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Published by: 83jjmack on Jun 06, 2011
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SUSAN L. FERGUSON et al., Plaintiffs and Appellants,v.AVELO MORTGAGE, LLC, Defendant and Respondent.
No. B223447.
Court of Appeals of California, Second District, Division Four.
 Filed June 1, 2011.Susan L. Ferguson, in pro. per, and for Plaintiffs and Appellants.McCarthy &Holthus, James M. Hester, SasanMirkarimi; and MelissaCoutts for Defendant and Respondent.
EPSTEIN, P. J.Joseph Huynh obtained a loan to purchase a house. Appellants, Susan L.Ferguson and Brent V. Barry, were tenants at the time of the purchase.
 Huynh executed a promissory note, secured by a deed of trust on thehouse. Respondent, Avelo Mortgage, LLC, was assigned the beneficialinterest under the deed of trust by the original beneficiary, MortgageElectronic Registration Systems (MERS). Prior to the assignment,respondent executed a substitution of trustee replacing the originaltrustee with Quality Loan Service Corporation (Quality). Quality theninitiated a nonjudicial foreclosure proceeding against Huynh andrespondent purchased the house at a trustee sale. Subsequently, Huynhexecuted a quitclaim deed in favor of appellants. Appellants suedrespondent to quiet title. Respondent demurred, arguing that appellantsmust plead tender of the full amount due on the original purchase loanbefore seeking to vacate the foreclosure sale. The trial court sustainedrespondent's demurrer without leave to amend and dismissedappellants' suit. On appeal, appellants argue they need not plead tenderbecause they are challenging the legality of the foreclosure sale, not aprocedural irregularity. We do not agree.
In November 2006, Huynh purchased a house (the property) in Burbank,California. Appellants were tenants at the time of the purchase. Huynhexecuted a deed of trust to secure a $600,000 loan from New CenturyMortgage Corporation (New Century) in order to purchase the property.The deed of trust named New Century as the lender, MERS as lender'snominee and beneficiary under the deed of trust, and First American Titleas the trustee. The deed of trust empowered the trustee with the powerof sale. In June 2007, Huynh executed a grant deed to the Huynh FairviewTrust, with Trust Holding Service Company (THS) as trustee.On August 2, 2007, respondent executed a substitution of trustee,replacing First American Title with Quality. The next day, Quality, as anagent of the beneficiary under the deed of trust, recorded a notice of default against Huynh for failing to make payments due on the loan. Onthe same day, Quality recorded an election to sell under the deed of trust. The August 2, 2007 substitution of trustee was not recorded untilNovember 9, 2007. On August 22, 2007, MERS assigned all beneficialinterest under the deed of trust to respondent. The assignment wasrecorded on August 30, 2007.
Meanwhile, Huynh made no loan payments and Quality executed anddelivered a notice of trustee sale on November 4, 2007. The notice of sale was recorded on November 9, 2007. Huynh did not object to theforeclosure. Quality conducted a nonjudicial foreclosure sale andrespondent subsequently purchased the property in July 2008 for$400,000. The sale deed was recorded, indicating that the amount of unpaid debt plus costs was $663,128.65.On June 27, 2009, Huynh executed a quitclaim deed on the property, infavor of appellants. The quitclaim deed was recorded on July 1, 2009.On October 8, 2009, appellants brought an action against respondent toquiet title. They also sued Huynh for fraud and THS and 10 Doedefendants for rent skimming. Of these, only respondent is a party in thisappeal. Respondent demurred, asserting that appellants failed to state acause of action because neither they nor Huynh tendered the full amountdue on the loan. The trial court sustained the demurrer without leave toamend, holding that appellants' quiet title action is based on a claim thatthe foreclosure was wrongful, and therefore, appellants must pleadtender before seeking to set aside the foreclosure sale.
An order of dismissal was entered by the court on May 4, 2010. This timely appealfollowed.
Respondent argues this appeal is premature because the trial courtentered an order of dismissal but did not enter a formal judgment.Generally, an appeal may be taken from a judgment (Code Civ. Proc., §904.1), which is a "final determination of the rights of the parties in anaction or proceeding." (Code Civ. Proc., § 577.) An order of dismissal is a judgment for all intents and purposes, and therefore, is generallyappealable. (
In re Sheila B.
(1993) 19 Cal.App.4th 187, 197.) We treat thetrial court's order of dismissal as an appealable order and refer to it assuch throughout our opinion.
