Rieger v. Barrett CA4/1 ( 2020 )

Filed 11/17/20 Rieger v. Barrett CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DENNIS RIEGER et al., D076329
Plaintiffs, Cross-Defendants, and
Respondents,
(Super. Ct. No. ECU09780)
v.
JAMES G. BARRETT,
Defendant, Cross-Complainant,
and Appellant,
TORRI E. BARRETT,
Defendant and Appellant.
APPEALS from a judgment and postjudgment order of the Superior
Court of Imperial County, Jeffrey B. Jones, Judge. Affirmed in part; reversed
in part with directions.
James G. Barrett, in pro. per., for Defendant, Cross-Complainant, and
Appellant.
Torri E. Barrett, in pro. per., for Defendant and Appellant.
Law Offices of Douglas C. Heumann and Douglas C. Heumann for
Plaintiffs, Cross-Defendants, and Respondents.
James and Torri Barrett borrowed money from Salton Sea Estates III,
LLC (SSE), a company managed by their (now former) friend Dennis Rieger.
The purpose of the loan was to pay overdue property taxes on the Barretts’
primary residence. The Barretts executed a grant deed for their property in
favor of SSE, as well as a promissory note and deed of trust. The Barretts did
not make payments as required, and this contentious litigation ensued.
SSE and Rieger sued the Barretts to quiet title, alleging ownership of
the property, and for extortion and other claims. James Barrett (Barrett)
countersued for various violations of state and federal lending law, slander of
title, and filing a false lawsuit against real property. During the litigation,
SSE initiated a nonjudicial foreclosure and purchased the property at a
trustee’s sale.
After a nonjury trial, the trial court quieted title to the property in
favor of SSE based on the nonjudicial foreclosure and subsequent sale, but it
rejected SSE and Rieger’s remaining claims. It also rejected Barrett’s claims
against SSE and Rieger. The court awarded SSE and Rieger their attorney
fees and costs.
The Barretts appeal. They raise numerous challenges to the judgment
and fee award. Because the record does not include a reporter’s transcript of
the trial or other proceedings, most of these challenges are unsupported and
ultimately unpersuasive. But one error appears on the face of the record:
Based on the pleadings and applicable statutes, the trial court could not quiet
title to the property based on SSE’s foreclosure during the litigation. It was
required to determine title to the property as of the date specified in Rieger
and SSE’s complaint, which was several years earlier. We therefore reverse
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the judgment in part and remand for the limited purpose of reconsidering the
quiet title cause of action and fee award in accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
“Following the well-established rule of appellate review, we recite the
facts in the light most favorable to the judgment.” (Hoffman v. Superior
Ready Mix Concreate, L.P. (2018) 30 Cal.App.5th 474, 478.) Additional facts
will be discussed where relevant in the following section.
The Barretts purchased the property at issue in 2002. It is their
primary residence. Thirteen years later, after apparently falling behind on
their property taxes, the Barretts agreed to borrow money from SSE. Rieger
is the managing member of SSE. The Barretts executed a promissory note in
favor of SSE for the principal sum of $33,740.88. The terms of the note were
seven percent interest per annum, payable in monthly interest-only
installments of $303.27, with the entire balance and any remaining interest
due in five years.1
SSE paid the Imperial County Tax Collector approximately $23,000 to
settle the Barretts’ outstanding property tax bill. In subsequent years, SSE
paid approximately $4,000 more as taxes became due.
The note was secured by a deed of trust on the property. As part of the
transaction, the Barretts also executed a grant deed transferring the property
to SSE. The deed of trust and grant deed were subsequently recorded by
SSE.
1 Despite these written terms, the trial court later found based on the
conduct of the parties that the promissory note did not represent an interest-
only loan. It explained that “the [payment] amount makes no sense unless
the loan is amortized” and SSE credited the Barretts’ payments to both
interest and principal.
3
After several months, the Barretts stopped making payments on the
loan. SSE recorded a notice of default and election to sell under the deed of
trust. It identified an “unpaid sum of $7,410.34 with interest from
January 1, 2016 on the unpaid principal balance of $33,770.98 . . . .”
(Underlining omitted.) In response, Barrett sent a letter purporting to
rescind the loan under federal law. When SSE did not accept the rescission,
Barrett sent Rieger a demand letter. He proposed to forego future litigation
over the property in exchange for a quitclaim deed and $900. If Rieger did
not agree, Barrett threatened litigation that would “mak[e] . . . a public court
record” of various alleged illegal business practices at SSE.
In April 2017, SSE and Rieger filed suit against the Barretts for
extortion (based on Barrett’s demand letter) and to quiet title to the property,
among other claims. In their operative complaint, SSE and Rieger alleged
they entered into a transaction with the Barretts whereby the Barretts
transferred the property to SSE in exchange for SSE paying all property
taxes up to a limit of $33,740.88. They alleged, “The parties understood that
upon repayment of all amounts owed, the property could be transferred back
to [the Barretts].” They further alleged the Barretts signed a promissory note
and deed of trust.
