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1 Ronald L. Richman (SBN 139189)
BULLIVANT HOUSER BAILEY PC
2 101 Montgomery Street, Suite 2600
San Francisco, CA 94104-4146
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Telephone: 415.352.2700
4 Facsimile: 415.352.2701
E-mail: ron.richman@bullivant.com
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Attorneys for Defendants and Cross-complainants
6 ARNOLD WENYON and DESIREE A. WENYON,
7 as Incumbent Trustees of the Wenyon Living Trust
Under Declaration Dated July 26, 2004 (sued herein as
8 DOE 21 and DOE 22)
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10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF NAPA
12
13 GERALD L. NUNN and JUDITH L. NUNN, Case No.: 26-56767
14 Plaintiffs, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
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v. DEFENDANTS AND
16 CROSS-COMPLAINANTS ARNOLD
J.P. MORGAN CHASE & COMPANY, a New WENYON AND DESIREE A. WENYON,
17 York Corporation purported successor in AS INCUMBENT TRUSTEES OF THE
interest to WASHINGTON MUTUAL WENYON LIVING TRUST UNDER
18 BANK F.A., a Washington Corporation; DECLARATION DATED JULY 24, 2004
19 CALIFORNIA RECONVEYANCE MOTION FOR LEAVE OF COURT TO
COMPANY, a California corporation; and FILE VERIFIED FIRST AMENDED
20 DOES 1 through 20, inclusive, and all persons CROSS-COMPLAINT
unknown, claiming any legal or equitable right,
21 title, estate, lien, or interest in the property DATE: April 23, 2024
described in the complaint adverse to Plaintiffs' TIME: 8:30 a.m.
22 title, or any cloud on Plaintiffs' title thereto, DEPT: B
23 named as DOES 21-100, inclusive, Hon. Scott R.L. Young
COMPLAINT: August 31, 2011
24 Defendants. TRIAL: Not Set
25
ARNOLD WENYON and DESIREE A.
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WENYON, as Incumbent Trustees of the
27 Wenyon Living Trust Under Declaration Dated
July 26, 2004
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Cross-complainants,
4891-3439-1471.1 11068/00028 –1–
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
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v.
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3 GERALD L. NUNN; JUDITH L. NUNN;
JPMORGAN CHASE BANK, N.A.; and ROES
4 1 through 20, inclusive,
5 Cross-defendants.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 TABLE OF CONTENTS
2 PAGE
3 I. INTRODUCTION AND BACKGROUND ............................................................................... 6
4 A. Title Dispute Between the Nunns and JPMorgan Chase.............................................. 6
5 B. Cross-Complainants Purchase of the Property ............................................................. 7
6 C. Written Discovery and Subpoena to 24 Asset Management Corp. Affirms the
Causes of Action Cross-complainants Seek to add Against Proposed
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Cross-defendant 24 Asset Management Corp. ........................................................... 10
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II. LEGAL ARGUMENT ............................................................................................................ 11
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A. Granting Leave to Amend is All but Mandatory........................................................ 11
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B. Effect of the Amendment ........................................................................................... 12
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C. Leave to File a First Amended Cross-complaint is Necessary and Proper ................ 12
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D. Cross-complainants’ Proposed Verified First Amended Cross-complaint
13 Does not Prejudice the Nunns or Chase ..................................................................... 13
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E. Cross-complainants Acted Diligently in Seeking to File a Verified First
15 Amended Cross-complaint ......................................................................................... 14
16 III. CONCLUSION ...................................................................................................................... 14
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 TABLE OF AUTHORITIES
2 Page(s)
CASES
3
Arthur L. Sachs. Inc. v. City of Oceanside (1984)
4
151 Cal.App.3d 315 ............................................................................................................... 12
5
Atkinson v. Elk Corp. (2003)
6 109 Cal.App.4th 739 .............................................................................................................. 11
7 Bank of America v. Superior Court (1942)
20 Cal.2d 697 ......................................................................................................................... 12
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Board of Trustees v. Superior Court (2007)
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149 Cal.App.4th 1154 ............................................................................................................ 11
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Calif. Cas. Gen. Ins. Co. v. Sup. Ct. (1985)
11 173 Cal.App.3d 274 ............................................................................................................... 11
12 Gross v. Department of Transp. (1986)
180 Cal.App.3d 1102 ............................................................................................................. 11
13
Herrera v. Superior Court (1984)
14 158 Cal.App.3d 255 ............................................................................................................... 14
15
Hirsa v. Superior Court (1981)
16 118 Cal.App.3d 486 ............................................................................................................... 11
17 Honig v. Financial Corp. of Amer. (1992)
6 Cal.App.3d 960 ................................................................................................................... 12
18
Howard v. County of San Diego (2010)
19 184 Cal.App.4th 1422 ............................................................................................................ 11
20 Hulsey v. Koehler (1990)
21 218 Cal.App.3d 1150 ............................................................................................................. 12
22 Kittredge Sports Co. v. Superior Court (1989)
213 Cal.App.3d 1045 ....................................................................................................... 12, 13
23
Mabie v. Hyatt (1998)
24 61 Cal.App.4th 581 .......................................................................................................... 11, 12
25 Morgan v. Superior Court (1959)
26 172 Cal.App.2d 527 ......................................................................................................... 11, 13
27 Nestle v. City of Santa Monica (1972)
6 Cal.3d 920 ........................................................................................................................... 12
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 Redevelopment Agency of City of Fresno, Inc. v. Herrold (1978)
86 Cal.App.3d 1024 ............................................................................................................... 11
2
Woo v. Superior Court (1999)
3 75 Cal.App.4th 169 ................................................................................................................ 11
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STATUTES
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Code of Civil Procedure §472 ...................................................................................................... 11
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Code of Civil Procedure §576 ...................................................................................................... 11
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OTHER AUTHORITIES
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California Civil Procedure Before Trial (2012, Rutter) §6:638-6:339......................................... 11
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 Defendants and Cross-complainants Arnold Wenyon and Desiree A. Wenyon, as
2 Incumbent Trustees of the Wenyon Living Trust Under Declaration Dated July 26, 2004
3 (hereinafter collectively referred to as “Cross-complainants”) respectfully submit the following
4 memorandum of points and authorities in support of their motion for leave to file a Verified
5 First Amended Cross-Complaint.
6 I. INTRODUCTION AND BACKGROUND
7 A. Title Dispute Between the Nunns and JPMorgan Chase
8 Cross-defendants Gerald L. Nunn and Judith L. Nunn were the prior owners of
9 1042 Seminary Street, Napa, California, 94559, APN 003-198-001-000 (hereinafter referred to
10 as the “Property”), the Property at issue in this case. On July 24, 2006, a Deed of Trust was
11 recorded in the Official Records, County of Napa, Doc. 2006-0025795, for the Property,
12 identifying the borrowers as cross-defendants Gerald L. Nunn and Judith L. Nunn, Husband and
13 Wife. The named Trustee is California Reconveyance Company, a California corporation. See
14 Plaintiffs’ Response to Wenyons’ Separate Statement of Undisputed Facts in Support of Motion
15 for Summary Judgment (“UMF”), [UMF 1 and 2], a copy of which is attached as Exhibit A to
16 the Request for Judicial Notice in Support of Request for Leave of Court to file Verified First
17 Amended Complaint (“Request for Judicial Notice”).
18 On April 21, 2011, a Notice of Default and Election to Sell Under Deed of Trust was
19 recorded on behalf of Trustee California Reconveyance Company, in the Official Records,
20 County of Napa, Doc. 2011-0009374, as against the Property. [UMF 3]. On January 12, 2016,
21 a Substitution of Trustee was record in the Official Records, County of Napa,
22 Doc. 2016 0000566, as to the Property, substituting Quality Loan Service Corporation as
23 Trustee under the Deed of Trust in place of California Reconveyance Company. [UMF 4].
24 On January 14, 2016, a Notice of Trustee’s Sale was recorded in the Official Records,
25 County of Napa, Doc. 2016-0000785, as against the Property. On July 19, 2016, a Notice of
26 Trustee’s Sale was recorded in the Official Records, County of Napa, Doc. 2016-0017435, as
27 against the Property. [UMF 5, 6].
28 ///
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 On August 23, 2016, a Trustees Deed Upon Sale was recorded in the Official Records,
2 County of Napa, Doc. 2016-0020838, wherein the Real Property was conveyed by Trustee
3 Quality Loan Service Corporation to cross-defendant JPMorgan Chase (“Chase”). On
4 April 4, 2017, cross-defendants Gerald L. Nunn and Judith L. Nunn caused to be recorded a
5 Notice of Pendency of Action Pursuant to CCP §405 in the Official Records, County of Napa,
6 Doc. 2017-0007969. The Notice of Pendency of Action Pursuant to CCP §405 was not filed
7 with this Court. [UMF 7, 8].
8 The title dispute between the Nunns and Chase is separate and distinct from the claims
9 by Cross-complainants against cross-defendant Chase and proposed cross-defendant 24 Asset
10 Management Corp. Accompanying this motion is a motion to bifurcate the title issue between
11 the Nunns and Chase. Adding 24 Asset Management Corp as a cross-defendant will not delay
12 litigating the underlying title issues between the Nunns and JPMorgan Chase.
