresentation. Forbes asserted that Litton knew DRN and Fidelity were not authorized to commence foreclosure proceedings against the property, and "[d]efendants also recorded a document they knew was false."
Again, it is not clear if "defendants" refers to Litton, or to DRN and Fidelity; we infer the "false document" is the notice of default (see fn. 3 ante).
The fourth cause of action asserted a violation of section 2923.6, which relates to loan modifications. Forbes alleged he was willing to execute a modification of his mortgage based on the new fair market value of the property, which Forbes asserted was $200,000; Litton did not explore the option of a loan modification with him.
The fifth cause of action alleged actual fraud. (§ 1572.) Forbes asserted that he is "an unsophisticated consumer," who reasonably relied upon Litton. Forbes alleged, "Defendants' misrepresentations, failures to disclose, and failure to assign as described above were made with the intent to induce [Forbes] to obligate himself in reliance on the integrity of Defendants and/or Defendants' predecessors."
We are unable to decipher from the context of the cause of action exactly what action Litton took to cause Forbes to rely on Litton. It is also unclear exactly what misrepresentations and failures are being referred to in the fifth cause of action.
[footnote continued on next page]
[footnote continued from previous page]
Accordingly, while we have tried to provide a thorough presentation of the allegations, we are unable to provide specific details, because such details are not included in the first amended complaint.
In the sixth cause of action, Forbes alleged that Litton engaged in unfair competition. (Bus. & Prof. Code, § 17200.) Forbes asserted that Litton's "practices are likely to mislead the general public, and therefore, constitute a fraudulent business act or practice." Specifically, Forbes alleged that "defendants" recorded a false notice of default with an invalid declaration.
C. DEMURRER
On March 2, 2010, Litton filed a demurrer in response to Forbes's first amended complaint. Litton argued that all six causes of action failed to state facts sufficient to constitute a cause of action against Litton. Litton asserted that the notice of default included a declaration that complied with section 2923.5, and Litton attached the documents with a request for judicial notice. Next, Litton asserted there was not a private right of action for a violation of sections 2923.5 and 2923.6. Additionally, Litton argued that Forbes was not entitled to the protections provided in section 2923.5, because the statute protects owner-occupied residences. Litton alleged that Forbes owns three different residences, is involved in similar litigation for all three residences, and has alleged that all three residences are his principal residence.
In regards to the loan modification cause of action, Litton argued lenders are not required to offer loan modifications to borrowers. In regard to the fraud claims, Litton argued Forbes asserted three different causes of action all based on fraud, which is improper pleading because it splits the cause of action. Further, Litton noted fraud must be specifically pled—the facts and circumstances of the fraud must be clearly set forth in the pleading. For example, when a defendant is a corporation, the complaint must allege the names of the people who engaged in the acts of fraud, as well as what words were said or what actions were taken. Litton asserted Forbes's complaint did not specifically plead acts of fraud.
In regard to Forbes's prayer for equitable relief, Litton argued that such relief should be denied because Forbes has not offered to pay the money he owed on his loan, nor has he alleged that he had the ability to pay the money that he owed on his loan. Litton asserted that Forbes should be required to pay the money he owed on the loan before he was awarded equitable relief.
D. MOTION TO FILE A SECOND AMENDED COMPLAINT
On April 26, 2010, Forbes filed a motion to file a second amended complaint. Forbes argued that he should be allowed to file a second amended complaint because "the real party in interest has not appeared in this motion," and that Litton had not followed the proper procedures for a foreclosure.
E. HEARING
On June 7, 2007, the trial court held a hearing on (1) Forbes's motion to file a second amended complaint, and (2) Litton's demurrer. At the outset of the hearing, the court stated that it intended to deny Forbes's motion, and grant the demurrer without leave to amend because (1) the demurrer was correct, and (2) Forbes had not demonstrated an ability to amend the complaint.