When a demurrer is sustained by a trial court on the basis of a failure tostate a cause of action, we review the allegations de novo to determinewhether the complaint states facts sufficient to constitute a cause of action under any legal theory. (
eligv. County of Los Angeles
(2002) 27Cal.4th 1112, 1126.) In doing so, we give the complaint a reasonableinterpretation, reading it as a whole and viewing its parts in context.(
Balikov v. Southern Cal. Gas Co.
(2001) 94 Cal.App.4th 816, 819.)Relevant matters that were properly the subject of judicial notice may betreated as having been pled. (
Evans v. City of Berkeley 
(2006) 38 Cal.4th1, 6.)
If no liability exists as a matter of law, the order sustaining thedemurrer is affirmed. (
)Where, as here, a demurrer is sustained without leave to amend, we alsoreview the decision to deny leave to amend under the abuse of discretion standard, even when no request to amend the pleading wasmade. (Code Civ. Proc., § 472c, subd. (a); see also
Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.) In doing so, we decide whether
there is a reasonable possibility that the defect can be cured byamendment. The burden is on the plaintiff to demonstrate thatreasonable possibility. (
Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.)
Here, appellants sought to quiet title against respondents and set asidethe trustee sale at which respondents purchased the property. In orderto state a viable cause of action for quiet title, a complaint must include:"(a) A description of the property that is the subject of the action. . . . [¶](b) The title of the plaintiff as to which a determination under thischapter is sought and the basis of the title. . . . [¶] (c) The adverse claimsto the title of the plaintiff against which a determination is sought. [¶] (d)The date as of which the determination is sought. . . . [¶] (e) A prayer forthe determination of the title of the plaintiff against the adverse claims."(Code Civ. Proc., § 761.020.) To bring an action to quiet title a plaintiff must allege he or she has paid any debt owed on the property.(
Shimpones v. Stickney 
(1934) 219 Cal. 637, 649["[A] mortgagor cannot
quiet his title against the mortgagee without paying the debt secured."].)The power of sale in a deed of trust allows a beneficiary recourse to thesecurity without the necessity of a judicial action. (See
Melendrez v. D & IInvestment, Inc.
(2005) 127 Cal.App.4th 1238, 1249.) Absent anyevidence to the contrary, a nonjudicial foreclosure sale is presumed tohave been conducted regularly and fairly. (Civ. Code, § 2924.) H
owever,irregularities in a nonjudicial trustee's sale may be grounds for setting itaside if they are prejudicial to the party challenging the sale. (See
Lo v.ensen
(2001) 88 Cal.App.4th 1093, 1097-1098; see also
 Angell v. Superior 
(1999) 73 Cal.App.4th 691, 700["`In order to challenge the sale
successfully there must be evidence of a failure to comply with theprocedural requirements for the foreclosure sale that caused prejudiceto the person attacking the sale.'"].) Setting aside a nonjudicialforeclosure sale is an equitable remedy. (
Lo v. Jensen, supra,
Cal.App.4th at p. 1098["A debtor may apply to a court of equity to set
aside a trust deed foreclosure on allegations of unfairness or irregularitythat, coupled with the inadequacy of price obtained at the sale, meanthat it is appropriate to invalidate the sale."].) A court will not grantequitable relief to a plaintiff unless the plaintiff does equity. (See
 ArnoldsManagement Corp. v. Eischen
(1984) 158 Cal.App.3d 575, 578-579; see
also 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 6, pp. 286-287.) Thus, "[i]t is settled that an action to set aside a trustee's sale forirregularities in sale notice or procedure should be accompanied by anoffer to pay the full amount of the debt for which the property wassecurity." (
 Arnolds Management Corp. v. Eischen, supra,
158 Cal.App.3d
at p. 578; see also
FPCI RE-HAB 01 v. E & G Investments, Ltd.
(1989) 207
Cal.App.3d 1018, 1022[rationale behind tender rule is that irregularities
in foreclosure sale do not damage plaintiff where plaintiff could notredeem property had sale procedures been proper].)However, a tender may not be required where it would be inequitable todo so. (See
Onofrio v. Rice
(1997) 55 Cal.App.4th 413, 424; see also
Dimock v. Emerald Properties
(2000) 81 Cal.App.4th 868, 876-878[when
new trustee has been substituted, subsequent sale by former trustee is

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