13 B. Cross-Complainants’ Purchase of the Property
14 In addition to the allegations against Chase (which remain unchanged in the Verified
15 First Amended Complaint), the following pertains to proposed cross-defendant 24 Asset
16 Management Corp.
17 On or about October 8, 2020, Cross-complainants Wenyons entered into an agreement to
18 purchase the Property from cross-defendant Chase. On October 29, 2020, in conjunction with
19 Cross-complainants Wenyons’ purchase of the Property and escrow, Ticor issued its Amended
20 Preliminary Title Report to Cross-complainants Wenyons, identifying that as a Curative Item,
21 Item #7, Notice of Lis Pendens. [UMF 9, 10].
22 Cross-complainants Wenyons made it clear during the escrow process that they were not
23 going to purchase a property with a lis pendens clouding title to such property. Chase opened
24 escrow on the Property, by and through its agent or affiliate, or contracted party, 24 Asset
25 Management Corp., a Florida corporation licensed to do business in California, its type of
26 business identified with the California Secretary of State as “Asset Management/Real Estate”.
27 ///
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 On or about October 20, 2020, 24 Asset Management Corp. asked Ticor to confirm that
2 title is free and clear and there was no pending litigation, no could to the title. 24 Asset
3 Management requested an updated title report from Ticor. On or about October 22, 2020, Ticor
4 issued its Amended Preliminary Report, Amendment No. 1, identifying the “Client Contact” as
5 24 Asset Management Corp. The Amended Preliminary Title report disclosed, as Exception 7,
6 the Notice of Lis Pendens, as a cloud against free and clear title. See Cross-complaint of Arnold
7 Wenyon and Desiree A. Wenyon, as Incumbent Trustees of the Wenyon Living Trust Under
8 Declaration Dated July 26, 2004 for: 1. Quiet Title; 2. Declaratory Relief; 3. Breach of
9 Contract; 4. Unjust Enrichment; 5. Fraud; and 6. Negligent Misrepresentation (“Wenyon
10 Cross-complaint”) at ¶¶8-10 and Exhibit C attached thereto. A copy of the Wenyon
11 Cross-complaint is attached as Exhibit B to the Request for Judicial Notice.
12 In response, on or about October 22, 2020, 24 Asset Management Corp questioned Ticor
13 as to why lis pendens still appeared on the title report, advising Ticor of the January 30, 2020,
14 Judgment filed in this litigation, entering a judgment of dismissal in favor of Chase and against
15 plaintiffs and cross-defendants Gerald L. Nunn and Judith L. Nunn. 24 Asset Management
16 Corp, by questioning the Amended Preliminary Report, Amendment No. 1 and providing Ticor
17 with a copy of the January 30, 2020 Judgment, was directing Ticor to remove Exception 7, the
18 identification of the Lis Pendens, from the title report. However, what 24 Asset Management
19 Corp failed to advise was that on or about June 1, 2020, the Nunns appealed the
20 January 30, 2020, Judgment, and on August 27, 2020, the Court of Appeal granted the Nunns’
21 Writ of Mandate, staying this Court’s Order expunging the Lis Pendens. The lis pendens had
22 NOT been expunged and was still effective to cloud title to the Property. See Wenyon
23 Cross-complaint at ¶¶11-14 and Exhibits D and E attached thereto.
24 In response to 24 Asset Management Corp’s communications, including the
25 January 30, 2020, Judgment, Ticor provided a Supplemental Report deleting Item 7, the
26 reference to the lis pendens from the preliminary title report. However, as mentioned above,
27 because of the August 27, 2020, grant of the Nunns’ Writ of Mandate staying this Court’ Order
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4891-3439-1471.1 11068/00028 –8–
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 expunging the lis pendens, the lis pendens had NOT been expunged and was still effective to
2 cloud title to the Property.
3 24 Asset Management Corp. was aware that Cross-complainants Wenyons were the
4 purchasers of the Property. Cross-complainants relied on the amended title report that there was
5 no lis pendens on the Property. The directives of 24 Asset Management Corp to Ticor and the
6 removal of the lis pendens in the title report as an exception to free and clear title induced the
7 Wenyons to purchase the Property.
8 Cross-complainants request leave to add cross-defendant 24 Asset Management,
9 including two causes of action for Negligence and Tort of Another. There is no prejudice to the
10 Nunns or Chase by adding 24 Asset Management Corp. The underlying title claim between the
11 Nunns and Chase can continue without delay. 24 Asset Management Corp is not involved in the
12 underlying title dispute between the Nunns and Chase.
13 In contrast, Cross-complainants will suffer if they are not permitted to add 24 Asset
14 Management Corp as a cross-defendant as 24 Asset Management Corp was directly involved in
15 the removal of the lis pendens from the Ticor title report which, in turn, induced
16 Cross-complainants to purchase the Property. No trial date has been set in this case. Chase has
17 noticed the continued depositions of the Nunns for April 4, 2024.1 The issues/dispute between
18 the Nunns and Chase regarding the underlying foreclosure is not pertinent to the issues/dispute
19 with 24 Asset Management Corp.
20 The verified first amended cross-complaint is necessary and proper. Granting leave for
21 Cross-complainants to file a verified first amended cross-complaint is in the furtherance of
22 justice and supported by well-established policy to allow amendments and for all disputes
23 between the parties to be decided on the merits. The Court should grant Cross-complainants’
24 motion for leave to file a verified first amended cross-complaint.
25 ///
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Despite numerous notices of depositions, the Nunns have failed to appear for their respective
28 continued depositions.
4891-3439-1471.1 11068/00028 –9–
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 C. Written Discovery and Subpoena to 24 Asset Management Corp. Affirms the
Causes of Action Cross-complainants Seek to add Against Proposed
2 Cross-defendant 24 Asset Management Corp.
3 In response to written discovery, i.e., demand for production of documents to Chase and
4 subpoena to 24 Asset Management Corp, Cross-complainants received documents in June 2023
5 confirming that 24 Asset Management Corp, acting as an agent of or on behalf of Chase,
6 provided Ticor with incorrect information, a superseded pleading, thereby directing Ticor to
7 delete its previously identified exception to title, the notice of lis pendens, from its title report to
8 Cross-complainants Wenyons. The wrongful actions by 24 Asset Management, along with the
9 alleged wrongful conduct by Chase, induced Cross-complainants to purchase the Property,
10 relying on representations that there was no longer a cloud on the title to the Property.
11 The result of this misconduct caused Cross-complainants to get dragged into this
12 litigation that had been pending for 11+ years. At the time Cross-complainants were dragged
13 into this litigation, they already retained an architect and other professionals, and incurred over
14 $100,000 in fees regarding intended repairs, updating the Property to be code compliant, and
15 remodeling to the Property. In addition, Cross-complainants retained a contractor to start
16 necessary foundation repairs, updating the Property to be code compliant, replacement, shoring,
17 repair of footings, foundation, porches, etc., all of which were necessary and a part of
18 Cross-complainants’ plan to use the Property as an investment property. The repairs/remodeling
19 have not commenced and are now on hold pending resolution of this lawsuit.
20 Further, Cross-complainants have incurred additional costs including interest on the
21 Home Equity Line of Credit established to pay the purchase price of the Property; payment of
22 property taxes; closing costs associated with the purchase; and other improvements made to the
23 Property prior to being named as defendants in this litigation. Costs of labor and materials
24 continue to increase, in terms of anticipated repairs, updating the Property to be code compliant,
25 and remodeling to the Property and Cross-complainants Wenyons are unable to use the Property
26 as intended rental units, and are losing anticipated revenue because they are unable to lease any
27 units in the Property due to the pending litigation.
28 ///
4891-3439-1471.1 11068/00028 – 10 –
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 See Declaration of Ronald L. Richman in Support of Cross-complainants’ Motion for
2 Leave of Court to File Verified First Amended Cross-Complaint at ¶¶1-3. See Declaration of
3 Arnold Wenyon in Support of Cross-complainants Motion for Leave to File a Verified First
4 Amended Cross-Complaint at ¶¶1-6.
5 II. LEGAL ARGUMENT
6 A. Granting Leave to Amend is All but Mandatory
7 Courts apply the policy of great liberality in permitting amendments to a complaint “at
8 any stage of the proceedings, up to and including trial” absent prejudice to the adverse party.
9 Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Mabie v. Hyatt (1998) 61 Cal.App.4th
10 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428; California Civil
11 Procedure Before Trial (2012, Rutter) §6:638-6:339; see, also, Calif. Cas. Gen. Ins. Co. v. Sup.
12 Ct. (1985) 173 Cal.App.3d 274, 278; Code Civ. Proc. §§472, 576.).
13 In Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163-64, the Court
14 stated:
15 It is well established that ‘California courts “have a policy of great
liberality in allowing amendments at any stage of the proceedings
16 so as to dispose of cases upon their substantial merits where the
authorization does not prejudice the substantial rights of others”
17 [citation omitted]. Indeed, it is a rare case in which a ‘court will be
justified in refusing a party leave of court to amend his [or her]
18 pleadings so that he [or she] may property present his [or her] case.
[citation omitted]. Thus, absent a showing of prejudice to the
19 adverse party, the rule of great liberality in allowing amendment of
pleadings will prevail. [citation omitted].
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21 The policy favoring amendment is so strong that a court will very rarely be justified
22 depriving a party the right to leave to amend so that they may properly present their case. See
23 Redevelopment Agency of City of Fresno, Inc. v. Herrold (1978) 86 Cal.App.3d 1024, 1031;
24 Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Of course, amended pleadings may
25 be used to assert additional causes of action. Gross v. Department of Transp. (1986) 180
26 Cal.App.3d 1102, 1107; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) An
27 amended pleading may also be used to add a defendant. See, generally, Woo v. Superior Court
28 (1999) 75 Cal.App.4th 169, 175.
4891-3439-1471.1 11068/00028 – 11 –
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 Motions to amend are appropriately granted as late as the first day of trial or even during
2 trial. Honig v. Financial Corp. of Amer. (1992) 6 Cal.App.3d 960, 965 (citing numerous cases);
3 Arthur L. Sachs. Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 319; see Bank of
4 America v. Superior Court (1942) 20 Cal.2d 697, 702 (court has “complete power to allow
5 amendments to the pleading” any time prior to entry of judgment).
