Freitas v. Clear Recon Corp CA1/1

Filed 12/8/21 Freitas v. Clear Recon Corp CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

JOHN B. FREITAS, Plaintiff and Appellant, A160762 v. CLEAR RECON CORP et al. , (Alameda County Super. Ct. No. HG18908688) Defendants and Respondents.

MEMORANDUM OPINION1 Plaintiff John B. Freitas appeals from a judgment entered after the trial court sustained demurrers to his third amended complaint without leave to amend. On this record, we affirm.2 I. BACKGROUND Plaintiff filed the complaint in this matter in 2018, asserting various causes of action arising from defendants’ alleged activities with regard to the servicing and modification of residential loans and nonjudicial foreclosure proceedings. While normally we would set forth the material facts based on

We resolve this case by memorandum opinion under California 1

Standards of Judicial Administration, section 8.1. The matter has been submitted. (Cal. Rules of Court, 2

rule 8.256(d)(1).)

the allegations of the operative complaint and matters we may judicially notice, our ability to do so here is limited by the fact that the third amended complaint does not appear in the record, nor do the demurrers of defendants Clear Recon Corp and Nationstar Mortgage LLC. From the record before us, we know that the trial court sustained demurrers to the third amended complaint as to both defendants without leave to amend on June 22, 2020, that dismissals were entered as to both defendants in July and August 2020, and that plaintiff timely appealed. II. DISCUSSION Plaintiff contends the trial court erred in sustaining defendants’ demurrers to his third amended complaint. “On appeal from an order of dismissal after an order sustaining a demurrer, the standard of review is de novo: we exercise our independent judgment about whether the complaint states a cause of action as a matter of law. [Citation.] First, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. Next, we treat the demurrer as admitting all material facts properly pleaded. Then we determine whether the complaint states facts sufficient to constitute a cause of action. [Citations.] [¶] We do not, however, assume the truth of contentions, deductions, or conclusions of law.” (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439–440.) We are “not bound by the trial court’s construction of the complaint.” (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.) Rather, we independently evaluate the complaint, construing it liberally. (Ibid.; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) It is a fundamental rule of “appellate review that a judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown.” (Foust v. San Jose Construction Co., Inc. (2011)