Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PC030097, Howard J. Schwab and John P. Farrell, Judges.
Everett L. Skillman for Plaintiff and Appellant.
Pite Duncan, Michelle A. Mierzwa and Laurel I. Handley for Defendant and Respondent.
EPSTEIN, P. J.
Barry Lenett appeals from judgment against him in his action for wrongful foreclosure. He claims the trial court erred in denying him leave to file a third amended complaint after remand from this court and in granting the motions in limine of World Savings Bank, FSB (World). He also asserts instructional errors. We affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
In September 1991, appellant purchased a single family residence on Mojave Trail in Chatsworth. To finance the purchase, he obtained an adjustable rate loan secured by a deed of trust from World. He executed a promissory note for $176,000, which obligated him to make monthly payments of principal and interest. He also executed a deed of trust granting respondent a security interest in the property. Each instrument contained a provision stating that notices to appellant would be given by delivery or by first class mail at the Mojave Trail address, or at a single alternative address if appellant gave respondent notice of the alternative address. The note specified that notice of an alternative address must be in writing; the deed of trust provided only that appellant give notice of an alternative address. The note and deed of trust each specified that any notice to World was to be mailed to an address in Oakland, California, unless World gave notice of a different address.
According to World’s records, no payment was received from appellant in August 1999. His subsequent payments therefore were applied to the past due balance, and late charges accrued each month. In September 1999 and each month after, World sent a letter to appellant advising that his loan was in default and stating the amount and terms for curing the default. World also sent letters to appellant stating it had attempted to contact him about his loan but did not have a current telephone number, and asking him to call. All letters were mailed to the Mojave Trail address.
In January 2001, World received notice from the Los Angeles County Tax Assessor that appellant was delinquent on his property taxes. World paid the taxes and penalties owed on the property, and added the amounts advanced to the principal balance of the loan. As authorized by the deed of trust, World set up an escrow account to collect a pro rata amount each month for payment of future property tax installments, effective April 15, 2001. Notice that his payments would increase from $1,256.72 to $1,401.66 because of the escrow account was sent to appellant at his Mojave Trail address.
On May 31, 2001, World received a payment from appellant in the amount of $1,256.72. Since that amount was insufficient for a full payment, the funds were placed in a suspense account and applied in the order authorized under the deed of trust. Thus, the entire amount was applied to the $1,444.48 in accrued late charges. In June 2001, appellant again made a payment in the amount of $1,256.72, and this too was placed in a suspense account as insufficient for a full monthly payment.
As of July 2001, appellant’s account was in arrears for the May, June and July 2001 payments. World referred the loan to trustee Golden West Savings Association Services Co. for commencement of nonjudicial foreclosure proceedings. Golden West recorded a notice of default on July 31, 2001.
Appellant attempted to make a payment on July 30, 2001 at World’s Reseda Boulevard branch. The teller was unable to accept the payment as the loan had been referred to foreclosure. Appellant was given the toll-free number for World’s foreclosure department. He called that day, and ultimately spoke to Malina Valadez, a foreclosure case manager. Ms. Valadez informed appellant of his history of short payments and the foreclosure status of the loan. She also told him World would not accept any further loan payments from him, now that the loan was in the foreclosure department. On July 31, 2001, Ms. Valadez faxed the loan history for the preceding 24 months to appellant. Appellant insisted he was not in default. A series of telephone discussions and faxes followed between appellant and Ms. Valadez with regard to appellant’s loan and property tax payments. Appellant also communicated with Liza Castano in World’s tax department regarding World’s claim that it paid his property tax because he was delinquent.
Ms. Valadez spoke with appellant on October 9, 2001. According to her notes, she “advised of how account became delinquent. Stated that he still feels that we are wrong. Stated that he has paid all his taxes up to date and will send info. Stated he would like fax and will look at himself.” Ms. Valadez prepared and faxed to appellant a payment history spreadsheet for his loan, dating from October 30, 1997. On the fax cover sheet, she asked appellant to fax his receipts for tax payments he had made “ASAP.” Appellant submitted cancelled checks for property tax payments on December 9, 2000 and September 24, 2001. He did not provide World with records showing monthly loan payments.
