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Case No. A139655
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT DIVISION THREE
LEIGHTON LEE PERRY,
Plaintiffs-Appellants,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al.,
Defendants-Respondents.
Appeal from Judgment of the California Superior Court County of
Contra Costa
Honorable Laurel S. Brady, Case No. SCV0030248
BRIEF OF RESPONDENT
McCARTHY & HOLTHUS, LLP Melissa Robbins Coutts, Esq. (SBN:
246723) Charles E. Bell, Esq. (SBN: 256848) 1770 Fourth Avenue San
Diego, CA 92101 Telephone: (619) 685-4800 Facsimile: (619) 685-4811
Email: [email protected] Attorneys for Defendant and
Respondent, Quality Loan Service Corporation.
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CERTIFICATE OF INTERESTED PARTIES
There are no interested entities or parties to list in this
certificate per
California Rules of Court, Rule 8.208(e). No entity has an
ownership interest of 10% or more of Respondent.
Dated: February 6,2014 Respectfully Submitted, McCarthy &
Holthus, LLP
Charles E. Bell, Esq. Attorneys for Respo (lent, Quality Loan
Service Corporation
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TABLE OF CONTENTS
TABLE OF CONTENTS
.............................................................................
ii
INTRODUCTION
.........................................................................................
1
STATEMENT OF THE CASE
.....................................................................
2
STATEMENT OF ISSUES PRESENTED
................................................... 2
STATEMENT OF FACTS
............................................................................
2
ARGUMENT
.................................................................................................
4
I. Standard of Review
....................................................................
4
II. Perrys Opening Brief is based Upon Numerous Factual
Assertions without Citation to the Record.
................................................. 5
III. The Trial Court Properly Granted Qualitys Motion for
Summary Judgment Because the First Amended Complaint Did Not
State
Any Cause of Action Against Quality.
....................................................... 6
A. The Trial Court Properly Granted Qualitys Request for
Judicial Notice in Support of its Motion for Summary Judgment
............... 6
B. The Trial Court Properly Ruled that the Notice of Default
is
in Compliance with California Statute
....................................................... 8
C. The Trial Court Properly Granted Qualitys Motion for
Summary Judgment to Perrys First Cause of Action for
Declaratory
Relief. 9
1. Perry Has Failed To Identify Any Actions Taken By Quality
That Are Outside The Scope Of Its Statutorily Protected Duties.
............ 10
2. The Tender Rule Bars Perrys arguments as to Wrongful
Foreclosure within the Declaratory Relief cause of action.
..................... 11
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iii
IV. The Trial Courts Decision Not to Provide A Statement of
Decision is Not Reversible Error After Ruling on Defendants
Summary
Judgment Motions.
....................................................................................
15
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iv
TABLE OF AUTHORITIES
Cases
American Drug Stores, Inc. v. Stroh, (1992) 10 Cal.App.4th 1446,
1453 ..... 6
Baucum v. Le Baron (1955) 136 Cal.App.2d 593, 595
................................ 17
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
264 ......... 8
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
264-267 . 8,
9
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
271 ....... 10
FPCI Re-Hab 01 v. E&G Invs. (1989) 207 Cal.App.3d 1018,
1021-1022 .. 12
Gafcon, Inc. v. Ponsor & Associates, (2002) 98 Cal.App.4th
1388, 1402 ..... 5
Homestead Sav. v. Darmiento, (1991) 230 Cal. App. 3d 424,
432-33......... 15
Kachlon v. Markowitz, (2008) 168 Cal. App. 4th 316, 336
................... 14, 16
Karlsen v. Am. Sav. & Loan Assn. (1971) 15 Cal.App.3d 112
................... 13
Kelly v. Methodist Hosp. of So. Cal., (1996) 48 Cal.App.4th
1431, 1442 ..... 7
Lenane v. Continental Maritime of San Diego, Inc., (1998) 61
Cal.App.4th
1073, 1079
...................................................................................................
