Redjai v. Barrett Daffin Frappier Treder & Weiss CA4/3 ( 2021 )

Filed 9/1/21 Redjai v. Barrett Daffin Frappier Treder & Weiss CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RAMIN REDJAI,
Plaintiff and Appellant, G058616
v. (Super. Ct. No. 30-2016-00885843)
BARRETT DAFFIN FRAPPIER TREDER OPINION
& WEISS,
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Richard
Y. Lee, Judge. Affirmed.
IronCastle Law and Michele E. IronCastle for Plaintiff and Appellant.
Barrett Daffin Frappier Treder & Weiss and Edward A. Treder for
Defendant and Respondent.
* * *
INTRODUCTION
This appeal arises from a judgment in favor of defendant Barrett Daffin
Frappier Treder & Weiss, LLP (Barrett). In an earlier opinion, we affirmed the judgment
entered in favor of codefendant Nationstar Mortgage, LLC (Nationstar) and against
plaintiff Ramin Redjai. (Redjai v. Nationstar Mortgage, LLC (Apr. 14, 2021, G058005)
[nonpub. opn.] (Redjai I).) In 2005, Redjai secured a refinancing loan for his property
through a deed of trust. When Redjai defaulted on the loan, Barrett, as trustee for
Nationstar, recorded a notice of default on the loan and notice of trustee’s sale through a
nonjudicial foreclosure. Redjai sent a request for debt validation to Nationstar and
Barrett and received accountings showing different balances claimed. Barrett later
rescinded the notice of default at the direction of Nationstar and no foreclosure ever
occurred.
Before the rescission, Redjai sued Nationstar and Barrett for wrongful
foreclosure, violations of the Homeowner Bill of Rights, unfair debt collection, deceit,
declaratory relief, and other causes of action. This appeal involves both Redjai’s initial
complaint and an amended complaint. On the initial complaint, the trial court granted
Barrett’s motion for summary adjudication on some of Redjai’s causes of action. On the
surviving causes of action, the court denied Redjai’s motion for summary judgment and
granted Barrett’s motion for judgment on the pleadings with leave to amend all but one of
the causes of action. When Redjai filed an amended complaint, Barrett filed a demurrer
and the court sustained the demurrer without leave to amend.
Redjai challenges the trial court’s rulings on all four motions. We conclude
no error has been shown and the trial court correctly ruled in favor of Barrett on all four
motions because no foreclosure is pending, the notice of default has been rescinded,
Redjai has not shown the beneficial interest under his trust deed is void, and Barrett was
statutorily privileged as a trust deed trustee. As we will discuss, none of Redjai’s
arguments on appeal has merit. We therefore affirm the judgment.
2
1
FACTUAL BACKGROUND
I. REDJAI’S SECURED LOAN, MODIFICATION PAYMENTS, AND BANKRUPTCY DISCHARGE
As we summarized in Redjai I, supra, G058005, Redjai refinanced his
home loan in 2005, signing a trust deed to secure a promissory note for about
$1.3 million. The lender was Countrywide Home Loans, Inc. (Countrywide) and
Mortgage Electronic Registration Systems, Inc. (MERS) was the beneficiary “acting
solely as a nominee for” Countrywide. In 2008, Bank of America purchased
Countrywide.
In September 2009, Redjai entered into a trial loan modification agreement
with Bank of America and, over the next 10 months, made about $49,000 in periodic
payments. Redjai made his last payment in July 2010 and filed a voluntary bankruptcy
petition in January 2011. Four months later, the bankruptcy court discharged Redjai’s
liability for personal debts, but not the mortgage debt.
After the bankruptcy discharge, Nationstar informed Redjai it was the new
loan servicer for Redjai’s refinance loan, as successor to Bank of America. Redjai
informed Nationstar that Bank of America never accounted for the $49,000 Redjai paid
Bank of America. Over the next few years, Redjai and Nationstar discussed Redjai’s
claim about discrepancies in the amount owed on the loan and Redjai’s failure to make
any further payments on the debt.
II. ASSIGNMENTS OF THE TRUST DEED
In 2011, MERS had assigned the trust deed to U.S. Bank National
Association (U.S. Bank), which received the assignment “as trustee, for the benefit of
Harborview 2005-2 Trust Fund.” Two years later, in 2013, U.S. Bank executed a
1
We limit our summary of facts to those relevant to the appellate issues raised with
respect to Barrett.
3
corporate assignment of the trust deed, giving Nationstar “all beneficial interest under”
the trust deed.
In December 2015, Nationstar designated Barrett as the new trustee.
