Filed 3/26/14 Vasquez v. Deutsche Bank National Trust Co. CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


SARITA VASQUEZ,                                                               2d Civil No. B246473
                                                                            (Super. Ct. No. 1402601)
     Plaintiff and Appellant,                                                (Santa Barbara County)

v.

DEUTSCHE BANK NATIONAL TRUST
CO., as Trustee, etc., et al.,

     Defendants and Respondents.


                   Sarita Vasquez appeals a judgment of dismissal entered after the trial court
sustained a demurrer to her first amended complaint without leave to amend. (Code Civ.
Proc., § 581d.) We affirm.
                                   FACTS AND PROCEDURAL HISTORY
                   On July 5, 2012, Vasquez filed a complaint in propria persona against
Deutsche Bank National Trust Company as Trustee for American Home Mortgage Assets
Trust 2006-5, Mortgage-Backed Pass-Through Certificates Series 2006-5 ("Bank"), and
Power Default Services, Inc. ("Power").1 Vasquez attempted to allege causes of action for
rescission, cancellation of recorded documents, quiet title, breach of fiduciary duty, and
fraud. She also requested injunctive relief and damages.



1
 We shall refer to defendants jointly as "Bank," except where clarity demands that we
draw a distinction.
              Vasquez alleged that she purchased real property at 222 East Calle Laureles
in Santa Barbara in May 2005. On August 15, 2006, she refinanced the purchase of the
property by application to American Brokers Conduit ("ABC"). As part of the refinance,
Vasquez executed a promissory note for $928,000 and a deed of trust securing that
obligation. She later learned that the deed of trust was assigned to the Bank without her
knowledge or consent. Vasquez alleged that she discovered her causes of action on March
4, 2012, and then sent ABC and the Bank a unilateral notice of rescission pursuant to Civil
Code section 1691.
              Specifically, Vasquez complained that ABC did not make a "loan" to her.
Instead, she alleged that they induced her to execute a promissory note and "later
monetized [her] signature to create some sort of 'Bearer Instrument' which [ABC] later
sold to third party-investors." ABC thus deposited Vasquez's obligation "in a transaction
account for the purpose of creating new money for itself without disclosure to [Vasquez]."
Vasquez alleged that ABC's practice was an "investment transaction scheme" that "duped
[her] into loaning herself her own 'money.'"
              On July 18, 2012, the Bank demurred to Vasquez's complaint, asserting that
the complaint did not state facts sufficient to state a cause of action and also was uncertain.
(Code Civ. Proc., § 430.10, subds. (e) & (f).) The Bank requested and the trial court
agreed to take judicial notice of recorded documents evidencing the refinancing
transaction, as well as a recent federal court ruling dismissing a similar lawsuit brought by
Vasquez. (Evid. Code, § 452, subds. (c) & (d).) The Bank also provided recorded
documents evidencing that, in 2011, Vasquez defaulted in her loan payments and that
trustee Power sold the property at a nonjudicial foreclosure sale conducted on January 27,
2012.
              The promissory note and deed of trust executed by Vasquez in favor of ABC
expressly stated that ABC could transfer or sell the promissory note without prior notice to
Vasquez. The promissory note also provided that "[t]he Lender or anyone who takes this
Note by transfer and who is entitled to receive payments under this Note is called 'the Note
Holder.'"


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              Following origination of the ABC refinance, the beneficial interest in the
note and deed of trust was transferred to American Home Mortgage Assets Trust 2006-5,
Mortgage-Backed Pass-Through Certificates Series 2006-5, for which Deutsche Bank
National Trust Co. was and is the trustee. An assignment formally reflecting this transfer
was recorded on March 22, 2011. Subsequently, Deutsche Bank substituted Power as
trustee under the deed of trust.
              On September 18, 2012, the trial court held a hearing regarding the Bank's
demurrer. It sustained the demurrer and permitted Vasquez leave to amend to state a cause
of action. In ruling, the court described the complaint as "basically nonsensical," and
failing to state a cause of action for fraud or to allege tender of the indebtedness to obtain
rescission, among other things.
              On October 9, 2012, Vasquez filed a first amended complaint containing
only minor differences, i.e. substituting the phrase "mortgage transaction" for the word
"loan," and quoting the Uniform Commercial Code extensively. Vasquez continued to
complain of the "monetization" of her signature on the note and deed of trust and
subsequent sale of the debt to third party investors. The Bank again demurred. Following
a hearing on November 27, 2012, at which Vasquez did not appear, the trial court
sustained the Bank's demurrer to the first amended complaint without leave to amend.
              Vasquez appeals and contends that 1) the trial court erred by sustaining the
demurrer without leave to amend, and 2) the trial court denied her due process of law
pursuant to the federal and California Constitutions.
                                        DISCUSSION
                                               I.
              On appeal from a judgment dismissing an action following the sustaining of
a demurrer without leave to amend, our standard of review is de novo, i.e., we exercise our
independent judgment whether the complaint alleges facts sufficient to state a cause of
action under any possible legal theory. (Lafferty v. Wells Fargo Bank (2013) 213
Cal.App.4th 545, 564.) We treat the demurrer as admitting all material facts properly
pleaded, but not contentions, deductions, or conclusions of fact or law. (Aryeh v. Canon


