Davis v. Calif. Reconveyance Co. CA6

Filed 5/12/16 Davis v. Calif. Reconveyance Co. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
STEVE DAVIS, as Co-trustee, etc., et al., H040573
(Santa Cruz County
Plaintiffs and Appellants, Super. Ct. No. CV165101)
v.
CALIFORNIA RECONVEYANCE
COMPANY et al.,
Defendants and Respondents.
Plaintiffs and appellants Steve Davis and Peter Palmer are co-trustees of the
Joseph R. Davis Hollister Hills Trust (collectively, the JRDHH Trust or the Trust). They
and plaintiff Mark Peterson brought an action against defendants California
Reconveyance Company (CRC) and JPMorgan Chase Bank (Chase) to challenge
defendants’ attempted nonjudicial foreclosure on a Capitola cottage owned by Peterson.
The gravamen of the operative second amended complaint was that defendants were
determined to foreclose on the wrong property. Plaintiffs alleged that the property given
as security for the loan at issue was not Peterson’s cottage but the cottage next door to it.
That cottage was owned by the Trust, which acquired it subject to an existing deed of
trust from Greg Flowers, the borrower/obligor on the loan at issue.
Defendants demurred to the complaint, arguing that the Trust lacked standing to
assert any of its causes of action. The trial court sustained the demurrers and dismissed
the Trust from the case. On appeal, the Trust contends that it properly alleged causes of
action for declaratory and injunctive relief and violations of Civil Code section 29241 and
that it could amend its complaint to cure the defects in its negligence cause of action. We
affirm.
I. Background
As this appeal follows the sustaining of a demurrer, we take the facts from the
operative and earlier complaints, their exhibits, and matters judicially noticed. (Blank v.
Kirwan (1985) 39 Cal.3d 311, 318 (Blank); Dodd v. Citizens Bank of Costa Mesa (1990)
222 Cal.App.3d 1624, 1627 (Dodd); Berg & Berg Enterprises, LLC v. Boyle (2009) 178
Cal.App.4th 1020, 1034 (Berg).)
Florine Katz and Anna Gamboa owned adjacent parcels of land on Hollister
Avenue in Capitola. There were four cottages on the land, three on one parcel and one on
the other parcel. In April 2006, Katz and Gamboa sold both parcels. Peterson bought the
three-cottage parcel and Flowers bought the one-cottage parcel.
The 2006 grant deed to Peterson included the assessor’s parcel number (APN 036-
125-09) and the legal description of the property: “Lot 7, in Block X, as shown upon that
certain map entitled, ‘Capitola,’ filed for record in the office of the County Recorder on
April 26, 1888, in Map Book 10, page 13, Santa Cruz County records.” The grant deed
did not include a street address. When Peterson obtained insurance policies for the three
cottages, he identified them as 206 Hollister 1, 206 Hollister 2, and 206 Hollister 3.
The 2006 grant deed to Flowers is not included in the record on appeal. The
complaint alleged that the grant deed did not include a street address. In July 2007,
1
Further statutory references are to the Civil Code unless otherwise stated.
2
Flowers “deeded his property out of his revocable trust in order to refinance with
Washington Mutual” (WaMu). That grant deed is not included in the record on appeal
but the complaint alleged that it did not include a street address.
Flowers refinanced his property on July 27, 2007, executing a note and deed of
trust in favor of WaMu. The deed of trust included the assessor’s parcel number (APN
036-125-10) and the legal description of the Flowers property: “Lot 5, in Block X, as
shown upon that certain map entitled, ‘Capitola,’ filed for record in the office of the
County Recorder on April 26, 1888, in Map Book 10, page 13, Santa Cruz County
records.” The deed of trust listed the street address of the Flowers property as “206
Hollister Avenue 1.” The complaint alleged that this address was “erroneous and in fact
describe[d] the Peterson property next door.”