For its quiet title cause of action, SSE alleged it “is and at all times
herein mentioned [was] the owner and/or entitled to possession of the
Property.” The Barretts “have no legal or equitable right, claim, or interest”
in the property. SSE sought “a declaration that the title to the Premises is
vested in [SSE] alone as of June 3, 2015, and that [the Barretts and various
Doe defendants] be declared to have no estate, right, title or interest in the
Premises . . . .” The specified date is the date the Barretts executed the grant
deed, note, and deed of trust.
4
In their answer, the Barretts denied that SSE owned the property.
They alleged they held title in fee simple. They did not intend by the grant
deed to pass title to SSE; the promissory note and deed of trust reflected the
true nature of the transaction.
Barrett cross-complained against Rieger and SSE. In his operative
cross-complaint, Barrett alleged that Rieger and SSE violated state laws
prohibiting predatory lending in real estate (Fin. Code, § 4970 et seq.) and
unlicensed lending (id., § 22000 et seq.), as well as the federal Truth in
Lending Act (TILA; 15 U.S.C. § 1601 et seq.). Barrett also alleged a statutory
claim for filing a false lawsuit against real property (Code Civ. Proc,
§ 765.040) and a common law claim for slander of title. He sought damages,
civil penalties, an order voiding the promissory note and deed of trust,
declaratory relief regarding same, an order striking the grant deed, and such
other relief “as the court may deem proper.”
Rieger and SSE answered the cross-complaint and denied that Barrett
was entitled to any relief. They specifically denied that the grant deed was
invalid or contained any false information.
In advance of trial, the parties submitted proposed pretrial statements,
jury instructions, and verdict forms. For its quiet title cause of action, SSE
proposed the following statement: “[SSE] argues that it is the owner of
property . . . based on the Grant Deed with recording number 2016026451
which transferred the Property from [the Barretts] to [SSE]. To be a valid
deed, the deed must describe the property, have been delivered and
accepted.” As its offer of proof, SSE stated that Rieger would testify that the
grant deed was signed by the Barretts, delivered to SSE, and accepted. He
would further testify that SSE had paid the property taxes on the property
since 2006.
5
SSE proposed the following jury instruction for its quiet title cause of
action: “[SSE] has established by clear and convincing evidence that . . . [¶]
[the Barretts] delivered the Grant Deed transferring all their interest in the
Property to [SSE]. [¶] Delivered as used in this context means [the Barretts]
intended to convey ownership of the property and [SSE] accepted receipt of
the ownership of the property. [¶] Delivery of the Grant Deed can be
inferred when the ‘grantee’ [SSE] takes possession of the Grant Deed. [¶] A
grantor’s receipt of consideration is not necessary for a voluntary conveyance
of real estate by deed. A deed is not void for lack of consideration received by
the grantor for conveying the property.” Similarly, SSE’s proposed verdict
form covered its quiet title cause of action with the following questions:
(1) “Does the Grant Deed with recording number 2016026451 describe the
property . . . [?]” (2) “Did [the Barretts] sign the Grant Deed?” (3) “Did [the
Barretts] deliver the Grant Deed to [SSE]?” (4) “Did [SSE] accept the Grant
Deed from [the Barretts]?”
Barrett’s proposed pretrial statement on SSE’s quiet title cause of
action asserted that the grant deed was never a valid legal instrument. As
his offer of proof, Barrett cited “all of the circumstances surrounding the
events that occurred at the signing of the subject Promissory Note and the
associated Deed of Trust, . . . as well as other behavior by all the parties such
as Barrett making payments on the loan, [SSE] accepting them, [SSE]
initiating, and then attempting to complete non-judicial foreclosure
proceedings on the subject real property, plus the conclusive admissions
found in [SSE’s] answers to Barrett’s [operative cross-complaint], wherein
they admit that a valid Promissory Note and associated Deed of Trust was
duly executed.”
6
The day before the first day of trial, the court issued an order to show
cause why SSE’s quiet title cause of action should not be tried separately.
The next day, Torri Barrett did not appear for trial. The court found that it
could proceed in her absence. (See Code Civ. Proc., § 594.) None of the
parties present (James Barrett, Rieger, or SSE) objected to severing the quite
title cause of action. The court therefore proceeded to hold a nonjury trial on
that claim.
As noted, the record does not contain a reporter’s transcript of the trial.
The court’s trial minutes reflect that Rieger, Barrett, and an SSE employee
testified. Rieger and SSE introduced the grant deed, and the court admitted
it into evidence over Barrett’s objection. Barrett introduced the promissory
note and deed of trust, and the court admitted them into evidence. The
notice of default was identified but not admitted. Other documents were
identified and admitted.
At the conclusion of this portion of trial, the court’s minutes reflect the
following determination: “The Court finds it has been shown by clear and
convincing evidence that the entire transaction was a security transaction for
a loan. The Court finds a traditional mortgage was created, and finds that
was the intent of the parties. The Court finds the deed of trust was intended
to be the security interest. The Court states its tentative is to quiet title in
favor of [SSE] pursuant to the sale under the deed of trust. The Court severs
the issue for purposes of judgment.”
