Hacker v. Homeward Residential, Inc.

Filed 8/16/18; Opinion following order vacating prior opinion
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

RON HACKER, as Trustee, etc., B278537

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC610795)
v.

HOMEWARD RESIDENTIAL, INC.,
et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Teresa A. Beaudet, Judge. Reversed with
directions.
Law Office of Richard L. Antognini and Richard L.
Antognini for Plaintiff and Appellant.
Wright, Finlay & Zak, Jonathan D. Fink and Charles C.
McKenna for Defendants and Respondents Homeward
Residential, Inc., Deutsche Bank National Trust Company, as
Trustee for Soundview Home Loan Trust 2006-OPT 3, Asset-
Backed Certificates, Series 2006-OPT 3, Western Progressive,
LLC, Ocwen Loan Servicing, LLC, Wells Fargo Bank, N.A., as
Trustee for Option One Mortgage Loan Trust 2006-2, Power
Default Services, Inc., Brandy Berns, and Vicki Pospisil.
Jeffer Mangels Butler & Mitchell, Michael J. Hassen and
Christopher H. Doyle for Defendant and Respondent Sand
Canyon Corporation.
——————————
Ron Hacker (Hacker), as successor trustee to the 1713
Stearns LaVerne Family Trust (Stearns), sued Homeward
Residential, Inc., (Homeward) formerly known as American
Home Mortgage Servicing, Inc. (AHMSI); Sand Canyon
Corporation, formerly known as Option One Mortgage
Corporation (Sand Canyon); Western Progressive, LLC (Western
Progressive); Deutsche Bank National Trust Company, as
Trustee for Soundview Home Loan Trust 2006-OPT 3, Asset-
Backed Certificates, Series 2006-OPT 3 (Deutsche Bank); Ocwen
Loan Servicing, LLC (Ocwen); Linda Greene; Brandy Berns; DOC
X; Larraine Brown; Vicki Pospisil; Wells Fargo Bank, N.A., as
Trustee for Option One Mortgage Loan Trust 2006-2 (Wells
Fargo); Power Default Services, Inc. (Power Default); T.D. Service
Company; AHMSI Default Services; and DOES 10 through 100
for claims arising from an allegedly void assignment of the deed
of trust (DOT) on real property located at 1713-1717 Stearns
Drive in Los Angeles, California (the property), and a failed short
sale agreement. The trial court sustained the demurrer by
Homeward, Deutsche Bank, Western Progressive, Ocwen, Wells
Fargo, Power Default, Brandy Berns, and Vicki Pospisil to all
causes of action; and the court sustained the demurrer by Sand
Canyon to the third through eighth causes of action.
The trial court also denied Hacker’s request for leave to
amend. On appeal, he contends he can amend his pleading to

2
allege causes of action for wrongful foreclosure, fraud, slander of
title, declaratory relief, unfair business practices, and
cancellation of instruments against Homeward, Deutsche Bank,
Western Progressive, Ocwen, Wells Fargo, Power Default,
Brandy Berns, Vicki Pospisil, and Sand Canyon.1
We find that the trial court abused its discretion in denying
leave to amend. We therefore reverse.
FACTUAL SUMMARY
In 2006, Marcia Chaissions (Chaissions) obtained an
$875,000 loan from Option One Mortgage Corporation (Option
One). The loan was secured by a deed of trust against the
property, which she acquired on February 2, 2006. On June 1,
2006, Option One transferred the loan to the Option One
Mortgage Loan Trust 2006-2 (Option One Trust), a securitized
investment trust, pursuant to a pooling and service agreement
(PSA), under which Wells Fargo functioned as trustee and Option
One as master servicer.
In December of 2007, Option One stopped originating new
mortgage loans but continued to service its extant loans. On
April 30, 2008, pursuant to a purchase and sale agreement dated
March 17, 2008, Option One legally changed its name to Sand
Canyon and sold its mortgage servicing portfolio to AHMSI.
On August 21, 2008, AHMSI assigned the DOT to Deutsche
Bank as trustee for the certificate holders of the Soundview
Home Loan Trust (Soundview Trust). On July 23, 2008, AHMSI

1 Sand Canyon filed a reply brief, and the remaining
respondents filed a separate reply brief. For the purpose of
brevity, we refer to the remaining respondents as Defendants.

