Filed 7/21/15 Turner v. Bank of America 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

EDDIE TURNER,

Plaintiff and Appellant, 

v.

BANK OF AMERICA CORPORATION et al.,

Defendants and Respondents.

B247883

(Los Angeles County

Super. Ct. No. GC049341)

APPEAL from an order and a judgment of the Superior Court of Los Angeles 

County, C. Edward Simpson, Judge. Affirmed.

Eddie Turner, in pro per., for Plaintiff and Appellant.

Bryan Cave , Brian J. Recor and Andrea N. Winternitz for Defendants and 

Respondents.

_____________________
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INTRODUCTION

Plaintiff and Appellant Eddie Turner appeals from the trial court’s order sustaining 

Defendants and Respondents’ demurrer without leave to amend and judgment dismissing 

Plaintiff’s case with prejudice. We affirm the court’s order and judgment in favor of 

Defendants and Respondents Bank of America Corporation, Bank of America N.A., 

Countrywide Home Loans, Inc., Landsafe Title of California, ReconTrust Company, 

N.A., and Jeffrey Gleason because Plaintiff’s claims were barred by the three-year statute 

of limitations for fraud.

FACTS AND PROCEDURAL BACKGROUND

In January 2005, Plaintiff borrowed $896,00 from Countrywide to purchase a 

residential property in Altadena, California by signing an adjustable rate promissory note 

and deed of trust. In August 2005, Plaintiff borrowed an additional $250,000 from 

Countrywide secured with another deed of trust to the Altadena property. In late March 

2007, the property was refinanced, paying off the 2005 loans with two new loans from 

Countrywide, one for $1,000,000 and another for $218,000. Countrywide recorded deeds 

of trust for both loans in March 2007 and reconveyances of the 2005 deeds of trust. 

Following the creation of the 2007 loan, Plaintiff’s monthly payments increased by more 

than $800 (in comparison to the payments due under the 2005 loans as of March 2007),

and Plaintiff thereafter began making the increased payments.

In January 2008, Plaintiff defaulted. At this time, Bank of America had taken over

servicing Plaintiff’s loans from Countrywide. After Plaintiff failed to make payments for 

five months, Bank of America and ReconTrust (the trustee) initiated non-judicial 

foreclosure proceedings and recorded a notice of default. The notice of default was sent 

to Plaintiff and specifically provided that Plaintiff had defaulted on the 2007 $1,000,000 

loan. In August 2008, ReconTrust recorded a notice of trustee’s sale reiterating that 

Plaintiff was in default on the 2007 deed of trust. Shortly thereafter, Plaintiff filed for 

Bankruptcy, which was discharged in January 2011. Notably, Plaintiff identified the 

2007 loans as undisputed debts in his May 2009 bankruptcy petition.
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Plaintiff brought the present action in April 2012, alleging that Defendants 

fraudulently signed his name to the 2007 $1,000,000 loan and that Plaintiff first learned 

of the 2007 loan in 2011. Defendants demurrered to Plaintiff’s second amended 

complaint, which alleged causes of action for actual fraud, fraud by conspiracy, fraud by 

respondeat superior, false certification of acknowledgment, and false certification of 

acknowledgement by respondeat superior. In the demurrer, Defendants argued that 

Plaintiff’s claims were barred by the three-year statute of limitations for fraud, and by 

Plaintiff’s judicial admissions within the bankruptcy filings, where he stated that the 2007

loans were undisputed debts. Defendants supported their demurrer with a request for 

judicial notice of the recorded 2008 notice of default and Plaintiff’s bankruptcy petition, 

as well as other documents. The court sustained the demurrer on the grounds that 

Plaintiff’s claims for fraud were barred by the three-year statute of limitations and by 

Plaintiff’s judicial admissions in his bankruptcy filing, and the court dismissed the case 

with prejudice.

DISCUSSION

1. Standard of Review

Plaintiff argues generally that the court erred in sustaining the demurrer without 

leave to amend. We review the court’s order sustaining the demurrer de novo. (Burns v. 

Neiman Marcus Group, Inc. (2009) 173 Cal.App.4th 479, 486 [“Treating as true all 

material facts properly pleaded, we determine de novo whether the factual allegations of 

the complaint are adequate to state a cause of action under any legal theory, regardless of 

the title under which the factual basis for relief is stated. [Citation.]”].) “In reviewing the 

sufficiency of a complaint against a general demurrer, we are guided by long-settled 

rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not 

contentions, deductions or conclusions of fact or law. [Citation.] We also consider 

matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a 

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] 

When a demurrer is sustained, we determine whether the complaint states facts sufficient 

to constitute a cause of action. [Citation.] And when it is sustained without leave to 
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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; if not, 

there has been no abuse of discretion and we affirm. [Citations.] The burden of proving 

such reasonable possibility is squarely on the plaintiff. [Citation.]” (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.)

