Opinion
G053029
05-16-2017
SURAT SINGH, Plaintiff and Appellant, v. BANK OF AMERICA, N.A., et al., Defendants and Respondents.
Fuchs Law Group, John R. Fuchs and Gail S. Gilfillan for Plaintiff and Appellant. McGuireWoods, Leslie M. Werlin and Alison V. Lippa for Defendants and Respondents Bank of America, N.A. and Countrywide Home Loans, Inc. McCarthy & Holthus and Melissa Robbins Coutts for Defendant and Respondent Quality Loan Service Corp. Wright, Finlay & Zak, Gwen H. Ribar and Marvin B. Adviento for Defendants and Respondents Select Portfolio Servicing, Inc., Mortgage Electronic Registration Systems, Inc., and Bank of New York Mellon.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2012-00540715) OPINION Appeal from a judgment of the Superior Court of Orange County, William D. Claster, Judge. Affirmed. Fuchs Law Group, John R. Fuchs and Gail S. Gilfillan for Plaintiff and Appellant. McGuireWoods, Leslie M. Werlin and Alison V. Lippa for Defendants and Respondents Bank of America, N.A. and Countrywide Home Loans, Inc. McCarthy & Holthus and Melissa Robbins Coutts for Defendant and Respondent Quality Loan Service Corp. Wright, Finlay & Zak, Gwen H. Ribar and Marvin B. Adviento for Defendants and Respondents Select Portfolio Servicing, Inc., Mortgage Electronic Registration Systems, Inc., and Bank of New York Mellon.
* * *
Plaintiff Surat Singh defaulted on a $1.1 million loan and sued various institutions for fraud, conspiracy to defraud, and other causes of action. He now appeals from a judgment entered following the sustaining of demurrers without leave to amend to his sixth amended complaint for conspiracy to defraud.
Singh contends the trial court improperly (1) made factual determinations; (2) ruled his action was barred by the applicable statute of limitations; (3) improperly dismissed causes of action alleged in prior complaints; and (4) denied further leave to amend. We conclude no error occurred.
Singh also argues this case should be remanded to the trial court to consider whether the California Supreme Court's recent decision in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 931, footnote 7 (Yvanova) gives him standing to contest the validity of the deed of trust in this action. On June 2, 2016, we denied Singh's motion for a remand or a stay requesting the same relief. Singh has not shown good cause for us to revisit our decision. Additionally, as will be shown, the issue is irrelevant in light of our conclusion Singh failed to state a cause of action for conspiracy to defraud. The judgment is affirmed.
I
FACTS
The following facts are taken from the operative (sixth amended) complaint, along with matters subject to judicial notice. A. Factual Background
In May 2005, Singh applied for and received approval for a $1.1 million loan from defendant SCME Mortgage Bankers, Inc. (SCME). He signed the final loan documents the next month. The loan was secured by a deed of trust, which designated defendant Mortgage Electronic Registration System (MERS) as the nominee beneficiary.
"MERS was formed by a consortium of residential mortgage lenders and investors to streamline the transfer of mortgage loans and thereby facilitate their securitization. A member lender may name MERS as mortgagee on a loan the member originates or owns; MERS acts solely as the lender's 'nominee,' having legal title but no beneficial interest in the loan. When a loan is assigned to another MERS member, MERS can execute the transfer by amending its electronic database. When the loan is assigned to a nonmember, MERS executes the assignment and ends its involvement." (Yvanova, supra, 62 Cal.4th at p. 931, fn.7.)
The deed of trust also included an adjustable rate rider indicating that while the interest rate would be 1.0 percent for the first year beginning August 2005 it could change the following year. Under its terms, the deed of trust secured the loan against the property, "TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances, and fixtures now or hereafter a part of the property."
The loan closed in late June 2005. The next month, Singh received a letter notifying him SCME had sold his loan to defendant Countrywide Home Loans, Inc. (Countrywide).
A year later, Singh learned his monthly payments would increase by 7.5 percent, beginning August 2006. Prior to then, he had "dutifully made his monthly payment of $3,538.03 . . . and thereafter made higher payments from 2006 through 2008, believing that he was paying down the principal balance of the loan, without ever having been told that interest was accruing at a rate substantially higher than 1% and that the accrued and unpaid interest was being added to the principal."
