Filed 1/21/14 Stansell v. Wells Fargo Bank CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


BETSY A. STANSELL,                                                  B246366

         Plaintiff and Appellant,                                   (Los Angeles County
                                                                    Super. Ct. No. NC057306)
         v.

WELLS FARGO BANK, N.A. et al.,

         Defendants and Respondents.



         APPEAL from a judgment of dismissal of the Superior Court of the County of Los
Angeles, Michele E. Flurer, Judge. Reversed and remanded with instructions.
         Stansell & Associates, Betsy A. Stansell, in pro. per., for Plaintiff and Appellant.
         Severson & Werson, Jan T. Chilton, Jon D. Ives for Defendants and Respondents.
                                     INTRODUCTION


       Plaintiff and appellant Betsy Stansell (plaintiff) appeals from the trial court’s
judgment dismissing her first amended complaint, which judgment was based on the trial
court’s order sustaining the demurrer of defendants and respondents (defendants) 1
without leave to amend. According to plaintiff, the trial court erred when it sustained the
demurrer because the operative complaint stated viable causes of action and the trial
court abused its discretion when it refused to grant her leave to amend.
       We hold that plaintiff lacks standing to pursue all of the claims in her pleading
based on events and conduct that occurred prior to the filing of her Chapter 7 bankruptcy
petition. As for plaintiff’s claims based upon the postpetition events and conduct, we
hold that because the distinction between prepetition and postpetition claims was not
raised or discussed in the trial court, plaintiff should be given an opportunity to amend
her complaint to state such claims. We therefore reverse the judgment and remand the
matter to the trial court with instructions to enter a new order sustaining the demurrer and
granting plaintiff leave to amend her pleading to state claims based only on postpetition
events and conduct.


                            PROCEDURAL BACKGROUND


       Prior to filing this action in state court, plaintiff filed a Chapter 7 bankruptcy
petition on August 16, 2011. The petition included a schedule of personal property. On
December 19, 2011, the bankruptcy court entered a discharge of debtor order.




1
       The defendants and respondents are Wells Fargo Bank, N.A., dba America’s
Servicing Company and Deutsche Bank National Trust Company as Trustee for Morgan
Stanley ABS Capital I Inc. Trust 2006-HE3.


                                               2
       On March 16, 2012, plaintiff filed this action.2 On August 29, 2012, plaintiff filed
the operative first amended complaint asserting nine causes of action against defendants
based on a 2006 home loan, a 2009 modification of that loan, and three failed attempts to
procure another loan modification in 2010. Among other things, plaintiff sought to
postpone or “set aside” a trustee’s sale of her home which secured her obligation under
the 2009 loan modification. On September 28, 2012, defendants filed a demurrer to the
first amended complaint and a request for judicial notice attaching, inter alia, copies of
plaintiff’s Chapter 7 bankruptcy petition and the subsequent discharge order. 3 Plaintiff
opposed the demurrer and filed a request for judicial notice. Following a hearing on the
demurrer,4 the trial court entered an order5 sustaining the demurrer without leave to
amend and a judgment of dismissal based thereon.




2
        The original complaint is not included in the appellant’s appendix. We requested
the trial court file which contains, inter alia, the original complaint and an August 31,
2012, minute order explaining that the hearing on defendant’s demurrer to that pleading
was taken off calendar because plaintiff had filed a first amended complaint.
3
        The bankruptcy documents were submitted in support of defendants’ argument
that plaintiff was judicially estopped from asserting her claims in state court based on her
failure to list them as property in her bankruptcy petition and her representation in the
bankruptcy court that she intended to surrender the property. Defendants did not rely on
those documents in the trial court to challenge plaintiff’s standing.
4
       The reporter’s transcript for the hearing on the demurrer is not included in the
appellant’s appendix. The transcript is not necessary to our conclusion. (See Chodos v.
Cole (2012) 210 Cal.App.4th 692, 699-700.)
5
        Plaintiff’s request that we take judicial notice of certain documents on appeal is
granted. Among the documents attached to that request is a copy of the trial court’s
tentative ruling on the demurrer that indicates, inter alia, that defendants’ request for
judicial notice in support of its demurrer was granted.

