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CALIFORNIA HOMEOWNER WINS AN APPEAL!!! SKOV V US BANK

CALIFORNIA HOMEOWNER WINS AN APPEAL!!! SKOV V US BANK

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Published by: 83jjmack on Jul 05, 2012
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06/02/2013

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Skov v. U.S. Bank N.A. (2012) , Cal.App.4th
[No. H036483. Sixth Dist. June 8, 2012.]
 
 ANDREA SKOV, Plaintiff and Appellant, v. U.S. BANK NATIONAL ASSOCIATION, Defendant andRespondent.
[Opinion Certified For Partial Publication. fn. * ]
 (Superior Court of Santa Clara County, No. CV153635, Mark H. Pierce, Judge.)(Opinion by Mihara, J., with Premo, Acting P. J., and Elia, J., concurring.)
COUNSEL
 Holland Law Firm, George Holland, Jr. for Plaintiff and Appellant.Severson & Werson, Jan T. Chilton, Donald J. Querio and Jason M. Julian for Defendant and Respondent.{Slip Opn. Page 2}
OPINION
 
MIHARA, J.-
 Plaintiff Andrea Skov filed an action against defendant U.S. Bank National Association, as trustee forCredit Suisse First Boston CSFB 2004-AR3 (U.S. Bank), and others in which she alleged improprieties inthe nonjudicial foreclosure process involving her residence. fn. 1 The trial court sustained U.S. Bank's demurrer to the second amended complaint and dismissed the action. Skov contends: (1) the trial courtimproperly took judicial notice of various recorded documents; and (2) the second amended complaintsufficiently pleaded her causes of action for wrongful foreclosure, unlawful business practices, anddeclaratory relief. We conclude that the second amended complaint sufficiently pleaded a violation of CivilCode section 2923.5. fn. 2  Accordingly, we reverse the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
 In December 2003, Skov obtained a loan of $1.5 million, which was secured by a deed of trust in herresidential property in Saratoga. The deed of trust identified Skov as the "Borrower," Gateway as the"Lender," Financial Title Company as "Trustee," and MERS as "acting solely as a nominee for Lender andLender's successors and assigns." MERS is also identified as "the beneficiary under this Security Instrument." The deed of trust further stated that "Borrower understands and agrees that MERS holdsonly legal title to the interests granted by the Borrower in this Security Instrument, but, if necessary tocomply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has theright: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sellthe Property." After Skov stopped making payments pursuant to the terms of the promissory note, NDEx, whichidentified itself as an agent for MERS, served Skov with a notice of default on June 10, 2009. A 
 
declaration of compliance with section 2923.5 was recorded with the notice of default. On July 16, 2009,MERS assigned all beneficial interest in the deed of trust to U.S. Bank. On July 20, 2009, U.S. Bank substituted NDEx as trustee for Financial Title Company. On September 18, 2009, NDEx recorded anotice of trustee's sale, which had been sent to Skov.On June 10, 2010, Skov filed her second amended complaint and alleged nine causes of action, only threeof which are the subject of the present appeal. The first cause of action for wrongful disclosure alleged thatthere were several improprieties in the assignment, transfer and exercise of the power of sale in the deedof trust. More {Slip Opn. Page 3} specifically, Skov alleged that since U.S. Bank and MERS were notassignees of the original note identified in the deed of trust, they did not have the right to exercise thepower of sale contained in the deed of trust, and thus U.S. Bank was not entitled to any debt on theproperty. It was also alleged that U.S. Bank failed to comply with section 2923.5 "until on or about July 10, 2009." The eighth cause of action for unlawful business practices (Bus. & Prof. Code, § 17200 et seq.)alleged that U.S. Bank failed to comply with section 2923.5 because it did not contact or attempt tocontact her to discuss her options to avoid foreclosure prior to filing the notice of default. The ninth causeof action for declaratory and injunctive relief sought a determination of the parties' legal rights and dutiesand that the foreclosure of the property be permanently enjoined. Skov also sought compensatory andpunitive damages.U.S. Bank filed a demurrer to the second amended complaint. In support of its demurrer, U.S. Bank requested judicial notice of the deed of trust, the notice of default, the notice of default declaration, theassignment of the deed of trust from MERS to U.S. Bank, the substitution of trustee, and the notice of trustee's sale. The trial court granted the request for judicial notice, sustained the demurrer without leaveto amend, and dismissed the action with prejudice. Skov filed a timely appeal.
II. DISCUSSION
  A.
 Standard of Review
 In reviewing an order sustaining a demurrer, " 'we examine the complaint de novo to determine whetherit alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed truefor this purpose. [Citations.]' (
 McCall v. PacifiCare of Cal., Inc.
(2001) 25 Cal.4th 412,415 [(
 McCall 
)].) We may also consider matters that have been judicially noticed. [Citations.]" (
Committee for Green Foothills v. Santa Clara County Bd. of Supervisors
(2010) 48 Cal.4th 32,42.) "Generally it is an {Slip Opn. Page 4} abuse of discretion to sustain a demurrer without leave to amend if there is any reasonablepossibility that the defect can be cured by amendment. [Citation.]" (
Cooper v. Leslie Salt Co.
 Judicial Notice
 Conceding that the trial court could properly take judicial notice of recorded documents, Skov contends itimproperly took judicial notice of "the truth, validity and/or legal effect of [U.S. Bank's] foreclosuredocuments . . . ." (Capitalization & boldface omitted.)
 