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Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1; Lafferty, at p. 564.).) We also
give the complaint a reasonable interpretation, reading it in context and as a whole, to
determine whether plaintiff has stated a cause of action. (Lafferty, at p. 564.)
              Pursuant to the rules of truthful pleading, we disregard allegations that are
inconsistent with other allegations or matters that may be judicially noticed. (Trinity Park,
L.P. v. City of Sunnyvale (2011) 193 Cal.App.4th 1014, 1027, disapproved on other
grounds by Sterling Park, LP v. City of Palo Alto (2013) 57 Cal.4th 1193, 1202-1203,
1210.)
              Plaintiff bears the burden of showing that the factual allegations establish
every element of each cause of action pleaded. (Martin v. Bridgeport Community Assn.,
Inc. (2009) 173 Cal.App.4th 1024, 1031.) We affirm the trial court's ruling if there is any
ground upon which the demurrer could have been properly sustained. (Intengan v. BAC
Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052; Scott v. JPMorgan Chase
Bank, N.A. (2013) 214 Cal.App.4th 743, 752.) Plaintiff also bears the burden of showing
that a reasonable possibility exists that she can amend his pleading to state a cause of
action. (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 962;
Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 44 ["Where the
appellant offers no allegations to support the possibility of amendment and no legal
authority showing the viability of new causes of action, there is no basis for finding the
trial court abused its discretion when it sustained the demurrer without leave to amend"].)
              For several reasons, the trial court did not err by sustaining the Bank's
demurrer to Vasquez's first amended complaint without leave to amend.
              To the extent that Vasquez alleges that she did not understand that her
promissory note and deed of trust would become negotiable instruments, she has not stated
a valid cause of action. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
272 ["Because a promissory note is a negotiable instrument, a borrower must anticipate it
can and might be transferred to another creditor. As to plaintiff, an assignment merely
substituted one creditor for another, without changing her obligations under the note"].)
Ordinarily, a party to a contract cannot justifiably claim unawareness of the express


                                              4
provisions of the contract. (Fuller v. First Franklin Financial Corp., supra, 216
Cal.App.4th 955, 964.) The promissory note and deed of trust that Vasquez executed
specifically provide that the instruments may be transferred or sold without prior notice to
her. "A cardinal rule of contract law is that a party's failure to read a contract, or to
carefully read a contract, before signing it is no defense to the contract's enforcement."
(Desert Outdoor Advertising v. Superior Court (2011) 196 Cal.App.4th 866, 872.)
              Moreover, Vasquez has not sufficiently alleged that the Bank held a
fiduciary relationship toward her. The general rule is that the relationship between an
institutional lender and a borrower is not a fiduciary one. (Nymark v. Heart Fed. Savings
& Loan Assn. (1991) 231 Cal.App.3d 1089, 1093, fn. 1.) Vasquez did not allege any of the
limited exceptions to that general rule. (Jolley v. Chase Home Finance, LLC (2013) 213
Cal.App.4th 872, 899-902.)
              Vasquez also did not allege that she returned or offered to return the loan
proceeds prior to requesting the remedy of rescission of the refinancing transaction.
(Garcia v. Wachovia Mortgage Corp. (C.D. Cal. 2009) 676 F.Supp.2d 895, 901
["'Rescission is an empty remedy without [plaintiff's] ability to pay back what she has
received'"].) Civil Code section 1691 provides: "Subject to Section 1693, to effect a
rescission a party to the contract must, promptly upon discovering the facts which entitle
him to rescind if he is free from duress, menace, undue influence or disability and is aware
of his right to rescind: [¶] . . . (b) Restore to the other party everything of value which he
has received from him under the contract or offer to restore the same upon condition that
the other party do likewise, unless the latter is unable or positively refuses to do so."
              Moreover, Vasquez's notice of rescission was untimely, having been sent to
the Bank nearly three months following the foreclosure sale. Vasquez's obligations
pursuant to the note and deed of trust were extinguished when the Bank made a full credit
bid and took title to the foreclosed property. (Bank of America v. Quackenbush (1997) 56
Cal.App.4th 1167, 1170-1171 [a full credit bid at a nonjudicial foreclosure sale
extinguishes the lien and releases the borrower from further obligations under the defaulted
note].)


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              For these reasons, we need not address the remaining grounds asserted by the
Bank and relied upon by the trial court in sustaining the demurrer to Vasquez's first
amended complaint without leave to amend.
                                              II.
              Vasquez also argues that the trial court denied her due process of law by its
dismissal order because she is unable to proceed to trial regarding her claims against the
Bank.2
              Vasquez received notice of the Bank's demurrer to her first amended
complaint and chose not to appear or to respond to the complaint. She thus received notice
and an opportunity to be heard. (American Corporate Security, Inc. v. Su (2013) 220
Cal.App.4th 38, 46 [due process principles require reasonable notice and opportunity to be
heard before governmental deprivation of a significant property interest].) Prior to
receiving a trial regarding her claims, the law requires that she plead a viable cause of
action against the Bank. When she did not do so, the trial court properly terminated her
lawsuit at the pleading stage.
              The judgment of dismissal is affirmed. Respondents shall recover costs on
appeal.
              NOT TO BE PUBLISHED.



                                           GILBERT, P. J.
We concur:


              YEGAN, J.


              PERREN, J.

2
  In ruling, the trial court stated: "This Court previously sustained defendants' demurrer to
plaintiff's original complaint. In doing so, it expressly advised plaintiff that her theory of
liability was untenable, and did not and could not give rise to any liability to her by
defendants. It further advised her that she could not both keep the proceeds of the loan that
was made to her and obtain title to the property."

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                               Thomas P. Anderle, Judge

                        Superior Court County of Santa Barbara

                         ______________________________


            Sarita Vasquez, in pro. per., for Plaintiff and Appellant.


            Wright, Finlay & Zak, LLP, T. Robert Finlay, Lukasz I. Wozniak for
Defendants and Respondents.




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