The next day, Rieger and SSE waived a jury trial. The court proceeded
with a nonjury trial on Rieger and SSE’s remaining causes of action, as well
as the entirety of Barrett’s cross-complaint. Rieger, Barrett, and the SSE
employee testified again. This portion of trial was not reported either.
Among the documents admitted into evidence were the notice of default and a
7
recorded trustee’s deed, dated six months before trial (and nine months after
Rieger and SSE’s operative complaint), conveying the property to SSE
following nonjudicial foreclosure and sale.
The court directed the parties to submit written closing arguments.
Rieger and SSE argued that they had proven their cause of action for
extortion and claimed damages based on Rieger’s anxiety and distress.
Rieger and SSE argued that Barrett’s claims for filing a false lawsuit against
real property and slander of title were “moot” and Barrett had no standing to
bring those claims in light of the court’s finding that SSE had title to the
property. As to Barrett’s remaining claims, they primarily contended
(1) Barrett had not shown the transaction was a “covered loan” for purposes
of the predatory loan statute because its interest rate did not “exceed by more
than eight percentage points the yield on Treasury securities having
comparable periods of maturity” (Fin. Code, § 4970, subd. (b)); (2) Barrett had
not shown SSE was a “finance lender” regulated by the financial lending
statutes (id., § 22009) because its regular business was selling real estate
through the use of installment land sale contracts (see Verbeck v. Clymer
(1927) 202 Cal. 557, 562-563); (3) Barrett had no standing to bring a cause of
action under the financial lending statutes because they did not provide for a
private right of action; (4) Barrett had not shown that SSE “willfully” violated
the financial lending statutes (Fin. Code, § 22750); (5) Barrett had not shown
SSE was a “creditor” under the federal TILA (15 U.S.C. § 1602, subd. (g));
and (6) Barrett had not shown any damages based on lending or financing
law violations.
In his written closing arguments, Barrett defended against Rieger and
SSE’s claims by asserting that (1) any alleged extortionary statements were
protected by the litigation privilege (Civ. Code, § 47) and (2) the Barretts, not
8
SSE, had title to the property because the transaction was a loan secured by
a deed of trust, the loan was usurious, and the foreclosure was invalid. In
support of his own claims, Barrett argued (1) SSE included prohibited loan
terms, charged excessive fees, and refused to provide proper loan
documentation, all in violation of the predatory loan statutes (Fin. Code,
§§ 4973, 4979, 4979.6); (2) SSE was a “finance lender” based on its sales
transactions; (3) because SSE did not have a license, the loan was void;
(4) SSE was a “creditor” under the TILA; and (5) SSE had violated the TILA
by not requiring counseling (15 U.S.C. § 1639, subd. (u)) and by lending
money without determining whether the Barretts had a reasonable ability to
repay the loan (id., § 1639c).
The trial court issued a written tentative decision in favor of Barrett on
Rieger’s extortion claim and in favor of Rieger and SSE on all of Barrett’s
claims. Regarding quiet title, the court wrote, “[Barrett] contends that the
loan in question was usurious resulting in a forfeiture of all interest—
therefore, the principle is not yet due and the loan is not in default. [¶] As
noted below, the court finds that the conduct of the parties shows that the
loan was not an ‘interest only’ loan, as the lender credited payments to
interest and principal; [Barrett] offered no explanation of the payment
amount given the interest rate, and the amount makes no sense unless the
loan is amortized.” The court went on to calculate an effective interest rate of
slightly less than 10 percent. It concluded, “the court finds that the trustee’s
sale vested title in the buyer (here, defendant SSE), and title is quieted in the
buyer as to any claims of [Barrett].” Barrett requested a statement of
decision, and the court directed Rieger and SSE to prepare a proposed
statement on some but not all of the issues identified by Barrett.
9
Barrett objected to the proposed statement of decision, the trial court
struck the objections as inappropriate and argumentative, Barrett submitted
revised objections, and the court struck them again. It explained that
Barrett’s revised objections, like the original, were “largely, if not entirely,
argument as to the conclusions that the court should have reached, or an
assertion of what the ‘true’ facts were.”
The court’s statement of decision was consistent with its tentative
decision. The court found that Barrett attempted to extort Rieger, but he did
not intend to cause severe emotional distress and Rieger did not show he had
suffered such distress. The court therefore found in favor of Barrett and
against Rieger on his extortion claim. For SSE’s quiet title cause of action,
the court repeated its analysis from the tentative decision. The court found
that the loan was in default at the time of the foreclosure, the trustee’s sale
vested title in SSE, and title was therefore quieted as to any claims by
Barrett. The court explained, “the grant deed was executed in error, and the
parties intended the deed of trust to replace the grant deed as security for the
loan.”
