1 Filed 4/16/14 McCann v. J.P. Morgan Chase Bank CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

WILLIAM D. McCANN, Plaintiff and Appellant,

v. J.P. MORGAN CHASE BANK, et al., Defendants and Respondents. A137413
(Contra Costa County Super. Ct. No. CIV MSC 1101729)

I. INTRODUCTION In November 2011, appellant, a Nevada attorney, and his former wife, Debra McCann, filed a 13-cause of action first ame nded complaint against respondents seeking to set aside a trustee’s sale of a piece of re sidential property in Danville, Contra Costa County, apparently occ upied by Ms. McCann. Appellant wa s a plaintiff as to only one of the 13 causes of action, one for quiet title. The trial c ourt sustained respondents’
demurrer to that cause of action and entered judgment in favor of respondents and against appellant on that cause of action because appella nt had failed to allege that he had title to any portion or interest in the property. We agree and affirm the subsequent judgment entered in favor of respond ents and against appellant.
II. FACTUAL AND PROC EDURAL BACKGROUND In June 2007, Ms. McCa nn, then an “unmarried woman,” secured a $1 million loan from Washington Mu tual Bank, F.A., a predecessor in interest to respondent J. P. Morgan Chase Bank (Chase), in order to pur chase a house on Kuss Road in Danville. The loan papers did not show appellant as a borrower. Indeed, previously, i.e., via an2 Interspousal Transfer Deed recorded on February 14, 2002, appellant had conveyed any ownership interest he may have had in the Danville property to Ms. McCann. In September 2008, Chase acquired ma ny assets and liabilities of Washington Mutual, including its interest in that loan. In, apparently , 2011, Ms. McCann defaulted
on the loan. A “Notice of Default and El ection to Sell Under Deed of Trust” was recorded on February 8, 2011, with the Contra Costa Co unty Recorder’s Office. On May 9, 2011, a Notice of Trustee’s Sale in connec tion with the deed of trust was recorded in the same office; it indicated that a truste e’s sale would take place on May 31, 2011. On July 27, 2011, appellant and Ms. McCann filed their original complaint, containing 14 causes of acti on against respondents Chase and California Reconveyance Company. The following day, July 28, they filed an Application for an Order to Show Cause (OSC) and temporary rest raining order. On August 26, 2011, respondents filed a demurrer to that complaint and all of its causes of action. A hearing on the OSC was held on Septem ber 16, 2011. In its opinion after that hearing, the trial court denied the McCanns’ request for a preliminary injunction, stating that their arguments based on Civil Code sec tion 2923.5 and other ba ses “lack merit,” and
that the court was “concerned about what is apparently a continuing deterioration in the physical condition of th e subject residence.” With regard to the demurre r filed the previous month by respondents, rather than opposing it, Ms. McCann and appellant opted to file a First Amended Complaint (FAC) on November 8, 2011. It c onsisted of 13 causes of actio n, only one of which named appellant as a plaintiff, i.e., the 10th caus e of action for Quiet Title. It alleged that respondent Chase “has cast a cloud on the Plaintiff William D. Mc Cann’s undivided 10% (Ten percent) interest in the property.” Ms. McCann was not a party plaintiff as to that
cause of action. On June 22, 2012, respondents filed a demu rrer to the FAC and all of its causes of
action. As to the 10th cause of action, that pleading stated that it failed to state facts
sufficient to state a cause of action under Code of Civil Procedure section 430.10, subdivision (e).3 On September 12, 2012, the trial court su stained respondents’ demurrer to the 10th
cause of action without l eave to amend. It stated as to th at cause of action: “Defendant’s demurrer is sustained on the gr ound that plaintiff’s allegati ons do not meet the statutory requirements for a quiet title action. (Code Ci v. Proc., section 761.020.) Of particular concern, plaintiff has failed to allege that he in fact does have any ‘title’ to the subject property, much less ‘the basis of the title.’ (Id., subd. (b).).” On October 22, 2012, the tr ial court entered a judgment of dismissal as to the FAC, i.e., a judgment in favor of respondent s and against appellant. A notice of entry of that judgment was filed by re spondents and served on appe llant on October 25, 2012. Appellant filed a timely notice of appeal on December 21, 2012. 1
III. DISCUSSION The sole issue on this appeal is one of la w: did the trial court e rr in holding that the sole cause of action alleged by appellant in the FAC, i.e., the 10th cause of action for quiet title, was barred because, per the record before the trial court, appellant had long since foregone any interest in the Danville property? We ha ve no difficulty in concluding that the trial court did not err, because the reco rd establishes that appellant had long-since given up his interest in that property.
Code of Civil Procedure s ection 761.020 provides that a complaint in a quiet title
action “shall be verified and shall include . . . (b) The title of the pl aintiff as to which a determination under this chapte r is sought and the basis of the title.” (Code Civ. Proc., § 761.020, subd. (b).) First of all, contrary to the express re quirement of that statute, the FAC was not verified by either plaintiff, i.e., appellant or Ms. McCann. Both the statute and case law applying it make clear that such verification is required. (See Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866.) Second, appellant cannot validly assert a basis of the title he seeks, i.e., an
“undivided 10% (Ten percent) interest in the propert y.” That conclusion is supported by

