Aksnes v. U.S. Bank National Ass'n CA1/5 ( 2016 )

Filed 1/27/16 Aksnes v. U.S. Bank National Ass’n CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FIVE
TED AKSNES et al.,
Plaintiffs and Appellants,
A143297
v.
U.S. BANK NATIONAL ASSOCIATION (Solano County
et al., Super. Ct. No. FCS042989)
Defendants and Respondents.
Ted Aksnes appeals from a judgment of dismissal after the trial court sustained
respondents’ demurrer to his first amended complaint without leave to amend. Aksnes
contends the court misinterpreted his cause of action for wrongful foreclosure, erred in
dismissing his fifth cause of action for slander of title, and incorrectly ruled that his
failure to allege a tender precluded his quiet title action. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
A. Allegations of First Amended Complaint
In December 2005, Aksnes and Julia Kay Kelso obtained a loan in the amount of
$404,000 from Downey Savings and Loan Association, F.A. (Downey Savings), secured
by a deed of trust on their real property located in Fairfield, California.
In November 2008, the Office of Thrift Supervision closed Downey Savings and
appointed the Federal Deposit Insurance Corporation (FDIC) as receiver. On the same
1
date, U.S. Bank acquired certain of the assets from the FDIC acting as receiver, including
Downey Savings’ interest in the loan.1
On July 30, 2010, a Notice of Default and Election to Sell Under Deed of Trust
(notice of default) was recorded in Solano County. The notice of default stated that
Aksnes and Kelso were $8,725.88 in arrears as of that date. A notice of trustee’s sale was
recorded in January 2011, and a second notice of trustee’s sale was recorded in October
2011.
On December 24, 2013, an Assignment of Deed of Trust was recorded, confirming
the assignment to U.S. Bank of all the interest of the FDIC, as receiver for Downey
Savings, in the deed of trust. A third notice of trustee’s sale was recorded on January 27,
2013, setting a sales date of February 19, 2014.
On February 3, 2014, Aksnes and Kelso filed their initial complaint in this action
against U.S. Bank and other defendants.
In March 2014, the property was sold to Parkview Edge Properties, LLC
(Parkview) at a trustee’s sale. A Trustee’s Deed Upon Sale was recorded in April 2014,
conveying title to the property to Parkview.
After U.S. Bank filed a demurrer to the complaint and the trial court sustained the
demurrer with leave to amend, Aksnes and Kelso filed their first amended complaint on
May 16, 2014. The first amended complaint is the operative pleading.
B. Causes of Action in First Amended Complaint
The first amended complaint alleged the facts set forth ante and sought damages,
injunctive relief, and other remedies. The pleading asserted several causes of action,
including the three at issue in this appeal: the second cause of action for wrongful
foreclosure (due to violations of Civil Code sections 2923.5 and 2924),2 the fifth cause of
action for slander of title, and the sixth cause of action to quiet title.
1
U.S. Bank sought judicial notice of this information in its demurrer to the first
amended complaint. Aksnes does not contend in this appeal that judicial notice was
improperly taken.
2
All further undesignated statutory references are to the Civil Code.
2
C. Demurrer to the First Amended Complaint
U.S. Bank filed a demurrer to the first amended complaint in its entirety. As to the
second cause of action, U.S. Bank argued there was no violation of section 2923.5 in
light of a declaration of compliance contained in the notice of default pursuant to section
2923.5; furthermore, the cause of action was moot because the only permissible remedy
under the statutes was a postponement of a foreclosure sale, and here the sale had already
occurred. As to the fifth cause of action, U.S. Bank maintained there was no slander of
title claim because the filing of the notice of default was absolutely privileged under
section 47, subdivision (b); in addition, the first amended complaint did not allege the
elements of slander of title. As to the sixth cause of action, U.S. Bank argued that the
first amended complaint did not state a quiet title claim because there was no allegation
that the outstanding indebtedness had been tendered.
Aksnes and Kelso filed an opposition to the demurrer. They contended the
declaration in the notice of default was false, only a qualified privilege applies in the
context of a nonjudicial foreclosure, and the tender requirement does not apply if only
damages are sought.
D. Ruling on Demurrer
After a hearing, the court adopted its tentative ruling and sustained the demurrer to
the first amended complaint without leave to amend. The court ruled that the “second
cause of action to set aside the trustee’s sale for violation of [] section[s] 2923.5 and
2924(a)(5) is moot” because the trustee sale had already occurred. The court added:
“[R]egardless of any statutory violations, there exists a conclusive presumption of
the regularity of the sale when the property is purchased by a bona fide purchaser.
