California Court of Appeals, Third District, Butte
Certified for publication 5/29/13
APPEAL from judgments of dismissal of the Superior Court of Butte County, Sandra L. McLean, Judge, Super. Ct. No. 152324
United Law Center, John S. Sargentis, Stephan J. Foondos and Janet S. Manrique for Plaintiffs and Appellants.
Wolfe & Wyman, Brian H. Gunn, W. Brian Jones and Marcus T. Brown for Defendants and Respondents First Franklin Financial Corporation and Bank of America.
Hansen, Kohls, Sommer & Jacob, Jason J. Sommer and Jeffrey J.A. Hinrichsen for Defendant and Respondent Sacramento First Mortgage.
Plaintiffs Michael Fuller and Karen Gehrig, a married couple living in Oroville, initiated this action in November 2010 against First Franklin Financial Corporation (First Franklin), Bank of America, and Sacramento First Mortgage (SFM). SFM was plaintiffs’ loan broker, First Franklin was the original lender funding the purchase of their home in June 2006, and Bank of America is First Franklin’s successor in interest on the loan. In their fourth effort at stating a cause of action, under direction from the trial court “to provide further allegations of late discovery of the [actionable] facts, ” plaintiffs alleged defendants First Franklin and SFM, pursuant to a scheme of predatory lending, made material misrepresentations and fraudulent concealments of circumstances in the appraisal of the residence and in the terms of the loan in order to maximize their profit, which the plaintiffs did not discover until late 2009. Plaintiffs listed several counts (inexactly denominated “causes of action” (see Cullen v. Corwin (2012) 206 Cal.App.4th 1074, 1076, fn. 1)) that included theories of deceit, negligence, unfair business practices, and SFM’s breach of its fiduciary duty to them, and civil conspiracy (which is not an independent cause of action in any event but only a theory for establishing vicarious liability (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 557(1), p. 706 (Witkin)).
First Franklin and SFM separately demurred. Basing its January 2012 rulings on the statute of limitations, the trial court issued an order of dismissal in favor of First Franklin, and an order sustaining SFM’s demurrer as to all causes of action without leave to amend.
Plaintiffs filed notices of appeal from the two orders. SFM subsequently moved for judgment on the pleadings on the count of negligence. The trial court granted the motion for lack of opposition, and entered a judgment of dismissal as to SFM in June 2012. We deem the premature notice of appeal from the trial court’s order sustaining SFM’s demurrer to have been filed immediately after the subsequently entered judgment for SFM. (Cal. Rules of Court, rule 8.308(c); see In re Gray (2009) 179 Cal.App.4th 1189, 1197 [this court discusses equities in favor of deeming notice to be “premature” once record prepared and briefing completed after entry of judgment].)
Plaintiffs argue that they had sufficiently alleged delayed discovery of facts that defendants had purposely withheld from them in order to induce them to enter into the now defaulted loans. We agree. We shall thus reverse the judgments of dismissal with directions to overrule the demurrers.
FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
A. The Pleading at Issue
In an appeal from a judgment resulting from the sustaining of a demurrer without leave to amend, we assume the truth of well-pleaded factual allegations in the subject pleading, shorn of any legal conclusions. (Fogarty v. City of Chico (2007) 148 Cal.App.4th 537, 540 (Fogarty).)
Dennis Graves was an employee of SFM and purported to be a mortgage broker, but was in fact not licensed as a broker in California. SFM and its broker (Graves) were both agents of First Franklin, which comprehensively directed their conduct. First Franklin and SFM solicited the business of plaintiffs, who met with the ostensible broker at a real estate seminar. This resulted in ...