5
Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112
.............................. 12
Mills v. U.S. Bank, (2008) 166 Cal.app.4th 871, 895
...................................... 5
Mix v. Sodd (1981) 126 Cal.App.3d 386, 390
.............................................. 17
Moeller v. Lien, 25 (1994) Cal. App. 4th 822, 834
...................................... 15
Neighbors v. Buzz Oates Enters., (1990) 217 Cal.App.3d 325, 335
fn. 8 ...... 6
Nguyen v. Calhoun, (2003) 105 Cal.App.4th 428, 439
................................ 13
Rubin v. Green, (1993) 4 Cal. 4th 1187, 1193-94
.................................. 14, 16
Shimpones v. Stickney (1934) 219 Cal. 637, 649
......................................... 16
Southcott v. Pioneer Title Co. (1962) 203 Cal. App. 2d 673, 676
............... 14
Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th
522, 526 ... 13
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v
Tisher v. Cal. Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361
............... 6
Whittingon v. McKinney (1991) 234 Cal.App.3d 123
.................................. 15
Statutes
California Civil Code 2924(b)
...................................................................
10
California Civil Code 2924(d)
...................................................................
13
California Civil Code 2924
.......................................................................
13
California Civil Code 2924(c)
...................................................................
13
California Civil Code 2920 through 2944.5
............................................ 13
California Civil Code 2305
..........................................................................
9
California Civil Code 2315
..........................................................................
9
California Civil Code 2305
.........................................................................
9
California Civil Code of Procedure 632
..................................................... 16
California Civil Code of Procedure 634
..................................................... 16
California Civil Code 1493
.......................................................................
12
California Civil Code 1494
.......................................................................
12
California Civil Code 1495
.......................................................................
12
California Civil Code 2924(a)(1)
.......................................................... 9,
14
California Civil Code 2932.5
......................................................................
3
California Civil Code 2924(l)
......................................................................
4
California Civil Code 2934a
........................................................................
3
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1
INTRODUCTION
Appellant, Leighton Lee Perry (Perry), has appealed the
trial
courts ruling granting the Motions for Summary Judgment filed
by
Defendants Quality Loan Service Corporation (Quality) and
JPMorgan
Chase Bank, N.A. (JPMorgan) and Federal National Mortgage
Association (FNMA). Perrys First Amended Complaint alleged
three
causes of action against Quality -- the trustee of a pending
nonjudicial
foreclosure of the subject property for declaratory relief,
slander of title,
and quiet title. But Appellants Opening Brief does not address
any of these
claims or the factual allegations in his complaint, instead
arguing only that
the trial court erred in failing to provide a statement of
decision and the trial
court did not have jurisdiction to rule in defendants favor.
Besides his
conclusory and unsupported statements, he does not identify any
facts that
would have changed the outcome of the Motions for Summary
Judgment.
Moreover, he does not point to any facts in the First Amended
Complaint or
his Oppositions to the Motion to Summary Judgments that would
state a
cause of action against the Defendants.
As to Quality specifically, the First Amended Complaint failed
to
state any cause of action. Quality, as trustee, is inured with
specific
statutory protections that prohibit the imposition of liability
for actions it
took as trustee. Notably, nowhere in the factual allegations of
Perrys First
Amended Complaint, or in the record on appeal, or in Perrys
Opening
Brief, does he identify any actions taken by Quality that are
outside of
Qualitys statutorily-protected duties as trustee. Moreover, each
of the three
claims against Quality has independent deficiencies that
necessitated the
trial court granting Qualitys Motion for Summary Judgment. Thus,
the trial
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court properly granted Qualitys Motion for Summary Judgment and
this
Court should affirm.
STATEMENT OF THE CASE
This appeal stems from the trial courts ruling granting the
Motion
for Summary Judgments filed by Defendants Quality and JPMorgan
and
FNMA to Appellants First Amended Complaint.
STATEMENT OF ISSUES PRESENTED
1. Whether Perrys First Amended Complaint failed to state a
claim upon which relief could be granted against Quality.
2. Whether the trial court properly exercised its discretion
in
granting the Motion for Summary Judgment filed by Defendants
Quality to
the First Amended Complaint.
