Vildosola v. Countrywide Home Loans, Inc. CA4/1

Filed 9/10/15 Vildosola v. Countrywide Home Loans, Inc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

MIGUEL A. VILDOSOLA et al., D066094

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2013-00079436-
CU-BT-CTL)
COUNTRYWIDE HOME LOANS, INC. et
al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Joel M.

Pressman, Judge. Affirmed.

Joseph La Costa for Plaintiffs and Appellants.

Severson & Werson, Jan T. Chilton and Michael G. Cross for Defendants and

Respondents.

Like the trial court in this wrongful foreclosure case, we reject the plaintiff's

attempt to avoid responsibility for more than $1 million in loans, the proceeds of which

they admit they received, on the grounds the lender was not fully and accurately
identified in the underlying loan documents. The record shows the loan documents

identify the lender by use of the fictitious name under which it carried on its business.

The lender's use of its fictitious name did not invalidate the notes or deeds of trust or

otherwise relieve the plaintiffs of their obligations. Accordingly, we affirm the trial

court's judgment entered on its order sustaining the defendant lender's demurrer.

FACTUAL AND PROCEDURAL BACKGROUND

According to the allegations of their complaint, in 2006 plaintiffs and appellants

Miguel A. Vildosola and Iris Vildosola (collectively Vildosolas) purchased a home in

Chula Vista. They financed the purchase by borrowing a total of $1,080,000; $960,000

of the financing was in the form of a promissory note, secured by a first deed of trust on

the home they were purchasing, and an additional $120,000 was financed by way of a

separate note, secured by a second deed of trust on the home.

In 2011, the Vildosolas were in default under the terms of the notes and deeds of

trust and a notice of default and election to sell under a deed of trust was recorded against

their home.

On December 10, 2013, the Vildosolas filed their complaint against:

"AMERICA'S WHOLESALE LENDER, a New York Corporation." The complaint

attached, as exhibits, the two notes and accompanying deeds of trust. The deeds of trust

state: "'Lender' is [¶] AMERICA'S WHOLESALE LENDER [¶] Lender is a

CORPORATION [¶] organized and existing under the laws of NEW YORK."

The Vildosolas allege there has never been a corporation organized under New

York law named America's Wholesale Lender. The Vildosolas further allege that

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because no such corporation has ever existed, the notes and deeds of trust they executed

are null and void.

Countrywide Home Loans, Inc. (Countrywide) is a corporation existing under the

laws of the state of New York.1 Countrywide filed a demurrer to the Vildosolas'

complaint. In support of the demurrer, Countrywide asked that the trial court take

judicial notice of fictitious business name statements it first recorded in 1993, by which

Countrywide stated that it would be doing business as America's Wholesale Lender. The

trial court sustained Countrywide's demurrer without leave to amend and entered

judgment dismissing the Vildosolas complaint.

DISCUSSION

We review de novo an order sustaining a demurrer without leave to amend.

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The issue is whether, assuming the truth of

all well-pleaded facts and those subject to judicial notice, the complaint alleged facts

sufficient to state a cause of action. (Zelig v. County of Los Angeles (2002) 27 Cal.4th

1112, 1126.) We disregard contentions, deductions or conclusions of fact or law. (Ibid.)

"'Further, we give the complaint a reasonable interpretation, reading it as a whole and its

parts in their context. [Citation.] When a demurrer is sustained, we determine whether

1 Upon Countrywide's request, we have taken judicial notice of documents from the
office of the New York State Department of State, Division of Corporations and the
California Secretary of State. (Evid. Code, §§ 452, subd. (h) & 459, subd. (a).) These
documents show that at all pertinent times Countrywide was a duly organized New York
corporation doing business in California.
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the complaint states facts sufficient to constitute a cause of action. [Citation.] 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; if not, there has been no abuse of discretion and we affirm.

[Citations.] The burden of proving such reasonable possibility is squarely on the

plaintiff.' [Citations.]" (Ibid.) However, if any one of the several grounds of demurrer is

well taken, the judgment must be affirmed. (Aubry v. Tri–City Hospital Dist. (1992) 2

Cal.4th 962, 967.)

"Use of a fictitious business name does not create a separate legal entity. As the

First District Court of Appeal recently noted, '"[t]he designation [DBA] means 'doing

business as' but is merely descriptive of the person or corporation who does business

under some other name. Doing business under another name does not create an entity

distinct from the person operating the business." [Citation.] The business name is a

fiction, and so too is any implication that the business is a legal entity separate from its

owner.' [Citations.]" (Pinkerton's, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342,

1348; see Cleveland v. Johnson (2012) 209 Cal.App.4th 1315, 1330.) Thus, in using the

fictitious name America's Wholesale Lender in the loan documents, Countrywide acted

properly and did not create or purport to create any new juridical entity. (Ibid.) The fact

that the loan documents went further and stated that America's Wholesale Lender is a

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New York Corporation was not inaccurate or misleading.2 Countrywide, doing business

as America's Wholesale Lender, is and was a New York corporation and, like a multitude

of other businesses, is permitted to operate under its fictitious name. (Ibid.)

The obvious lack of merit in the Vildosolas' contentions required that the trial

court not only sustain Countrywide's demurer, but that it does so without leave to amend.

DISPOSITION

The judgment is affirmed. Countrywide to recover its costs of appeal.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

IRION, J.

2 Contrary to the Vildosolas argument on appeal, the loan documents do not
describe the lender as "America's Wholesale Lender, a New York Corporation." Rather,
as we noted, the deeds of trust state that "'Lender' is [¶] AMERICA'S WHOLESALE
LENDER [¶] Lender is a CORPORATION [¶] organized and existing under the laws of
NEW YORK." As we have indicated, this statement is accurate.
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