Flowers deeded the property back to his revocable trust after he refinanced. That
grant deed included the assessor’s parcel number (APN 036-125-10) and the legal
description (“Lot 5, in Block X . . . .”) but no street address.
On November 1, 2007, Flowers conveyed his cottage to the Trust. The grant deed
did not include a street address.
WaMu failed in 2008 and the Federal Deposit Insurance Corporation (FDIC) was
appointed receiver. On September 25, 2008, Chase purchased substantially all of the
assets of the failed bank from the FDIC, including its loan portfolio.
On December 15, 2008 and “many times thereafter,” the Trust informed WaMu
“that [the Trust] had bought the Flowers property; had been making mortgage payments
for months and desired to continue to make such payments.” “[WaMu] never
responded.” Copies of checks made payable to WaMu were attached as exhibit 10 to the
complaint. Seven checks written between January 15, 2008 and August 26, 2008
referenced the Flowers loan number. Those checks totaled $14,514.61. Nine checks
referenced a different and unidentified loan number.
3
In March 2009 “and several times thereafter,” Flowers’s bankruptcy counsel
notified WaMu that the note and deed of trust “incorrectly identified the Flowers
property.” Counsel “reiterated that the JRDHH Trust currently owned the property; had
made payments to [WaMu] for many months and wished to continue to do so.” WaMu
did not respond and “never attempted to reform or otherwise correct the erroneous
address” in the Flowers deed of trust.
In early 2009, Flowers filed for bankruptcy protection under the United States
Bankruptcy Code. His chapter 7 discharge was entered on April 18, 2009, and his
bankruptcy case was closed that same day.
On May 12, 2009, CRC recorded a notice of default and election to sell under the
Flowers deed of trust. The notice referenced the Flowers loan number and the assessor’s
parcel number for the Flowers property. It described the street address of the property as
“206 Hollister Avenue 1.” It stated that $16,663.23 was owing on the loan as of
May 5, 2009.
On August 13, 2009 CRC posted a notice of trustee’s sale “on the front of Mark
Peterson’s property at 206 Hollister Avenue 1.” Flowers’s bankruptcy counsel notified
Chase and CRC that they had posted the wrong property and that the notice included an
erroneous street address. On August 17, 2009 and thereafter, the Trust’s and Peterson’s
trial counsel Richard Vaught informed CRC about the errors and about “the continued
willingness of the JRDHH Trust to assume and/or modify the [Flowers deed of trust].”
Neither Chase nor CRC responded.
On September 3, 2009, Peterson and the Trust sued Chase and CRC for damages
and equitable relief. Based on the above-described facts, the complaint purported to
assert causes of action for (1) declaratory relief (“specifically, a determination that the
Deed of Trust does not secure 206 Hollister Avenue 1 and Chase cannot foreclose on 206
Hollister Avenue 1”); (2) injunctive relief; (3) negligence; (4) violations of sections
2923.5 and 2924 as to the Trust only; (5) slander of title as to Peterson only, and (6) quiet
4
title as to Peterson only. Plaintiffs obtained a temporary restraining order prohibiting
defendants from attempting to foreclose on Peterson’s property.
Defendants demurred to the complaint and plaintiffs elected to file a first amended
complaint instead of an opposition. Defendants demurred to the first amended complaint
on the ground that it failed to state facts sufficient to constitute any cause of action. On
March 19, 2010, the trial court overruled defendants’ demurrer to the first amended
complaint.
On January 3, 2012, the trial court issued a preliminary injunction enjoining
defendants from foreclosing on Peterson’s property. In August 2012, defendants
recorded a new notice of trustee’s sale and posted it on the door of Peterson’s property.
In mid-2013, the trial court denied defendants’ motion for summary judgment or
summary adjudication, concluding among other things that triable issues of fact existed
with respect to whether defendants owed any duty to the Trust as to any of the four
causes of action asserted by the Trust.
