Filed 9/5/14 Valladares v. Calliance Realty Fund CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

LETICIA VALLADARES, Individually 

and as Trustee, etc.,

Plaintiff and Appellant,

v.

CALLIANCE REALTY FUND LLC et al.,

Defendants and Respondents.

 B243876

 (Los Angeles County

 Super. Ct. No. BC470177)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Deidre Hill, Judge. Affirmed.

William Beck for Plaintiff and Appellant.

Alpert, Barr & Grant, Gary L. Barr, Mark S. Blackman for Defendants and 

Respondents.

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The trial court sustained demurrers to a first amended complaint without leave to 

amend and entered judgment for the defendants. On appeal, plaintiff does not contend 

that the operative pleading has any merit. Instead, plaintiff seeks leave to file an entirely 

new pleading, with different facts and new theories of recovery. Although the possibility 

of amending a pleading is open on appeal, plaintiff failed to carry her burden of showing 

that an amendment would cure any defects. We affirm.

FACTS

The responding defendants in this appeal are Capital Alliance Advisors and its 

loan servicer Calliance Realty Funding. In November 2007, Capital Alliance loaned 

Leticia Valladares $760,000, secured by a deed of trust on real property (the Property). 

The promissory note requires repayment by December 1, 2010.

Valladares soon defaulted on her monthly payments. She and Calliance entered a 

modification agreement in December 2008 (the Modification). The Modification recites 

arrearages of $78,033, dating from March 1, 2008, which were added to the principal 

balance for a total debt of $838,033. Calliance agreed to temporarily decrease the interest 

rate and lower Valladares’s payments. In return, Valladares agreed to give the lender title 

to a vehicle as additional collateral. In consideration for the Modification, Valladares 

agreed to pay a fee of $7,500. 

A notice of trustee’s sale was recorded, stemming from Valladares’s second 

default. The Property was sold at public auction in June 2011. Valladares sued on the 

theory that respondents lacked standing to foreclose on the deed of trust: they allegedly 

failed to perfect their security interest in the Property and “cannot establish possession 

and proper transfer and/or endorsement of the Promissory Note and proper assignment of 

the Deed of Trust.”

Respondents demurred to the complaint. They challenged the foundation for 

Valladares’s claim that the foreclosing creditor lacked lawful ownership or a security 

interest in the Property, and asked the trial court to take judicial notice of recorded 

documents showing the validity of their ownership. 
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In response to the demurrer, Valladares filed a first amended complaint. Her 

appellate brief describes the amended pleading as “essentially identical to the original 

Complaint.” Two weeks after filing the amended pleading, plaintiff’s attorney asked to 

be relieved from representing her.

Respondents demurred. After pointing out that the two pleadings are “almost 

word-for-word identical,” they argued that they held title to the Property from the date 

the loan was made to the date of foreclosure. Three days before the hearing on the 

demurrer—and two months after plaintiff’s counsel sought to withdraw from 

representation—Valladares tried to delay the matter and (purportedly) offered the court a 

proposed second amended complaint (SAC). Valladares concedes in her opening brief 

that the SAC “never made it into the Court’s file, according to its electronic docket 

sheet,” and the trial court never saw it. Valladares did not seek leave from the trial court 

to file the SAC.

At the hearing on the demurrer, Valladares asked for leave to allow new counsel to 

substitute into the case and amend the complaint. The trial court denied both requests, 

reasoning that Valladares had ample opportunity to find new counsel and file a motion to 

amend between May 2, 2012 (when the first amended complaint was filed) and July 16, 

2012 (the date of the hearing). The court sustained demurrers to the first amended 

complaint without leave to amend. Valladares appeals from the judgment. 

DISCUSSION

1. Appeal and Review

Appeal lies from the judgment after demurrers are sustained without leave to 

amend. (Code Civ. Proc., § 581d, 904.1, subd. (a)(1); Serra Canyon Co. v. California 

Coastal Com. (2004) 120 Cal.App.4th 663, 667; Tanen v. Southwest Airlines Co. (2010)

187 Cal.App.4th 1156, 1162.) We review de novo the ruling on the demurrers, 

exercising our independent judgment to determine whether a cause of action has been 

stated. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.) We 

assume that the pleading’s material allegations are true. (Moore v. Regents of University 

of California (1990) 51 Cal.3d 120, 125.)
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2. The First Amended Complaint

Valladares acknowledges that the demurrer to the first amended complaint “was 

sustained, which it should have been,” adding that the original complaint and its 

amendment “did not make sense” and “missed the point.” We do not address the merits 

of the first amended complaint in this opinion because Valladares does not contend that 

any portion of that pleading states a viable claim. She has abandoned her original claim 

that respondents lacked standing to foreclose on the Property.

