Filed 2/11/14 Smith v. Bank of America CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

CHARLES SMITH, et al.

Plaintiffs and Appellants,

 v.

BANK OF AMERICA, N.A., et al.

Defendants and Respondents.

CHARLES SMITH, et al.

 Plaintiffs and Appellants,

 v.

DVP, LP,

Defendant and Respondent.

F066194 & F066470 

(Super. Ct. No. 10CECG04464) 

OPINION 

 APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. 

Hamilton, Judge. 

 Charles Smith and Deborah M. Smith, in pro. per., for Plaintiffs and Appellants. 

 McCarthy & Holthus, Melissa Robbins Coutts and Matthew B. Learned for 

Defendants and Respondents Bank of America, N.A., and Quality Loan Service 

Corporation. 

 Williams, Jordan, Brodersen & Pritchett and Steven R. Williams for Defendant 

and Respondent DVP, LP.

-ooOoo- 
2. 

 Plaintiffs Charles Smith and Deborah M. Smith (the Smiths) obtained a home loan 

from defendant Bank of America, N.A. (B of A) in the amount of $348,000. The loan 

was secured by a deed of trust in favor of B of A against the Smiths’ real property on 

Megan Avenue in Clovis, California (the property). When the Smiths defaulted on their 

loan obligations, defendant Quality Loan Service Corporation (Quality), as agent for the 

beneficiary of the deed of trust, initiated nonjudicial foreclosure proceedings. The Smiths 

then filed the present lawsuit against B of A and Quality (together defendants), asserting 

damage claims against defendants under several theories and also seeking to prevent the 

foreclosure. The trustee’s sale went forward and the property was sold to a third party 

(DVP, LP (DVP)), thereby foreclosing the Smiths’ ownership interest.1 As to the 

proceedings in the trial court concerning the Smiths’ lawsuit, the trial court granted 

defendants’ motion to have their default set aside under Code of Civil Procedure2

section 473 and also sustained defendants’ demurrers to the Smiths’ original complaint, 

first amended complaint and second amended complaint. After the demurrer was 

sustained to the second amended complaint, further leave to amend was denied. The 

Smiths appealed (in case No. F066194), contending that the trial court erred in setting 

aside defendants’ defaults and in sustaining the demurrers to the Smiths’ causes of action 

without leave to amend. We disagree and affirm the orders and judgment of the trial 

court. 

Additionally, the Smiths separately appealed (in case No. F066470) from the trial 

court’s postjudgment order granting DVP’s motion to expunge the lis pendens.3 Since 

 

1 DVP intervened in this action to file a motion to expunge the lis pendens recorded 

against the property by the Smiths. 

2 Unless otherwise indicated, all further statutory references are to the Code of Civil 

Procedure. 

3 For purposes of this opinion, we ordered case Nos. F066194 and F066470 

consolidated under case No. F066194 on December 2, 2013. 
3. 

the Smiths failed to state a viable real property claim, we affirm the trial court’s order 

expunging the lis pendens. 

FACTS AND PROCEDURAL HISTORY 

Events Leading to Foreclosure 

On February 8, 2008, as part of a loan refinance transaction, Charles Smith 

executed a promissory note in the amount of $348,000, promising to repay that sum plus 

interest to B of A in regular monthly installments. The promissory note was secured by a 

deed of trust against the property. The deed of trust named B of A as the beneficiary, was 

signed by the Smiths (as the borrowers/property owners), and was recorded by the Fresno 

County Recorder as document No. 2008-0028738. Said deed of trust was in the first 

position; that is, it was the senior deed of trust or mortgage on the property. Unless 

otherwise indicated, when we refer herein to the deed of trust, we mean the above 

described first deed of trust which secured the loan to the Smiths of $348,000. 

On the same date, Charles Smith also executed a second promissory note, 

promising to repay another loan obtained from B of A in the amount of $43,500, which 

obligation was secured by a second deed of trust executed by the Smiths. 

 On February 17, 2010, after the Smiths were substantially in arrears on their loan 

obligations, Quality recorded a notice of default and election to sell under deed of trust 

(notice of default).4 The notice of default stated that, in regard to the deed of trust 

recorded as document No. 2008-0028738, which secured the loan of $348,000 from 

B of A, the Smiths were in default in the amount of “$17,013.50 as of 2/17/2010.” The 

notice of default also gave the appropriate warnings of the consequences in the event the 

Smiths failed to take action. 

 

4 The notice of default reflects that Quality took this action as agent for the 

beneficiary under the deed of trust. 
4. 

 On May 4, 2010, B of A substituted Quality as trustee in place of the former 

trustee under the deed of trust. Since the Smiths had failed to take any steps to cure the 

default, Quality recorded a notice of trustee’s sale on May 19, 2010. On June 9, 2011, 

the property was sold to a third party, DVP, at a public foreclosure auction commonly 

referred to as a trustee’s sale. A trustee’s deed upon sale was subsequently recorded on 

June 21, 2011. 

