Filed 4/10/18; Certified for Publication 5/9/18 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RON HACKER, as Trustee, etc.,

Plaintiff and Appellant,

v.

HOMEWARD RESIDENTIAL, INC., 

et al.,

Defendants and Respondents.

 B278537

 (Los Angeles County

 Super. Ct. No. BC610795)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Teresa A. Beaudet, Judge. Reversed with 

directions.

Law Office of Richard L. Antognini and Richard L. 

Antognini for Plaintiff and Appellant.

Wright, Finlay & Zak, Jonathan D. Fink and Charles C. 

McKenna for Defendants and Respondents Homeward 

Residential, Inc., Deutsche Bank National Trust Company, as 

Trustee for Soundview Home Loan Trust 2006-OPT 3, AssetBacked Certificates, Series 2006-OPT 3, Western Progressive, 
2

LLC, Ocwen Loan Servicing, LLC, Wells Fargo Bank, N.A., as 

Trustee for Option One Mortgage Loan Trust 2006-2, Power 

Default Services, Inc., Brandy Berns, and Vicki Pospisil.

Jeffer Mangels Butler & Mitchell, Michael J. Hassen and 

Christopher H. Doyle for Defendant and Respondent Sand 

Canyon Corporation.

——————————

Ron Hacker (Hacker), as successor trustee to the 1713 

Stearns LaVerne Family Trust (Stearns), sued Homeward 

Residential, Inc., (Homeward) formerly known as American 

Home Mortgage Servicing, Inc. (AHMSI); Sand Canyon

Corporation, formerly known as Option One Mortgage 

Corporation (Sand Canyon); Western Progressive, LLC (Western 

Progressive); Deutsche Bank National Trust Company, as 

Trustee for Soundview Home Loan Trust 2006-OPT 3, AssetBacked Certificates, Series 2006-OPT 3 (Deutsche Bank); Ocwen 

Loan Servicing, LLC (Ocwen); Linda Greene; Brandy Berns; DOC 

X; Larraine Brown; Vicki Pospisil; Wells Fargo Bank, N.A., as 

Trustee for Option One Mortgage Loan Trust 2006-2 (Wells 

Fargo); Power Default Services, Inc. (Power Default); T.D. Service 

Company; AHMSI Default Services; and DOES 10 through 100 

for claims arising from an allegedly void assignment of the deed 

of trust (DOT) on real property located at 1713-1717 Stearns 

Drive in Los Angeles, California (the property), and a failed short 

sale agreement. The trial court sustained the demurrer by 

Homeward, Deutsche Bank, Western Progressive, Ocwen, Wells 

Fargo, Power Default, Brandy Berns, and Vicki Pospisil to all 

causes of action; and the court sustained the demurrer by Sand 

Canyon to the third through eighth causes of action.
3

The trial court also denied Hacker’s request for leave to 

amend. On appeal, he contends he can amend his pleading to 

allege causes of action for wrongful foreclosure, fraud, slander of 

title, declaratory relief, unfair business practices, and 

cancellation of instruments against Homeward, Deutsche Bank, 

Western Progressive, Ocwen, Wells Fargo, Power Default, 

Brandy Berns, Vicki Pospisil, and Sand Canyon.1

We find that the trial court abused its discretion in denying 

leave to amend. We therefore reverse. 

FACTUAL SUMMARY

In 2006, Marcia Chaissions (Chaissions) obtained an

$875,000 loan from Option One Mortgage Corporation (Option 

One). The loan was secured by a deed of trust against the 

property, which she acquired on February 2, 2006. On June 1, 

2006, Option One transferred the loan to the Option One 

Mortgage Loan Trust 2006-2 (Option One Trust), a securitized 

investment trust, pursuant to a pooling and service agreement 

(PSA), under which Wells Fargo functioned as trustee and Option 

One as master servicer. 

In December of 2007, Option One stopped originating new 

mortgage loans but continued to service its extant loans. On 

April 30, 2008, pursuant to a purchase and sale agreement dated 

March 17, 2008, Option One legally changed its name to Sand 

Canyon and sold its mortgage servicing portfolio to AHMSI. 