This issue was recently considered in
 Fontenot v. Wells Fargo Bank, N.A.
 Fontenot 
). In
 Fontenot 
, the complaint sought injunctive relief and damages for wrongful foreclosure,and alleged, among other things, the improper transfers of the promissory note and security. (
 Id.
at p.261.) In ruling on the defendant's demurrer to the complaint, the trial court took judicial notice of twodeeds of trust, an assignment of a deed of trust, and other documents required by the nonjudicialforeclosure procedure. (
 Id.
at p. 262.)
 Fontenot 
began its analysis by summarizing the principles regarding judicial notice: "We review the trialcourt's ruling on the request for judicial notice for abuse of discretion. [Citation.] [¶] ' " 'Judicial notice isthe recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of amatter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.'" ' [Citation.] When ruling on a demurrer, '[a] court may take judicial notice of something that cannotreasonably be controverted, even if it negates an express allegation of the pleading.' [Citation.] Accordingly, Evidence Code section 452, subdivisions (c) and (h), respectively, permit a court, in itsdiscretion, to take judicial notice of '[o]fficial acts . . . of any state of the United States' and '[f]acts andpropositions that are not reasonably {Slip Opn. Page 5} subject to dispute and are capable of immediateand accurate determination by resort to sources of reasonably indisputable accuracy.' " (
 Fontenot 
, at p.264.) Reasoning that recordation and use of a notary public in the execution of real property recordsensures their reliability, and their maintenance in the recorder's office enables them to be readily confirmed,
 Fontenot 
concluded that "a court may take judicial notice of the fact of a document'srecordation, the date the document was recorded and executed, the parties to the transaction reflected ina recorded document, and the document's legally operative language, assuming that there is no genuinedispute regarding the document's authenticity." (
 Fontenot 
, at pp. 264-265.)
 Fontenot 
then rejected the plaintiff's argument that the trial court improperly took judicial notice of thedefendant's designation as beneficiary in the deed of trust. (
 Fontenot 
,
supra
, 198 Cal.App.4th at p.266.)
 Fontenot 
explained that the defendant's "status as beneficiary was not the type of fact that isgenerally an improper subject of judicial notice . . . since its status was not a matter of fact existing apartfrom the document itself. Rather, [the defendant] was the beneficiary under the deed of trust because, as alegally operative document, the deed of trust designated [the defendant] as the beneficiary. Given thisdesignation, [the defendant's] status was not reasonably subject to dispute." (
 Ibid.
) Accordingly,
 Fontenot 
concluded that the trial court had not abused its discretion in taking judicial noticeof the documents. (
 Ibid.
)In
 Fontenot 
, as in the present case, the plaintiff relied on
 Mangini v. R. J. Reynolds Tobacco Co.
(1994)7Cal.4th 1057,overruled on other grounds in
In re Tobacco Cases II 
(2007) 41 Cal.4th 1257,1276,
 Herrerav. Deutsche Bank National Trust Co.
 Abernathy Valley, Inc. v. Countyof Solano
(2009) 173 Cal.App.4th 42,and argued that the trial court had improperly taken judicial notice of the truth of the contents of the recorded documents. (
 Fontenot 
,
supra
, 198 Cal.App.4th at pp. 266-267.) In
 Mangini 
, the court held that judicial notice could not be taken of the {Slip Opn. Page 6} truth of the conclusions in a report issued by the United States Surgeon General or the truth of matters reported innewspaper articles. (
 Id.
at p. 266.)
 Fontenot 
distinguished
 Mangini 
, pointing out that the documents inthat case "were fundamentally informative documents, and the parties sought judicial notice of the facts

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