6 Certainly, if – as here - “discovery and investigation develop factual grounds justifying a
7 timely amendment to a pleading, leave to amend must be liberally granted” so that all disputed
8 matters may be resolved in the same lawsuit. See Mabie, (1998) 61 Cal.App.4th at 596; see,
9 also, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047; Nestle v. City
10 of Santa Monica (1972) 6 Cal.3d 920, 939.)
11 When a party opposing a motion to amend cannot demonstrate prejudice, the trial court
12 should grant the motion in furtherance of justice and upon such terms as it deems just and
13 proper. Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; Honig at 966.
14 B. Effect of the Amendment
15 Cross-complainants’ verified first amended cross-complaint will have the effect of
16 allowing all disputes between the parties to be decided on the merits. Specifically,
17 Cross-complainants’ verified first amended cross-complaint will add 24 Asset Management
18 Corp as a defendant and add two causes of action for Negligence and Tort of Another against
19 24 Asset Management Corp., all arising out of directing Ticor to remove from its title report the
20 Notice of Lis Pendens as a cloud on the title to the Property.
21 C. Leave to File a First Amended Cross-complaint is Necessary and Proper
22 Granting leave for Cross-complainants to file a verified first amended cross-complaint is
23 necessary and proper, in the furtherance of justice, and consistent with the strong judicial policy
24 in favor of the privilege of amendment and to “exercise liberality” in permitting amendments to
25 pleadings at any stage of the proceedings.
26 ///
27 ///
28 ///
4891-3439-1471.1 11068/00028 – 12 –
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 The evidence discovered through Cross-complainants’ investigation and associated
2 demand for production of documents to Chase and subpoena to 24 Asset Management Corp
3 support adding 24 Asset Management Corp and the two new causes of action against 24 Asset
4 Management Corp.
5 Cross-complainants will suffer prejudice if they are prevented from trying all disputed
6 claims between parties in this lawsuit. Cross-complainants’ verified first amended
7 cross-complaint will not subject any party to any prejudice, unfair surprise, burden, or additional
8 cost. The title issues between the Nunns and Chase are unrelated to the causes of action against
9 24 Asset Management Corp. The Nunns and Chase can litigate the title claims without further
10 delay.
11 Discovery is still open in this case. No trial date has been set in this case. Where
12 discovery is still open – as here – it is proper to allow a party such as Cross-complainants to add
13 additional legal theories. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 531) (no
14 prejudice where amended complaint increases number of causes of action pled against a
15 defendant).) Moreover, litigation expense is a “burden” that all litigants incur. See Kittredge
16 Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048)
17 The causes of action against 24 Asset Management Corp that Cross-complainants seek
18 to add are meritorious. Their proposed causes of action for Negligence and Tort of Another are
19 bolstered by the document production and subpoena, respectively.
20 D. Cross-complainants’ Proposed Verified First Amended Cross-complaint Does not
Prejudice the Nunns or Chase
21
22 Neither the Nunns nor Chase can claim surprise or prejudice resulting from the verified
23 first amended cross-complaint. Both the current cross-complaint and the proposed verified first
24 amended cross-complaint contain facts supporting causes of action against 24 Asset
25 Management Corp.
26 ///
27 ///
28 ///
4891-3439-1471.1 11068/00028 – 13 –
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 Courts focus on whether amendment will allow efficient adjudication of all claims
2 arising from the disputed events. See Herrera v. Superior Court, (1984) 158 Cal.App.3d 255,
3 259 (abuse of discretion to refuse to allow Plaintiff to amend to assert new legal theories arising
4 from same basic facts). The claims Cross-complainants seek to add against 24 Asset
5 Management Corp in the verified first amended cross-complaint stem from facts and
6 circumstances known to the Nunns and Chase that are already central issues in this this case.
7 For the additional reason that allowing Cross-complainants leave to amend their
8 cross-complaint will in no way prejudice the Nunns or Chase, Cross-complainants’ motion for
9 leave of court to file the verified first amended cross-complaint should be granted.
10 E. Cross-complainants Acted Diligently in Seeking to File a Verified First Amended
Cross-complaint
11
12 Documents were produced by cross-defendant Chase and 24 Asset Management in the
13 summer of 2023. Since that time, this case has been in state of flux due to the Nunns’ second
14 counsel withdrawing from the case on August 4, 2023. The Nunns subsequently failed to
15 appear for schedule case management conferences; an OSC re Dismissal was put on calendar; in
16 subsequent case management conferences, the Nunns have repeatedly advised the Court they
17 were seeking new counsel and appeared close to retaining new counsel, and the case
18 management conferences were continued to allow the Nunns time to retain new counsel. At this
19 date, with a case management conference set for March 27, 2024, in the seven months since the
20 Nunns’ last counsel withdrew, the Nunns have yet to retain new counsel.
21 Not wishing to wait any longer and with the March 27, 2024, case management
22 conference looming, Cross-complaints Wenyons must move forward with the case, without
23 waiting any longer for the Nunns to obtain new counsel and file this motion for leave of court.
24 III. CONCLUSION
25 Cross-complainants’ proposed verified first amended cross-complaint is necessary and
26 proper. The request is timely, does not prejudice any party, and will allow for all disputes
27 between the parties to be decided. For the foregoing reasons, Cross-complainants respectfully
28 request that this Court grant the motion and permit them to file the verified first amended
4891-3439-1471.1 11068/00028 – 14 –
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 cross-complaint, a copy of which is attached to this memorandum of points and authorities as
2 Exhibit A.
3 DATED: March 22, 2024
4 BULLIVANT HOUSER BAILEY PC
5
6 By
Ronald L. Richman
7
8 Attorneys for Defendants and Cross-complainants
ARNOLD WENYON and DESIREE A.
9 WENYON, as Incumbent Trustees of the Wenyon
Living Trust Under Declaration Dated
10 July 26, 2004 (sued herein as DOE 21 and
11 DOE 22)
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4891-3439-1471.1 11068/00028 – 15 –
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO
FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT
IN SUPPORT OF MOTION FOR LEAVE TO FILE
VERIFIED FIRST AMENDED
CROSS‐COMPLAINT
EXHIBIT
1 Ronald L. Richman (SBN 139189)
BULLIVANT HOUSER BAILEY PC
2 101 Montgomery Street, Suite 2600
San Francisco, CA 94104-4146
3
Telephone: 415.352.2700
4 Facsimile: 415.352.2701
E-mail: ron.richman@bullivant.com
5
Attorneys for Defendants and Cross-complainants
6 ARNOLD WENYON and DESIREE A. WENYON,
7 as Incumbent Trustees of the Wenyon Living Trust
Under Declaration Dated July 26, 2004 (sued herein as
8 DOE 21 and DOE 22)
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF NAPA
12
13 GERALD L. NUNN and JUDITH L. NUNN, Case No.: 26-56767
14 Plaintiffs, VERIFIED FIRST AMENDED
CROSS-COMPLAINT OF ARNOLD
15
v. WENYON AND DESIREE A. WENYON,
16 AS INCUMBENT TRUSTEES OF THE
J.P. MORGAN CHASE & COMPANY, a New WENYON LIVING TRUST UNDER
17 York Corporation purported successor in DECLARATION DATED JULY 26, 2004
interest to WASHINGTON MUTUAL FOR:
18 BANK F.A., a Washington Corporation;
CALIFORNIA RECONVEYANCE 1. QUIET TITLE;
19
COMPANY, a California corporation; and 2. DECLARATORY RELIEF;
20 DOES 1 through 20, inclusive, and all persons 3. BREACH OF CONTRACT;
unknown, claiming any legal or equitable right, 4. UNJUST ENRICHMENT
21 title, estate, lien, or interest in the property 5. FRAUD;
described in the complaint adverse to Plaintiffs' 6. NEGLIGENT
22 title, or any cloud on Plaintiffs' title thereto, MISREPRESENTATION;
23 named as DOES 21-100, inclusive, 7. NEGLIGENCE; AND
8. TORT OF ANOTHER
24 Defendants.
25
ARNOLD WENYON and DESIREE A.
26 WENYON, as Incumbent Trustees of the
Wenyon Living Trust Under Declaration Dated
27
July 26, 2004
28
Cross-complainants,
4857-6219-9212.1 11068/00028 –1–
VERIFIED FIRST AMENDED CROSS-COMPLAINT
1
v.
2
3 GERALD L. NUNN; JUDITH L. NUNN;
JPMORGAN CHASE BANK, N.A.; 24
4 ASSET MANAGEMENT CORP., a Florida
corporation licensed to do business in
5 California; and ROES 1 through 20, inclusive,
6 Cross-defendants.
7
8 For their Verified First Amended Cross-complaint for Declaratory Relief; To Quiet
9 Title; Breach of Contract; Unjust Enrichment; Fraud; and Negligent Misrepresentations,
10 Cross-complainants Arnold Wenyon and Desiree Wenyon, as Incumbent Trustees of the
11 Wenyon Living Trust Under Declaration Dated July 26, 2004 (“Wenyons”) allege as follows.
12 PARTIES
13 1. On or about October 28, 2020, the Wenyons entered into a California Residential
14 Purchase Agreement and Joint Escrow Instructions (“Residential Purchase Agreement”) with
15 defendant JPMorgan Chase Bank, NA, (“Chase”) for the Property identified as 1042 Seminary
16 Street, Napa, California, 94559, APN 003-198-001-000 (hereinafter referred to as the
17 “Property”), which is the subject of plaintiffs and cross-defendants’ Gerald L. Nunn and
18 Judith L. Nunn Third Amended Complaint filed in this action. A true and correct copy of the
19 Residential Purchase Agreement is attached hereto as Exhibit A. On November 25, 2020, a
20 Grant Deed was recorded in the Official Records, County of Napa, Doc. 2020-0031549, wherein
21 cross-defendant Chase conveyed the Property to the Wenyons. A true and correct copy of the
22 Grant Deed is attached hereto as Exhibit B.
23 2. Cross-complainants Wenyons are informed and believe, and on that basis allege,
24 that cross-defendants Gerald L. Nunn and Judith L. Nunn claim a competing right, title, lien or
25 interest to the same Property owned by cross-complainants Wenyons, as more fully described
26 below.