STATEMENT OF FACTS
Perry filed his initial complaint in Contra Costa Superior Court
on
October 14, 2010, asserting various claims related to the
pending
nonjudicial foreclosure of the property located at 6724 Waverly
Road,
Martinez, CA 94553 (Subject Property). (1 AA 48; 53:7.) In 1988,
the
Subject Property was encumbered by a Deed of Trust securing
a
$130,000.00 loan that Perry borrowed from All Valley
Financial
Corporation, a California Corporation. (1 AA 54:15-20; 209-214.)
An
Assignment of Deed of Trust was recorded on July 29, 1991, under
which
All Valley Financial Corporation, a California Corporation,
assigned all
beneficial interest under the Deed of Trust to FNMA. (1 AA 122;
217.)
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On October 23, 2008, FNMA executed a Limited Power of
Attorney,
making McCarthy & Holthus, LLP its true and lawful
Attorney-in-Fact,
and in its name, place and stead and for its use and benefit, to
do all things,
and execute all documents, necessary and appropriate to conduct,
or vacate,
foreclosure proceedings in the State of California. (1 AA
295.)
An Assignment of Deed of Trust was executed by FNMA, through
its Attorney-in-Fact McCarthy & Holthus, LLP, on August 25,
2010 and
recorded on August 30, 2010, under which all beneficial interest
under the
Deed of Trust was assigned to JPMorgan. (1 AA 89; 263.)
On September 16, 2010, JPMorgan executed a Substitution of
Trustee, whereby Quality was substituted as trustee under the
Deed of Trust
in place of the original trustee. (1 AA 90-91; 267-268.)
Perry defaulted on his loan and a nonjudicial foreclosure
was
initiated by the recording of a Notice of Default in the Contra
Costa County
Recorders Office. (1 AA 259-260.)
Due to Perrys continued default, Quality recorded a Notice
of
Trustees Sale on September 28, 2010. (1 AA 271-272.)
On July 29, 2011, Perry filed a First Amended Complaint
asserting
six causes of action for: (1) Declaratory Relief; (2) Slander of
Title; (3)
Quiet Title; and (4) Violation of California Civil Code 2943. (1
AA 49-
80.) Perry alleged only three causes of action against Quality:
the first
cause of action for Declaratory Relief; the second cause of
action for
Slander of Title; and third cause of action for Quiet Title.
(Id.) Initially,
Quality filed a Declaration of Non-Monetary Status pursuant to
California
Civil Code 2924l, stating that it agreed to be bound to any
non-monetary
judgment of the court. (1 AA 46.) When Perry objected to the
Declaration
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of Non-Monetary status, Quality filed a demurrer to the First
Amended
Complaint. (1 AA 45.) On March 1, 2012, Qualitys demurrer the
First
Amended Complaint was overruled and Quality was directed to file
an
Answer. (1 AA 43.) Perry demurred to Qualitys Answer, but the
demurrer
was overruled. (1 AA 40.)
On January 29, 2013, Quality filed its Motion for Summary
Judgment and the motion was set to be heard on May 2, 2013. (1
AA 39.)
On February 6, 2013, Perry filed a Motion to Compel Production
of
Documents and Further Responses to Admissions and
Interrogatories
against Quality. (1 AA 38.) On April 26, 2013, the trial court
ruled on the
Perrys Motion to Compel, finding Qualitys favor. (1 AA 36.)
On May 23, 2013, Qualitys Motion for Summary Judgment came
before the trial court. (1 AA 24-32.) After review of the
pleadings and oral
argument the trial court sustained its tentative ruling and
granted Qualitys
Motion for Summary Judgment. (1 AA 24-32.) On July 9, 2013, the
trial
court executed Qualitys proposed order granting judgment in
Qualitys
favor. (1 AA 24-32.)
Perry has appealed the trial courts order. (1 AA 1-6.)
ARGUMENT
I. Standard of Review
The standard of review of a decision to grant or deny a motion
for
summary judgment or summary adjudication is de novo. Mills v.
