Cole

FACTS AND PROCEDURAL BACKGROUND

In reviewing an order after a demurrer is sustained without leave to amend, all well-pleaded factual allegations must be assumed as true. (Naegele v. R. J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 864-865; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In our review of the trial court’s ruling on the demurrers, “we look to the ‘properly pleaded factual allegations’ of the operative complaint ‘read in light of’ any ‘judicially noticeable facts’ and ‘factual concessions’ of the plaintiff.”1 (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 506, fn. 1; Evans v. City of Berkeley (2006) 38 Cal.4th 1, 21.) This includes factual concessions and positions taken in earlier pleadings because a plaintiff cannot avoid a demurrer by contradicting or suppressing facts pled in the original complaint. (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.) In this case, the operative pleading is the first amended complaint, which is predicated on the theory respondents wrongfully foreclosed on real property after appellant defaulted on a promissory note secured by a deed of trust. The first amended complaint contains very few facts. However, both…