Opinion
A148049 A149410
01-30-2018
JAMES RUFINI, Plaintiff and Appellant, v. CITIMORTGAGE, INC., Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV252119)
In case number 148049, plaintiff and appellant James Rufini appeals the entry of summary judgment for defendant and respondent CitiMortgage, Inc. on claims that CitiMortgage improperly refused to modify Rufini's home loan and as a result wrongfully foreclosed on his mortgage. The trial court entered summary judgment after concluding that Rufini could not raise a genuine dispute of fact over whether he occupied the home as his principal residence in order to qualify for a loan modification. We affirm.
In case number 149410, Rufini appeals the trial court's award of $60,000 in attorney's fees to CitiMortgage as costs of suit. We affirm.
BACKGROUND
In 2006, Rufini acquired a home on Sunset Way in Sonoma. In 2007, he refinanced it with a $600,000 loan secured by a deed of trust (First Loan). At the same time, Rufini also took out a $105,000 loan secured by a separate deed of trust subordinate to the First Loan (Second Loan).
The First Loan was assigned to CitiMortgage. In May 2010, Rufini made his last regular payment on the First Loan, paying the amount due as of September 1, 2009. He failed to make the other required payments and defaulted on his payment obligations.
In June 2009, CitiMortgage had determined that Rufini prequalified for a Trial Period Plan (TPP) modification of the terms of the First Loan under the Homeowner Assistance Modification Program (HAMP). In order to qualify for a permanent modification of the First Loan, Rufini was required to make revised monthly loan payments under the TPP, complete a loan application, and provide requested financial documentation, including evidence that Sunset Way was his primary residence.
Rufini made revised payments and supplied much of the requested documentation. But the 2008 tax return Rufini provided to CitiMortgage indicated his home address was on Lovall Valley Court in Sonoma, not Sunset Way , as did his tax returns for 2009 through 2013. His 2008 tax return also claimed the Sunset Way property was a residential rental property. None of Rufini's tax returns for 2008 through 2013 indicated the Lovall Valley Court property was a rental property. Credit reports CitiMortgage pulled for Rufini in October 2009 and May 2010 listed Sunset Way as Rufini's "Curr. Addr.," but both reports also noted in their miscellaneous information and fraud detection sections a conflict or "[v]ariation between Inquiry and Onfile address." Rufini also did not live at Sunset Way beginning in August 2009 for 6 to 8 weeks, and again from April to November 2010 when the property was rented. In January or February 2011, Rufini again moved out of the property and rented it until 2012.
In September 2010, CitiMortgage notified Rufini that his loan modification request was denied. A notice of default was recorded, and the Sunset Way property was sold at a foreclosure sale in May 2011.
Rufini sued for wrongful foreclosure, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, negligence, negligent misrepresentation, and unfair business practices. The trial court sustained a demurrer to Rufini's original complaint without leave to amend. In a prior appeal, we reversed and remanded to allow Rufini to file an amended complaint seeking damages arising from CitiMortgage's alleged wrongful foreclosure on the Sunset Way property and its possible breach of an agreement to modify the First Loan. (Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299 (Rufini I).)
On remand, Rufini asserted causes of action for: (1) damages for illegal trustee's sale, (2) breach of covenant of good faith and fair dealing, (3) violation of Business and Professions code section 17200, (4) breach of contract—promissory estoppel, (5) negligent misrepresentation of fact, (6) violation of the federal Racketeer Influenced and Corrupt Organizations (RICO) Act (18 U.S.C. § 1961, et seq.), and (7) negligent review of his loan application under HAMP. CitiMortgage moved for summary judgment.
Following extensive briefing and a hearing, the court ruled that none of Rufini's causes of action were viable because the evidence did not create a disputed material fact that could show he was entitled to a loan modification. Therefore, in foreclosing on Rufini's property, CitiMortgage did not breach any legal duty it owed him. Judgment was entered in CitiMortgage's favor.
CitiMortgage moved for $128,187.50 in attorneys' fees pursuant to Civil Code section 1717. Rufini opposed the motion. Following a hearing, the trial court found that "at least some of plaintiff's causes of action arose out of the contract" between Rufini and CitiMortgage and that "a portion of the requested attorney['s] fees and costs were reasonably incurred by Citi[Mortgage] with its defense of such causes of action." The court awarded CitiMortgage $60,000 in attorney's fees.