The Original Complaint 

On December 27, 2010, the Smiths filed their original complaint in the trial court. 

The complaint purported to state the following causes of action: (1) fraud, (2) rescission 

and damages pursuant to section 1635 of title 15 of the United States Code, (3) damages 

pursuant to section 2605 of title 12 of the United States Code, (4) damages pursuant to 

section 1692 of title 15 of the United States Code, (5) infliction of emotional distress, 

(6) damages pursuant to section 241 of title 18 of the United States Code, (7) unfair 

business practices, (8) quiet title, (9) temporary restraining order and preliminary 

injunction, and (10) damages for violation of section 2071 of title 18 of the United States 

Code. As this enumeration makes clear, most of the causes of action were premised upon 

alleged violations of federal law. 

Removal to Federal Court and the Smiths’ Dismissal of Federal Claims 

In January 2011, B of A removed the case to the United States District Court for 

the Eastern District of California. In April 2011, the Smiths voluntarily dismissed all of 

their federal claims (the 2d, 3d, 4th, 6th and 10th causes of action), whereupon the federal 

district court remanded the case back to Fresno Superior Court to resolve the state law 

claims. 

Remand to the Superior Court and Section 473 Motion 

 Once the case returned to Fresno Superior Court, defendants filed a demurrer to 

the Smiths’ complaint on May 20, 2011. However, the trial court granted a motion to 

strike the demurrer due to the fact that defendants’ default had been entered the day 
5. 

before, on May 19, 2011. On June 14, 2011, defendants filed a motion to set aside 

default on the ground that their default was a result of attorney neglect due to an internal 

clerical error. On July 12, 2011, the trial court found defendants’ showing was sufficient 

to warrant relief and it set aside defendants’ default under section 473. 

Demurrer to Complaint 

 With their default set aside, defendants proceeded to re-file their demurrer to the 

Smiths’ complaint. The Smiths filed opposition to the demurrer. The matter was heard 

on October 27, 2011. The trial court struck the second, third, fourth, sixth and tenth 

causes of action, since the Smiths previously dismissed those claims in the federal district 

court. As to the remaining causes of action, the trial court sustained defendants’ 

demurrer as to all causes of action except the eighth and ninth, and it granted the Smiths 

30 days’ leave to amend. 

Demurrer to First Amended Complaint 

 A first amended complaint was filed by the Smiths on November 28, 2011. In it, 

the Smiths attempted to state the following causes of action: (1) fraud, (2) infliction of 

emotional distress, (3) unfair business practices, (4) quiet title, and (5) temporary 

restraining order and injunctive relief. The first amended complaint alleged, among other 

things, that the Smiths were damaged due to loan origination errors, nondisclosures and 

failures to respond to the Smiths’ inquiries. The prayer for relief requested (in addition to 

damages) that the deed of trust and all proceedings taken pursuant thereto be voided by 

the trial court and that title to the property be quieted in favor of the Smiths. 

 On December 27, 2011, defendants filed their demurrer to the first amended 

complaint. The grounds raised by defendants included that the Smiths’ pleading 

(1) failed to state a cause of action to quiet title because they had not tendered or offered 

to tender the balance due on the loan and (2) failed to state a cause of action for a 

temporary restraining order or other injunctive relief because they no longer owned the 

property and, thus, the prevention of foreclosure was moot. The Smiths filed opposition 
6. 

to the demurrer. At the hearing on April 12, 2012, the trial court agreed with defendants’ 

arguments that the first amended complaint failed to state any cause of action against 

defendants. The trial court sustained the demurrer to the quiet title and injunctive relief 

causes of action without leave to amend, and it sustained the demurrer to the remaining 

causes of action with 20 days’ leave to amend. 

Demurrer to Second Amended Complaint 

 On May 2, 2012, the Smiths filed their second amended complaint alleging that 

defendants were liable for (1) fraud, (2) infliction of emotional distress, and (3) unfair 

business practices. One remarkable new theory alleged in the second amended complaint 

was that the Smiths were never loaned any money by B of A, but rather B of A issued the 

loans to certain artificial, fictitious entities whose trade names were spelled in all capital 

letters (i.e., CHARLES SMITH and DEBORAH M. SMITH), as opposed to the real, 

living, breathing human beings whose names had to include both upper case and lower 

case lettering (i.e., Charles Smith and Deborah M. Smith). Defendants demurred to the 

second amended complaint, asserting that the Smiths still failed to state any cause of 

action and that many of the claims asserted by the Smiths had already been rejected by 

the trial court. The Smiths filed opposition to the demurrer. 

