Multani v. Witkin & Neal

Filed 5/1/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
AFSHAN MULTANI et al. B237295
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. GC044440)
v.
WITKIN & NEAL et al.
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County,
C. Edward Simpson, Judge. Reversed.
Law office of Gary Kurtz and Gary Kurtz for Plaintiffs and Appellants.
Richardson Harman Ober, Kelly G. Richardson and Brian D. Moreno for
Defendants and Respondents.
________________________
INTRODUCTION
The Castle Green Homeowners Association notified Afshan and Rahim Multani
that they were delinquent in paying their monthly assessment fees. After the Multanis
disputed the debt, the Association conducted a nonjudicial foreclosure sale of their
condominium unit. The Multanis sued to set aside the foreclosure alleging irregularities
in the sale notices and procedure. They further alleged that the Association and its agents
had committed tortious acts during the foreclosure process.
The defendants filed a motion for summary judgment or adjudication arguing that
the court should dismiss the foreclosure claims because plaintiffs had actual knowledge
of the foreclosure proceedings and failed to exercise their post-sale right of redemption.
The defendants also argued that plaintiffs‟ tort claims were untimely and predicated on
privileged conduct related to the foreclosure process. The court granted the motion.
We reverse the trial court‟s dismissal of plaintiffs‟ claims seeking to set aside the
foreclosure sale, concluding that defendants failed to demonstrate that they notified the
plaintiffs of their right of redemption as required by Code of Civil Procedure section
729.050.
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of Plaintiffs’ Complaint
1. Plaintiffs’ factual allegations
In January of 2010, plaintiffs Afshan and Rahim Multani filed a complaint against
the Castle Green Homeowners Association (the Association) and numerous other parties
arising from a foreclosure of the Multanis‟ condominium unit.1 The complaint alleged
that, in 1998, plaintiffs had purchased a condominium unit in the “Castle Greens”
building in Pasadena, California. Plaintiffs obtained financing to purchase the unit from
Chase Bank, who later transferred the loan to Indymac Bank.
1 This factual summary is predicated on the allegations in plaintiffs‟ second
amended complaint, which was filed on June 28, 2010.
2
In 2005, Rahim Multani returned from an overseas trip and was informed by the
Association and its agents, LB Property Management and SBS Lien Services, that he was
delinquent in paying his homeowner assessment fees. Although Multani paid the
delinquent fees, he received a letter from SBS in August of 2005 alleging that he still
owed approximately $2,000 in fees and costs. Multani met with SBS and issued a
payment of $743.16 that was never credited to his account. In October, Multani
attempted to pay the Association his monthly assessment but was told that the account
had been referred to SBS “for collection.” One month later, the Association, acting
through SBS, recorded a notice of delinquent assessment against the property in the
amount of $3,317, which consisted of $2,229 in unpaid assessments and an additional
$1,087 in attorney‟s fees, costs, late fees and interest.
Throughout 2006, Multani and the Association continued to “disput[e] the validity
of the amount . . . owed . . .” In February of 2007, Multani received a notice of sale
informing him that the Association “intended to enforce the lien created by the November
. . . recording of the Notice of Assessment by selling the Subject Property on March 27,
2007.” The Association alleged that Multani now owed almost $12,000 in assessment
fees and costs. Although Multani disputed the Association‟s accounting, he agreed to
pay the full amount and the Association released the assessment lien.
Shortly after the lien was released, Multani contacted the Association and
“requested that his account be given . . . credit f[or] . . . previously non-credited
payments.” Between April and July of 2007, Multani continued to make his “required
monthly assessment payments, but was never given the credit due on the account.” In
February of 2008, the Association recorded a second notice of delinquent assessment lien
against the property and, in June, recorded a “Notice of Default and Lien.” Six months
later, on December 5, 2008, the Association and its trustee, Witkin & Neal, “set a sale
date of the property to take place on January 27, 2009.” Multani “sent a letter disputing
the validity of the amount owed” and requested alternative dispute resolution. The
Association did not respond.
3
On January 5, 2009, “Indymac [Bank], the lender and beneficiary of the senior
deed of trust [on the condominium unit], mistakenly instructed their [sic] trustee to
foreclose . . . on the property.” Plaintiffs immediately filed a wrongful foreclosure action
and Indymac agreed to issue a notice of rescission of foreclosure, which was recorded on
April 28, 2009. Plaintiffs contended that Indymac‟s actions had effectively
“extinguish[ed] [the Association‟s] lien and its Notice of Trustee‟s Sale,” thereby
requiring the Association to reinitiate the foreclosure process by recording a new lien.
The Association, however, elected to proceed and directed Witkin & Neil to
record the notice of trustee sale set for January 27, 2009. In May of 2009, Multani
informed the president of the Association, Randy Banks, that he “ha[d] been trying for
some time to correct and rectify what seemed an impossible task of getting a [sic]
accurate accounting on Plaintiffs‟ account and getting the proper credits that were due.”
Banks told Multani that he was unaware of the accounting discrepancies and would
“provide assistance . . . with the outstanding issues regarding the [improper] Association
assessments.”
Despite these assurances, on May 21, 2009, the Association placed a notice on the
door of the Multanis‟ condominium stating that they owed $13,640 for delinquent
assessments and costs. Shortly after the notice was posted, the Multanis‟ tenants
informed them that the locks on the condominium unit had been changed. When Multani
arrived at Castle Green to investigate the matter, he was met by Banks, who said that he
had contacted the police and that Multani would be arrested if he did not leave the
premises. Although Multani informed the responding officers that he was the legal
owner of the condominium, he was forced to leave the building. Between May and
October of 2009, Banks and other Association members continued to “harass[] Plaintiffs‟
tenants,” causing them to vacate the condominium.
On July 23, 2009, the Association conducted a foreclosure sale of the Multanis‟
condominium, which was purchased by ProValue Properties. Although the “property
was estimated to be valued at approximately $400,000,” ProValue paid only $20,400,
subject to Indymac Bank‟s $75,000 deed of trust. The Association and its trustee never
4
notified the Multanis that the sale had been postponed from January 27 to July 23, nor did
they provide any notice after the sale was completed.
In October of 2009, the Multanis signed a lease with new tenants who moved into
the condominium. However, on November 19, the Multanis received a courtesy copy of
an unlawful detainer complaint from the Los Angeles Superior Court stating that: (1) a
nonjudicial foreclosure of the condominium had occurred on July 23, 2009; (2) although
originally scheduled to occur on January 27, 2009, the Association‟s trustee had “from
time to time postponed” the sale until July 23; and (3) a trustee deed of sale had been
recorded on October 24, 2009, which was 90 days after the plaintiffs‟ “right to
redemption” had expired. Prior to receiving the unlawful detainer complaint, the
plaintiffs were unaware of the foreclosure sale.
In November and December of 2009, ProValue repeatedly changed the locks on
the condominium unit. Multani and his tenants had several disputes with ProValue,
culminating in an altercation on December 17, 2009. Based on misrepresentations made
by ProValue, the Pasadena police told Multani that he had to vacate the condominium by
the end of the weekend or he would be arrested for trespassing. After being repeatedly
harassed and threatened with arrest, Multani finally relinquished possession of the unit
and elected to file a lawsuit against the Association, its agents – Witkin & Neal, SBS
Lien Services and LB Property Management – and numerous other parties, including
ProValue.
2. Summary of plaintiffs’ claims
The Multanis‟ complaint asserted numerous claims seeking to set aside the
foreclosure, including: quiet title, wrongful foreclosure, rescission and declaratory relief.
