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Filed 9/11/15 Codilla v. Select Portfolio Servicing CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THERESA CODILLA,

Plaintiff and Appellant,

v.

SELECT PORTFOLIO SERVICING, INC.

et al.,

Defendants and Respondents.

E061199

(Super.Ct.No. RIC1312092)

OPINION

APPEAL from the Superior Court of Riverside County. Craig Riemer, Judge, and 

David E. Gregory, Temporary Judge (pursuant to Cal. Const., art. VI, § 21). Affirmed.

Theresa Codilla, in pro. per., for Plaintiff and Appellant.

Albertson Law, Gila L. Albertson and Eric A. Forstrom for Defendants and 

Respondents.

Plaintiff and appellant Theresa Codilla is a property owner who defaulted on a real 

estate loan. The gravamen of her suit against defendants and respondents Select Portfolio 

Servicing, Inc. (SPS) and Wilmington Trust Company (Wilmington or, collectively with 
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SPS, defendants) is that the foreclosure proceedings initiated with respect to her property 

are improper, because defendants do not have the legal authority to initiate them. In this 

appeal, plaintiff challenges the trial court’s decision to sustain defendants’ demurrer 

without leave to amend. We affirm.

I. FACTS AND PROCEDURAL BACKGROUND

Plaintiff refinanced the property at issue in March 2006, executing a promissory 

note in the amount of $203,000, secured by a deed of trust. Shortly thereafter, the loan 

was pooled with other loans in a securitized investment trust. Wilmington is the 

successor trustee of that securitized investment trust. In 2012, a notice of default and 

election to sell and, subsequently, a notice of trustee’s sale, were recorded with respect to 

the property. No trustee’s sale was held on the noticed date, however, and indeed no 

trustee’s sale has yet taken place, according to briefing submitted in this appeal.

Plaintiff brought suit in October 2013, and the operative first amended complaint 

(complaint) was filed in February 2014. The complaint purports to assert three causes of 

action: (1) “Void Assignment of Trust Deed”; (2) “Quiet Title”; and (3) “Injunctive 

[R]elief.”

Defendants’ demurrer to the first amended complaint was filed in March 2014, 

and heard by the trial court on April 10, 2014. The court sustained the demurrer without 

leave to amend. On April 22, 2014, the court entered judgment by filing a signed “Order 

of Dismissal.”
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II. DISCUSSION

A. Standard of Review.

A demurrer should be sustained when “[t]he pleading does not state facts 

sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).)

“We independently review the superior court’s ruling on a demurrer and determine 

de novo whether the complaint alleges facts sufficient to state a cause of action or 

discloses a complete defense. [Citations.] We assume the truth of the properly pleaded 

factual allegations, facts that reasonably can be inferred from those expressly pleaded and 

matters of which judicial notice has been taken. [Citations.] We liberally construe the 

pleading with a view to substantial justice between the parties. [Citations.]” (Regents of 

University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.)

“‘If we determine the facts as pleaded do not state a cause of action, we then 

consider whether the court abused its discretion in denying leave to amend the complaint. 

[Citation.] It is an abuse of discretion for the trial court to sustain a demurrer without 

leave to amend if the plaintiff demonstrates a reasonable possibility that the defect can be 

cured by amendment. [Citation.]’ [Citation.]” (Bank of America, N.A. v. Mitchell (2012) 

204 Cal.App.4th 1199, 1204.) However, “‘[s]uch a showing can be made for the first 

time to the reviewing court [citation] . . . .’ [Citation.]” (San Diego City Firefighters, 

Local 145 v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 606.) “Whether a 

plaintiff will be able to prove its allegations is not relevant. [Citation.]” (Chavez v. 

Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1057.)
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B. Analysis

On appeal, plaintiff’s opening brief explicitly addresses only her first cause of 

action, for void assignment of trust deed.1 She argues that purported flaws in the chain of 

title to the note and the deed of trust rendered the assignments void, and leaving the 

parties attempting to foreclose on her property without authority to do so. We find 

plaintiff lacks standing to raise this argument.

There is no California authority in support of the notion that a borrower in default 

on a loan has standing to attack a purportedly void assignment of a note or deed of trust 

to which it is not a party as a means of forestalling the foreclosure process. To the 

contrary, the applicable case law holds that California’s comprehensive nonjudicial 

foreclosure scheme does not provide for a preemptive action to challenge the authority of 

the party initiating foreclosure, absent unusual circumstances not present here. (Jenkins 

v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 512-513 (Jenkins).) We 

agree that allowing such a cause of action would “fundamentally undermine the 

nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for 

the purpose of delaying valid foreclosures.” (Gomes v. Countrywide Home Loans, Inc.

(2011) 192 Cal.App.4th 1149, 1155 (Gomes).)

 

1 As such, plaintiff has waived any claim of error with respect to the dismissal of 

her second and third causes of action. (Dieckmeyer v. Redevelopment Agency of 

Huntington Beach (2005) 127 Cal.App.4th 248, 260 [“An appellant’s failure to raise an 

argument in its opening brief waives the issue on appeal.”].) In any case, however, they 

were properly dismissed, for the same reasons described in this opinion with respect to 

plaintiff’s first cause of action, in addition to other fatal flaws that we need not discuss.
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In arguing otherwise, plaintiff quotes at great length and relies virtually entirely on

Glaski v. Bank of America, N.A. (2013) 218 Cal.App.4th 1079 (Glaski). In that case, the 

court determined that the borrower had standing to attack a void assignment to which it 

was not a party. (Id. at p. 1095.) Glaski, however, unlike the present case, and unlike 

Gomes and Jenkins, involved a post-foreclosure action for damages, not an action to 

prevent foreclosure. (See Glaski, supra, at p. 1086.)

Moreover, we doubt that Glaski was correctly decided. (See People v. Gipson

(2013) 213 Cal.App.4th 1523, 1529 [“It is true that we typically follow the decisions of 

other appellate districts or divisions, but only if we lack good reason to disagree.”].)

Among other things, the Glaski court relies on federal case law interpreting the law of 

other jurisdictions. (Glaski, supra, 218 Cal.App.4th at pp. 1094-1095.) California cases 

hold, however, that even in post-foreclosure actions a borrower lacks standing to 

challenge an assignment absent a showing of prejudice. (E.g., Siliga v. Mortgage 

Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85-86 (Siliga).) We are 

not aware of any California case that has followed Glaski on the issue of a borrower’s 

right to challenge a foreclosure based on an allegedly improper assignment. We will not 

be the first.2

 

2 The California Supreme Court has granted review of several cases in which the 

court of appeal had rejected Glaski—the lead case is Yvanova v. New Century Mortgage 

Corp. (2014) 226 Cal.App.4th 495, review granted Aug. 27, 2014, S218973. Unless and 

until the Supreme Court requires us to do otherwise, however, we will follow what we 

view to be the better reasoned authority of cases like Jenkins, Gomes, and Siliga.
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With respect to the issue of leave to amend, plaintiff has proposed no specific 

amendments that she could make to cure the pleading defects identified above, and we 

can conceive of none. Accordingly, the trial court did not err when it sustained 

defendants’ demurrer without leave to amend.

III. DISPOSITION

The judgment is affirmed. Defendants are awarded their costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

 J.

We concur:

RAMIREZ

 P. J.

MILLER

 J.