27 3. Cross-complainants Wenyons are informed and believe, and on that basis allege,
28 that at all relevant times, that cross-defendant Chase is a National Association that conducts
4857-6219-9212.1 11068/00028 –2–
VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 business in California, including the sale of real property and specifically, the Residential
2 Purchase Agreement with cross-complainants Wenyons for the Property which is the subject of
3 plaintiffs and cross-defendants’ Gerald L. Nunn and Judith L. Nunn Third Amended Complaint
4 filed in this action.
5 4. Cross-complainants Wenyons are informed and believe, and on that basis allege,
6 that at all relevant times, cross-defendant 24 Asset Management Corp. is a Florida corporation
7 authorized and licensed to do business in California, with a California presence in San Diego,
8 California.
9 5. Defendants ROES 1 through 20, inclusive, are sued under fictitious names. Their
10 true names and capacities are unknown to cross-complainants. When their true names and
11 capacities are ascertained, cross-complainants will amend this cross-complaint to show such
12 true names and capacities. Cross-complainants are informed and believe, and on that basis
13 allege, that ROES 1 through 10, inclusive, were responsible in some manner for the events and
14 happenings set forth in this cross-complaint and caused, or were responsible, for the damages
15 proximately caused thereby or are otherwise liable therefore.
16 6. The true names and capacities of those cross-defendants named herein as any and
17 all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the
18 Property adverse to cross-complainants’ title or any cloud on cross-complainant’s title thereto,
19 named as ROES 1 through 20, inclusive (hereinafter sometimes referred to as “unknown cross-
20 defendants”) are unknown to cross-complainants and, therefore, cross-complainants sue said
21 cross-defendants by such fictitious names. Cross-complainants will seek leave of court to
22 amend this cross-complaint to include the true names and capacities of such unknown
23 cross-defendants when the same are ascertained. Cross-complainants are informed and believe
24 and thereupon alleges that each of these unknown cross-defendants claim some right, title,
25 estate, lien, or interest in the Property adverse to cross-complainant’s title and interest, that the
26 claims of all of these unknown cross-defendants are without any right whatsoever and, further,
27 that these unknown cross-defendants have no right, title, estate, lien, or interest whatsoever in
28 the Property, or any part thereof.
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VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 BACKGROUND
2 7. On or about October 21, 2020, escrow was opened up between
3 cross-complainants Wenyons and Chase for the Property. Cross-complainants Wenyons are
4 informed and believe, and on that basis allege, that Chase chose the company for the escrow,
5 Ticor Title Company of America (“Ticor”).
6 8. Cross-complainants Wenyons are informed and believe, and on that basis allege,
7 that at all relevant times, Chase opened escrow on the Property, by and through its agent or
8 affiliate, or contracted party, 24 Asset Management Corp., a Florida corporation licensed to do
9 business in California, its type of business identified with the California Secretary of State as
10 “Asset Management/Real Estate”, with its principal office in the State of California located in
11 San Diego, California.
12 9. Cross-complainants Wenyons are informed and believe, and on that basis allege,
13 that on or about October 20, 2020, Chase, by and through its agent or affiliate, or contracted
14 party, 24 Asset Management Corp., in an e-mail exchange, inquired to Ticor regarding the
15 anticipated title report, asking Ticor to confirm that title is clear and there was no pending
16 litigation, and asking for an updated title report.
17 10. Cross-complainants Wenyons are informed and believe, and on that basis allege,
18 that on or about October 22, 2020, Chase, by and through its agent or affiliate, or contracted
19 party, 24 Asset Management Corp., in an e-mail exchange, inquired to Ticor regarding the
20 anticipated title report, asking when an updated title report would be provided.
21 11. Cross-complainants Wenyons are informed and believe, and on that basis allege,
22 that on or about October 22, 2020, Ticor, in response to the inquiry by Chase, by and through its
23 agent or affiliate, or contracted party, 24 Asset Management Corp., in an e-mail exchange,
24 provided Chase, by and through its agent or affiliate, or contracted party, 24 Asset Management
25 Corp., a copy of the Amended Preliminary Report, Amendment No. 1, effective date October
26 16, 2020. The Amended Preliminary Report, Amendment No. 1, identifies the “Client Contact”
27 as 24 Asset Management Corp. Under Curative Items, the following was identified: “Item 7;
28
4857-6219-9212.1 11068/00028 –4–
VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 Description: Notice of Lis Pendens”. Paragraph No. 7 to the Amended Preliminary Report,
2 Amendment No. 1, under “Exceptions”, identifies the following:
3 7. A pending Court Action as disclosed by a recorded notice:
4 EXCEPTIONS
5 (Continued)
6 CLTA Preliminary Title Report
7 lPrelm (DSI Rev. 8/15/16) Page 7 Order No.: 00733594-005-SM5-
CAB
8
Plaintiff: Gerald L. Nunn and Judith L. Nunn
9
Defendant: J.P. Morgan Chase and Company, a New York
10 Corporation, purported successor in interest to Washington Mutual
Bank F. A., a Washington Corporation; Washington Mutual Bank,
11 F. A., a Washington Corporation; California Reconveyance
Company, a California corporation; and DOES 1 through 20,
12 inclusive, and all persons unknown, claim any legal or equitable
right, title, estate, lien, or interest in the property described in the
13 complaint adverse to Plaintiffs' title, or any cloud on Plaintiffs' title
thereto, named as Does 21-100,inclusive
14
County: Napa
15
Court: Superior Court of the State of California County of Napa
16
Case No.: 26-56767
17
Nature of Action: Real Property
18
Recorded: April 4, 2017
19
20 Recording No.: 2017-0007969, of Official Records
21 A true and correct copy of the Amended Preliminary Report, Amendment No. 1, is
22 attached hereto as Exhibit C.
23 12. Cross-complainants Wenyons are informed and believe, and on that basis allege,
24 that on or about October 22, 2020, Chase, by and through its agent or affiliate, or contracted
25 party, 24 Asset Management Corp., in an e-mail exchange, inquired to Ticor why the
26 Lis Pendens still appeared on the title report. In the e-mail, Chase, by and through its agent or
27 affiliate, or contracted party, 24 Asset Management Corp., attached a copy of the
28 January 30, 2020, Judgment filed in this litigation, entering a judgment of dismissal in favor of
4857-6219-9212.1 11068/00028 –5–
VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 Chase and against plaintiffs and cross-defendants Gerald L. Nunn and Judith L. Nunn. A true
2 and correct copy of the October 22, 2020, e-mail exchange, including the attachment, is attached
3 hereto as Exhibit D.
4 13. Cross-complainants Wenyons are informed and believe, and on that basis allege,
5 that Chase, by and through its agent or affiliate, or contracted party, 24 Asset Management
6 Corp, by questioning the Amended Preliminary Report, Amendment No. 1 and providing Ticor
7 with a copy of the January 30, 2020 Judgment, was directing Ticor to remove Exception 7, the
8 identification of the Lis Pendens, from the title report, despite the fact that on or about
9 June 1, 2020 the Nunns appealed the January 30, 2020, Judgment, and on August 27, 2020, the
10 Court of Appeal granted the Nunns’ Writ of Mandate, staying this Court’s Order expunging the
11 Lis Pendens.
12 14. Cross-complainants Wenyons are informed and believe, and on that basis allege,
13 that on or about October 22, 2020, Ticor, in an e-mail exchange with Chase, by and through its
14 agent or affiliate, or contracted party, 24 Asset Management Corp., responded by stating the title
15 issue would be sent to the title officer for review.
16 15. Cross-complainants Wenyons are informed and believe, and on that basis allege,
17 that on or about October 27, 2020, Chase, by and through its agent or affiliate, or contracted
18 party, 24 Asset Management Corp., in an e-mail exchange, again inquired to Ticor about the
19 title policy. In response, Ticor provided a Supplemental Report deleting Item 7, the reference to
20 the Lis Pendens, from the preliminary title report. A true and correct copy of the
21 October 27, 2020, e-mail and attachment is attached hereto as Exhibit E.
22 16. Cross-complainants Wenyons are informed and believe, and on that basis allege,
23 that 24 Asset Management Corp. was aware that the Wenyons were the purchasers of the
24 property at issue, 1042 Seminary Street, Napa, California, 94559, which is the subject of
25 plaintiffs and cross-defendants’ Gerald L. Nunn and Judith L. Nunn Third Amended Complaint
26 filed in this action.
