Aurelio v. Sand Canyon CA2/3 ( 2013 )

Filed 8/29/13 Aurelio v. Sand Canyon CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
NORMA SALVATERA AURELIO, B237279
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC445881)
v.
SAND CANYON CORPORATION et al.,
Defendants and Respondents.
APPEAL from judgments of the Superior Court of Los Angeles County, Terry A.
Green, Judge. Affirmed.
Equity Law Group and Lotfy Mrich for Plaintiff and Appellant.
Brooks Bauer and Bruce T. Bauer for Defendant and Respondent Sand Canyon
Corporation formerly known as Option One Mortgage Corporation formerly known as
Premier Trust Deed Services, Inc.
Akerman Senterfitt, Justin D. Balser and Preston K. Ascherin for Defendants and
Respondents Wells Fargo Bank, N.A. as trustee for Option One Mortgage Loan Trust
2006-2, Asset-Backed Certificates, Series 2006-2, and Power Default Services, Inc.
erroneously sued as AHMSI Default Services, Inc.
_________________________
Norma Salvatera Aurelio filed this action against Wells Fargo Bank, N.A., as
trustee for the Option One Mortgage Loan Trust 2006-2, Asset-Backed Certificates,
Series 2006-2 (Wells Fargo), AHMSI Default Services, Inc. (AHMSI Default), now
known as Power Default Services, Inc. (Power), and Sand Canyon Corporation (Sand
Canyon), formerly known as Option One Mortgage Corporation (Option One), and as
Premier Trust Deed Services, Inc. (Premier Trust), to set aside a nonjudicial foreclosure
sale. The original lender that funded the purchase of Aurelio’s property in April 2006
assigned its beneficial interest to Option One, and Option One (through its successor)
assigned its beneficial interest to Wells Fargo.1 AHMSI Default, now known as Power,
recorded the notice of trustee’s sale and conducted the nonjudicial foreclosure sale.
Aurelio alleges fraud in connection with the loan origination and irregularities in the
nonjudicial foreclosure sale.
Aurelio seeks reversal of the trial court’s dismissal of her lawsuit after it sustained
the separate demurrers to the verified second amended complaint (complaint) of
(1) Wells Fargo and Power, and (2) Sand Canyon.2 Aurelio claims the trial court erred in
granting the parties’ requests for judicial notice, and in concluding that she has no viable
cause of action. Because Aurelio has not demonstrated that her pleading was sufficient to
state any cause of action or that it could be amended, we affirm.
1
The other original defendant, Fidelity National Title Co., is not a party to this
appeal.
2
Although not contained in the clerk’s transcript, Aurelio’s counsel submitted an
order signed by the court on May 31, 2012, sustaining the demurrer filed by Wells Fargo
and Power without leave to amend. The record, however, contains no judgment. The
signed order is nonappealable. (Code Civ. Proc., § 904.1; Coe v. City of Los Angeles
(1994) 24 Cal.App.4th 88, 91, fn. 3.) We order the trial court to make nunc pro tunc
entry of the judgment of dismissal as of May 31, 2012. (Donohue v. State of California
(1986) 178 Cal.App.3d 795, 800.) We construe the premature notice of appeal (filed
Nov. 15, 2011) from the order sustaining the demurrer to be a notice of appeal from the
appealable judgment subsequently entered. (Cal. Rules of Court, rule 8.104(d)(2);
Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 36.)
2
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts3
a. Default on the Loan
On April 12, 2006, Aurelio obtained an adjustable rate loan in the amount of
$729,000 from Bryco Funding, Inc. (Bryco), secured by a deed of trust on property in
San Pedro, California (San Pedro property).4 Aurelio “intended and did utilize” the
San Pedro property as a residential care facility for the elderly. The deed of trust named
Bryco as the lender and beneficiary, and Fidelity National Title Co. as the trustee. The
deed of trust, along with the attached adjustable rate rider, was recorded on April 19,
2006.
On April 17, 2006, Bryco, the original beneficiary of the deed of trust, executed a
“Corporation Assignment of Deed of Trust,” assigning its beneficial interest to Option
One. The assignment was recorded on August 28, 2007.
On December 15, 2006, eight months after obtaining the loan and before the
adjustable rate took effect, Premier Trust, as agent for Option One, recorded a notice of
default on Aurelio’s loan. The notice of default and election to sell indicated that Aurelio
was $18,244.32 in arrears.