Specifically, Barrett signed a “Substitution of Trustee” as Nationstar’s “Attorney in
Fact,” which was recorded in the county recorder’s office. One day later, Barrett initiated
proceedings to sell Redjai’s property when it recorded a “Notice of Default and Election
to Sell Under Deed of Trust” (default notice). The default notice alleged a balance of
$397,145.53 owed and advised a foreclosure sale of the property would occur if the
balance was not timely paid. Redjai sent a request for debt validation to both Nationstar
and Barrett and, over the course of a few months, received multiple accountings showing
different balances claimed. In January 2016, Barrett sent a reinstatement quote to Redjai,
representing that $408,025.19 had to be paid to stop the foreclosure process. Two
months later, in March 2016, Barrett recorded a “Notice of Trustee’s Sale.”
The following month, Nationstar assigned its interest under the trust deed
back to U.S. Bank, identified this time “as trustee for [the benefit of] Harborview
Mortgage Loan Trust 2005-2, Mortgage Loan Pass-Through Certificates, Series 2005-2.”
That same day, another document entitled “Substitution of Trustee” was recorded. It was
signed by an employee for Nationstar and again designated Barrett as the trust deed’s
new trustee. In April 2018, Barrett recorded a notice of rescission of the default notice.
No foreclosure sale of the property has ever occurred.
PROCEDURAL HISTORY
Redjai’s appeal arises from both his initial complaint and first amended
complaint. Other than one aspect we discuss post, the two iterations of the complaint do
not materially differ for purposes of our discussion. Redjai’s allegations dispute the
amount of debt owed under the refinance loan and the defendants’ rights to enforce the
loan’s security interest against his property. Redjai’s initial complaint alleged 12 causes
of action for: (1) wrongful foreclosure; (2) filing a void notice of default (Civ. Code,
4
§ 2923.55); (3) filing an inaccurate declaration on the amount owed in the default notice
(id., § 2924.17); (4) cancellation of the default notice and notice of trustee’s sale;
(5) violation of the unfair competition law (Bus. & Prof. Code, § 17200 et seq.) (UCL);
(6) violation of the Fair Debt Collections Practices Act (15 U.S.C. § 1692 et seq.)
(FDCPA); (7) deceit; (8) fraud; (9) constructive fraud; (10) declaratory relief;
(11) violation of the Truth In Lending Act (15 U.S.C. § 1641); and (12) negligence. The
fraud cause of action was the only one not alleged against Barrett.
2
Nationstar filed a motion for summary judgment and Barrett filed a motion
to join Nationstar’s motion or, in the alternative, for summary adjudication (the MSA).
The court granted summary adjudication in favor of Barrett on Redjai’s first, second,
third, fourth, and twelfth causes of action. On his remaining causes of action, Redjai
filed a motion for summary judgment (the MSJ) and Barrett filed a motion for judgment
on the pleadings (the MJP). In support of his MSJ, Redjai submitted a declaration by
Marla Giddings, his expert witness on real property transactions, to which Barrett filed
objections.
In December 2018, before the trial court heard Barrett’s MJP, the parties
requested a trial continuance but stipulated that the filing deadline for all “dispositive
motions” would remain tied to the then-scheduled February 2019 trial date. The court
continued trial to August 2019 and approved the parties’ stipulation by entering an order
that stated “[t]he statutory motion cut-off date for pre-trial dispositive [motions] is based
on” the February trial date.
Five months later, in May 2019, the trial court denied Redjai’s MSJ and
granted Barrett’s MJP on Redjai’s six remaining causes of action against Barrett. The
court granted Redjai leave to amend his complaint for all but his declaratory relief cause
of action. The procedural status of the case changed when Redjai filed a first amended
2
Nationstar’s motion is not at issue in this appeal.
5
complaint (the FAC) the following month realleging his five surviving causes of action:
(1) violation of the FDCPA; (2) deceit; (3) constructive fraud; (4) violation of the Truth
In Lending Act; and (5) violation of the UCL.
Barrett filed a demurrer to the FAC. Redjai objected to the demurrer based
on the motions deadline stipulation discussed ante, and Barrett requested an order
confirming its demurrer could be adjudicated on its merits. The trial court granted
Barrett’s request and denied Redjai’s requests to enforce the stipulation and strike
Barrett’s demurrer.
In September 2019, the trial court heard argument on Barrett’s demurrer
and sustained it without leave to amend. The court subsequently entered judgment in
Barrett’s favor and Redjai appealed.
DISCUSSION
Redjai challenges the trial court’s orders granting in whole or in part all
three of Barrett’s motions—the MSA, the MJP, and the demurrer—as well as the court’s
order denying Redjai’s MSJ. Redjai does not challenge the court’s rulings that rejected
his fourth cause of action (seeking cancellation of the default notice and trustee’s sale
notice), ninth cause of action (for constructive fraud), and eleventh cause of action (for
violation of the Truth In Lending Act). Accordingly, we do not discuss those claims. We
address first Redjai’s challenges to the trial court’s rulings related to Barrett’s MSA, then
3
the rulings related to Redjai’s MSJ, Barrett’s MJP, and finally Barrett’s demurrer.