On August 21, 2008, AHMSI assigned the DOT to Deutsche 

Bank as trustee for the certificate holders of the Soundview 

 

1 Sand Canyon filed a reply brief, and the remaining 

respondents filed a separate reply brief. For the purpose of 

brevity, we refer to the remaining respondents as Defendants.
4

Home Loan Trust (Soundview Trust). On July 23, 2008, AHMSI 

Default Services, Inc. was named as the trustee on the DOT and, 

on July 31, 2009, Power Default became the trustee on the DOT. 

Chaissions defaulted on the loan and T.D. Service Company

recorded a notice of default on October 9, 2009. The notice 

reflects that T.D. Service Company recorded the instrument “as 

authorized agent for the beneficiary” and directed the borrower

(Chaissions) to contact Deutsche Bank, as trustee for the 

Soundview Trust, care of AHMSI, if she wished to arrange 

payment to prevent foreclosure. T.D. Service Company recorded

notices of trustee’s sale on January 11, 2010, June 20, 2011, and 

January 12, 2012.

2 

On May 29, 2012, AHMSI’s name was changed to 

Homeward Residential, Inc. On August 8, 2012, Marcia and 

Dennis Chaissions (collectively, Chaissionses),

3 Homeward, and 

Stearns entered into a short sale agreement whereby Stearns 

would purchase the property and Homeward would release the 

loan. At the time, Estrelita Lane was the Stearns trustee and 

she signed the agreement. The terms of the agreement required 

the Chaissionses to deliver free and clear title to the property 

before August 31, 2012. The agreement did not close because the 

title company advised Stearns and the Chaissionses that there 

were “questionable title documents” from the August 21, 2008 

 

2 The record is silent as to the why these trustee’s sales 

either never took place or never resulted in a sale of the property.

3 The record is silent as to how and when, but at some point 

Marcia Chaissions’s son, Dennis, acquired an interest in the 

property.
5

assignment and the subsequent substitutions of trustee, notice of 

default, and notices of trustee’s sales. 

On October 16, 2012, Lane filed a complaint against the 

Chaissionses, AHMSI, Homeward, Deutsche Bank and others. In 

her second amended complaint, she alleged multiple causes of 

action stemming from the failed short sale agreement, which 

included challenges to the August 21, 2008 assignment. On 

November 20, 2014, the Chaissionses entered into an out-of-court 

settlement agreement with Mark Meador, who had become the 

successor trustee to Stearns. Under the agreement, Meador 

would dismiss the entire action once the Chaissionses vacated the 

property and transferred it to Stearns via a grant deed. On 

January 29, 2015, the Chaissionses signed a grant deed, which 

granted “any and all of their interest” in the property to Meador, 

as trustee for Stearns. On December 18, 2015, Meador withdrew 

the complaint and the action was dismissed without prejudice. 

On February 12, 2015, Western Progressive was named as 

trustee on the DOT. On August 10, 2015, Western Progressive 

recorded a notice of default and election to sell under deed of 

trust, directing the borrower to contact Deutsche Bank, as trustee 

for the Soundview Trust, if the borrower wished to arrange for 

payment in order to avoid foreclosure. Western Progressive 

recorded a notice of trustee’s sale on January 19, 2016. 

The Soundview Trust acquired the property at a foreclosure 

sale on July 6, 2016; Western Progressive recorded the trustee’s 

deed upon sale on July 13, 2016 at 8:00 a.m. Hacker’s grant deed 

was recorded shortly thereafter on July 13, 2016; the record does 

not indicate who requested the recording. 
6

TRIAL COURT PROCEEDINGS

On February 19, 2016, Hacker filed a complaint against 

AHMSI, Sand Canyon, Homeward, Western Progressive, 

Deutsche Bank, Ocwen, Linda Green, Brandy Berns, and Doc X. 

On April 4, 2016, Hacker filed a first amended complaint (FAC), 

adding Larraine Brown, Vicki Pospisil, Wells Fargo Bank, Power 

Default, T.D. Service Company, and AHMSI Default Services as 

defendants. The FAC alleged causes of action for: (1) breach of 

written contracts; (2) breach of the covenant of good faith and fair 

dealing; (3) wrongful, improper and fraudulent trustee sale; 

(4) fraud; (5) unfair business practices; (6) cancellation of void 

instruments; (7) slander of title; (8) declaratory relief; and 

(9) specific performance of contract. The first, second, and ninth 

causes of action were premised on Hacker’s claim that 

Respondents breached the terms of the DOT and short sale 

agreement. The remaining causes of action challenged the 

August 21, 2008 assignment of the DOT and subsequent recorded 

instruments, which he alleged were “ ‘void’ ” and a “ ‘sham.’ ” 

