Filed 6/30/15 Penney v. THR California LP CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

BEVER-LEIGH B. PENNEY,

Plaintiff and Appellant, 

v.

THR CALIFORNIA LP et al.

Defendants and Respondents.

B253257

(Los Angeles County

Super. Ct. No. EC059970)

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

John P. Doyle, Judge. Judgment affirmed.

Bever-leigh B. Penney, in pro. per., for Plaintiff and Appellant.

Kimball, Tirey & St. John, Abel Ortiz and Michaelene H. Kapson, for Defendants 

and Respondents.

_____________________
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INTRODUCTION

Plaintiff and Appellant Bever-leigh B. Penney appeals the trial court’s judgment

dismissing her case based on its order sustaining without leave to amend the demurrer 

brought by Defendants and Respondents THR California LP and Riverstone Residential 

Group. Penney’s real property was sold to THR in a non-judicial foreclosure sale. Prior 

to the sale, Penney brought an action against the lender and trustee alleging fraud and 

wrongful foreclosure. The federal district court granted motions to dismiss and a motion 

for summary judgment in favor of the lender and trustee, disposing of Penney’s 

complaint. Penney then brought the present lawsuit against THR and Riverstone, 

alleging that by purchasing her home from the foreclosure sale they were liable for 

conversion, unfair competition, slander of title, claim and delivery, quiet title, 

cancellation of instruments, and conspiracy. We affirm the judgment dismissing 

Penney’s case because Penney fails to show on appeal how the complaint alleged 

sufficient facts to state a claim for each cause of action.

FACTS AND PROCEDURAL BACKGROUND

In 1998, Penney obtained a fixed-rate mortgage loan for $269,500 from DiTech 

Funding Corporation, secured by a deed of trust encumbering the property located at 

9404 Wayside Drive, Shadow Hills, California 91040. Penney executed a promissory 

note agreeing to make fixed payments of $1,884.38 per month. DiTech then assigned the 

Deed of Trust to GE Capital Mortgage Services, who ultimately assigned it to Wells 

Fargo Bank in 2005. Beginning in July 2010, Penney failed to pay the fixed monthly 

payments. Wells Fargo commenced foreclosure proceedings in December 2010. Penney 

applied for a loan modification but was denied. In 2011, Penney filed a wrongful 

foreclosure lawsuit that was removed to federal court, which we discuss in detail below. 

While that federal action was pending and after multiple Notices of Trustee’s Sale, the 

property was ultimately sold on October 25, 2012 to THR.
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1. Penney’s Federal Action 

In June of 2011, Penney filed a complaint in superior court against NDeX West, 

LLC (the trustee), Wells Fargo Bank N.A., and Wells Fargo Bank Home Mortgage, Inc. 

alleging “fraud, unfair debt collection practices, and wrongful foreclosure.” Shortly 

thereafter, Wells Fargo removed the case to federal district court based on diversity 

jurisdiction. In federal court, Penney filed her first amended complaint and included 

additional defendants and several new causes of action. The defendants brought a motion 

to dismiss the first amended complaint, which the court granted in part and denied in part. 

The federal court dismissed with prejudice Penney’s claims for violations of the 

Rosenthal Fair Debt Collection Practices Act and for violation of Civil Code section 

2924, subdivision (a)(1). The court dismissed Penney’s remaining claims without 

prejudice and granted her leave to amend.

Penney’s second amended complaint in the federal case stated 11 claims, styled 

as: (1) promissory estoppel, (2) promissory fraud, (3) fraudulent misrepresentation, 

(4) false or misleading representation in violation of Civil Code section 1572 and title 15

of the United State Code section 1692E, (5) false or misleading representation in 

violation of title 15 of the United State Code section 1692E and negligent 

misrepresentation, (6) unfair practices under California Business and Professions Code 

section 17200 et seq., (7) negligence, (8) fraud, misrepresentation, false or misleading 

representations in violation of title 15 of the United State Code section 1692E and 

conspiracy, (9) negligent infliction of emotional distress, (10) fraud, and (11) fraud and 

false or misleading statements.

The defendants collectively moved to dismiss the second amended complaint in its 

entirety. The court granted the motion to dismiss as to all causes of action except for the 

claims for promissory estoppel, promissory fraud, and fraudulent misrepresentation, 

which were solely brought against Wells Fargo. These three fraud-based causes of action 

alleged that Wells Fargo promised that it would not continue with foreclosure while 

Penney attempted to modify her loan.
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Wells Fargo brought a motion for summary judgment as to these remaining causes 

of action. In February 2013, the federal court granted the summary judgment, finding 

that “there is no genuine issue of material fact as to whether Penney was in default on her 

mortgage. . . . Penney admitted she fell behind on her payments, . . . [and] the fact 

remains that Penney did not live up to her written promise to the bank. Wells Fargo was 

entitled to foreclose on the property, and it did just that.” The court also found that 

“Penney admitted she never sought third-party financing . . . , nor did she have the 

personal financial resources to bring her account up to date. . . . Penney also never tried 

to sell the full property.” The court concluded that Penney could not prove her fraudbased claims because “Wells Fargo warned Penney that the foreclosure process would 

have to continue once it began” even during loan modification, the loan modification 

efforts occurred after foreclosure commenced, and Wells Fargo had given Penney ample 

notice of the foreclosure sale.

