Cutlip v. Deutsche Bank Nat. Trust CA6

Filed 10/9/14 Cutlip v. Deutsche Bank Nat. Trust CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

WILLIAM J. CUTLIP, H039257 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 1-12-CV217452)

v.

DEUTSCHE BANK NATIONAL TRUST COMPANY, et al.,

Defendants and Respondents.

Plaintiff William Cutlip appeals from a judgment dismissing his action against defendants Deutsche Bank National Trust Company and Western Progressive LLC, which had foreclosed on his residence. On appeal, he contends that the superior court erred in sustaining defendants’ demurrer to his second amended complaint, which alleged quiet title, breach of contract, and “tortious interference with a contract.” We find no error and therefore must affirm the judgment. Background Because this appeal arises from the sustaining of a demurrer, our summary of the factual history is drawn primarily from the operative pleading, plaintiff’s second amended complaint. Toward this end “we accept as true the properly pleaded material factual allegations of the complaint, together with facts that may properly be judicially

noticed.” (Crowley v. Katleman (1994) 8 Cal.4th 666, 672; Moore v. Regents of 1 University of California (1990) 51 Cal.3d 120, 125.) On April 19, 2007, plaintiff executed a deed of trust and promissory note securing the loan on his residential property in Campbell. The lender was identified as Downey Savings and Loan Association, F.A. (Downey), and the trustee as DSL Service Company. Plaintiff initiated this action in propria persona on January 25, 2012, asserting 2 quiet title against only Downey. He had unsuccessfully pursued a loan modification and was then in default on the loan. On February 21, 2012, Western Progressive, LLC (Western Progressive), as “agent for [the] beneficiary,” recorded a notice of default on the property, listing $14,134.67 as the amount due. On March 19, 2012, Western 3 Progressive was substituted as trustee. By this time, Ocwen Loan Servicing, LLC was the servicer of the loan, and “Deutsche Bank National Trust Company, as Trustee for Harborview Mortgage Loan Trust Mortgage Pass-Through Certificates, Series 2007-7” (Deutsche Bank) was the beneficiary. Plaintiff filed his first amended complaint on March 29, 2012, this time naming Western Progressive and Deutsche Bank as defendants and alleging quiet title, breach of contract, and conversion of a negotiable instrument. The superior court sustained defendants’ demurrer with leave to amend, citing “uncertainty of the allegations” and the preemptive nature of the lawsuit. (See Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155 [refusing to recognize preemptive action to determine