Filed 10/31/14 Heraux v. JPMorgan Chase Bank CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CLERVIL HERAUX,

 Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A., et al.,

 Defendants and Respondents.

 G048737

 (Super. Ct. No. 30-2011-00445053)

 O P I N I O N

Appeal from judgments of the Superior Court of Orange County, Linda S. 

Marks, Judge. Affirmed.

Clervil Heraux, in pro. per., for Plaintiff and Appellant.

AlvaradoSmith, S. Christopher Yoo, and Mariel A. Gerlt for Defendant and 

Respondent JP Morgan Chase Bank, N.A.

Law Offices of David K. Tran and David Khanhhung Tran for Defendant 

and Respondent Tien Vu.

* * *
2

Defendant JPMorgan Chase Bank, N.A. (Chase) foreclosed on plaintiff 

Clervil Heraux’s residence after Heraux defaulted on his loan. The property was sold to 

Tien Vu at a trustee’s sale. Heraux subsequently brought suit against Chase, Vu, and the 

trustee on Heraux’s deed of trust, California Reconveyance Company (California 

Reconveyance). The first amended complaint purported to allege seven causes of action 

against Chase and California Reconveyance. Vu was named in two of the causes of 

action. The superior court sustained their demurrers to the first amended complaint 

without leave to amend. Heraux appealed.1

Heraux claims the court erred in sustaining the demurrers and in sustaining 

the demurrers without leave to amend. We affirm.

I

FACTS

Heraux, acting in propria persona, filed a complaint against Chase, 

California Reconveyance Company, and Vu. The court sustained demurrers to the 

complaint and granted Heraux leave to amend. Heraux thereafter filed a first amended 

complaint. According to that complaint, Heraux gave Washington Mutual Bank, FA a 

deed of trust on his residence in Anaheim (the property) on September 28, 2005, to 

secure the repayment of a $455,000 loan. California Reconveyance was named as 

trustee. The complaint alleges Chase subsequently acquired Washington Mutual’s 

beneficial interest in the deed of trust. At the end of March 2009, California 

Reconveyance Company recorded a notice of default and intent to sell under the deed of

trust, stating Heraux was $10,359.29 in arrears as of March 28, 2009.

Heraux alleged he thereafter sought to modify the loan secured by the deed 

of trust. At the end of May 2009, Heraux received a call from someone at Chase about 

possibly arranging a loan modification. Heraux alleged his notes from his conversation 

 

1 California Reconveyance Company is not a party to this appeal. 
3

with the individual show Chase had a two-step approach to modifications. There was a 

90-day trial modification and, if that was successfully completed, it could lead to a loan 

modification. The representative said it appeared Heraux was preapproved for a three–

month deferment from June to August.

Heraux then played phone tag with Chase over the next few months and 

sent Chase the financial information Chase had requested. In August 2009, another 

representative of Chase said Chase received Heraux’s paperwork and the representative 

would attempt to negotiate a loan modification or forbearance. In November 2009, 

Heraux was informed by another person at Chase that his income was too high for him to 

qualify for President Obama’s stimulus plan, but that Chase was “still going to try and 

work” with him. Heraux made a number of telephone calls to Chase over the next month, 

and on January 20, 2010, he received a telephone call from the collection department of 

Chase. Heraux was told Chase needed updated financial information immediately.

On November 22, 2010, California Reconveyance filed a notice of trustee’s 

sale of the property scheduled for December 15, 2010. The notice stated an estimated 

unpaid balance and charges of approximately $502,501.47. The day before the scheduled

sale, an attorney for Heraux faxed California Reconveyance Company a request to 

postpone the sale. The letter alleged there was funding in place to cure the default on the 

loan.

Apparently a postponement was granted, because on January 3, 2011, 

counsel for Heraux again faxed California Reconveyance Company asking the scheduled 

sale set for the next day again be postponed. This time counsel asserted funding for a 

new loan was then “being transferred” and the transfer and funding would take 

approximately 10 to 14 days. No extension was granted and the property was sold to Vu 

at the trustee’s foreclosure sale on January 4, 2011.
4

On January 28, 2011, Heraux filed his complaint against Chase, California 

Reconveyance, and Vu. It alleged causes of action to set aside the foreclosure and quiet 

title, breach of the covenant of good faith, declaratory relief, fraud, reformation, civil 

conspiracy, and accounting. Vu was named in the first and fifth causes of action (set 

aside foreclosure and quiet title, respectively). The court sustained demurrers to the 

complaint with leave to amend. Heraux filed an amended complaint on December 3, 

2012. It alleged the same causes of action.

Chase (with California Reconveyance) demurred to the complaint, 

contending each purported cause of action failed to state facts sufficient to state a cause 

of action. Vu demurred to the two causes of action in which he was named as a 

defendant, asserting each failed to allege facts sufficient to state a cause of action and 

each was uncertain, ambiguous, and unintelligible. The court sustained the demurrers 

without leave to amend. On May 28, 2013, the court entered judgment against Heraux 

and in favor of Chase and California Reconveyance, and on July 3, 2013, entered 

judgment against Heraux and in favor of Vu.