Rufini separately appealed the summary judgment and attorney's fee award. By our own motion, we hereby consolidate the appeals for purposes of argument and opinion.
DISCUSSION
I. Appeal No. 148049
A. Standard of Review
When we consider an appeal from a summary judgment, we independently review the record to determine whether there is a triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We construe the moving party's evidence strictly and the opposing party's evidence liberally in our review for a triable issue. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20.) A defendant seeking summary judgment must show either that at least one element of a plaintiff's cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2).) If the defendant makes such a showing, the burden shifts to the plaintiff to show there is a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)
B. HAMP
When this case was before us in the earlier appeal, we summarized HAMP as follows: "Under HAMP, enacted to minimize home foreclosures following the massive financial upheaval in 2008 [citations], qualifying homeowners may obtain permanent loan modifications that reduce their mortgage payments. Lenders receive various incentives from the government for each HAMP modification. [Citation.] The participating lender initially determines whether a borrower satisfies certain threshold requirements regarding the amount of the loan balance, monthly payment, and owner occupancy. [Citation.] It then implements the HAMP modification process in two stages. [Citation.] In the first stage, it provides the borrower with a 'Trial Period Plan' (TPP), setting forth the trial payment terms, instructs the borrower to sign and return the TPP and other documents, and requests the first trial payment. [Citation.] In the second stage, if the borrower has made all required trial payments and complied with all of the TPP's other terms, and if the borrower's representations on which the modification is based remain correct, the lender must offer the borrower a permanent loan modification. [Citations.]" (Rufini I, supra, 227 Cal.App.4th at pp. 305-306.) But if the borrower does not make the required payments or comply with all the terms of the TPP, including the submission of required financial information, there is no binding contract and the lender may foreclose on a non-performing loan. (See Nungaray v. Litton Loan Servicing, LP (2011) 200 Cal.App.4th 1499, 1504.)
The Department of the Treasury (Treasury) administers HAMP. In March 2009, Treasury issued guidelines for HAMP loan modifications. Those guidelines state that to be eligible for the HAMP program a home must be owner occupied and the borrower's primary residence. (U.S. Dep't of the Treasury, Home Affordable Modification Program Guidelines (Mar. 4, 2009), at <https://www.treasury.gov/press-center/press-releases/Documents/modification_program_guidelines.pdf [As of January 30, 2018]>.
In April 2009, Treasury issued Supplemental Directive 09-01 instructing lenders on HAMP implementation for mortgage loans that are not owned or guaranteed by a government sponsored enterprise such as Fannie Mae or Freddie Mac. Supplemental Directive 09-01 "appl[ies] to all eligible mortgage loans secured by one- to four-unit owner-occupied single family properties," and its eligibility requirements make clear that one of the units must be "the borrower's principal residence."
A sample notice to borrower attached to Supplemental Directive 09-08 makes clear that the loan servicer or lender is unable to offer a loan modification if the borrower does not live in the property as a primary residence. The standard HAMP Request for Modification and Affidavit form requires the borrower to verify that: "[M]y property is owner occupied; I intend to reside in this property for the next twelve months." The HAMP Frequently Asked Questions document clarifying the supplemental directives states: "In all cases, a servicer must obtain a credit report to verify that the property securing the mortgage is the borrower's primary residence. If the credit report does not support the borrower's certification that the property securing the loan is the borrower's principal residence, the servicer must use other documentation, such as a federal income tax return or utility bill, to reconcile the inconsistency." Rufini does not dispute that the HAMP directives apply to consideration of his eligibility for a loan modification. On the basis of HAMP's program documentation, we conclude that to qualify for a HAMP modification, a borrower must demonstrate the property standing as security for the loan to be modified is the borrower's owner-occupied principal residence. (Accord, Nicdao v. Chase Home Finance (D. Alaska 2012) 839 F.Supp.2d 1051, 1065 [homeowner must occupy property in question as his or her primary residence for HAMP eligibility].)
C. The Summary Judgment Motion
CitiMortgage moved for summary judgment on the basis that all of Rufini's alleged causes of action suffer from one common defect. To qualify for a HAMP loan modification, the property securing the loan must be the borrower's primary residence and owner-occupied. CitiMortgage argued the Sunset Way property was neither occupied by Rufini nor was it his primary residence. Since Rufini was required under the TPP to complete all the required paperwork to demonstrate he qualified for a HAMP modification, he was unable to meet this requirement and CitiMortgage was under no obligation to modify his loan.