2. Penney’s State Action (the Case at Issue on Appeal)

In December 2012, Penney filed a complaint in the superior court against THR

and Riverstone (THR’s property manager), and they demurred. The superior court 

sustained the demurrer without leave to amend as to Penney’s claim for violations of 

Code of Civil Procedure section 1161, and sustained the demurrer as to the remaining 

causes of action regarding conversion, conspiracy, and quiet title with leave to amend. 

Penney filed a first amended complaint, alleging (1) conversion, (2) unfair competition, 

(3) slander of title to real property, (4) claim and delivery, (5) quiet title, (6) cancellation 

of instruments, (7) conspiracy, and (8) declaratory relief. As the superior court 

summarized: Penney claimed that THR and Riverstone “wrongfully bought the subject 

property at a nonjudicial foreclosure sale when [Penney] had filed a notice of lis pendens 

in connection with the federal action. [Penney] also seem[ed] to be alleging that Wells 

Fargo has admitted in the federal action that it did not own [Penney]’s mortgage, and so 

could not transfer ownership to [THR], that the note and mortgage were improperly split 

and that defendants have improperly attempted to evict [Penney] by taping 3 day notices 
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to her door, and threatening an unlawful detainer action before recording the claimed 

trust deed.”

THR and Riverstone demurrered to the second amended complaint, and the court 

sustained the demurrer without leave to amend as to all causes of action based on the 

grounds of privilege, failure to tender, and failure to plead various elements of the causes 

of action. 

DISCUSSION

1. Standard of Review

Penney asserts that the court erred in sustaining THR and Riverstone’s demurrer. 

“Because the function of a demurrer is to test the sufficiency of a pleading as a matter of 

law, we apply the de novo standard of review in an appeal following the sustaining of a 

demurrer without leave to amend.” (California Logistics, Inc. v. State of California

(2008) 161 Cal.App.4th 242, 247.) We affirm the judgment “if there is any ground on 

which the demurrer can properly be sustained, whether or not the trial court relied on 

proper grounds or the defendant asserted a proper ground in the trial court proceedings. 

[Citation.]” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 

1031.)

2. Penney Waived Arguments Regarding Sufficiency of the Complaint by Failing 

to Brief the Elements of Each Cause of Action

Penney argues that the trial court erred by sustaining the demurrer without leave to 

amend, by “failing to recognize the gravity of THR’s actions in violation of the 

California Corporations Code,” and by misapplying the law regarding tender. (Some 

capitalization omitted.) However, Penney does not argue or provide citations to the 

record demonstrating that her complaint alleges facts to support each cause of action.
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“Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must 

show the complaint alleges facts sufficient to establish every element of each cause of 

action.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.)

“ ‘A judgment or order of the lower court is presumed correct. All intendments and 

presumptions are indulged to support it on matters as to which the record is silent . . . .’ ” 

(Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) “As a court of appeal, even in 

exercising our independent judgment, we do not find it sufficient for an appellant merely 

to claim the respondent should not have been successful at trial and then the burden shifts 

to the respondent to prove its case in its entirety again. Instead, the appellant must frame 

the issues for us, show us where the superior court erred, and provide us with the proper 

citations to the record and case law. ‘ “ ‘[D]e novo review does not obligate us to cull the 

record for the benefit of the appellant. . . . As with an appeal from any judgment, it is the 

appellant’s responsibility to affirmatively demonstrate error . . . by citation to the record 

and any supporting authority. In other words, review is limited to issues which have been

adequately raised and briefed.’ [Citation.]” ’ ” (Morgan v. Imperial Irrigation Dist. 

(2014) 223 Cal.App.4th 892, 913.)

Penney never identifies the elements of her causes of action, and further fails to 

show this court with citations to the record and through argument that her complaint 

states facts satisfying those elements.1 When, as here, an appellant fails to support a 

point with pertinent citations of authority, we treat the point as waived. (Badie v. Bank of 

America (1998) 67 Cal.App.4th 779, 784-785.) Penney has thus failed to demonstrate 

error warranting reversal.

1 We are aware appellant appears without the benefit of counsel. Nonetheless, this 

fact does not warrant special treatment. “[M]ere self-representation is not a ground for 

exceptionally lenient treatment. Except when a particular rule provides otherwise, the 

rules of civil procedure must apply equally to parties represented by counsel and those 

who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-

985.)
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DISPOSITION

The court’s judgment dismissing the case is affirmed. Defendants and 

Respondents THR California LP and Riverstone Residential Group are awarded their 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

I concur:

EDMON, P. J.

EGERTON, J.*

*

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

article VI, section 6 of the California Constitution.