Plaintiffs filed a second amended complaint in late August 2013. It asserted the
same causes of action and prayed for the same relief as the prior complaints but added
allegations relating to defendants’ posting of new notices on Peterson’s property. The
complaint alleged that the posting interfered with Peterson’s wish to sell his property by
informing “the entire neighborhood that the house with the notice nailed on the door was
in default and would be foreclosed upon . . . .”
Defendants demurred to the second amended complaint on the ground that the
Trust lacked standing to assert any of its causes of action. The trial court sustained the
demurrers without leave to amend and dismissed the Trust from the case. The Trust filed
a timely notice of appeal.
5
II. Discussion
A. Standard of Review
“In reviewing the sufficiency of a complaint against a general demurrer, we are
guided by long-settled rules. ‘We treat the demurrer as admitting all material facts
properly pleaded, but not contentions, deductions or conclusions of fact or law.
[Citation.]’ ” (Blank, supra, 39 Cal.3d at p. 318.) “[F]acts appearing in exhibits attached
to the complaint will also be accepted as true and, if contrary to the allegations in the
pleading, will be given precedence.” (Dodd, supra, 222 Cal.App.3d at p. 1627.) “ ‘We
also consider matters which may be judicially noticed.’ [Citation.].” (Blank, at p. 318.)
“[A]ssertions contradicted by judicially noticeable facts” will not be accepted as true.
(Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20.) “[W]e give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]”
(Blank, at p. 318.) “ ‘Specific factual allegations modify and limit inconsistent general
statements.’ [Citation.]” (Alfaro v. Community Housing Improvement System &
Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1371 (Alfaro).) “Where, as here, a
demurrer is to an amended complaint, we may consider the factual allegations of prior
complaints, which a plaintiff may not discard or avoid by making ‘ “ ‘contradictory
averments, in a superseding, amended pleading.’ ” ’ [Citation.]” (Berg, supra, 178
Cal.App.4th at p. 1034.)
We “review the complaint de novo to determine . . . whether or not the trial court
erroneously sustained the demurrer as a matter of law. [Citation.]” (Cantu v. Resolution
Trust Corp. (1992) 4 Cal.App.4th 857, 879.) “We will affirm if there is any ground on
which the demurrer can properly be sustained, whether or not the trial court relied on
proper grounds or the defendant asserted a proper ground in the trial court proceedings.”
(Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031
(Martin).) On appeal, “ ‘the plaintiff bears the burden of demonstrating that the trial court
6
erred.’ [Citation.]” (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013,
1020.)
When a demurrer is sustained without leave to amend, “we decide whether there is
a reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.” (Blank, supra, 39 Cal.3d at p. 318.) “The burden of proving
such reasonable possibility is squarely on the plaintiff.” (Ibid.) “Plaintiff must show in
what manner he can amend his complaint and how that amendment will change the legal
effect of the pleading.” (Cooper v. Leslie Salt Co. (1969) 70 Cal.2d 627, 636 (Cooper).)
The showing need not be made in the trial court so long as it is made to the reviewing
court. (Dey v. Continental Central Credit (2008) 170 Cal.App.4th 721, 731; Code Civ.
Proc., § 472c.)
B. First Cause of Action for Declaratory Relief
The Trust asserts that it “has standing to bring and properly pleaded a cause of
action for declaratory relief.” We disagree.
“ ‘The fundamental basis of declaratory relief is the existence of an actual, present
controversy over a proper subject.’ [Citation.]” (City of Cotati v. Cushman (2002) 29
Cal.4th 69, 79 (City of Cotati); Code Civ. Proc., § 1060.) “[B]oth standing and ripeness
are appropriate criteria in that determination.” (Otay Land Co. v. Royal Indemnity Co.