Defendants filed a demurrer on May 17, 2016 and Sand 

Canyon filed a demurrer on May 19, 2016. On July 12, 2016, 

Hacker filed an “opposition to demurrer of defendants AHMSI, 

Inc.,” along with a declaration in which he informs that court 

that Stearns acquired the property through a settlement 

agreement “whereby the Cha[i]ssionses assigned us their all 

rights [sic] they had affecting the property, including the 

defendants and the [p]roperty itself by way of a Grant Deed to 

the property signed and acknowledged on or about January 29, 
7

2015.”4 In the opposition, Hacker requested leave to amend the 

complaint in a brief paragraph that cites case law and statutory 

authority, but does not introduce any facts to show the trial court 

how he could have amended the complaint to state a valid cause 

of action. Hacker contemporaneously filed a request for judicial 

notice (RJN) of the November 20, 2014 settlement agreement, the 

January 29, 2015 grant deed, the trial court’s summary of the 

case, and the trustee’s deed upon sale. 

Hacker filed his opposition to Defendants’ demurrer on 

July 14, 2016, which included two requests for leave to amend. 

The first appears in a brief paragraph wherein he alleges, “facts 

have developed to warrant amendment, amendment should be 

granted. Indeed, the very recent foreclosure has materially 

affected the ‘standing’ argument trumpeted by Defendants.” The 

opposition to Homeward’s demurrer does not include any 

declarations and does not mention the January 29, 2015 grant 

deed. Hacker filed a second RJN in conjunction with the 

opposition to Homeward’s demurrer in which he requests judicial 

notice of the same documents that were the topic of his first 

request along with a number of court documents from federal 

cases around the country against Larraine Brown, AHMSI, 

Homeward, Sand Canyon, and Ocwen.5 Hacker never opposed 

Sand Canyon’s demurrer.

 

4 There is no indication in the record that AHMSI filed a 

demurrer; in fact, as noted above, Hacker claims that AHMSI 

changed its name to Homeward on May 29, 2012. 

5 The RJN also includes a letter of the Trustee’s Sale from 

Homeward dated August 8, 2012 (listed as exhibit 11) and the 

July 6, 2016 trustee’s deed upon sale (listed as exhibit 12). 
8

On July 18, 2016, Defendants filed evidentiary objections, 

including an objection to the admission of Hacker’s grant deed on 

the grounds that it is hearsay; is irrelevant; did not meet the 

requirements under Evidence Code section 450 et seq.; and 

“constitutes a default under the provisions of the loan documents, 

as such transfer of interest in the loan and property requires the 

lender’s consent and no such consent was given.”

On July 22, 2016, Hacker filed a motion for leave to amend

with a proposed second amended complaint attached. The 

hearing on the motion for leave to amend was scheduled for 

August 23, 2016. 

The hearing on the demurrers took place on July 25, 2016. 

The trial court sustained Defendants’ evidentiary objections, 

granted judicial notice of the case summary and August 12, 2012 

short sale agreement (incorrectly labeled “Homeward’s letter of 

the Trustee’s Sale”), and denied Hacker’s RJN of all remaining 

exhibits, including the grant deed. The trial court sustained the 

demurrers to all causes of action without leave to amend; Hacker 

subsequently took his motion for leave to amend off calendar.

Hacker now appeals, presenting two new facts in support of 

causes of action for wrongful foreclosure and fraud. First, the 

Chaissionses allegedly deeded the property to Stearns on 

January 29, 2015; second, the property was sold at a foreclosure 

auction on July 6, 2016. Hacker contends that these two facts 

“converted [his] case into a wrongful foreclosure claim.” Hacker 

also contends that he can state a cause of action for fraud, and 

that his causes of action for unfair business practices, 

 

Exhibit 11, however, is a copy of the short sale agreement and 

exhibit 12 was never attached.
9

cancellation of void instruments, slander of title, and declaratory 

relief survive because they are derived from the wrongful 

foreclosure claim.

