NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

Appellant Island Shore Services, LLC (Island Shore) seeks review of the trial court's order dismissing its claims of fraud and failure to disclose in the sale of real estate. On its own motion, the court concluded that Island Shore lacked standing because after filing suit, it quitclaimed the real property at issue to a third party. Because we conclude that Island Shore's transfer of the property did not transfer its preexisting right to sue the sellers for damages, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2008, Island Shore purchased a residential property located in Beverly Hills (the Property) from respondents Armin Zatikyan and Lilit Grigoryan. The purchase price was $9 million. Zatikyan and Grigoryan received in return: (1) a note in the amount of $5.6 million, secured by a first deed of trust; and (2) a note in the amount of $2.1 million, secured by a second deed of trust.1 The note secured by the first deed of trust was assigned to respondent BevRidge, LLC (BevRidge). Island Shore made payments on the notes until October 2008. After the payments ceased, BevRidge began foreclosure proceedings.

In June 2009, Island Shore, joined by Brian and Snizhana Willis (jointly referred to as "plaintiffs"), brought suit against sellers Zatikyan and Grigoryan and also against BevRidge and respondent Don Bolin, who were alleged to be not only the holders by assignment of the first note and deed of trust, but also the builders of the structures on the Property.2 The complaint alleged generally that the structures did not comply with health and safety laws, that defendants had not obtained necessary occupancy permits and that defendants had failed to make mandatory disclosures about defects in the structures. The complaint specifically alleged that the retaining wall behind the Property was defective and not built to code and that a pool house, which included a bathroom and changing room, had been built without proper permits. Included in the complaint were claims for fraud and failure to disclose material defects and a prayer for damages for money invested in the Property.

After filing the original complaint, plaintiffs submitted an application for a preliminary injunction to prevent the foreclosure from going forward. The court denied the application.3 In September 2009, Island Shore quitclaimed the property to Snizhana Willis, who immediately filed a bankruptcy petition.4 Relief from the automatic stay was granted by the bankruptcy court, and the foreclosure sale went forward in December 2009.5 After the foreclosure, Zatikyan and Grigoryan filed a cross-complaint, seeking a deficiency judgment from Island Shore and the Willises.6

In March 2010, Island Shore and Snizhana Willis filed the currently operative complaint — the second amended complaint (SAC).7 The SAC continued to allege that the structures on the property, particularly the retaining wall and pool house, did not comply with health and safety laws, and that respondents had not obtained necessary occupancy permits and had failed to make disclosures about defects in the property. The first cause of action sought to set aside the foreclosure and rescind the sales agreement. The second cause of action sought damages for fraud, negligent misrepresentation, mistake, and violation of Civil Code section 1102, et seq.8 The SAC alleged that as a result of the misrepresentations and failure to disclose, plaintiffs purchased the property from Zatikyan and Grigoryan, and made payments to respondents on notes secured by the Property. It further alleged that plaintiffs were entitled to damages in the amount of $1.605 million, "the amount of money paid out by [p]laintiffs on the [P]roperty and [for] improvements on the [P]roperty made by the [p]laintiffs." In the prayer, plaintiffs sought a judgment setting aside the foreclosure sale, rescission of the agreements and restitution of all amounts paid to respondents. Plaintiffs also sought to recover sums spent in purchasing and improving the Property, as well as punitive damages.

In March 2010, at a status conference at which the topic was the Snizhana Willis bankruptcy, the court inquired about the status of Island Shore and whether it should be dismissed as a claimant. The court ordered briefing from the parties. Respondents submitted memoranda and presented evidence establishing that on September 23, 2009, after a formal resolution, Island Shore executed a quitclaim deed, passing its interest in the Property to Snizhana Willis. Respondents contended that as a result, Island Shore no longer held an interest in the Property or any claim asserted in the litigation. Island Shore conceded that it had transferred the Property to Snizhana Willis in September 2009, but contended that it had not transferred its preexisting chose in action.