27 17. On or about October 28, 2020, the Wenyons entered into the Residential
28 Purchase Agreement with Chase for the Property identified as 1042 Seminary Street, Napa,
4857-6219-9212.1 11068/00028 –6–
VERIFIED FIRST AMENDED CROSS-COMPLAINT
1 California, 94559, which is the subject of plaintiffs and cross-defendants’ Gerald L. Nunn and
2 Judith L. Nunn Third Amended Complaint filed in this action. A true and correct copy of the
3 Residential Pu
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1 Ronald L. Richman (SBN 139189) BULLIVANT HOUSER BAILEY PC 2 101 Montgomery Street, Suite 2600 San Francisco, CA 94104-4146 3 Telephone: 415.352.2700 4 Facsimile: 415.352.2701 E-mail: ron.richman@bullivant.com 5 Attorneys for Defendants and Cross-complainants 6 ARNOLD WENYON and DESIREE A. WENYON, 7 as Incumbent Trustees of the Wenyon Living Trust Under Declaration Dated July 26, 2004 (sued herein as 8 DOE 21 and DOE 22) 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF NAPA 12 13 GERALD L. NUNN and JUDITH L. NUNN, Case No.: 26-56767 14 Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 15 v. DEFENDANTS AND 16 CROSS-COMPLAINANTS ARNOLD J.P. MORGAN CHASE & COMPANY, a New WENYON AND DESIREE A. WENYON, 17 York Corporation purported successor in AS INCUMBENT TRUSTEES OF THE interest to WASHINGTON MUTUAL WENYON LIVING TRUST UNDER 18 BANK F.A., a Washington Corporation; DECLARATION DATED JULY 24, 2004 19 CALIFORNIA RECONVEYANCE MOTION FOR LEAVE OF COURT TO COMPANY, a California corporation; and FILE VERIFIED FIRST AMENDED 20 DOES 1 through 20, inclusive, and all persons CROSS-COMPLAINT unknown, claiming any legal or equitable right, 21 title, estate, lien, or interest in the property DATE: April 23, 2024 described in the complaint adverse to Plaintiffs' TIME: 8:30 a.m. 22 title, or any cloud on Plaintiffs' title thereto, DEPT: B 23 named as DOES 21-100, inclusive, Hon. Scott R.L. Young COMPLAINT: August 31, 2011 24 Defendants. TRIAL: Not Set 25 ARNOLD WENYON and DESIREE A. 26 WENYON, as Incumbent Trustees of the 27 Wenyon Living Trust Under Declaration Dated July 26, 2004 28 Cross-complainants, 4891-3439-1471.1 11068/00028 –1– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 v. 2 3 GERALD L. NUNN; JUDITH L. NUNN; JPMORGAN CHASE BANK, N.A.; and ROES 4 1 through 20, inclusive, 5 Cross-defendants. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4891-3439-1471.1 11068/00028 –2– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 TABLE OF CONTENTS 2 PAGE 3 I. INTRODUCTION AND BACKGROUND ............................................................................... 6 4 A. Title Dispute Between the Nunns and JPMorgan Chase.............................................. 6 5 B. Cross-Complainants Purchase of the Property ............................................................. 7 6 C. Written Discovery and Subpoena to 24 Asset Management Corp. Affirms the Causes of Action Cross-complainants Seek to add Against Proposed 7 Cross-defendant 24 Asset Management Corp. ........................................................... 10 8 II. LEGAL ARGUMENT ............................................................................................................ 11 9 A. Granting Leave to Amend is All but Mandatory........................................................ 11 10 B. Effect of the Amendment ........................................................................................... 12 11 C. Leave to File a First Amended Cross-complaint is Necessary and Proper ................ 12 12 D. Cross-complainants’ Proposed Verified First Amended Cross-complaint 13 Does not Prejudice the Nunns or Chase ..................................................................... 13 14 E. Cross-complainants Acted Diligently in Seeking to File a Verified First 15 Amended Cross-complaint ......................................................................................... 14 16 III. CONCLUSION ...................................................................................................................... 14 17 18 19 20 21 22 23 24 25 26 27 28 4891-3439-1471.1 11068/00028 –3– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 TABLE OF AUTHORITIES 2 Page(s) CASES 3 Arthur L. Sachs. Inc. v. City of Oceanside (1984) 4 151 Cal.App.3d 315 ............................................................................................................... 12 5 Atkinson v. Elk Corp. (2003) 6 109 Cal.App.4th 739 .............................................................................................................. 11 7 Bank of America v. Superior Court (1942) 20 Cal.2d 697 ......................................................................................................................... 12 8 Board of Trustees v. Superior Court (2007) 9 149 Cal.App.4th 1154 ............................................................................................................ 11 10 Calif. Cas. Gen. Ins. Co. v. Sup. Ct. (1985) 11 173 Cal.App.3d 274 ............................................................................................................... 11 12 Gross v. Department of Transp. (1986) 180 Cal.App.3d 1102 ............................................................................................................. 11 13 Herrera v. Superior Court (1984) 14 158 Cal.App.3d 255 ............................................................................................................... 14 15 Hirsa v. Superior Court (1981) 16 118 Cal.App.3d 486 ............................................................................................................... 11 17 Honig v. Financial Corp. of Amer. (1992) 6 Cal.App.3d 960 ................................................................................................................... 12 18 Howard v. County of San Diego (2010) 19 184 Cal.App.4th 1422 ............................................................................................................ 11 20 Hulsey v. Koehler (1990) 21 218 Cal.App.3d 1150 ............................................................................................................. 12 22 Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045 ....................................................................................................... 12, 13 23 Mabie v. Hyatt (1998) 24 61 Cal.App.4th 581 .......................................................................................................... 11, 12 25 Morgan v. Superior Court (1959) 26 172 Cal.App.2d 527 ......................................................................................................... 11, 13 27 Nestle v. City of Santa Monica (1972) 6 Cal.3d 920 ........................................................................................................................... 12 28 4891-3439-1471.1 11068/00028 –4– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 Redevelopment Agency of City of Fresno, Inc. v. Herrold (1978) 86 Cal.App.3d 1024 ............................................................................................................... 11 2 Woo v. Superior Court (1999) 3 75 Cal.App.4th 169 ................................................................................................................ 11 4 STATUTES 5 Code of Civil Procedure §472 ...................................................................................................... 11 6 Code of Civil Procedure §576 ...................................................................................................... 11 7 OTHER AUTHORITIES 8 California Civil Procedure Before Trial (2012, Rutter) §6:638-6:339......................................... 11 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4891-3439-1471.1 11068/00028 –5– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 Defendants and Cross-complainants Arnold Wenyon and Desiree A. Wenyon, as 2 Incumbent Trustees of the Wenyon Living Trust Under Declaration Dated July 26, 2004 3 (hereinafter collectively referred to as “Cross-complainants”) respectfully submit the following 4 memorandum of points and authorities in support of their motion for leave to file a Verified 5 First Amended Cross-Complaint. 6 I. INTRODUCTION AND BACKGROUND 7 A. Title Dispute Between the Nunns and JPMorgan Chase 8 Cross-defendants Gerald L. Nunn and Judith L. Nunn were the prior owners of 9 1042 Seminary Street, Napa, California, 94559, APN 003-198-001-000 (hereinafter referred to 10 as the “Property”), the Property at issue in this case. On July 24, 2006, a Deed of Trust was 11 recorded in the Official Records, County of Napa, Doc. 2006-0025795, for the Property, 12 identifying the borrowers as cross-defendants Gerald L. Nunn and Judith L. Nunn, Husband and 13 Wife. The named Trustee is California Reconveyance Company, a California corporation. See 14 Plaintiffs’ Response to Wenyons’ Separate Statement of Undisputed Facts in Support of Motion 15 for Summary Judgment (“UMF”), [UMF 1 and 2], a copy of which is attached as Exhibit A to 16 the Request for Judicial Notice in Support of Request for Leave of Court to file Verified First 17 Amended Complaint (“Request for Judicial Notice”). 18 On April 21, 2011, a Notice of Default and Election to Sell Under Deed of Trust was 19 recorded on behalf of Trustee California Reconveyance Company, in the Official Records, 20 County of Napa, Doc. 2011-0009374, as against the Property. [UMF 3]. On January 12, 2016, 21 a Substitution of Trustee was record in the Official Records, County of Napa, 22 Doc. 2016 0000566, as to the Property, substituting Quality Loan Service Corporation as 23 Trustee under the Deed of Trust in place of California Reconveyance Company. [UMF 4]. 24 On January 14, 2016, a Notice of Trustee’s Sale was recorded in the Official Records, 25 County of Napa, Doc. 2016-0000785, as against the Property. On July 19, 2016, a Notice of 26 Trustee’s Sale was recorded in the Official Records, County of Napa, Doc. 2016-0017435, as 27 against the Property. [UMF 5, 6]. 28 /// 4891-3439-1471.1 11068/00028 –6– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 On August 23, 2016, a Trustees Deed Upon Sale was recorded in the Official Records, 2 County of Napa, Doc. 2016-0020838, wherein the Real Property was conveyed by Trustee 3 Quality Loan Service Corporation to cross-defendant JPMorgan Chase (“Chase”). On 4 April 4, 2017, cross-defendants Gerald L. Nunn and Judith L. Nunn caused to be recorded a 5 Notice of Pendency of Action Pursuant to CCP §405 in the Official Records, County of Napa, 6 Doc. 2017-0007969. The Notice of Pendency of Action Pursuant to CCP §405 was not filed 7 with this Court. [UMF 7, 8]. 