DISCUSSION

I. Standard of review

We independently review the ruling on a demurrer and 

determine de novo whether the pleading alleges facts sufficient to 

state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001) 

25 Cal.4th 412, 415.) We “accept the truth of material facts 

properly pleaded in the operative complaint, but not contentions, 

deductions, or conclusions of fact or law.” (Yvanova v. New 

Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)

Where, as here, an appellant proposes facts and theories 

that were not heard by the trial court, we determine whether the 

trial court abused its discretion in denying leave to amend. (Code 

Civ. Proc., § 472c, subd. (a); Connerly v. State of California (2014) 

229 Cal.App.4th 457, 460 (Connerly).)6 In applying this 

standard, we decide whether there is a “reasonable possibility” 

the plaintiff can amend to state a cause of action. (Blank v. 

Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such 

reasonable possibility is squarely on the plaintiff.” (Ibid.) To 

 

6 In Connerly, the plaintiff raised a new legal theory on 

appeal that was based on the same set of facts before the trial 

court. (Connerly, supra, 229 Cal.App.4th at p. 462.) Here, as 

discussed below, the trial court also had before it all the facts to 

support Hacker’s new legal theory, but did not acknowledge one 

of the most crucial among them: that Hacker allegedly had a 

grant deed to demonstrate that he owned the property at the 

time of the foreclosure. We therefore conclude that applying the 

abuse of discretion standard to the trial court’s denial of leave to 

amend is appropriate.
10

satisfy that burden on appeal, a plaintiff “must show in what 

manner he can amend his complaint and how that amendment 

will change the legal effect of his pleading.” (Goodman v. 

Kennedy (1976) 18 Cal.3d 335, 349.)

II. The trial court properly sustained the demurrers to 

all causes of action

The trial court found that Hacker lacked standing to 

challenge the chain of assignments because: (1) the DOT 

required the lender’s prior written consent before the borrower 

could transfer her rights; (2) the short sale agreement prohibited 

the Chaissionses from assigning the property to another party; 

(3) the August 21, 2008 assignment was not void; and (4) Hacker 

was not the owner of the property nor the borrower of the note 

secured by the property. We find only the last rationale 

persuasive; the trial court properly found that, in his FAC,

Hacker failed to allege facts establishing an ownership interest in 

the property sufficient to confer standing.

A. THE DOT DID NOT PROHIBIT HACKER FROM CLAIMING 

RIGHTS TO THE PROPERTY

The trial court found that Hacker could not claim rights as 

the Chaissionses’ assignee because, under the DOT, “sale or 

transfer of the borrower’s rights required prior written consent to 

avoid acceleration of the entire debt.” This conclusion is 

incorrect. The DOT includes a clause that states, “[i]f all or any 

part of the Property or any interest in it is sold or 

transferred . . . without Lender’s prior written consent, Lender 

may, at its option, require immediate payment in full of all sums 

secured by this Security Instrument.” This clause imposes no 

sanctions upon the assignee; it merely gives the lender the option 

to accelerate the entire debt if the borrower transferred the 
11

property without prior written consent. Therefore, the terms of 

the DOT did not nullify Hacker’s interest in the property.

B. THE SHORT SALE AGREEMENT DID NOT PROHIBIT THE 

CHAISSIONSES FROM ASSIGNING AN INTEREST IN THE PROPERTY

The trial court also found that the short sale agreement 

“prohibited” assignment of the property to another party. The 

short sale agreement was executed on August 12, 2012 and 

expired on August 31, 2012 once it became evident that the 

owner could not deliver free and clear title. By the time the 

Chaissionses allegedly gave Hacker a grant deed on January 29, 

2015, the short sale agreement no longer had any legal effect. 

Therefore, the terms of the short sale agreement were not 

operative in January of 2015 and have no bearing on the 

Chaissionses ability to assign rights to the property more than 

two years after the agreement had expired.

C. HACKER DID NOT ALLEGE THE DOT VIOLATED THE PSA

The trial court also found that Hacker lacked standing 

because “to the extent that [he] contends that the [DOT] violated 

the operative [PSA] related to the securitization of the loan 

obligation, [Hacker] lacks standing because the assignment 

would be merely voidable.”7

 

7 Under New York law, which governs the PSA, 

unauthorized acts by a trustee are not void but voidable because 

the trust’s beneficiaries can ratify any such acts. (Rajamin v. 

Deutsche Bank Nat. Trust Co. (2d Cir. 2014) 757 F.3d 79, 90.) 