As to Barrett’s claim under the predatory lending statutes, the court
found that it need not decide whether the loan was a “covered loan” because
any violations were not willful and Barrett had not shown any actual
damages. The court wrote, “It is undisputed that the loan in question was far
outside the normal business of [Rieger and SSE], as is[] further evidenced by
the amateurish initiation and documentation of the loan. [¶] Tellingly,
[Barrett] stated at trial that ‘it was a friend to a friend loan—just a friend
loaning a friend money.’ [¶] This Court finds that the transaction in
question was a casual loan by [Rieger] to a (former) friend in order to help
that former friend out of financial trouble. [Rieger] was not in the business of
10
making such loans, and any regulatory or statutory violations were
inadvertent.”
The court found that Barrett did not have standing to enforce
California’s lender licensing statute. (Fin. Code, § 22100, subds. (a), (d).)
Moreover, Barrett had not shown any willful violation of the financing
statutes or actual damages. (Id., § 22750.)
As to the federal TILA, the court found that SSE and Rieger were not
“creditors” covered by the statute. (15 U.S.C. § 1602, subd. (g).) Their
regular business is the sale of vacant land through installment sales
contracts, and Barrett had not offered any evidence to show that purchase of
those properties was for personal or household purposes. It explained,
“[Rieger] testified that the bulk of the purchasers intended to profit from
appreciation of the properties, while some hoped to build on the properties at
later dates if market and financial conditions permitted.” Citing Eby v. Reb
Realty (9th Cir. 1974) 495 F.2d 646 (Eby), the court found that the TILA did
not apply to isolated, incidental, and “ ‘friend to a friend’ ” transactions like
the one at issue here. The court therefore found it did not need to decide
whether any provisions of the TILA were violated.
Rieger and SSE submitted a proposed judgment. Barrett objected to
the proposed adjudication of the quiet title cause of action in SSE’s favor. He
argued that the quiet title statutes required SSE to seek a determination of
rights to the property on a specific date, no later than the date of its
complaint. (See Code Civ. Proc., § 761.020.) Barrett pointed out that SSE’s
operative complaint specified a date of June 3, 2015 and it relied on the grant
deed found invalid by the court. Barrett therefore proposed that the
judgment should be in favor of the Barretts, “ ‘as holders of title in fee simple
on June 3, 2015.’ ”
11
A week later, the court entered judgment as proposed by Rieger and
SSE. On the quiet title cause of action, it found in favor of SSE. It stated,
“Pursuant to California Code of Civil Procedure section[] 764.010 et seq.,
[t]itle to the property described in the attached Exhibit A is quieted as to any
interest of [the Barretts].” For the remaining causes of action in the
complaint and cross-complaint, the court entered judgment in accordance
with its statement of decision. Specifically, the court found that Barrett was
not entitled to any recovery on any of his causes of action, and the court
denied his requests for declaratory and injunctive relief.
Barrett moved for a new trial. On SSE’s quiet title cause of action,
Barrett reiterated his objections to the proposed judgment. He argued “it
was an error of law to find or conclude anything about anything that had to
do with a non-judicial foreclosure sale that purportedly transpired 357 days
after the instant quiet title action was filed by [SSE and Rieger], and which
was based on a claim of fee simple via a grant deed.” He wrote that “this
Court erred by entertaining the issue of whether or not there was a default in
a deed of trust which then supposedly resulted in a non-judicial foreclosure
sale that purportedly occurred almost a year after the quiet title action was
initiated by [SSE and Rieger].” Barrett also attacked the validity of the
foreclosure on various grounds. Barrett disputed the court’s finding that SSE
and Rieger were not “creditors” under the TILA as contrary to the evidence at
trial and based on a misinterpretation of the statute. As part of his motion
for a new trial, Barrett submitted objections to the court’s statement of
decision again.
Rieger and SSE opposed the motion for a new trial. On quiet title, they
argued that the court’s judgment was proper because Barrett’s cross-
complaint requested declaratory relief regarding the validity of the note, the
12
deed of trust, and the notice of default, as well as “ ‘any other and further
relief as the court may deem proper.’ ” Rieger and SSE further argued that
the loan was properly in default and SSE was not a “creditor” under the
TILA.
The court heard argument on the new trial motion, but any reporter’s
transcript is not part of the record. In a minute order, the court denied
Barrett’s motion without explanation. Later, the court awarded Rieger and
SSE approximately $65,000 in attorney fees and $2,500 in costs. The
Barretts appeal.
DISCUSSION
I
Quiet Title
The Barretts contend the trial court erred by quieting title in favor of
SSE. They point out that SSE’s complaint requested a determination of title
to the property as of June 3, 2015, and SSE alleged ownership based on a
grant deed. Because the court later found the grant deed invalid, the
Barretts argue, the trial court should have quieted title in favor of the
Barretts as of the specified date. In their view, the court’s determination of
title as of the date of trial was outside the pleadings and therefore error. We
agree the court erred and remand for further proceedings.
A complaint alleging a quiet title cause of action must be verified and
must contain certain allegations. (Code Civ. Proc., § 761.020.) It must
describe the property, it must identify the title claimed by the plaintiff (and
basis for the claim), it must identify any adverse claims, it must specify the
date as of which determination is sought, and it must include a prayer for the
determination of the title of the plaintiff against the adverse claims. (Ibid.)