 On October 1, 2012, following oral argument, the trial court sustained defendants’ 

demurrer to the second amended complaint. Additionally, the trial court concluded that 

further amendment could not cure the fatal defects in the pleading and, therefore, leave to 

amend was denied. The Smiths timely filed their notice of appeal in case No. F066194 

on October 16, 2012, checking the box on the notice of appeal form to indicate that the 

appeal was taken from the “[j]udgment of dismissal after an order sustaining a 

demurrer.”5 In their appeal therefrom, the Smiths contend the trial court erred in setting 

 

5 Although the trial court neglected to enter a formal judgment of dismissal after it 

sustained defendants’ demurrer to the second amended complaint without leave to 

amend, it is clear the trial court intended to do so. Not only was leave to amend denied, 
7. 

aside defendants’ default and in sustaining the demurrers to the Smiths’ causes of action 

without leave to amend. 

Order Expunging Lis Pendens 

 Nearly two months after the trial court sustained the demurrer to the second 

amended complaint without leave to amend, the trial court heard DVP’s motion to 

expunge the notice of pendency of action (lis pendens) recorded on the property by the 

Smiths. The trial court granted the motion, noting that the demurrer ruling established 

the Smiths could not plead any cause of action, much less a real property claim. The trial 

court also ordered the Smiths to pay the attorney fees incurred by DVP in seeking to 

remove the lis pendens, in the sum of $1,625. In case No. F066470, the Smiths 

separately appealed from the order granting the motion to expunge the lis pendens. As 

noted above, we have ordered both appeals (case Nos. F066194 and F066470) 

consolidated for purposes of this opinion. 

DISCUSSION 

I. The Trial Court Properly Set Aside Default 

The Smiths argue the trial court abused its discretion in setting aside defendants’ 

default. We disagree. 

 A. Section 473 and Standard of Review 

A motion for relief from a judgment, order or other proceeding may be made on 

the ground that it was taken against the moving party as a result of mistake, inadvertence, 

surprise or excusable neglect. (§ 473, subd. (b).) Whether to grant such relief under 

 

but the trial court directed defendants to submit an ex parte request for dismissal within 

seven days. Further, the register of action reflects that the court subsequently dismissed 

defendants. Under the circumstances, we exercise our discretion to deem that the order 

sustaining the demurrer without leave to amend is modified to include a formal judgment 

of dismissal. (Estate of Dito (2011) 198 Cal.App.4th 791, 799-800.) We treat the appeal 

as from the judgment. Therefore, we reject defendants’ argument that the appeal is from 

nonappealable orders. 
8. 

section 473 lies within the sound discretion of the trial court, and the trial court’s decision 

will not be overturned absent an abuse of discretion. (Elston v. City of Turlock (1985) 38 

Cal.3d 227, 233 (Elston).) Section 473 is applied liberally where the party moves 

promptly to seek relief and no prejudice will be suffered by the party opposing the 

motion if relief is granted. In such instances, only very slight evidence is needed to 

justify relief. (Elston, supra, at p. 233; Rogalski v. Nabers Cadillac (1992) 11 

Cal.App.4th 816, 819-820.) Additionally, because the law favors trial on the merits, 

doubts are to be resolved in favor of the party seeking relief. As a result, a trial court 

order denying relief is more closely scrutinized on appeal than an order permitting trial 

on the merits. (Elston, supra, at p. 233.) 

In addition to the discretionary relief noted above, section 473, subdivision (b), 

provides for mandatory relief based on an attorney affidavit of fault. The mandatory 

relief provision of section 473, subdivision (b), provides that the court “shall, whenever 

an application for relief is made no more than six months after entry of judgment, is in 

proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her 

mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the 

clerk against his or her client, and which will result in entry of a default judgment, or 

(2) resulting default judgment or dismissal entered against his or her client, unless the 

court finds that the default or dismissal was not in fact caused by the attorney’s mistake, 

inadvertence, surprise, or neglect.” (Italics added.) “Relief [under the attorney fault 

provision of section 473] is mandatory when a complying affidavit is filed, even if the 

attorney’s neglect was inexcusable.” (Rodrigues v. Superior Court (2005) 127 

Cal.App.4th 1027, 1033.) Where the applicability of the mandatory relief provision does 

not turn on disputed facts and presents a pure question of law, our review is de novo. 

(SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516.) 
9. 

 B. Application 

 In support of defendants’ application to set aside default, the declaration of 

defendants’ attorney, Rachel Opatik, stated that she completed the drafting of the 

demurrer to the complaint on May 9, 2011, sufficient for timely filing, and instructed her 

legal assistant to obtain a hearing date and have the demurrer filed in the trial court by 

May 10, 2011. Ms. Opatik stated that she “mistakenly believed the legal assistant had 

filed” the matter and “removed the Demurrer from my personal task list.” Ms. Opatik 

admitted this was an error of oversight on her part, explaining that she “should have kept 

the Demurrer on my task list and followed up with the legal assistant [on] May 10, 2011, 

to ensure ... the task was completed.” When the mistake was discovered on May 19, 

2011, Ms. Opatik took immediate action to have the demurrer filed, and it was filed the 

next day. As the trial court correctly observed in its order granting the motion to set aside 

default, “[t]he assistant’s failure to serve, file and obtain a date for the demurrer are 

attributable to the attorney, because the attorney is the professional responsible for 

supervising the work of his or her legal assistants.” Further, the trial court found that the 

only prejudice to the Smiths was that they would “be litigating the case on the merits, 

which is to say, no prejudice at all.” 