The nonjudicial foreclosure proceedings came to a halt when Aurelio filed
successive bankruptcy petitions, during the pendency of which the trustee could not
conduct the nonjudicial foreclosure sale.
b. Bankruptcy Filings
In April 2007, Aurelio filed a voluntary petition under chapter 11 of the United
States Bankruptcy Code. Bryco, the original lender, on behalf of its successors or
3
The facts here are taken from the complaint, the attached exhibits, and the matters
of which the trial court took judicial notice. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.)
4
Aurelio attached the following exhibits to the complaint: (1) adjustable rate note
(Exhibit A); (2) deed of trust (Exhibit B); (3) corporation assignment of deed of trust to
Option One (Exhibit C); and (4) assignment of deed of trust to Wells Fargo (Exhibit D).
3
assigns, obtained an order granting its motion for relief from the automatic stay under
section 362 of title 11 of the United States Code. After the bankruptcy court converted
the case to a proceeding under chapter 7, the case was dismissed in January 2009.
While the first bankruptcy case was proceeding, Aurelio filed a voluntary petition
under chapter 7. That case was dismissed.
Aurelio then filed two voluntary petitions under chapter 13 of the Bankruptcy
Code. Both cases were dismissed.
In her bankruptcy filings, Aurelio did not list the instant lawsuit in her schedule of
assets.
c. Assignment of Deed of Trust to Wells Fargo and Trustee’s Sale
On January 28, 2009, American Home Mortgage Servicing, Inc. (AHMSI), as
successor in interest to Option One, recorded a substitution of trustee, substituting
AHMSI Default, now known as Power, as the trustee. Thereafter, the substituted trustee
recorded a notice of trustee’s sale.
In March 2009, AHMSI, as Option One’s successor in interest, executed an
“Assignment of Deed of Trust,” assigning its beneficial interest to Wells Fargo. The
assignment was recorded on April 1, 2009.5
Wells Fargo obtained the property at the trustee’s sale on October 27, 2009. The
“Trustee’s Deed Upon Sale” was recorded on November 2, 2009.6
5
The complaint alleges that Option One executed an assignment of deed of trust on
December 10, 2006, which was recorded on August 28, 2007. This allegation is
inconsistent with the attached exhibits to the complaint. We disregard these allegations
as facts appearing in attached exhibits are “given precedence” over inconsistent
allegations pled in the complaint. (Mead v. Sanwa Bank California (1998)
61 Cal.App.4th 561, 567-568.)
6
Sand Canyon requested judicial notice of an “Assignment of Deed of Trust,” that
differs from the one attached as an exhibit to the complaint. This assignment is identical
to the exhibit, with the exception of the signature and the date it was executed and
recorded. Although we find it troubling that Option One executed the same document
twice, the second assignment has no legal effect.
4
2. The Complaint
Eleven months after the San Pedro property was sold at a nonjudicial foreclosure
sale, Aurelio filed this action. Demurrers resulted in amendments to the verified
complaint, which asserts these causes of action: (1) wrongful foreclosure; (2) cancellation
of deed; (3) violation of Business and Professions Code section 17200; (4) violation of
Civil Code section 1572 (actual fraud); (5) fraud; (6) declaratory relief; (7) intentional
misrepresentation; and (8) quiet title. These causes of action are based upon two theories,
that is, fraud in connection with the loan origination, and irregularities in the nonjudicial
foreclosure sale that render the trustee’s deed upon sale void.
a. Allegations Regarding Forged Loan Documents and Deed of Trust
Aurelio allegedly was presented with a blank promissory note and deed of trust
with instructions to sign both documents. The loan documents also apparently failed to
contain any terms that had been communicated to Aurelio, and she was instructed to sign
the documents based on previous representations and promises that the documents would
incorporate all of the represented terms. After signing the loan documents, Aurelio
alleges false and misleading terms were inserted. It is alleged that Option One and Wells
Fargo were involved in the origination of the loan, and were part of a conspiracy with the
original lender to defraud Aurelio. If the loan terms and payment obligations had been
disclosed, Aurelio alleges she would not have entered into the transaction.
