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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 amended complaint against respondents seeking 

to set aside a trustee’s sale of a piece of residential property in Danville, Contra Costa 

County, apparently occupied by Ms. McCann. Appellant was a plaintiff as to only one of 

the 13 causes of action, one for quiet title. The trial court sustained respondents’ 

demurrer to that cause of action and entered judgment in favor of respondents and against 

appellant on that cause of action because appellant 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 respondents and against appellant.

II. FACTUAL AND PROCEDURAL BACKGROUND 

 In June 2007, Ms. McCann, then an “unmarried woman,” secured a $1 million 

loan from Washington Mutual Bank, F.A., a predecessor in interest to respondent J. P. 

Morgan Chase Bank (Chase), in order to purchase a house on Kuss Road in Danville. 

The loan papers did not show appellant as a borrower. Indeed, previously, i.e., via an 
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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 many 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 Election to Sell Under Deed of Trust” was 

recorded on February 8, 2011, with the Contra Costa County Recorder’s Office. On May 

9, 2011, a Notice of Trustee’s Sale in connection with the deed of trust was recorded in 

the same office; it indicated that a trustee’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 action 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 restraining 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 September 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 section 2923.5 and other bases “lack merit,” and 

that the court was “concerned about what is apparently a continuing deterioration in the 

physical condition of the subject residence.” 

 With regard to the demurrer 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 consisted of 13 causes of action, only one of which named 

appellant as a plaintiff, i.e., the 10th cause of action for Quiet Title. It alleged that 

respondent Chase “has cast a cloud on the Plaintiff William D. McCann’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 demurrer 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). 
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 On September 12, 2012, the trial court sustained respondents’ demurrer to the 10th 

cause of action without leave to amend. It stated as to that cause of action: “Defendant’s 

demurrer is sustained on the ground that plaintiff’s allegations do not meet the statutory 

requirements for a quiet title action. (Code Civ. 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 trial court entered a judgment of dismissal as to the 

FAC, i.e., a judgment in favor of respondents and against appellant. A notice of entry of 

that judgment was filed by respondents and served on appellant 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 law: did the trial court err 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 have no difficulty in concluding 

that the trial court did not err, because the record establishes that appellant had long-since 

given up his interest in that property. 

 Code of Civil Procedure section 761.020 provides that a complaint in a quiet title 

action “shall be verified and shall include . . . (b) The title of the plaintiff as to which a 

determination under this chapter is sought and the basis of the title.” (Code Civ. Proc., 

§ 761.020, subd. (b).) 

 First of all, contrary to the express requirement 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 property.” That conclusion is supported by 

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 All three of these dates are misstated in respondents’ brief as being in “2013.” 
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two documents in the record: (1) an Interspousal Transfer Deed recorded on February 14, 

2002 whereby “William hereby agrees and consents to transmute 280 Kuss Road, 

Danville, California, from community property to Debra’s sole and separate property” 

effective upon the signing of the “Transmutation 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 trust on the Danville property. Respondents 

requested judicial notice of both of these documents, a request appellant did not oppose 

and the court granted. (See West v. J.P. Morgan 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-noticed 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 inconsistent with attached documents, or allegations contrary 

to facts which are judicially noticed. [Citations.] Thus, a pleading valid on its face may 

nevertheless be subject to demurrer when matters judicially noticed by the court render 

the complaint meritless.” (See also City of Chula Vista v. County of San Diego (1994) 23 

Cal.App.4th 1713, 1719.) This principle applies here, as the 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 allowed 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 different appeal, i.e., Ms. McCann’s appeal from the trial court’s 

judgment dismissing all of her causes of action, 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, appellant’s citations to the record in his sole 
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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 key issue asserted by the trial court as the 

principal basis for its decision sustaining of the 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), appellant 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 first contention, i.e., that 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.’ ” However, neither of these arguments is of any 

consequence. We agree that appellant did not have to plead “possession;” indeed, neither 

respondents nor the trial court suggested at any point that such was an issue. The fact 

that he pled that he had a one-tenth ownership 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 himself of any interest in the Danville property. 

 That fact also answers appellant’s second contention, i.e., that he should be 

allowed leave to amend the FAC. First 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 reporter’s transcript) of no value. However, the 

record does include several important documents omitted from the clerk’s transcript, but 

before us via a motion to augment filed by respondents on January 6, 2014, and granted 

by this court on February 10, 2014. 
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Cal.App.4th 784, 790.) Under the circumstances described above, there clearly was no 

such abuse here. 

 Regarding appellant’s third contention, although in its ruling 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 causes 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 because the record clearly 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.