 The trial court properly granted the motion. Defendants’ attorney was responsible 

to oversee the work of her assistant in regard to the timely filing of the demurrer and, 

thus, her declaration of attorney fault was sufficient to require mandatory relief. (See Hu 

v. Fang (2002) 104 Cal.App.4th 61, 64 [attorney responsible for supervising paralegal’s 

work product, including his mistake in calendaring the order to show cause hearing; 

therefore, mandatory relief was required based on attorney affidavit admitting to the 

attorney’s failure of oversight]; cf. Zamora v. Clayborn Contracting Group, Inc. (2002) 

28 Cal.4th 249, 259 [assuming error of legal assistant attributable to counsel].) 

Additionally, even if the matter were deemed to fall under the discretionary provision of 

section 473, no abuse of discretion has been shown. Where relief is promptly sought and 
10. 

no prejudice would result, as was the case here, only “‘very slight’” evidence is needed to 

permit relief, which is to be liberally granted. (Elston, supra, 38 Cal.3d at p. 233.) 

Defendants’ motion clearly met that threshold. For these reasons, no error or abuse of 

discretion has been shown, and the Smiths’ challenge to the order setting aside default 

fails. 

II. The Trial Court Properly Sustained the Demurrers 

The trial court sustained, without leave to amend, defendants’ demurrer to the 

quiet title and injunctive relief causes of action set forth in the first amended complaint. 

Thereafter, the trial court sustained, without leave to amend, defendants’ demurrer to the 

remaining causes of action for fraud, infliction of emotional distress, and unfair business 

practices set forth in the second amended complaint. In the present appeal, the Smiths 

challenge the trial court’s ruling as to each of these causes of action. As will be seen, the 

trial court got it right because the Smiths failed to state a cause of action or present any 

basis for leave to amend. 

 A. Standard of Review 

On review of an order sustaining a demurrer without leave to amend, our standard 

of review is de novo; that is, we exercise our independent judgment about whether the 

complaint states a cause of action as a matter of law. (Holcomb v. Wells Fargo Bank, 

N.A. (2007) 155 Cal.App.4th 490, 495.) “In reviewing the sufficiency of a complaint 

against a general demurrer, we are guided by long-settled rules. ‘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 
11. 

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. [Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 

 B. First Amended Complaint 

 We now consider whether the trial court properly eliminated the quiet title and 

injunctive relief claims from the first amended complaint by sustaining demurrer to those 

causes of action without leave to amend. 

1) Quiet Title 

In their quiet title cause of action, the Smiths sought to have their alleged right, 

title and ownership in the property found superior to that of defendants and to have the 

deed of trust released, reconveyed and/or voided. At the time these allegations were 

made, the property had already been sold pursuant to the trustee’s sale, and thus the relief 

sought by the Smiths’ allegations (if construed generously) was to have the foreclosure 

set aside and the Smiths declared the rightful owners. As the trial court observed in its 

order sustaining the demurrer: “[T]his is now purely a case to recover sold, formerly 

mortgaged property. Tender must be pled. [Citation.] It has not and the demurrer to this 

cause of action is sustained without leave to amend, as it appears that [the Smiths] cannot 

truthfully allege that they tendered the full amount of the indebtedness.” (Italics added.) 

The trial court was correct in holding that, under the circumstances, tender of the 

remaining debt was a necessary element of the quiet title claim. “It is settled in 

California that a mortgagor cannot quiet his title against the mortgagee without paying 

the debt secured.” (Shimpones v. Stickney (1934) 219 Cal. 637, 649; see also Mix v. Sodd

(1981) 126 Cal.App.3d 386, 390 [in action to quiet title, court of equity will not aid a 

person in avoiding payment of his or her debts]; Aguilar v. Bocci (1974) 39 Cal.App.3d 

475, 477 [mortgagor cannot “quiet title without discharging his debt”].) Similarly, where 

a borrower seeks to set aside a trustee’s sale based on alleged irregularities, a tender of 

the indebtedness must be pled: “Because the action is in equity, a defaulted borrower 
12. 

who seeks to set aside a trustee’s sale is required to do equity before the court will 

exercise its equitable powers. [Citation.] Consequently, as a condition precedent to an 

action by the borrower to set aside the trustee’s sale on the ground that the sale is 

voidable because of irregularities in the sale notice or procedure, the borrower must offer 

to pay the full amount of the debt for which the property was security. [Citations.] ‘The 

rationale behind the rule is that if [the borrower] could not have redeemed the property 

had the sale procedures been proper, any irregularities in the sale did not result in 

damages to the [borrower].’ [Citation.]” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 

