Rector v. JP Morgan  Chase Bank

 

 

 

 

 

 

 

 

 

 

Filed 6/11/13 
Rector v. JP Morgan  Chase Bank
CA5

 

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
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CHANNON W. RECTOR,   Plaintiff and Appellant,                           v.   JPMORGAN CHASE BANK, N.A.,   Defendant and Respondent.

F065588   (Super. Ct. No. CV002099)     >OPINION

 

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Merced
County.  Donald J. Proietti, Judge.

            Channon W.
Rector, in pro. per., for Plaintiff and Appellant.

            Wargo &
French, Mark Block, Shanon J. McGinnis and Jeffrey N. Williams for
Defendant and Respondent.

-ooOoo-

Appellant
filed a quiet title action against respondent. 
Respondent’s demurrer was sustained with leave to amend.  Appellant filed a href="http://www.fearnotlaw.com/">first amended complaint that was
substantially identical to the original complaint and did not file any
opposition to respondent’s demurrer to the first amended complaint.href="#_ftn2" name="_ftnref2" title="">^[1]  The court sustained respondent’s demurrer to
the first amended complaint without leave to amend.  This appeal followed.

>DISCUSSION

We review an order sustaining a
general demurrer de novo to determine whether the complaint alleges facts
sufficient to state a cause of action.  (>Fremont Indemnity Co. v. Fremont General
Corp. (2007) 148 Cal.App.4th 97, 111.)

In order to state a cause of action
to quiet title, a verified complaint must include the following:  (a) a description of the property that
is the subject of the action, (b) the plaintiff’s title and the basis of
the title, (c) the adverse claims to the title, (d) the date as of
which the determination is sought, and (e) a prayer for the determination
of the title of the plaintiff against the adverse claims.  (Code Civ. Proc., § 761.020.href="#_ftn3" name="_ftnref3" title="">^[2])

Both appellant’s original complaint
and his first amended complaint failed to allege appellant’s title and the basis
of the title as required by section 761.020, subdivision (b).  This was the basis of respondent’s
demurrer.  Appellant did not file any
written opposition, and the trial court properly sustained the demurrer.

The remaining question is whether
further leave to amend should have been granted.  We review this under the abuse of discretion
standard.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)  An abuse occurs if there is a reasonable
possibility that the pleading defect can be cured by amendment.  The burden of proving such is squarely on the
plaintiff.  (Ibid.)

We find no abuse of discretion
here.  The original complaint failed to
state a cause of action to quiet title because it failed to allege appellant’s
title and the basis of the title.  The
original demurrer was sustained with leave to amend.  Appellant filed a first amended complaint,
but did not cure the defect. 
Furthermore, when respondent demurred to the first amended complaint,
appellant did not file any written opposition. 
Appellant has not carried his burden of showing that there is a
reasonable possibility that he can cure the defect by amendment.  Thus, there has been no abuse of discretion
in sustaining the demurrer to the first
amended complaint without leave to amend.

>DISPOSITION

The judgment of the trial court is
affirmed.