The court issued an order dismissing Island Shore as a claimant. With respect to the claim for rescission of the sales contract and to set aside the foreclosure, the court concluded that Island Shore had no standing as it no longer held an ownership interest in the property. With respect to the claim for fraud and failure to disclose, the court stated: "Island Shore has failed to show how it has suffered any damage from any alleged fraud or violation of Civil Code § 1102 for failure to make the required disclosures upon transfer of the property[,] i.e.[,] did it transfer the property to Snizhana for a lower price because of the purported property defects? Did Island Shore even transfer the property to Snizhana [for] valuable consideration? If the damages are related solely to the diminution in value to the property, it does not appear that Island Shore has any continuing claim for damage."9

DISCUSSION

A. Appealability

Respondents BevRidge and Bolin contend the matter is not appealable while the dispute between Snizhana Willis and respondents is unresolved because "the interests of Snizhana and Island Shore, if any, cannot be severed from one another."10 Respondents are mistaken. A judgment of dismissal as to one of two co-plaintiffs is immediately appealable by the dismissed plaintiff. (Justus v. Atchison (1977) 19 Cal.3d 564, 567-568 overruled on other grounds, in Ochoa v. Superior Court (1985) 39 Cal.3d 159.) However, our review of the record has revealed a separate ground for questioning appealability not raised by any party: the existence of a cross-complaint filed by respondents Zatikyan and Grigoryan naming Island Shore along with the Willises as cross-defendants.11

Limited exceptions exist, but generally only final judgments that dispose of all causes of action between the parties are appealable. (Code. Civ. Proc., § 904.1, subd. (a)(1); ECC Construction, Inc. v. Oak Park Calabasas Homeowners Assn. (2004) 122 Cal.App.4th 994, 1002; California Dental Assn. v. California Dental Hygienists' Assn. (1990) 222 Cal.App.3d 49, 59.) "Where a complaint and cross-complaint involving the same parties have been filed, there is no final, appealable judgment until both have been resolved." (ECC Construction, supra, at p. 1002; accord, California Dental Assn., supra, at p. 59; American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 557.) According to the record, the cross-complaint had not been resolved as of the date of the appeal. Accordingly, the current appeal is premature.

Ordinarily, we would simply dismiss the appeal. In this case, however, the issue is one of standing, "a threshold issue" which must be "resolved before the matter can be reached on its merits." (Apartment Assn. of Los Angeles County, Inc. v. City of Los Angeles (2006) 136 Cal.App.4th 119, 128.) "`[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding.'" (Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 233, quoting Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438; see McKinny v. Board of Trustees (1982) 31 Cal.3d 79, 90 [contention based on lack of standing "cannot be waived"].) As we discuss below, the trial court concluded that Island Shore lacked standing to pursue the fraud and failure to disclose claims against Zatikyan and Grigoryan, and that Snizhana Willis (or the bankruptcy trustee overseeing her bankruptcy proceedings) had become owner of those claims through the September 2009 quitclaim deed. In order to address the threshold issue of Island Shore's standing to pursue its claims, we will deem Island Shore's appeal a petition for writ of mandate.12 (See California Dental Assn., supra, 222 Cal.App.3d at p. 60 [final judgment rule precluded association from pursuing an appeal from dismissal of its complaint while defendants' cross-complaint remained pending, but court treated appeal as petition for writ of mandate and decided threshold standing issue].)

B. Standing

Island Shore contended in the original complaint and in the SAC that it had been induced to enter into the contract to purchase the Property through fraud and failure to disclose material defects on the part of the sellers, Zatikyan and Grigoryan. It additionally contended that it had expended considerable sums to purchase the Property and to improve it. The complaints sought rescission of the sales agreement and restitution, but also included claims for damages. After filing the original complaint, Island Shore quitclaimed the property to Snizhana Willis. The trial court ruled that having divested itself of the Property, Island Shore lacked standing to assert preexisting claims pertaining to the sale of the Property, including the claim for damages for fraud and failure to disclose asserted in the second cause of action of the SAC. As we explain, this ruling was partially in error.13