(2008) 169 Cal.App.4th 556, 563.) “Standing is the threshold element required to state a
cause of action . . . .” (Martin, supra, 173 Cal.App.4th at p. 1031.) “To have standing to
sue, a person . . . must ‘ “have a real interest in the ultimate adjudication because [he] has
[either] suffered [or] is about to suffer an injury of sufficient magnitude reasonably to
assure that all of the relevant facts and issues will be adequately presented.” [Citation.]’
[Citation.]” (Ibid.)
7
“To determine if a controversy is ripe, we employ a two-pronged test: (1) whether
the dispute is sufficiently concrete that declaratory relief is appropriate; and (2) whether
withholding judicial consideration will result in the parties suffering hardship.
[Citations]. ‘Under the first prong, the courts will decline to adjudicate a dispute if “the
abstract posture of [the] proceeding makes it difficult to evaluate . . . the issues”
[citation], if the court is asked to speculate on the resolution of hypothetical situations
[citation], or if the case presents a “contrived inquiry” [citation]. Under the second
prong, the courts will not intervene merely to settle a difference of opinion; there must be
an imminent and significant hardship inherent in further delay. [Citations.]’ ”
(Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 540
(Stonehouse).)
“ ‘[A]n actual, present controversy must be pleaded specifically’ and ‘the facts of
the respective claims concerning the [underlying] subject] must be given.’ [Citations.]”
(City of Cotati, supra, 29 Cal.4th at p. 80.) “Whether a claim presents an ‘actual
controversy’ within the meaning of Code of Civil Procedure section 1060 is a question of
law that we review de novo.” (Environmental Defense Project of Sierra County v.
County of Sierra (2008) 158 Cal.App.4th 877, 885.)
Here, Peterson and the Trust jointly asserted that an actual controversy existed
between the parties “concerning their respective right[s] and duties” under the Flowers
deed of trust. They averred that the deed of trust “was created improperly” and
“contain[ed] an erroneous street address . . .” because Flowers “did not own and in fact
had no interest in 206 Hollister 1 at the time he executed the Deed of Trust, or ever.”
Peterson and the Trust prayed for “a judicial determination of the right[s] and
responsibilities of the parties, specifically a determination that the Deed of Trust does not
secure 206 Hollister Avenue 1 and Chase cannot foreclose on 206 Hollister Avenue 1.”
When read in the context of the complaint as a whole, these allegations describe
an actual controversy over defendants’ right to foreclose on 206 Hollister Avenue 1. But
8
on the facts alleged, only Peterson had standing to assert that cause of action. He owned
cottage No. 1. According to the complaint, the deed of trust listed the street address of
the Peterson property, defendants twice posted foreclosure sale notices on Peterson’s
cottage No. 1, and they “remain[ed] unwilling” to rescind the notice of default or to
cancel the trustee’s sale. Thus, as alleged in the complaint, Peterson had “ ‘ “a real
interest in the ultimate adjudication” ’ ” of the controversy. (Martin, supra, 173
Cal.App.4th at p. 1031.) The controversy was also ripe. There was “ ‘an imminent and
significant hardship inherent in further delay’ ” in adjudicating the controversy because
Peterson was threatened with the loss of his property if the scheduled sale proceeded.
(Stonehouse, supra, 167 Cal.App.4th at p. 540.)
The complaint alleged no similar facts with respect to the Trust. There were no
allegations that Flowers or the Trust had any interest in cottage No. 1. The complaint
affirmatively alleged that they did not. There was no allegation that defendants were
seeking to foreclose on cottage No. 4, which the Trust owned. On the contrary, the
complaint alleged that WaMu and Chase had ignored all advisements about the
“erroneous” street address on the deed of trust, “never attempted to reform or otherwise
correct” it, and continued to post foreclosure notices on the “wrong property.” Consistent
with these allegations, the Trust emphasizes on appeal that defendants remain
“determined” to foreclose on the “wrong” property. These facts do not describe an
“actual controversy relating to the legal rights and duties” of the Trust. (Code Civ. Proc.,
§ 1060.) They do not describe a situation where “withholding judicial consideration will
result in the [Trust] suffering hardship.” (Stonehouse, supra, 167 Cal.App.4th at p. 540.)