3
Although Barrett correctly notes that Redjai did not challenge the court’s denial of his
motion by a writ petition within 20 days after service of the written notice of entry of the
order (Code Civ. Proc., § 437c, subd. (m)(1)), Redjai can still challenge the denial of his
motion on appeal from the judgment. (See Federal Deposit Ins. Corp. v. Dintino (2008)
167 Cal.App.4th 333, 344.)
6
I. BARRETT’S MSA WAS PROPERLY GRANTED AS TO THE FIRST, SECOND, THIRD,
AND TWELFTH CAUSES OF ACTION OF REDJAI’S INITIAL COMPLAINT
We review a summary adjudication motion ruling de novo. (Lunardi v.
Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819.) The moving party
bears the initial burden of production to make a prima facie showing that no triable issue
of material fact exists and that the party is therefore entitled to judgment as a matter of
law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party
carries this burden, the burden shifts to the opposing party to make a prima facie showing
a triable issue of material fact exists. (Ibid.) The moving party at all times bears the
burden of persuasion. (Ibid.)
The moving party’s papers are strictly construed and the opposing party’s
papers are liberally construed, with all doubts on the propriety of granting summary
judgment resolved in favor of denying it. (Hamburg v. Wal-Mart Stores, Inc. (2004)
116 Cal.App.4th 497, 502.) Similarly, we strictly construe the moving party’s evidence
and liberally construe the opposing party’s evidence. (City of Vista v. Robert Thomas
Securities, Inc. (2000) 84 Cal.App.4th 882, 886.)
A. Redjai’s Evidentiary Objections Do Not Provide a Ground to Reverse the MSA Grant
As part of his opposition to the MSA, Redjai filed written objections to
Barrett’s evidence. Although the trial court did not explicitly rule on his objections,
Redjai has waived his appellate arguments on all objections except one, because he
presents no meaningful argument as to why the court erred by admitting the evidence.
(See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill)
[“‘[w]e are not bound to develop appellants’ arguments for them. [Citation.] The
absence of cogent legal argument . . . allows this court to treat the contentions as
waived’”].)
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The one exception to this waiver is Redjai’s objection to a “limited power
of attorney” that Barrett offered to the trial court through both a request for judicial notice
and a declaration by Barrett’s senior vice president, Jorge Rios-Jimenez. According to
the face of the power of attorney document, it was signed and recorded in 2014, and
purportedly authorized Barrett to act as “Nationstar’s true and lawful attorney-in-fact”
and expressly authorized Barrett to take certain actions in the name of Nationstar.
In the trial court, Redjai objected to the document as hearsay and also
asserted it lacked foundation and was not authenticated. In his appellate brief, Redjai
argues that because the document was purportedly signed by Nationstar, it could not have
been properly authenticated by Barrett and was therefore inadmissible. In the absence of
that document, Redjai argues, there was no evidence that Barrett was authorized to take
any actions with regard to Redjai’s property. Given the court’s lack of a ruling on the
objection, we review Redjai’s argument on the point de novo. (Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 535 (Reid).)
Redjai asserts the recorded power of attorney “is the only document that
Barrett has provided as evidence of its authority to work for Nationstar” (boldface
omitted) and that because “Barrett has not proven its authority to act as the trustee for
[Redjai]’s [p]roperty, the [c]ourt erred in granting Barrett’s MSA.” Redjai’s argument
fails because Rios-Jimenez’s declaration asserted that, among other things, Barrett
received from Nationstar “instructions to proceed with . . . foreclosure [on Redjai’s
property] in the name of Nationstar.” This part of the declaration was itself sufficient to
shift the burden of production on the point of Barrett’s relationship with Nationstar to
Redjai. Because Redjai has waived any other arguments about the evidentiary value of
the declaration, Redjai’s argument that Barrett did not prove its authorization to act as a
trustee of Redjai’s 2005 trust deed fails and Redjai has not demonstrated an evidentiary
ground for reversal of the trial court’s grant of the MSA.
8
B. The Trial Court’s MSA Rulings on the Merits of Redjai’s Causes of Action
1. Wrongful Foreclosure
On Redjai’s first cause of action for wrongful foreclosure, the trial court
granted summary adjudication because the noticed foreclosure sale had been cancelled
and no foreclosure had occurred. The court ruled correctly. Outside of limited relief for
violations of statutory provisions such as the Homeowner Bill of Rights, a borrower such
as Redjai cannot litigate a preemptive judicial action to determine whether an entity can
foreclose. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 814
(Saterbak); see Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924
(Yvanova).)
2. Homeowner Bill of Rights Violations
Redjai’s second and third causes of action alleged Barrett violated the
Homeowner Bill of Rights. Specifically, the second cause of action alleged Barrett’s
recorded default notice contained a purportedly false declaration made by Nationstar,
asserting Nationstar had diligently tried to contact Redjai before the default notice was
4
recorded. (Civ. Code, § 2923.55 [prerecording requirements for default notice]).
Redjai’s third cause of action alleged the default notice was inaccurate as to the amount
Redjai owed. (Id., § 2924.17 [accuracy requirements for recorded declarations].)