Preliminarily, we point out that a real estate buyer's claim for damages based on fraud in the inducement survives default and foreclosure. (See, e.g., Garrett v. Perry (1959) 53 Cal.2d 178, 182; Ford v. Cournale (1973) 36 Cal.App.3d 172, 183-184; Burkhouse v. Phillips (1971) 18 Cal.App.3d 661, 665.) "[A] defaulting vendee is not, because of the default alone, to be denied a right to recover damages because of fraud in the inducement of the contract." (Holder v. Home Sav. & Loan Assn. (1968) 267 Cal.App.2d 91, 108-109; accord, Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 171 ["[T]he defrauded victim's performance of the underlying contract is not a condition to his or her maintaining a countersuit for fraud and deceit."].) The typical measure of damages in such case is "the difference in value between everything with which he parted and everything he received, or his actual out-of-pocket loss." (Holder v. Home Sav. & Loan Assn., supra, at p. 109.) The defrauded party may also recover the cost of "repairs and expenditures" which have been "lost or rendered fruitless because of the deceit." (Garrett v. Perry, supra, at p. 186.) Accordingly, at the time it executed the quitclaim deed, Island Shore held a valid claim for damages assuming, as we must, that the allegations of its complaints are true.

Turning to whether Island Shore transferred its claim for damages for fraud and failure to disclose to Snizhana Willis when it quitclaimed the Property to her in September 2009, "[a]lthough the general rule in California is that choses in action or other personal rights to claim money are freely assignable, nonetheless, proof of the intent to assign must be `clear and positive' to protect the obligor . . . from any further claim by the primary obligee. [Citations.]" (Mission Valley East, Inc. v. County of Kern (1981) 120 Cal.App.3d 89, 96, quoting Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 292.) The assignment agreement "must describe the subject matter of the assignment with sufficient particularity to identify the rights assigned." (Mission Valley East, Inc. v. County of Kern, supra, at p. 97; see DC3 Entertainment v. John Galt Entertainment (W.D. Wash. 2006) 412 F.Supp.2d 1125, 1144 ["[A] basic tenet of California contract law dictates that when a particular right or set of rights is defined in an assignment, additional rights not similarly defined or named cannot be considered part of the rights transferred." (Italics deleted.)].)

Whether transfer of real property during pendency of an action arising out of the property divests the plaintiff of standing was addressed in Vaughn v. Dame Construction Co. (1990) 223 Cal.App.3d 144. There, the plaintiff brought an action seeking damages for defective construction of her condominium. While the litigation was pending, the plaintiff sold the property to a third party. The defendant obtained summary judgment based on the contention that "`Plaintiff has no standing . . . since she no longer owns the property.'" (223 Cal.App.3d at p. 146.) The appellate court disagreed: "The cause of action for damages as a result of injury to property, which was fully vested in plaintiff at the time of the injury, is personal property — not real property. [Citations.] The right to recover damages for injury to property, being personal property, may be assigned or transferred. [Citations.] There is no authority, however, for the proposition that the transfer of the real property automatically transfers plaintiff's personal cause of action." (Id. at p. 148, italics deleted.)

Cases in which the transfer was accomplished by way of a quitclaim deed are in accord with Vaughn: the transfer of real property does not transfer ownership of preexisting claims or choses in action arising from the property. (Mission Valley East, Inc. v. County of Kern, supra, 120 Cal.App.3d at p. 97; Neal v. Juarez (S.D. Cal., July 23, 2007, Civil No. 06cv0055J (JMA)) 2007 U.S.Dist. Lexis 98068, *1, *14-15.) As the Supreme Court has explained, a quitclaim deed is used "`for the purpose of transferring title to land.'" (City of Manhattan Beach v. Superior Court (1996) 13 Cal.4th 232, 239.) Such a deed "`transfers whatever present right or interest the grantor has in the property.'" (Ibid.) In Neal v. Juarez, the purchaser of real property quitclaimed his interest in that property to the plaintiff just prior to foreclosure. The language of the quitclaim deed was broad, stating that the purchaser quitclaimed "all rights, immunities, and appurtenances of whatsoever nature, by authority of assignment for the [subject property]." (2007 U.S.Dist. Lexis 98068, at p. *14.) The plaintiff sought to pursue a claim based on fraudulent misrepresentations allegedly made to the purchaser by the defendants. The court concluded that the plaintiff lacked standing because the circumstances of the case, including the language of the quitclaim deed, "fail[ed] to indicate that [the purchaser] assigned his causes of action based on the subject property to [the] Plaintiff." (Id. at p. *15.)