U.S. Bank,
(2008) 166 Cal.App.4th 871, 895. The Court will apply the same
rules and
standards which govern a trial courts determination of a motion
for
summary judgment to determine whether there is a triable issue
as to any
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5
material fact and whether the moving party is entitled to
judgment as a
matter of law. Id.; Lenane v. Continental Maritime of San Diego,
Inc.,
(1998) 61 Cal.App.4th 1073, 1079. And the Court is not bound by
the trial
courts reasoning for the ruling on the motion, rather the court
only reviews
the trial courts ruling and not its rationale. Id.; Gafcon, Inc.
v. Ponsor &
Associates, (2002) 98 Cal.App.4th 1388, 1402.
II. Perrys Opening Brief is based Upon Numerous Factual
Assertions without Citation to the Record.
Perrys Opening Brief makes factual assertions without citation
to
the record. (See generally Opening Brief.) [S]tatements of fact
contained
in the briefs which are not supported by the evidence in the
record must be
disregarded. Tisher v. Cal. Horse Racing Bd. (1991) 231
Cal.App.3d 349,
361. Therefore, all factual assertions in Perrys Opening Brief
which are
not supported by the evidence in the record must be
disregarded.
It would be improper for Perry to attempt to address the
deficiencies
identified above in his reply brief. It is a universal rule of
appellate
procedure that, without good cause shown, the appellate court
will not
consider any new issues in the reply brief which were not
discussed in the
appellants opening brief. See, e.g., Neighbors v. Buzz Oates
Enters., (1990)
217 Cal.App.3d 325, 335 fn. 8; American Drug Stores, Inc. v.
Stroh, (1992)
10 Cal.App.4th 1446, 1453; Kelly v. Methodist Hosp. of So. Cal.,
(1996) 48
Cal.App.4th 1431, 1442. This Court should not consider any
attempt by
Perry to address the above deficiencies in his reply brief.
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III. The Trial Court Properly Granted Qualitys Motion for
Summary Judgment Because the First Amended Complaint Did Not State
Any Cause of Action Against Quality.
Perrys Opening Brief presents a number of arguments that have no
bearing
to the fundamental issue in this appeal: whether there was any
genuine
dispute as to the material facts that would prevent Defendants
from
obtaining summary judgment. For instance, he contends the trial
court
lacked jurisdiction to grant summary judgment because Defendants
raised
new arguments concerning federal law preemption in their reply
brief.
(Opening Br. pg. 13-14, 39, 44.) Notably, this contention does
not relate to
Quality Loan Service, as Quality did not rely on federal
preemption to
support its motion. Additionally, Perry disputes the trial
courts rulings on
earlier discovery motions and the reference to a discovery
facilitator.
(Opening Br. pg. 6, 33, 40, 44.) None of these contentions
demonstrate the
existence of a genuine dispute as to the material facts as to
Quality Loan
Service that would undermine the summary judgment ruling. As
discussed
below, Perry failed to plead facts or present evidence that
would support
any cause of action against Quality. Accordingly, this Court
should affirm.
A. The Trial Court Properly Granted Qualitys Request for
Judicial Notice in Support of its Motion for Summary Judgment
Judicial notice is the recognition and acceptance by the court,
for
use by the trier of fact or by the court, of the existence of a
matter of law or
fact that is relevant to an issue in the action without
requiring formal proof
of the matter. Fontenot v. Wells Fargo Bank, N.A. (2011) 198
Cal.App.4th
256, 264. It is established that a court may take judicial
notice of the fact of
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a documents recordation, the date the document was recorded
and
executed, the parties to the transaction reflected in a recorded
document,
and the documents legally operative language, assuming there is
no
genuine dispute regarding the documents authenticity. Id. at
266. From
this, the court may deduce and rely upon the legal effect of the
recorded
document, when that effect is clear from its face. Id.
Here the Court granted Qualitys Request for Judicial Notice
citing
to Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th
256, 264-
267. (1 AA 27:11-13.) The Court went further and also provided
parties
with an explanation as to its basis for granting the Request for
Judicial
notice and overruling Perrys numerous evidentiary objections. (1
AA
27:27-28; 28:1-28; 29:1-2.) In response to Perrys Evidentiary
Objection
numbers 3-6 (1 AA 373:2-24) to Qualitys Request for Judicial
Notice, the
Court stated the following: Plaintiffs arguments go to the
weight or legal
significance of the evidence, and not to its admissibility. (1
AA 28:22-24.)
