Opinion
B225605
08-29-2011
THI HO, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., et al., Defendants and Respondents.
Thi Ho, in pro. per., for Plaintiff and Appellant. Severson & Werson, Mark J. Kenney, Chaise R. Bivin, and Hassan Elrakabawy for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. VC056003)
APPEAL from a judgment of the Superior Court of Los Angeles County, Yvonne T. Sanchez, Judge. Affirmed.
Thi Ho, in pro. per., for Plaintiff and Appellant.
Severson & Werson, Mark J. Kenney, Chaise R. Bivin, and Hassan Elrakabawy for Defendants and Respondents.
Thi Ho appeals from an order of the superior court denying her motion to intervene in an action brought by Luz Franco against Bank of America, Doma Properties, Inc., Alyandra Beltran (collectively respondents), and Regional Trustee Service Corporation. We conclude that, although the trial court erred in relying on the alleged untimeliness of appellant's motion to deny the motion to intervene, appellant has suffered no prejudice. We therefore affirm.
Regional Trustee Service Corporation is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In May 2008, a Deed of Trust was recorded against real property located in Downey, securing an $850,000 loan from Bank of America to Javier A. Romero and Yvelises Orta. After the property went into default, a Notice of Trustee's Sale was recorded, stating that the property would be sold on December 31, 2009. The property was sold to Bank of America, and a Trustee's Deed in favor of Bank of America was recorded on January 14, 2010.
On April 2, 2010, Franco filed a complaint to quiet title and for unlawful eviction and fraud against respondents and Regional Trustee Service Corporation. Franco claimed that she was the owner by adverse possession of the property and that the defendants illegally ejected her and other tenants from the property. Specifically, Franco's complaint alleged that respondents relied on fraudulent liens, "false deeds, and evil instruments which purport to convey property and title to defendants." She made general allegations of "unlawful and unscrupulous methods of illegal fraudulent conveyances" to steal property and a conspiracy to commit fraud. Based on these general allegations of fraud, Franco claimed adverse possession, illegal eviction, conversion, fraud, negligent misrepresentation, civil conspiracy, unjust enrichment, breach of the duty of good faith and fair dealing, tortious interference with business contracts, unfair business practices, intentional infliction of emotional distress, and trespass. She sought $13,616,438 in damages and attached four exhibits - the Deed of Trust, Substitution of Trustee, Trustee Sale Notice, and Trustee's Deed.
On May 6, 2010, respondents filed a demurrer to Franco's complaint, arguing, inter alia, that Franco did not have standing because she was not a party to the loan transaction, Deed of Trust, or the other instruments and transactions relating to the property. Respondents also filed a notice of hearing for June 9, 2010. On May 21, 2010, appellant filed a motion to intervene, arguing that she was in adverse possession of the property. Appellant's motion to intervene included a proposed complaint in intervention, which was essentially identical to Franco's.
On June 3, 2010, respondents filed a notice of Franco's nonopposition to their demurrer to her complaint and asked the superior court to sustain their demurrer without leave to amend.
After the June 9 hearing, the trial court denied appellant's motion to intervene, on the basis that appellant did not provide respondents sufficient notice of her motion, pursuant to section 1005. Under section 1005, written notice for certain enumerated motions must be served 16 court days before the hearing, and five days before that date if notice is served by mail. (§ 1005, subd. (b).) In denying the motion to intervene, the court noted that the motion was filed only 11 court days prior to the hearing and that respondents had objected to the insufficient notice and had not waived timely notice.
Any undesignated statutory references are to the Code of Civil Procedure.
The trial court also sustained respondents' demurrer to Franco's complaint without leave to amend, on the basis that Franco had no standing to bring the lawsuit and did not oppose the demurrer. The court reasoned that Franco "is not the borrower of record, did not have title for the property, nor does she allege she is or has ever been, a party to a loan transaction and or any of the recorded instruments relating to the property. Her theory, that she has been illegally removed from the property to which she claims title by adverse possession, is not supported by facts or legal authority." Appellant filed a timely notice of appeal.
We note that appellant has another appeal pending in this court related to the same property.
DISCUSSION
Appellant contends that the trial court abused its discretion in denying her motion to intervene because she had the right to intervene under both mandatory and permissive intervention principles. We conclude that the trial court erred in denying the motion to intervene, but that the error was harmless because appellant's complaint is essentially identical to Franco's action and the trial court properly sustained the demurrer to Franco's complaint.