Even assuming that Redjai could allege a Civil Code section 2923.55
violation against Barrett as a trustee, Redjai could obtain neither damages nor injunctive
relief in this case because the purported violation would have already been remedied.
The preforeclosure remedy available to Redjai for a violation of that statute was a
postponement of the foreclosure sale until the violation was remedied. (Id., § 2924.12,
subd. (a).) Because Barrett rescinded the default notice, Redjai was not entitled to relief.
4
We discuss the version of Civil Code section 2923.55 in effect when it was allegedly
violated in 2015. (Stats. 2013, ch. 76, § 15 [repealed in 2018 by sunset provision]; Stats.
2018, ch. 404, § 6 [recodified with minor alterations, effective Jan. 1, 2019].)
9
Therefore, Barrett was entitled to summary adjudication as a matter of law on Redjai’s
second cause of action.
The same logic applies to Redjai’s third cause of action. Civil Code
“[s]ection 2924.17 creates a procedural right directed at the requirements for” the
declaration the mortgage servicer is required to provide under Civil Code section 2923.55
when a notice of default is recorded. (Lucioni v. Bank of America, N.A. (2016)
3 Cal.App.5th 150, 162.) A trustee’s duty under Civil Code section 2924.17 is to include
a mortgage servicer’s section 2923.55 declaration with a default notice and the record is
clear Barrett did so in this case. Redjai has not shown how section 2924.17’s other
requirements apply to Barrett as a trustee. Because Redjai brought this action
preforeclosure, the undisputed rescission of the default notice means Barrett was entitled
to summary adjudication on Redjai’s third cause of action because Redjai was not
entitled to relief for the purported violation.
3. Negligence
Redjai’s 12th cause of action alleged general negligence, asserting Barrett
had “a duty to exercise reasonable care and skill to refrain from taking any action against
[Redjai] that [it did] not have the legal authority to do.” The trial court found Redjai’s
negligence claim failed “for want of a duty of care” owed by Barrett.
The trial court correctly granted summary adjudication on this cause of
action because no evidence was presented that Barrett’s conduct went beyond its role as a
trustee. “‘“The scope and nature of the trustee’s duties are exclusively defined by the
deed of trust and the governing statutes [for nonjudicial foreclosure]. No other common
law duties exist.”’” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 819.) “The
trustee under a deed of trust ‘is not a true trustee and owes no fiduciary obligations; [it]
merely acts as a common agent for the trustor and beneficiary of the deed of trust. . . .
[The trustee’s] only duties are: (1) upon default to undertake the steps necessary to
foreclose the deed of trust; or (2) upon satisfaction of the secured debt to reconvey the
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deed of trust.’” (Heritage Oaks Partners v. First American Title Ins. Co. (2007)
155 Cal.App.4th 339, 345.)
Redjai cites Munger v. Moore (1970) 11 Cal.App.3d 1, 7 (Munger), to argue
a trustee can be liable to a trustor “for damages sustained from an illegal, fraudulent or
willfully oppressive sale of property under a power of sale contained in a mortgage or
trust deed, on the basic principle of tort liability declared in [Civil Code section ] 1708.”
But that case is not on point.
In Munger, a trustee completed a foreclosure sale after refusing to accept a
tender of payment that would have cured the default justifying the sale. (Munger, supra,
11 Cal.App.3d at pp. 5-6.) The trial court ruled in favor of the plaintiff who had tendered
payment; on appeal, the defendant who had insisted the trustee refuse the tender
challenged the trial court’s standard for measuring damages and the sufficiency of the
evidence supporting the court’s damages finding. (Id. at p. 6.)
The issue of whether the trustee owed the plaintiff a duty of care was not
disputed in Munger and indeed, the appellate court expressly cited the nonjudicial
foreclosure statute when it discussed the trustee’s liability. (Munger, supra,
11 Cal.App.3d at p. 8 [citing right to cure default under Civ. Code, § 2924c].)
Additionally, the completed foreclosure sale in that case (id. at pp. 5-6) completely
distinguishes Munger from this preforeclosure case. (See Saterbak, supra,
245 Cal.App.4th at p. 814 [“California courts do not allow such preemptive suits because
they ‘would result in the impermissible interjection of the courts into a nonjudicial
scheme enacted by the California Legislature’”].) Munger does not support a conclusion
that a trustee owes a general duty of care outside of a governing deed of trust and the
nonjudicial foreclosure statutes.
Redjai asserts that “Barrett did not have authority to record” the default
notice and “intentionally and maliciously recorded” a notice of trustee’s sale “knowing
that there was an ongoing dispute regarding the alleged debt owe[d].” None of his points
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implicates conduct that lies outside the scope of Redjai’s trust deed and governing
nonjudicial foreclosure statutes. (See Citrus El Dorado, LLC v. Chicago Title Co. (2019)
32 Cal.App.5th 943, 945.)
The trial court correctly concluded Redjai’s failure to prove the existence of
a duty by Barrett to Redjai was dispositive of Redjai’s negligence claim. The court
correctly granted summary adjudication in favor of Barrett on Redjai’s first, second,
third, and twelfth causes of action.