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                                        DISCUSSION


       A.     Standard of Review
       “On appeal from a judgment dismissing an action after sustaining a demurrer
without leave to amend, the standard of review is well settled. We give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context. ( Zelig v.
County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d
1171].) Further, we treat the demurrer as admitting all material facts properly pleaded,
but do not assume the truth of contentions, deductions or conclusions of law. ( Ibid.;
Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831
P.2d 317] (Aubry).) When a demurrer is sustained, we determine whether the complaint
states facts sufficient to constitute a cause of action. (Zelig, supra, 27 Cal.4th at p. 1126.)
And when it is sustained without leave to 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. (Ibid.)” (City of Dinuba v. County of Tulare (2007)
41 Cal.4th 859, 865.)


       B.     Standing to Assert Prepetition Claims


              1.      Applicable Legal Principles
       Defendants contend that because most of plaintiff’s claims are the property of the
bankruptcy estate, she lacks standing to pursue them. Although defendants did not raise
the standing issue in the trial court, we address it at the outset because co ntentions based
on lack of standing can be raised at any time, including for the first time on appeal.
“‘“[C]ontentions based on a lack of standing involve jurisdictional challenges and may be
raised at any time in the proceeding.” (Common Cause v. Board of Supervisors (1989)
49 Cal.3d 432, 438 [261 Cal.Rptr. 574, 777 P.2d 610].)’” (Associated Builders and
Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361.) “Lack of
standing, . . . is not waived by failure to timely object. (Parker v. Bowron [(1953)] 40

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Cal.2d [344,] 351.) Indeed, lack of standing to sue can be raised at any time, even for the
first time on appeal. (See Common Cause v. Board of Supervisors[, supra,] 49 Cal. 3d [at
pp.] 438-439 [261 Cal.Rptr. 574, 777 P.2d 610].)” (Color-Vue, Inc. v. Abrams (1996) 44
Cal.App.4th 1599, 1604)


              2.      Property of Bankruptcy Estate
       “As a general matter, upon the filing of a petition for bankruptcy, ‘all legal or
equitable interests of the debtor in property’ become the property of the bankruptcy estate
and will be distributed to the debtor’s creditors. [11 U.S.C.] section 541(a)(1).” ( Rousey
v. Jacoway (2005) 544 U.S. 320, 325.) The Historical and Statutory Notes for section
541 provide: “This section defines property of the estate, and specifies what property
becomes property of the estate. The commencement of a bankruptcy case creates an
estate. [T]he estate is comprised of all legal or equitable interest of the debtor in
property, wherever located, as of the commencement of the case. The scope of this
paragraph is broad. It includes all kinds of property, including tangible or intangible
property, [and] causes of action . . . .” (11 U.S.C.A. § 541, Revision Notes and
Legislative Reports (1978 Acts), italics added.)
       “In the context of bankruptcy proceedings, it is well understood that ‘a trustee, as
the representative of the bankruptcy estate, is the real party in interest, and is the only
party with standing to prosecute causes of action belonging to the estate once the
bankruptcy petition has been filed.’ Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 385
(5th Cir. 2008) (per curiam). The commencement of Chapter 7 bankruptcy extinguishes
a debtor’s legal rights and interests in any pending litigation, and transfers those rights to
the trustee, acting on behalf of the bankruptcy estate. See 11 U.S.C. § 541(a)(1)
(indicating that a bankruptcy estate includes ‘all legal or equitable interests of the debtor
in property’); id. § 323 (establishing the bankruptcy trustee as the ‘representative’ of the
estate with the ‘capacity to sue and be sued’ on its behalf). Thus, ‘[g]enerally speaking, a
pre-petition cause of action is the property of the Chapter 7 bankruptcy estate, and only
the trustee in bankruptcy has standing to pursue it.’ (Parker [v. Wendy’s Int’l, Inc. (11