([] § 2924[, subd. ](c); Moeller v. Lien (1994) 25 Cal.App.4th 822, 831 [(Moeller)].)”
As to the fifth cause of action for slander of title, the court concluded the
allegations failed to “establish that the publications were not privileged, that the
publications were false in some material respect, or that any false material in the
publications caused Plaintiffs any direct pecuniary loss.”
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Finally, the court found that the “sixth cause of action to quiet title fails to allege
tender of the outstanding balance of Plaintiffs’ indebtedness.”
A judgment of dismissal was entered, and this appeal followed.3
II. DISCUSSION
In our de novo review of the order sustaining the demurrer, we assume the truth of
all facts properly pleaded in the first amended complaint or reasonably inferred from the
pleading, but not mere contentions, deductions, or conclusions of law. (Buller v. Sutter
Health (2008) 160 Cal.App.4th 981, 985-986.) We then determine if those facts are
sufficient, as a matter of law, to state a cause of action under any legal theory. (Aguilera
v. Heiman (2009) 174 Cal.App.4th 590, 595.)
In making this determination, we also consider facts of which the trial court
properly took judicial notice. (E.g., Avila v. Citrus Community College Dist. (2006) 38
Cal.4th 148, 165, fn. 12.) Indeed, a demurrer may be sustained where judicially
noticeable facts render the pleading defective (Evans v. City of Berkeley (2006) 38
Cal.4th 1, 6), and allegations in the pleading may be disregarded if they are contrary to
facts judicially noticed. (Hoffman v. Smithwoods RV Park, LLC (2009) 179 Cal.App.4th
390, 400; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [in
sustaining demurrer, court properly took judicial notice of recorded documents that
clarified and to some extent contradicted plaintiff’s allegations].)
In order to prevail on appeal from an order sustaining a demurrer, the appellant
must affirmatively demonstrate error. Specifically, the appellant must show that the facts
pleaded are sufficient to establish every element of a cause of action and overcome all
legal grounds on which the trial court sustained the demurrer. (Cantu v. Resolution Trust
Corp. (1992) 4 Cal.App.4th 857, 879-880.) We will affirm the ruling if there is any
ground on which the demurrer could have been properly sustained. (Debro v. Los
Angeles Raiders (2001) 92 Cal.App.4th 940, 946 (Debro).)
3
The notice of appeal was filed on behalf of both Aksnes and Kelso, but the parties’
briefs treat Aksnes as the lone appellant. To the extent briefing has not been filed on
behalf of Kelso, her appeal is deemed abandoned.
4
A. Second Cause of Action (Wrongful Foreclosure)
For his second cause of action, Aksnes purported to assert a wrongful foreclosure
claim based on violations of sections 2923.5 and 2924, subdivision (a)(5). Specifically,
he claimed that U.S. Bank violated section 2923.5 by failing to contact him in person or
by telephone before recording the notice of default, and violated section 2924,
subdivision (a)(5) by failing to provide written notice of a postponement of the
foreclosure date.
Aksnes contends the court’s ruling with respect to this cause of action was
erroneous because (1) the court indicated Aksnes was seeking a remedy of setting aside
the trustee’s sale, which he was not seeking; and (2) the court made a reference to the
conclusive presumption of the regularity of the sale, which he urges was incorrect and
improperly made sua sponte.
Before addressing these arguments, we put them in context by providing the
relevant portion of the court’s ruling: “Plaintiffs’ second cause of action to set aside the
trustee’s sale for violation of [] section[s] 2923.5 and 2924(a)(5) is moot. The only
remedy for violation of [] section 2923.5 is postponement of an impending foreclosure
sale before it happens and noncompliance with the statute does not affect the title after
sale. (Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 235 [(Mabry)].) Likewise,
[s]ection 2924(a)(5) expressly does not invalidate any sale that would otherwise be valid
pursuant to [s]ection 2924f. ([] § 2924[, subd. ](a)(5)].) And, regardless of any statutory
violations, there exists a conclusive presumption of the regularity of the sale when the
property is purchased by a bona fide purchaser. ([] § 2924[, subd. ](c); Moeller[, supra,
25 Cal.App.4th at p. 831].) Plaintiff fails to allege any facts establishing that the third
party purchaser at the sale had notice of the claimed irregularities. (Nguyen v. Calhoun
(2003) 105 Cal.App.4th 428, 442.)”