3
Default Services, Inc. was named as the trustee on the DOT and,
on July 31, 2009, Power Default became the trustee on the DOT.
Chaissions defaulted on the loan and T.D. Service Company
recorded a notice of default on October 9, 2009. The notice
reflects that T.D. Service Company recorded the instrument “as
authorized agent for the beneficiary” and directed the borrower
(Chaissions) to contact Deutsche Bank, as trustee for the
Soundview Trust, care of AHMSI, if she wished to arrange
payment to prevent foreclosure. T.D. Service Company recorded
notices of trustee’s sale on January 11, 2010, June 20, 2011, and
January 12, 2012.2
On May 29, 2012, AHMSI’s name was changed to
Homeward Residential, Inc. On August 8, 2012, Marcia and
Dennis Chaissions (collectively, Chaissionses),3 Homeward, and
Stearns entered into a short sale agreement whereby Stearns
would purchase the property and Homeward would release the
loan. At the time, Estrelita Lane was the Stearns trustee and
she signed the agreement. The terms of the agreement required
the Chaissionses to deliver free and clear title to the property
before August 31, 2012. The agreement did not close because the
title company advised Stearns and the Chaissionses that there
were “questionable title documents” from the August 21, 2008
assignment and the subsequent substitutions of trustee, notice of
default, and notices of trustee’s sales.

2 The record is silent as to the why these trustee’s sales
either never took place or never resulted in a sale of the property.
3The record is silent as to how and when, but at some point
Marcia Chaissions’s son, Dennis, acquired an interest in the
property.

4
 On October 16, 2012, Lane filed a complaint against the
Chaissionses, AHMSI, Homeward, Deutsche Bank and others. In
her second amended complaint, she alleged multiple causes of
action stemming from the failed short sale agreement, which
included challenges to the August 21, 2008 assignment. On
November 20, 2014, the Chaissionses entered into an out-of-court
settlement agreement with Mark Meador, who had become the
successor trustee to Stearns. Under the agreement, Meador
would dismiss the entire action once the Chaissionses vacated the
property and transferred it to Stearns via a grant deed. On
January 29, 2015, the Chaissionses signed a grant deed, which
granted “any and all of their interest” in the property to Meador,
as trustee for Stearns. On December 18, 2015, Meador withdrew
the complaint and the action was dismissed without prejudice.
On February 12, 2015, Western Progressive was named as
trustee on the DOT. On August 10, 2015, Western Progressive
recorded a notice of default and election to sell under deed of
trust, directing the borrower to contact Deutsche Bank, as trustee
for the Soundview Trust, if the borrower wished to arrange for
payment in order to avoid foreclosure. Western Progressive
recorded a notice of trustee’s sale on January 19, 2016.
The Soundview Trust acquired the property at a foreclosure
sale on July 6, 2016; Western Progressive recorded the trustee’s
deed upon sale on July 13, 2016 at 8:00 a.m. Hacker’s grant deed
was recorded shortly thereafter on July 13, 2016; the record does
not indicate who requested the recording.
TRIAL COURT PROCEEDINGS
On February 19, 2016, Hacker filed a complaint against
AHMSI, Sand Canyon, Homeward, Western Progressive,
Deutsche Bank, Ocwen, Linda Green, Brandy Berns, and Doc X.

5
On April 4, 2016, Hacker filed a first amended complaint (FAC),
adding Larraine Brown, Vicki Pospisil, Wells Fargo Bank, Power
Default, T.D. Service Company, and AHMSI Default Services as
defendants. The FAC alleged causes of action for: (1) breach of
written contracts; (2) breach of the covenant of good faith and fair
dealing; (3) wrongful, improper and fraudulent trustee sale;
(4) fraud; (5) unfair business practices; (6) cancellation of void
instruments; (7) slander of title; (8) declaratory relief; and
(9) specific performance of contract. The first, second, and ninth
causes of action were premised on Hacker’s claim that
Respondents breached the terms of the DOT and short sale
agreement. The remaining causes of action challenged the
August 21, 2008 assignment of the DOT and subsequent recorded
instruments, which he alleged were “ ‘void’ ” and a “ ‘sham.’ ”
Defendants filed a demurrer on May 17, 2016 and Sand
Canyon filed a demurrer on May 19, 2016. On July 12, 2016,
Hacker filed an “opposition to demurrer of defendants AHMSI,
Inc.,” along with a declaration in which he informs that court
that Stearns acquired the property through a settlement
agreement “whereby the Cha[i]ssionses assigned us their all
rights [sic] they had affecting the property, including the
defendants and the [p]roperty itself by way of a Grant Deed to
the property signed and acknowledged on or about January 29,
2015.”4 In the opposition, Hacker requested leave to amend the
complaint in a brief paragraph that cites case law and statutory
authority, but does not introduce any facts to show the trial court