8 The title dispute between the Nunns and Chase is separate and distinct from the claims 9 by Cross-complainants against cross-defendant Chase and proposed cross-defendant 24 Asset 10 Management Corp. Accompanying this motion is a motion to bifurcate the title issue between 11 the Nunns and Chase. Adding 24 Asset Management Corp as a cross-defendant will not delay 12 litigating the underlying title issues between the Nunns and JPMorgan Chase. 13 B. Cross-Complainants’ Purchase of the Property 14 In addition to the allegations against Chase (which remain unchanged in the Verified 15 First Amended Complaint), the following pertains to proposed cross-defendant 24 Asset 16 Management Corp. 17 On or about October 8, 2020, Cross-complainants Wenyons entered into an agreement to 18 purchase the Property from cross-defendant Chase. On October 29, 2020, in conjunction with 19 Cross-complainants Wenyons’ purchase of the Property and escrow, Ticor issued its Amended 20 Preliminary Title Report to Cross-complainants Wenyons, identifying that as a Curative Item, 21 Item #7, Notice of Lis Pendens. [UMF 9, 10]. 22 Cross-complainants Wenyons made it clear during the escrow process that they were not 23 going to purchase a property with a lis pendens clouding title to such property. Chase opened 24 escrow on the Property, by and through its agent or affiliate, or contracted party, 24 Asset 25 Management Corp., a Florida corporation licensed to do business in California, its type of 26 business identified with the California Secretary of State as “Asset Management/Real Estate”. 27 /// 28 /// 4891-3439-1471.1 11068/00028 –7– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 On or about October 20, 2020, 24 Asset Management Corp. asked Ticor to confirm that 2 title is free and clear and there was no pending litigation, no could to the title. 24 Asset 3 Management requested an updated title report from Ticor. On or about October 22, 2020, Ticor 4 issued its Amended Preliminary Report, Amendment No. 1, identifying the “Client Contact” as 5 24 Asset Management Corp. The Amended Preliminary Title report disclosed, as Exception 7, 6 the Notice of Lis Pendens, as a cloud against free and clear title. See Cross-complaint of Arnold 7 Wenyon and Desiree A. Wenyon, as Incumbent Trustees of the Wenyon Living Trust Under 8 Declaration Dated July 26, 2004 for: 1. Quiet Title; 2. Declaratory Relief; 3. Breach of 9 Contract; 4. Unjust Enrichment; 5. Fraud; and 6. Negligent Misrepresentation (“Wenyon 10 Cross-complaint”) at ¶¶8-10 and Exhibit C attached thereto. A copy of the Wenyon 11 Cross-complaint is attached as Exhibit B to the Request for Judicial Notice. 12 In response, on or about October 22, 2020, 24 Asset Management Corp questioned Ticor 13 as to why lis pendens still appeared on the title report, advising Ticor of the January 30, 2020, 14 Judgment filed in this litigation, entering a judgment of dismissal in favor of Chase and against 15 plaintiffs and cross-defendants Gerald L. Nunn and Judith L. Nunn. 24 Asset Management 16 Corp, by questioning the Amended Preliminary Report, Amendment No. 1 and providing Ticor 17 with a copy of the January 30, 2020 Judgment, was directing Ticor to remove Exception 7, the 18 identification of the Lis Pendens, from the title report. However, what 24 Asset Management 19 Corp failed to advise was that on or about June 1, 2020, the Nunns appealed the 20 January 30, 2020, Judgment, and on August 27, 2020, the Court of Appeal granted the Nunns’ 21 Writ of Mandate, staying this Court’s Order expunging the Lis Pendens. The lis pendens had 22 NOT been expunged and was still effective to cloud title to the Property. See Wenyon 23 Cross-complaint at ¶¶11-14 and Exhibits D and E attached thereto. 24 In response to 24 Asset Management Corp’s communications, including the 25 January 30, 2020, Judgment, Ticor provided a Supplemental Report deleting Item 7, the 26 reference to the lis pendens from the preliminary title report. However, as mentioned above, 27 because of the August 27, 2020, grant of the Nunns’ Writ of Mandate staying this Court’ Order 28 4891-3439-1471.1 11068/00028 –8– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 expunging the lis pendens, the lis pendens had NOT been expunged and was still effective to 2 cloud title to the Property. 3 24 Asset Management Corp. was aware that Cross-complainants Wenyons were the 4 purchasers of the Property. Cross-complainants relied on the amended title report that there was 5 no lis pendens on the Property. The directives of 24 Asset Management Corp to Ticor and the 6 removal of the lis pendens in the title report as an exception to free and clear title induced the 7 Wenyons to purchase the Property. 8 Cross-complainants request leave to add cross-defendant 24 Asset Management, 9 including two causes of action for Negligence and Tort of Another. There is no prejudice to the 10 Nunns or Chase by adding 24 Asset Management Corp. The underlying title claim between the 11 Nunns and Chase can continue without delay. 24 Asset Management Corp is not involved in the 12 underlying title dispute between the Nunns and Chase. 13 In contrast, Cross-complainants will suffer if they are not permitted to add 24 Asset 14 Management Corp as a cross-defendant as 24 Asset Management Corp was directly involved in 15 the removal of the lis pendens from the Ticor title report which, in turn, induced 16 Cross-complainants to purchase the Property. No trial date has been set in this case. Chase has 17 noticed the continued depositions of the Nunns for April 4, 2024.1 The issues/dispute between 18 the Nunns and Chase regarding the underlying foreclosure is not pertinent to the issues/dispute 19 with 24 Asset Management Corp. 20 The verified first amended cross-complaint is necessary and proper. Granting leave for 21 Cross-complainants to file a verified first amended cross-complaint is in the furtherance of 22 justice and supported by well-established policy to allow amendments and for all disputes 23 between the parties to be decided on the merits. The Court should grant Cross-complainants’ 24 motion for leave to file a verified first amended cross-complaint. 25 /// 26 27 1 Despite numerous notices of depositions, the Nunns have failed to appear for their respective 28 continued depositions. 4891-3439-1471.1 11068/00028 –9– MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 C. Written Discovery and Subpoena to 24 Asset Management Corp. Affirms the Causes of Action Cross-complainants Seek to add Against Proposed 2 Cross-defendant 24 Asset Management Corp. 3 In response to written discovery, i.e., demand for production of documents to Chase and 4 subpoena to 24 Asset Management Corp, Cross-complainants received documents in June 2023 5 confirming that 24 Asset Management Corp, acting as an agent of or on behalf of Chase, 6 provided Ticor with incorrect information, a superseded pleading, thereby directing Ticor to 7 delete its previously identified exception to title, the notice of lis pendens, from its title report to 8 Cross-complainants Wenyons. The wrongful actions by 24 Asset Management, along with the 9 alleged wrongful conduct by Chase, induced Cross-complainants to purchase the Property, 10 relying on representations that there was no longer a cloud on the title to the Property. 11 The result of this misconduct caused Cross-complainants to get dragged into this 12 litigation that had been pending for 11+ years. At the time Cross-complainants were dragged 13 into this litigation, they already retained an architect and other professionals, and incurred over 14 $100,000 in fees regarding intended repairs, updating the Property to be code compliant, and 15 remodeling to the Property. In addition, Cross-complainants retained a contractor to start 16 necessary foundation repairs, updating the Property to be code compliant, replacement, shoring, 17 repair of footings, foundation, porches, etc., all of which were necessary and a part of 18 Cross-complainants’ plan to use the Property as an investment property. The repairs/remodeling 19 have not commenced and are now on hold pending resolution of this lawsuit. 20 Further, Cross-complainants have incurred additional costs including interest on the 21 Home Equity Line of Credit established to pay the purchase price of the Property; payment of 22 property taxes; closing costs associated with the purchase; and other improvements made to the 23 Property prior to being named as defendants in this litigation. Costs of labor and materials 24 continue to increase, in terms of anticipated repairs, updating the Property to be code compliant, 25 and remodeling to the Property and Cross-complainants Wenyons are unable to use the Property 26 as intended rental units, and are losing anticipated revenue because they are unable to lease any 27 units in the Property due to the pending litigation. 28 /// 4891-3439-1471.1 11068/00028 – 10 – MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 See Declaration of Ronald L. Richman in Support of Cross-complainants’ Motion for 2 Leave of Court to File Verified First Amended Cross-Complaint at ¶¶1-3. See Declaration of 3 Arnold Wenyon in Support of Cross-complainants Motion for Leave to File a Verified First 4 Amended Cross-Complaint at ¶¶1-6. 5 II. LEGAL ARGUMENT 6 A. Granting Leave to Amend is All but Mandatory 7 Courts apply the policy of great liberality in permitting amendments to a complaint “at 8 any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. 9 Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761; Mabie v. Hyatt (1998) 61 Cal.App.4th 10 581, 596; Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428; California Civil 11 Procedure Before Trial (2012, Rutter) §6:638-6:339; see, also, Calif. Cas. Gen. Ins. Co. v. Sup. 12 Ct. (1985) 173 Cal.App.3d 274, 278; Code Civ. Proc. §§472, 576.). 13 In Board of Trustees v. Superior Court (2007) 149 Cal.App.4th 1154, 1163-64, the Court 14 stated: 15 It is well established that ‘California courts “have a policy of great liberality in allowing amendments at any stage of the proceedings 16 so as to dispose of cases upon their substantial merits where the authorization does not prejudice the substantial rights of others” 17 [citation omitted]. Indeed, it is a rare case in which a ‘court will be justified in refusing a party leave of court to amend his [or her] 18 pleadings so that he [or she] may property present his [or her] case. [citation omitted]. Thus, absent a showing of prejudice to the 19 adverse party, the rule of great liberality in allowing amendment of pleadings will prevail. [citation omitted]. 