Singh alleged this fact in his third amended complaint but omitted it from subsequent complaints, claiming instead that he did not know the nature of his loan until 2009.
Also in 2006, Singh "decided to build a [second] residence on the . . . [p]roperty," and finished his "brand-new, three-bed, two-bath, four-car garage residence" in 2007. "In October 2007, there was a new appraisal on the [p]roperty that estimated the value of the [p]roperty with both residences at $2,200,000, or double the amount of the original [l]oan obtained by [Singh] two years earlier." At the end of 2008, Countrywide merged with defendant Bank of America, N.A. (BANA).
Singh fell behind on his payments and in February 2009, Countrywide informed him he owed over $14,000. Later that month, Singh agreed to a loan modification with an interest rate of 4.25 percent. Singh alleged that it was during discussions with Countrywide regarding the loan modification that he "discovered for the very first time" (underlining omitted) the loan he had been making payments on was not "a fixed-rate, fixed-payment [l]oan, [but] a Pay Option ARM [Alternative Rate Mortgage]."
Before "entering into the [l]oan [m]odification [a]greement . . . , [Singh] had learned that in each year from 2005 through 2008, his annual property taxes were increasing." "[S]tarting in 2008 . . . , [Singh] specifically advised Countrywide that he was contesting the [property] tax increase and was appealing those increases." Nevertheless, in 2011 and 2012, BANA "unilaterally," and "without any notice to" Singh, paid almost $65,000 in back taxes.
In 2011, however, BANA had "sold the [m]odified [l]oan to [defendant Bank of New York Mellon f/k/a (formerly known as) the Bank of New York, as trustee, on behalf of the holders of the CWALT, Inc. Alternative Loan Trust 2005-59, Mortgage Pass-Through Certificates, Series 2005-59 (Mellon)], and caused the [d]eed of [t]rust to have been assigned to Mellon, and transferred the servicing rights to SPS [defendant Select Portfolio Services, Inc.], all as of October 2011." In November, MERS recorded the assignment of the deed of trust, which transferred all beneficial interest under the deed of trust to Mellon.
In May 2014, defendant Quality Loan Service Corporation (QLS) substituted in as trustee under the deed of trust. It thereafter recorded a notice of default and election to sell, informing Singh he was in default for over $211,000 as of May 16, 2014. B. Procedural Background
Toward the end of January 2012, Singh sued BANA, Countrywide, MERS, and SCME for declaratory relief, fraud, breach of fiduciary duty, breach of good faith and fair dealing, defective and wrongful assignment, and quiet title. The trial court struck the complaint for being unverified and granted Singh 30 days leave to amend.
Thereafter, the trial court sustained in part and overruled in part demurrers to Singh's first amended complaint for negligence, breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, declaratory relief, elder abuse, and unfair business practices. As to fraud, the court ruled the cause of action was barred by the three-year statute of limitations (Code Civ. Proc., 338, subd. (d)) and failed to plead the essential facts with particularity.
All further statutory references are to the Code of Civil Procedure.
At the end of January 2013, Singh filed a second amended complaint, limiting it to four causes of action: negligence, fraud, elder abuse, and unfair business practices. The trial court sustained a demurrer to the negligence claim without leave to amend but overruled it as to the remaining causes of action.
In July 2014, the trial court granted Singh's motion for leave to amend, in which Singh argued he had new counsel and wanted to "properly include all claims and all [d]efendants." Singh's third amended complaint asserted causes of action for fraudulent misrepresentation, intentional concealment, conspiracy to defraud, breach of contract, elder abuse, unfair business practices, slander of title, violation of the Fair Credit Reporting Act; violation of the Rosenthal Fair Debt Collection Practices Act, intentional infliction of emotional distress, and negligent infliction of emotional distress. Singh also added QLS and SPS as defendants. In the fraud cause of action, Singh admitted that in "July 2006, more than a year after obtaining [the l]oan, [he] was informed of an increase in the monthly payment of 7.5% to $3,803.18 [from $3,538.03], and beginning in August 2006, [he] dutifully made his monthly payments in a timely manner . . . ."