On November 20, 2001, Golden West recorded a Notice of Trustee’s Sale, scheduling the foreclosure sale for December 11, 2001. A copy of the notice was mailed to appellant at the Mojave Trail address. Appellant did not reinstate or pay off the loan, and the foreclosure sale was conducted as scheduled. Westhaven, LLC purchased the property for the bid amount of $201,600. Golden West issued a deed upon sale to Westhaven, and it was duly recorded on December 26, 2001.
In April 2002, appellant brought this action against World, Golden West, and Westhaven. (Neither Westhaven nor Golden West is a party to this appeal.) Appellant sought to quiet title as to Westhaven’s claim to the property, cancel the trustee’s deed upon sale, obtain a judicial declaration as to his right to the property, enjoin Westhaven’s efforts to evict him from the property, and obtain damages from World and Golden West for the foreclosure sale, slander of title, and negligent infliction of emotional distress. The action was premised in part on lack of compliance with the notice requirements for foreclosure. Appellant alleged: “Because Plaintiff lives in a rural area, the U.S. Postal Service does not deliver mail to the property. At the suggestion of the Postal Service, Plaintiff maintains a private mailbox at 21704 Devonshire Street #303, Chatsworth, CA 91311. If any correspondence is not sent to this address, Plaintiff will not receive it.” He then alleged he had not received any of the correspondence from World or any of the notices related to the default and foreclosure sale because it had not been sent to the proper address.
Appellant filed a first amended complaint after demurrers were sustained, then a second amended complaint. The second amended complaint alleged causes of action for declaratory relief to determine the parties’ rights to the property; negligence against World and Golden West for failure to give proper notice of default and sale and in pursuing foreclosure even though appellant was not in default; negligent infliction of emotional distress; quiet title; and cancellation of the deed. The trial court sustained the demurrer to the second cause of action for negligence “because plaintiff improperly amended the complaint to add this cause of action after the demurrer. In the alternative, the Court sustains the demurrer to the second cause of action for negligence. Without a properly pled negligence cause of action, the third cause of action for negligent infliction of emotional distress must fail as well.”
Appellant was thus left with the first cause of action for declaratory relief against World and Golden West, the fourth cause of action to quiet title, and the fifth cause of action for cancellation of the deed against Golden West and Westhaven. Appellant filed a motion for summary adjudication of issues; World and Golden West moved for summary judgment or summary adjudication.
The trial court found that appellant failed to raise a triable issue of material fact as to whether his mortgage payments were timely. The court also found the undisputed facts demonstrated that appellant did not notify World of a change of address in accordance with the instructions in the deed of trust. Thus the notices were proper and appellant had not identified any defect in the trustee’s sale to support the causes of action for declaratory relief or cancellation of the deed. The court granted summary judgment in favor of World and Golden West.
Appellant moved to vacate the judgment, and sought leave to file a third amended complaint. The court denied the motion to vacate, finding no mistake or excusable neglect. The court ruled that the motion for leave to amend was moot as to World and Golden West, in light of the entry of summary judgment in their favor. As to Westhaven, the court held appellant had not complied with the court rules, nor had he established good cause to amend his complaint for the third time.
Appellant filed a timely appeal from the summary judgment and orders relating to World and Golden West (Lenett I, No. B174396). In a nonpublished opinion filed on December 6, 2004, we reviewed the statutory procedure for nonjudicial foreclosure. (Civ. Code, § 2924 et seq.) Section 2924 contains a conclusive presumption with regard to notices: “A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice.”
Unless otherwise indicated, all statutory references are to the Civil Code in effect from July through December, 2001, when the foreclosure proceedings occurred.