II. REDJAI’S MSJ WAS PROPERLY DENIED
Next, we address Redjai’s contention that the trial court erred in denying
his MSJ against Barrett. Specifically, Redjai challenges the denial of his motion as to his
fifth, sixth, seventh, and tenth causes of action, for violation of the UCL, violation of the
FDCPA, deceit, and declaratory relief.
To succeed on his MSJ, Redjai had the burden to establish that undisputed
facts supported each element necessary to his causes of action. (See Anderson v.
Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289-290.) Redjai submitted his
own declaration as well as a declaration from Marla Giddings, his expert witness. In the
trial court, he relied on Giddings’s declaration to argue that recorded documents such as
assignments of his 2005 trust deed were “void” and that Bank of America had discharged
Redjai’s refinance loan debt before Nationstar became the servicer for the debt in
September 2013.
A. The Trial Court Did Not Err in Excluding the Declaration of Redjai’s Expert
Redjai presents meaningful argument only for the evidentiary ruling
sustaining Barrett’s objections to Giddings’s declaration. Accordingly, Redjai’s appellate
challenges to other rulings have been waived. (See Cahill, supra, 194 Cal.App.4th at
p. 956.) Barrett objected to portions of Giddings’s declaration on the ground it offered
12
improper legal opinions and the court sustained the objections, concluding the declaration
“contain[ed] improper expert testimony and legal opinions.” We review the ruling for
abuse of discretion (Reid, supra, 50 Cal.4th at p. 535) and conclude Barrett’s objections
were correctly sustained.
As explained in more detail in Redjai I, supra, G058005, Giddings’s legal
conclusions about documentary evidence were properly excluded. Giddings based her
opinions on conjecture or speculative matters. (Korsak v. Atlas Hotels, Inc. (1992)
2 Cal.App.4th 1516, 1524.) For example, although she asserted the inclusion of “Trust
Fund” in the beneficiary name of the 2011 assignment meant it “would [not] be able to
serve as a REMIC trust and Securitization Trust,” there is no meaningful factual basis
presented to assess how Giddings arrived at that conclusion. (See Chavez v. Glock, Inc.
(2012) 207 Cal.App.4th 1283, 1321 [expert’s “conclusory” opinion insufficient to
establish triable issue of material fact].)
Giddings’s declaration is rife with legal conclusions. For example, she
declared Nationstar lacked a legally valid basis to proceed against Redjai because the
correct legal entity did not assign its rights to Nationstar and therefore all the recorded
assignments were void. Legal determinations reside with the courts, not with expert
witnesses. (See People v. Jones (2013) 57 Cal.4th 899, 950 [improper for experts “‘to
testify to legal conclusions in the guise of expert opinion’”].)
The trial court properly sustained Barrett’s objections to Giddings’s
declaration testimony and Redjai has not shown an abuse of discretion. We reject his
appellate argument he was entitled to summary judgment for any of his initial
complaint’s causes of action premised on arguments that recorded documents were
“void.” In the trial court, Redjai asserted that Bank of America had discharged Redjai’s
refinance loan debt; however, he has forfeited that argument on appeal. (Pizarro v.
Reynoso (2017) 10 Cal.App.5th 172, 179 (Pizarro) [issue forfeited by failure to clearly
identify in a heading, citing Cal. Rules of Court, rule 8.204(a)(1)(B)].) Redjai’s appellate
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contention that Barrett did not have legal authority to enforce the security interest arising
from his 2005 refinance loan is not supported by Giddings’s opinions.
B. The Trial Court’s MSJ Rulings on the Merits of Redjai’s Causes of Action
1. Federal Debt Collection Practices Act
Redjai’s sixth cause of action alleged Barrett violated the FDCPA because
it attempted to collect a debt that was discharged by Nationstar’s predecessor (Bank of
America), misrepresented the amount of the debt, attempted to coerce payment by
seeking nonjudicial foreclosure, and attempted to collect on amounts discharged in
bankruptcy.
The United States Supreme Court recently held in Obduskey v. McCarthy &
Holthus LLP (2019) ___ U.S. ___ [139 S.Ct. 1029] (Obduskey) that “but for [15 U.S.C.
section] 1692f(6), those who engage in only nonjudicial foreclosure proceedings are not
debt collectors” under the FDCPA. (Obduskey, supra, at p. ___ [139 S.Ct. at p. 1038].)
Section 1692f(6) of title 15 to the United States Code prohibits taking or threatening
nonjudicial action to dispossess property if there is no present right to possession, no
present intention to take, or the property is legally exempt from being taken. (Dowers v.
Nationstar Mortgage, LLC (9th Cir. 2017) 852 F.3d 964, 970-971.)