In short, they do not describe “an actual, present controversy” affecting the Trust. (City
of Cotati, supra, 29 Cal.4th at p. 79.) On this record, the trial court properly concluded
that the Trust lacked standing to assert its declaratory relief cause of action.
The Trust maintains that “there is an actual controversy regarding the parties’
rights and duties” because it contends “that the WaMu deed of trust is void and that
9
Defendants cannot pursue any foreclosure proceedings under that trust deed, whereas
Defendants contend that the WaMu deed of trust is enforceable and that they are entitled
to conduct foreclosure proceedings under that instrument.” This argument sweeps too
broadly. The existence of an actual, present controversy “ ‘must be pleaded specifically’ ”
and the facts of the parties’ respective claims about the dispute “ ‘must be given.’ ” (City
of Cotati, supra, 29 Cal.4th at p. 80.) Here, the complaint alleges an actual, present
controversy over defendants’ right to foreclose on the Peterson property. It does not
allege a broader dispute.
The Trust points to its allegations that the deed of trust is void because it does not
sufficiently describe the Flowers property and did not have the legal description attached
when Flowers signed it. It contends that these allegations entitle it to a declaration that
defendants “have no right to foreclose on any property—the correct property or the
wrong property—under the WaMu deed of trust.” (Italics added.) We disagree.
We have already determined that the Trust lacks standing to challenge defendants’
right to foreclose on Peterson’s property. We have also determined that the complaint
does not plead an actual, present controversy about defendants’ right to foreclose on what
the Trust asserts is “the correct property.” In its appellate briefs, the Trust implicitly
concedes the absence of any such controversy. It emphasizes that defendants are
“determined” to foreclose not on the Trust’s property but instead on the “wrong”
property. It suggests that defendants “could come to their senses” or that they “may” be
ordered by a court to foreclose on the “right” property. (Italics added.) It posits that “[i]f
defendants foreclose on the Trust’s property,” the Trust will lose all right, title and
interest in that property. All of this is speculation. Courts properly decline to decide
disputes where they are asked “ ‘to speculate on the resolution of hypothetical
situations.’ ” (Stonehouse, supra, 167 Cal.App.4th at p. 540.) The Trust lacks standing at
this juncture to ask for a declaration about defendants’ right to foreclose on what the
Trust asserts is “the correct property.” Any such challenge is not yet ripe. (Ibid.)
10
The Trust argues that “courts frequently and routinely decide cases where a
property owner has brought a declaratory relief action to resolve the validity of a lien on
his or her property.” It string cites four cases, asserting that “[l]ike the plaintiffs in those
four cases, the Trust has standing to litigate the validity of the WaMu deed of trust on the
Trust’s property in a declaratory relief action.” None of the cases helps the Trust because
standing was not raised as an issue in any of them. “Obviously, cases are not authority
for propositions not considered therein.” (Roberts v. City of Palmdale (1993) 5 Cal.4th
363, 372 (Roberts).)
The Trust argues that it could amend its complaint to “allege, in its declaratory
relief cause of action, that there has been no default under the WaMu deed of trust
because the Trust has paid or tendered all loan payments due under the Flowers note to
WaMu and, as a result, that note is current.” It claims that it has standing as a property
owner to protect its rights, and it asserts that “[t]he issue[s] of the enforceability of the
WaMu deed of trust and the existence of a default on the Flowers note to WaMu are ripe
now.” We disagree. The complaint alleged that defendants were proceeding against
Peterson’s property notwithstanding the Trust’s repeated advisements that Peterson’s
property is the wrong property. The Trust emphasizes on appeal that defendants are
“determined” to foreclose on Peterson’s property. In these circumstances, the issue of the
enforceability of the deed of trust against the Trust’s property is not yet ripe. Thus, the
Trust lacks standing to pursue its declaratory relief cause of action.