3. Leave to Amend

Valladares says “she should have been allowed to file a SAC by new lawyers and 

have the Superior Court render judgment on it.” She wishes to allege new facts and 

claims. Plaintiff’s ability to amend her pleading is “open on appeal.” (Code Civ. Proc., 

§ 472c, subd. (a).) She must show a reasonable possibility that an amendment would 

cure any defects. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081; Aubry 

v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) “The burden of proving such 

reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 

311, 318.) The papers must spell out how an amendment can cure a defect or change the 

legal effect of the pleading. Leave to amend should not be granted if it would be an 

exercise in futility. (Long v. Century Indemnity Co. (2008) 163 Cal.App.4th 1460, 1467-

1468.) 

Valladares’s brief offers a section heading that reads, “The standard of review also 

requires plaintiff to show the appellate court in what manner amendments can be made to 

the complaint which will change the legal effect of the pleadings.” This is a correct 

statement of the law. However, the opening brief fails to show that the pleading can be 

amended to survive demurrer. (See McAllister v. Los Angeles Unified School Dist. 

(2013) 216 Cal.App.4th 1198, 1214 [this Court declined to reverse a demurrer sustained 

without leave to amend “[b]ecause appellant has completely failed to make any factual 

showing supporting her claim” to satisfy us that an amendment is appropriate].)

For example, the brief states that information obtained from Valladares “appear[s] 

to establish her performance on the interest only loan.” To survive demurrer on a 
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wrongful foreclosure claim, plaintiff must allege a full tender of the debt. “Allowing 

plaintiffs to recoup the property without full tender would give them an inequitable 

windfall, allowing them to evade their lawful debt.” (Stebley v. Litton Loan Servicing, 

LLP (2011) 202 Cal.App.4th 522, 526.) Plaintiff hedges whether or not she performed. 

Certainly, there is no claim in the brief that she fully tendered the principal—plus 

arrearages and delinquency fees—when the foreclosure took place.

Elsewhere in her brief, Valladares hints that she and respondents discussed a 

resolution. They agreed on a buyout of $725,000, but respondents wanted a lump sum 

payment while Valladares wanted to make four payments over time. The law imposes no 

duty on lenders to agree to a loan modification. (Hamilton v. Greenwich Investors XXVI, 

LLC (2011) 195 Cal.App.4th 1602, 1617.) Preliminary negotiations for a modification do 

not show a meeting of the minds, so a debtor’s hope “that the notes would be ‘redone’ 

thus raises no triable issue as to a legally enforceable understanding inconsistent with the 

written terms of the notes.” (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 483, 

overruled on other grounds in Riverisland Cold Storage, Inc. v. Fresno-Madero 

Production Credit Assn. (2013) 55 Cal.4th 1169, 1182.) Valladares’s payments on the 

debt are unavailing: she had a contractual obligation to pay, notwithstanding the lender’s 

willingness to discuss a modification. (Auerbach v. Great Western Bank (1999) 74 

Cal.App.4th 1172, 1185-1187; Lueras v. BAC Home Loans Servicing, LP (2013) 221 

Cal.App.4th 49, 79.)

Valladares suggests that this Court might review the legal sufficiency of her 

proposed SAC “right off-the-bat,” to determine if any viable causes of action are stated, 

citing Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 

1371. The Careau case reiterates that plaintiff must show the appellate court that a 

proposed amendment states a viable cause of action. (Id. at p. p. 1388.) Plaintiff’s brief 

offers no analysis of her proposed SAC. She makes no attempt to show this Court how 

she can allege facts to establish the requisite legal elements in a way that is sufficient to 

survive demurrer. Indeed, she does not even mention what her proposed new causes of 

action might be.
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In short, plaintiff cites statutory and case law authorizing appellate courts to 

examine proposed amendments to determine whether a viable cause of action exists. 

What is missing from the brief is step two: case/statutory citations demonstrating why 

Valladares’s proposed amendment is legally sufficient. An appellate court is not charged 

with doing plaintiff’s work of researching the elements of possible claims and reciting 

factual allegations supporting those elements. Valladares has failed to carry her burden 

of convincing this Court that she can make viable claims in her proposed SAC.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

CHAVEZ, J.

FERNS, J.*

_____________________________________________________________________

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.