The only basis for alleging Barrett is a debt collector under the FDCPA is
its role in the nonjudicial foreclosure proceedings in this case. (See Obduskey, supra,___ U.S. ___ [139 S.Ct. at p. 1039].) Thus, Redjai can only claim Barrett violated the
FDCPA if, as Redjai asserts in his appellate brief, Barrett “ha[d] no authority to act with
respect as to his note, deed of trust, debt or property.” (See 15 U.S.C. § 1692f(6)(A) &
(B).) Given our conclusion ante that Redjai failed to show the beneficial interest of his
trust deed is unenforceable as void, his contention that the FDCPA was violated fails
under Obduskey. The trial court correctly concluded Redjai did not establish a right to
judgment as a matter of law on his sixth cause of action.
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2. Deceit
On Redjai’s seventh cause of action for deceit, the trial court denied
Redjai’s MSJ because “Redjai ha[d] not met his initial burden on th[e] issue.” The court
correctly denied summary judgment. The well-established statutory privilege for a trust
deed trustee such as Barrett protects a trustee’s communications and publications during
the nonjudicial foreclosure process, such as recording a default notice. (Civ. Code,
§ 2924, subd. (d).) Although there is a split of appellate court authority on whether the
privilege is absolute or qualified (see Schep v. Capital One, N.A. (2017) 12 Cal.App.5th
1331, 1337 (Schep)), that issue makes no difference here because Redjai’s allegations
amount at most to claims of mistake and not maliciousness.
To establish that Barrett acted maliciously in this case, Redjai asserts that
Barrett either intentionally or with reckless disregard recorded the notice of trustee’s sale
while aware that Redjai was disputing the alleged debt amount owed. In addition to his
theory of void beneficial interest assignments that we rejected ante, Redjai cites to Civil
Code section 2934a, subdivision (a)(1), and the FDCPA to support his argument that
Barrett acted maliciously. He asserts Civil Code section 2934a was violated by both the
December 2015 and April 2016 substitution of trustee recordings—both designating
Barrett as the trustee for Redjai’s trust deed—because they were not “signed by the
beneficiary of [Redjai’s trust d]eed.” However, even assuming without deciding that
Civil Code section 2934a was violated, Redjai has failed to show how Barrett’s filing of a
default notice amounted to a “reckless disregard” for Redjai’s rights, particularly because
it is undisputed Redjai had stopped making any repayment on his underlying loan.
Similarly, Redjai’s reliance on a purported violation of the FDCPA fails to
demonstrate malice attributable to Barrett. Redjai repeats that there was an “ongoing
dispute” as to how much money he owed on his unpaid home loan. He alleges that
shortly after Barrett recorded the default notice, he demanded a validation of his debt and
received differing information that varied by as much as $51,000. Redjai’s complaint
15
and his separate statement of undisputed material facts in support of his MSJ show,
however, that Barrett communicated two claimed balances—$397,145.53 in the default
notice and $408,025.19 in a reinstatement quote sent to Redjai the following month.
Even assuming these differing amounts demonstrated accounting errors, Redjai has failed
to establish that they show intentional hatred, ill-will, or reckless disregard. (Schep,
supra, 12 Cal.App.5th at p. 1337.) In sum, Redjai has failed to show the malice
necessary to overcome the express privilege afforded to Barrett under Civil Code section
2924, subdivision (d). The trial court correctly found Redjai was not entitled to summary
judgment on his seventh cause of action.
3. Unfair Competition Law
Redjai’s fifth cause of action alleged Barrett violated the UCL. To prevail
on a UCL claim, the plaintiff must prove the defendant engaged in an “unlawful, unfair,
or fraudulent business act or practice.” (Bus. & Prof. Code, § 17200.) The UCL
“‘borrows’ violations from other laws by making them independently actionable as unfair
competitive practices.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th
1134, 1143.) Given our conclusion that the trial court correctly decided Redjai was not
entitled to summary judgment on the causes of action discussed ante, it follows he was
5
not entitled to summary judgment on his UCL claim.
4. Declaratory Relief
In his 10th cause of action for declaratory relief, Redjai sought a judicial
determination that Barrett did not have authority to enforce the security interest created
5
In addition to Redjai’s failure to establish his entitlement to judgment as a matter of
law on a predicate violation, as explained in more detail in Redjai I, supra, G058005,
Redjai could not establish a private UCL claim, which requires a plaintiff to
“(1) establish a loss or deprivation of money or property sufficient to qualify as injury in
fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e.,
caused by, the unfair business practice . . . that is the gravamen of the claim.” (Kwikset
Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.)
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when Redjai obtained a refinance loan in 2005. The court denied Redjai’s MSJ on this
cause of action, concluding Redjai was “mak[ing] the same arguments in support of [his
declaratory relief cause of action] as [he] made on” his other causes of action. We agree
with the court that “Redjai’s evidence [was] insufficient for him to prove [his]
contentions [and c]onsequently,” Redjai failed to meet his initial burden for entitlement
to declaratory relief as a matter of law.