The Multanis alleged that the foreclosure was improper because the Association and its
agents (collectively defendants) had failed to properly serve the notice of trustee sale or
comply with other procedural requirements mandated under Civil Code section 2924, et
seq. Plaintiffs also alleged that the defendants had failed to comply with “Civil Code
section 1367 et seq.,” which imposes additional procedural requirements on nonjudicial
5
foreclosures conducted by homeowner associations for delinquent assessment fees. More
specifically, plaintiffs alleged that the defendants “failed to provide alternate dispute
resolution as required by [Civil Code section 1367.4].” The Multanis further asserted
that all of the defendants‟ foreclosure notices had been “effectively voided” when
“Indymac Bank . . . conducted their non-judicial foreclosure sale of January 2009 and
recorded the Deed Upon Sale.”
In addition to the foreclosure claims, the complaint alleged several tort claims
based on the defendants‟ actions during the foreclosure process. Plaintiffs asserted
claims for fraud, breach of fiduciary duty and intentional infliction of emotional distress
alleging that the defendants had: (1) “intentionally mixed up the accounting of Plaintiffs‟
dues, imposed unwarranted dues and other charges, and confused Plaintiffs as to what
was actually going on by repeated filings of notices, liens, and releases of liens by
Defendants”; (2) “intentionally did not properly credit Plaintiffs‟ account so as to further
extract additional monies in the form of collections costs, attorneys fees and late
penalties”; and (3) “conspired to conduct a [nonjudicial foreclosure] sale without any
notice to prevent Plaintiffs from opposing such sale.”
The complaint also asserted claims for interference with contractual relations and
interference with prospective economic advantage, which were predicated on the
defendants‟ harassment of the plaintiff‟s condominium tenants. The complaint listed
numerous additional statutory claims based on similar conduct, including violation of the
Unruh Civil Rights Act (Civ. Code, §§ 51 et seq.), violation of the Fair Debt Collection
Practices Act (Civ. Code, §§ 1788 et seq.), violation of the federal Racketeer Influence
and Corrupt Organization Act (18 U.S.C §§ 1961 et seq.) (RICO) and unfair business
practices.
6
B. Defendants’ Motion for Summary Judgment or Summary Adjudication
1. Defendants’ motion and supporting evidence
a. Summary of motion for summary judgment or adjudication
In June of 2011, the Association and its agents filed a motion for summary
judgment or, alternatively, summary adjudication. First, defendants asserted that the
undisputed evidence showed the Multanis had “violated the „tender rule‟ by failing to
tender the full amount before the foreclosure sale.” Second, defendants argued that they
had provided evidence demonstrating substantial compliance with all statutory notice
requirements. Third, defendants contended that plaintiffs were not harmed by any
alleged procedural irregularity because they had actual notice that the foreclosure sale
was scheduled to occur on January 27, 2009. Fourth, defendants argued that, pursuant to
Civil Code section 1058.5, Indymac Bank‟s rescinded January 5th foreclosure had no
effect on the Association‟s foreclosure.2
As to plaintiffs‟ tort claims, the defendants argued that all of the conduct alleged
in the complaint was related to the “processing of [a] . . . foreclosure” and was therefore
“covered by the Civil Code Section 47(b) absolute privilege.” The Association also
argued that the allegations in the complaint demonstrated that plaintiffs‟ interference
claims were time barred.
The Association‟s agents, Witkin & Neil and LB Management, separately argued
that all of the tort claims asserted against them should be dismissed because they were
entitled to qualified immunity under Civil Code section 2924, subdivision (b) and
defendants had “failed to articulate the alleged bad acts committed by [them].”
b. Summary of evidence filed in support of defendants’ motion
In support of their motion, the defendants submitted a declaration from the chief
operating officer of Witkin & Neal summarizing the actions the trustee had taken during
2 Civil Code section 1058.5, subdivision (b) states, in relevant part: “Where a
trustee‟s deed is invalidated by a pending bankruptcy or otherwise, recordation of a
notice of rescission of the trustee‟s deed . . . shall restore the condition of record title to
the real property described in the trustee‟s deed and the existence and priority of all
lienholders to the status quo prior to the recordation of the trustee‟s deed upon sale . . . .”
7
the foreclosure proceedings. According to the declaration, on April 21, 2008, Witkin &
Neal mailed the plaintiffs a “pre-notice” of default letter informing them that a notice of
delinquent assessment had been recorded against the property and that the current amount
due on the account was $4,206.40. The letter further stated that the plaintiffs had the
right to “dispute the assessment debt by submitting a written request for dispute
resolution.” A declaration of mailing indicated that the letter was sent to the Multanis‟
condominium unit and a Pasadena post office box numbered “82341.”
The declaration also stated that, on June 23, 2008, Witkin & Neal mailed the
plaintiffs a notice of default and election to sell stating that the amount currently due
totaled $5,494.73 and would continue to “increase until [the] account bec[a]me current.”
A declaration of mailing indicated that the notice was sent to the same two addresses as
the “pre-notice” letter and to a second Pasadena post office box numbered “92341.” On
January 9, 2009, Witkin & Neal sent the plaintiffs a notice of trustee‟s sale informing
them that: (1) the sale was scheduled to occur on January 27, 2009; (2) the total unpaid
balance was currently $10,267.62; and (3) the foreclosure sale was subject to a 90-day
redemption period during which the owners could reclaim the property. A declaration of
mailing indicated that the notice was sent to the same three addresses as the notice of
default.
The declaration further alleged that, “at the time and place fixed in the Notice of
Trustee‟s Sale, [Witkin & Neal] did, by public announcement, and in a manner provided
by law, postpone the sale date from time to time thereafter until July 23, 2009, when
[Witkin & Neal] sold the Subject unit to ProValue Properties . . . for the sum of $20,200.”
On July 31, 2009, defendants recorded a certificate of sale confirming that that the
property was sold to ProValue and that the sale was subject to a 90-day “right of
redemption.” According to the declaration, plaintiffs “made no attempt to tender the full
amount before the foreclosure sale date” and “failed to redeem the Subject Property
during the 90-day right of redemption period.” At the expiration of the 90-day
redemption period, Witkin & Neal recorded a Trustee‟s Deed Upon Sale, dated
November 6, 2009.
8
The defendants also submitted excerpts from Rahim Multani‟s deposition in which
he admitted that he stopped paying his assessment fees because he “felt that [a] claim of
overpayment was not being handled correctly.” According to Multani, “no one gave
[him] a correct accounting or breakdown of what the actual outstanding amount was
owed.” Multani alleged that, in 2008, he had tried to pay the amount that he believed he
owed but the Association rejected his payments. Thereafter, Multani made a “conscious
decision” not to pay the “entire asserted balance” because he believed it was incorrect
and was “always a moving target.” Multani also testified that, prior to December 16,
2009, he was unaware that the Association had actually held a foreclosure sale.
2. Plaintiffs’ opposition and supporting documentation
On August 10, 2011, plaintiffs submitted an opposition arguing that there were
disputed issues of material fact as to whether the defendants had complied with all of the
mandated procedural requirements. Plaintiffs argued, in relevant part, that: (1)
“[d]efendants failed to provide notice to Plaintiffs for the secret sale [that occurred on
July 23, 2009]”; (2) defendant failed to respond to Rahim Multani‟s letter dated
December 2008, in which he specifically requested alternative dispute resolution; and (3)
Indymac‟s subsequently rescinded foreclosure “extinguished” any prior notices the
Association had issued in relation to their own foreclosure. The plaintiffs also argued
that they were excused from complying with the tender rule because they had disputed
“the validity of the underlying debt.”