1. Remedy Sought
As mentioned, Aksnes contends the court erred in sustaining the demurrer as to his
second cause of action because of its “mischaracterization of the remedy” he sought,
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because Aksnes “never sought to set aside the Trustee’s foreclosure auction deed.” His
argument is baseless.
In the first place, the second cause of action did seek to set aside the trustee’s sale.
Aksnes specifically requested that the court “set the defective [notice of default] aside
and declare the foreclosure proceeding unlawful.” In his prayer for relief, he requested
an order “declaring that the recorded foreclosure related documents are false and void
and subsequent proceedings based on these documents . . . be invalid.” (Italics added.)
Indeed, his opening brief admits that the “Second Cause of Action did seek a cancellation
of instrument as to the Notice of Default” and sought “declaratory relief” as to the
validity of the trustee’s sale. A finding that the trustee’s sale was invalid would
effectively set it aside.
Moreover, the obvious essence of the court’s ruling with respect to the second
cause of action—regardless of what remedy Aksnes was seeking—is that the only
potential remedy under the statutory provisions was to postpone a foreclosure sale, and as
a matter of law Aksnes could not obtain that remedy since the foreclosure sale had
already occurred. Aksnes fails to establish that the court’s ruling in this regard was
wrong.
Under section 2923.5, the only available remedy is the postponement of a
foreclosure sale until the requirements of the statute have been fulfilled. (Mabry, supra,
185 Cal.App.4th at pp. 223-224; Intengan v. BAC Home Loans Servicing LP (2013) 214
Cal.App.4th 1047, 1058, fn. 4 (Intengan) [“We note . . . the well-established rule that
there is no remedy for violation of [] section 2923.5 except a delay of the foreclosure sale
pending compliance with the statute. [Citations.]”]; Lueras v. BAC Home Loans
Servicing, LP (2013) 221 Cal.App.4th 49, 77 (Lueras) [“The only remedy afforded by
section 2923.5 is . . . a one-time postponement of the foreclosure sale before it
happens”].) The court in this case could not provide such a remedy because the property
had already been sold.
Similarly under section 2924, subdivision (a)(5), a borrower must be provided
notice “whenever a sale is postponed for a period of at least 10 business days pursuant to
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[s]ection 2924g,” but “[f]ailure to comply with this paragraph shall not invalidate any
sale that would otherwise be valid under [s]ection 2924f.” (Italics added.) Aksnes does
not allege that the sale would be invalid under section 2924f, and he does not establish
that damages or any other relief, besides postponing a foreclosure sale, is available. (See
Penermon v. Wells Fargo Bank, N.A. (N.D.Cal. 2014) 47 F.Supp.3d 982, 997.)
Aksnes contends the “cancellation of instrument” remedy and “declaratory relief”
he sought under section 2923.5 were not monetary remedies and therefore not precluded
by Mabry. But Mabry (and other cases) did not say that section 2923.5 allows all
nonmonetary relief—only postponement of a foreclosure sale. (Mabry, supra, 185
Cal.App.4th at p. 224; Intengan, supra, 214 Cal.App.4th at p. 1058, fn. 4; Lueras, supra,
221 Cal.App.4th at p. 77.) Furthermore, since Aksnes does not want (and cannot obtain)
an order setting aside the foreclosure sale, and he cannot obtain damages as a matter of
law, he has failed to demonstrate any purpose for the remedies of canceling the notice of
default or obtaining declaratory relief. The law will not compel an idle act, and
declaratory relief cannot be provided without an actual controversy.
In short, the trial court’s order was not erroneous due to its characterization of
Aksnes’s desired remedy.
2. Presumption of Validity
Aksnes contends the court improperly stated that the regularity of a foreclosure
sale is conclusively presumed when the property is purchased by a bona fide purchaser.
He urges that the court lacked authority to make this ruling sua sponte. His arguments
fail for multiple reasons.
First, Aksnes waived any right to challenge the ruling on the ground the court
raised the matter sua sponte, since he did not provide this court with a reporter’s
transcript of the hearing on the demurrer. Without the transcript, we cannot know
whether the court raised the conclusive presumption sua sponte, or whether it was raised
at the hearing by one of the parties. Without an adequate record, or the appearance of
reversible error on the face of the record, we indulge every presumption in favor of the
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validity of the judgment. (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324; In re
Angel L. (2008) 159 Cal.App.4th 1127, 1137.) The failure to provide the reporter’s
transcript or adequate substitute is therefore fatal to Aksnes’s argument. (Maria P. v.