On July 15, 2013, Heraux filed his notice of appeal, stating the appeal was 

from the court’s July 3, 2013 judgment after granting “Defendant’s Motion for Summary 

Judgment.” After Heraux filed his opening brief, Chase filed a motion to dismiss the 

appeal as to it because the judgment against Chase was not named in the notice of appeal. 

We liberally construed Heraux’s propria persona notice of appeal to include the judgment 

against Chase and found Chase would not be prejudiced by our doing so. At the same 

time, we granted Chase’s request to augment the record on appeal.

II

DISCUSSION

Heraux contends the trial court abused its discretion in sustaining the 

demurrers without leave to amend and in sustaining the demurrers in the first place. We 
5

address these issues in reverse order. Before addressing those issues, we note Heraux’s 

brief does not comply with California Rules of Court, rule 8.204(a)(1)(c). For example, 

the section of the opening brief under the heading alleging Heraux pled sufficient facts to 

state causes of action for fraud and misrepresentation contains no citations to the record.

A. Standard of Review

A trial court’s action sustaining a demurrer presents a pure question of law 

which we review de novo. (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1089, 

fn. 10.) “[W]e treat the demurrer as admitting all material facts properly pleaded, but do 

not assume the truth of contentions, deductions, or conclusions of law. [Citations.]” 

(City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) “Where written 

documents are the foundation of an action and are attached to the complaint and 

incorporated therein by reference, they become a part of the complaint and may be 

considered on demurrer. [Citations.]” (City of Pomona v. Superior Court (2001) 89 

Cal.App.4th 793, 800.) “We may also consider matters that have been judicially noticed. 

[Citations.]” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors

(2010) 48 Cal.4th 32, 42.)

Additionally, when the court sustains a demurrer without leave to amend, 

“we decide whether there is a reasonable possibility that the defect can be cured by 

amendment: if it can be, the trial court has abused its discretion and we reverse. 

[Citation.]” (City of Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.) A 

plaintiff, however, bears the burden of proving the complaint could be amended to cure 

the defect. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
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B. The Merits of Heraux’s Contentions

Heraux contends the court abused its discretion in sustaining the demurrer 

to the first cause of action to set aside the foreclosure and to quiet title. This cause of 

action was alleged as to Chase and Vu. He argues that as the trustee’s sale occurred on 

January 7, 2011,2 and the transaction was not recorded until February 2, 2011, the sale 

was not “perfected” within the meaning of Civil Code section 2924h, subdivision (c),3

and consequently the deed to the purchaser Vu is void. He cites no authority for this 

interpretation of subdivision (c) of Civil Code section 2924h and we are not aware of any. 

The 15-day time period in which to perfect a trustee’s sale provided by 

Civil Code section 2924h, subdivision (c), has to do with a “race to the courthouse”

situation involving a debtor filing a petition in bankruptcy and obtaining an automatic 

stay prior to the filing of a deed from a trustee’s sale. (In re Bebensee-Wong v. Fed. Nat’l 

 

2 Heraux’s complaint alleges the sale occurred on January 4, 2011.

3 “In the event the trustee accepts a check drawn by a credit union or a 

savings and loan association pursuant to this subdivision or a cash equivalent designated 

in the notice of sale, the trustee may withhold the issuance of the trustee’s deed to the 

successful bidder submitting the check drawn by a state or federal credit union or savings 

and loan association or the cash equivalent until funds become available to the payee or 

endorsee as a matter of right.

“For the purposes of this subdivision, the trustee’s sale shall be deemed 

final upon the acceptance of the last and highest bid, and shall be deemed perfected as of 

8 a.m. on the actual date of sale if the trustee’s deed is recorded within 15 calendar days 

after the sale, or the next business day following the 15th day if the county recorder in 

which the property is located is closed on the 15th day. However, the sale is subject to an 

automatic rescission for a failure of consideration in the event the funds are not ‘available 

for withdrawal’ as defined in Section 12413.1 of the Insurance Code. The trustee shall 

send a notice of rescission for a failure of consideration to the last and highest bidder 

submitting the check or alternative instrument, if the address of the last and highest 

bidder is known to the trustee.

“If a sale results in an automatic right of rescission for failure of 

consideration pursuant to this subdivision, the interest of any lienholder shall be 

reinstated in the same priority as if the previous sale had not occurred.” (Civ. Code, § 

2924h, subd. (c).)
7

Mortg. Ass’n (Bankr. 9th Cir. 2000) 248 B.R. 820, 822.) Under Civil Code section 

2924h, subdivision (c), a deed from a trustee’s sale relates back to 8:00 a.m. on the date 

of the sale if the deed was recorded within 15 days of the sale. Failure to file the deed 

within 15 days of the sale does not mean the deed is void. The court did not err in 

sustaining the demurrers to the first cause of action.

Heraux contends he alleged facts sufficient to overcome a demurrer to his 

cause of action for fraud, the fourth cause of action. An action for fraud has five 

elements: “‘[1] a misrepresentation . . . ; [2] knowledge of its falsity. . . ; [3] intent to 

defraud, i.e., to induce reliance; [4] justifiable reliance; and [5] resulting damage.’” 

(Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Although he alleges 

misrepresentations occurred as evidenced by a post-trustee’s sale overnight letter seeking 

information to proceed with a modification (again without citation to the record), he 

made no allegation of the knowledge of the falsity of the purported misrepresentation, 

that he justifiably relied on the representation, or that he was damaged by the alleged 

misrepresentation. After all, the purported misrepresentation he specifically refers to in 

his opening brief occurred after the sale had already taken place. Moreover, the 

purported misrepresentation appears to have been a mass mailing4 to individuals in 

Southern California seeking loan modifications for two “Homeowner Assistance Events”

to be held in Los Angeles and Ontario. The court did not err in sustaining the demurrers 

to the fourth cause of action of the first amended complaint.

Heraux does not state how the court erred in sustaining demurrers to the 

remaining five causes of action, other than his claim the court failed to comply with Code 

of Civil Procedure section 472d. Specifically, he asserts the court failed to specify the 

defects in his first amended complaint. 

 

4 The font used for Heraux’s name and address is different from other fonts 

used in the notice. 
8

Section 472d of the Code of Civil Procedure provides: “Whenever a 

demurrer in any action or proceeding is sustained, the court shall include in its decision or 

order a statement of the specific ground or grounds upon which the decision or order is 

based which may be by reference to appropriate pages and paragraphs of the demurrer. 

[¶] The party against whom a demurrer has been sustained may waive these 

requirements.” (Italics added.) The statute does not require the court to refer in its order 

sustaining a demurrer to particular paragraphs or pages in the complaint. It merely states 

the court “may” refer to them. A court does not err by failing to do so. (Woodbury v. 

Brown-Dempsey (2003) 108 Cal.App.4th 421, 433 [“may” generally connotes a 

permissive, not mandatory act].)

Code of Civil Procedure section 472d “was designed to fit a situation where 

multiple grounds are set forth in a demurrer. In such case, the court is required to specify 

the ground or grounds upon which it ruled so that a reviewing court may be apprised as to 

which grounds were relied upon by the ruling court. [Citations.]” (Berkeley Police Assn. 

v. City of Berkeley (1977) 76 Cal.App.3d 931, 943.) Chase’s demurrer, however, stated a 

single ground: each cause of action failed to allege facts sufficient to state the cause of 

action. In sustaining Chase’s demurrer, the court stated its reason for doing so. 

“Defendants’ general demurrer is well-taken. Plaintiff failed to show otherwise. Indeed, 

plaintiff has failed to address most of the arguments made by defendants. Plaintiff argues 

that the Trustee’s Deed Upon Sale was not timely recorded—which are beyond the 

allegations of the FAC. Nowhere does plaintiff explain why the foreclosure sale was 

improper to begin with. A mere technicality in recording the trustee’s sale would not 

appear to void the sale or permit plaintiff to avoid foreclosure altogether.” 

The court did not violate the dictate of Code of Civil Procedure 472d. As 

Chase’s demurrer raised only one ground and the court found the demurrer was welltaken, the court necessarily based its decision on that ground. (Schuetram v. Granada 
9

Sanitary Dist. (1964) 229 Cal.App.2d 25, 31 [contention the court erred in failing to state 

basis of decision sustaining demurrer was “frivolous” where demurrer raised a single 

ground].) The court did not violate Code of Civil Procedure section 472d when it 

sustained Chase’s demurrer.

In ruling on Vu’s demurrer, the court stated: “Defendant Tien Vu demurs 

to the 1st and 5th causes of action in the FAC, generally and on the ground of 

uncertainty. ([Code Civ. Proc.], § 430.10(e) and (f).) [¶] SUSTAIN without leave to 

amend.” Even were we to conclude the court failed to comply with Code of Civil 

Procedure section 472d here, Heraux could not prevail. He waived any irregularity when 

he failed to bring the issue to the court’s attention. (Cohen v. Superior Court (1966) 244 

Cal.App.2d 650, 654-655; Code of Civ. Proc., § 472d.) He also has failed to argue, much 

less demonstrate, prejudice. An error under this statute is reversible only if it is 

demonstrated to have been prejudicial. (Wheeler v. County of San Bernardino (1978) 76 

Cal.App.3d 841, 846, fn. 3.)

Lastly, Heraux argues the court erred in sustaining the demurrers without 

leave to amend. He claims he could amend the complaint to allege promissory estoppel,

because he had the right to prevent or delay the foreclosure by filing a chapter 13 

bankruptcy. (See Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218 [Aceves was in 

bankruptcy and gave up a stay of proceedings based on bank’s promise to work with her 

on a modification].) This argument does not benefit him as he does not now claim he 

gave up the right to file a bankruptcy petition, that bankruptcy was an option for him, or 

that he ever considered filing a bankruptcy petition. In other words, he has failed to 

establish “a reasonable possibility that the defect can be cured by amendment.” (City of 

Dinuba v. County of Tulare, supra, 41 Cal.4th at p. 865.) The court did not err in 

sustaining the demurrers without leave to amend.
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III

DISPOSITION

The judgments are affirmed. JPMorgan Chase and Vu shall recover their 

costs on appeal.

MOORE, ACTING P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.