As to the tort claims, plaintiffs asserted that their complaint alleged numerous
forms of non-communicative conduct that were not privileged under Civil Code section
47 subdivision (b), including allegations that the defendants had unlawfully harassed
Multani and his tenants and repeatedly changed the locks on the condominium unit.
In support of their opposition, plaintiffs submitted a 14-page declaration from
Rahim Multani that contained a detailed discussion of the accounting dispute that
preceded the Association‟s recording of the delinquency lien. Multani asserted that, in
June of 2007, he paid the Association almost $12,000 to resolve a prior payment dispute
9
that had begun in 2005, but that the defendants failed to properly credit him for two prior
payments totaling approximately $1,500 and then began to intentionally inflate their
monetary claims. Multani alleged that, on December 22, 2008, he sent the Association
board a letter in which he disputed the amount that he owed and requested alternate
dispute resolution. The Association, however, never responded to the letter.
Multani‟s declaration admitted that he knew defendants had scheduled a
foreclosure sale for January 27, 2009, but asserted that he was led to believe the sale had
been cancelled. Multani explained that, one day prior to the scheduled sale date, his
attorney informed Witkin & Neal that Indymac Bank had foreclosed on the property two
weeks earlier. In response, Witkin & Neal allegedly stated “if that was the case, then
there would be no sale taking place the next day.” According to Multani, Witkin & Neal
never indicated that it might postpone the foreclosure sale, but then “surreptitious[ly]”
sold the property to ProValue on July 23, 2009. Multani further stated that, after this
“secret” sale occurred, the defendants failed to provide him a notice of his right to
redemption as required under Code of Civil Procedure section 729.050.3
Multani also asserted that, during the foreclosure sale, the defendants committed
numerous “criminal acts by changing the locks on the Subject property . . . ; calling the
Pasadena Police Department on more than one occasion to attempt to prevent [him] from
[entering the subject property]; improperly having [him] detained; and attempt[ing] to
place [him] under citizen‟s arrest for trespassing . . .”4
C. The trial court’s ruling
At the hearing, the plaintiffs argued that defendants had sent many of the
foreclosure notices to the wrong address. According to the plaintiffs‟ attorney, Rahim
3 Unless otherwise noted, all further statutory citations and references are to the
Code of Civil Procedure.
4 The defendants filed objections to numerous aspects of Rahim Multani‟s
deposition. The record, however, does not indicate whether the court ruled on the
objections, and defendants have not asserted there were any erroneous evidentiary
rulings.
10
Multani‟s proper mailing address was post office box number 92341, but the defendants
had sent several of the notices to post office box number 82341. Plaintiffs counsel
further argued that the proper address had been on file with the Association but, “at some
point[,] the homeowners association started sending it to the wrong P.O. box.”
In response, defendants‟ attorney argued that they had submitted several
recordation of mailings in support of their motion showing that most of the notices had in
fact been sent to post office box 92341. Counsel also argued that it was irrelevant
whether the defendants had mailed the notices to the correct address because plaintiffs
had admitted they “had actual knowledge of the [foreclosure] process.” After the court
informed the parties that it was going to take the matter under submission, the following
exchange occurred:
PLAINTIFFS‟ COUNSEL: Your honor, can I just ask the court to take a look at
[section] 729.050.
COURT: And what is it?
PLAINTIFFS‟ COUNSEL: That talks about the requirements. Their certificate of sale.
COURT: Oh yeah, I‟m going to look at that.
On August 23, 2011, the trial court filed an order granting judgment in favor of
Witkin & Neal and LB Property Management and granting the Association judgment on
twelve of the fifteen remaining claims pleaded against it.5 The court concluded that the
defendants were entitled to judgment on each of the four claims seeking to set aside the
foreclosure because plaintiffs had admitted that they “failed to tender the amount of the
debt prior to the sale or exercise [their] right[s] of redemption after the sale.”6
5 The record indicates that, several months prior to the hearing on the motion for
summary judgment or adjudication, the trial court had sustained a demurrer to plaintiffs‟
claims alleging violations of the Fair Debt Collection Practices Act and RICO.
Appellants do not challenge that ruling.
6 Plaintiffs sought to set aside the foreclosure in four separate claims: declaratory
relief, quiet title, wrongful foreclosure and rescission. We refer collectively to these four
claims as the “foreclosure claims” or as “claims seeking to set aside the foreclosure.”
11
In addition, the court concluded that the following evidence demonstrated that
plaintiffs were not “prejudice[ed]” by any “procedural irregularity” in the foreclosure
proceedings: (1) prior to recording the notice of delinquent assessment, the Association
sent plaintiffs a letter advising them of their right to alternative dispute resolution; (2)
Witkin & Neal‟s declaration demonstrated that defendants had properly complied with all
statutory requirements when postponing the foreclosure sale from January 27, 2009 to
July 23; 2009; and (3) plaintiffs admitted they had “actual knowledge of the foreclosure
proceedings” and, “[d]espite such knowledge, [had] failed to exercise their 90-day
statutory right of redemption.”
The trial court also concluded that the defendants‟ evidence showed that four
notices had been sent to the plaintiffs‟ condominium unit and post office box 82341: (1) a
notice to pay or lien, dated December 27, 2007; (2) a notice of delinquent assessment
liens, which had been sent on February 28, 2008 and again on April 21, 2008; (3) a notice
of default and election to sell, dated June 13, 2008; and (4) a notice of trustee‟s sale,
dated October 31, 2009. The latter two items were also sent to post office box 92341,
which Multani had alleged to be his proper mailing address. The court further noted that
plaintiffs had never specifically alleged that they did not receive any of these four items.
On the tort-based claims, the court ruled that the defendants were entitled to
dismissal of the fifth cause of action (fraud), eighth cause of action (breach of fiduciary
duty) ninth cause of action (intentional infliction of emotional distress) and the eighteenth
cause of action (unfair business practices) because each of those claims was predicated
on “actions . . . subject to immunities set forth in [Civil Code sections] 47 and 2924(b).”
In addition, the court ruled that plaintiffs‟ thirteenth through sixteenth claims, which
alleged interference with contractual relations and prospective economic advantage, were
“time-barred.”
The court entered judgment in favor of Witkin & Neal and LB Property
Management on September 12, 2011. Three claims, however, remained pending against
Plaintiffs also pleaded a claim for cancellation of deed against ProValue, which is not a
party to this appeal.
12
the Association: violation of the Unruh Civil Rights Act, forcible detainer and a request
for an accounting.
On September 23, the Association moved for judgment on the pleadings seeking
dismissal “of these remaining claims . . . such that judgment [may be] entered in favor of
the Association.” The trial court granted the motion on October 19, 2011 and entered a
final judgment in favor of the Association on November 9, 2011. Plaintiffs filed a timely
appeal of the trial court‟s judgment and order granting the defendants‟ motion for
summary judgment or adjudication.7
DISCUSSION
A. Standard of Review
“„The standard for deciding a summary judgment motion is well-established, as is
the standard of review on appeal.‟ [Citation.] „A defendant moving for summary
judgment has the burden of producing evidence showing that one or more elements of the
plaintiff‟s cause of action cannot be established, or that there is a complete defense to that
cause of action. [Citation.] The burden then shifts to the plaintiff to produce specific
facts showing a triable issue as to the cause of action or the defense. [Citations.] Despite
the shifting burdens of production, the defendant, as the moving party, always bears the
ultimate burden of persuasion as to whether summary judgment is warranted.
[Citations.]‟ [Citation.].” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th
805, 817 (Hypertouch).)
“„On appeal, we review de novo an order granting summary judgment. [Citation.]
