Opinion
E077398
11-20-2023
Y. DOLLY HWANG, Plaintiff and Appellant, v. HAYSAM EL SALEH, Defendant and Respondent.
Y. Dolly Hwang, in pro. per., for Plaintiff and Appellant. Law Offices of Michael C. Earle, Michael C. Earle, and Eva Hollands, for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC1906055. Carol A. Greene, Judge.
Y. Dolly Hwang, in pro. per., for Plaintiff and Appellant.
Law Offices of Michael C. Earle, Michael C. Earle, and Eva Hollands, for Defendant and Respondent.
OPINION
CODRINGTON J.
INTRODUCTION
Yi Fu Hwang's house was foreclosed on and sold in a trustee's sale. The purchaser, Haysam El Saleh, later evicted Hwang. Hwang, proceeding in pro. per., sued Saleh (and others) for two causes of action, which generally alleged the defendants had no authority to sell his property and thus El Saleh had no authority to evict him. The trial court sustained El Saleh's demurrer to Hwang's operative First Amended Complaint (FAC) without leave to amend, denied Hwang's motion for reconsideration, and entered judgment for El Saleh. Hwang appeals, and we affirm.
While this appeal was pending, Hwang died and his sister, Y. Dolly Hwang, was substituted as plaintiff and appellant. Because she is prosecuting this case on his behalf and they share the last name, we will refer to them collectively as "Hwang."
II. FACTUAL AND PROCEDURAL BACKGROUND
We assume the truth of the facts as alleged in the FAC unless contradicted by judicially noticeable facts. (Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) We may take judicial notice of "the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity." (Fontenot v. Wells Fargo Bank, N.A.(2011) 198 Cal.App.4th 256, 265, disapproved on other grounds by Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919.) We also may consider "documents attached to th[e] complaint as exhibits ....If recitals in those documents are inconsistent with the allegations of the complaint, the recitals take precedence, and we disregard allegations inconsistent with the unambiguous text of the documents." (Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 714, fn. 6.)
Hwang obtained a mortgage loan from Cathay Bank for a property in Corona. The loan was secured by a Deed of Trust (DOT) between Hwang, Cathay Bank, and Chicago Title Company (Chicago Title). The DOT, which Hwang signed and agreed to, provided that Chicago Title would be the trustee for the loan. The DOT explained that Hwang had already assigned to Cathay Bank "all of [his] right, title, and interest in" the Corona property as security for the mortgage loan. It also provided that Hwang "grants, transfers and assigns to [Chicago Title] in trust, with power of sale, for the benefit of [Cathay Bank] as Beneficiary, all of [Hwang's] right, title, and interest" in the Corona property so long as Hwang's mortgage remained outstanding.
Years later, Hwang defaulted on the loan because he fell behind on mortgage payments. Chicago Title sent Hwang a notice of default, which stated that Chicago Title intended to sell the Corona property in a trustee's sale under the DOT unless Hwang became current on his mortgage payments. But because Hwang did not do so, Chicago Title sent Hwang a notice of trustee's sale, stating that Chicago Title would sell the Corona property at a public auction as trustee for Cathay Bank. After El Saleh bought the property at the auction, Chicago Title transferred all of its interests in the property to him.
El Saleh then filed an unlawful detainer action (the UD action) to evict Hwang from the property, which resulted in a judgment of possession for El Saleh. The trial court then issued a writ of possession for the property.
Shortly afterward, however, Hwang filed a separate complaint to quiet title in which he asserted he was the rightful owner of the Corona property. Around the same time, Hwang moved ex parte to set aside the judgment in the UD action. But before the motion was heard, the Sheriff's Department executed the writ of possession and evicted Hwang. The court, therefore, denied Hwang's motion as moot.
Hwang later filed his operative FAC against Cathay Bank, Chicago Title, and El Saleh. The thrust of the action is that Chicago Title wrongfully foreclosed on the Corona property because it had no authority to do so. The basis for Hwang's assertion is that Chicago Title was the trustee for Cathay Bank loan No. 732-000-190 (the 732 loan) under the DOT, but the trustee's sale foreclosed on a deed of trust for Loan No. 215474-1 (the 215 loan). Hwang claimed Cathay Bank closed the 732 loan and opened the 215 loan without his knowledge or consent, so the trustee's sale was void.
The FAC asserts two causes of action against Cathay Bank, Chicago Title, and El Saleh. The first is entitled, "Conspired and Executed a void trustee sale against Plaintiff's property through fraudulent deception in the meaning of California Civil Code [sections] 1709, and 1710." The claim generally alleges that Cathay Bank and Chicago Title "willfully conspired and executed a void trustee sale of [Hwang's] property and issued a void Deed of Trustee Sale on his property." Hwang's section cause of action is entitled, "Conspiracy in Unlawful and Abusive Taking Property Right from an Elderly Individual in Violation of California Code, Welfare and Institutions Code . . . [section] 15610. 30, and Civil Code [section] 3345." The claim alleges that Cathay Bank, Chicago Title, and El Saleh conspired to intentionally defraud Hwang of his rights to the Corona property through an "unlawful and fraudulent trustee sale." It also alleges that because El Saleh knew the trustee's sale was unlawful, he unlawfully evicted Hwang.
El Saleh demurred to the FAC and the trial court sustained the demurrer without leave to amend. Hwang then moved for reconsideration under Code of Civil Procedure section 1008. In that motion, Hwang argued the trial court's order sustaining El Saleh's demurrer without leave to amend violated his constitutional rights. While the motion was pending, the trial court entered judgment for El Saleh. The court therefore denied Hwang's motion for reconsideration on the ground that the court had no jurisdiction because of the judgment. Hwang timely appealed.