13
An answer to a quiet title complaint must also be verified. (Code Civ.
Proc., § 761.030, subd. (a).) It must set forth any claim the defendant has,
any facts rebutting the material allegations of the complaint, and any new
matter constituting a defense. (Ibid.) A quiet title defendant may file a
cross-complaint seeking affirmative relief, including a determination of title
as of a date other than the date specified in the complaint. (Id., § 761.040.)
Unless the defendant requests an alternate determination, the
plaintiff’s claim remains the focus of the quiet title proceedings. “ ‘The
plaintiff may recover only upon the strength of his or her own title . . . and
not upon the weakness of the defendant’s title.’ ” (Thompson v. Ioane (2017)
11 Cal.App.5th 1180, 1195.) As the statute directs, “The court shall examine
into and determine the plaintiff’s title against the claims of all the
defendants. The court shall not enter judgment by default but shall in all
cases require evidence of plaintiff’s title and hear such evidence as may be
offered respecting the claims of any of the defendants, other than claims the
validity of which is admitted by the plaintiff in the complaint. The court
shall render judgment in accordance with the evidence and the law.” (Code
Civ. Proc., § 764.010.)
As noted, “a quiet title plaintiff must identify the ‘date as of which the
determination’ of title is sought. (Code Civ. Proc., § 761.020, subd. (d).) The
date is to be the date of filing the complaint or, if the plaintiff so chooses, an
earlier date. [Citation.] Thus, in a quiet title action, the trial court’s
judgment adjudicates title as of a date prior to the judgment; the court’s
determination establishes title as of the date of the complaint (or some earlier
date). This is as it should be; the trial court takes evidence of the state of
title at a particular point in the past. The court does not, and cannot, take
evidence of every act which may affect the title up until the moment of
14
judgment.” (Deutsche Bank National Trust Co. v. McGurk (2012)
206 Cal.App.4th 201, 213 (Deutsche Bank).)
SSE alleged in its operative complaint that it held title based on a
grant deed from the Barretts and requested a determination of title as of
June 3, 2015. Its proposed pretrial statement, jury instructions, and verdict
forms likewise relied on this theory. The Barretts denied that the grant deed
was valid, both in their answer and their proposed pretrial statement. They
did not request a determination of title as of any alternate date.
The trial court’s role, as framed by the pleadings, was to determine
whether SSE’s claim to title to the property as of June 3, 2015 was valid.
(See Code Civ. Proc., § 764.010; Deutsche Bank, supra, 206 Cal.App.4th at
p. 213.) In its tentative decision, the court impliedly determined that the
grant deed was invalid. It stated, “The Court finds it has been shown by
clear and convincing evidence that the entire transaction was a security
transaction for a loan. The Court finds a traditional mortgage was created,
and finds that was the intent of the parties. The Court finds the deed of trust
was intended to be the security interest.” The court’s statement of decision
explained that the “grant deed was executed in error, and the parties
intended the deed of trust to replace the grant deed as security for the loan.”
These factual findings conclusively refute SSE’s claim of title as of June 3,
2015 based on the grant deed.
But, rather than quiet title in favor of the Barretts as of June 3, 2015,
the court indicated that it would quiet title in favor of SSE based on the
nonjudicial foreclosure and sale that occurred during the litigation after
SSE’s operative complaint. The court’s statement of decision concluded that
“the trustee’s sale vested title in [SSE], and title is quieted in the buyer [i.e.,
SSE] as to any claims of [Barrett].” Based on these findings, the court’s
15
judgment found in favor of SSE on its quiet title cause of action and quieted
title as to any interest of the Barretts.2
The court erred by considering events during the litigation, beyond the
scope of the pleadings, and quieting title in favor of SSE as of the date of
judgment. “The rule is well settled in this state that findings on issues not
made by the pleadings must be disregarded, and cannot furnish support for a
judgment.” (Simmons v. Simmons (1913) 166 Cal. 438, 441; accord, County of
Los Angeles v. Superior Court (2015) 242 Cal.App.4th 475, 488 (County of Los
Angeles) [“[A] court may not grant relief that is not encompassed within the
issues framed by the pleadings.”]; 7 Witkin, Cal. Procedure (5th ed. 2020)
Judgments, § 29.) While the issues as framed by the pleadings may be
expanded at trial, we cannot assume such expansion where as here a
reporter’s transcript of the trial is not available. (Marvin v. Marvin (1981)
122 Cal.App.3d 871, 875 [“[S]ince we do not have before us the evidence
taken at trial and there was no pretrial order expanding the issues, we can
look only to the pleadings to determine the issues between the parties.”];
Palpar, Inc. v. Thayer (1947) 82 Cal.App.2d 578, 582-583.) This approach is a
consequence of the general principle that, even in the absence of a reporter’s
transcript, we presume that the record on appeal contains everything
necessary to our decision if an error appears on the face of the record.