4
There is no indication in the record that AHMSI filed a
demurrer; in fact, as noted above, Hacker claims that AHMSI
changed its name to Homeward on May 29, 2012.

6
how he could have amended the complaint to state a valid cause
of action. Hacker contemporaneously filed a request for judicial
notice (RJN) of the November 20, 2014 settlement agreement, the
January 29, 2015 grant deed, the trial court’s summary of the
case, and the trustee’s deed upon sale.
Hacker filed his opposition to Defendants’ demurrer on
July 14, 2016, which included two requests for leave to amend.
The first appears in a brief paragraph wherein he alleges, “facts
have developed to warrant amendment, amendment should be
granted. Indeed, the very recent foreclosure has materially
affected the ‘standing’ argument trumpeted by Defendants.” The
second request appears toward the middle of the opposition and
merely repeats the same brief paragraph from the July 12, 2016
opposition in which he requests leave to amend. The opposition
to Homeward’s demurrer does not include any declarations and
does not mention the January 29, 2015 grant deed. Hacker filed
a second RJN in conjunction with the opposition to Homeward’s
demurrer in which he requests judicial notice of the same
documents that were the topic of his first request along with a
number of court documents from federal cases around the country
against Larraine Brown, AHMSI, Homeward, Sand Canyon, and
Ocwen.5 Hacker never opposed Sand Canyon’s demurrer.
On July 18, 2016, Defendants filed evidentiary objections,
including an objection to the admission of Hacker’s grant deed on
the grounds that it is hearsay; is irrelevant; did not meet the

5 The RJN also includes a letter of the Trustee’s Sale from
Homeward dated August 8, 2012 (listed as exhibit 11) and the
July 6, 2016 trustee’s deed upon sale (listed as exhibit 12).
Exhibit 11, however, is a copy of the short sale agreement and
exhibit 12 was never attached.

7
requirements under Evidence Code section 450 et seq.; and
“constitutes a default under the provisions of the loan documents,
as such transfer of interest in the loan and property requires the
lender’s consent and no such consent was given.”
On July 22, 2016, Hacker filed a motion for leave to amend
with a proposed second amended complaint attached. The
hearing on the motion for leave to amend was scheduled for
August 23, 2016.
The hearing on the demurrers took place on July 25, 2016.
The trial court sustained Defendants’ evidentiary objections,
granted judicial notice of the case summary and August 12, 2012
short sale agreement (incorrectly labeled “Homeward’s letter of
the Trustee’s Sale”), and denied Hacker’s RJN of all remaining
exhibits, including the grant deed. The trial court sustained the
demurrers to all causes of action without leave to amend; Hacker
subsequently took his motion for leave to amend off calendar.
Hacker now appeals, presenting two new facts in support of
causes of action for wrongful foreclosure and fraud. First, the
Chaissionses allegedly deeded the property to Stearns on
January 29, 2015; second, the property was sold at a foreclosure
auction on July 6, 2016. Hacker contends that these two facts
“converted [his] case into a wrongful foreclosure claim.” Hacker
also contends that he can state a cause of action for fraud, and
that his causes of action for unfair business practices,
cancellation of void instruments, slander of title, and declaratory
relief survive because they are derived from the wrongful
foreclosure claim.