Riles (1987) 43 Cal.3d 1281, 1295-1296; Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 183-186; Estate of Fain (1999) 75 Cal.App.4th 973, 992; Cal.
Rules of Court, rule 8.120(b) [“If an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court, the record on appeal must
include a record of these oral proceedings . . .”].)
Second, Aksnes fails to establish that the court’s statement concerning a
conclusive presumption of regularity was incorrect. Section 2924, subdivision (c)
provides: “A recital in the deed executed pursuant to the power of sale of compliance
with all requirements of law regarding the mailing of copies of notices or the publication
of a copy of the notice of default or the personal delivery of the copy of the notice of
default or the posting of copies of the notice of sale or the publication of a copy thereof
shall constitute prima facie evidence of compliance with these requirements and
conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for
value and without notice.” (Italics added; see Moeller, supra, 25 Cal.App.4th at p. 831
[“if the trustee’s deed recites that all statutory notice requirements and procedures
required by law for the conduct of the foreclosure have been satisfied, a rebuttable
presumption arises that the sale has been conducted regularly and properly; this
presumption is conclusive as to a bona fide purchaser” and “a trustor has no right to set
aside a trustee’s deed as against a bona fide purchaser for value by attacking the validity
of the sale”].) Here, Parkview bought the property at the trustee’s sale, and Aksnes did
not allege any facts indicating Parkview had notice of any irregularities or was not a bona
fide purchaser.
Aksnes argues that section 2924, subdivision (c) renders the recital of compliance
“conclusive evidence” of regularity in favor of bona fide purchasers only, not a
wrongfully foreclosing beneficiary who causes the sale to a bona fide purchaser. As to
beneficiaries, he urges, the recital of compliance is only “prima facie evidence” that can
8
be rebutted. But even if that were so, he provides no legal authority that the allegations
of his first amended complaint are sufficient to rebut the prima facie evidence of
compliance.
In any event, Aksnes fails to establish prejudice. Even if the court’s statement of a
conclusive presumption were incorrect, the fact remains that, as a matter of law, Aksnes
had no claim for wrongful foreclosure based on section 2923.5 or section 2924,
subdivision (e), since the only remedy possible under those sections is no longer
available. We must affirm the judgment “ ‘if any one of the several grounds of demurrer
is well taken.’ ” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967; see Debro,
supra, 92 Cal.App.4th at p. 946.)
Aksnes fails to establish reversible error in the trial court’s sustaining of the
demurrer with respect to his second cause of action for wrongful foreclosure.
B. Fifth Cause of Action (Slander of Title)
In his fifth cause of action, Aksnes claimed that U.S. Bank slandered his title to
the property by causing the recordation of the notice of default and the third notice of
trustee’s sale. The court sustained U.S. Bank’s demurrer as to this cause of action
because Aksnes’s allegations did not establish the required elements of a slander of title
claim: that the publication was not privileged, was false in some material respect, and the
false matter caused Aksnes and Kelso direct pecuniary loss.
In the “Significant Facts of the Case” section of his opening brief in this appeal,
Aksnes asserts that the court’s ruling is “in direct contravention of Kachlon.” In his
“Conclusion,” he asserts that we should “enforce Kachlon” and find that he “was required
only to plead facts that overcome the ‘qualified’ privilege” of section 47. He does not,
however, provide further explanation or substantial argument for his position in his
opening brief (or even in his reply brief), let alone an actual legal citation to “Kachlon.”
He fails to establish error.
First, by failing to provide adequate legal argument under appropriate headings
and citation to relevant authority, Aksnes violated rule 8.204(a)(1)(B) of the California
9
Rules of Court. We therefore deem the issue waived and abandoned. (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366,
fn. 2 (Associated Builders); see Paterno v. State of California (1999) 74 Cal.App.4th 68,
106 [court need not consider undeveloped claims or make arguments for the parties].)