Forbes responded that he had exhibits he would like to show to the court. The trial court explained to Forbes that it was improper to hand exhibits to the court during the hearing, because exhibits needed to be exchanged prior to the hearing. Forbes asked for permission to amend his complaint because he claimed to have sufficient evidence to substantiate his claims. The trial court responded, "I don't see how." The trial court sustained the demurrer without leave to amend.
F. MOTION FOR RECONSIDERATION
On June 14, 2010, Forbes filed a motion for reconsideration of the rulings (1) denying his motion to file a second amended complaint; and (2) sustaining the demurrer without leave to amend. In the motion, Forbes asserted that he had "attained confirmation of a „[c]ause of action,' which [the trial c]ourt indicated [Forbes] had not previously shown an ability of." Forbes also wrote that he wanted to introduce an appellate decision issued by the Fourth District Court of Appeal, Division Three, which Forbes alleged held that a lender is required to contact a borrower to assess the borrower's financial situation and explore options to prevent foreclosure.
G. OPPOSITION TO MOTION FOR RECONSIDERATION
Litton opposed Forbes's motion for reconsideration. Litton argued Forbes's motion should be denied because Forbes had filed a notice of appeal, which stayed proceedings in the trial court. Next, Litton argued that the motion should be denied because Forbes did not allege any new facts or law. Litton argued that the appellate decision offered by Forbes confirmed that the trial court's ruling on the demurrer was correct. Further, Litton asserted that Forbes failed to file an appropriate declaration in support of the motion for reconsideration. Litton also argued that the issues raised by Forbes in the motion for reconsideration were the same issues that were raised in the motion to file a second amended complaint, which the trial court denied. Finally, Litton asserted that Forbes was a vexatious litigant, and should be sanctioned, because Forbes continued to represent to the trial court that three different residences constituted his principal residence.
H. HEARING
On August 2, 2010, the trial court held a hearing on Forbes's motion for reconsideration. At the outset of the hearing, the trial court stated that it intended to deny the motion because Forbes did not provide any new information. The trial court stated that the appellate decision cited by Forbes was not new law, because it was decided prior to the trial court's ruling on the demurrer. In regard to sanctions, the trial court noted that Litton cited an expired statute, so the court could not impose sanctions.
DISCUSSION
A. DUE PROCESS
Forbes contends the trial court denied his due process rights by not allowing him to amend his complaint. We disagree.
A party is entitled to file only one amended pleading as a matter of right. (Code Civ. Proc., § 472.) Since due process only provides for one amendment of a pleading, we conclude that Forbes was not denied due process by the trial court's refusal to let him amend his pleading a second time.
B. BIAS
Forbes contends the trial court was biased in favor of Litton because Litton was permitted to submit pleadings during hearings, while Forbes was denied the same opportunity. We disagree.
In his opening brief, Forbes writes: "[T]he trial court erred by illustrating . . . bias toward the Petitioner by allowing the attorneys of the Real Party in Interest to submit pleadings during hearings and not allowing the Petitioner the same ability to do so." Much of Forbes's opening brief is written as though this matter is a writ, rather than an appeal. We infer that the "real party in interest" is Litton.
Forbes does not explain when the trial court displayed bias in favor of Litton, and Forbes does not cite to the record to support his contention. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C).) Nevertheless, we will assume that Forbes's contention relates to (1) the trial court's refusal to accept the exhibits that he proffered at the hearing on the demurrer and motion to file a second amended complaint; and (2) the trial court's acceptance of Litton's opposition paperwork at the hearing on Forbes's ex parte application for a temporary restraining order.
All further rule references are to the California Rules of Court unless otherwise indicated.
Forbes has forfeited the issue of judicial bias on appeal, because he did not raise it below. Forbes did not object to the alleged improprieties and never asked the trial judge to recuse herself. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218; see also Roth v. Parker (1997) 57 Cal.App.4th 542, 548.) Nevertheless, we address Forbes's contention because it is easily resolved.