The trial court sustained defendants' demurrers to all 11 causes of action but granted "one final opportunity to set forth viable claims" given this was Singh's new counsel's first pleading. As to fraudulent misrepresentation and intentional concealment, the court determined they were barred by the three-year statute of limitations inasmuch as the only "fraud" alleged arose out of the 2005 original loan transaction and Singh failed to plead facts showing delayed discovery. When his "payments began to rise" in 2006, Singh knew or should have known, of the alleged fraud. And because the fraud claims failed, so did the conspiracy to defraud cause of action, which was based on the alleged misrepresentations.
The fourth amended complaint contained seven causes of action: fraudulent misrepresentation, intentional concealment, conspiracy to defraud, breach of contract, unfair business practices, slander of title, and negligent infliction of emotional distress. This time, the trial court sustained defendants' demurrers to the fraudulent misrepresentation and intentional concealment causes of action without leave to amend on the grounds they were time-barred and failed to state sufficient facts. Although the court noted the conspiracy claim failed for the same reasons, it granted leave to amend to that and remaining causes of action.
In his fifth amended complaint, Singh realleged all but the fraudulent misrepresentation and concealment claims. Upon sustaining defendants' demurrers, the trial court granted leave to amend solely as to the cause of action for conspiracy to defraud. As it stood, that cause of action "fails to allege the underlying fraud with the requisite specificity, . . . appears barred by the applicable statute of limitations . . . , and . . . is uncertain as it pleads the underlying fraud claims for misrepresentations, constructive fraud and concealment in the same cause of action. [Thus, i]n order for this cause of action to survive the next round of demurrers, [Singh] must clearly spell out when the conspiracy was formed (including when each party supposedly joined the alleged conspiracy), how it was operated, exactly what fraudulent acts were part of the conspiracy (including how each act satisfies the elements of a fraud claim), and the dates of the specific acts which [Singh] contends saves this claim from being barred by the applicable statute of limitations. Merely affixing the label of fraud to everything that [Singh] claims to be unfair will not be sufficient."
The sixth amended complaint became the operative complaint. Although the complaint alleged only a single cause of action for conspiracy to defraud, it contained all of the allegations related to the previously dismissed causes of action. The trial court sustained demurrers to that cause of action again but this time without leave to amend on the grounds Singh "fail[ed] to allege the underlying fraud with the requisite specificity, the cause of action is barred by the applicable statute of limitations, the claim is uncertain and it fails to adequately allege the formation and operation of the conspiracy." Among other things, the court found Singh's allegations in the third amended complaint that he was informed in July 2006 his monthly payment was being increased by 7.5 percent placed him "on notice then that the loan was not a fixed rate," making "the claims arising from the loan origination . . . barred by operation of [section] 338."
The trial court also addressed Singh's assertion of a "conspiracy to defraud is based upon [his] claim that the assignment of the [d]eed of [t]rust and all following non-judicial foreclosure instruments were void or voidable." It reiterated its prior rulings that Singh did not have standing to challenge the assignment.
Finally, as to leave to amend, the court noted Singh had "seven opportunities to successfully plead a cause of action" and had not "specifically identif[ied] how the 6AC can be further amended to cure the identified defects, especially as to the lack of reasonable reliance and the defense of [the] statute of limitations." It concluded, "Given the large number of unsuccessful attempts to plead a claim and the lack of any further proposed amendments, a reasonable presumption arises that [Singh] has pled the best case he can." The court entered a judgment of dismissal in December 2015 and Singh appealed the following month.
In February 2016, the California Supreme Court decided Yvanova, supra, 62 Cal.4th 919. There, the court concluded that, where an assignment of a deed of trust is void, as opposed to being merely voidable, "[a] foreclosed-upon [home loan] borrower" (id. at p. 937) "has standing to claim a nonjudicial foreclosure was wrongful" (id. at p. 942). This is "because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriv[es] the foreclosing party of any legitimate authority to order a trustee's sale." (Ibid.)