20 21 The policy favoring amendment is so strong that a court will very rarely be justified 22 depriving a party the right to leave to amend so that they may properly present their case. See 23 Redevelopment Agency of City of Fresno, Inc. v. Herrold (1978) 86 Cal.App.3d 1024, 1031; 24 Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530. Of course, amended pleadings may 25 be used to assert additional causes of action. Gross v. Department of Transp. (1986) 180 26 Cal.App.3d 1102, 1107; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.) An 27 amended pleading may also be used to add a defendant. See, generally, Woo v. Superior Court 28 (1999) 75 Cal.App.4th 169, 175. 4891-3439-1471.1 11068/00028 – 11 – MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 Motions to amend are appropriately granted as late as the first day of trial or even during 2 trial. Honig v. Financial Corp. of Amer. (1992) 6 Cal.App.3d 960, 965 (citing numerous cases); 3 Arthur L. Sachs. Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 319; see Bank of 4 America v. Superior Court (1942) 20 Cal.2d 697, 702 (court has “complete power to allow 5 amendments to the pleading” any time prior to entry of judgment). 6 Certainly, if – as here - “discovery and investigation develop factual grounds justifying a 7 timely amendment to a pleading, leave to amend must be liberally granted” so that all disputed 8 matters may be resolved in the same lawsuit. See Mabie, (1998) 61 Cal.App.4th at 596; see, 9 also, Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047; Nestle v. City 10 of Santa Monica (1972) 6 Cal.3d 920, 939.) 11 When a party opposing a motion to amend cannot demonstrate prejudice, the trial court 12 should grant the motion in furtherance of justice and upon such terms as it deems just and 13 proper. Hulsey v. Koehler (1990) 218 Cal.App.3d 1150, 1159; Honig at 966. 14 B. Effect of the Amendment 15 Cross-complainants’ verified first amended cross-complaint will have the effect of 16 allowing all disputes between the parties to be decided on the merits. Specifically, 17 Cross-complainants’ verified first amended cross-complaint will add 24 Asset Management 18 Corp as a defendant and add two causes of action for Negligence and Tort of Another against 19 24 Asset Management Corp., all arising out of directing Ticor to remove from its title report the 20 Notice of Lis Pendens as a cloud on the title to the Property. 21 C. Leave to File a First Amended Cross-complaint is Necessary and Proper 22 Granting leave for Cross-complainants to file a verified first amended cross-complaint is 23 necessary and proper, in the furtherance of justice, and consistent with the strong judicial policy 24 in favor of the privilege of amendment and to “exercise liberality” in permitting amendments to 25 pleadings at any stage of the proceedings. 26 /// 27 /// 28 /// 4891-3439-1471.1 11068/00028 – 12 – MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 The evidence discovered through Cross-complainants’ investigation and associated 2 demand for production of documents to Chase and subpoena to 24 Asset Management Corp 3 support adding 24 Asset Management Corp and the two new causes of action against 24 Asset 4 Management Corp. 5 Cross-complainants will suffer prejudice if they are prevented from trying all disputed 6 claims between parties in this lawsuit. Cross-complainants’ verified first amended 7 cross-complaint will not subject any party to any prejudice, unfair surprise, burden, or additional 8 cost. The title issues between the Nunns and Chase are unrelated to the causes of action against 9 24 Asset Management Corp. The Nunns and Chase can litigate the title claims without further 10 delay. 11 Discovery is still open in this case. No trial date has been set in this case. Where 12 discovery is still open – as here – it is proper to allow a party such as Cross-complainants to add 13 additional legal theories. Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 531) (no 14 prejudice where amended complaint increases number of causes of action pled against a 15 defendant).) Moreover, litigation expense is a “burden” that all litigants incur. See Kittredge 16 Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048) 17 The causes of action against 24 Asset Management Corp that Cross-complainants seek 18 to add are meritorious. Their proposed causes of action for Negligence and Tort of Another are 19 bolstered by the document production and subpoena, respectively. 20 D. Cross-complainants’ Proposed Verified First Amended Cross-complaint Does not Prejudice the Nunns or Chase 21 22 Neither the Nunns nor Chase can claim surprise or prejudice resulting from the verified 23 first amended cross-complaint. Both the current cross-complaint and the proposed verified first 24 amended cross-complaint contain facts supporting causes of action against 24 Asset 25 Management Corp. 26 /// 27 /// 28 /// 4891-3439-1471.1 11068/00028 – 13 – MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 Courts focus on whether amendment will allow efficient adjudication of all claims 2 arising from the disputed events. See Herrera v. Superior Court, (1984) 158 Cal.App.3d 255, 3 259 (abuse of discretion to refuse to allow Plaintiff to amend to assert new legal theories arising 4 from same basic facts). The claims Cross-complainants seek to add against 24 Asset 5 Management Corp in the verified first amended cross-complaint stem from facts and 6 circumstances known to the Nunns and Chase that are already central issues in this this case. 7 For the additional reason that allowing Cross-complainants leave to amend their 8 cross-complaint will in no way prejudice the Nunns or Chase, Cross-complainants’ motion for 9 leave of court to file the verified first amended cross-complaint should be granted. 10 E. Cross-complainants Acted Diligently in Seeking to File a Verified First Amended Cross-complaint 11 12 Documents were produced by cross-defendant Chase and 24 Asset Management in the 13 summer of 2023. Since that time, this case has been in state of flux due to the Nunns’ second 14 counsel withdrawing from the case on August 4, 2023. The Nunns subsequently failed to 15 appear for schedule case management conferences; an OSC re Dismissal was put on calendar; in 16 subsequent case management conferences, the Nunns have repeatedly advised the Court they 17 were seeking new counsel and appeared close to retaining new counsel, and the case 18 management conferences were continued to allow the Nunns time to retain new counsel. At this 19 date, with a case management conference set for March 27, 2024, in the seven months since the 20 Nunns’ last counsel withdrew, the Nunns have yet to retain new counsel. 21 Not wishing to wait any longer and with the March 27, 2024, case management 22 conference looming, Cross-complaints Wenyons must move forward with the case, without 23 waiting any longer for the Nunns to obtain new counsel and file this motion for leave of court. 24 III. CONCLUSION 25 Cross-complainants’ proposed verified first amended cross-complaint is necessary and 26 proper. The request is timely, does not prejudice any party, and will allow for all disputes 27 between the parties to be decided. For the foregoing reasons, Cross-complainants respectfully 28 request that this Court grant the motion and permit them to file the verified first amended 4891-3439-1471.1 11068/00028 – 14 – MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 cross-complaint, a copy of which is attached to this memorandum of points and authorities as 2 Exhibit A. 3 DATED: March 22, 2024 4 BULLIVANT HOUSER BAILEY PC 5 6 By Ronald L. Richman 7 8 Attorneys for Defendants and Cross-complainants ARNOLD WENYON and DESIREE A. 9 WENYON, as Incumbent Trustees of the Wenyon Living Trust Under Declaration Dated 10 July 26, 2004 (sued herein as DOE 21 and 11 DOE 22) ***** 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4891-3439-1471.1 11068/00028 – 15 – MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR LEAVE OF COURT TO FILE VERIFIED FIRST AMENDED CROSS-COMPLAINT IN SUPPORT OF MOTION FOR LEAVE TO FILE VERIFIED FIRST AMENDED CROSS‐COMPLAINT EXHIBIT 1 Ronald L. Richman (SBN 139189) BULLIVANT HOUSER BAILEY PC 2 101 Montgomery Street, Suite 2600 San Francisco, CA 94104-4146 3 Telephone: 415.352.2700 4 Facsimile: 415.352.2701 E-mail: ron.richman@bullivant.com 5 Attorneys for Defendants and Cross-complainants 6 ARNOLD WENYON and DESIREE A. WENYON, 7 as Incumbent Trustees of the Wenyon Living Trust Under Declaration Dated July 26, 2004 (sued herein as 8 DOE 21 and DOE 22) 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF NAPA 12 13 GERALD L. NUNN and JUDITH L. NUNN, Case No.: 26-56767 14 Plaintiffs, VERIFIED FIRST AMENDED CROSS-COMPLAINT OF ARNOLD 15 v. WENYON AND DESIREE A. WENYON, 16 AS INCUMBENT TRUSTEES OF THE J.P. MORGAN CHASE & COMPANY, a New WENYON LIVING TRUST UNDER 17 York Corporation purported successor in DECLARATION DATED JULY 26, 2004 interest to WASHINGTON MUTUAL FOR: 18 BANK F.A., a Washington Corporation; CALIFORNIA RECONVEYANCE 1. QUIET TITLE; 19 COMPANY, a California corporation; and 2. DECLARATORY RELIEF; 20 DOES 1 through 20, inclusive, and all persons 3. BREACH OF CONTRACT; unknown, claiming any legal or equitable right, 4. UNJUST ENRICHMENT 21 title, estate, lien, or interest in the property 5. FRAUD; described in the complaint adverse to Plaintiffs' 6. NEGLIGENT 22 title, or any cloud on Plaintiffs' title thereto, MISREPRESENTATION; 23 named as DOES 21-100, inclusive, 7. NEGLIGENCE; AND 8. TORT OF ANOTHER 24 Defendants. 25 ARNOLD WENYON and DESIREE A. 26 WENYON, as Incumbent Trustees of the Wenyon Living Trust Under Declaration Dated 27 July 26, 2004 28 Cross-complainants, 4857-6219-9212.1 11068/00028 –1– VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 v. 2 3 GERALD L. NUNN; JUDITH L. NUNN; JPMORGAN CHASE BANK, N.A.; 24 4 ASSET MANAGEMENT CORP., a Florida corporation licensed to do business in 5 California; and ROES 1 through 20, inclusive, 6 Cross-defendants. 7 8 For their Verified First Amended Cross-complaint for Declaratory Relief; To Quiet 9 Title; Breach of Contract; Unjust Enrichment; Fraud; and Negligent Misrepresentations, 10 Cross-complainants Arnold Wenyon and Desiree Wenyon, as Incumbent Trustees of the 11 Wenyon Living Trust Under Declaration Dated July 26, 2004 (“Wenyons”) allege as follows. 