                                               5
Cir. 2004)] 365 F.3d [1268,] 1272; accord Turner v. Cook, 362 F.3d 1219, 1225-26 (9th
Cir. 2004); Detrick v. Panalpina, Inc., 108 F.3d 529, 535 (4th Cir. 1997).” (Moses v.
Howard University Hospital (D.C. Cir. 2010) 606 F.3d 789, 795, italics added.)
       In a bankruptcy proceeding, the “bankruptcy code place[s] an affirmative duty on
[the debtor] to schedule his assets and liabilities. [11 U.S.C.,] § 521(1). If he fail[s]
properly to schedule an asset, including a cause of action, that asset continues to belong
to the bankruptcy estate and [does] not revert to []the debtor]. See Stein v. United Artists
Corp., 691 F.2d 885, 893 (9th Cir. 1982) (holding that only property ‘administered or
listed in the bankruptcy proceedings’ reverts to the bankrupt); accord Hutchins v. IRS, 67
F.3d 40, 43 (3d Cir. 1995); Vreugdenhill v. Navistar Int’l Transp. Corp., 950 F.2d 524,
526 (8th Cir. 1991) (holding that property is not abandoned by operation of law unless
the debtor ‘formally schedules the property before the close of the case’).” (Cusano v.
Klein (9th Cir. 2001) 264 F.3d 936, 945.)
       Here, the vast majority of the claims asserted in the first amended complaint were
based upon prepetition events and conduct, such as, for example, alleged representations
made in connection with 2006 loan, the 2009 modification, and the three 2010
modification applications. Thus, those claims became the property of the bankruptcy
estate upon the filing of the petition, and only the trustee has standing to assert them.
Moreover, because plaintiff did not list the claims based on prepetition events and
conduct as her personal property in the bankruptcy petition, those claims remained the
property of the estate even after the discharge order. Therefore, plaintiff has no standing
to pursue her claims based on prepetition events and conduct.
       Plaintiff contends that her claims based upon prepetition events and conduct are
not the property of the bankruptcy estate because she did not discover the facts giving
rise to such claims until well after the bankruptcy petition had been filed and, therefore,
those claims had not “accrued” for statute of limitations purposes at the time she filed the
petition. We disagree that plaintiff owns the prepetition claims.
       The issue of accrual of a cause of action and the issue of when the statute of
limitations begins to run for a particular cause of action “are two separate and distinct

                                               6
issues aimed at very different problems.” (State Farm Life Ins. Co. v. Swift (5th Cir.
1997) 129 F.3d 792, 796.) “Discovery is relevant to the determination of when the
statute of limitations begins to run, but it is not an element necessary for the cause of
action to accrue for purposes beyond the statute of limitations.” (Id. at p. 798.)
Therefore, when determining whether a cause of action accrues for ownership purposes
in a bankruptcy proceeding, “[t]he time of discovery of the injury is not relevant to [the]
inquiry. A cause of action can accrue for ownership purposes before the statute of
limitations for that cause of action has begun to run.” (Ibid.; In re Alvarez (11th Cir.
2000) 224 F.3d 1273, 1276; Cusano v. Klein, supra, 264 F.3d at p. 947.)
       Based on the foregoing authorities, plaintiff’s argument concerning delayed
discovery of her prepetition claims is irrelevant to the issue of whether those claims had
accrued for purposes of ownership under the bankruptcy law. Therefore, even assuming
that plaintiff was unaware of the facts giving rise to her claims based on prepetition
conduct and events, that delayed discovery does not alter the conclusion that those claims
accrued prior to the filing of the bankruptcy petition and were the property of the
bankruptcy estate.


       C.     Claims Based on Postpetition Events
       Plaintiff’s first amended complaint did base certain claims, in part, on postpetition
events. For example, in her first cause of action for fraud, plaintiff alleged that
“[d]efendants further indicated in writing on March 13, 2012, that plaintiff . . . withdrew
her request for a loan modification which was a false statement, and eliminated plaintiff
from modification programs.” And, in her third cause of action for interference with
prospective advantage, plaintiff alleged that “[d]efendants further knew and were fully
aware of a nationwide United States Attorney General Settlement Agreement and
Consent Judgment filed with the Federal court on March 12, 2012 of which defendants
were parties and plaintiff and her mortgages are intended third party beneficiaries.”
       Those two allegations were clearly based on postpetition events and conduct, such
that plaintiff has standing to pursue claims based upon them. But neither allegation, by