Second, Aksnes fails to show that the court was wrong in concluding that he failed
to allege facts sufficient to state the elements for a slander of title cause of action,
including a publication made without privilege or justification and containing false
statements that resulted in direct and immediate pecuniary loss. (Howard v. Schaniel
(1980) 113 Cal.App.3d 256, 263-264.) The first amended complaint does not allege facts
(as opposed to mere conclusions) that the notice of default and notice of trustee’s sale
were without privilege or justification, since there is no allegation that Aksnes fully
complied with the loan documents or that no default occurred. (See § 2924,
subd. (a)(1)(B) [authorizing recording of notice of default upon “a breach of the
obligation for which the mortgage or transfer in trust is security has occurred”]; subd. (d)
[the mailing, publication, and delivery of notices as required by this section “shall
constitute privileged communications pursuant to [s]ection 47”].) Nor does Aksnes
explain in his appellate briefs how the first amended complaint alleges that he suffered
any direct pecuniary loss as a result of the recording of the documents.
Third, Aksnes’s references to “Kachlon” are unavailing. He apparently means
Kachlon v. Markowitz (2008) 168 Cal.App.4th 316 (Kachlon), in which the court
determined that the mailing, publication, and delivery of a notice in a nonjudicial
foreclosure (such as a notice of default or a notice of trustee’s sale) constitutes a
communication under the qualified common interest privilege of section 47, subdivision
(c)(1). (Kachlon, at p. 333.) Thus, the delivery of these notices would be privileged
unless made with malice. (Ibid.)
But nowhere in the first amended complaint does Aksnes actually allege facts
indicating U.S. Bank acted with malice. He alleges in conclusory fashion that U.S. Bank
acted “maliciously,” but he does not identify any facts that would support this conclusion,
particularly in light of Aksnes’s default in paying the loan. Because Aksnes has not
10
alleged facts evincing malice, the privilege applies, precluding a cause of action for
slander of title. (Kachlon, supra, 168 Cal.App.4th at p. 333.)
For each of these reasons, Aksnes has failed to establish reversible error in the
court’s sustaining of the demurrer as to the fifth cause of action.
C. Sixth Cause of Action (Quiet Title)
The trial court sustained the demurrer as to the sixth cause of action for quiet title
on the ground that Aksnes had not tendered the outstanding obligation under the note. In
the “Significant Facts of the Case” portion of his opening brief, Aksnes states that the
court’s ruling “disregards the expressly-pleaded allegation that the foreclosing party was
not, in fact, the true beneficiary to which any ‘tender’ would be due.” In his
“Conclusion,” he asserts the court “misapplied the ‘Tender Rule’ in a situation where the
identity of the true beneficiary to whom a ‘tender’ would be due, was in dispute.” He
does not provide any legal authority or further argument on this issue in his opening brief
(or in his reply brief). His claim fails for a number of reasons.
First, by failing to provide substantive legal argument and citation to relevant
authority, or even explain why U.S. Bank is not the “true beneficiary,” the issue is
waived and abandoned. (See Cal. Rules of Court, rule 8.204(a)(1)(B); Associated
Builders, supra, 21 Cal.4th at p. 366, fn. 2.)
Second, Aksnes did not make this argument in opposing the demurrer. Because he
did not raise the argument in the trial court, he cannot raise it now. (Associated Builders,
supra, 21 Cal.4th at p. 366, fn. 2; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-
592.)
Third, Aksnes’s argument has no merit, since the allegations of the first amended
complaint, and the facts undisputedly subject to judicial notice, demonstrate that U.S.
Bank was the “true beneficiary” of the deed of trust at the time of the foreclosure
proceedings. The loan was made by Downey Savings and later transferred by the FDIC,
as receiver for Downey Savings, to U.S. Bank. Moreover, the first amended complaint
attached a recorded assignment to U.S. Bank of all right, title, and interest in the deed of
11
trust from the FDIC as receiver for Downey Savings. The first amended complaint does
not contain any specific factual allegations indicating U.S. Bank was not the true
beneficiary of the deed of trust.
And fourth, Aksnes’s argument is immaterial, because he does not provide any
legal authority to explain why, even if U.S. Bank was not the true beneficiary, he would
be relieved of the tender obligation—particularly since title to the property is now held by
Parkview. (It is also unclear how Aksnes could maintain a cause of action to quiet title
against U.S. Bank, who no longer has title, particularly in a lawsuit in which Parkview is
not a party and Aksnes insists he does not want to set aside the sale. Since the parties
have not briefed this issue, however, we will not rely on it.)
Aksnes fails to demonstrate error.
III. DISPOSITION
The judgment is affirmed.
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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.
(A143297)
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