The Court made clear that it was not judicially noticing the
truth of the
contents within the recorded documents as Perry argues, but
rather that it
was properly limiting its ruling as to the admissibility of the
recorded
documents, which is well within the Courts powers. Fontenot v.
Wells
Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-267. Therefore,
Perrys
assertion that the Court decision in granting Qualitys Request
for Judicial
Notice fails in its entirety and should be disregarded.
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B. The Trial Court Properly Ruled that the Notice of Default is
in Compliance with California Statute
Perry argues that the Court erred in its determination that
there is no
genuine dispute as to whether the Notice of Default is void.
(Opening
Brief, pg. 21.) Perry does not to cite to or make one reference
to the
Courts order. (Id. at 21-28.) Instead Perry references the
Courts prior
ruling on Qualitys Demurrer to the First Amended Complaint, as
his basis
that the court had already made a decision as to the Notice of
Defaults
validity. (Id. at 23.) However, simple review of the order
explains that
while the court had overruled Qualitys Demurrer to the First
Amended
Complaint, it had not made a binding determination that the
notice of
default was void, as repeatedly argued by Perry. (1 AA
31:3-4.)
In light of this fact, Perry proceeds to argue[] that with
respect to
the deed of trust loans under Stockwell, on which Calvo relied,
only the
trustee holds the power to foreclose. (Opening Brief, pg. 24) As
with
many of his arguments, Perry fails to realize that California
law does not
require the Notice of Default to be executed or recorded only by
the trustee
under the Deed of Trust. As discussed in the courts order,
Qualitys
recording of the Notice of Default prior to it being formally
substituted in
as Trustee under the Deed of Trust is not a procedural
irregularity under
California law. (1 AA 31:6-13.) California Civil Code
2924(a)(1)
specifically lists the individuals who are authorized to record
the notice of
default, which includes the trustee or an agent of the
beneficiary. Here, the
Notice of Default was executed by Quality as agent for the
beneficiary. (1
AA 259-260.)
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Perry also argues that the trial court failed to address the
alleged
issues surrounding the agency relationship between Quality and
other
parties in the action. (See Opening Brief, pg. 25.)
Specifically, that Quality
is not named on any document establishing an agency
relationship. (Id.)
But, Perry disregards California Civil Code 2315 which provides
that an
agent has such authority as a principal confers on the agent.
Fontenot v.
Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271. And an
agent
can be authorized to do any act the principal may do. Id.;
California Civil
Code 2305, California Civil Code 2305. JPMorgan had the
authority to
execute the Notice of Default as beneficiary under the Deed of
Trust,
Quality as its agent was also authorized to do so. Further,
JPMorgan has
never alleged that Qualitys actions were not carried out as its
agent and it
is the only one with standing to assert that Qualitys actions
were not
authorized. Therefore, Perrys claims regarding the Courts ruling
on the
Notice of Default fail and the Courts ruling should be
affirmed.
C. The Trial Court Properly Granted Qualitys Motion for
Summary
Judgment to Perrys First Cause of Action for Declaratory
Relief.
Perrys first cause of action for Declaratory Relief is based
upon his
allegation that the defendants did not have authority to
foreclose on the
Subject Property. (1 AA 61:7-28; 62:1-28; 63:1-28; 64:1-13.)
However,
Perrys allegations even if true would not impose liability upon
Quality,
the foreclosure trustee.
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1. Perry Has Failed To Identify Any Actions Taken By Quality
That Are Outside The Scope Of Its Statutorily Protected Duties.
It has long been established that a trustee under a Deed of
Trust,
such as Quality, has no personal interest in the properties upon
which it
forecloses, and instead its limited role is to conduct a
nonjudicial sale in the
event of the borrowers default, or to reconvey title to the
property once the
debt is satisfied. Ainsa v. Mercantile Trust Co. (1917) 174 Cal.