Intervention is governed by section 387 and is permissive or mandatory (as of right). (Hodge v. Kirkpatrick Development, Inc. (2005) 130 Cal.App.4th 540, 547 (Hodge).) "'Pursuant to section 387 the trial court has discretion to permit a nonparty to intervene where the following factors are met: (1) the proper procedures have been followed; (2) the nonparty has a direct and immediate interest in the action; (3) the intervention will not enlarge the issues in the litigation; and (4) the reasons for the intervention outweigh any opposition by the parties presently in the action. [Citation.] This court reviews an order denying leave to intervene under the abuse of discretion standard.' [Citation.]" (California Assn. of Professional Scientists v. Schwarzenegger (2006) 137 Cal.App.4th 371, 379-380.)
"A nonparty has a right under Code of Civil Procedure section 387, subdivision (b) to intervene in a pending action 'if the person seeking intervention claims an interest relating to the property or transaction which is the subject of the action and that person is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, unless that person's interest is adequately represented by existing parties.'" (Hodge, supra, 130 Cal.App.4th at p. 547.)
The statute on which the trial court relied to deny appellant's motion to intervene, section 1005, requires at least 16 days written notice for certain enumerated motions. Section 1005 does not, however, apply to motions to intervene. (See § 1005, subd. (a).)
Section 387 requires only "timely" application for a motion to intervene. (§ 387; see Noya v. A. W. Coulter Trucking (2006) 143 Cal.App.4th 838, 842 (Noya) [stating that, although no statutory time limit is placed on motions to intervene, the trial court did not abuse its discretion in denying as untimely an application to intervene because intervention "could delay or impede the resolution reached by [the] parties" and interject additional issues into the litigation].) "Aside from the statutory limitation upon the time of intervention, it is the general rule that a right to intervene should be asserted within a reasonable time and that the intervener must not be guilty of an unreasonable delay after knowledge of the suit. [Citations.]" (Allen v. California Water & Tel. Co. (1947) 31 Cal.2d 104, 108.)
Section 387 "formerly limited intervention to a time before trial, but this limitation was removed by the 1977 amendment to the section, which now reads 'Upon timely application' rather than 'At any time before trial.' Thus intervention is possible, if otherwise appropriate, at any time, even after judgment. [Citation.]" (Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 437; see also Truck Ins. Exchange v. Superior Court (1997) 60 Cal.App.4th 342, 350-351 [holding that an application to intervene was timely, "[e]ven though real parties in interest were on the eve of obtaining a default judgment," because the parties' rights were not "materially impaired by any delay attributable to [the] filing of [the] application to intervene"].)
Because "no statutory time limit is placed on motions to intervene," the trial court erred in relying on the notice provisions of section 1005 to deny appellant's motion to intervene. (Noya, supra, 143 Cal.App.4th at p. 842.) However, we need not decide whether the motion was timely because we conclude that the denial of her motion to intervene did not prejudice appellant.
"An error is prejudicial and results in a miscarriage of justice only if the reviewing court concludes, based on its review of the entire record, that it is reasonably probable that a result more favorable to the appellant would have been reached absent the error. [Citation.]" (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1051; see also Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800 [explaining that "'a "miscarriage of justice" should be declared only when the court, "after an examination of the entire cause, including the evidence," is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error'"].)
Appellant's proposed complaint in intervention is essentially identical to Franco's. She raises the same claims and makes the same factual allegations as Franco, adding only one more allegation: "6.8 Defendant have [sic] filed baseless, unfounded, and fraudulent actions to evict the plaintiff." Franco's action included similar allegations regarding "illegal eviction." Appellant sought the same amount of damages and attached the same exhibits to her complaint. Because appellant's proposed complaint is nearly identical to Franco's, the trial court's reasons for sustaining the demurrer to Franco's action apply equally to appellant's.
The trial court's decision to sustain respondents' demurrer to Franco's complaint was based on Franco's lack of standing. The trial court reasoned that Franco was "not the borrower of record, did not have title for the property, nor does she allege she is or has ever been, a party to a loan transaction and or any of the recorded instruments relating to the property. Her theory, that she has been illegally removed from the property to which she claims title by adverse possession, is not supported by facts or legal authority."