8
 DISCUSSION
I. Standard of review
We independently review the ruling on a demurrer and
determine de novo whether the pleading alleges facts sufficient to
state a cause of action. (McCall v. PacifiCare of Cal., Inc. (2001)
25 Cal.4th 412, 415.) We “accept the truth of material facts
properly pleaded in the operative complaint, but not contentions,
deductions, or conclusions of fact or law.” (Yvanova v. New
Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.)
Where, as here, an appellant proposes facts and theories
that were not heard by the trial court, we determine whether the
trial court abused its discretion in denying leave to amend. (Code
Civ. Proc., § 472c, subd. (a); Connerly v. State of California (2014)
229 Cal.App.4th 457, 460 (Connerly).)6 In applying this
standard, we decide whether there is a “reasonable possibility”
the plaintiff can amend to state a cause of action. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) “The burden of proving such
reasonable possibility is squarely on the plaintiff.” (Ibid.) To
satisfy that burden on appeal, a plaintiff “must show in what
manner he can amend his complaint and how that amendment

6 In Connerly, the plaintiff raised a new legal theory on
appeal that was based on the same set of facts before the trial
court. (Connerly, supra, 229 Cal.App.4th at p. 462.) Here, as
discussed below, the trial court also had before it all the facts to
support Hacker’s new legal theory, but did not acknowledge one
of the most crucial among them: that Hacker allegedly had a
grant deed to demonstrate that he owned the property at the
time of the foreclosure. We therefore conclude that applying the
abuse of discretion standard to the trial court’s denial of leave to
amend is appropriate.

9
will change the legal effect of his pleading.” (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.)
II. The trial court properly sustained the demurrers to
all causes of action
The trial court found that Hacker lacked standing to
challenge the chain of assignments because: (1) the DOT
required the lender’s prior written consent before the borrower
could transfer her rights; (2) the short sale agreement prohibited
the Chaissionses from assigning the property to another party;
(3) the August 21, 2008 assignment was not void; and (4) Hacker
was not the owner of the property nor the borrower of the note
secured by the property. We find only the last rationale
persuasive; the trial court properly found that, in his FAC,
Hacker failed to allege facts establishing an ownership interest in
the property sufficient to confer standing.
A. THE DOT DID NOT PROHIBIT HACKER FROM CLAIMING
RIGHTS TO THE PROPERTY
The trial court found that Hacker could not claim rights as
the Chaissionses’ assignee because, under the DOT, “sale or
transfer of the borrower’s rights required prior written consent to
avoid acceleration of the entire debt.” This conclusion is
incorrect. The DOT includes a clause that states, “[i]f all or any
part of the Property or any interest in it is sold or
transferred . . . without Lender’s prior written consent, Lender
may, at its option, require immediate payment in full of all sums
secured by this Security Instrument.” This clause imposes no
sanctions upon the assignee; it merely gives the lender the option
to accelerate the entire debt if the borrower transferred the
property without prior written consent. Therefore, the terms of
the DOT did not nullify Hacker’s interest in the property.

10
 B. THE SHORT SALE AGREEMENT DID NOT PROHIBIT THE
CHAISSIONSES FROM ASSIGNING AN INTEREST IN THE PROPERTY
The trial court also found that the short sale agreement
“prohibited” assignment of the property to another party. The
short sale agreement was executed on August 12, 2012 and
expired on August 31, 2012 once it became evident that the
owner could not deliver free and clear title. By the time the
Chaissionses allegedly gave Hacker a grant deed on January 29,
2015, the short sale agreement no longer had any legal effect.
Therefore, the terms of the short sale agreement were not
operative in January of 2015 and have no bearing on the
Chaissionses ability to assign rights to the property more than
two years after the agreement had expired.
C. HACKER DID NOT ALLEGE THE DOT VIOLATED THE PSA
The trial court also found that Hacker lacked standing
because “to the extent that [he] contends that the [DOT] violated
the operative [PSA] related to the securitization of the loan
obligation, [Hacker] lacks standing because the assignment
would be merely voidable.”7

7 Under New York law, which governs the PSA,
unauthorized acts by a trustee are not void but voidable because
the trust’s beneficiaries can ratify any such acts. (Rajamin v.
Deutsche Bank Nat. Trust Co. (2d Cir. 2014) 757 F.3d 79, 90.)
And, in California, an action for wrongful foreclosure by a
borrower will not stand if the challenged assignment is merely
voidable, not void. (Yvanova v. New Century Mortgage Corp.,
supra, 62 Cal.4th at p. 923.) As discussed below, many courts in
New York and California have held that alleged violations of the
terms of a PSA are merely voidable and therefore do not confer
standing upon a plaintiff to pursue an action for wrongful
foreclosure.

