Filed 9/5/14 Tidwell v. JPMC Specialty Mortgage CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


EDWARD C. TIDWELL,
         Plaintiff and Appellant,
                                                                     A138546
v.
JPMC SPECIALTY MORTGAGE LLC,                                         (Contra Costa County
                                                                     Super. Ct. No. MSC11-02461)
         Defendant and Respondent.


         Appellant Edward C. Tidwell appeals from the trial court’s order sustaining the
demurrer of respondent JPMC Specialty Mortgage LLC (JPMC) without leave to amend
and dismissing Tidwell’s complaint with prejudice as to JPMC. We affirm.
                                                  BACKGROUND
         The relevant facts as alleged in the operative second amended complaint
(complaint) are as follows. In 2005, Tidwell obtained a residential loan from Argent
Mortgage Company, LLC (Argent), secured by a deed of trust (deed) encumbering
certain real property. The trustee was identified as Town and Country Title Services, Inc.
         On October 16, 2006, a notice of default was recorded by Cal-Western
Reconveyance Corporation (Cal-Western), stating Tidwell owed over $11,000 on the
loan (notice of default). The notice of default identified Cal-Western as “either the
original trustee, the duly appointed substituted trustee, or acting as agent for the trustee or
beneficiary.” The notice of default directed questions about the amount due or




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arrangements for payment to stop foreclosure to WM Specialty Mortgage LLC (WM
Specialty), an entity subsequently known as JPMC.1
        In December 2006, two additional documents were recorded. The first, dated
October 27, 2006, memorialized an assignment of the deed from Argent to WM
Specialty, effective October 15, 2006 (assignment). The second, also dated October 27,
substituted Cal-Western for Town and Country Title Services, Inc. as the trustee of the
deed, effective October 15 (substitution). The property was eventually sold at a trustee’s
sale.
        In 2011, Tidwell sued JPMC, as well as other defendants not at issue in this
appeal, alleging multiple causes of action in connection with the loan and foreclosure
process. The trial court sustained JPMC’s demurrer without leave to amend and
dismissed the complaint with prejudice as to JPMC.2
                                        DISCUSSION
I. JPM Specialty Mortgage
        Tidwell challenges a number of the trial court’s rulings issued after JPMC’s
attorneys realized they erroneously had been filing documents in the case—including the
demurrer at issue here—on behalf of “JPM Specialty Mortgage, LLC,” resulting in
JPMC’s default being entered in May 2012. After the entry of default, JPMC’s attorneys
filed a case management statement and notice of errata explaining the error, and
subsequently obtained orders setting aside the entry of default and deeming the demurrer
filed by JPMC.
        1
            For convenience, at times in this opinion we refer to WM Specialty as JPMC.
        2
         We grant, as we must, Tidwell’s June 4, 2014 request for judicial notice of four
published California court of appeal decisions and an unpublished federal district court
decision. (Evid. Code, § 451, subd. (a); Boghos v. Certain Underwriters at Lloyd’s of
London (2005) 36 Cal.4th 495, 502, fn. 3.) We deny the remainder of his June 4, 2014
request and the entirety of his February 13, 2014 request for judicial notice. To the extent
the documents are attached as exhibits to his complaint and incorporated therein, judicial
notice is unnecessary because in our review of the demurrer ruling, we accept these
exhibits as true. (Satten v. Webb (2002) 99 Cal.App.4th 365, 374–375.) The remaining
documents are not relevant to this appeal.


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       We find no error in the trial court’s rulings on this issue. The complaint identifies
JPMC as “JPMC Specialty Mortgage LLC,” an entity “formerly known as WM Specialty
Mortgage LLC,” and JPMC’s counsel erroneously referred to JPMC as “JPM Specialty
Mortgage LLC, formerly known as WM Specialty Mortgage LLC.” Given the
overwhelming similarity of the names, it should have been clear from the beginning the
difference was simply a clerical error. Although Tidwell suggests the error was tactical,
the trial court found otherwise and the record amply supports this finding. In addition,
Tidwell demonstrates no prejudice from the error. The order setting aside the entry of
default was justified under Code of Civil Procedure section 473, subdivision (b), which
authorizes relief from an order entered due to the mistake or neglect of a party or his or
her legal representative.
       Accordingly, we affirm the trial court’s rulings on this matter. To the extent
Tidwell’s arguments with respect to the demurrer are based on JPMC’s filings under the
name “JPM Specialty Mortgage, LLC,” we reject those arguments.
II. Demurrer
       “When reviewing a judgment dismissing a complaint after the granting of a
demurrer without leave to amend, courts must assume the truth of the complaint’s
properly pleaded or implied factual allegations. [Citation.] . . . If the trial court has
sustained the demurer, we determine whether the complaint states facts sufficient to state
a cause of action. If the court sustained the demurrer without leave to amend, as here, we
must decide whether there is a reasonable possibility the plaintiff could cure the defect
with an amendment. [Citation.] If we find that an amendment could cure the defect, we
conclude that the trial court abused its discretion and we reverse; if not, no abuse of
discretion has occurred. [Citation.] The plaintiff has the burden of proving that an
amendment would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th