(Cal. Rules of Court, rule 8.163; Dumas v. Stark (1961) 56 Cal.2d 673, 674.)
2 As explained above, Barrett objected to the proposed judgment on this
cause of action, citing the scope of the pleadings and the court’s factual
finding that the grant deed was invalid. He requested that the judgment be
modified to reflect that the Barretts held title to the property as of June 3,
2015. After entry of judgment, he raised the same and similar objections in
his motion for a new trial and objections to the statement of decision. (See
Code Civ. Proc., §§ 634, 657.) He relied on the quiet title statutes and
Deutsche Bank, supra, 206 Cal.App.4th 201.
16
If an error appears on the face of the record, we do not assume that an
unreported proceeding justified the court’s otherwise erroneous action. (Utz
v. Aureguy (1952) 109 Cal.App.2d 803, 806-807; see generally 9 Witkin, Cal.
Procedure (5th ed. 2020) Appeal, §§ 356-360.) The court’s error here is
apparent on the face of the record, and the judgment on SSE’s quiet title
cause of action must be reversed. (See Simmons, at p. 442; Marvin, at
p. 875.)
SSE claims its cause of action for quiet title was not exclusively based
on the grant deed. SSE’s operative complaint, however, was filed before the
nonjudicial foreclosure proceedings that (under SSE’s later theory)
transferred title to the property based on the trustee’s deed. The operative
complaint alleged the existence of the note and deed of trust, but they could
not have provided a basis for quieting title in SSE’s favor at that time.
Moreover, SSE requested a determination of title to the property as of June 3,
2015. The nonjudicial foreclosure, which occurred almost three years later,
could not provide any basis for SSE’s title as of that date. Citing Carpenter v.
Smallpage (1934) 220 Cal. 129, 132, SSE points out that upon foreclosure the
interest of a purchaser at a trustee’s sale generally relates back to the date of
the underlying deed of trust. But this principle governs the priority of
competing interests, it does not mean that the purchaser holds actual title as
of a date prior to the foreclosure sale. (See 5 Miller & Starr, Cal. Real Estate
(4th ed. 2020) § 13:252.)
Relatedly, SSE claims the trial court was required to consider any
consequences of the nonjudicial foreclosure because it must examine all
competing claims to the property. (See Code Civ. Proc., § 764.010.) SSE
misinterprets the statute. The trial court was required to examine any
claims that would compete with the claim asserted by SSE. SSE asserted a
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claim as of June 3, 2015, based on a grant deed. The court should have
examined the Barretts’ competing claim as of that date. The later nonjudicial
foreclosure was not relevant to that examination because it had not yet
occurred.
SSE argues that Barrett did not adequately memorialize an objection to
evidence concerning the nonjudicial foreclosure. SSE does not show that
evidence of foreclosure was offered during trial on the quiet title cause of
action. (The court’s minutes reflect that the trustee’s deed was not identified
or admitted into evidence during that portion of trial.) Nor does SSE show
that such evidence was irrelevant to any other issue. The introduction of
otherwise-relevant evidence, without more, does not expand the issues to be
adjudicated at trial. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 32; J.R.
Norton Co. v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874,
888.)
SSE also argues that the court’s judgment is justified by Barrett’s
cross-complaint. We disagree. The cross-complaint alleged that the grant
deed, promissory note, and deed of trust were invalid and it requested
cancellation of those instruments. It did not put at issue the title to the
property following a nonjudicial foreclosure sale that had not yet occurred
when the cross-complaint was filed. SSE claims that Barrett sought a
declaration regarding the validity of the notice of default, but it does not
provide any citation to the cross-complaint supporting such a claim. We
likewise reject SSE’s suggestion that Barrett’s request for such other relief
“as the court may deem proper” put at issue title to the property after a
foreclosure that had not even occurred yet. (See County of Los Angeles,
supra, 242 Cal.App.4th at pp. 488-489 [request for “such other and further
18
relief as [the court] may deem just and proper” cannot expand the issues
encompassed by the pleadings].)
We therefore reverse the judgment in part with directions to reconsider
SSE’s quiet title cause of action. We emphasize that the result here does not
reflect any conclusion that the foreclosure sale was invalid or that SSE did
not have valid title to the property as of the date of trial. We need not and do
not consider these substantive issues or their various subsidiary questions
(including whether the loan was usurious). We conclude only that the trial
court erred by rendering judgment on issues not encompassed by the
pleadings in this lawsuit.3
II
Barrett’s Cross-Complaint
Barrett raises a number of contentions related to the trial court’s
adjudication of the causes of action in his cross-complaint. We begin with the
fundamental principle, alluded to above, that any error must be affirmatively
shown by the record on appeal, and the court’s judgment is otherwise
presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
“ ‘All intendments and presumptions are indulged to support it on matters as
3 Because we reverse the judgment, we likewise reverse the order
granting Rieger and SSE’s motion for attorney fees and costs. We therefore
need not consider the Barretts’ additional arguments regarding that order.