504, 510.
As a result of its limited role the trustee shall incur no
liability for any
good faith error resulting from reliance on information received
in good
faith from the beneficiary regarding the nature and the amount
of the
default under the secured obligation, deed of trust, or
mortgage. California
Civil Code 2924(b). Therefore, regardless of Perrys standing
allegations,
Quality will incur no liability for its reliance upon the
information it
received from the beneficiary regarding the secured
obligation.
Further, both the First Amended Complaint and Perrys Opening
Brief fail to allege any actions taken by Quality which were
outside its
statutory protected trustee duties. Indeed the First Amended
Complaint
alleges only that Qualitys was not the trustee at the time the
foreclosure
was initiated. (See 1 AA 61:7-28; 62:1-28; 63:1-28; 64:1-13.)
However,
Perry identified no wrongful actions taken by this Defendant.
Therefore,
Perry has failed to identify how the trial court erred in
granting Qualitys
Motion for Summary Judgment as to Perrys first cause of action
for
Declaratory Relief.
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2. The Tender Rule Bars Perrys arguments as to Wrongful
Foreclosure within the Declaratory Relief cause of action.
There is a maxim in the context of foreclosures known as the
tender
rule. An action to set aside a foreclosure rests in equity.
Consequently, a
defaulted borrower seeking to set aside a foreclosure sale
cannot state a
claim without alleging tender of the outstanding debt that is
owed, or at
least tender of the full amount required to cure her default.
Lona v.
Citibank, N.A. (2011) 202 Cal.App.4th 89, 112. Without alleging
facts
showing a complete and valid tender, the plaintiff cannot
demonstrate any
prejudice suffered by any irregularities in the foreclosure
sale. FPCI Re-
Hab 01 v. E&G Invs. (1989) 207 Cal.App.3d 1018, 1021-1022.
The
rationale behind the rule is that if plaintiffs could not have
redeemed the
property had the sale procedures been proper, any irregularities
in the sale
did not result in damages to the plaintiffs. Id at 1022.
Likewise,
[a]llowing plaintiffs to recoup the property without full tender
would give
them an inequitable windfall, allowing them to evade their
lawful debt.
Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th
522, 526.
A valid tender must be an unconditional offer of performance
(California Civil Code 1494), made in good faith and in such a
manner as
is most likely to benefit the creditor (California Civil Code
1493), by a
person able and willing to perform (California Civil Code 1495).
The
tender rule is strictly applied, Nguyen v. Calhoun, (2003) 105
Cal.App.4th
428, 439, and absent an alleged and actual tender, the First
Amended
Complaint in its entirety fails to state a cause of action.
Karlsen v. Am. Sav.
& Loan Assn. (1971) 15 Cal.App.3d 112. Perry has not
tendered, nor has
he made an unconditional offer to tender, the full amount owing
on the
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12
loan. Without such a payment, he has no standing to challenge
the
foreclosure sale or to bring any of his other implicitly
integrated claims.
There are exceptions to the tender rule; however, Perry did not
plead
any facts in his First Amended Complaint that would render any
of the
exceptions applicable in the present case. Also, Perrys Opening
Brief
failed to identify a single fact alleged in the First Amended
Complaint or
that he could allege to support an exception to the tender rule.
Therefore,
the tender rule bars Perrys wrongful foreclosure claims within
his
declaratory relief cause of action.
D. The Trial Court Properly Granted Qualitys Motion for
Summary
Judgment to Perrys Second Cause Of Action For Slander of
Title.
Slander of Title is an unprivileged or malicious publication of
a false
statement that disparages plaintiffs title to real property and
causes
pecuniary loss. . Kachlon v. Markowitz, (2008) 168 Cal. App. 4th
316, 336;
Rubin v. Green, (1993) 4 Cal. 4th 1187, 1193-94; Southcott v.
Pioneer Title
Co. (1962) 203 Cal. App. 2d 673, 676.