11
 It appears the trial court misconstrued the nature of
Hacker’s challenge to the August 21, 2008 assignment. Hacker
did not allege that the parties violated the terms of the PSA nor
did he challenge any aspect of the securitization process whereby
the original mortgage owned by Option One was transferred to
the Option One Trust pursuant to the June 1, 2006 PSA. To the
contrary, Hacker has consistently maintained his position that
the Option One Trust maintained its ownership of the loan from
that date forward.
Hacker argues the subsequent assignment of the DOT on
August 21, 2008 is void, not merely voidable. Throughout the
FAC and the second amended complaint, Hacker claimed that the
August 21, 2008 assignment by AHMSI to the Soundview Trust,
which was conducted on behalf of Option One, was void because
Option One had already sold the Chaissionses’ loan to the Option
One Trust. Option One could not have conveyed the
Chaissionses’ loan to the Soundview Trust because it no longer
had any beneficial interest in the Chaissionses’ loan to convey.
This contention is not a challenge to the terms of the PSA.
D. BASED ON THE ALLEGATIONS IN THE FAC, THE TRIAL
COURT PROPERLY FOUND HACKER LACKED STANDING BECAUSE HE
DID NOT HAVE A SUFFICIENT OWNERSHIP INTEREST IN THE
PROPERTY
In the FAC, Hacker referred to himself as the “owner” of
the property but did not substantiate this claim by attaching the
grant deed or otherwise bringing it to the court’s attention.
Although he claimed ownership of the property via a grant deed
in his declaration attached to the July 12, 2014 opposition and
attached copies of it to two RJN’s, the trial court gave no
indication that it had considered this alleged documentary

12
support for Hacker’s ostensible ownership of the property.
Instead, the trial court focused on Hacker’s failure in the FAC to
establish that he was the owner of the property or the borrower of
the note securing the property. In addressing Hacker’s claim
that he obtained an “[a]ssignment of [r]ights” from the
Chaissionses, the court observed that “ ‘an estate in real
property . . . can be transferred only by deed or by operation of
law’ ” and “ ‘[t]itle passes by deed and not by assignment of the
deed to the assignee.’ ”
To the extent that the trial court confined its analysis to
the allegations in the FAC, the sustention of the demurrers as to
all causes of action was logical; Hacker failed there to plead an
ownership interest in the property sufficient to confer standing.
However, our analysis does not stop there. We must determine
whether the trial court’s denial of leave to amend fell within the
court’s reasonable discretion.
III. The trial court abused its discretion in denying leave
to amend
The trial court found that Hacker “fail[ed] to specifically
identify how amendment can cure the numerous defects
discussed above. In light of the numerous defects discussed
above, the Court finds that granting leave to amend would be
futile.”
As noted above, in his July 12, 2016 and July 14, 2016
oppositions to the demurrers, Hacker did not indicate with any
specificity how he could amend his complaint to state a cause of
action other than to say that “the very recent foreclosure has
materially affected the ‘standing’ argument trumpeted by

13
Defendants.”8 However, the trial court was on notice that Hacker
claimed to have owned the property. He presented the trial court
with evidence of his ownership by attempting to place in the
record the grant deed via both of his RJN’s, and by informing the
court in a declaration filed July 12, 2016 that he had received a
grant deed on January 29, 2015.
We therefore find the trial court abused its discretion in
denying leave to amend, as Hacker is the owner of the property
and has proposed facts that, if true, are sufficient to establish
that the August 21, 2008 assignment was void.
Hacker indicates that he would assert six causes of action
in a second amended complaint: wrongful foreclosure, fraud,
slander of title, declaratory relief, unfair business practices, and
cancellation of instruments. We find that Hacker has not shown
that he can amend the fraud cause of action to allege facts
sufficient to state a claim, but has pleaded facts sufficient to
establish causes of action for wrongful foreclosure and the
remaining actions that derive therefrom.
A. HACKER HAS STANDING TO BRING A CAUSE OF ACTION
FOR WRONGFUL FORECLOSURE
1. Hacker has proposed facts sufficient to show
that he was the owner of the property
Hacker obtained a grant deed from the Chaissionses on
January 29, 2015. The grant deed conveyed “any and all of [the

8Hacker raised specific, amendment-worthy facts in his
motion for leave to amend filed on July 22, 2016. However, as
noted above, the court never heard the motion as the hearing on
the motion was calendared for August 23, 2016 and the trial
court had already sustained the demurrers without leave to
amend at the July 25, 2016 hearing.