We found appellant had not disputed that the trustee’s deed upon sale containing the required recitations was delivered to Westhaven and recorded. Nor had he raised a triable issue of fact as to Westhaven’s status as a bona fide purchaser. Thus, appellant’s attempt to attack the foreclosure sale and regain title to the property was barred by the conclusive presumption of section 2924; World and Golden West were entitled to summary adjudication in their favor on the causes of action for declaratory relief and to cancel the deed.
But where, as here, a trustor is precluded from suing to set aside the foreclosure sale, the trustor may recover damages from the trustee or mortgagee. (Moeller v. Lien (1994)25 Cal.App.4th 822, 832.) We concluded appellant’s negligence cause of action stated a basis for damages based on his claim of wrongful foreclosure without proper notice by World, and that the trial court erred in sustaining the demurrer to this cause of action.
Appellant presented evidence that World had his Devonshire change of address in its files. This, we held, raised a triable issue of material fact “as to whether World had notice that his last known address was Devonshire Avenue, and that the trustee should have been instructed to notify him at that address of the default and the foreclosure sale. He alleged this as a basis for what is in substance an action for wrongful foreclosure as against World.” On this basis, we reversed summary judgment in favor of World.
We reached a different conclusion as to Golden West. Section 2924 protects the trustee from liability based on good faith reliance on information provided by a beneficiary, and “section 2924b, subdivision (b)(3) expressly limits the exposure of a trustee arising from notice of foreclosure proceedings.” Appellant presented no evidence that Golden West had actual notice of the Devonshire address, and thus we concluded summary judgment was properly granted in its favor.
On remand, appellant filed a motion for leave to file a third amended complaint. On November 4, 2005, the trial court placed the motion off calendar: “Prior request to file third amended complaint was denied on March 24, 2004. As such this motion is to reconsider absent a required declaration relative to prior rejection of said motion Section 1008 (b) Code of Civil Procedure. As such the court has no jurisdiction to hear said motion Section 1008 (e) Code of Civil Procedure.”
Appellant filed an ex parte application for reconsideration and revocation of the November 4 order, arguing that he was not seeking to modify, amend or revoke the March 24, 2004 order, and hence was not subject to the requirements of Code of Civil Procedure section 1008, subdivision (b). The court denied the application, noting the request should have been made by formal motion.
In June 2006, World moved for judgment on the pleadings as to the cause of action for negligent infliction of emotional distress because appellant failed to allege physical injury. World also moved to strike appellant’s claim for punitive damages. At the hearing on the motion, appellant again asked for leave to amend the pleadings. The court denied leave to amend and granted both motions. The only remaining cause of action to be tried was for negligence.
At the start of trial in December 2006, the court ruled on several motions in limine submitted by the parties. The case was then tried to a jury. The jury found World was not negligent, and judgment was entered in favor of World. The court awarded World $31,157.90 in costs. This is a timely appeal from the judgment.
DISCUSSION
I
Appellant claims the court erred in taking his 2005 motion for leave to file a third amended complaint (the 2005 motion to amend) off calendar. We disagree.
In January 2004, after the trial court granted summary judgment in favor of World and Golden West, appellant filed a motion to vacate, and a motion for leave to file a third amended complaint (the 2004 motion to amend). He argued: “Based upon research that has recently been performed, it appears as though Plaintiff is entitled to assert causes of action against World Savings, Golden West II and Westhaven that had not been previously alleged. . . . In addition, as a result of the mistake, inadvertence, surprise, and/or excusable neglect of Plaintiff and his prior counsel, one of whom was forced to resign from the practice of law pending disciplinary proceedings with the State Bar, these causes of action were not previously brought to the attention of this Court.” This, he asserted, constituted good cause to permit the filing of the third amended complaint.