To the extent SSE argues that Torri Barrett lacks standing to appeal the
judgment on SSE’s quiet title cause of action, we disagree. She was a party
to the trial court proceedings who is aggrieved by the judgment against her
on Rieger and SSE’s complaint. (Code Civ. Proc., § 902.) (We need not decide
whether she had standing to appeal the judgment on James Barrett’s cross-
complaint.) Torri Barrett’s failure to appear at trial does not foreclose her
right to appeal an adverse judgment. (9 Witkin, Cal. Procedure (5th ed.
2020) Appeal, § 33.) Moreover, James Barrett is authorized by statute to
represent his spouse’s interests in response to Rieger and SSE’s complaint.
(Code Civ. Proc., § 371.)
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to which the record is silent . . . .’ ” (Ibid.) “To demonstrate error, appellant
must present meaningful legal analysis supported by citations to authority
and citations to facts in the record that support the claim of error.
[Citations.] When a point is asserted without argument and authority for the
proposition, ‘it is deemed to be without foundation and requires no discussion
by the reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) These
standards apply equally to self-represented litigants like the Barretts.
(Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Regarding his cause of action under California’s predatory loan
statutes, Barrett contends the court erred by not explaining its interpretation
of “willful” in its statement of decision, where it found that Barrett could not
prevail because he had not shown that Rieger or SSE willfully violated the
statutes. Barrett does not cite any authority supporting his contention that
the trial court was required to define “willful” in its statement of decision.
“The court’s statement of decision is sufficient if it fairly discloses the court’s
determination as to the ultimate facts and material issues in the case.”
(Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380
(Golden Eagle).) The court’s statement of decision made factual findings
regarding the loan and, based on those findings, found that any violation of
the predatory loan statutes was not willful. It sufficiently discloses the
court’s determination and its reasoning. While Barrett asserts that there are
many definitions of “willful,” he does not identify any such definitions, make
any argument regarding what the correct definition should be, or contend
that the court’s factual findings would not support the judgment under the
correct definition. Barrett has not shown error, prejudicial or otherwise.
Barrett also contends the court erred by finding he had suffered no damages.
Because that was an alternate finding, any error was harmless because the
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court would have reached the same result regardless. We therefore need not
consider it.
Regarding his cause of action under California’s financing statutes,
Barrett asserts the court erred by finding that Barrett did not have standing
to assert a violation of the statute’s licensing requirement. (Fin. Code,
§ 22100, subds. (a), (d).) He argues that Finance Code section 22750,
subdivision (b) authorizes a private right of action for declaratory relief. The
statute provides, “If any provision of this division is willfully violated in the
making or collection of a loan, whether by a licensee or by an unlicensed
person subject to this division, the contract of loan is void, and no person has
any right to collect or receive any principal, charges, or recompense in
connection with the transaction.” (Ibid.) Contrary to Barrett’s
characterization, the court accepted that he might have an action for
declaratory relief under this section, but it found that Barrett had not shown
a “willful” violation or actual damages. It wrote, “The Court need not
consider whether [Barrett] could request declaratory relief under [the]
California Financing Law because [Barrett] failed to prove any willful
violation or actual damages as a result of the transaction.” Barrett has not
shown the court erred.
Regarding his cause of action under the federal TILA, Barrett primarily
argues that the evidence did not support the court’s factual finding that
Rieger and SSE were not “creditors” under the statute. The statute defines a
“creditor” as “a person who both (1) regularly extends, whether in connection
with loans, sales of property or services, or otherwise, consumer credit which
is payable by agreement in more than four installments or for which the
payment of a finance charge is or may be required, and (2) is the person to
whom the debt arising from the consumer credit transaction is initially
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payable on the face of the evidence of indebtedness or, if there is no such
evidence of indebtedness, by agreement.” (15 U.S.C. § 1602, subd. (g).)
Consumer credit is a transaction “in which the party to whom credit is offered
or extended is a natural person, and the money, property, or services which
are the subject of the transaction are primarily for personal, family, or
household purposes.” (Id., § 1602, subd. (i).)
The trial court found that Rieger and SSE’s regular business did not
involve consumer credit and therefore they were not “creditors” under the
federal TILA. It wrote, “[SSE and Rieger’s] regular business is the sale of
vacant property (owned by [SSE]) through installment sales contracts.
[Barrett] introduced no evidence to show that the purchase of the properties
was for personal or household purposes. [Rieger] testified that the bulk of the
purchasers intended to profit from appreciation of the properties, while some
hoped to build on the properties at later dates if market and financial
conditions permitted.”
Referencing certain trial exhibits and what he “recalls” the testimony
at trial to be, Barrett argues that the evidence at trial was contrary to the
trial court findings. Without a reporter’s transcript, however, we cannot
assess the sufficiency of the evidence to support the court’s factual findings.