The trial court must grant a summary judgment motion when the evidence shows that
there is no triable issue of material fact and the moving party is entitled to judgment as a
7 Plaintiffs‟ notice of appeal and portions of their appellate brief also allude to the
trial court‟s order granting the Association‟s motion for judgment on the pleadings. As
discussed in more detail below, however, the brief contains insufficient legal analysis of
any of the three claims dismissed in that order. Plaintiffs have therefore abandoned any
claim of error regarding the trial court‟s order granting defendants‟ motion for judgment
on the pleadings. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 (Reyes).)
13
matter of law. [Citations.] In making this determination, courts view the evidence,
including all reasonable inferences supported by that evidence, in the light most favorable
to the nonmoving party. [Citations.]‟ [Citation.]” (Hypertouch, supra, 192 Cal.App.4th
at p. 818.) “The same standards apply to motions for summary adjudication.” (Id. at
p. 817, fn. 3.)
B. Defendants Failed to Satisfy Their Initial Burden of Production on
Plaintiffs’ Foreclosure Claims
The plaintiffs argue that the trial court erred in dismissing each of their claims
seeking to set aside the foreclosure sale because there are triable issues of fact as to
whether defendants complied with numerous procedures required under the Civil Code
and the Code of Civil Procedure. We reverse the trial court‟s dismissal of the foreclosure
claims, concluding that defendants failed to demonstrate that they notified plaintiffs of
their right to redemption or the applicable redemption period as required under section
729.050.8
1. The post-sale right to redemption in nonjudicial foreclosures by a
homeowner association for delinquent assessment fees
Special procedures govern nonjudicial foreclosures initiated by a homeowner
association for the collection of delinquent assessment fees. Under the Davis-Stirling
Common Interest Development Act (see Civ. Code, § 1350 et seq.) (the Act), which
governs common interest developments (CID) in California,9 the amount of any unpaid
association assessment, plus the reasonable costs of collection, late charges, and interest,
constitutes a “debt of the owner of the separate interest.” (Civ. Code, § 1367.1, subd. (a);
Civ. Code, § 1366, subds. (e)(1)-(3).) After complying with various notice requirements
8 The plaintiffs raise numerous additional arguments as to why we should reverse
the trial court‟s dismissal of their foreclosure claims. Because we reverse the dismissal
of those claims based on defendants‟ failure to provide evidence demonstrating
compliance with section 729.050, we need not address plaintiffs‟ additional arguments.
9 The parties do not dispute that the Multanis‟ condominium unit was part of a
common interest development governed by the Act.
14
(see Civ. Code, § 1367.1, subds. (a)-(c)), an association may record a lien of delinquent
assessment against the property (see Civ. Code, § 1367.1, subd. (e)) and then enforce the
lien through a nonjudicial foreclosure “conducted in accordance with [Civil Code]
[s]ections 2924, 2924b and 2924c applicable to the exercise of powers of sale in
mortgages and deeds of trust.” (Civ. Code, § 1367.1, subd. (g).)
As a general rule, the debtor in a nonjudicial foreclosure may avoid the loss of the
property by “pay[ing] all amounts due at any time prior to the sale . . .” (Knapp v.
Doherty (2004) 123 Cal.App.4th 76, 86-87 (Knapp).) However, “[o]nce the sale is
completed, the trustor has no further rights of redemption.” (Id. at p. 831.) Prior to 2006,
these same rules applied to nonjudicial foreclosures by an association for delinquent
assessments.
In 2005, however, the Legislature adopted S.B. 137 (2005 Stats., c. 452 (S.B.
137), § 5), which placed numerous limitations on an association‟s ability to utilize
foreclosure as a means to collect assessments. The legislative history indicates that S.B.
137 was intended to “institute . . . important procedural . . . requirements to protect CID
homeowners” from the “extreme hammer of non-judicial foreclosure in order to collect
relatively small amounts of overdue assessments.” (California Bill Analysis, S.B. 137
Assembly Fl. (2005-2006 Reg. Sess.) September 1, 2005.) Supporters of the Bill argued
that there had been “too many instances” in which “CID associations [had] . . . initiated
[foreclosures] for relatively small amounts . . ., [and then] sold [the property] for an all-
too-often shockingly small fraction of its actual value.” (Ibid.) The bill sought to avoid
similar outcomes in the future by providing “CID homeowners” additional “due process
protections.” (Ibid.)
S.B. 137 added Civil Code section 1367.4, which prohibits (with certain
exceptions) the use of foreclosure to collect delinquent assessments that total less than
$1,800. (Civ. Code, § 1367.4, subd. (b).) Although the statute permits an association to
“use . . . nonjudicial foreclosure” for delinquent assessments exceeding $1,800 (see Civ.
Code, § 1367.4, subd. (c)), section 1367.4, subdivision (c)(4) requires that the association
provide CID owners a right to redeem the property within 90 days after the sale: “A
15
nonjudicial foreclosure by an association to collect upon a debt for delinquent
assessments shall be subject to a right of redemption. The redemption period within
which the separate interest may be redeemed from a foreclosure sale under this paragraph
ends 90 days after the sale. . . .” A similar provision appears in section 729.035, which
was also added as part of S.B. 137: “Notwithstanding any provision of law to the
contrary, the sale of a separate interest in a common interest development is subject to the
right of redemption within 90 days after the sale if the sale arises from a foreclosure by
the association of a common interest development pursuant to subdivision (g) of Section
1367.1 of the Civil Code, subject to the conditions of Section 1367.4 of the Civil Code.”10
The redemption process, which is normally available only in the context of
judicial foreclosure, is governed by requirements set forth in the Code of Civil
Procedure.11 Section 729.040 mandates that, following a foreclosure subject to a right of
redemption, the trustee must deliver a “certificate of sale” to the purchaser and record a
duplicate of the certificate in the office of the county recorder. Under section 729.050,
10 Civil Code section 1367.4 imposes various other conditions on an association‟s
use of nonjudicial foreclosure. First, “prior to initiating the foreclosure,” the association
must “offer the owner and, if so requested by the owner, participate in” various,
enumerated forms of alternative dispute resolution, including binding arbitration. (Civ.
Code, § 1367.4, subd. (c)(1).) Second, the statute requires that the decision to initiate
foreclosure must be made by the association‟s board of directors in an open vote.
(Civ. Code, § 1367.4, subd. (c)(2).) Third, the board must provide the owner notice of its
decision. (Civ. Code, § 1367.4, subd. (c)(3).)
11 A judicial foreclosure involves significant “court oversight” (Arabia v. BAC Home
Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 470) and provides the creditor and the
debtor certain rights that are generally not available in nonjudicial foreclosure: “In a
judicial foreclosure, if the property is sold for less than the amount of the outstanding
indebtedness, the creditor may seek a deficiency judgment, or the difference between the
amount of the indebtedness and the fair market value of the property, as determined by a
court, at the time of the sale. [Citation.] However, the debtor has a statutory right of
redemption . . . for a period of time after foreclosure. [Citation.]” (Alliance Mortgage
Co. v. Rothwell (1995) 10 Cal.4th 1226, 1236 (Alliance).) By contrast, in a nonjudicial
foreclosure, there “is no oversight by a court, . . . the debtor has no postsale right of
redemption[,] . . . and the creditor may not seek a deficiency judgment.” (National
Enterprises, Inc. v. Woods (2001) 94 Cal.App.4th 1217, 1226.)
16
the trustee must also promptly notify the debtor of his redemption rights: “If property is
sold subject to the right of redemption, promptly after the sale the levying officer or
trustee who conducted the sale shall serve notice of the right of redemption on the
judgment debtor. Service shall be made personally or by mail. The notice of the right of
redemption shall indicate the applicable redemption period.”