The cases on which the Trust relies do not change our conclusion. Standing was
not raised as an issue in any of them. Thus, they have no application here. (Roberts,
supra, 5 Cal.4th at p. 372.) We conclude that the trial court properly sustained
defendants’ demurrer to the Trust’s declaratory relief cause of action.
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C. Second Cause of Action for Injunctive Relief
The Trust contends that the trial court erred in sustaining the demurrer to its cause
of action for injunctive relief. We disagree.
“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of
action must exist before injunctive relief may be granted.” (Shell Oil v. Richter (1942)
52 Cal.App.2d 164, 168.) The Trust concedes this point but argues that it “properly
pleaded its claim for declaratory relief,” which “can be the underlying cause of action for
a permanent injunction claim.” The argument lacks merit. We have concluded that the
trial court properly sustained defendants’ demurrer to the Trust’s declaratory relief cause
of action. Thus, there is nothing on which the Trust can predicate a claim for injunctive
relief.
D. Third Cause of Action for Negligence
The Trust based its third cause of action on defendants’ allegedly negligent
drafting of the deed of trust and foreclosure notices. The Trust concedes that the
demurrer to that cause of action was properly sustained. It contends, however, that the
trial court abused its discretion in denying leave to amend. It claims that it “can amend
its complaint to allege that the lenders negligently processed the Trust’s loan payments
and tenders of payments and negligently declared the [Flowers] loan to be in default.”
Defendants respond that they had no duty to allow the Trust to assume the Flowers loan.
We agree with defendants.
“ ‘The elements of a cause of action for negligence are . . . “(a) a legal duty to use
due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal
cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913,
917.) “Liability for negligent conduct may only be imposed where there is a duty of care
owed by the defendant to the plaintiff or to a class of which the plaintiff is a member.
[Citation.] A duty of care may arise through statute or by contract. Alternatively, a duty
12
may be premised upon the general character of the activity in which the defendant
engaged, the relationship between the parties or even the interdependent nature of human
society.” (J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803.) “ ‘The existence of a duty
is a question of law for the court.’ [Citation.]” (Melton v. Boustred (2010) 183
Cal.App.4th 521, 531.)
Here, the Trust asserts that defendants “had a duty to the Trust to properly record
its payments and tenders of payments [on the Flowers loan] to avoid the declaration of a
default when there was no default.” We disagree.
The Trust does not specify the source of the claimed duty. It cannot be
contractual, because the Trust does not and cannot allege that it was ever a party to the
note or deed of trust. Flowers, not the Trust, was the borrower/obligor on the loan, and
any duties that the lender owed under the note and deed of Trust were owed to Flowers,
not to the Trust. The Trust has no rights under the deed of trust.
Flowers did not transfer his rights under the deed of trust when he transferred his
cottage to the Trust. He could not do so, because the deed of trust that he signed
provided that only a “Successor in Interest of Borrower who assumes Borrower’s
obligations under this Security Instrument in writing, and is approved by Lender, shall
obtain all of Borrower’s rights and benefits under this Security Instrument.” The deed of
trust also provided that “Borrower shall not be released from Borrower’s obligations and
liability under this Security Instrument unless Lender agrees to such release in writing.”
The complaint does not allege a written agreement releasing Flowers from his obligations
under the note and deed of trust. Nor does it allege that the Trust assumed Flowers’s loan
obligations in a writing approved by the lender. The Trust conceded at the hearing below
that it could not allege a written assumption agreement. Thus, Flowers remained the
borrower/obligor on the loan even after the Trust acquired the Flowers property.
The fact that the Trust allegedly made payments on the Flowers loan “from
December 2007 through December 2008” does not change the analysis. “In order to
13
complete a novation successfully by the substitution of one debtor for another, the
creditor must consent to it. [Citation.] The acceptance of payments from the new owner
does not amount to a contract to release the original debtor.” (University of Redlands v.