And, in California, an action for wrongful foreclosure by a 

borrower will not stand if the challenged assignment is merely 

voidable, not void. (Yvanova v. New Century Mortgage Corp., 

supra, 62 Cal.4th at p. 923.) As discussed below, many courts in 

New York and California have held that alleged violations of the 

terms of a PSA are merely voidable and therefore do not confer 
12

It appears the trial court misconstrued the nature of 

Hacker’s challenge to the August 21, 2008 assignment. Hacker

did not allege that the parties violated the terms of the PSA nor 

did he challenge any aspect of the securitization process whereby 

the original mortgage owned by Option One was transferred to 

the Option One Trust pursuant to the June 1, 2006 PSA. To the

contrary, Hacker has consistently maintained his position that 

the Option One Trust maintained its ownership of the loan from 

that date forward.

Hacker argues the subsequent assignment of the DOT on 

August 21, 2008 is void, not merely voidable. Throughout the 

FAC and the second amended complaint, Hacker claimed that the 

August 21, 2008 assignment by AHMSI to the Soundview Trust, 

which was conducted on behalf of Option One, was void because 

Option One had already sold the Chaissionses’ loan to the Option 

One Trust. Option One could not have conveyed the 

Chaissionses’ loan to the Soundview Trust because it no longer 

had any beneficial interest in the Chaissionses’ loan to convey. 

This contention is not a challenge to the terms of the PSA.

D. BASED ON THE ALLEGATIONS IN THE FAC, THE TRIAL 

COURT PROPERLY FOUND HACKER LACKED STANDING BECAUSE HE 

DID NOT HAVE A SUFFICIENT OWNERSHIP INTEREST IN THE 

PROPERTY

In the FAC, Hacker referred to himself as the “owner” of 

the property but did not substantiate this claim by attaching the 

grant deed or otherwise bringing it to the court’s attention. 

Although he claimed ownership of the property via a grant deed 

 

standing upon a plaintiff to pursue an action for wrongful 

foreclosure. 
13

in his declaration attached to the July 12, 2014 opposition and 

attached copies of it to two RJN’s, the trial court gave no 

indication that it had considered this alleged documentary 

support for Hacker’s ostensible ownership of the property. 

Instead, the trial court focused on Hacker’s failure in the FAC to 

establish that he was the owner of the property or the borrower of 

the note securing the property. In addressing Hacker’s claim 

that he obtained an “[a]ssignment of [r]ights” from the 

Chaissionses, the court observed that “ ‘an estate in real 

property . . . can be transferred only by deed or by operation of 

law’ ” and “ ‘[t]itle passes by deed and not by assignment of the 

deed to the assignee.’ ” 

To the extent that the trial court confined its analysis to 

the allegations in the FAC, the sustention of the demurrers as to 

all causes of action was logical; Hacker failed there to plead an 

ownership interest in the property sufficient to confer standing. 

However, our analysis does not stop there. We must determine 

whether the trial court’s denial of leave to amend fell within the 

court’s reasonable discretion. 

III. The trial court abused its discretion in denying leave 

to amend

The trial court found that Hacker “fail[ed] to specifically 

identify how amendment can cure the numerous defects 

discussed above. In light of the numerous defects discussed 

above, the Court finds that granting leave to amend would be 

futile.”

As noted above, in his July 12, 2016 and July 14, 2016 

oppositions to the demurrers, Hacker did not indicate with any 

specificity how he could amend his complaint to state a cause of 

action other than to say that “the very recent foreclosure has 
14

materially affected the ‘standing’ argument trumpeted by 

Defendants.”8 The grant deed conveyed “any and all of [the 

Chaissions’] interest” in the property to Mark Meador, as trustee 

for Stearns. Such pleadings would be sufficient to establish a

colorable claim that Hacker was the owner of the property at the 

time of the foreclosure on July 6, 2016.

Defendants argue that the circumstances surrounding the 

grant deed are “suspicious.” In considering the merits of a 

demurrer, however, “the facts alleged in the pleading are deemed 

to be true, however improbable they may be.” (Del E. Webb Corp. 

v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; see 

Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) To 

the extent that Defendants would challenge the validity of the 

grant deed, such a challenge would constitute an issue of triable 

fact, which is for the trier of fact to decide.9

2. Hacker has proposed facts sufficient, if true, to 

show that the August 21, 2008 assignment was void

The Soundview Trust acquired the property via a 

foreclosure sale on July 6, 2016. Hacker claims Soundview Trust 

had no power to foreclose on the property because it was never 

the true owner of the DOT.