Alternatively, it is alleged that the original lender, Option One, Wells Fargo, and
Fidelity forged Aurelio’s signature to the promissory note, deed of trust, and the
adjustable rate rider.7
7
“[A]lthough a plaintiff may plead inconsistent counts or causes of action in his [or
her] complaint [citation] even where, as here, it be verified, if there are no contradictory
or antagonistic facts [citations], we are in accord with the view . . . that the rule was not
‘intended to sanction the statement in a verified complaint of certain facts as constituting
a transaction in one count or cause of action, and in another count or cause of action a
statement of contradictory or antagonistic facts as constituting the same transaction. In
short, the rule does not permit the pleader to blow both hot and cold in the same
complaint on the subject of facts of which he purports to speak with knowledge under
oath.’ ” (Faulkner v. Cal. Toll Bridge Authority (1953) 40 Cal.2d 317, 328.) Either
5
b. Allegations Regarding Nonjudicial Foreclosure Sale
Aurelio alleges that the nonjudicial foreclosure sale is void. Specifically, she
alleges the following irregularities: (1) the assignment of the beneficial interest in the
deed of trust to Wells Fargo was void; (2) the notice of default was defective because it
did not have the required declaration pursuant to Civil Code section 2924b, subdivision
(a); (3) Wells Fargo and Power did not record an amended notice of default after the
assignment and substitution of trustee; (4) before recording the notice of default, Option
One did not comply with former Civil Code section 2923.5; and (5) the trustee (Power)
had no authority to act pursuant to Civil Code section 2932.5.
Aurelio alleges tender and a willingness to tender. It is alleged that at the hearing
on the motion for relief from the automatic stay in the bankruptcy proceedings, Aurelio
“tendered payment of the arrears to Bryco” and payment was accepted. Alternatively,
Aurelio alleges in her cause of action to set aside wrongful foreclosure: “Once this Court
declares the proper beneficiary, Plaintiff will offer to tender to such party all amounts due
and owing so that the claimed default may be cured and plaintiff may be reinstated to her
former rights and privileges.”
3. Demurrers Sustained Without Leave To Amend
Wells Fargo and Power filed a demurrer and a request for judicial notice of certain
recorded documents and the bankruptcy filings. On October 4, 2011, the trial court
sustained the demurrer without leave to amend.
Sand Canyon, formerly known as Option One, filed a demurrer and a request for
judicial notice. On November 8, 2011 the trial court sustained the demurrer without
leave to amend. Sand Canyon obtained a judgment of dismissal on December 27, 2011.8
Aurelio signed the blank documents, or the documents were forged, but she may not
plead both under oath.
8
We construe the premature notice of appeal (filed Nov. 14, 2011) from the order
sustaining the demurrer to be a notice of appeal from the appealable judgment
subsequently entered. (Cal. Rules of Court, rule 8.104(d)(2); Village Nurseries v.
Greenbaum, supra, 101 Cal.App.4th at p. 36.)
6
4. Appeal
On November 14, 2011, Aurelio’s counsel filed a notice of appeal on her behalf,
listing the respondent as “Sand Canyon Corporation f/k/a Option.”
On November 15, 2011, Aurelio’s counsel filed a notice of appeal on her behalf,
listing respondent as “Wells Fargo Bank, N.A. as Trustee for Option.”
Following the filing of the notices of appeal, this case took a tortuous procedural
path. We dismissed the appeals, only to later conditionally reinstate both appeals.
Because Aurelio’s counsel did not comply with the conditions set forth in this court’s
order, we dismissed the appeals again. Over opposition, we granted Aurelio’s motion to
vacate the dismissals. Thereafter, we denied respondents’ requests for dismissal.
We note that the content and form of Aurelio’s appellate briefs fail to comply with
the rules of court. (Cal. Rules of Court, rule 8.204(a)(2)(A), (B) & (b)(3).) A violation
of a court rule may result in striking the offending document. (See Bernard v. Hartford
Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) Rules violations are not the only
problem with the briefing; many of the appellate arguments are incoherent, incomplete,
incomprehensible, vague, or conclusory. (See Berger v. Godden (1985) 163 Cal.App.3d
1113, 1117.) Rather than penalize Aurelio, we reach the merits of the appeal, and when
necessary we extract what appears to be counsel’s argument.9
DISCUSSION
1. The Trial Court Did Not Err in Taking Judicial Notice of the Recorded Documents
Aurelio concedes the trial court may take judicial notice of the recorded
documents, but she contends the trial court abused its discretion by accepting as true the
recitals stated therein. Aurelio does not discuss what, if any, “facts” the trial court
improperly accepted as true and presents no record citations to support this contention.
