Openiano v. Bank of Am. Corp.

• Decision Date: 28 December 2012
• Docket Number: D060901
• Court: California Court of Appeals Court of Appeals
• Parties: RENATO OPENIANO et al., Plaintiffs and Appellants, v. BANK OF AMERICA CORPORATION et al., Defendants and Respondents.

RENATO OPENIANO et al., Plaintiffs and Appellants, v. BANK OF AMERICA CORPORATION et al., Defendants and Respondents.

D060901

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

Dated: December 28, 2012

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2010-00100232

CU-BC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Randa M. Trapp, Judge. Affirmed.

Plaintiffs and appellants Renato Openiano, Arturo Belenzo, Job Penetrante and Rey Openiano appeal from a judgment in favor of defendants and respondents Bank of America Corporation (Bank of America) and BAC Field Services Corporation (at times collectively Bank) entered after the trial court sustained without leave to amend Bank's demurrer to plaintiffs' second amended complaint for, inter alia, trespass and unlawful foreclosure. Plaintiffs, who are self-represented litigants, contend the appeal presents aquestion of law as to whether a lender may enter a property by force and change the locks "without notice, without permission [and] without legal or court process, if the borrower is delinquent in making payment[.]" Because plaintiffs have not shown any basis for reversing the order sustaining Bank's demurrer without leave to amend, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are taken from well-pleaded material allegations of the operative second amended complaint as well as matters properly subject to judicial notice. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734, fn. 2; Thornton v. California Unemployment Ins. Appeals Bd. (2012) 204 Cal.App.4th 1403, 1408.)

In April 2007, Anthony and Ruth Casabag purchased residential property located at 6455 Bullock Drive in San Diego County (the property). They obtained two loans from Countrywide Home Loans, Inc., doing business as America's Wholesale Lender, secured by deeds of trust on the property recorded on April 10, 2007.¹ The first deed oftrust contains a section 9 entitled "Protection of Lender's Interest in the Property and Rights Under this Security Instrument" (at times, section 9) that provides in part: "If (a) Borrower fails to perform the covenants and agreements contained in this Security Instrument, (b) there is a legal proceeding that might significantly affect Lender's interest in the Property and/or rights under this Security Instrument (such as a proceeding in bankruptcy, probate, for condemnation or forfeiture, for enforcement of a lien which may attain priority over this Security Instrument or to enforce laws or regulations), or (c) Borrower has abandoned the Property, then Lender may do and pay for whatever is reasonable or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property. Lender's actions can include, but are not limited to: (a) paying any sums secured by a lien which has priority over this Security Instrument; (b) appearing in court; and (c) paying reasonable attorneys' fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding. Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violations ordangerous conditions, and have utilities turned on or off. Although Lender may take action under this Section 9, Lender does not have to do so and is not under any duty or obligation to do so. It is agreed that Lender incurs no liability for not taking any or all actions authorized under this Section 9."

At some point, the Casabags defaulted on their mortgage payments. In March 2009, Anthony Casabag, represented by Renato Openiano, a real estate agent working at Aguinaldo Realty, entered into a purchase agreement to sell the property to third parties. Renato Openiano also represented the third party buyers. Thereafter, Renato Openiano and Anthony Casabag purported to enter into month-to-month rental agreements with Job Penetrante, Rey Openiano, and Arturo Belenzo.

On September 15, 2009, a representative of BAC Field Services Corporation entered the property, pried open a side gate and side door locks and changed the front and rear door locks on the property. The representative—identified as "WSR"—posted a notice stating that the property had been secured to prevent entry by unauthorized persons. Bank sold the property via a trustee's sale three weeks later, on October 6, 2009.

Plaintiffs originally sued Bank in September 2010. In November 2010, they filed a first amended complaint asserting causes of action for trespass to land, "intrusion," violation of the Fair Employment and Housing Act (FEHA, Gov. Code, § 12900, et seq.), tortious interference with contract, negligence, unfair competition, intentional and negligent infliction of emotional distress, unlawful foreclosure, and "illegal eviction." Bank demurred to all of the first amended complaint's causes of action, and the trial courtsustained the demurrers as to all of them, granting plaintiffs leave to amend all but the cause of action for illegal eviction.

In April 2011, plaintiffs filed their second amended complaint setting out the same causes of action. They alleged Bank's September 15, 2009 forcible entry on their property constituted a trespass, intrusion, wrongful foreclosure and wrongful eviction,² and interfered with the lease agreements between Renato Openiano and Job Penetrante, Rey Openiano, and Arturo Belenzo; the purchase agreement between Casabag and the third parties; and the Casabags' listing agreement with Renato Openiano. Alleging that all of the plaintiffs have the same Filipino national origin, plaintiffs alleged defendants' entry interfered with their rights under Government Code sections 12955 and 12955.1. Plaintiffs' remaining causes of action for negligence, unfair competition, and intentional and negligent infliction of emotional distress are all based on defendants' act of entering the property on September 15, 2009.

Bank again demurred to the second amended complaint. It argued the Casabags had expressly agreed, by signing the deeds of trust, to permit their lender to enter the property to secure, preserve and protect it from damage—including by changing the locks—in case of neglect, vacancy or default. Bank argued plaintiffs' consent negated essential elements of their claims for trespass, intrusion, tortious interference with contract and wrongful foreclosure. As for the other claims, Bank argued plaintiffs failed to allege sufficient facts to state causes of action.

The trial court sustained Bank's demurrers without leave to amend. Granting the parties' requests for judicial notice, it ruled plaintiffs did not have actionable claims for trespass, intrusion, tortious interference with contract, and wrongful foreclosure because the Casabags had consented to their lender's entry on the property upon default. As to the remaining causes of action, it ruled plaintiffs did not allege facts showing Bank discriminated against them because of their national origin; did not allege facts showing Bank owed them a duty of care; had not alleged unfair, fraudulent, or unlawful acts by Bank; and had not alleged that Bank's conduct was extreme and outrageous, or done with the intention or reckless disregard of the probability of causing emotional distress. The court ordered the case dismissed. Plaintiffs filed the present appeal.

DISCUSSION

I. Demurrer Standard of Review

"In determining whether plaintiffs properly stated a claim for relief, our standard of review is clear: ' "We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.]The burden of proving such reasonable possibility is squarely on the plaintiff.' " (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) "If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer. '[W]e are not limited to plaintiffs' theory of recovery . . . .' " (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) We review de novo whether the complaint alleges facts sufficient to state a cause of action. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, fn. 10; CPF Agency Corp. v. Sevel's 24 Hour Towing Service (2005) 132 Cal.App.4th 1034, 1042.) " 'A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, whether or not the court acted on that ground.' " (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)

If judicially noticeable facts render an otherwise facially valid complaint defective, the complaint is subject to demurrer. (See Evans v. City of Berkeley...