14
Chaissions’] interest” in the property to Mark Meador, as trustee
for Stearns. Such pleadings would be sufficient to establish a
colorable claim that Hacker was the owner of the property at the
time of the foreclosure on July 6, 2016.
Defendants argue that the circumstances surrounding the
grant deed are “suspicious.” In considering the merits of a
demurrer, however, “the facts alleged in the pleading are deemed
to be true, however improbable they may be.” (Del E. Webb Corp.
v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; see
Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) To
the extent that Defendants would challenge the validity of the
grant deed, such a challenge would constitute an issue of triable
fact, which is for the trier of fact to decide.9
2. Hacker has proposed facts sufficient, if true, to
show that the August 21, 2008 assignment was void
The Soundview Trust acquired the property via a
foreclosure sale on July 6, 2016. Hacker claims Soundview Trust
had no power to foreclose on the property because it was never
the true owner of the DOT.
As discussed above, respondents and the trial court have
misconstrued Hacker’s challenge to the August 21, 2008
assignment as an allegation that the assignment violated the
PSA. Were this case, the assignment would indeed be voidable
under New York and California law. A number of cases have
held that assignments which “allegedly breach[ ] a term or terms
of a PSA” are voidable rather than void because “the

9Defendants also contend Hacker has not shown that the
Chaissionses’ note was actually conveyed to the Option One
Trust. This is also an issue for the trier of fact to decide.

15
beneficiaries, not the borrower, have the right to ratify the
trustee’s unauthorized acts.” (Mendoza v. JPMorgan Chase
Bank, N.A. (2016) 6 Cal.App.5th 802, 812–813.) In contrast, an
assignment by a party that never possessed legal title to the
property is void. Hacker’s allegation is unequivocally of the
latter type.
In Sciarratta v. U.S. Bank National Assn. (2016) 247
Cal.App.4th 552 (Sciarratta), the plaintiff alleged that the
original owner of her DOT, JPMorgan Chase, assigned the DOT
to Deutsche Bank in April of 2009. (Id. at p. 557.) Chase then
purported to sell the DOT to Bank of America in November 2009.
(Ibid.) On the same day, Bank of America foreclosed and, as the
purported “ ‘foreclosing beneficiary,’ ” acquired the property via a
trustee’s deed upon sale. (Id. at p. 558.) The court found the
assignment to Bank of America void because it had already
assigned “ ‘all beneficial interest’ ” to Deutsche Bank months
earlier. (Id. at p. 564.)
Hacker’s factual allegations mirror those of the plaintiff in
Sciarratta. Hacker contends Option One sold all beneficial
interest in the property when it sold the mortgage to the Option
One Trust pursuant to the PSA on June 1, 2006. Two years later,
on August 21, 2008, AHMSI, as successor in interest to Option
One, executed an assignment of the DOT to Soundview Trust,
with Deutsche Bank as trustee. Hacker contends this
assignment was void because AHMSI had no legal authority to
convey an interest in property that it had already sold to the
Option One Trust.
We find that Hacker has successfully alleged facts
supporting a claim that the August 21, 2008 assignment is void.

16
As such, he has standing to pursue an action for wrongful
foreclosure.10

10 Sand Canyon alleged in its pleadings and at oral
argument that Hacker forfeited his right to allege any causes of
action against Sand Canyon because he did not oppose their
demurrer, request leave to amend as to them specifically, or
address their arguments on appeal. Sand Canyon relies on two
cases to support its position: In re S.B. (2004) 32 Cal.4th 1287,
and Sciarratta. In In re S.B., the California Supreme Court
noted that “the loss of the right to challenge a ruling on appeal
because of the failure to object in the trial court . . . is [a]
‘forfeiture,’ because a person who fails to preserve a claim forfeits
that claim.” (Id. at p. 1293, fn. 2.) Sciarratta observed that
ordinarily, when an appellant does not assert the court erred in
sustaining the demurrer to all causes of action, “any contentions
regarding the correctness of the trial court’s ruling sustaining the
demurrer to [the unaddressed] causes of action would be
abandoned.” (Sciarratta, supra, 247 Cal.App.4th at p. 568.)
Sciarratta supported this observation by quoting Ram v. OneWest
Bank, FSB (2015) 234 Cal.App.4th 1, which notes that “where [a]
demurrer [is] sustained without leave to amend, appellant’s
failure to raise arguments in connection with one of several
causes of action is deemed abandonment of that cause of action.”
(Ram, at p. 9, fn. 2, quoting Bagley v. International Harvester Co.
(1949) 91 Cal.App.2d 922, 926.)
These cases, however, address the failure of a plaintiff to
preserve the claim itself, not the failure to preserve a claim as to
a particular defendant. We find no support for the contention
that a plaintiff forfeits the right to amend a complaint against a
defendant who was named as a party to the original complaint
but was not thereafter named specifically in the pleadings
requesting leave to amend. Indeed, there is no prohibition
against the court allowing a party to amend a pleading to add a
new party to the action. “The court may, in furtherance of