Despite acknowledging Yvanova declined to consider whether a borrower has such standing before the completion of a foreclosure, Singh filed a motion on appeal for remand or a stay in this court based on Lundy v. Selene Fin. L.P. (N.D. Cal. Mar. 17, 2016, No. 15-cv-05676-JST) 2016 WL 1059423. Lundy predicted the California Supreme Court would conclude such a borrower had standing. (Id. at p. *10.) Singh pointed out this issue was then currently before the California Supreme Court in Keshtgar v. U.S. Bank. N.A. (2014) 226 Cal.App.4th 1201, review granted Oct. 1, 2014, No. S220012, and asked this court to remand this matter "to the trial court with instructions to overrule the last demurrer and allow the issue of [his] standing to challenge the validity of the [a]ssignment of the [d]eed of [t]rust, before the foreclosure is completed, to be litigated and decided." In the alternative, Singh requested an order staying the appeal and any foreclosure proceeding pending a decision in Keshtgar. On April 27, 2016, Keshtgar transferred the cause back to the Court of Appeal to reconsider its decision in light of Yvanova. (Keshtgar v. U.S. Bank, N.A. (2016) 368 P.3d 921.) On June 2, 2016, we denied the motion.
II
DISCUSSION
A. Standard of Review
"A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the superior court's ruling on a demurrer and determine de novo whether the complaint alleges facts sufficient to state a cause of action or discloses a complete defense. [Citations.] We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. [Citations.] We liberally construe the pleading with a view to substantial justice between the parties. [Citations.] The application of a statute of limitations based on facts alleged in the complaint is a legal question subject to de novo review. [Citation.]" (Gilkyson v. Disney Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1340.)
When a demurrer is sustained without leave to amend, "we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff. [Citation.]" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) B. Appropriateness of Order Sustaining Demurrer
Singh contends the trial court erred in sustaining without leave to amend defendants' demurrers to the single cause of action for conspiracy to defraud in the sixth amended complaint. He asserts the court erroneously failed to "accept the well-pleaded allegations of the complaint as true" and made improper factual findings in sustaining defendants' demurrers to the six amended and prior complaint, that the causes of action alleged "had accrued more than three years before this action was filed." Additionally, Singh argues he sufficiently alleged the last overt act occurred within the statute of limitations period. He cites (1) BANA's "illegal[]" payment of his property taxes; (2) threats by a BANA officer "in 2011[] to ruin [his] credit and foreclose on his [p]roperty if he refused to pay the 50% increase in his loan payment"; and (3) "the recordation of a . . . fraudulent[] . . . [n]otice of [d]efault on May 19, 2014."
We are not persuaded. Singh failed to allege sufficient facts to state a cause of action for conspiracy to defraud. The claim was also barred by the three-year statute of limitations under section 338, subdivision (d), and the doctrines of delayed discovery and last overt act does not apply.
1. Sufficiency of Allegations
Under California law, "'there is no separate tort of civil conspiracy, and there is no civil action for conspiracy to commit a recognized tort unless the wrongful act itself is committed and damage results therefrom.' [Citation.]" (Mehrtash v. Mehrtash (2001) 93 Cal.App.4th 75, 82.) "'Conspiracy is not an independent cause of action, but rather a doctrine imposing liability for a tort upon those involved in its commission.' [Citation.] Thus, liability for a conspiracy 'must be activated by the commission of an actual tort.' [Citation.] For example, in a claim for intentional misrepresentation, where one defendant 'A' 'alone made representations, the plaintiff can hold [other defendants (B and C)] liable with A only by alleging and proving that A acted pursuant to an agreement (conspiracy) with B and C to defraud. Thus, the purpose of the [conspiracy] allegation is to establish the liability of B and C as joint tortfeasors regardless of whether either was a direct participant in the wrongful act.' [Citation.]" (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1172 (Daniels).)