1 All three of these dates are misstated in respondents’ brief as being in “2013.”4 two documents in the record: (1 ) an Interspousal Transfer D eed recorded on February 14, 2002 whereby “William hereby agrees and consents to transmute 280 Kuss Road, Danville, California, from commun ity property to Debra’s so le and separate property” effective upon the signing of the “Transmuta tion Agreement” on February 14, 2002; and (2) the 2007 deed of trust on that property lists Ms. McCann, “an unmarried woman,” as
the sole borrower on the 2007 deed of trus t on the Danville property. Respondents requested judicial notice of both of these do cuments, a request appellant did not oppose and the court granted. (See West v. J.P. Morg an Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802-803; Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194; Maryland Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 977; see also Evid. Code, §§ 452, 453.) Finally, the law is clear that judicially-no ticed matters are relevant in considering a
demurrer. In Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604, the court held: “As a general rule in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be. [Citation.] The courts, however, will not close their eyes to situations where a complaint contains allegations of fact in consistent with attached docume nts, or allegations contrary to facts which are judicially noticed. [Citations .] Thus, a pleading valid on its face may nevertheless be subject to demurrer when ma tters judicially noticed by the court render the complaint meritle ss.” (See also City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, 1719.) This principle applies here, as th e judicially-noticed records clearly established that appellant had no interest in the Danville property. In his sole brief to us, 2 appellant contends that (1) he adequately pled a quiet title cause of action, (2) if not, he should be a llowed to amend it, and (3) the trial court was

2 Appellant filed no reply brief. Additionally , in his brief to us appellant cites to the record in an entirely diffe rent appeal, i.e., Ms. McCann’s appeal from the trial court’s judgment dismissing all of her causes of acti on, save one, in the FAC, and permitting her to amend that one cause of action. Appellant assumes that the clerk’s transcripts in the two appeals are the same, but they are not. Similarly, this appeal does not involve, as appellant assumes, any “appendices.” Thus, appe llant’s citations to th e record in his sole5 wrong in finding his sole cause of action, i.e., the 10th cause of action for Quiet Title of the FAC, was dependent on the validity of Ms. McCann’s pleadings.
None of these contentions addresses the ke y issue asserted by the trial court as the principal basis for its decision sustaining of th e demurrer as to appellant’s sole cause of action, i.e., for quiet title. That basis was, as noted above, that pursuant to Code of Civil Procedure section 761.020, subdivision (b), a ppellant was required, but failed to, assert “that he in fact does have any ‘title’ to the subject property, much less ‘the basis of the
title.’ ” In his brief to us, and in support of his fi rst contention, i.e., th at he properly pled an action to quiet title, appellant argues that (a) he “does not have to plead . . . possession” and (b) he in fact alleged in the FAC that he had an “ ‘undivided 1/10 ownership interest in the property.’ ” Howe ver, neither of these arguments is of any consequence. We agree that appellant did not have to plea d “possession;” indeed, neither respondents nor the trial court suggested at a ny point that such was an issue. The fact that he pled that he had a one-tenth owners hip of the property is of no consequence in
view of the substantial record before us—a record not addressed in the slightest by appellant—that, per documents of which both we and the trial court may take judicial notice, he had in fact long since divested himsel f of any interest in the Danville property. That fact also answers appellant’s se cond contention, i.e., that he should be
allowed leave to amend the FAC. Firs t of all, per the documents submitted by respondents to the trial court, no amendment that appellant could submit could cure the result dictated by the judicially-noticed documents regarding title to the Danville property. Second, the grant or denial of a motion to amend is reviewed for abuse of discretion. (See, e.g., Montclair Parkowners Assn. v. City of Montclair (1999) 76

brief to us are (except for a few to the repor ter’s transcript) of no value. However, the record does include several important docum ents omitted from the clerk’s transcript, but before us via a motion to augment filed by re spondents on January 6, 2014, and granted by this court on February 10, 2014.6 Cal.App.4th 784, 790.) Under the circumstan ces described above, there clearly was no
such abuse here. Regarding appellant’s third contention, although in its ru ling sustaining the
demurrer to the 10th cause of action in the FAC, the trial court mentioned its earlier rulings regarding Ms. McCann’s nine prior caus es of action, it made clear that such was not the principal basis for its sustaining of the demurrer to appellant’s quiet title cause of action. Again, that cause of action fails be cause the record clearl y shows that appellant had, much earlier, divested himself of any title to the Danville property.
IV. DISPOSITION The judgment is affirmed.

_ ____________ ____________ Haerle, J.

We concur:

_____________ ____________ Kline, P.J.

_____________ ____________ Brick, J.*

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.