Sections 729.060-729.090 describe how the debtor may redeem his or her property
following the foreclosure sale. “[S]ection 729.060, subdivision (a) requires „[a] person
who seeks to redeem the property [to] deposit the redemption price with the levying
officer who conducted the sale before the expiration of the redemption period.‟
Subdivision (b) of this statute defines the redemption price as „the total of the following
amounts . . . . [¶] (1) The purchase price at the sale. [¶] (2) The amount of any
assessments or taxes and reasonable amounts for fire insurance, maintenance, upkeep,
and repair of improvements on the property. [¶] (3) Any amount paid by the purchaser on
a prior obligation secured by the property to the extent that the payment was necessary
for the protection of the purchaser‟s interest. [¶] (4) Interest on the amounts described in
paragraphs (1), (2), and (3) . . . .‟ In addition, subdivision (c) of . . . section 729.060
authorizes an offset to the redeeming party for „[r]ents and profits from the property
paid to the purchaser or the value of the use and occupation of the property to the
purchaser . . . .‟” (Barry v. OC Residential Properties (2011) 194 Cal.App.4th 861, 866
(Barry).)
Section 729.070 establishes “a procedure allowing one „seeking to redeem the
property [who] disagree[s with the purchaser‟s claimed] redemption price‟ to petition „the
court for an order determining the redemption price . . .‟ [Citation.]” (Barry, supra, 194
Cal.App.4th at pp. 866-867.) If the debtor does not deposit the redemption price or
otherwise file a petition challenging the redemption price within the applicable
redemption period, the trustee must deliver an executed trustee‟s deed to the purchaser
and provide the debtor notice that the trustee sale has occurred. (§ 729.080, subd. (a).)
If, however, the debtor tenders “the redemption price determined by court order or agreed
upon by the purchaser . . . the effect of the sale is terminated and the person who
17
redeemed the property is restored to the estate therein sold at the sale.” (§ 729.080, subd.
(b).)
2. Defendants failed to make a prima facie showing that plaintiffs cannot
establish the elements necessary to set aside the foreclosure sale
Plaintiffs contend that the trial court erred in dismissing their foreclosure claims
because the defendants failed to notify them of their right of redemption as required
under section 729.050.
a. Defendants have waived any argument regarding plaintiffs’ failure to
plead a violation of section 729.050
Before addressing the merits of this argument, we assess defendants‟ contention
that we should “disregard[]” this “alleged [procedural] violation” because it “is outside
the scope of the Second Amended Complaint.”
Generally, “[a] defendant moving for summary judgment need address only the
issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his
or her opposing papers. [Citation.]” (Government Employees Ins. Co. v. Superior Court
(2000) 79 Cal.App.4th 95, 98, fn. 4.) Defendants assert that, in this case, plaintiffs‟
“allegation that [the Association and its trustee] somehow violated . . . [s]ection 729.050 .
. . . does not exist in the [second amended complaint],” which prohibits them from raising
the issue on appeal.
Plaintiffs‟ complaint, however, alleges that the defendants “conducted the
foreclosure proceedings unlawfully in that they did not follow the California non-
judicial foreclosure sale procedures prescribed by . . . Civil Code § 2924 and 1367.”
The complaint also alleges violation of “§ 1367 et seq.” As discussed above, Civil
Code section 1367.4, subdivision (c)(4) requires the association to provide CID owners a
90-day period to redeem the property, which triggers the trustee‟s notice requirements
under section 729.050.
In any event, defendants have forfeited this issue. When a plaintiff opposes a
motion for summary judgment or adjudication by raising an “unpleaded issue,” the
18
defendant‟s failure to “object to [the] injection of [the] unpleaded theory . . . [constitutes
a] waive[r].” (Knapp, supra, 123 Cal.App.4th at p. 90; see also Stalnaker v. Boeing Co.
(1986) 186 Cal.App.3d 1291, 1302.) The purpose of this objection requirement is to
ensure that, if the objection is sustained, the plaintiff has an opportunity to request leave
to amend the pleading to raise the unpleaded theory. (See Stalnaker, supra, 186
Cal.App.3d at p. 1302.)
In the trial court, plaintiffs‟ opposition papers included a declaration from Rahim
Multani in which he alleged that defendants did not comply with section 729.050‟s notice
requirements. Although the defendants objected to numerous statements in Multani‟s
declaration on the ground that they introduced issues outside the pleadings, defendants
did not raise this objection in regards to Multani‟s statements about section 729.050.
Moreover, during oral argument, the plaintiffs‟ attorney specifically requested that the
trial court review section 729.050 and determine whether defendants had demonstrated
compliance with its requirements. The defendants did not object to this request and the
trial court agreed that it would consider the issue. Under these circumstances, “we deem
waived defendants‟ objection to plaintiffs‟ . . . mode of pleading and argument.”
(Stalnaker, supra, 186 Cal.App.3d at p. 1302, fn. 7 [finding waiver where “the newly
introduced theory was . . . presented to the trial court, without defendants‟ objection”].)
b. Defendants failed to make a prima facie showing that they were entitled
to dismissal of plaintiffs’ claims seeking to set aside the foreclosure
As the party moving for summary adjudication of plaintiffs‟ foreclosure claims,
the defendants had the “„initial burden of production to make a prima facie showing” that
“one or more elements of the plaintiff‟s cause of action cannot be established.”
(Hypertouch, supra, 192 Cal.App.4th at p. 838.)
“The rights and powers of trustees in nonjudicial foreclosure proceedings have
long been regarded as strictly limited and defined by the contract of the parties and the
statutes.” (I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 287.) “Because
nonjudicial foreclosure is a „drastic sanction‟ and a „draconian remedy‟ [citation], „“[t]he
19
statutory requirements must be strictly complied with, and a trustee‟s sale based on
statutorily deficient notice of default is invalid.”‟ [Citations].” (Ung v. Koehler (2005)
135 Cal.App.4th 186, 202-203; see also Holland v. Pendleton Mortg. Co. (1943) 61
Cal.App.2d 570, 573-574 [foreclosure sale invalid where trustee fails to comply with
statutory notice procedures]; 4 Miller & Starr, Cal. Real Est. (3d ed. 2011) § 10:210 [“A
sale of the collateral by an exercise of the power of sale in violation of the statutory
limitations on the power is invalid”].)
To set aside a foreclosure, a plaintiff must generally establish three elements: “(1)
the trustee . . . caused an illegal, fraudulent, or willfully oppressive sale of real property
pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale
. . . was prejudiced or harmed; and (3) in cases where the trustor . . . challenges the sale,
the trustor . . . tendered the amount of the secured indebtedness or was excused from
tendering.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104 (Lona).) The
defendants argue that their moving papers made a prima facie showing that plaintiffs
cannot establish any of these three elements.
i. Defendants introduced no evidence that they complied with section 729.050
“Justifications . . . which satisfy the first element [to set aside a foreclosure]
include the trustee‟s . . . failure to comply with the statutory procedural requirements for
the notice or conduct of the sale.” (Lona, supra, 202 Cal.App.4th at p. 104.) Although
there is generally no “postsale right of redemption” in nonjudicial foreclosure
proceedings (Alliance, supra, 10 Cal.4th at p. 1236), a nonjudicial foreclosure by an
association for delinquent assessments is “subject to the right of redemption within 90
days after the sale.” (§ 729.035; see also Civ. Code, § 1367.4, subd. (c)(4).) As a result,
the trustee who conducts the sale must “promptly . . . serve notice of the right of
redemption on the judgment debtor,” which “shall indicate the applicable redemption
period.” (§ 729.050.)