9
We say “apparently” or “it appears” when addressing the arguments in Aurelio’s
briefs. To the extent she might contend she has advanced any other issues apart from
those we address, we deem them waived. (Berger v. Godden, supra, 163 Cal.App.3d at
p. 1117.)
7
Respondents sought judicial notice of the following recorded documents: (1) the
notice of default; (2) the substitution of trustee; (3) the notice of trustee’s sale; and (4) the
trustee’s deed upon sale.10 Judicial notice of these documents was within the trial court’s
discretion.
Evidence Code section 452, subdivision (h), authorizes a court to take judicial
notice of “[f]acts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.” When a court exercises its discretion to take judicial notice of
recorded documents, Evidence Code section 452 allows the court to take judicial notice
of a fact or proposition within a recorded document “ ‘that cannot reasonably be
controverted, even if it negates an express allegation of the pleading.’ [Citation.]”
(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264.) Thus, a court
may take judicial notice of the following facts: (1) a document’s recordation; (2) the date
it was recorded and executed; (3) the parties to the transaction as reflected in a recorded
document; and (4) the document’s legally operative language, assuming there is no
genuine dispute regarding the document’s authenticity. (Id. at pp. 264-265.) “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. at p. 265; see also Scott v. JPMorgan Chase Bank, N.A.
(2013) 214 Cal.App.4th 743, 754-756 [where judicial notice is requested of a legally
operative document, the court may take notice not only of the fact of the document and
its recording but also facts that clearly derive from its legal effect].)
The trial court took judicial notice that the notice of default and trustee’s notice of
sale were recorded as required to proceed with the nonjudicial foreclosure sale. Aurelio
does not argue this was error. To the extent that Aurelio may attack the trustee’s
10
Respondents also sought judicial notice of the deed of trust with the attached
adjustable rate rider, and the assignments of the deed of trust, but these documents were
attached as exhibits to the complaint. For purposes of ruling on a demurrer, exhibits to
the complaint may be considered. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
966-967.)
8
authority to conduct the nonjudicial foreclosure sale, the status of the trustee was a proper
subject of judicial notice because its status was not a matter of fact existing apart from the
document itself. (See Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at
p. 266.) The trial court did not abuse its discretion.
2. Dismissal for Lack of Standing or on Equitable Grounds
Respondents contend that dismissal is proper because Aurelio lacks standing as
only the chapter 7 trustee may pursue this appeal, or, in the alternative, Aurelio should be
judicially estopped from pursuing this appeal because she failed to disclose her lawsuit in
the multiple bankruptcy proceedings.11 We reject these arguments.
In Bostanian v. Liberty Savings Bank, the court addressed the question of whether
a cause of action to set aside a foreclosure sale of the debtor’s residence is property of the
bankruptcy estate that only the chapter 7 trustee can pursue. (Bostanian v. Liberty
Savings Bank (1997) 52 Cal.App.4th 1075, 1077-1079, 1080-1083, 1085.) In concluding
that the trustee was the real party in interest, the court granted plaintiffs the opportunity to
secure an abandonment of the legal claim by the trustee to proceed with their lawsuit.
(Id. at p. 1087.) Here, unlike the plaintiffs in Bostanian or the cited federal cases,
Aurelio’s bankruptcy case was dismissed and the bankruptcy estate no longer exists.
Alternatively, respondents argue that judicial estoppel bars this action. Gottlieb v.
Kest (2006) 141 Cal.App.4th 110 observed “[n]onbankruptcy courts, including those in
California, have recognized that, in completing bankruptcy schedules, a debtor should list
any legal claims against a creditor whose wrongful conduct caused the bankruptcy;
otherwise, an action on the claim is barred.” (Id. at p. 136; see also Hamilton v.
Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1609-1610.) The
Gottlieb court, however, held judicial estoppel does not bar an action when the
bankruptcy case is dismissed because the judicial estoppel factor of success in asserting
11
Wells Fargo and Power also sought judicial notice of the court records in the
multiple bankruptcy proceedings. Aurelio does not present any argument on this issue
and has therefore waived any claim of error. (Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785.)
9
the prior position is not present. (Gottlieb v. Kest, supra, at p. 137.) Upon dismissal, the
bankruptcy court does not accept or rely on the nondisclosure of any legal claims as true.
(Id. at pp. 137-142.)