12 PARTIES 13 1. On or about October 28, 2020, the Wenyons entered into a California Residential 14 Purchase Agreement and Joint Escrow Instructions (“Residential Purchase Agreement”) with 15 defendant JPMorgan Chase Bank, NA, (“Chase”) for the Property identified as 1042 Seminary 16 Street, Napa, California, 94559, APN 003-198-001-000 (hereinafter referred to as the 17 “Property”), which is the subject of plaintiffs and cross-defendants’ Gerald L. Nunn and 18 Judith L. Nunn Third Amended Complaint filed in this action. A true and correct copy of the 19 Residential Purchase Agreement is attached hereto as Exhibit A. On November 25, 2020, a 20 Grant Deed was recorded in the Official Records, County of Napa, Doc. 2020-0031549, wherein 21 cross-defendant Chase conveyed the Property to the Wenyons. A true and correct copy of the 22 Grant Deed is attached hereto as Exhibit B. 23 2. Cross-complainants Wenyons are informed and believe, and on that basis allege, 24 that cross-defendants Gerald L. Nunn and Judith L. Nunn claim a competing right, title, lien or 25 interest to the same Property owned by cross-complainants Wenyons, as more fully described 26 below. 27 3. Cross-complainants Wenyons are informed and believe, and on that basis allege, 28 that at all relevant times, that cross-defendant Chase is a National Association that conducts 4857-6219-9212.1 11068/00028 –2– VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 business in California, including the sale of real property and specifically, the Residential 2 Purchase Agreement with cross-complainants Wenyons for the Property which is the subject of 3 plaintiffs and cross-defendants’ Gerald L. Nunn and Judith L. Nunn Third Amended Complaint 4 filed in this action. 5 4. Cross-complainants Wenyons are informed and believe, and on that basis allege, 6 that at all relevant times, cross-defendant 24 Asset Management Corp. is a Florida corporation 7 authorized and licensed to do business in California, with a California presence in San Diego, 8 California. 9 5. Defendants ROES 1 through 20, inclusive, are sued under fictitious names. Their 10 true names and capacities are unknown to cross-complainants. When their true names and 11 capacities are ascertained, cross-complainants will amend this cross-complaint to show such 12 true names and capacities. Cross-complainants are informed and believe, and on that basis 13 allege, that ROES 1 through 10, inclusive, were responsible in some manner for the events and 14 happenings set forth in this cross-complaint and caused, or were responsible, for the damages 15 proximately caused thereby or are otherwise liable therefore. 16 6. The true names and capacities of those cross-defendants named herein as any and 17 all persons unknown, claiming any legal or equitable right, title, estate, lien, or interest in the 18 Property adverse to cross-complainants’ title or any cloud on cross-complainant’s title thereto, 19 named as ROES 1 through 20, inclusive (hereinafter sometimes referred to as “unknown cross- 20 defendants”) are unknown to cross-complainants and, therefore, cross-complainants sue said 21 cross-defendants by such fictitious names. Cross-complainants will seek leave of court to 22 amend this cross-complaint to include the true names and capacities of such unknown 23 cross-defendants when the same are ascertained. Cross-complainants are informed and believe 24 and thereupon alleges that each of these unknown cross-defendants claim some right, title, 25 estate, lien, or interest in the Property adverse to cross-complainant’s title and interest, that the 26 claims of all of these unknown cross-defendants are without any right whatsoever and, further, 27 that these unknown cross-defendants have no right, title, estate, lien, or interest whatsoever in 28 the Property, or any part thereof. 4857-6219-9212.1 11068/00028 –3– VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 BACKGROUND 2 7. On or about October 21, 2020, escrow was opened up between 3 cross-complainants Wenyons and Chase for the Property. Cross-complainants Wenyons are 4 informed and believe, and on that basis allege, that Chase chose the company for the escrow, 5 Ticor Title Company of America (“Ticor”). 6 8. Cross-complainants Wenyons are informed and believe, and on that basis allege, 7 that at all relevant times, Chase opened escrow on the Property, by and through its agent or 8 affiliate, or contracted party, 24 Asset Management Corp., a Florida corporation licensed to do 9 business in California, its type of business identified with the California Secretary of State as 10 “Asset Management/Real Estate”, with its principal office in the State of California located in 11 San Diego, California. 12 9. Cross-complainants Wenyons are informed and believe, and on that basis allege, 13 that on or about October 20, 2020, Chase, by and through its agent or affiliate, or contracted 14 party, 24 Asset Management Corp., in an e-mail exchange, inquired to Ticor regarding the 15 anticipated title report, asking Ticor to confirm that title is clear and there was no pending 16 litigation, and asking for an updated title report. 17 10. Cross-complainants Wenyons are informed and believe, and on that basis allege, 18 that on or about October 22, 2020, Chase, by and through its agent or affiliate, or contracted 19 party, 24 Asset Management Corp., in an e-mail exchange, inquired to Ticor regarding the 20 anticipated title report, asking when an updated title report would be provided. 21 11. Cross-complainants Wenyons are informed and believe, and on that basis allege, 22 that on or about October 22, 2020, Ticor, in response to the inquiry by Chase, by and through its 23 agent or affiliate, or contracted party, 24 Asset Management Corp., in an e-mail exchange, 24 provided Chase, by and through its agent or affiliate, or contracted party, 24 Asset Management 25 Corp., a copy of the Amended Preliminary Report, Amendment No. 1, effective date October 26 16, 2020. The Amended Preliminary Report, Amendment No. 1, identifies the “Client Contact” 27 as 24 Asset Management Corp. Under Curative Items, the following was identified: “Item 7; 28 4857-6219-9212.1 11068/00028 –4– VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 Description: Notice of Lis Pendens”. Paragraph No. 7 to the Amended Preliminary Report, 2 Amendment No. 1, under “Exceptions”, identifies the following: 3 7. A pending Court Action as disclosed by a recorded notice: 4 EXCEPTIONS 5 (Continued) 6 CLTA Preliminary Title Report 7 lPrelm (DSI Rev. 8/15/16) Page 7 Order No.: 00733594-005-SM5- CAB 8 Plaintiff: Gerald L. Nunn and Judith L. Nunn 9 Defendant: J.P. Morgan Chase and Company, a New York 10 Corporation, purported successor in interest to Washington Mutual Bank F. A., a Washington Corporation; Washington Mutual Bank, 11 F. A., a Washington Corporation; California Reconveyance Company, a California corporation; and DOES 1 through 20, 12 inclusive, and all persons unknown, claim any legal or equitable right, title, estate, lien, or interest in the property described in the 13 complaint adverse to Plaintiffs' title, or any cloud on Plaintiffs' title thereto, named as Does 21-100,inclusive 14 County: Napa 15 Court: Superior Court of the State of California County of Napa 16 Case No.: 26-56767 17 Nature of Action: Real Property 18 Recorded: April 4, 2017 19 20 Recording No.: 2017-0007969, of Official Records 21 A true and correct copy of the Amended Preliminary Report, Amendment No. 1, is 22 attached hereto as Exhibit C. 23 12. Cross-complainants Wenyons are informed and believe, and on that basis allege, 24 that on or about October 22, 2020, Chase, by and through its agent or affiliate, or contracted 25 party, 24 Asset Management Corp., in an e-mail exchange, inquired to Ticor why the 26 Lis Pendens still appeared on the title report. In the e-mail, Chase, by and through its agent or 27 affiliate, or contracted party, 24 Asset Management Corp., attached a copy of the 28 January 30, 2020, Judgment filed in this litigation, entering a judgment of dismissal in favor of 4857-6219-9212.1 11068/00028 –5– VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 Chase and against plaintiffs and cross-defendants Gerald L. Nunn and Judith L. Nunn. A true 2 and correct copy of the October 22, 2020, e-mail exchange, including the attachment, is attached 3 hereto as Exhibit D. 4 13. Cross-complainants Wenyons are informed and believe, and on that basis allege, 5 that Chase, by and through its agent or affiliate, or contracted party, 24 Asset Management 6 Corp, by questioning the Amended Preliminary Report, Amendment No. 1 and providing Ticor 7 with a copy of the January 30, 2020 Judgment, was directing Ticor to remove Exception 7, the 8 identification of the Lis Pendens, from the title report, despite the fact that on or about 9 June 1, 2020 the Nunns appealed the January 30, 2020, Judgment, and on August 27, 2020, the 10 Court of Appeal granted the Nunns’ Writ of Mandate, staying this Court’s Order expunging the 11 Lis Pendens. 12 14. Cross-complainants Wenyons are informed and believe, and on that basis allege, 13 that on or about October 22, 2020, Ticor, in an e-mail exchange with Chase, by and through its 14 agent or affiliate, or contracted party, 24 Asset Management Corp., responded by stating the title 15 issue would be sent to the title officer for review. 16 15. Cross-complainants Wenyons are informed and believe, and on that basis allege, 17 that on or about October 27, 2020, Chase, by and through its agent or affiliate, or contracted 18 party, 24 Asset Management Corp., in an e-mail exchange, again inquired to Ticor about the 19 title policy. In response, Ticor provided a Supplemental Report deleting Item 7, the reference to 20 the Lis Pendens, from the preliminary title report. A true and correct copy of the 21 October 27, 2020, e-mail and attachment is attached hereto as Exhibit E. 22 16. Cross-complainants Wenyons are informed and believe, and on that basis allege, 23 that 24 Asset Management Corp. was aware that the Wenyons were the purchasers of the 24 property at issue, 1042 Seminary Street, Napa, California, 94559, which is the subject of 25 plaintiffs and cross-defendants’ Gerald L. Nunn and Judith L. Nunn Third Amended Complaint 26 filed in this action. 27 17. On or about October 28, 2020, the Wenyons entered into the Residential 28 Purchase Agreement with Chase for the Property identified as 1042 Seminary Street, Napa, 4857-6219-9212.1 11068/00028 –6– VERIFIED FIRST AMENDED CROSS-COMPLAINT 1 California, 94559, which is the subject of plaintiffs and cross-defendants’ Gerald L. Nunn and 2 Judith L. Nunn Third Amended Complaint filed in this action. A true and correct copy of the 3 Residential Pu