The court denied the motion to vacate, and for that reason, deemed the motion to amend moot as to World and Golden West and placed it off calendar. As to the remaining defendant, Westhaven, the court continued the motion to amend to March 24, 2004. On that date, the court denied the motion on the merits: “First, plaintiff has failed to comply with the requirements of California Rule of Court 327 (a) (3) or (b) [now rule 3.1324 (a)(3) and (b)]. Second, the court finds that plaintiff has failed to establish good cause to amend his complaint for a third time. Plaintiff filed the instant action on April 29, 2002. Plaintiff was represented by attorney M. Roy Siegel. Attorney Siegel continued to represent plaintiff until March 17, 2003. At that time, plaintiff began representing himself. On October 16, 2003, attorney Jeffrey Steinman substituted in as attorney for plaintiff. The instant motion was filed by plaintiff’s third counsel, Everett Skillman, on January 9, 2004, over 20 months after the initial complaint was filed and after the complaint had already been amended twice. Under these circumstances, plaintiff has failed to establish good cause for the amendment.”
Because the 2004 motion to amend had been denied, the court ordered the 2005 motion to amend off calendar. The court explained: “Prior request to file third amended complaint was denied on March 24, 2004. As such this motion is to reconsider absent a required declaration relative to prior rejection of said motion Section 1008 (b) Code of Civil Procedure. As such the court has no jurisdiction to hear said motion Section 1008 (e) Code of Civil Procedure.”
Code of Civil Procedure section 1008, subdivision (b) provides: “A party who originally made an application for an order which was refused in whole or part, . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.”
Subdivision (e) sets out the jurisdictional nature of this requirement: “This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
Appellant’s 2004 motion to amend was denied by the court in March 2004. His 2005 motion to amend was essentially a renewal of the same motion. The proposed third amended complaint attached to the 2005 motion to amend asserted virtually the same causes of action as those proposed in the 2004 motion to amend. And the grounds for the denial of the 2004 motion—lack of diligence in seeking to amend for the third time—were relevant to the 2005 motion. Appellant once again asserted that he did not make the request earlier due to his and his attorneys’ mistake, inadvertence and excusable neglect, and recounted the problems he had with his attorneys.
Appellant was required to file an affidavit stating what application was made in 2004, to what judge, what order was made, and what new or different facts or circumstances are now present. (Code Civ. Proc., § 1008, subd. (b).) In the absence of such affidavit, the court had no jurisdiction to consider the renewed motion. (Code Civ. Proc., § 1008, subd. (e); see Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.)
Appellant could have cured this defect by filing the required affidavit. Instead he filed a motion for reconsideration of the court’s order taking the 2005 motion off calendar. This did not cure the defect. Lacking jurisdiction, the court properly refused to rule on the 2005 motion to amend.
Appellant’s reliance on Deauville Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843 is misplaced. In Deauville, the court held the “same judge” requirement for a motion for reconsideration under Code of Civil Procedure section 1008, subdivision (a) does not apply to a renewed motion under subdivision (b). The court did not address the explicit requirement in both subdivisions that the motion be accompanied by an affidavit stating what application was made before, when, to what judge, what order or decisions were made, and what new or different facts, circumstances or law are claimed to be shown in the subsequent motion.
II
Appellant claims the court erred in not allowing the jury to fully consider the evidence of the failure to mail, post and publish the notices of default and of the trustee’s sale. This claim arises in part from the court’s ruling on World’s motion in limine No. 6. In that motion, World asked the court to exclude evidence of monthly payments made by appellant to World; evidence of payments appellant made for property taxes or hazard insurance; evidence of correspondence appellant sent to World to show he was not in default on loan payment obligations at the time foreclosure proceedings were commenced in July 2001; and evidence that World or Golden West failed to properly post and publish Notice of Sale. The court granted the motion in part, and denied it in part: “The plaintiff can present evidence relating to the address and the amount due given by the bank to the trustee. However, the motion is granted as to any acts of the trustee in effecting the sale and posting.” The ruling was a proper interpretation of our decision in Lenett I.