2. Plaintiff’s Claims are Time-Barred 

Plaintiff asserted four claims for fraud against Defendants. Pursuant to Code of 

Civil Procedure section 338, subdivision (d), Plaintiff had three years to bring his fraud 

claims from the date of the fraud’s discovery. “ ‘The discovery rule provides that the 

accrual date of a cause of action is delayed until the plaintiff is aware of [his] injury and 

its negligent cause. [Citation.] A plaintiff is held to [his] actual knowledge as well as 

knowledge that could reasonably be discovered through investigation of sources open to 

[him]. [Citation.]’ ” (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 822.)

In his opposing brief, Plaintiff admitted that he received the notice of default in 

2008. The 2008 notice of default, which was recorded in the Los Angeles County 

Recorder’s Office and supplied by Defendants as part of their request for judicial notice 

in support of the demurrer, clearly stated that Plaintiff was in default on the March 2007,

$1,000,000 loan. The notice of default itself expressly placed Plaintiff on notice of the 

existence of the 2007 loan. Moreover, the increased loan payments should have alerted 

Plaintiff that some change had been made to his loan. An investigation at the county 

recorder’s office would have reinforced the fact that the 2005 loans were replaced by the 

2007 loans. Based on these facts, we conclude that Plaintiff was on notice of the 2007 

loans by 2008, when he received the notice of default. Plaintiff filed the present action in 

2012, more than three years after Plaintiff should have been aware of the 2007 loan. 

Plaintiff’s fraud claims are thus barred by the three-year statute of limitations.
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Although not argued on appeal, we note that this Court properly relies on

Plaintiff’s admission within his brief filed in opposition to his demurrer that he received 

notice of default, when evaluating the sufficiency of the second amended complaint. 

“Although on demurrer the court ordinarily looks only at the complaint and matters 

judicially noticed, ‘[w]hen a party opposing a demurrer admits that it does not dispute 

facts extrinsic to the complaint, the trial court may properly treat these facts as judicial 

admissions for the purpose of testing the sufficiency of the complaint.’ [Citation.]” 

(Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1368, fn.10; Scafidi v. 

Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 561-562 [stating that the trial court 

may rely on admissions made by counsel to render judgment on the pleadings].) His 

admission establishes that he received the notice of default on the 2007 loan.

In addition, we also properly take judicial notice of the recorded notice of default

in assessing the sufficiency of the second amended complaint. Although the trial court 

did not expressly rule on the request for judicial notice, “we may ourselves take judicial 

notice of appropriate matters.” (Requa v. Regents of University of California (2012) 

213 Cal.App.4th 213, 223.) “When a court is required to rule on a demurrer, the 

discretion provided by Evidence Code section 452 allows the court to take judicial notice 

of a fact or proposition within a recorded document ‘ “that cannot reasonably be 

controverted, even if it negates an express allegation of the pleading.” [Citation.]’ 

[Citation.]” (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 536.) 

Here, we judicially notice the fact that the notice of default sent to Plaintiff in 2008 

identified the 2007 $1,000,000 loan. We are not noticing the truth of the notice of 

default; rather we are acknowledging that the 2008 notice of default contained 

information to make Plaintiff aware of the 2007 loan. This cannot be reasonably 

controverted as the notice of default expressly identifies the 2007 loan. 

Based on the foregoing, Plaintiff was or should have been aware of the existence 

of the 2007 loan in 2008, more than three years before filing this action. We therefore 

affirm the court’s order sustaining the demurrer without leave to amend and entry of 

judgment against Plaintiff.
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3. Plaintiff Has Waived His Arguments on Appeal

One of the fundamental rules of appellate review is that an appealed judgment is 

presumed to be correct and “ ‘error must be affirmatively shown.’ ” (Denham v. Superior 

Court (1970) 2 Cal.3d 557, 564.) Plaintiff, as the appellant, has the burden of 

overcoming the presumption of correctness. “To demonstrate error, [the] appellant must 

present meaningful legal analysis supported by citations to authority and citations to facts 

in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 

396, 408.) Plaintiff’s burden on appeal requires “more than simply stating a bare 

assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court 

to figure out why; it is not the appellate court’s role to construct theories or arguments 

that would undermine the judgment and defeat the presumption of correctness.”

(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014) 

¶ 8:17.1, p. 8–6, citing Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) In cases like 

this one, when the appellant asserts a point but fails to support it with reasoned argument 

and citations to authority, we may treat it as waived and pass it without consideration. 

(People v. Stanley (1995) 10 Cal.4th 764, 793; see, e.g., Taylor v. Roseville Toyota, Inc.

(2006) 138 Cal.App.4th 994, 1001, fn. 2 [contention forfeited, where it is “merely 

asserted without argument or authority”].)

Plaintiff sets forth bare assertions in his brief regarding how the court erred in 

sustaining the demurrer and dismissing his case. Plaintiff fails to address the statute of 

limitations and his judicial admissions with citation to relevant authority and reasoned 

argument. Plaintiff thus failed to overcome the presumption of correctness and has

waived these arguments. We therefore affirm on this basis as well.
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DISPOSITION

The order sustaining the demurrer and judgment against Plaintiff are affirmed. 

Defendants and Respondents Bank of America Corporation, Bank of America N.A., 

Countrywide Home Loans, Inc., Landsafe Title of California, ReconTrust Company, 

N.A., and Jeffrey Gleason 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.