A judge must be disqualified if the judge is biased or prejudiced towards a lawyer in the proceeding. (Code Civ. Proc., § 170.1, subd. (a)(6)(B).) "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." (Liteky v. U.S. (1994) 510 U.S. 540, 555; see also People v. Guerra (2006) 37 Cal.4th 1067, 1112.) For the sake of reviewing this issue, since a motion to recuse was not made at the trial court, we will analyze the issue under the hypothetical that a motion was made, but the trial court denied the motion. We review the trial court's denial of a motion to recuse for an abuse of discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 237.)
We begin by examining whether the trial court was incorrect in refusing to accept Forbes's exhibits. When exhibits are relevant to supporting or opposing a motion, they should be exchanged at the time of exchanging memo in support or opposition to the motion, so that the memo can include references to the exhibits. (Rule 3.1113(k).) Further, there are various deadlines for exchanging paperwork prior to a hearing, so that the parties have time to review the submissions; for example, 16 court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).) Based upon the foregoing procedural rules, the trial court was correct to not accept Forbes's exhibits, because he proffered them during the hearing.
Next, we examine whether the trial court was correct to accept Litton's opposition papers at the ex parte hearing. In regard to ex parte applications, rule 3.1206, provides: "Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity." Forbes filed an ex parte application for a temporary restraining order on May 11, 2010. The hearing at which the court accepted Litton's opposition papers took place on May 12, 2010. Given the one-day time period between the ex parte application and the hearing, it was reasonable for the trial court to accept Litton's papers at the hearing. In other words, the trial court was correct to accept Litton's papers.
Forbes filed a separate ex parte application on April 15, 2010. It appears that the hearing on the April 15 application was scheduled for April 16, 2010, but taken off calendar by Forbes.
--------
Since the trial court was correct in (1) rejecting Forbes's exhibits; and (2) accepting Litton's opposition papers, it does not appear that the trial court was biased towards Litton; rather, it appears that the trial court was following the procedural rules. As a result, we conclude that there was not an abuse of discretion.
C. DISCOVERY
Forbes contends the trial court erred because "there was no consideration given to the Discovery the Petitioner propounded upon the Real Party in Interest or how a sufficient response would allow the Petitioner to craft a complaint that was fortified with stronger evidence." We disagree.
We begin our analysis by addressing the demurrer. A "demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint. [Citations.]" (Executive Land Corp. v. San Vicente County Villas IV Assn. (1983) 145 Cal.App.3d 496, 499.) Since a demurrer does not involve considering evidence, the trial court was correct in not reviewing Forbes's evidence.
Next, we analyze Forbes's contention as it relates to the motion to file a second amended complaint. A motion to amend a pleading before trial must (1) explain what allegations in the previous pleading will be deleted, listing the page, paragraph, and line number; and/or (2) explain what allegations will be added to the previous pleading, and where they will be added, listing the page, paragraph, and line number. (Rule 3.1324.) Forbes's motion to file a second amended complaint did not explain how the first amended complaint would be modified, rather it presented a variety of arguments. For example, in the motion, Forbes asserted that "the real party in interest has not appeared in this motion."
The trial court explained that it would be denying Forbes's motion because it was "not proper." We infer that the trial court was referring to the motion's procedural defects, i.e., the failure to explain exactly how the first amended complaint would be modified. A trial court need not review the merits of a motion when a procedural bar applies. (In re Robbins (1998) 18 Cal.4th 770, 778, fn. 1.) Since the trial court denied Forbes's motion on the basis of procedural defects, the trial court did not need to consider the possible evidence produced by the parties, because that would only be relevant to the merits of the motion. In sum, the trial court did not err.
D. NOTICE OF MOTION
Forbes contends the trial court erred by "disregard[ing] the notice of motion for permission to file an amended complaint, that would include exhibits that clearly outlined how the Real Party in Interest had no jurisdiction and that [it was] a stranger to this transaction." We disagree.
As set forth ante, Forbes's motion did not comply with the procedural requirements for a motion to amend a pleading. Since a procedural bar was applicable, the trial court did not err by not considering the merits of the motion. In sum, we find no error.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER_
J.
We concur:
HOLLENHORST_
Acting P. J.
McKINSTER_
J.