17
 B. HACKER FAILS TO PROPOSE FACTS SUFFICIENT TO
SUSTAIN A CAUSE OF ACTION FOR FRAUD
With respect to the fraud claim, the trial court also found
that Hacker failed to allege any actual misrepresentation, failed
to plead facts with the specificity required to support a fraud
claim, and was barred by the three-year statute of limitations for
fraud.
We agree that Hacker is time-barred from pursuing a cause
of action for fraud. “An action for relief on the ground of
fraud . . . is not deemed to have accrued until the discovery, by
the aggrieved party, of the facts constituting the fraud.” (Code
Civ. Proc., § 338, subd. (d).) Hacker asserts that a cause of action
accrues when “the damage is complete,” and urges us to find that
his action for fraud accrued when the July 2016 foreclosure sale
took place. He attempts to support this argument by referencing
Miller v. Bechtel Corp. (1983) 33 Cal.3d 868 (Miller).
Hacker misconstrues Miller, supra, 33 Cal.3d 868, which
held that an action for fraud accrues when a plaintiff becomes
aware of facts that would cause a “reasonably prudent person” to
suspect fraud. (Id. at pp. 875–876.) An action for fraud,

justice, and on any terms as may be proper, allow a party to
amend any pleading or proceeding by adding or striking out the
name of any party.” (Code Civ. Proc., § 473, subd. (a)(1).) We
therefore see no reason to preclude Hacker from pursuing his
claim against all the defendants named in his FAC. If, as Sand
Canyon contends, Hacker cannot plead specific facts as to Sand
Canyon’s involvement in the allegedly void assignment, Sand
Canyon can make such an argument on remand. We make no
determination as to whether the facts regarding Sand Canyon’s
involvement ended before the contested conveyance occurred, as
this is a factual question for the trier of fact to determine.

18
therefore, does not accrue when the damage is “complete,” as
Hacker argues. The action accrues when a plaintiff first learns
that a fraud may have occurred, so long as he or she could have
confirmed the fraud through further investigation. (Ibid.) Miller
is thus inapposite.
Here, the action for fraud accrued in August of 2012, when
Estrelita Lane, prior trustee to Stearns, learned that there were
questionable title documents related to the August 21, 2008
assignment. Hacker is therefore time-barred from bringing an
action for fraud.
As we find this cause of action is time-barred by the three-
year statute of limitations, we need not address the trial court’s
findings that Hacker failed to allege any actual
misrepresentation or to plead facts with the specificity required
to support a fraud claim.
C. THE REMAINING CAUSES OF ACTION
Hacker alleges claims for slander of title, declaratory relief,
unfair business practices, and cancellation of instruments.
The trial court sustained the demurrers to these causes of
action because each of them was predicated on the challenge to
the August 21, 2008 assignment. As the trial court found Hacker
had no standing to challenge any of the assignments in the chain
of title, it followed that Hacker could not pursue these derivative
claims.
Here, we conclude that Hacker has standing to pursue his
claim for wrongful foreclosure. It follows that Hacker also has
standing to pursue the remaining claims that derive from his

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action for wrongful foreclosure. (Glaski v. Bank of America,
National Association (2013) 218 Cal.App.4th 1079, 1101.)11
DISPOSITION
The judgment is reversed. The trial court is directed to
grant Hacker leave to amend the complaint consistent with this
opinion. The parties are to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

BENDIX, J.

11 We express no views on the factual merits of Hacker’s
claims.

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