Because Aurelio’s bankruptcy case was dismissed, her debts and property were
subject to the general laws, unaffected by bankruptcy concepts. (Gottlieb v. Kest, supra,
141 Cal.App.4th at pp. 141-142.) The record does not reveal, and respondents do not
argue to the contrary, that the bankruptcy court accepted or relied on Aurelio’s
nondisclosure. As the Gottlieb court notes, here the automatic stay in bankruptcy cannot
be deemed an adoption or acceptance of Aurelio’s position because it was not premised
on her nondisclosure. (Id. at pp. 142-143.) Thus, this action is not barred by judicial
estoppel.
3. Trial Court Did Not Err in Sustaining the Demurrers Without Leave to Amend
On appeal from a judgment dismissing an action after sustaining a demurrer
without leave to amend, we give the complaint a reasonable interpretation, reading it as a
whole and its parts in context. (City of Dinuba v. County of Tulare (2007) 41 Cal.4th
859, 865.) We treat the demurrer as admitting all material facts properly pleaded, but we
do not assume the truth of contentions, deductions, or conclusions of law. (Ibid.)
Allegations in the pleading may be disregarded if they are contrary to facts judicially
noticed. (Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at pp. 264-265.)
When a demurrer is sustained, we determine whether the complaint alleges facts
sufficient to state any cause of action. (McCall v. PacifiCare of Cal., Inc. (2001)
25 Cal.4th 412, 415.) When a demurrer is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by amendment, and
if it can, the trial court abused its discretion. (City of Dinuba v. County of Tulare, supra,
at p. 865.)
a. Wrongful Foreclosure – Set Aside Trustee’s Sale (First Cause of Action)
California’s nonjudicial foreclosure statutes governed the proceedings.
(Civ. Code, §§ 2924-2924l.) These statutes provide a comprehensive scheme, and thus a
nonjudicial foreclosure sale is presumed to have been conducted regularly, and the
10
burden of proof rests with the party attempting to rebut the presumption. (Fontenot v.
Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at p. 270.) Part of this burden is to
allege facts showing that the borrowers were prejudiced by the claimed irregularity in the
foreclosure proceedings. (Herrera v. Federal National Mortgage Assn. (2012)
205 Cal.App.4th 1495, 1507-1508.)
(1). Failure to Tender
Aurelio may not challenge the propriety of a foreclosure on her property without
offering to repay what she borrowed against the San Pedro property. (Intengan v. BAC
Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1053; Lona v. Citibank, N.A.
(2011) 202 Cal.App.4th 89, 112.) Aurelio alleged a willingness to tender, but that is
insufficient because a “valid tender of performance must be of the full debt, in good faith,
unconditional, and with the ability to perform.” (Intengan v. BAC Home Loans
Servicing LP, supra, at p. 1053.) Alternatively, Aurelio vaguely alleged that she
“tendered payment of the arrears” and “payment was accepted.” A plaintiff cannot
simultaneously plead inconsistent facts in a verified pleading. (Alfaro v. Community
Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356,
1381-1382.) Because the more specific facts allege a willingness to tender the full debt,
we must take those allegations as true. (Manti v. Gunari (1970) 5 Cal.App.3d 442, 449-
450.) This is insufficient as a matter of law to satisfy the tender requirement.
(2). Exceptions to the Tender Requirement
Aurelio contends two exceptions to the tender requirement apply here, that is,
fraud in connection with the loan origination, and the trustee’s deed upon sale is void.12
(Lona v. Citibank, N.A., supra, 202 Cal.App.4th at pp. 112-113 [listing exceptions];
Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 877-878.) Aurelio has failed
to state a cause of action under these theories.
12
Aurelio’s counsel makes no attempt to present arguments to address the claims
against Wells Fargo and Power separately from the claims against Sand Canyon. We
address the arguments as stated.
11
(a). Attack on the Underlying Debt (Fraud)
Aurelio alleges she was fraudulently induced into the loan by the respondents, or
in the alternative, the loan documents were forged. Bryco, not Wells Fargo or Option
One, was the original lender, as the exhibits attached to the complaint take precedence
over the contradictory allegations. With respect to Wells Fargo and Option One, the
complaint alleges a conspiracy to defraud. To prevail on such a theory, Aurelio must
plead fraud because there is no cause of action for civil conspiracy. (Moran v. Endres
(2006) 135 Cal.App.4th 952, 954-955.)