89, 112.) Other cases are to the same effect. (See, e.g., Shuster v. BAC Home Loans 

Servicing, LP (2012) 211 Cal.App.4th 505, 512; Abdallah v. United Savings Bank (1996) 

43 Cal.App.4th 1101, 1109; Arnolds Management Corp. v. Eischen (1984) 158 

Cal.App.3d 575, 578-579; Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 

112, 117.)6

Moreover, the Smiths had to allege a “full tender” of the indebtedness, not merely 

vague “offers to tender” same. (Stebley v. Litton Loan Servicing, LLP (2011) 202 

Cal.App.4th 522, 526.) With respect to tender, “‘it is a debtor’s responsibility to make an 

unambiguous tender of the entire amount due ....’” (Nguyen v. Calhoun (2003) 105 

Cal.App.4th 428, 439 [strict compliance required]; see also Karlsen v. American Sav. & 

Loan Assn., supra, 15 Cal.App.3d at p. 118 [an offer of performance is of no effect if the 

person making it is not able to perform].) In the first amended complaint, the Smiths 

merely alleged that they were “prepared to discuss” the matter of a tender of the 

 

6 Courts recognize certain rare exceptions to the rule requiring tender, such as when 

the borrower demonstrates the deed of trust is void on its face (not merely voidable) or 

that the underlying debt is invalid. (See Lona v. Citibank, N.A., supra, 202 Cal.App.4th 

at p. 112; Shuster v. BAC Home Loans Servicing, LP, supra, 211 Cal.App.4th at pp. 512-

513; see also Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062 

[listing exceptions].) The Smiths have not alleged or argued any cognizable legal basis 

for such an exception here. 
13. 

obligation. Not only was that allegation completely insufficient, but it was made after the 

necessity to allege tender had been earlier raised in the prior demurrer concerning the 

original complaint. Moreover, the Smiths failed to offer any basis for further 

amendment. The trial court did not abuse its discretion in concluding that the Smiths not 

only failed to allege tender of the debt, but could not truthfully make such allegation. We 

conclude that the general demurrer to the quiet title cause of action was properly 

sustained without leave to amend. 

2) Injunctive Relief 

The Smiths’ injunctive relief cause of action sought to prevent the trustee’s sale 

from going forward based on the Smiths’ assertion that title should be quieted in their 

name and that the deed of trust should not be enforced. In sustaining the general 

demurrer to this cause of action, the trial court noted the subject property had already 

been foreclosed upon and, therefore, the requested injunctive relief was now moot. 

In order to establish a basis for injunctive relief, a plaintiff must allege (1) the 

elements of a cause of action involving a wrongful act sought to be enjoined and (2) the 

grounds for equitable relief. (San Diego Unified Port Dist. v. Gallagher (1998) 62 

Cal.App.4th 501, 503.) “Injunctive relief is a remedy and not, in itself, a cause of action, 

and a cause of action must exist before injunctive relief may be granted.” (Shell Oil Co. 

v. Richter (1942) 52 Cal.App.2d 164, 168.) Here, the Smiths sought the injunctive relief 

on the same legal grounds as they sought to quiet title. Since the underlying cause of 

action fails, so does the requested injunctive relief. Additionally, the trial court was 

correct that the trustee’s sale, once permitted to go forward and completed, mooted the 

Smiths’ effort to prevent foreclosure. At that point, the requested injunctive relief was 

rendered unnecessary and improper. (MaJor v. Miraverde Homeowners Assn. (1992) 7 

Cal.App.4th 618, 623; see also Giles v. Horn (2002) 100 Cal.App.4th 206, 227.) For 

these reasons, we hold the trial court properly sustained the demurrer to the injunctive 

relief cause of action without leave to amend. 
14. 

 B. Second Amended Complaint 

We now turn to the remainder of the causes of action asserted by the Smiths, 

which were presented in their second amended complaint. The trial court sustained the 

demurrer to these claims without leave to amend. As will be seen, the trial court 

correctly concluded that the Smiths failed to state any cause of action or any basis for 

leave to amend. 

1) Fraud 

The elements of a fraud cause of action are: “‘(a) misrepresentation (false 

representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); 

(c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting 

damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) “In 

California, fraud must be pled specifically; general and conclusory allegations do not 

suffice.” (Id. at p. 645; Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73-74.) This 

means that “every element of the cause of action for fraud must be alleged in the proper 

manner (i.e., factually and specifically), and the policy of liberal construction of the 

pleadings [citation] will not ordinarily be invoked to sustain a pleading defective in any 

material respect. [Citations.]” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 711, 

pp. 126-127.) The pleading must be of sufficient particularity “‘to enable the court to 

determine whether, on the facts pleaded, there is any foundation, prima facie at least, for 

the charge of fraud.’” (Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 

553.) 

