Tung v. 1132 Masonic CA1/5

Filed 6/30/16 Tung v. 1132 Masonic CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

JOHN LE TUNG, Plaintiff and Appellant, A144992 v. 1132 MASONIC, LLC, (Alameda County Super. Ct. No. RG14738214) Defendant and Respondent.

Appellant John Le Tung appeals from dismissal of his action following the trial court’s order sustaining without leave to amend a demurrer filed by respondent 1132 Masonic, LLC. We affirm. We also impose monetary sanctions on appellant and his counsel for this frivolous appeal. BACKGROUND In 2001, appellant commenced a development project at commercial property he owned on 12th Street in Oakland, California. (Tung v. California Mortgage & Realty, Inc. (Mar. 30, 2015, A140659) [nonpub. opn.] p. 1 (Tung I).)1 In the fall of 2005, appellant needed additional funding to complete the project. (Id. at pp. 1–2.) He transferred the property to a limited liability corporation that obtained a $5.75 million

1 We grant respondent’s unopposed December 3, 2015 request for judicial notice of the Tung I decision. (Cal. Rules of Court, Rule 8.54(c).) We deny respondent’s request for judicial notice of the remittitur issued in Tung I and the certificate of interested persons filed in that appeal, because reference to those materials is unnecessary to resolution of the current appeal.

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construction loan from CMR Mortgage Fund, LLC. (Id. at p. 2.) California Mortgage and Realty, Inc. (California Mortgage), was the lender’s broker for the 2005 loan. (Ibid.) Among other things, appellant secured the 2005 loan with a deed of trust to his residential property on Masonic Avenue in Albany, California. (Id. at p. 3.) Appellant’s limited liability corporation defaulted on the loan and, acting as trustee, California Mortgage sold and transferred the Masonic Avenue property to respondent in a foreclosure sale. In Tung I, Division Four of this court affirmed a trial court’s judgment denying appellant’s petition to vacate an arbitration award rejecting, among other things, appellant’s challenges to the validity of the foreclosure sale. (Tung I, supra, A140659, at pp. 1–3, 6–7.) In January 2015, appellant filed his first amended complaint (FAC) in the present case. Appellant asserted eight causes of action arising from the foreclosure sale of the Masonic Avenue property, including, among other things, wrongful foreclosure, fraud, and unjust enrichment. Appellant sought, among other things, cancellation of the sale and a judgment quieting title in the property in his favor. In addition to respondent, the FAC named a Lien Uy, who was respondent’s attorney in an unlawful detainer action, and asserted a legal malpractice claim against him alone. In February 2015, respondent demurred to the FAC. In March, the trial court sustained respondent’s “unopposed” demurrer without leave to amend on the ground that appellant “failed to allege facts sufficient to state a cause of action against Defendant 1132 Masonic, LLC.” The trial court granted a motion for sanctions filed by respondent and ordered appellant to pay respondent $2,500. The court entered a judgment of dismissal. This appeal followed. DISCUSSION “A demurrer tests the legal sufficiency of the complaint, and the granting of leave to amend involves the trial court’s discretion. Therefore, an appellate court employs two separate standards of review on appeal. [Citations.] First, the complaint is reviewed de novo to determine whether it contains sufficient facts to state a cause of action.