 

8 Hacker raised specific, amendment-worthy facts in his 

motion for leave to amend filed on July 22, 2016. However, as 

noted above, the court never heard the motion as the hearing on 

the motion was calendared for August 23, 2016 and the trial 

court had already sustained the demurrers without leave to 

amend at the July 25, 2016 hearing.

9 Defendants also contend Hacker has not shown that the 

Chaissionses’ note was actually conveyed to the Option One 

Trust. This is also an issue for the trier of fact to decide.
15

As discussed above, respondents and the trial court have 

misconstrued Hacker’s challenge to the August 21, 2008 

assignment as an allegation that the assignment violated the 

PSA. Were this case, the assignment would indeed be voidable 

under New York and California law. A number of cases have 

held that assignments which “allegedly breach[] a term or terms 

of a PSA” are voidable rather than void because “the 

beneficiaries, not the borrower, have the right to ratify the 

trustee’s unauthorized acts.” (Mendoza v. JPMorgan Chase 

Bank, N.A. (2016) 6 Cal.App.5th 802, 812–813.) In contrast, an 

assignment by a party that never possessed legal title to the

property is void. Hacker’s allegation is unequivocally of the 

latter type.

In Sciarratta v. U.S. Bank National Assn. (2016) 247 

Cal.App.4th 552 (Sciarratta), the plaintiff alleged that the 

original owner of her DOT, JPMorgan Chase, assigned the DOT 

to Deutsche Bank in April of 2009. (Id. at p. 557.) Chase then 

purported to sell the DOT to Bank of America in November 2009. 

(Ibid.) On the same day, Bank of America foreclosed and, as the 

purported “ ‘foreclosing beneficiary,’ ” acquired the property via a 

trustee’s deed upon sale. (Id. at p. 558.) The court found the 

assignment to Bank of America void because it had already 

assigned “ ‘all beneficial interest’ ” to Deutsche Bank months 

earlier. (Id. at p. 564.)

Hacker’s factual allegations mirror those of the plaintiff in 

Sciarratta. Hacker contends Option One sold all beneficial 

interest in the property when it sold the mortgage to the Option 

One Trust pursuant to the PSA on June 1, 2006. Two years later, 

on August 21, 2008, AHMSI, as successor in interest to Option 

One, executed an assignment of the DOT to Soundview Trust, 
16

with Deutsche Bank as trustee. Hacker contends this 

assignment was void because AHMSI had no legal authority to 

convey an interest in property that it had already sold to the 

Option One Trust.

We find that Hacker has successfully alleged facts 

supporting a claim that the August 21, 2008 assignment is void. 

As such, he has standing to pursue an action for wrongful 

foreclosure.10

 

10 Sand Canyon alleged in its pleadings and at oral 

argument that Hacker forfeited his right to allege any causes of 

action against Sand Canyon because he did not oppose their 

demurrer, request leave to amend as to them specifically, or 

address their arguments on appeal. Sand Canyon relies on two 

cases to support its position: In re S.B. (2004) 32 Cal.4th 1287, 

and Sciarratta. In In re S.B., the California Supreme Court 

noted that “the loss of the right to challenge a ruling on appeal 

because of the failure to object in the trial court . . . is [a] 

‘forfeiture,’ because a person who fails to preserve a claim forfeits 

that claim.” (Id. at p. 1293, fn. 2.) Sciarratta observed that 

ordinarily, when an appellant does not assert the court erred in 

sustaining the demurrer to all causes of action, “any contentions 

regarding the correctness of the trial court’s ruling sustaining the 

demurrer to [the unaddressed] causes of action would be 

abandoned.” (Sciarratta, supra, 247 Cal.App.4th at p. 568.) 

Sciarratta supported this observation by quoting Ram v. OneWest 

Bank, FSB (2015) 234 Cal.App.4th 1, which notes that “where [a] 

demurrer [is] sustained without leave to amend, appellant’s 

failure to raise arguments in connection with one of several 

causes of action is deemed abandonment of that cause of action.” 

(Ram, at p. 9, fn. 2, quoting Bagley v. International Harvester Co. 

(1949) 91 Cal.App.2d 922, 926.)