“Where no reporter’s transcript has been provided and no error is apparent
on the face of the existing appellate record, the judgment must be
conclusively presumed correct as to all evidentiary matters. To put it another
way, it is presumed that the unreported trial testimony would demonstrate
the absence of error. [Citation.] The effect of this rule is that an appellant
who attacks a judgment but supplies no reporter’s transcript will be
precluded from raising an argument as to the sufficiency of the evidence.”
(Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Nothing on the face of the
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record precludes a finding that Rieger and SSE are not creditors under the
federal TILA. Barrett has not shown error.
Barret also argues that the trial court committed legal error in its
statement of decision by finding that the federal TILA did not apply to
“isolated or incidental” transactions of the lender. The court’s statement was
not legally erroneous. The statute applies to lenders who “regularly” extend
consumer credit. (15 U.S.C. § 1602, subd. (g).) A federal regulation cited by
Barrett explains that a person regularly extends consumer credit only if it
extended credit more than 25 times (or more than five times for transactions
secured by a dwelling) in the preceding calendar year. (12 C.F.R.
§ 1026.2(a)(17)(v) (2020).) The court reasonably characterized the thrust of
those requirements as excluding lenders who engage in “isolated or
incidental” consumer credit transactions. (See Eby, supra, 495 F.2d at p. 649
[“lenders whose extensions of credit are an occasional, isolated, and
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incidental portion of their business” are not covered].) Barrett has not shown
the court erred.4
Finally, to the extent Barrett seeks to bolster the contentions discussed
above by purporting to incorporate by reference his objections and other
papers filed in the trial court, we reject such an attempt. (See Keyes v. Bowen
(2010) 189 Cal.App.4th 647, 656 [“The appellant may not simply incorporate
by reference arguments made in papers filed in the trial court, rather than
briefing them on appeal.”].) We consider only the arguments and authorities
set forth in Barrett’s appellate briefing.
III
Discovery Order
Barrett also challenges a pretrial discovery order. Barrett served
requests for admission on SSE. When it did not respond, Barrett filed a
4 Barrett cites the staff commentary on the regulation, which explains,
“Once one of the numerical tests is satisfied, the person is also a creditor for
the other type of credit. For example, in 2007 a person extends consumer
credit secured by a dwelling 5 times. That person is a creditor for all
succeeding credit extensions, whether they involve credit secured by a
dwelling or not.” (12 C.F.R. § 1026 (2020) Supp. I, pt. 1, ¶ 2(a)(17)(i), com. 6.)
This commentary is not inconsistent with the court’s interpretation of the
statute as not applying to “isolated or incidental” transactions. (See Eby,
supra, 495 F.2d at p. 650.) Any error in the court’s additional finding, that
the federal TILA would not apply to this “ ‘friend to a friend’ ” transaction
“even if” Rieger and SSE were creditors under the statute, is harmless
because it was an alternate basis for the judgment. The court’s primary
finding, that Barrett did not introduce any evidence to show that SSE’s land
sales were for personal or household purposes, is sufficient to support its
judgment on this cause of action. Relatedly, Barrett criticizes the statement
of decision for not quantifying the number of SSE’s land sales that were or
were not for household purchases. But the trial court found that Barrett had
not introduced evidence that any of the land sales were for personal or
household purposes. The statement of decision is sufficient. (See Golden
Eagle, supra, 20 Cal.App.4th at p. 1380.)
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motion to deem the matters admitted. (Code Civ. Proc., § 2033.280.) SSE
opposed the motion and served belated responses. The responses denied
some requests but admitted many others. In his reply, Barrett contended
that SSE could not validly serve any responses because its license to do
business had been suspended by the Franchise Tax Board. At the hearing,
SSE’s counsel represented that its corporate status had been revived. The
court denied the motion.
Barrett contends the court erred by accepting the representation of
SSE’s counsel, applying the revival to the belated responses, and denying his
motion. He argues the motion should have been granted and the matters
deemed admitted. Even assuming (without deciding) that the court erred,
Barrett must show that the error was prejudicial, i.e., there is a reasonable
probability he would have achieved a better outcome in the litigation if his
motion had been granted. (See MacQuiddy v. Mercedes-Benz USA, LLC
(2015) 233 Cal.App.4th 1036, 1045.) Barrett has made no such showing. He
does not discuss the substance of the requests for admission or how a deemed
admission would have affected the judgment. We will not develop Barrett’s
argument for him. (See Paterno v. State of California (1999) 74 Cal.App.4th
68, 106.) It is irrelevant whether or not the court’s obligation to deem the
matters admitted was “mandatory” under the discovery statutes, as Barrett
claims. He must still show that the error was prejudicial (see MacQuiddy, at
p. 1045; see also F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108), and he has
not done so.
DISPOSITION
The judgment is reversed in part as to SSE’s quiet title cause of action.
The postjudgment order granting attorney fees and costs is reversed. On
remand, the trial court shall reconsider SSE’s quiet title cause of action in
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conformity with the views expressed herein, receive such additional evidence
as the court deems necessary and appropriate, make new findings of fact and
conclusions of law, and enter judgment accordingly. In all other respects, the
judgment is affirmed. The parties shall bear their own costs on appeal.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
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