Defendants have failed to provide any evidence that they complied with this
statutory requirement. In support of their motion for summary adjudication, the
20
defendants submitted evidence that they mailed the Multanis the following notices
regarding the foreclosure proceedings: (1) a “pre-notice of Default letter,” mailed April
21, 2008; (2) a “Notice of Default and Election to Sell,” mailed June 23, 2008; (3) a
“Notice of Board Decision to Foreclose and Notice of Default,” mailed October 7, 2008;
and (4) a “Notice of Trustee‟s Sale,” mailed January 9, 2009. The defendants also
submitted evidence that, following the foreclosure sale, the trustee recorded a
“Certification of Sale” on July 31, 2009 and then recorded the “Trustee‟s Deed Upon sale
. . . [a]fter the 90-day right of redemption period expired.”
Defendants, however, have cited no evidence in the record – and we have located
none – demonstrating that it mailed the Multanis a notice of right to redemption as
required under section 729.050. Instead, defendants contend that they had no burden to
present evidence that they complied with section 729.050 because “[a] nonjudicial
foreclosure sale is accompanied by a common law presumption that it „was conducted
regularly and fairly.‟ [Citations.]” (Lona, supra, 202 Cal.App.4th at p. 105.) Defendants
appear to assert that this presumption was, standing alone, sufficient to “„to make a prima
facie showing‟” (Hypertouch, supra, 192 Cal.App.4th at p. 839) that plaintiff could not
demonstrate any procedural irregularity in the foreclosure proceedings.
The defendants have not cited any authority indicating that this common law
presumption of regularity applies to the postsale redemption procedures at issue here. All
of the cases they cite applied the presumption in the context of standard nonjudicial
foreclosures that were not subject to statutory redemption. Even if the common law
presumption were to apply to redemption procedures, however, a defendant moving for
summary adjudication of claims seeking to set aside a foreclosure may not discharge his
or her initial burden of production by merely referencing the presumption. The
presumption, which is rebuttable (see 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc.
(2001) 85 Cal.App.4th 1279, 1284), merely requires that the party “attacking the sale . . .
[must] „plead[] and prove[] an improper procedure and resulting prejudice‟ [Citation.]”
(Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.) Thus, the plaintiff has the burden to
21
allege in its pleading that a prejudicial irregularity occurred and then to prove that
allegation at trial.
For the purposes of summary judgment or adjudication, however, defendants still
must make a prima facie showing that plaintiffs could not prove that any irregularity
occurred. This initial burden required defendants here to “present evidence” that they
complied with the statutory procedures applicable to this foreclosure. (Hypertouch,
supra, 192 Cal.App.4th at p. 838.) Their failure to do so means that they failed to
“conclusively negate[]” the first element of plaintiffs‟ foreclosure claims. (Ibid.)
ii. Defendants did not make a prima facie showing that plaintiffs
suffered no harm from the procedural defect
The second element necessary to set aside a foreclosure requires the plaintiff to
show that he or she was “prejudiced or harmed” by defendants‟ failure to comply “with
the procedural requirements for the foreclosure sale.” (See Lona, supra, 202 Cal.App.4th
at p. 104 [“to challenge a sale successfully there must be evidence of a failure to comply
with the procedural requirements for the foreclosure sale that caused prejudice to the
person attacking the sale”].)
Section 729.050‟s notification requirement serves two purposes. First, it ensures
that the debtor is aware that the property may still be redeemed. Second, it informs the
debtor the date on which his or her redemption rights expire. Presumably, a debtor who
has not received such notice has been harmed or prejudiced by the fact that they were not
informed of those rights. (See Residential Capital v. Cal-Western Reconveyance Corp.
(2003) 108 Cal.App.4th 807, 822 (Residential Capital) [“The inquiry is whether . . .
there is a . . . defect in the statutory procedure that is prejudicial to the interests of the
trustor and claimants”].)
Defendants, however, contend that no such prejudice occurred here because
plaintiffs were provided enough information to independently calculate when their
redemption period was set to expire. In support, defendants cite evidence indicating that,
prior to the foreclosure sale, they provided plaintiffs a statutorily-required notice of intent
22
to sell stating that: (1) the foreclosure sale was scheduled to occur on January 27, 2009;
and (2) the sale would be subject to a right of redemption that would end 90 days after the
sale date. Defendants assert that, based on this information, plaintiffs could have
determined when their right to redemption ended and therefore were not harmed by the
trustee‟s failure to comply with section 729.050.
For the purposes of this appeal, we assume that defendants did in fact make a
prima facie showing that they properly notified plaintiffs that the foreclosure sale was
originally scheduled to occur on January 27 and that the sale would be subject to a 90-day
right of redemption.12 Such evidence, however, is insufficient to demonstrate that
plaintiffs suffered no prejudice or harm from defendants‟ failure to comply with the
notice requirements of section 729.050. Defendants‟ argument is predicated on the
assumption that a debtor has an independent duty to calculate the applicable redemption
period based on information received during the foreclosure process. Section 729.050,
however, specifically relieves the debtor of any such burden by requiring the trustee to
provide notice of the applicable redemption period promptly after the foreclosures sale.
This post-sale notice requirement is of heightened importance where, as here, the
trustee postponed the original sale date without individualized notice to the debtor. Civil
Code section 2924g permits a trustee to postpone a foreclosure sale for up to a year by
making a public announcement “at the time and place last appointed for sale. . . . No
other notice of postponement need be given.” (Civ. Code, § 2924g, subd. (d).)13
Although the foreclosure in this case was originally scheduled for January 27, 2009, the
defendants‟ moving papers state that “[a]t the time and place fixed in the [notice of sale,
12 Plaintiffs argue that the notice of sale was ineffective because there is a triable
issue of fact as to whether defendants sent it to the correct address. For the purpose of
our analysis, however, we need not resolve that dispute.
13 The Civil Code has since been amended to require that, as of January 1, 2011,
“whenever a sale is postponed for a period of at least 10 business days pursuant to
Section 2924g, a mortgagee, beneficiary, or authorized agent shall provide written notice
to a borrower regarding the new sale date and time, within five business days following
the postponement.” (Civ. Code, § 2924, subd. (a)(5).)
23
the trustee] did, by public announcement . . . postpone the sale date from time to time . . .
until July 23.” Defendants provided no evidence that they gave plaintiffs any notice
regarding the postponements beyond the public announcement requirements described in
Civil Code section 2924g. Thus, without the section 729.050 notice, plaintiffs could have
only determined their applicable redemption period by attending each of the scheduled
sale dates or otherwise researching when, exactly, the sale occurred. Again, section
729.050 relieved them of any such obligation.
Defendants‟ argument would also permit homeowner associations to ignore
section 729.050 without consequence. The defendants were statutorily required to send
the pre-sale notice that contained the information they now contend remedied any harm
from their subsequent failure to comply with section 729.050. The Civil Code requires
that, before conducting a foreclosure sale predicated on delinquent assessment fees, the
association must provide a notice of sale that includes the date of the sale and a statement
“that the property is being sold subject to the right of redemption.” (Civ. Code,
§§ 1367.4, subd. (c)(4); 2924b, subd. (b) and 2924f.) Thus, defendants are essentially
arguing that a trustee who complies with this pre-sale notice requirement need not
comply with section 729.050‟s post-sale notice requirement. This argument is the
antithesis of the statutory scheme, which imposes a duty to provide a pre-sale notice
referencing the right to redemption and a post-sale notice stating the applicable
redemption period. The Legislature plainly concluded that, for the purpose of protecting
a CID owner‟s due process rights, both forms of notice are necessary.