In Lenett I, we applied the conclusive presumption of compliance with the statutory requirements for notice of foreclosure. We held that appellant failed to raise a triable issue of material fact disputing Westhaven’s status as a bona fide purchaser, and therefore concluded that the recitation of compliance with statutory requirements in the trust deed delivered to Westhaven was sufficient to raise the conclusive presumption of compliance under section 2924. We found there was a triable issue of material fact as to whether World had notice of appellant’s change of address which precluded summary judgment in favor of World. We did not address the existence of a triable issue of fact as to whether appellant’s loan actually was in arrears at the time World referred it to Golden West for foreclosure. What remained after our decision in Lenett I was an action against World for wrongful foreclosure based on appellant’s claims that (1) he was not in default on his loan obligation, and (2) World failed to provide the trustee with the Devonshire address, which appellant had designated as an alternative address.
On remand, the trial court permitted appellant to proceed on his claim against World for wrongful foreclosure, on the theory that World did not provide Golden West with his last known address and that World provided inaccurate information to Golden West with regard to the amount owed by appellant. Its ruling denying part of motion in limine No. 6 reflected this understanding. Appellant was permitted to present evidence relating to the address given by the bank to the trustee, and of loan payments and tax payments he made to World.
The portion of the motion in limine granted by the court related to the conduct of Golden West. In Lenett I, we also held that appellant failed to raise a triable issue of fact that Golden West had notice of his Devonshire address. Under 2924b, subdivision (b)(3), Golden West was protected from liability for failing to send notice to the last known address in the absence of actual notice of it. And under section 2924, Golden West was protected from liability based on its good faith reliance on information provided by the beneficiary regarding the nature and amount of the default. In light of this statutory protection, Golden West’s conduct was no longer at issue. The court thus correctly precluded appellant from presenting evidence “as to any acts of the trustee in effecting the sale and posting.”
Appellant also claims the court’s refusal of his proposed instructions on the mailing of notice of default and sale improperly disposed of many of his theories. The court refused special instruction No. 29, which set out the obligation of the trustee to mail a copy of the notice of default to the trustor at his or her last known address if different from the address specified in the deed of trust. It refused No. 34, stating that three months after the recording of the notice of default, the trustee must post and mail a notice of sale 20 days before the sale, and must record the notice 14 days before the sale; No. 36 setting out the trustee’s obligation to mail notice of foreclosure sale to the trustor at his or her last known address; and No. 37 stating that the statute should be construed to require the trustee to give notice of default or sale to the trustor’s last known address, even if it is not the address of the property financed by the mortgage, where the trustor continues to live.
These instructions all address the obligations of the trustee to satisfy notice requirements—requirements which were no longer at issue in light of our decision in Lenett I. We expressly held that the delivery of the trustee’s deed with the required recitations raised a conclusive presumption under section 2924 that the notice requirements had been satisfied. The trial court properly refused these instructions.
III
Appellant claims the court erred in refusing to give proposed instruction No. 44 on negligence per se: “If you decide— [¶] 1. That World Savings violated any of these laws and [¶] 2. That the violation(s) were a substantial factor in bringing about the harm, [¶] –then you must find that World Savings was negligent. [¶] If you find that World Savings did not violate these laws or that the violation was not a substantial factor in bringing about the harm, then you must still decide whether World Savings was negligent in light of the other instructions.”
The proposed instruction, adapted from CACI No. 418, is based on Evidence Code section 669. That statute codifies the common law presumption of negligence per se based on a statutory violation. Under section 669: “(a) The failure of a person to exercise due care is presumed if: [¶] (1) He violated a statute, ordinance, or regulation of a public entity; [¶] (2) The violation proximately caused death or injury to person or property; [¶] (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and [¶] (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” “The first two elements are normally questions for the trier of fact. The last two elements are determined by the trial court as a matter of law.” (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1306.)
The statute at issue is section 2924b, subdivision (b)(3), which required World as beneficiary to inform the trustee, Golden West, of appellant’s last known address. There was evidence, although disputed, from which the jury could conclude that World had received notification from appellant that mail should be sent to appellant’s Devonshire address. If the jury credited appellant’s evidence of notice to World of the Devonshire address, World’s undisputed failure to provide that address to Golden West as appellant’s last known address would constitute a violation of the statutory notice requirement of section 2924b, subdivision (b)(3).