Also on point is Mission Valley East, Inc. v. County of Kern, where multiple parcels of real property were taken and sold by the county tax collector because the owners failed to pay property taxes due. Under the relevant statute, the owners were entitled to file claims with the county for the excess proceeds from the sales. Before they could make such claims, however, they were persuaded by a third party to execute quitclaim deeds which "`transfer[ed], assign[ed] and disclaim[ed] to [the third party] all [their] rights as owner[s] of said property both before and after the tax sale.'" (Mission Valley East, Inc. v. County of Kern, supra, 120 Cal.App.3d at p. 93.) The court concluded that the third party had no right to the excess proceeds because this language "literally restricts the assignment to whatever rights the assignor had in the real property at the time of the assignment; it does not include personal rights such as the right to claim the excess proceeds from the tax sale." (Id. at p. 97; see also Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal.App.4th 949, 956-957 [divorce agreement awarding diamond ring purchased by husband to wife did not automatically transfer husband's claim against jeweler for fraud]; Millner v. Lankershim Packing Co. (1936) 13 Cal.App.2d 315, 320 [assignment of note secured by chattel mortgage did not assign right to pursue claim for conversion of chattel that arose prior to assignment]; Williams v. Galloway (1962) 211 Cal.App.2d 302, 304-305 [corporation's sale and transfer to second corporation of "`[a]ll personal property'" and all "`property held on a leas[e]hold basis'" did not transfer claim for money first corporation had against its former lessor];Jasmine Networks, Inc. v. Superior Court (2009) 180 Cal.App.4th 980, 995 ["[A] right of action for damage to property is distinct from the title to the property, and from any right in the property, and . . . the transfer of the latter does not by itself effect a transfer or diminution of the former."].)

The quitclaim deed at issue stated only that Island Shore "remise[d], release[d], and forever quitclaim[ed]" the Property to Snizhana Willis as of September 23, 2009. It did not mention the preexisting claim against the sellers of the property or purport to transfer choses in action. Accordingly, we conclude that Island Shore retained its claim for fraud and failure to disclose and was the only party with standing to assert it.

Respondents Zatikyan and Grigoryan contend that Island Shore lacks standing based on the decision in Donkin v. Killefer (1939) 32 Cal.App.2d 729. There, the evidence at trial established that the plaintiffs — allegedly defrauded purchasers of real property — had re-sold the property to a third party for the full amount they had paid for it. Because the plaintiffs had "got what they considered as [the property's] full value, if it had been as represented," the court concluded they had "lost nothing as the result of any representation which might have been made." (32 Cal.App.2d at p. 732.) That case stands for the unremarkable proposition that a plaintiff must establish damages to prevail. It did not address standing or suggest that a plaintiff who cannot ultimately prove damages lacks standing.

In the instant case, the trial court faulted Island Shore for failing to present facts supporting damages at the hearing called to address its status as a claimant. The parties agree, however, that procedurally, the April 20 hearing was the equivalent of either a demurrer or a motion for judgment on the pleadings. (See Schauer v. Mandarin Gems of Cal., Inc., supra, 125 Cal.App.4th at p. 955 [lack of standing raised by demurrer]; Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1013 [lack of standing raised by motion for judgment on the pleadings]; Code Civ. Proc., § 438, subd. (a)(2) [court may on its own motion grant judgment on the pleadings].) Having been apprised of the bankruptcy proceedings, the court could take judicial notice of the fact that the Property had been quitclaimed to Snizhana Willis, a fact which was, in any event, conceded by Island Shore in the memorandum on standing it filed with the court. Given the procedural posture of the case, however, the court was required to accept as true the allegations in the SAC that Island Shore suffered damages. (See Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064 [in ruling on motions for judgment on the pleading and demurrers, court must accept as true the complaint's factual allegations and may consider only defects disclosed on the face of the pleadings or matters properly subject to judicial notice]; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [court may take judicial notice of recorded deeds and consider matters which have been conceded or cannot reasonably be controverted].) Accordingly, there was no basis to dismiss Island Shore for lack of standing to pursue its claim for damages arising from the purchase of the subject property due to fraud or failure to disclose.

DISPOSITION

The trial court is directed to vacate the order dismissing Island Shore. The matter is remanded for further proceedings consistent with this opinion. Island Shore is awarded its costs.

We concur:

EPSTEIN, P. J.

WILLHITE, J.