The primary authority defendants cite in support of their assertion that plaintiffs
cannot establish harm is Knapp, supra, 123 Cal.App.4th 76, which held that “a slight
deviation from statutory notice requirements” does not always require a court to
“invalidate a foreclosure sale, where the trustee otherwise complies fully with the Civil
Code.” (Id. at p. 93.) The plaintiff in Knapp provided evidence that the defendant had
served a notice of sale prematurely. Under the Civil Code, the trustee was required to
comply with multiple timing requirements when serving the notice of sale: Civil Code
section 2924 required the trustee to serve the notice no earlier than “„three months‟
24
following recordation of the notice of default” (id. at p. 92), while section 2924b required
that the trustee serve “the notice at least 20 days prior to the sale.” (Id. at p. 88.) The
court explained that the evidence showed the trustee “served the [s]ale [n]otice on . . . a
date that was slightly less than three months after recordation of the [d]efault [n]otice,”
but 29 days prior to the sale date. (Id. at p. 92.) “Thus, while the [s]ale [n]otice did not
comply fully with the three-month requirement under section 2924, it provided more than
the 20 days notice mandated under section 2924b . . .” (Ibid.)
The court ruled that, under such circumstances, the foreclosure need not be set
aside, concluding: “[T]he slight procedural irregularity in the service of the [s]ale
[n]otice did not cause any injury to [b]orrowers. They had notice of the original sale
date; the trustee‟s sale did not go forward until almost one year after the date noticed.
There was no prejudicial procedural irregularity.” (Knapp, supra, 123 Cal.App.4th at
p. 94.) In the court‟s view, the “[b]orrowers‟ objection to the premature notice [wa]s, in
effect, a criticism that the trustee provided too much notice of the sale. There [wa]s no
evidence that they were prejudiced by the premature mailing of the notice. Given the fact
that the trustee‟s sale did not occur until almost a year after service of the Sale Notice, it
is difficult to imagine how Borrowers could claim any prejudice.” (Id. at p. 96.)
In reaching its holding, the court specifically differentiated prior decisions setting
aside foreclosure sales in which the debtor had been denied a “„substantial statutory
right‟” that was likely to result in prejudice. (Knapp, supra, 123 Cal.App.4th at p. 94.)
According to the court, “no such substantial statutory right was abridged by trustee‟s
premature mailing of the Sale Notice, which otherwise gave [b]orrowers adequate and
timely notice of the trustee‟s sale.” (Ibid.)
The facts in Knapp bear little resemblances to the facts in this case. The
defendants‟ failure to comply with section 729.050 was not “a slight deviation from
statutory notice requirements.” (Knapp, supra, 123 Cal.App.4th at p. 93.) Defendants
did not, as in Knapp, send a statutorily-required notice “slightly” prematurely; instead,
the evidence suggests that they completely failed to send the notice required under
section 729.050. Moreover, unlike in Knapp, defendants have provided no evidence that
25
plaintiffs were not harmed by the procedural defect. Nothing in the defendants‟ moving
papers demonstrates that, despite the lack of section 729.050 notice, plaintiffs were
actually aware of the date on which their redemption rights were set to expire but elected
not to redeem. At most, defendants have shown that plaintiffs might have been able to
calculate when their redemption rights expired based on information that was provided in
other statutorily-mandated pre-sale notices.
In sum, the defendants have failed to make a prima facie showing that their failure
to comply with section 729.050 was not “prejudicial to the interests of the . . . claimants.”
(Residential Capital, supra, 108 Cal.App.4th at p. 822.) Because the defendants have
provided no evidence that plaintiffs were notified, or were otherwise aware of the actual
date on which their right to redemption expired, we cannot conclude that plaintiffs
suffered no prejudice.14
iii. Defendants failed to establish that the tender rule precluded
plaintiffs from seeking to set aside the foreclosure sale
The defendants argue that plaintiffs cannot satisfy the third element necessary to
set aside a foreclosure sale, which requires a showing that “the trustor . . . tendered the
amount of the secured indebtedness or was excused from tendering.” (Lona, supra, 202
Cal.App.4th at p. 104.) Defendants assert that plaintiffs have admitted they never offered
14 Defendants also argue that plaintiffs were not harmed by the trustee‟s failure to
comply with section 729.050 because, shortly after the foreclosure sale, the trustee
recorded a certificate of sale referencing the date of the sale and the 90 day redemption
period. According to defendants, the trustee‟s recording of the certificate provided
plaintiffs “constructive notice of the right to redemption.” This argument fails for the
same reasons discussed above. First, the argument presumes that plaintiffs had a duty to
monitor whether a certificate of sale was recorded against their property. The Legislature
relieved CID owners of any such duty by requiring that the trustee provide notice of the
redemption period promptly after the sale pursuant to section 729.050. Second, the
trustee‟s act of recording a certificate of sale that included the sale date and a statement
regarding the right to redemption was statutorily mandated under section 729.040. Thus,
defendants argue that a trustee who complies with section 729.040‟s recording
requirements need not comply with section 729.050‟s post-sale notice requirements.
Such an outcome would be inconsistent with the legislative scheme.
26
to pay the full amount of the debt and are therefore precluded from challenging the
foreclosure sale.
The tender requirement is rooted in the equitable nature of an action to set aside a
nonjudicial foreclosure. “Because the action is in equity, a defaulted borrower who seeks
to set aside a trustee‟s sale is required to do equity before the court will exercise its
equitable powers. [Citation.] Consequently, as a condition precedent to an action by the
borrower to set aside the trustee‟s sale on the ground that the sale is voidable because of
irregularities in the sale notice or procedure, the borrower must offer to pay the full
amount of the debt for which the property was security. [Citation.] „The rationale behind
the rule is that if [the borrower] could not have redeemed the property had the sale
procedures been proper, any irregularities in the sale did not result in damages to the
[borrower].‟ [Citation.]” (Lona, supra, 202 Cal.App.4th at p. 112.)
There are, however, several exceptions to the requirement. “First, if the
borrower‟s action attacks the validity of the underlying debt, a tender is not required
since it would constitute an affirmation of the debt. [Citation.] [¶] Second, a tender will
not be required when the person who seeks to set aside the trustee‟s sale has a counter-
claim or setoff against the beneficiary. In such cases, it is deemed that the tender and the
counter claim offset one another, and if the offset is equal to or greater than the amount
due, a tender is not required. [Citation.] [¶] Third, a tender may not be required where it
would be inequitable to impose such a condition on the party challenging the sale
[Citation.] . . . . [¶] Fourth, no tender will be required when the trustor is not required to
rely on equity to attack the deed because the trustee‟s deed is void on its face.
[Citation.]” (Lona, supra, 202 Cal.App.4th at pp. 112-113.)
As discussed above, a nonjudicial foreclosure by an association predicated on
delinquent assessment fees is unique in that the CID owner is entitled to a post-sale right
of redemption. (See Civ. Code, § 1367.4, subd. (c)(4); § 729.035.) Under these
redemption rights, the property owner is entitled to receive notice of the applicable
redemption period and then pay the redemption price or contest the redemption price
through a judicial proceeding. (See §§ 729.050 -729.080.) Therefore, unlike most forms
27
of nonjudicial foreclosure, CID owners are provided an opportunity to avoid the loss of
their property either by tendering the amount of the debt prior to the sale or paying the
applicable redemption price – which consists of the purchase price and various other
costs – after the sale.
Defendants assume, without discussion, that the tender requirement applies where,
as here, the debtor is seeking to set aside a nonjudicial foreclosure subject to a statutory,
post-sale right of redemption. Although we have found no authority analyzing the issue,
we conclude that a debtor is properly excused from complying with the tender
requirement where the nonjudicial foreclosure is subject to a statutory right of redemption
and the trustee has failed to provide the notice required under section 729.050.