Appellant is within the class of persons for whose protection the statutory notice requirements were adopted. As the court explained in Moeller v. Lien, supra, 25 Cal.App.4th 822, 832, “[t]he debtor is protected by notice requirements, reinstatement and redemption periods and a right to postpone the sale.” The Supreme Court has recognized that the notice requirements of section 2924b constitute a “safeguard” which assures that a trustor receives “actual notice.” (See I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 288-289.)
The problem arises with the proximate causation element for the presumption of negligence under Evidence Code section 669. Appellant was unable to show that the claimed violation of the statutory notice requirement deprived him of notice of the foreclosure, and hence was the proximate cause of the foreclosure sale. The evidence was undisputed that appellant received actual notice that the property was in foreclosure at the same time the notice of default was mailed. Appellant testified that on July 30, 2001, when he went to World’s Reseda Boulevard branch to make his mortgage payment, the teller refused to accept it. The teller checked the computer, then told him: “‘Well, your house is in foreclosure.’” He was told he would have to call the foreclosure department, and was given a paper on which was written “foreclosure department” and a telephone number.
Appellant called the number and spoke with Malina Valadez, briefly on July 30, and in more detail on July 31. Appellant testified that Ms. Valadez told him that the house was in foreclosure. On July 31, 2001, Ms. Valadez faxed a loan history to him. The loan history showed late payments, accrual of late charges, increase in monthly payment amount, and application of short payment to the late charges. The heading on each page of the document listed “TOT DUE: 5,920.08.” Thus, even if the notice of default was improperly mailed to the Mojave Trail address rather than to the Devonshire address, appellant received actual notice that the property was in foreclosure, and the total amount World claimed was due on the loan no later than July 31, 2001. This was on the same date that Golden West recorded the notice of default.
From that date through October 9, 2001, appellant had continuing communication with World’s foreclosure and tax departments regarding the status of his loan payments and property taxes. He had actual notice that according to World’s records, he was behind in loan payments, his untimely payments had resulted in late fees, and World had paid property taxes which were past due and added those amounts to his loan. Assuming World violated the statute by not giving the trustee appellant’s last known address as required by statute, that violation did not deprive appellant of notice that the property was in foreclosure nor of the amount World claimed was due. The harm section 2924b was designed to prevent was not implicated by World’s alleged statutory violation, and thus the violation was not the proximate cause of the foreclosure sale. “A trial court is not required to give instructions on a party’s theory of the case unless it is supported by substantial evidence.” (Morey v. Vannucci (1998) 64 Cal.App.4th 904, 915.) The court did not err in refusing special instruction No. 44.
Even if the instruction should have been given, we conclude its refusal does not require reversal. A cause may not be reversed for instructional error unless the reviewing court determines the verdict was prejudicially affected. (Cal. Const., art. VI, § 13.) Among the factors to be considered in evaluating prejudice is the effect of other instructions. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580-581.)
This case proceeded on a general negligence theory. The jury was instructed: “Barry Lenett claims that he was harmed by World Savings’s negligence. To establish this claim, Mr. Lenett must prove all of the following: [¶] 1. That World Savings was negligent; [¶] 2. That Mr. Lenett was harmed; and [¶] 3. That World Savings’s negligence was a substantial factor in causing Mr. Lenett’s harm.” The court instructed that “Negligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. [¶] You must decide how a reasonably careful person would have acted in World Savings’s situation.” The court defined substantial factor: “A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.”