Perry asserts that Quality is liable for Slander of Title based
on the
recording of non-judicial foreclosure documents against the
subject
property. (See 1 AA 64:14-28; 65:1-23.) But executing and
recording a
Notice of Default and Notice of Sale in accordance with
California Civil
Code 2924(c) are privileged actions, and accordingly, cannot
subject
Quality to liability.
The California Legislature has codified the manner and
procedure
for conducting non-judicial foreclosures in the California Civil
Code
2920 through 2944.5. These sections comprise a comprehensive
regulation
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13
of the non-judicial foreclosure process by the legislature.
Moeller v. Lien,
25 (1994) Cal. App. 4th 822, 834; see also Homestead Sav. v.
Darmiento,
(1991) 230 Cal. App. 3d 424, 432-33. In recognizing the
importance of
non-judicial foreclosure procedures, the legislature has
extended the
litigation privilege to encompass performance of any of the
procedures
involved in a non-judicial foreclosure.
California Civil Code 2924 states: The mailing, publication,
and
delivery of notices as required herein, and the performance of
the
procedures set forth in this article, shall constitute
privileged
communications within 47. California Civil Code 2924(d).
This
includes the recording of a notice of default under 2924(a)(1 by
a trustee,
mortgagee, beneficiary, or any of their authorized agents. The
California
Civil Code 2924(a)(1) specifically lists the individuals who are
authorized
to record the notice of default, which includes the trustee or
an agent of the
beneficiary. Here, the Notice of Default was executed by Quality
as agent
for the beneficiary. (1 AA 259-260.) The effect of the
litigation privilege
is to bar any tort action based on a protected communication.
The only
exception is for suit based on malicious prosecution. Kachlon v.
Markowitz,
(2008) 168 Cal. App. 4th 316, 336; Rubin v. Green, (1993) 4 Cal.
4th 1187,
1193-94 Thus, Perrys action for slander of title based on the
recordation
of the Notice of Default and Notice of Sale is barred by the
litigation
privilege. Kachlon v. Markowitz, (2008) 168 Cal. App. 4th 316,
336; Rubin
v. Green, (1993) 4 Cal. 4th 1187, 1193-94.340-41. Accordingly,
Perry has
failed to identify how the trial court erred in granting
Qualitys Motion for
Summary Judgment as to Perrys Second Cause of Action.
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E. The Trial Court Properly Granted Qualitys Motion for Summary
Judgment to Perrys Third Cause of Action for Quiet Title.
Perrys third cause of action for Quiet Title also fails as a
matter of
law. (1 AA 65:24-28; 66:1-28; 67:1-28; 68:1-28; 69:1-3.)
Foremost, Perry
does not have standing to assert a cause of action for Quiet
Title. A
mortgagor cannot maintain a Quiet Title cause of action against
the
mortgagee without paying the debt secured. Shimpones v. Stickney
(1934)
219 Cal. 637, 649; see also Mix v. Sodd (1981) 126 Cal.App.3d
386, 390
(no quite title action may lie without paying the debt, even if
the debt is
otherwise unenforceable, because a court of equity will not a
aid a person in
avoiding the payment of his or her debts). It is undisputed that
Perry has
not tendered the principal balance on the loan. Accordingly,
Perry is
unable to state a claim for Quiet Title.
The purpose of pursuing a Quiet Title action is to have
conflicting
claims against an interest in property settled. Baucum v. Le
Baron (1955)
136 Cal.App.2d 593, 595. However, as discussed above, a Trustee
has no
claim to ownership of the property and is simply a common agent
for
purposes of either foreclosing or reconveying title upon payment
of the
debt. Ainsa v. Mercantile Trust Co. (1917) 174 Cal. 504, 510.
Perrys third
cause of action for Quiet Title must fail as to Quality because
Quality has
no claim to the Subject Property.
Perry has failed to allege in his First Amended Complaint or
discuss
in his Opening Brief how he can maintain a cause of action for
Quiet Title
against Quality. Therefore, Perry has failed to identify how the
trial court
erred in granting Qualitys motion for summary judgment to the
third cause
of action for Quiet Title.
