Filed 1/23/15 Vargo v. Financial Freedom Acquisition, LLC CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


REBECCA VARGO, Individually and as
Trustee, etc.,
                                                                       G049006
     Plaintiff and Appellant,
                                                                       (Super. Ct. No. 30-2012-00605694)
                    v.
                                                                       OPINION
FINANCIAL FREEDOM ACQUISITION,
LLC et al.,

     Defendants and Respondents.


                   Appeal from judgments of the Superior Court of Orange County, Craig L.
Griffin, Judge. Affirmed.
                   Rebecca Vargo, in pro. per., for Plaintiff and Appellant.
                   Dykema Gosset, J. Kevin Snyder and Ashley R. Fickel for Defendant and
Respondent Financial Freedom Acquisition.
                   Reback, McAndrews, Kjar, Warford, Stockalper, Moore, James J. Kjar and
Albert E. Cressey III, for Defendant and Respondent Eric Becker.


                                             *               *               *
               Plaintiff Rebecca Vargo, Trustee of the Pauline L. Lasswell Trust,
individually and on behalf of the Pauline L. Lasswell Trust, appeals from the judgments
entered after the trial court sustained without leave to amend the separate demurrers of
defendants Eric Becker and Financial Freedom Acquisition, LLC (FFA) to her second
amended complaint. She contends the court erred because it looked beyond the four
corners of the complaint and the defects therein were capable of being cured by
amendment. No error has been shown and we affirm the judgments.


                     FACTS AND PROCEDURAL BACKGROUND


               According to the second amended complaint, Pauline L. Lasswell,
plaintiff’s mother, obtained a reverse mortgage loan (loan) from FFA in 2008, secured by
her residence (property). At the time of the loan, Lasswell held title to the residence in
her capacity as “Trustee of the Pauline S. Lasswell Trust” (trust). Plaintiff and Lasswell
were co-trustees of the trust.
               The following year, the probate court appointed Charles Kimery and Lee
Ann Hitchman as temporary conservators over Lasswell and her estate. The court later
appointed Hitchman as Lasswell’s private conservator. Becker is Hitchman’s attorney.
Subsequently, Lasswell’s health began failing and Hitchman moved her into an assisted
living facility.
               In February 2010, Hitchman, on Lasswell’s behalf, requested to draw over
$87,000 from FFA for Lasswell’s care and medical treatment, which FFA paid out.
Lasswell died the next year, causing the loan to mature. When the loan was not repaid by
Lasswell’s estate, FFA foreclosed on the property.
               Plaintiff sued FFA and Becker, along with Hitchman and Kimery (who are
not parties to this appeal). The second amended complaint alleged causes of action for



                                             2
negligence, fraud and deceit, breach of fiduciary duty, and financial elder abuse, as well
as a claim for breach of contract against FFA.
              The court sustained the demurrers of FFA and Becker to plaintiff’s second
amended complaint without leave to amend. The court found the litigation privilege
under Civil Code section 47 barred plaintiff’s entire action against Becker. As to FFA,
the court ruled the negligence and breach of contract claims failed because “[r]egardless
of whether the property subject to the reverse mortgage was or was not in a trust, FFA did
not breach any contract[, which was with Lasswell, not plaintiff] or duty to plaintiff trust
by lending money under the contract based on the request of Lasswell’s court-appointed
conservator. Similarly, lending money under the contract based on a request by
Lasswell’s court-appointed conservator did not breach any duty to plaintiff.” The fraud
cause of action failed for lack of specificity. And the absence of an allegation that FFA
owed plaintiffs a fiduciary duty, or that any act or omission by FFA constituted financial
elder abuse, doomed the breach of fiduciary and financial elder abuse claims. The court
denied leave to amend because it had already granted plaintiff several opportunities to do
so. Judgments of dismissal were subsequently entered in favor of Becker and FFA.


                                       DISCUSSION


              “When the trial court sustains a demurrer, we review the complaint de novo
to determine whether it alleges facts stating a cause of action on any possible legal
theory.” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490.) “The
plaintiff has the burden of showing that the facts pleaded are sufficient to establish every
element of the cause of action and overcoming all of the legal grounds on which the trial
court sustained the demurrer, and if the defendant negates any essential element, we will
affirm the order sustaining the demurrer as to the cause of action.” (Martin v. Bridgeport
Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031.)

                                              3
              Plaintiff fails to address any of the grounds the court relied on to sustain the
demurrers, much less overcome them. She merely claims repeatedly that the court erred
in sustaining the demurrers by making “determinations of fact beyond the
four . . . corners of the . . . [s]econd [a]mended [c]omplaint when such determinations
should have been reserved for, and determined at a trial on the merits.” But plaintiff
neglects to identify the factual determinations she claims were incorrectly made. Without
that we cannot evaluate whether they should have been reserved for trial.
              Plaintiff asserts the court’s ruling on Becker’s demurrer was “based
primarily upon the fact” her opposition was filed late and the court erred by not
considering it. She is mistaken. The court “admonished” plaintiff to review Code of
Civil Procedure section 1005, subdivisions (b) and (c) given that this was the second time
she had filed a late opposition. But the court then continued and addressed the demurrer
on its merits, finding plaintiff’s second amended complaint barred by the litigation
privilege under Civil Code section 47, subdivision (b). Although plaintiff references this
conclusion, she makes no argument that it was incorrect. The specific acts and omissions
by FFA and Becker are irrelevant to this issue.
              Plaintiff also contends the court abused its discretion in denying her leave
to amend. We review a decision to deny leave to amend for abuse of discretion. (Curcini
v. County of Alameda (2008) 164 Cal.App.4th 629, 637.) Denial of leave to amend
constitutes an abuse of discretion if the plaintiff carries the burden of demonstrating a
reasonable possibility the defects can be cured by amendment. (Ibid.) But because
plaintiff has proposed no amendments to her second amended complaint that she
contends would cure the defects, she has not shown the court abused its discretion in
sustaining the demurrers without leave to amend.




                                              4
                                   DISPOSITION


             The judgments of dismissal are affirmed. Respondents shall recover their
costs on appeal.




                                              RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                          5