In reviewing a complaint to which a demurrer has been sustained, "we must assume the truth of all facts properly pleaded by the plaintiff and matters properly judicially noticed. [Citation.] However, we 'do not assume the truth of contentions, deductions, or conclusions of fact or law and may disregard allegations that are contrary to the law or to a fact which may be judicially noticed.' [Citation.]" (Haro v. City of Solana Beach (2011) 195 Cal.App.4th 542, 549.) In addition, although we "assume the truth of the allegations in the complaint[,] . . . [t]he allegations that we accept as true necessarily include the contents of any exhibits attached to the complaint, and in the event of a conflict between the pleading and an exhibit, the facts contained in the exhibit take precedence over and supersede any inconsistent or contrary allegations in the pleading. [Citation.]" (Jibilian v. Franchise Tax Bd. (2006) 136 Cal.App.4th 862, 864, fn. 1 (Jibilian), see also Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th 390, 400 ["Under the doctrine of truthful pleading, the courts 'will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts that are judicially noticed.'"].)
Here, Franco's complaint, as well as appellant's proposed complaint, alleges ownership of the property only by adverse possession. Both complaints attach as exhibits the original 2008 Deed of Trust securing Bank of America's loan to the original borrowers, a substitution of trustee, a Notice of Trustee's Sale, and the 2010 Trustee's Deed conveying the property to Bank of America following the sale. The exhibits clearly indicate Bank of America's ownership of the property and contradict Franco's and appellant's allegations that respondents engaged in fraud, unlawfully converted the property, or unlawfully evicted Franco and appellant from the property. "If the allegations in the complaint conflict with the exhibits, we rely on and accept as true the contents of the exhibits." (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.)
Although Franco's complaint and appellant's proposed complaint allege ownership of the property by adverse possession, the complaints do not state facts sufficient to constitute a cause of action for adverse possession. '"To establish adverse possession, the claimant must prove: (1) possession under claim of right or color of title; (2) actual, open, and notorious occupation of the premises constituting reasonable notice to the true owner; (3) possession which is adverse and hostile to the true owner; (4) continuous possession for at least five years; and (5) payment of all taxes assessed against the property during the five-year period. [Citation.]'" (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054.)
The only allegations supporting Franco's and appellant's adverse possession claims are the following: "6.4 Plaintiff's possession has been actual, open, hostile, continuous, and exclusive possession of the said property in excess of the time period set forth under law. [¶] 6.5 Plaintiff has been in continuous possession during the time period described above in this complaint, adverse to defendants and to all other persons, in support of plaintiff's title to the real property and as curative of any defects in the title, or other defects which might have existed with reference to it." Neither complaint contains any allegations that the plaintiffs possessed the property for at least five years and paid taxes during the five-year period. Despite the allegation that Franco and appellant were in possession "during the time period described above," there is no indication of any time period, let alone a time period of at least five years. In fact, the original Deed of Trust securing Bank of America's interest in the property was recorded in 2008, only two years before Franco filed her complaint, and neither complaint makes any allegations regarding the 2008 Deed of Trust. The complaints, in fact, rely on the 2008 Deed of Trust to allege the fraudulence of the foreclosure sale.
The complaints' general allegations that the foreclosure sale constituted a fraudulent conveyance are inconsistent with the exhibits and, in particular with the 2008 Deed of Trust, which the complaints do not challenge. Because the exhibits supersede and take precedence over the contrary allegations in the pleadings, the demurrer to Franco's complaint was properly sustained. (Jibilian, supra, 136 Cal.App.4th at p. 864, fn. 1.) Appellant's proposed complaint in intervention relied on the same exhibits and made the same general allegations of fraud as Franco's complaint. The denial of appellant's motion to intervene accordingly did not prejudice her.
Even assuming the trial court erred in denying appellant's motion to intervene on timeliness grounds, any such error was harmless. We have reviewed the record, including Franco's complaint, the trial court's reasons for sustaining the demurrer to Franco's complaint, and appellant's proposed complaint in intervention. It is not reasonably probable that a result more favorable to appellant would have been reached absent any error.
DISPOSITION
The order denying appellant's motion to intervene is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, ACTING P. J.
We concur:
MANELLA, J.
SUZUKAWA, J.