“‘“The fundamental basis of declaratory relief is the existence of an actual,
present controversy over a proper subject.”’” (Jenkins v. JPMorgan Chase Bank, N.A.
(2013) 216 Cal.App.4th 497, 513, disapproved on other grounds Yvanova, supra,
62 Cal.4th at p. 939, fn. 13.) “Whether a claim presents an ‘“‘actual controversy’ [under]
Code of Civil Procedure section 1060 is a question of law that we review de novo.”’”
(Jenkins v. JPMorgan Chase Bank, N.A., supra, at p. 514.) Outside of injunctive relief
not sought here (e.g., Civ. Code, §§ 2924.12, subd. (a)(1), 2924.19, subd. (a)(1)), we do
not recognize “preemptive suits because they ‘would result in the impermissible
interjection of the courts into a nonjudicial scheme enacted by the California
Legislature.’” (Saterbak, supra, 245 Cal.App.4th at p. 814; see Perez v. Mortgage
Electronic Registration Systems, Inc. (9th Cir. 2020) 959 F.3d 334, 340 [“California law
does not permit preemptive actions to challenge a party’s authority to pursue foreclosure
before a foreclosure has taken place”].)
Although Redjai acknowledges “that a homeowner does not have the right
to preemptively challenge nonjudicial foreclosure,” he nonetheless asserts the trial court
erred “because [he] pled and provided evidence that at no time did Barrett have the legal
right to act as to [his] debt, [d]eed, [promissory] note, or [p]roperty.”
Given it is undisputed that a nonjudicial foreclosure has not been conducted
on Redjai’s property and none is pending, the trial court correctly concluded Redjai failed
to establish undisputed facts supported his declaratory relief cause of action. In sum, the
trial court correctly denied Redjai’s MSJ.
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III. THE TRIAL COURT DID NOT ERR BY GRANTING BARRETT’S MJP
We review the trial court’s order granting Barrett’s MJP de novo. (Cloud v.
Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.) In doing so, we read the
complaint as a whole and its parts in their context to give the complaint a reasonable
interpretation. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6.) We accept all properly
pleaded material facts as true, but not contentions, deductions, or conclusions of fact or
law. (Ibid.) “Where a demurrer is sustained or a motion for judgment on the pleadings is
granted as to the original complaint, denial of leave to amend constitutes an abuse of
discretion if the pleading does not show on its face that it is incapable of amendment.”
(Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)
We review whether the court erred in granting Barrett’s MJP for Redjai’s
fifth, sixth, seventh, and tenth causes of action in his initial complaint, for violation of the
UCL, violation of the FDCPA, deceit, and declaratory relief. For the same reasons we
discussed in our review of Redjai’s MSJ, we conclude the trial court correctly granted
Barrett’s MJP against Redjai’s causes of action at issue on appeal. The facts alleged were
not sufficient to state these causes of action against Barrett. Redjai cannot assert these
claims before a foreclosure has occurred (see Yvanova, supra, 62 Cal.4th at p. 924); his
causes of action fail for the additional reasons discussed ante explaining why the trial
court did not err in denying his MSJ. Redjai has not set forth any meaningful argument
as to whether it was an abuse of discretion for the trial court to deny him leave to amend
his declaratory relief cause of action. Accordingly, he has forfeited the argument.
(Pizarro, supra, 10 Cal.App.5th at p. 179.) The trial court’s order granting the MJP
provides no ground for reversal of its eventual judgment.
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IV. THE TRIAL COURT DID NOT ERR IN SUSTAINING BARRETT’S DEMURRER TO
REDJAI’S FIRST AMENDED COMPLAINT WITHOUT LEAVE TO AMEND
A. Redjai’s Procedural Objection to Barrett’s Demurrer Is Without Merit
Redjai challenges the trial court’s ruling on Barrett’s demurrer to Redjai’s
FAC on both procedural and substantive grounds. Procedurally, Redjai asserts the trial
court abused its discretion by considering and ruling on Barrett’s demurrer, filed June
2019, even though the court had earlier entered an order that “[t]he statutory motion cut-
off date for pre-trial dispositive [motions would be] based on [a] trial date of February 11,
2019.” When the court granted Barrett’s MJP, the court included in its May 2019 minute
order the following: “all statutory motion cut-off dates are not extended absent a finding
of good cause and upon an order from the Court allowing such.”
Redjai argues that because Barrett filed its demurrer before receiving leave
from the trial court, the court erred in considering the demurrer on its merits. Redjai
asserts the court “ratified Barrett’s breach of the stipulation” regarding a dispositive
motion deadline. (Capitalization omitted.) According to Redjai, the court should have
granted his ex parte applications to enforce the stipulation and strike Barrett’s demurrer.
Redjai’s procedural challenge has no merit because every court has “the
power to . . . [¶] . . . [¶] . . . provide for the orderly conduct of proceedings before it, or its
officers.” (Code Civ. Proc., § 128, subd. (a)(3); see id., § 187.) The trial court did not
abuse its discretion because considering the demurrer on its merits was a reasonable
exercise of control over litigation and Redjai has not shown a violation of an applicable
6
statute or rule.