"To allege a conspiracy, a plaintiff must plead '(1) formation and operation of the conspiracy and (2) damage resulting to plaintiff (3) from a wrongful act done in furtherance of the common design.' [Citation.]" (Daniels, supra, 246 Cal.App.4th at p. 1173.) "[F]acts must be alleged" as to each element (117 Sales Corp. v. Olsen (1978) 80 Cal.App.3d 645, 649) and "bare legal conclusions, inferences, generalities, presumptions, and conclusions are insufficient." (Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509, 521.) "The conspiring defendants must also have actual knowledge that a tort is planned and concur in the tortious scheme with knowledge of its unlawful purpose." (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1582 (Kidron).) Even "actual knowledge of the planned tort, without more, is insufficient to serve as the basis for a conspiracy claim. Knowledge of the planned tort must be combined with intent to aid in its commission." (Ibid.)
Here, although Singh cites a number of wrongful acts, he fails to allege facts showing the formation and operation of a conspiracy. He seeks to hold SCME, Countrywide, BANA, MERS, Mellon, SPS, and QLS jointly liable for the alleged misrepresentations made by SCME. Thus, the question to be decided is whether SCME's misrepresentations were made pursuant to an agreement among all defendants to defraud Singh. The operative complaint contains no facts showing such an agreement was made.
Singh contends he "alleged in detail that the conspiracy was actually formed in 2004, between SCME and Countrywide, that it [sic] defrauded [him] in refusing to provide a copy of the loan documents and thereby concealing the actual terms of the [l]oan in 2005 . . . that BANA joined the conspiracy when Countrywide was merged into BANA in 2009," while "Mellon and SPS joined the conspiracy in 2011." Singh makes no argument with regard to QLS. It appears QLS's only participation in this matter was its recordation in May 2014 of the notice of default and election to sell on behalf of Mellon.
Although Singh's opening brief asserts the merger happened in 2009, the operative complaint states the merger occurred in late 2008.
"Critically, [Singh] do[es] not allege that [BANA, MERS, Mellon, SPS, and QLS] agreed to defraud [him] before the alleged misrepresentations were made . . . . Nor can we reasonably infer from the facts alleged that [they] agreed to defraud [Singh] before the misrepresentations were made, since" they did not become involved until long after the alleged misrepresentations were made in 2005. (Daniels, supra, 246 Cal.App.4th at p. 1173 [demurrer properly sustained without leave to amend where the plaintiffs failed to allege the defendants agreed to defraud them before alleged misrepresentations were made].)
The facts are otherwise in Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773 (Wyatt). There, the defendants consisted of two affiliated corporations (Stockton and Union), a servicing agent and its predecessor (Western and Secured), the principal and controlling shareholder of all four corporations (Tushner), his sister and his former wife, and the president of Western and Secured. (Id. at p. 779.) Wyatt concluded substantial evidence of a conspiracy existed based on the following: "First, evidence was introduced at trial to show it was company policy to lure potential borrowers such as respondents into their offices through misleading 'bait and switch' advertising. Secondly, on several occasions, appellant Tushner instructed other company officials that 'late charges were a great source of income,' and that 'it had been a policy of the company that if the first payment was late, all the rest of the payments would automatically be late.' [¶] The record further discloses a tightly knit, family-oriented business operation under appellant Tushner's close personal control. Tushner owned all or a controlling interest in each of the affiliated corporations. Each of the other individual appellants was an officer or director of one or more of the corporations and each was active in some management position at some time during the years when the conspiracy is alleged to have occurred. [¶] Finally, all the headquarters offices of appellant corporations were in the same building. The first loan papers signed by respondents at Stockton's Sacramento office included a deed of trust containing printed instructions that, when recorded, the deed should be mailed to 'Union Home Mortgage Company.' Soon after the loan papers were negotiated, a letter was sent to respondents on the letterhead of 'Union Home Loans.' The letter instructed respondents to mail all payments to Secured Investment Corporation in Los Angeles. The procedure on the second loan was similar, except that payments were mailed to Western Computer Services." (Id. at pp. 785-786.)
No similar facts exist in this case. Singh failed to plead sufficient facts to state a cause of action for civil conspiracy to defraud.
2. Bar of Statute of Limitations
Singh's conspiracy to defraud cause of action is also time-barred. When a complaint alleges a conspiracy based upon fraud, the action is accordingly governed by section 338, which sets forth a three-year period of limitations. (Filice v. Boccardo (1962) 210 Cal.App.2d 843, 846; see Aaroe v. First American Title Ins. Co. (1990) 222 Cal.App.3d 124, 128.)