The complaint fails to allege a particular act by either Wells Fargo or Option One
during the loan origination process. The boilerplate allegations are conclusory and
insufficient in light of the exhibits to the complaint, which include the loan documents
negotiated on behalf of Bryco without any mention of Wells Fargo or Option One.13 The
only inference from the pleadings and attached exhibits is that respondents were not
involved in the negotiation and origination of the loan.
Our resolution of this issue also disposes of the fourth cause of action alleging a
violation of Civil Code section 1572 (vitiation of contractual consent by actual fraud),
and the fifth cause of action alleging common law fraud in connection with the loan
origination. The trial court did not err in sustaining the demurrers to these causes of
action.
(b). Void Assignment of the Deed of Trust
Aurelio asserts “the assignment to Wells Fargo is worthless because at the time of
the assignment the assignor Option One had no interest left to assign to Wells Fargo.”
This argument is based upon incorrect dates, a problem throughout Aurelio’s brief, and is
contradicted by the exhibits to the complaint. The original beneficiary under the deed of
trust was Bryco. Bryco assigned its beneficial interest to Option One. Option One’s
successor in interest assigned its beneficial interest to Wells Fargo.
13
Power is not alleged to have been part of the conspiracy.
12
Even if the assignment to Wells Fargo is alleged to have been void, a borrower
cannot attack the foreclosure without alleging how that assignment caused the borrower
harm. (Herrera v. Federal National Mortgage Assn., supra, 205 Cal.App.4th at pp.
1507-1508.) Because an assignment of a note and deed of trust merely substitutes one
creditor for another, without changing the borrower’s obligations, the victim of a void
assignment is not the borrower, but the assignor who suffers the unauthorized loss of a
promissory note. (Id. at p. 1508.) Aurelio does not allege any facts that the assignment
caused her harm.
(c). Defective Notice of Default
Aurelio next attacks the notice of default contending it is “false because [O]ption
[O]ne is no longer trustee and Respondent [W]ells Fargo used it to foreclose.” It appears
Aurelio contends that the substituted trustee, Power, had to record another notice of
default before recording the notice of sale.14 This contention is contrary to the
nonjudicial foreclosure statutes.
Civil Code section 2934a, subdivision (c) provides: “If the substitution [of trustee]
is effected after a notice of default has been recorded but prior to the recording of the
notice of sale, the beneficiary or beneficiaries or their authorized agents shall cause a
copy of the substitution to be mailed, prior to, or concurrently with, the recording thereof,
in the manner provided in Section 2924b, to the trustee then of record and to all persons
to whom a copy of the notice of default would be required to be mailed by the provisions
of Section 2924b. An affidavit shall be attached to the substitution that notice has been
given to those persons and in the manner required by this subdivision.”
Thus, if Option One or an authorized agent timely mailed a copy of the
substitution of trustee in the manner provided in the statute, it fully complied with this
statutory duty. The complaint does not allege any facts indicating noncompliance.
14
Aurelio also alleged the notice of default was defective. The failure to raise this
argument on appeal constitutes a waiver. (Badie v. Bank of America, supra,
67 Cal.App.4th at pp. 784-785.)
13
(d). Violation of Former Civil Code Section 2923.5
Aurelio contends Option One failed to fully and fairly explore alternatives to
foreclosure as required under former Civil Code section 2923.5. That statute became
operative September 6, 2008, almost two years after the notice of default was recorded in
this action. (Stats. 2008, ch. 69, § 2.) Even if the statute applied, after the sale, former
Civil Code section 2923.5 provided no relief. (Mabry v. Superior Court (2010) 185
Cal.App.4th 208, 214-215, 235.)
(e). Violation of Civil Code section 2932.5
Without further elaboration, Aurelio alleged a violation of Civil Code section
2932.5, in which the assignee exercises the power of sale. This code section does not
apply to trust deeds; the trustee, not the assignee, has the power of sale, acting at the
direction of the beneficiary. (Herrera v. Federal National Mortgage Assn., supra,
205 Cal.App.4th at p. 1509.)
In sum, none of Aurelio’s theories of liability that the trustee’s deed upon sale is
void are tenable. Accordingly, Aurelio has not alleged a cause of action for wrongful
foreclosure, or to set aside the trustee’s sale. The court did not err in sustaining the
demurrers to this cause of action.
b. Cancellation of Deed (Second Cause of Action)
Civil Code section 3412 provides: “A written instrument, in respect to which
there is reasonable apprehension that if left outstanding it may cause serious injury to a
person against whom it is void or voidable, may, upon his application, be so adjudged,
and ordered to be delivered up or canceled.” For reasons explained ante, Aurelio fails to
state a claim under Civil Code section 3412. The trial court did not err in sustaining the
demurrers to this cause of action.15
15
We also agree with Wells Fargo and Power that Aurelio improperly amended the
complaint to add this new cause of action because she failed to obtain leave of court.
(Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.)
14
c. Violation of Business and Professions Code Section 17200 (Third Cause
of Action)
Aurelio pleads conclusory allegations of unlawful business practices, which is
clarified in her opening brief as a violation of Civil Code section 2923.5. An action is
unlawful under Business and Professions Code section 17200 and independently
actionable if it constitutes a violation of another law. (Farmers Ins. Exchange v. Superior
Court (1992) 2 Cal.4th 377, 383.) As we have stated, Aurelio has not alleged a violation
of former Civil Code section 2923.5.
This cause of action also fails because Aurelio has not alleged standing. Business
and Professions Code section 17204 restricts private standing to bring a UCL action to “a
person who has suffered injury in fact and has lost money or property as a result of the
unfair competition.” (Italics added.) Interpreting “as a result of,” in Kwikset Corp. v.
Superior Court (2011) 51 Cal.4th 310, 326-327, the California Supreme Court held the
plain and ordinary meaning of this phrase requires a showing of a causal connection
between the economic injury and the alleged unfair competition. There is no causation
alleged here. Assuming, without deciding whether Civil Code section 2923.5 could serve
as the predicate statute for an unfair competition cause of action, Aurelio does not allege
that the failure to comply with the statute caused her economic injury.16 The trial court
did not err in sustaining the demurrers to this cause of action.
d. Declaratory Relief (Sixth Cause of Action)
Aurelio seeks a “determination of who is the owner of the note or the legal note
holder.” Declaratory relief operates prospectively to declare future rights, rather than to
redress past wrongs. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872,
909.) The basis of declaratory relief is the existence of a present and actual controversy.
(Code Civ. Proc., § 1060; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) Here,
there is no actual controversy relating to the legal rights of these parties. Even if Option
16
To the extent this cause of action is based on fraud in connection with the loan
origination, as explained ante, the complaint fails to allege fraud against Wells Fargo,
Power, or Sand Canyon.
15
One lacked authority to assign its beneficial interest to Wells Fargo, as Aurelio maintains,
the “true victim,” is not Aurelio because the assignment replaces one creditor with
another. (Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at p. 272.) In any
event, this cause of action also fails because it is derivative of the wrongful foreclosure
cause of action. (California Ins. Guarantee Assn. v. Superior Court (1991) 231
Cal.App.3d 1617, 1623-1624 [declaratory relief statute provides a form of relief to the
plaintiff, not a second cause of action for determination of issues that are the subject of
another claim].) The trial court did not err in sustaining the demurrers to this cause of
action.
e. Intentional Misrepresentation (Seventh Cause of Action)
and Quiet Title (Eighth Cause of Action)
Aurelio’s opening brief does not address the court’s ruling on the demurrers to the
seventh and eighth causes of action for intentional misrepresentation and quiet title.
Because she has not challenged these rulings on appeal with reasoned argument and
citation to authority, she has waived any claim of error. (Badie v. Bank of America,
supra, 67 Cal.App.4th at pp. 784-785.) “An appellate court is not required to examine
undeveloped claims, nor to make arguments for parties.” (Paterno v. State of California
(1999) 74 Cal.App.4th 68, 106.)
4. Leave to Amend
Aurelio stands on the allegations in the complaint and does not describe in her
briefs how she would amend to cure the pleading defects. We therefore decline to grant
leave to amend because she has not met her burden of showing there is a reasonable
possibility that the deficiencies can be cured by amendment. (Blank v. Kirwan, supra,
39 Cal.3d at p. 318.)
16
DISPOSITION
The trial court is directed to enter, nunc pro tunc, as of May 31, 2012, a judgment
dismissing the action as to defendants Wells Fargo Bank, N.A. as trustee for Option One
Mortgage Loan Trust 2006-2, Asset-Backed Certificates, Series 2006-2, and Power
Default Services, Inc. That judgment of dismissal is affirmed. The judgment of
dismissal as to defendant Sand Canyon Corporation is affirmed. Costs on appeal are
awarded to respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
17