Applying the tender rule under such circumstances would be inconsistent with the
statutory scheme. CID owners who were denied their statutory right to be notified of the
redemption process could only challenge the denial of that right by offering to tender the
amount of the secured debt. In other words, CID owners could only challenge an
association‟s failure to provide notice of the redemption process by offering to forego the
redemption process. Such an outcome would be neither logical nor equitable.
Defendants argue that even if plaintiffs were not required to tender the amount of
the secured debt as a condition of bringing their suit, they were nonetheless required to
tender the redemption price, thereby ensuring that they could have redeemed the property
had section 729.050 been properly followed. Defendants‟ argument overlooks the fact
that, under the statutory framework governing redemption, if the debtor and the purchaser
disagree on the proper redemption price, the debtor may seek a judicial determination of
the appropriate price. (See § 729.070.) Under defendants‟ theory, however, CID owners
would have to affirm the purchaser‟s claimed redemption price through an offer of
tender – thereby effectively waiving their right to seek a judicial determination of the
redemption price – as a condition of challenging an association‟s failure to comply with
section 729.050. Given that the tender rule is inapplicable where the debtor‟s action
attacks the validity of the underlying debt, the rule should not be applied in a manner that
28
would require a CID owner who never received notice of his redemption rights to forego
any challenge to the redemption price.
Because defendants failed to make a prima facie showing that plaintiffs cannot
establish any of the three elements necessary to set aside the foreclosure, it is not entitled
to summary adjudication on plaintiffs second, third, sixth or seventh causes of action.
C. Plaintiffs Have Forfeited Any Claim of Error Regarding Additional Causes
of Action Pleaded in the Second Amended Complaint
In addition to their four claims seeking to set aside the foreclosure, plaintiffs‟
second amended complaint asserts thirteen tort and statutory-based claims arising from
various acts that defendants allegedly committed during the foreclosure process. The
trial court dismissed all thirteen of these additional claims at various points in the
proceedings. The court sustained a demurrer without leave to amend on two of the
claims – violation of the Fair Debt Collection Practices Act and RICO – prior to the
hearing on the motion for summary adjudication. The trial court‟s order granting
defendants‟ motion for summary adjudication dismissed five of the claims – fraud,
breach of fiduciary duty, intentional infliction of emotional distress and unfair business
practices – on the basis that each claim was predicated on “actions . . . subject to
immunities set forth in [Civil Code sections] 47 and 2924(b).” The summary
adjudication order also dismissed plaintiffs‟ four interference claims, concluding that
they were “time barred.” Finally, the court dismissed the remaining three claims for
violation of the Unruh Act, accounting and forcible detainer pursuant to an order granting
defendants‟ motion for judgment on the pleadings.
Although a large majority of plaintiffs‟ 60-page brief argues that we should
reinstate their foreclosure claims because there is evidence defendants committed various
procedural irregularities, the final five pages of the brief asserts that their “claims for
wrongful closure are not based on a communicative act” and are therefore not precluded
under the “litigation privilege.” (See Civ. Code, § 47, subd. (b).) In the course of this
discussion, plaintiffs allude to various other claims in their complaint. Specifically,
29
plaintiffs assert that Civil Code “[s]ection 47(b)(2), does not bar Plaintiffs‟ cause of
action for intentional interference with contractual relations because it is based upon an
alleged tortious course of conduct. While the isolated act of filing a notice of lien was
communicative, it was only one act in the overall course of conduct alleged in
Appellant‟s eight through twentieth causes of action.” This five-page section of the brief
does not include a single citation to the record.
For the purposes of this appeal, we need not assess whether the litigation privilege
applies to plaintiffs‟ claims seeking to set aside the foreclosure sale. The trial court‟s
order granting the motion for summary adjudication demonstrates that it dismissed those
particular claims based on its finding that that plaintiffs had not complied with the tender
rule and had not been prejudiced by any “procedural irregularity,” not because the claims
were precluded under the litigation privilege. For the reasons discussed above, we have
reversed the trial court‟s dismissal of those claims.
As to the remaining causes of action set forth in the second amended complaint,
plaintiffs have forfeited any claim of error. “[I]t is appellant‟s burden to affirmatively
show error. [Citation.] 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.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408 (S.C.).)
“Mere suggestions of error without supporting argument or authority other than general
abstract principles do not properly present grounds for appellate review.” (Department of
Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100
Cal.App.4th 1066, 1078.) “Hence, conclusory claims of error will fail.” (S.C., supra,
138 Cal.App.4th at p. 408.)
Plaintiffs‟ conclusory assertions that the litigation privilege does not apply to their
“cause of action for intentional interference with contractual relations” or their “eight
through twentieth causes of action”15 does not constitute “adequate factual or legal
analysis.” (Placer County Local Agency Formation Com. v. Nevada County Local
15 Although plaintiffs‟ brief reference their “eight through twentieth causes of
action,” the second amended complaint only contains eighteen claims.
30
Agency Formation Com. (2006) 135 Cal.App.4th 793, 814.) The record demonstrates
that most of these claims were not dismissed pursuant to the litigation privilege. The trial
court dismissed the plaintiffs‟ thirteenth through sixteenth claims, which allege
interference with contract relations and prospective economic advantage, based on the
statute of limitations. The tenth and eleventh claims for violation of the Fair Debt
Practices Act and RICO were dismissed pursuant to an order sustaining a demurrer that is
not in the record and was not appealed by plaintiffs. The plaintiffs‟ twelfth and
seventeenth claims for forcible detainer and an accounting were dismissed pursuant to an
order granting defendants‟ motion for judgment on the pleadings. Plaintiffs, however,
provide no independent legal analysis of that motion or the resulting order.
Plaintiffs‟ discussion of the litigation privilege consists of little more than a
summary of general abstract principles that is devoid of a single citation to the record.
(See generally Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199 [“An
appellate court cannot be expected to search through a voluminous record to discover
evidence on a point raised by appellant when his brief makes no reference to the pages
where the evidence on the point can be found in the record”].) Although plaintiffs‟ brief
summarizes various holdings pertaining to different aspects of the litigation privilege, it
fails to adequately explain how those holdings relate to the non-foreclosure claims
asserted in the complaint.
In sum, to the extent plaintiffs were requesting that we reverse the trial court‟s
dismissal of any claims beyond those seeking to set aside the foreclosure sale, they failed
“to provide meaningful legal analysis and record citations for [their] complaints.” (S.C.,
supra, 138 Cal.App.4th at p. 408.)16 These claims have therefore been abandoned.
(Reyes, supra, 65 Cal.App.4th at p. 466, fn. 6)
16 The final paragraph of plaintiffs‟ brief asserts that “Respondents were awarded
attorneys‟ fees as prevailing parties” and requests that the “award of costs and attorney‟s
fees . . . be vacated.” This portion of the brief does not contain any citation to legal
authority or the record. Moreover, the plaintiffs failed to include a copy of the order
awarding fees and costs in the appellate record. Without such materials, we have no basis
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DISPOSITION
The trial court‟s judgment is reversed and the case is remanded for further
proceedings. The trial court‟s order granting defendants‟ motion for summary judgment,
or, in the alternative, summary adjudication is reversed to the extent it dismisses
plaintiffs‟ second, third, sixth and seventh claims. The trial court‟s order granting
defendants‟ motion for judgment on the pleadings is affirmed. Each party shall its own
costs.
ZELON, J.
We concur:
PERLUSS, P. J.
JACKSON, J.
to review the order. (Buckhart v. San Francisco Residential Rent Etc., Bd. (1988) 197
Cal.App.3d 1032, 1036 [“The appellant must affirmatively demonstrate error by an
adequate record”].)
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