"Generally speaking, a cause of action accrues at 'the time when the cause of action is complete with all of its elements.' [Citations.] An important exception to the general rule of accrual is the 'discovery rule,' which postpones accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action. [Citations.]" (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807 (Fox).) A plaintiff discovers the relevant facts when he or she "suspected or should have suspected that an injury was caused by wrongdoing. The statute of limitations begins to run when the plaintiff has information which would put a reasonable person on inquiry." (Kline v. Turner (2001) 87 Cal.App.4th 1369, 1374, italics added.) Under the discovery rule, the limitations period begins to run when the circumstances are sufficient to raise a suspicion of wrongdoing, i.e., when a plaintiff has notice or information of circumstances sufficient to put a reasonable person on inquiry. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1111 (Jolly).) The "plaintiff need not be aware of the specific 'facts' necessary to establish the claim" (id. at p. 1111), and "ignorance of the legal significance of known facts or the identity of the wrongdoer will not delay the running of the statute" (id. at p. 1112, fn. 8).
Here, Singh alleged that in June 2005, he was "fraudulently induced to sign a Pay Option ARM [Alternative Rate Mortgage]" instead of "the conventional fixed-rate loan at a fixed interest rate of 1%, for which he had been approved and which he believed he was being given." Singh's third amended complaint alleged that "[i]n or about July 2006, more than a year after obtaining this [l]oan, [he] was informed of an increase in the monthly payment of 7.5 % to $3,803.38 [from $3,538.03], and beginning in August 2006, [he] dutifully made his monthly payments in a timely manner . . . ." The 7.5 percent increase in his monthly payments was sufficient to put a reasonable person on inquiry. When that happened, Singh knew or should have suspected wrongdoing if he believed his interest rate was set at one percent but one year after obtaining his loan his monthly payments increased by almost $300. As such, Singh's conspiracy to defraud cause of action began to accrue at the time. His original complaint was not filed until January 27, 2012, five and a half years later. The trial court properly concluded the claim was time-barred as a matter of law under section 338, subdivision (d).
Singh attempts to avail himself of the delayed discovery rule, which provides that a cause of action for fraud "is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud." (§ 338, subd. (d).) He asserts the trial court was obligated to accept the truth of his allegation in the sixth amended complaint that he did not "discover the fraud until February 2009, when his loan was modified."
But this argument ignores the allegation made in Singh's third amended complaint showing he knew or should have known of the purported fraud when his monthly payments increased by 7.5 percent. The omission of this allegation from subsequent complaints including the sixth amended complaint does not bar us from taking judicial notice of it.
"[A] party [may not] file[] an amended complaint and seek[] to avoid the defects of a prior complaint either by omitting the facts that rendered the complaint defective or by pleading facts inconsistent with the allegations of prior pleadings. [Citations.]" (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 384.) "'Under the sham-pleading doctrine, admissions in an original complaint that has been superseded by an amended pleading remain within the court's cognizance and the alteration of such statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff's case will not be accepted. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426, fn. 3 [if a party files an amended pleading and attempts to avoid defects of original complaint by either omitting facts that rendered prior complaint defective or adding facts inconsistent with prior allegations, court may take judicial notice of prior pleadings and disregard inconsistent allegations or read into amended complaint the allegations of the superseded complaint.]; [citation].)' [Citation.]" (Lockton v. O'Rourke (2010) 184 Cal.App.4th 1051, 1061.)
The trial court properly took judicial notice of Singh's allegation in the third amended complaint admitting that he knew as of July 2006 that his monthly payments had increased by 7.5 percent and nevertheless paid the increased amount. Singh cannot avoid this admission by omitting it from subsequent complaints and the delayed discovery rule does not apply.
