Finley v. First American Title Ins. Co.

















Filed 11/4/10 Finley v. First American Title Ins. Co. CA1/4







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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



FIRST APPELLATE
DISTRICT



DIVISION FOUR




>

LINCOLN FINLEY et al., Plaintiffs and Appellants, v. FIRST AMERICAN TITLE INSURANCE COMPANY, Defendant and Respondent.

A126944 (Alameda County Super. Ct. No. RG08401237)

Appellants
Lincoln and Latonya Finley (the Finleys), who are self-represented, sued
respondent First American Title Insurance Company (First American), in
connection with a title insurance policy.
The trial court sustained First American's demurrer to the Finleys'
fourth amended complaint without leave
to amend. We affirm.

Factual and procedural background

As this
appeal arises from an order sustaining a demurrer, we assume, solely for the
purpose of determining whether the complaint stated a cause of action, that the
facts pleaded in the complaint are true.
(Schifando v. City of Los Angeles
(2003) 31 Cal.4th 1074, 1081.) When
the trial court considered First American's demurrer to the Finleys' fourth
amended complaint, it granted the Finleys' request to take judicial notice of
the allegations of the Finleys' second amended complaint. We shall do likewise.

From the
allegations of the Finleys' second and fourth amended complaints, it appears
that the Finleys purchased a parcel of property in Alameda County from another
couple, John and Laura Halliday (the Hallidays), who, in turn, extended a loan
to the Finleys for some portion of the purchase price. The Hallidays agreed to subordinate their loan
to a construction loan that the Finleys intended to obtain in order to
construct a four-unit residential building on the property. However, the Hallidays did not execute a
subordination agreement prior to the close of escrow.

First
American prepared a preliminary title report and issued a title insurance
policy to the Finleys in connection with the purchase. The Finleys allege that there were several
defects in the title that they obtained from the Hallidays, and that First
American failed to discover the title defects and disclose them to the Finleys
in the preliminary title report. The
Finleys also allege that First American failed to pay the claim under the title
insurance policy that they filed after learning that the Hallidays had not
executed the subordination agreement.

The Finleys
filed their initial complaint against First American on July 30, 2008.
First American demurred, and the Finleys filed an amended
complaint. This process was repeated
until the Finleys filed their fourth amended complaint on August 10, 2009. On October
30, 2009, the trial court sustained First American's demurrer to
the fourth amended complaint, this time without leave to amend. The Finleys then filed this appeal.

discussion

A. Appeal from Order Sustaining Demurrer

Preliminarily,
we note that the Finleys have appealed from an unappealable order. â€