                                              7
itself, was sufficient to state the cause of action in which it was included. As to the fraud
cause of action, the first amended complaint does not specify how plaintiff relied to her
detriment on defendants’ allegedly false written statement that she voluntarily withdrew
her request for a loan modification. As to the interference with prospective advantage
cause of action, the first amended complaint did not specify how defendant tortuously
interfered with the prospective economic advantage that plaintiff allegedly had in the
settlement agreement and consent judgment. Because neither allegation was sufficient to
state the cause of action in which it was included, the trial court properly sustained the
demurrer to the first and third causes of action to the extent those claims were based on
postpetition events.
       Plaintiff contends that the trial court abused its discretion when it refused to grant
her an opportunity to amend her pleading. “[L]eave to amend is properly granted where
resolution of the legal issues does not foreclose the possibility that the plaintiff may
supply necessary factual allegations. (E.g., People ex rel. Dept. of Transportation v.
Superior Court (1992) 5 Cal.App.4th 1480, 1486 [7 Cal.Rptr.2d 498].) If the plaintiff has
not had an opportunity to amend the complaint in response to the demurrer, leave to
amend is liberally allowed as a matter of fairness, unless the complaint shows on its face
that it is incapable of amendment. (State of California v. Superior Court (1984) 150
Cal.App.3d 848, 863-864 [197 Cal.Rptr. 914]; cf. Aubry v. Tri-City Hospital Dist.
[(1990)] 2 Cal.4th [962,] 971; Temescal Water Co. v. Department of Public Works (1955)
44 Cal.2d 90, 107 [280 P.2d 1]; Virginia G. v. ABC Unified School Dist. (1993) 15
Cal.App.4th 1848, 1852 [19 Cal.Rptr.2d 671].)” (City of Stockton v. Superior Court
(2007) 42 Cal.4th 730, 747.)
       Because the standing issue was not before the trial court at the time it ruled on the
demurrer, the distinction between prepetition and postpetition events and conduct was not
raised or discussed. Thus, plaintiff did not have an opportunity to propose amendments
to the trial court based on postpetition events and conduct. Under these circumstances,
fairness requires that plaintiff be granted leave to amend her pleading based on
postpetition events and conduct. Accordingly, we reverse the judgment of dismissal and

                                              8
remand the matter to the trial court with instructions to enter an order sustaining the
demurrer and granting plaintiff leave to amend her pleading to state causes of action
based on postpetition events and conduct only.


                                      DISPOSITION


       The judgment of dismissal is reversed and the matter is remanded to the trial court
with instructions to enter an order sustaining the demurrer and granting plaintiff leave to
amend her pleading to state claims based on postpetition events and conduct only. No
costs are awarded on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                  MOSK, J.


I concur:



              MINK, J.





       Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

                                              9
       I respectfully dissent. I would affirm the judgment of dismissal. All of the pre -
petition claims of plaintiff, Betsy A. Stansell, against defendants are barred because she
has no standing to pursue them. (Cusano v. Klein (9th Cir. 2001) 264 F.3d 936, 945-947;
Bostanian v. Liberty Savings Bank (1997) 52 Cal.App.4th 1075, 1080-1081.) Plaintiff
has not set forth any facts which would warrant reversal of the judgment to allow her to
allege post-petition misconduct. Every argument in the opening brief relates to pre-
petition conduct by defendants. The opening brief fails to articulate any basis for post -
petition claims against defendants. Plaintiff’s burden is spell out in her brief how she
would amend the first amended complaint. (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d
627, 636-637; People ex rel. Brown v. Powerex Corp. (2007) 153 Cal.App.4th 93, 112.)
       Plaintiff has failed to spell out how she would amend her first amended complaint.
The opening brief concludes: “Based on the foregoing law, facts, evidence and
argument, and because of the heavy weight of the irreparable harm to Appellant by the
loss of her home to foreclosure, Appellant respectfully requests this Court of Appeal
vacate the final judgment, with orders to the trial court to allow [Appellant] leave to
amend all causes of action, and if so warranted, order rescission of the original mortgage
contract based on the fact that the contract is void, as are all subsequent contracts
obtained by fraudulent concealment of the fact of a void initial mortgage. [The]
[r]escission requested include[s] [an] offset to Appellant of sums paid based on the
original amount borrowed, and no offset to Respondents due to unclean hands.” At no
point does plaintiff seek to allege post-petition misconduct by defendants nor otherwise
identified how she would amend the first amended complaint. Therefore, I would affirm
the judgment.




                                           TURNER, P. J.