III. DISCUSSION
Hwang's main arguments are that the trial court erroneously sustained El Saleh's demurrer without leave to amend and erroneously denied his motion for reconsideration. We conclude the trial court properly sustained the demurrer without leave to amend and, in turn, properly denied the motion for reconsideration. We therefore need not address Hwang's remaining arguments.
A. Applicable Law and Standard of Review
We "liberally construe[]" a complaint's allegations. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) "'On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed "if any one of the several grounds of demurrer is well taken. [Citations.]" [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]' [Citation.]" (McAllister v. Los Angeles Unified School Dist. (2013) 216 Cal.App.4th 1198, 1206.)
On appeal from an order sustaining a demurrer without leave to amend, "[t]he plaintiff 'bears the burden of demonstrating that the trial court erroneously sustained the demurrer as a matter of law' and 'must show the complaint alleges facts sufficient to establish every element of [the] cause of action.' [Citation.]" (Sui v. Price (2011) 196 Cal.App.4th 933, 938.) The plaintiff "must clearly and specifically set forth the 'applicable substantive law' . . . and the legal basis for amendment, i.e., the elements of the cause of action and authority for it . . . [and] must set forth factual allegations that sufficiently state all required elements of that cause of action." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.)
B. Analysis
We note that Hwang filed a 54-page opening brief totaling nearly the maximum 14,000 words permitted under California Rules of Court, rule 8.204(c)(1). The brief is dense, replete with arguments and authority, and difficult to follow. We have considered all of Hwang's arguments to the extent we can follow them, but we need only decide whether Hwang stated a viable cause of action against El Saleh. We conclude Hwang has not done so.
Hwang's first cause of action contains no allegations against El Saleh. While the claim alleges Cathay Bank and Chicago Title conspired to illegally foreclose on the Corona property in various unlawful ways, Hwang alleges no wrongdoing by El Saleh. In fact, the claim's only mention of El Saleh is that Cathay Bank and Chicago Title illegally recorded the deed of sale issued to El Saleh after the trustee's sale.
Hwang brought the second cause of action under Welfare and Institutions Code section 15610. 30 and Civil Code section 3345, but neither statute is mentioned in Hwang's opening brief. Hwang therefore fails to show how the second cause of action stated a viable cause of action. (See Sui v. Price, supra, 196 Cal.App.4th at p. 938; Rakestraw v. California Physicians' Service, supra, 81 Cal.App.4th at p. 43.)
More to the point, we cannot discern how the second cause of action's allegations against El Saleh state a cause of action. Hwang alleges El Saleh, Cathay Bank, and Chicago Title "willfully engaged in conspiracy of intentional fraud[]" to deprive Hwang of the Corona property via the "unlawful and fraudulent trustee sale." Given Hwang's argument in the opening brief that the FAC stated a viable claim for wrongful foreclosure, we construe these allegations as attempting to allege a claim for wrongful foreclosure against El Saleh.
But, as Hwang's own authority states, the first element of a claim for wrongful foreclosure is that "the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property." (See CACI 4920; Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561-562["The elements of a wrongful foreclosure cause of action are: "'(1) [T]he trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust ....'"].) Because El Saleh was neither a trustee nor a mortgagee of the Corona property, but instead was only its bona fide purchaser, he cannot be liable for wrongful foreclosure.
Hwang's second cause of action also appears to allege that El Saleh wrongfully evicted Hwang after purchasing the Corona property in the trustee's sale. To the extent Hwang does so, the claim is barred by the litigation privilege. Simply stated, the litigation privilege generally provides absolute immunity from tort suits that are based on a party's litigation conduct. (See Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1485-1486.) The litigation privilege thus has repeatedly been applied to bar suits based on a party's filing and prosecuting a lawful unlawful detainer action against a tenant. (See e.g., id. at p. 1486; Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1243-1252; Bisno v. Douglas Emmett Realty Fund 1988 (2009) 174 Cal.App.4th 1534, 1552-1553.) The privilege applies fully here and bars Hwang's second cause of action against El Saleh insofar as it is based on the UD action.
We may affirm on any basis presented in the record. (Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn. 1.)
In short, Hwang failed to state a viable cause of action in the FAC. On appeal, Hwang has failed to show how the FAC could be amended to state a viable cause of action. We therefore conclude the trial court did not err by sustaining El Saleh's demurrer to the FAC without leave to amend.
Hwang fails to show that the trial court erroneously denied the motion for reconsideration. A motion for reconsideration under Code of Civil Procedure section 1008 must be "based on new or different facts, circumstances, or law," and the "party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time." (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)
Hwang's motion for reconsideration raised a host of alleged procedural and substantive errors underlying the trial court's order on El Saleh's demurrer that allegedly violated Hwang's due process rights. Even if true, the motion did not provide new facts, circumstances, or law that would render the court's order on El Saleh's demurrer erroneous. As explained above, the trial court properly sustained the demurrer without leave to amend because Hwang failed to allege a viable cause of action against El Saleh. Hwang's motion for reconsideration provided no reason to revisit that ruling. We therefore conclude court properly denied the motion. (See New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at p. 212; see also Day v. Alta Bates Medical Center, supra, 98 Cal.App.4th at p. 252, fn. 1 [appellate court may affirm on any basis].) As a result, we conclude the trial court did not err in any respect.
IV. DISPOSITION
The judgment is affirmed. El Saleh may recover his costs on appeal.
We concur: MILLER Acting P. J., RAPHAEL J.