Smith v. County of Alameda CA1/3

Filed 3/30/15 Smith v. County of Alameda CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

VAN SMITH, as Administrator, etc., Plaintiff and Appellant, A142436 v. COUNTY OF ALAMEDA, (Alameda County Super. Ct. No. RG13689329) Defendant and Respondent.

Plaintiff Van Smith, in his capacity as the “Administrator of the Jerlyn L. Smith Trust,” appeals in propria persona from a judgment of dismissal after the trial court sustained a demurrer without leave to amend. Smith claims that defendant County of Alameda (County) wrongfully recorded a deed that was not in proper form, resulting in the loss of property formerly owned by the trust. In fact, judicially noticeable documents confirm that the property was sold in a foreclosure sale and that the County properly fulfilled its ministerial function to record the deed reflecting the sale. We affirm the judgment of dismissal. FACTUAL AND PROCEDURAL BACKGROUND This case concerns a parcel of real property located in Oakland (the property). The property was formerly owned by the Jerlyn L. Smith Trust but was sold in a foreclosure sale at a public auction in November 2012. This turn of events has prompted Smith to file multiple legal actions against the County challenging the recordation of the deed in an apparent attempt to undo the effect of the foreclosure sale.

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Smith’s first complaint against the County challenging the recordation of deeds was filed in July 2013 in case number RG13687543 (Smith I). In an amended complaint filed in Smith I, Smith alleged “wrongful cancellation of deed #2012413977” as the sole cause of action. Smith also sought to apply Government Code section 27203.5, which allows an aggrieved party to recover treble damages when the County Recorder willfully and maliciously commits certain acts, such as altering records or refusing to record an instrument. (See Gov. Code, § 27203.) The County moved for judgment on the pleadings in Smith I and sought judicial notice of instrument number 2012413977, which is a “trustee’s deed upon sale” recorded in December 2012 that reflects the property had been sold in a foreclosure sale in November 2012. The court granted the motion for judgment on the pleadings and dismissed the action, noting there was no allegation the County engaged in any wrongful act or that any of its agents or employees violated Government Code section 27203.5. Judgment was entered in Smith I in February 2014. Shortly after Smith filed his original lawsuit in Smith I, he filed a nearly identical lawsuit in case number RG13689329 in his capacity as administrator of the Jerlyn L. Smith Trust. He alleged “wrongful cancellation of deed #2012413977,” purported to assert a cause of action for “intentional tort,” sought punitive damages, and asked to apply Government Code section 27203.5. In his capacity as administrator of the Jerlyn L. Smith Trust, Smith filed five additional lawsuits against the County premised upon similar allegations concerning the recording of deeds. In April 2014, the trial court ordered all six pending cases consolidated, directed that case number RG13689329 be the lead case, and directed all subsequent filings to be filed in that case only. The court noted that judgment had previously been entered in Smith I, which was not consolidated with the other six cases. The court ordered Smith to file a single complaint—to be denominated the third amended complaint—encompassing all of his claims. Smith filed the operative, third amended complaint (hereafter complaint) against the County on May 14, 2014. The only allegation of wrongdoing by the County was its purported general negligence “in recording Instrument #2012413977.” Smith alleged the