The Smiths’ fraud cause of action was based on the theory that B of A did not 

actually loan money to the Smiths. According to the allegations, B of A issued the loan 

to fictional entities that had names spelled in all capital letters (i.e., CHARLES SMITH 

and DEBORAH M. SMITH), as opposed to living, breathing, “real” people who spell 

their names with both upper case and lower case letters (i.e., Charles Smith and 

Deborah M. Smith). The trial court found this theory to be both factually baseless and 
15. 

irrational, explaining: “Spelling a natural person’s name in all capital letters does not 

reference a new, different or artificial entity. Such a spelling still references the living 

person. [The Smiths] have pled no facts to suggest that they did not obtain the benefits of 

the loan they applied for, was funded and made payments on.” We quite agree. 

On demurrer, the court does not accept as true a pleading’s legal contentions or 

unsupported conclusions. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Here, no facts 

were alleged in the second amended complaint to permit a reasonable basis to conclude 

that a false representation was made—that is, no facts were stated to indicate that the 

Smiths did not in fact receive their loan. Spelling names in all capital letters does not, by 

any stretch of the imagination, suggest that the loan was not made to the Smiths or 

indicate an alien or artificial entity actually received the loans. To put it more bluntly, the 

allegations are not only unsupported conclusions, they are nonsense. In light of this 

glaring deficiency, along with the Smiths failure to provide any possible basis for leave to 

amend, we conclude that the trial court correctly sustained the demurrer without leave to 

amend. 

Additionally, we observe that the Smiths’ original complaint admitted that they 

actually received the loan from B of A.7 Accordingly, we disregard the allegations to the 

contrary in the second amended complaint as sham pleading. “A plaintiff may not avoid 

a demurrer by pleading facts or positions in an amended complaint that contradict the 

facts pleaded in the original complaint or by suppressing facts which prove the pleaded 

facts false.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.) If a 

 

7 For example, paragraph 46 of the original complaint stated that the Smiths’ 

mortgage was subject to a certain federal statute for several reasons, including: “Charles 

Smith and Deborah M. Smith executed the Deed of Trust, are individuals ... [who] used 

the loan proceeds for personal, family, or household purposes, ... the amount borrowed 

was, and is subject to a finance charge, and is to be repaid in 5 or more installments, and 

because the mortgage loan is secured by [the Smiths’] principal dwelling ....” 
16. 

plaintiff does so without offering an adequate explanation for the change, “the policy 

against sham pleading” permits a trial court or an appellate court to “disregard the 

inconsistent allegations and read into the amended complaint the allegations of the 

superseded complaint.” (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 383-

384; accord, Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061; Deveny v. 

Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426, & fn. 3 [if a party files an amended 

pleading and attempts to avoid defects of original complaint by either omitting facts that 

rendered prior complaint defective or adding facts inconsistent with prior allegations, 

court may take judicial notice of prior pleadings and disregard inconsistent allegations or 

read into amended complaint the allegations of the superseded complaint]; Berg & Berg 

Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1043, fn. 25 [same].) 

Here, with no explanation for the change, the second amended complaint 

contradicted the original complaint by alleging that the Smiths never received the loan 

from B of A. Under the above authorities, we disregard these inconsistent allegations set 

forth in the second amended complaint. In so doing, the entire fraud claim collapses as a 

sham. Thus, the policy against sham pleading provides an additional basis for our 

conclusion that the trial court correctly sustained the demurrer to the fraud cause of action 

without leave to amend. 

2) Intentional Infliction of Emotional Distress 

The elements of the tort of intentional infliction of emotional distress are: 

(1) extreme and outrageous conduct by the defendant with the intention of causing, or 

reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s 

suffering severe or extreme emotional distress; and (3) actual and proximate causation of 

the emotional distress by the defendant’s outrageous conduct. (Christensen v. Superior

Court (1991) 54 Cal.3d 868, 903.) Conduct to be outrageous must be so extreme as to 

exceed all bounds of that usually tolerated in a civilized community. (Ibid.) “‘Liability 

has been found only where the conduct has been so outrageous in character, and so 
17. 

extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as 

atrocious, and utterly intolerable in a civilized community.’ [Citation.]” (Cochran v. 