Ford (1942) 56 Cal.App.2d 151, 152.) Thus, the Trust cannot allege a contractual basis
for the duty it claims defendants owe it. (See Cornelison v. Kornbluth (1975) 15 Ca1.3d
590, 596-597.)
To the extent the Trust contends that section 2924c required defendants to credit
the Trust’s payments to avoid declaring a default on the Flowers loan, we disagree. The
Trust cites that section and several cases in its reply brief to support its assertion that “a
lender must accept loan payments from a non-borrower and, if the lender refuses to do so,
the non-borrower’s tender of loan payments counts the same as a loan payment accepted
by the lender.” (Italics added.) Neither the statute nor the cases supports that broad
proposition.2
Section 2924c comes into play after an obligation secured by a deed of trust
“has . . . been declared due by reason of default in payment . . . .” (§ 2924c,
2
In Munger v. Moore (1970) 11 Cal.App.3d 1, the owner of property subject to a
second deed of trust learned that the note was in default “and timely tendered . . . the sum
needed to cure the default.” (Id. at pp. 5-6.) The court held that he had the right as the
successor-in-interest to the trust property to cure a default of the obligation within the
time prescribed by section 2924c “and to institute the instant action for damages for the
illegal sale which resulted from the failure to accept the timely tender.” (Id. at p. 8.) In
Magnus v. Morrison (1949) 93 Cal.App.2d 1, the plaintiff purchasers of a property
encumbered by a deed of trust learned that the note was in default and promptly tendered
the amount “sufficient to comply with the requirements of [former] section 2924c . . . .”
(Id. at p. 2.) The court held that this was sufficient to cure the default. (Ibid.) In Bisno v.
Sax (1959) 175 Cal.App.2d 714, the court held that the tender of the amount in default
was not deficient for failure to include $500 for attorneys’ fees where the notice of
default did not mention those fees. (Id. at pp. 724-725.) Lichty v. Whitney (1947) 80
Cal.App.2d 696 stands for the proposition that the holder of a second deed of trust can
extinguish the superior lien and prevent foreclosure by tendering the entire amount owing
on the debt to the first trust deed holder. (Id. at pp. 700-702.) Wiemeyer v. Southern
Trust & Commerce Bank (1930) 107 Cal.App. 165, 173 stands for the proposition that the
executor of a deceased trustor’s estate can extinguish a mortgage lien and prevent
foreclosure by tendering the entire amount owing to the lender. (Ibid.) None of these
cases requires a lender to accept monthly payments from a nonparty to the note and deed
of trust who asserts that the loan is not in default. None of these cases is on point here.
14
subds. (a)(1), (e).) It provides a time window in which the borrower/obligor or its
“successor in interest in the . . . trust property” can pay “the entire amount due, at the
time payment is tendered,” in order to reinstate the loan. (Ibid.; Napue v. Gor-Mey West,
Inc. (1985) 175 Cal.App.3d 608, 614.) Here the Trust argues that it made payments on
the Flowers loan “from December 2007 through December 2008.” This was well before
the May 12, 2009 recording of the notice of default on the Flowers loan, so section 2924c
was not implicated.
The Trust also argues that it “continued to tender the monthly loan payments”
after WaMu informed the Trust in December 2008 that it would no longer accept them.
This was not a payment or tender of “the entire amount due at the time payment is
tendered.” (§ 2924c, subd. (a)(1).) The Trust does not allege or argue that it tendered the
entire amount of the arrearage after the notice of default was recorded. Significantly, it
does not allege or argue that it asked defendants in writing to tell it the amount of the
arrearage. (See Civ. Code, § 2924c(b)(1) [“[u]pon your written request, the [lender] will
give you a written itemization of the entire amount you must pay.”].) Thus, it cannot rely
on section 2924c. We conclude that the Trust failed to meet its burden of showing that it
could amend its complaint to allege a duty on the part of defendants to credit the Trust’s
payments to the Flowers loan to avoid a default. (Cooper, supra, 70 Cal.2d at p. 636.)