The change in the procedural landscape of the case when Redjai filed his
FAC justified Barrett’s demurrer to the FAC and Redjai fails to show the court’s exercise
6
Redjai also argues the trial court erred because its orders allowing Barrett’s demurrer to
proceed lacked explicit reasoning, but he does not cite to any statute or rule that required
the court’s reasoning to be explained.
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of its wide discretion was unreasonable. Given that the purpose of demurrers is to
conserve judicial resources by weeding out nonmeritorious claims (see Linder v. Thrifty
Oil Co. (2000) 23 Cal.4th 429, 440-441), allowing Barrett to attack Redjai’s amended
pleading by demurrer was reasonable.
Moreover, the legislature has expressed a public policy that a defendant’s
right to attack a complaint for failing to “state facts sufficient to constitute a cause of
action” (Code Civ. Proc., § 430.10, subd. (e))—a ground Barrett’s demurrer asserted and
on which it succeeded—cannot be waived. (Id., § 430.80, subd. (a); Henry v. Associated
Indemnity Corp. (1990) 217 Cal.App.3d 1405, 1413, fn. 8.) If the trial court had agreed
with Redjai and prohibited Barrett’s general demurrer from being heard, that decision
would have contradicted the public policy expressed in Code of Civil Procedure,
section 430.80, subdivision (a).
Redjai argues the trial court’s allowance of Barrett’s demurrer was
erroneous because only a violation of public policy could justify not enforcing a
stipulation between parties. Redjai cites to DVD Copy Control Assn., Inc. v.
Kaleidescape, Inc. (2009) 176 Cal.App.4th 697, but his lack of meaningful discussion has
forfeited the argument. (See Cahill, supra, 194 Cal.App.4th at p. 956.) We nevertheless
note that DVD Copy Control is inapposite because the stipulation at issue in that case was
contained in a commercial contract and addressed the type of damages that would be
available to one of the signatories if litigation occurred. The trial court did not abuse its
discretion when it allowed Barrett’s demurrer to be adjudicated on its merits.
B. The Trial Court Correctly Sustained Barrett’s Demurrer Without Leave to Amend
In his appellate brief, Redjai discusses one point of material difference
between the allegations of the FAC and those in the initial complaint. The FAC includes
allegations about a copy of Redjai’s signed 2005 promissory note that was “provided by”
Barrett to Redjai in January 2016, in response to Redjai’s request for a debt validation.
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Redjai alleges the copy of the note was “fraudulent as the [note’s] indorsement to
Countrywide[, i.e., the original beneficiary of Redjai’s trust deed,] was intentionally and
maliciously removed and [a copy of the note] was stamped as [a] certified true and
correct copy of the original” note. In his appellate brief, Redjai asserts “Nationstar
provided [Redjai] a copy of the promissory note with Countrywide’s indorsement
removed.” (Italics added.)
Redjai’s allegation that in 2016 Barrett delivered a fraudulent copy of the
promissory note Redjai signed in 2005 does not support the FAC’s deceit cause of action.
“The elements of fraud that will give rise to a tort action for deceit are:
‘“(a) misrepresentation (false representation, concealment, or nondisclosure);
(b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e. to induce reliance;
(d) justifiable reliance; and (e) resulting damage.”’” (Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 974, italics added.) Barrett contends there is “no
plausible claim of detrimental reliance or of damages proximately caused by such
reliance [and that t]he lack of causation is fatal.” In his reply brief, Redjai cites to his
initial complaint and asserts he pleaded “that he detrimentally relied on [Barrett]’s
representations and its willingness to foreclose while in a valid dispute regarding the debt
as well as its lack of authority to foreclose without the legal right to do so and that he was
damaged.” Redjai did not allege with particularity how he detrimentally relied on the
purportedly fraudulent conduct by Barrett (Lazar v. Superior Court (1996) 12 Cal.4th
631, 645 [“In California, fraud must be pled specifically; general and conclusory
allegations do not suffice”]) or how he could cure the deficiency through amendment,
particularly given that the default notice was rescinded and no foreclosure sale ever
occurred. The allegations of the FAC failed to state a cause of action for deceit.
Given the lack of material difference between the allegations of the initial
complaint and the FAC, the trial court correctly determined Redjai had failed to state
sufficient facts to support the causes of action for violations of the FDCPA or the UCL.
21
As discussed ante, Redjai cannot assert his claims before a foreclosure has occurred,
Redjai’s FDCPA cause of action fails as a matter of law under Obduskey, supra, ___ U.S.
___ [139 S.Ct. 1029], and his UCL cause of action fails for lack of a predicate violation.
Accordingly, the trial court correctly sustained Barrett’s demurrer without leave to
amend.
DISPOSITION
The judgment is affirmed. Barrett is entitled to recover its costs on appeal.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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