Singh also argues the accrual of a cause of action is a factual question, which may only be decided as a matter of law if "the allegations in the complaint and facts properly subject to judicial notice[] can support only one reasonable conclusion." (Broberg v. The Guardian Life Ins. Co. of America (2009) 171 Cal.App.4th 912, 921.) The California Supreme Court, however, has held that where an "appeal follows the sustaining of a demurrer[, t]he application of the statute of limitations on undisputed facts is a purely legal question [citation] . . . tak[ing] the allegations of the operative complaint as true[, we must] consider whether the facts alleged establish [the plaintiff's] claim is barred as a matter of law. [Citation.]" (Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191, citing Jolly, supra, 44 Cal.3d at p. 1112 ["While resolution of the statute of limitations issue is normally a question of fact, where the uncontradicted facts established through discovery are susceptible of only one legitimate inference, summary judgment is proper"]; Fox, supra, 35 Cal.4th at pp. 810-811 [explaining that unlike Jolly (on which Broberg relied, and other cases involving "appeals from summary judgments on the statute of limitations defense," in appeals from judgments of dismissals following the sustaining of a demurrer without leave to amend, "we must assume to be true Fox's allegations"].) Viewing the operative complaint under this standard, along with the judicially noticeable allegations in the third amended complaint, we conclude as a matter of law that Singh's cause of action for conspiracy to defraud is barred by the three-year limitations period under section 338, subdivision (d).
Having determined the trial court did not make factual determinations, but based its rulings on judicially noticeable matters, we reject Singh's request that we "direct the trial court to vacate its ruling sustaining [d]efendants' demurrers without leave to amend and overrule these demurrers."
In a further attempt to avoid the bar of the statute of limitations, Singh contends the last overt act doctrine applies to bring the conspiracy to defraud cause of action within the limitations period. The "'last overt act' doctrine" provides that "when a civil conspiracy is properly alleged and proved, the statute of limitations does not begin to run on any part of a plaintiff's claims until the 'last overt act' pursuant to the conspiracy has been completed." (Wyatt, supra, 24 Cal.3d at p. 786, italics added.) Inasmuch as we have already determined Singh failed to properly allege a cause of action for civil conspiracy to defraud, he cannot rely on the last overt act doctrine to toll the applicable statute of limitations. (Cf. ibid. [last overt doctrine applies where civil conspiracy is properly alleged and proved].) Thus, whether Singh has standing to challenge the allegedly fraudulent assignment of the deed of trust to Mellon in light of Yvanova, supra, 62 Cal.4th 919, in order to show "yet another overt act in the furtherance of the conspiracy to defraud" him, is irrelevant. C. Leave to Amend
In any event, the acts cited by Singh do not qualify as overt acts because they were done after the primary purpose of the alleged conspiracy had been realized—to induce Singh to sign what he believed to be "a conventional fixed-interest loan at a rate of 1%, with fixed month payments," when it "was actually a negative-amortization Pay Option Adjustable Rate Mortgage (the 'Pay Option ARM'), with a 1% 'teaser rate.'" "'[A]cts committed by conspirators subsequent to the completion of the crime which is the primary object of the conspiracy cannot be deemed to be overt acts in furtherance of that conspiracy. Consequently, upon successful attainment of the substantive offense which is the primary object of the conspiracy, the period of the statute of limitations for the conspiracy begins to run at the same time as for the substantive offense itself.' [Citations.]" (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419.)
Singh's arguments do not meet the standard for demonstrating an abuse of discretion by the trial court in denying him yet another opportunity to amend the operative complaint. As explained above, when determining whether the court abused its discretion by sustaining a demurrer without leave to amend, "[t]he burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) Singh failed to make any showing of how the operative complaint could be amended to state a cause of action. He merely "requests leave to amend." That is insufficient.
Additionally, Singh has forfeited his argument that all "causes of action affected by the forged [a]ssignment" should be reinstated because his opening brief failed to provide any legal authority or reasoned argument, or identify which causes of action or, for that matter, which amended complaint he is referring. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) Although Singh's reply brief discusses the fourth amended complaint's causes of action for fraudulent misrepresentation, concealment and conspiracy and the fifth amended complaint's causes of action for breach of contract and slander of title, "we will not address arguments raised for the first time in the reply brief" (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295) "'because such consideration would deprive the respondent of an opportunity to counter the argument.'" (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
III
DISPOSITION
The judgment is affirmed. Defendants shall recover their costs on appeal.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. THOMPSON, J.