                                               3
1074, 1081 (Schifando).) We conclude the trial court properly dismissed Tidwell’s
claims.3
       A. Corporations Code
       The complaint alleges JPMC violated several sections of the Corporations Code
relating to limited liability companies. Tidwell alleges violations of Corporations Code
former sections 17050 and 17051, which governed the formation of California limited
liability companies. However, JPMC is a Delaware limited liability company. These
sections do not apply.
       Tidwell also alleges violations of Corporations Code sections 2105 and former
sections 17001, subdivision (ap), and 17456. Corporations Code section 2105 and former
section 17456 impose requirements on foreign corporations that “transact intrastate
business.” Corporations Code former section 17001, subdivision (ap)(2)(G)–(H),
provides that a foreign limited liability company “shall not be considered to be
transacting intrastate business” solely by virtue of its “[c]reating or acquiring evidences
of debt or mortgages, liens, or security interests in real or personal property” or
“[s]ecuring or collecting debts or enforcing mortgages and security interests in property
securing the debts.” The activity of JPMC alleged in the complaint appears to fall within
these exceptions. Therefore, the Corporations Code sections governing foreign limited
liability companies that transact intrastate business do not apply.
       B. Fraud/Intentional Misrepresentation
       The complaint alleges causes of action for fraud and intentional misrepresentation
based on, with respect to JPMC, alleged false statements in the notice of default,
assignment, and/or substitution.
       The statute of limitations for “[a]n action for relief on the ground of fraud or
mistake” is three years from the discovery of the facts constituting the fraud. (Code Civ.
Proc., § 338, subd. (d).) The documents constituting the alleged fraud and containing the

       3
         In his briefs on appeal, Tidwell abandons any challenge to the trial court’s order
with respect to his causes of action for breach of contract, civil conspiracy, set aside
trustee sale, unjust enrichment, accounting, declaratory relief, and injunctive relief.


                                              4
alleged intentional misrepresentations were publicly recorded in 2006. A plaintiff
seeking to rely on delayed discovery for statute of limitations purposes “ ‘must plead
facts justifying delayed accrual; the complaint must allege (1) the time and manner of
discovery and (2) the circumstances excusing delayed discovery.’ ” (Mangini v. Aerojet-
General Corp. (1991) 230 Cal.App.3d 1125, 1150.) Tidwell’s complaint does not allege
the date he discovered the 2006 documents or provide an excuse for any delayed
discovery.
       C. Negligence
       The complaint alleges a cause of action for negligence. “The existence of a duty
of care owed by a defendant to a plaintiff is a prerequisite to establishing a claim for
negligence.” (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089,
1095.) “[A]s a general rule, a financial institution owes no duty of care to a borrower
when the institution’s involvement in the loan transaction does not exceed the scope of its
conventional role as a mere lender of money.” (Id. at p. 1096.) To determine whether
such a lender owes a duty of care, courts must consider the following balancing factors:
“ ‘ “ ‘[1] the extent to which the transaction was intended to affect the plaintiff, [2] the
foreseeability of harm to him, [3] the degree of certainty that the plaintiff suffered injury,
[4] the closeness of the connection between the defendant’s conduct and the injury
suffered, [5] the moral blame attached to the defendant’s conduct, and [6] the policy of
preventing future harm.’ ” ’ ” (Alvarez v. BAC Home Loans Servicing, L.P. (2014)
228 Cal.App.4th 941, 945, & fn. 5.)
       On appeal, Tidwell makes no argument that JPMC owed him a duty of care. His
complaint does not allege facts showing such a duty was owed. His negligence claim
was properly dismissed.
       D. Business and Professions Code section 17200
       Tidwell alleges JPMC committed unfair business practices in violation of Business
and Professions Code section 17200 et seq. The statute of limitations for claims under
this law is four years. (Bus. & Prof. Code, § 17208.) The basis for this claim, as with the
fraud claim, is the 2006 notice of default, assignment, and/or substitution, and Tidwell


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failed to allege any delayed discovery. This claim was properly dismissed for the same
reasons as the fraud claim.
       E. Leave to Amend
       When a demurrer is sustained without leave to amend, “[t]he plaintiff has the
burden of proving that an amendment would cure the defect.” (Schifando, supra, 31
Cal.4th at p. 1081.) Tidwell has failed to assert facts that could cure the above defects in
an amended complaint. Accordingly, the trial court’s denial of leave to amend was not
an abuse of discretion.4
                                      DISPOSITION
       The order dismissing appellant’s second amended complaint as to JPMC with
prejudice is affirmed. Respondent is awarded its costs on appeal.




                                                  SIMONS, J.


We concur.




JONES, P.J.




NEEDHAM, J.




       4
         Tidwell also filed, in this court, a motion for summary judgment. We construe
this to be a motion for summary reversal (Eisenberg et al., Cal. Practice Guide: Civil
Appeals and Writs (The Rutter Group 2014) ¶5:82) and, in light of our conclusion
affirming the judgment dismissing Tidwell’s action, deny the motion as moot.


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