These cases, however, address the failure of a plaintiff to 

preserve the claim itself, not the failure to preserve a claim as to 
17

B. HACKER FAILS TO PROPOSE FACTS SUFFICIENT TO

SUSTAIN A CAUSE OF ACTION FOR FRAUD

With respect to the fraud claim, the trial court also found 

that Hacker failed to allege any actual misrepresentation, failed 

to plead facts with the specificity required to support a fraud 

claim, and was barred by the three-year statute of limitations for 

fraud. 

We agree that Hacker is time-barred from pursuing a cause 

of action for fraud. “An action for relief on the ground of 

fraud . . . is not deemed to have accrued until the discovery, by 

the aggrieved party, of the facts constituting the fraud.” (Code 

Civ. Proc., § 338, subd. (d).) Hacker asserts that a cause of action 

accrues when “the damage is complete,” and urges us to find that 

his action for fraud accrued when the July 2016 foreclosure sale 

 

a particular defendant. We find no support for the contention 

that a plaintiff forfeits the right to amend a complaint against a 

defendant who was named as a party to the original complaint 

but was not thereafter named specifically in the pleadings 

requesting leave to amend. Indeed, there is no prohibition 

against the court allowing a party to amend a pleading to add a 

new party to the action. “The court may, in furtherance of 

justice, and on any terms as may be proper, allow a party to 

amend any pleading or proceeding by adding or striking out the 

name of any party.” (Code Civ. Proc., § 473, subd. (a)(1).) We

therefore see no reason to preclude Hacker from pursuing his 

claim against all the defendants named in his FAC. If, as Sand 

Canyon contends, Hacker cannot plead specific facts as to Sand 

Canyon’s involvement in the allegedly void assignment, Sand 

Canyon can make such an argument on remand. We make no 

determination as to whether the facts regarding Sand Canyon’s 

involvement ended before the contested conveyance occurred, as 

this is a factual question for the trier of fact to determine.
18

took place. He attempts to support this argument by referencing 

Miller v. Bechtel Corp. (1983) 33 Cal.3d 868 (Miller).

Hacker misconstrues Miller, supra, 33 Cal.3d 868, which 

held that an action for fraud accrues when a plaintiff becomes 

aware of facts that would cause a “reasonably prudent person” to 

suspect fraud. (Id. at pp. 875–876.) An action for fraud, 

therefore, does not accrue when the damage is “complete,” as 

Hacker argues. The action accrues when a plaintiff first learns 

that a fraud may have occurred, so long as he or she could have 

confirmed the fraud through further investigation. (Ibid.) Miller

is thus inapposite.

Here, the action for fraud accrued in August of 2012, when 

Estrelita Lane, prior trustee to Stearns, learned that there were 

questionable title documents related to the August 21, 2008 

assignment. Hacker is therefore time-barred from bringing an 

action for fraud.

As we find this cause of action is time-barred by the threeyear statute of limitations, we need not address the trial court’s 

findings that Hacker failed to allege any actual 

misrepresentation or to plead facts with the specificity required 

to support a fraud claim.

C. THE REMAINING CAUSES OF ACTION

Hacker alleges claims for slander of title, declaratory relief, 

unfair business practices, and cancellation of instruments.

The trial court sustained the demurrers to these causes of 

action because each of them was predicated on the challenge to 

the August 21, 2008 assignment. As the trial court found Hacker 

had no standing to challenge any of the assignments in the chain 

of title, it followed that Hacker could not pursue these derivative 

claims.
19

Here, we conclude that Hacker has standing to pursue his 

claim for wrongful foreclosure. It follows that Hacker also has 

standing to pursue the remaining claims that derive from his 

action for wrongful foreclosure. (Glaski v. Bank of America, 

National Association (2013) 218 Cal.App.4th 1079, 1101.)11

DISPOSITION

The judgment is reversed. The trial court is directed to 

grant Hacker leave to amend the complaint consistent with this 

opinion. The parties are to bear their own costs on appeal. 

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

BENDIX, J.*

 

11 We express no views on the factual merits of Hacker’s 

claims.

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
Filed 5/9/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RON HACKER, as Trustee, etc.,

Plaintiff and Appellant,

v.

HOMEWARD RESIDENTIAL, INC., 

et al.,

Defendants and Respondents.

 B278537

 (Los Angeles County

 Super. Ct. No. BC610795)

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed April 10, 

2018, was not certified for publication in the Official Reports. For 

good cause it now appears that the opinion should be published in 

the Official Reports and it is so ordered.

CHANEY, Acting P. J. JOHNSON, J. BENDIX, J.