Even if the Trust could allege a duty that defendants breached, it has not explained
how it could amend its complaint to allege resulting damage. It asserts that if defendants
conduct a foreclosure sale of the Flowers cottage, their alleged negligence “will have
caused” the Trust to lose its loan payments and its property. There is no allegation nor
does the Trust argue that defendants have foreclosed or seek to foreclose on the Trust’s
property. Because the Trust cannot amend its complaint to allege the necessary elements
of duty or damages, the trial court properly sustained the demurrer to the Trust’s
negligence cause of action without leave to amend.
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E. Fourth Cause of Action for Violation of Section 2924
The Trust contends that the trial court erred in sustaining the demurrer to its fourth
cause of action for lack of standing. We disagree.
Section 2924 requires a notice of default to include “[a] statement identifying the
mortgage or deed of trust . . . or a description of the mortgaged or trust property.”
(§ 2924, subd. (a)(1)(A).) The Trust asserts that defendants violated this section because
the notice of default included the wrong property address. It argues that it has standing as
a property owner to contest the validity of the deed of trust because it “may” suffer injury
from defendants’ allegedly defective notice of default, since the foreclosure proceedings
“could” result in the Trust losing its property “if” a court orders defendants to foreclose
on the “right” property.3 We have already rejected this standing argument in the context
of the Trust’s assertions that it had standing to contest whether the note was in default.
(Ante, at pp. 7-9.)
The same reasoning applies here. The Trust lacks standing to challenge the
validity of the notice of default vis-à-vis Peterson’s property because it has no interest in
that property. It lacks standing to challenge the validity of the notice of default vis-à-vis
its own property because, as the allegations of the complaint and its arguments on appeal
implicitly concede, defendants are not attempting to foreclose on the Trust’s property.
Instead, they are “determined” to foreclose on the “wrong” property. Thus, any challenge
3
The fourth cause of action also alleged that defendants violated section 2923.5 by
never contacting the Trust or attempting to modify the loan with the Trust. The Trust
does not mention section 2923.5 on appeal. Consequently, we deem its section 2923.5
argument abandoned. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785
(Badie) [“When an appellant fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point as waived”]; Title
Guarantee & Trust Co. v. Fraternal Finance Co. (1934) 220 Cal. 362, 363 [on appeal
from judgment based on order striking answer as sham granting plaintiff’s motion for
judgment on the pleadings, deeming reliance on denials in answer abandoned where
“appellant in its brief makes no attempt to show that any allegation of its answer, except
the affirmative allegation above referred to, raised a material issue upon which appellant
was entitled to a trial.”].)
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to a foreclosure of the Trust’s property is premature. The trial court properly sustained
defendant’s demurrer to the Trust’s fourth cause of action.
F. Sixth Cause of Action4
The trial court sustained defendants’ demurrer to the Trust’s sixth cause of action
for “negligence” in refusing “to negotiate in good faith toward foreclosure avoidance.”
(Capitalization & boldface omitted.) The court ruled that there is no common law duty to
negotiate in good faith to avoid a foreclosure, and even if there were, “[a]ny duty to
negotiate a loan modification would be owed to Flowers and not the [T]rust or Davis.”
The Trust does not challenge or even address that ruling in its appellate briefs. We deem
any such challenge waived. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
III. Disposition
The judgment is affirmed.
4
As Peterson is not a party to this appeal, we need not discuss the fifth cause of
action for slander of title or the seventh cause of action for quiet title. Those causes of
action were asserted by Peterson only.
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___________________________
Mihara, J.
WE CONCUR:
_____________________________
Bamattre-Manoukian, Acting P. J.
_____________________________
Márquez, J.
JRDHH Trust v. California Reconveyance Co., et al.
H040573
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