Cochran (1998) 65 Cal.App.4th 488, 496.) And the defendant’s conduct must be 

intended to inflict injury or engaged in with the realization that injury will result. (Potter 

v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) Moreover, with respect to 

the requirement that a plaintiff show severe emotional distress, the Supreme Court has 

expressly set the bar high: “‘Severe emotional distress means “‘emotional distress of 

such substantial quality or enduring quality that no reasonable [person] in civilized 

society should be expected to endure it.’”’” (Hughes v. Pair (2009) 46 Cal.4th 1035, 

1051, quoting Potter v. Firestone Tire & Rubber Co., supra, at p. 1004.)8

It is for the court to determine, in the first instance, whether a defendant’s conduct 

can reasonably be regarded as so extreme and outrageous as to permit recovery. (Chang 

v. Lederman (2009) 172 Cal.App.4th 67, 87; Fowler v. Varian Associates, Inc. (1987) 

196 Cal.App.3d 34, 44.) If the court decides that reasonable persons may differ on the 

issue, then it is for the jury to determine whether the conduct was, in fact, outrageous. 

(Berkley v. Dowds (2007) 152 Cal.App.4th 518, 534; Alcorn v. Anbro Engineering, Inc. 

(1970) 2 Cal.3d 493, 499.) 

In sustaining the demurrer, the trial court found that the conduct alleged in the 

second amended complaint was insufficient as a matter of law to constitute extreme and 

outrageous conduct and, secondly, that the degree of emotional distress was not of such a 

severe nature that no one in a civilized society should be expected to endure it. We agree 

 

8 The tort does not extend to mere insults, indignities, threats, annoyances, petty 

oppressions, or other trivialities. (Hughes v. Pair, supra, 46 Cal.4th at p. 1051.) 

“‘[P]laintiffs must necessarily be expected and required to be hardened to a certain 

amount of rough language, and to occasional acts that are definitely inconsiderate and 

unkind. There is no occasion for the law to intervene in every case where some one’s 

feelings are hurt.’” (Cochran v. Cochran, supra, 65 Cal.App.4th at p. 496.) 
18. 

with the trial court on both points. The emotional distress claim was primarily founded 

on the Smiths’ anxiety at the prospect of losing their home once steps were taken by 

defendants to foreclose on the deed of trust after the Smiths stopped making mortgage 

payments. However, notwithstanding the Smiths’ anxiety, foreclosure was simply an 

exercise of a contractual and lawful remedy that arose as a result of the Smiths’ material 

default on their trust deed and, therefore, defendants’ conduct was not extreme and 

outrageous under the circumstances. Additionally, the Smiths’ natural feeling of stress or 

anxiety concerning that same foreclosure was not the type of emotional distress that 

would be considered so severe, substantial and enduring that no one in a civilized society 

should be expected to endure it. 

The only other conduct alleged as potential support for the intentional infliction of 

emotional distress claim was that B of A made a number of phone calls to the Smiths. 

Allegedly, many phone calls were made to the Smiths’ home by B of A, including 

occasionally more than “10 phone calls” in a single day, and in a few instances, the time 

of day was later than “the allowed call time established by law.” The trial court carefully 

considered an attachment to the original complaint, referred to as exhibit No. 11, which 

provided a record of the subject phone calls.9 The trial court concluded that the alleged 

phone calls “[did] not establish a basis for severe emotional distress.” As to the phone 

calls, the trial court likewise found that the conduct was insufficient as a matter of law, 

explaining: “Exhibit 11 to the original complaint indicate[d] that the duration of the calls 

was extremely brief, such that the[re] were messages left or missed calls, and [the 

Smiths] ... never made allegations that the tone of the calls was harassing, the language 

 

9 In ruling on a demurrer, exhibits attached to the pleadings may be considered, and 

if allegations in the pleading conflict with the exhibits, the trial court may rely on and 

accept as true the contents and legal effects of the exhibits. (SC Manufactured Homes, 

Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83; Del E. Webb Corp. v. Structural Materials

Co. (1981) 123 Cal.App.3d 593, 604.) 
19. 

was vulgar, or threats or improper communications [were] made. [The Smiths] were free 

to, and apparently did, ignore the calls. Likewise, [the Smiths] have not pled facts 

justifying being distressed at the one late night phone call. They have not established that 

they were woken up by the call or that [the] content was unusual. The content of the calls 

must be truly egregious before these calls will support a cause of action for intentional 

infliction of emotional distress.” 

We concur with the trial court’s conclusion. The phone calls were placed by 

B of A during the time frame after the notice of trustee’s sale was recorded and served on 

May 19, 2010. The trustee’s sale was originally set for June 9, 2010, but the Smiths were 

apparently able to obtain postponements and they also sought information from B of A. 

In the context of all that was happening, it is reasonable to assume that B of A would 

have had good and important reasons to attempt to communicate with the Smiths in good 

faith on a fairly frequent basis. In any event, no adequate allegations were presented 

concerning the context, timing or circumstances of the phone calls, or the words used, to 

suggest that the missed phone calls or messages were so egregious, so extreme and 

outrageous, that they exceeded all bounds of decency and went beyond what is usually 

tolerated in a civilized community. (Christensen v. Superior Court, supra, 54 Cal.3d at p. 