-
15
IV. The Trial Courts Decision Not to Provide A Statement of
Decision is Not Reversible Error After Ruling on Defendants Summary
Judgment Motions.
On a hearing on a motion for summary judgment, the court is
without power to make findings of fact. Perry v. Farley Bros.
Moving &
Storage, Inc. (1970) 6 Cal.App.3d 884, 889. Under such
circumstances, it
is the duty of the trial court to determine whether plaintiff or
defendant has
presented any facts which give rise to a triable issue or
defense, not to pass
upon or determine the issue itself. Id.
Perry contends that the trial court committed reversible error
bynot
providing a statement of decision based on an inaccurate
interpretation of
California Code of Civil Procedure. Specifically, Perry cites to
California
Code of Civil Procedure 632, California Code of Civil Procedure
634
and to Whittingon v. McKinney (1991) 234 Cal.App.3d 123, in
support of
his claim. (See Opening Brief pgs. 42-43). However, Perry
ignores the
simple fact that these authorities apply to bench trials and do
not apply to
motion for summary judgment hearings. As discussed above, courts
have
found that a trial court has no power to issue findings of fact
when ruling
on a motion for summary judgment. Perry v. Farley Bros. Moving
&
Storage, Inc. (1970) 6 Cal.App.3d 884, 889. Unlike in Whittingon
v.
McKinney, the trial court provided parties with a detailed
tentative ruling
explaining the basis for its findings and further instructed the
prevailing
party to draft a proposed order identical to the courts
tentative ruling. (1
AA 26-32.) Most importantly, the court did not execute the final
order on
the motions for summary judgment until after the proposed order
was
approved as to form by Perry. (1 AA 32) Therefore, Perry cannot
argue
that the trial court failed to provide him with the basis for
its decision or
-
that Perry was not aware of the court's reasoning as provided in
the
proposed order, which he himself approved. Thus, Perry has
failed to
provide any basis to support a claim for reversible error
concerning the trial
court's decision not to provide a statement of decision.
CONCLUSION
For the foregoing reasons, the Court should affirm the judgment
of the trial, court granting Defendant Quality Loan Service
Corporation's motion for summary judgment.
Dated: February 6,2014
16
Respectfully Submitted, McCarthy & Holthus, LLP
Charles E. Bell, Esq. Attorney for Respon nt, Quality Loan
Service Corporation
-
CERTIFICATE OF WORD COUN'f
(California Rules of Court, Rule 8.204)
The undersigned certifies that this Brief was prepared in Times
New
Roman size 13 font. The text of this Brief contains 4,186 words
(exclusive of the tables and other items exempted from the word
count by Rule
8.204(c)(3)), as counted by the Microsoft Word 2007
word-processing program used to generate the document.
Dated: February 6,2014
17
-
PROOF OF SERVICE
I, Karen Ann Rincon, declare as follows:
I am employed in the County of San Diego, State of California. I
am over the age of eighteen (18) years and not a party to this
action. My business address is 1770 Fourth Avenue, San Diego,
California 92101.
On February 6, 2014, I served a true and correct copy of the
foregoing document, titled: BRIEF OF RESPONDENT, by U.S. First
Class Mail to the following persons:
Leighton Lee Perry 6724 Waverly Road Martinez, CA 94553
John D. Ives, Esq. SEVERSON & WERSON One Embarcadero Center,
Suite 2600 San Francisco, CA 94111
Contra Costa County Superior Court Attn: Hon. Laurel S. Brady
725 Court Street Department 5 Martinez, CA 94553
Supreme Court of California 350 McAllister Street San Francisco,
CA 94102
I placed a true copy in a sealed envelope addressed as indicated
above. I am readily familiar with the firm's practice of collection
and
processing correspondence for mailing. It is deposited with the
U.S. Postal Service on that same day in the ordinary course
of-business. I am aware
that on a motion of party served, service is presumed invalid if
postal
cancellation date or postage meter date is more than one date
after date of ---------------------t
I declare under penalty of perjury under the laws of the State
of California that the foregoing is true and correct. Executed on
February 6,
2014, at San Diego, California.
18