The court then instructed on the foreclosure process: “The foreclosure process is commenced by the recording of a notice of default and election to sell by the trustee.” Instruction No. 30 defined “last known address” as used in section 2924b: “Subdivision (b)(3) of California Civil Code Section 2924b in 2001 defined last known address: ‘As used in section 2924b, subdivision (b), paragraphs (1) and (2), the “last known address” of each trustor or mortgagor means the last business or residence address actually known by the mortgagee, beneficiary, trustee, or other person authorized to record the notice of default.’” Instruction No. 31 set out World’s statutory duty to give the trustee appellant’s last known address: “The beneficiary shall inform the trustee of the trustor’s last address actually known by the beneficiary.”
With these instructions, the jury was informed of World’s statutory notice requirement and its context in the foreclosure process. The jury was then asked to decide if World failed to meet its notice obligation, and if it did, whether that failure was a substantial factor in causing appellant’s harm. These are the same questions the jury would have considered had it been instructed on negligence per se. Refusal of the requested instruction was not prejudicial.
IV
Appellant claims the court erred in refusing proposed instructions that the notice of default must state the nature of each breach actually known to the lender (No. 27A) and that the lender cannot insist upon any grounds of default other than those stated in the notice of default (No. 33). These instructions were inapplicable to the issues at trial and were properly refused.
Appellant relies on Anderson v. Heart Federal Sav. & Loan Assn. (1989) 208 Cal.App.3d 202, 213-214, for the proposition that a lender cannot foreclose by means of a notice of default containing an inflated reinstatement figure. But appellant’s theory at trial was that he never received the notice of default prior to the foreclosure sale because it was not mailed to his last known address, and that he was never told the amount required for reinstatement. What was at issue was whether World failed to provide the trustee with appellant’s last known address so that appellant would have received the statutorily required notice of default. The grounds or amounts stated in the notice of default were not at issue, since appellant claimed he did not receive the notice.
Appellant also claims the court erred in rejecting proposed instruction No. 73, which provided: “A contract which says that a late payment fee is not charged unless the payment is made after a particular day cannot be interpreted so as to allow a foreclosure unless the late payment fee has in fact been triggered, even though the payment is made after the ‘due date.’ The law does not allow a foreclosure to be used to enforce compliance with payment on the ‘due date’ where the late payment fee is not chargeable.” The trial court was justified in rejecting this instruction because it considered it “more confusing than helpful[.]” But even if it were more clearly written, it did not apply. Reading the case from which the instruction is drawn, Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 825, we understand the purpose of the instruction was to tell the jury that a lender cannot foreclose based on an unpaid late fee imposed for failure to make a payment on the date due if the loan documents provide that such fees are not chargeable unless payment is not received within a specified time after they are due. In this case, World imposed late fees based on a missed payment in August 1999, which rendered all subsequent payments late. Appellant’s position was that he had made that payment so that none of the subsequent payments was late. There was no issue about late fees being imposed for payments made after the due date but before the end of the 15-day grace period provided in his promissory note. The court did not err in rejecting the instruction.
V
The court instructed the jury on comparative negligence: “World Savings Bank claims that Barry Lenett’s harm was caused in whole or in part by Barry Lenett’s own negligence. To succeed on this claim, World Savings Bank must prove the following: one, that Barry Lenett was negligent; and two, that Barry Lenett’s negligence was a substantial factor in causing his harm. If World Savings Bank proves the above, Barry Lenett’s damages are reduced by your determination of the percentage of Barry Lenett’s responsibility. I will calculate the actual reduction if you ever get to that point. That would be done.” (Italics added.)
Appellant claims the italicized language was argumentative. The language was unnecessary, but it caused no harm. The instruction reflected the reality that the jury might not find appellant negligent at all; only if the jury got to the point of finding appellant negligent would the court then calculate a reduction in damages. If anything, this was helpful to appellant.
VI
Appellant makes several claims regarding damages. He asserts the court erred in granting judgment on the pleadings as to his cause of action for negligent infliction of emotional distress; in granting World’s motion in limine excluding evidence of plaintiff’s loss of rental value and other resulting damages; and in striking appellant’s punitive damages claim. We have found no error in the trial, which resulted in a jury verdict that World was not negligent. In the absence of negligence, there is no issue as to damages.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.