903; Cochran v. Cochran, supra, 65 Cal.App.4th at p. 496.) The Smiths have failed to 

state a cause of action for intentional infliction of emotional distress. 

On the issue of leave to amend, the trial court had sustained the demurrer to the 

identical cause of action in the first amended complaint with one last opportunity to cure 

the defects. The second amended complaint did not do so, but merely reiterated, without 

substantive change, the inadequate allegations. We conclude the trial court correctly 

sustained the demurrer to the cause of action for intentional infliction of emotional 

distress without leave to amend. 
20. 

3) Unfair Business Practices 

The final cause of action was for alleged violation of Business and Professions 

Code section 17200. This section prohibits unfair competition, including unlawful, 

unfair, and fraudulent business acts or practices. (Korea Supply Co. v. Lockheed Martin 

Corp. (2003) 29 Cal.4th 1134, 1143.) Business and Professions Code section 17200 

“‘“borrows”’” violations from other laws by making them independently actionable as 

unfair competitive practices. (Cel-Tech Communications, Inc. v. Los Angeles Cellular 

Telephone Co. (1999) 20 Cal.4th 163, 180.) Accordingly, if a predicate unlawful or 

qualifying wrongful act is not alleged (i.e., the unlawful, unfair or fraudulent business act 

or practice), the demurrer must be sustained. (See, e.g., Bardin v. DaimlerChrysler Corp. 

(2006) 136 Cal.App.4th 1255, 1264-1275 [demurrer properly sustained where the 

plaintiff failed to allege facts to support asserted claims of “unfair” or “fraudulent” 

business act or practice]; Walker v. Countrywide Home Loans, Inc. (2002) 98 

Cal.App.4th 1158, 1169.) Here, the second amended complaint asserted that the Smiths 

fraud claim constituted the sole basis for their Business and Professions Code 

section 17200 cause of action. Because, as previously explained above, the Smiths failed 

to allege facts that the alleged representation was in fact false, their fraud claim failed. 

Additionally, we have concluded the fraud claim was a sham. Consequently, no 

deception of the consumer occurred and the Smiths cannot maintain a Business and 

Professions Code section 17200 cause of action premised on the alleged fraud. Since the 

Smiths failed to offer any possible basis for leave to amend, we conclude the trial court 

rightly sustained the demurrer to this cause of action without leave to amend. 

To summarize, we have held the trial court properly exercised its discretion in 

granting defendants’ motion to set aside defaults, and that it correctly sustained 

defendants’ demurrers to all of the causes of action in the first amended complaint and 

second amended complaint, without leave to amend. 
21. 

III. Trial Court Correctly Ordered the Lis Pendens Expunged 

 We now briefly dispose of the appeal in case No. F066470, in which the Smiths 

appealed from the trial court’s order granting DVP’s motion to expunge the lis pendens. 

Under section 405.31, the trial court was required to expunge the lis pendens if it found 

that “the pleading on which the [lis pendens] is based does not contain a real property 

claim.” Additionally, under section 405.32, the court shall also order the lis pendens 

expunged if “the claimant has not established by a preponderance of the evidence the 

probable validity of the real property claim.” Here, the trial court determined that the 

Smiths had failed to plead a real property claim and, accordingly, granted the motion to 

expunge the lis pendens. Our review on appeal involves a demurrer-like analysis of the 

pleading to ascertain whether a real property claim has been adequately pled by the 

Smiths. (Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647-648.) Since we have 

affirmed herein the trial court’s orders sustaining demurrers to all of the Smiths’ causes 

of action without leave to amend, it is plain that the Smiths failed to successfully plead 

any cause of action—including a real property claim. Therefore, we conclude the trial 

court correctly granted DVP’s motion to expunge the lis pendens. 

 As to the award of attorney fees to DVP, section 405.38 provides that the trial 

court “shall” make an award of attorney fees and costs to the party prevailing on the 

motion “unless the court finds that the other party acted with substantial justification or 

that other circumstances make the imposition of attorney’s fees and costs unjust.” The 

record clearly supported the award of attorney fees to DVP, and no intelligible or 

adequate argument to the contrary has been presented by the Smiths in their appeal. No 

abuse of discretion has been shown in regard to the award of attorney fees and costs to 

DVP, and we affirm that portion of the trial court’s order as well. 

Finally, the Smiths failed to timely seek a writ of mandate, which was the only 

basis for obtaining appellate review of the order expunging the lis pendens. (§ 405.39; 

Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1016; Howard S. 
22. 

Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318.) This 

provides yet another reason to reject the Smiths’ appeal of the order expunging the lis 

pendens—no appeal lies from such an order. 

DISPOSITION 

 The orders and judgment of the trial court are affirmed. Costs on appeal are 

awarded to defendants and DVP. 

 _____________________ 

Kane, Acting P.J. 

WE CONCUR: 

 _____________________ 

Detjen, J. 

 _____________________ 

Franson, J.