D. Rufini's Inability to Qualify for Loan Modification
When this case was before us on appeal from CitiMortgage's demurrer, we observed that "Rufini's allegation that he was renting out his home at the time [he was seeking the HAMP modification] suggests he may have difficulty prevailing on a HAMP-related contract claim." (Rufini I, supra, 227 Cal.App.4th at p. 307.) We reversed the demurrer without leave to amend because we could not conclude as a matter of law that Rufini did not qualify for a HAMP modification. (Id. at pp. 301, 307.)
Now, CitiMortgage has provided evidence in support of summary judgment that Rufini's home was not owner-occupied for more than a month in 2009 and for most of 2010 and 2011. It also provided evidence that Rufini's credit report revealed a question as to whether the Sunset Way property was his primary residence and numerous documents, including his tax returns, indicating he principally resided at the Lovall Valley Court house.
This evidence meets CitiMortgage's burden of establishing that Rufini was unable to prove an essential element of his claim—that he qualified for a HAMP modification. It was thus incumbent upon Rufini to show that whether the Sunset Way property was owner occupied and his primary residence was a triable issue of fact. (See Code Civ. Proc., § 437c, subd. (p)(2).) To raise such a factual issue, Rufini relied on an assortment of invoices showing services performed at the Sunset Way property, a home warranty sent to him there in 2006, property tax bills for Sunset Way sent to Rufini's Boyes Hot Springs post office box, and correspondence addressed to him at Sunset Way from CitiMortgage and the lender of the Second Loan. But this showing was insufficient under HAMP to create a factual issue over whether the Sunset Way property was Rufini's primary residence. To be eligible for HAMP modification, a loan "servicer must confirm that the property securing the mortgage loan is the borrower's primary residence as evidenced by the most recent signed federal income tax return (or transcript of a tax return obtained from the IRS), a credit report and one other form of documentation that would supply reasonable evidence that the property is the borrower's primary residence (such as utility bills in the borrower's name)." The tax returns show Lovall Valley Court as Rufini's home address, and his credit report was inconclusive. The utility bills that appear in the record appear to be addressed to Rufini at Lovall Valley Court or his Boyes Hot Springs post office box. None of Rufini's proffered evidence met HAMP's documentation requirements.
Rufini disagrees. He says that Supplemental Directive 09-07 states that a credit report alone may be used to verify a borrower's occupancy, and loan servicers were no longer required to verify the borrower's occupancy using other documentation. This statement is true as far as it goes, but the supplemental directive goes further to state that: "If the credit report is inconsistent with other information provided by the borrower, the servicer must reconcile the inconsistency." Here, not only did Rufini's credit reports indicate there was a conflict regarding his addresses, the address listed was inconsistent with the home address on his tax returns. It was thus entirely reasonable and consistent with the HAMP directives for CitMortgage to require further proof that Sunset Way was Rufini's primary residence.
Rufini says that whether his home was owner-occupied or his primary residence was to be determined as of the date of his initial default under the original loan. Again, the HAMP program documents indicate otherwise. Loan modification request forms submitted during the TPP require the borrower to attest that: "[M]y property is owner-occupied; I intend to reside in this property for the next twelve months." Supplemental Directive 09-01 also refers to the borrower moving out of the home as a fact that can destroy eligibility for a HAMP modification. Moreover, a promise to provide a HAMP modification is conditional on a borrower "maintaining the integrity of their modification based representations." (Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 926 (Bushell).) Eligibility for a HAMP modification is not fixed as of the date of default under a loan but is determined continuously throughout a TPP.
Rufini's reliance on former Civil Code section 2923.52 does not help him. Section 2923.52 was enacted during the financial crisis to afford certain defaulting homeowners an additional 90 days before their homes could be sold pursuant to notices of default and sale. (Civ. Code, § 2923.52, subd. (a) [repealed]; Ass. Bill No. 7 (2009-2010 Sec. Extra. Sess.) §§ 1-2.) The statute applied in circumstances where the defaulting "borrower occupied the property as the borrower's principal residence at the time the loan became delinquent." (Civ. Code, § 2923.52, subd. (a)(3) [repealed].) It was repealed by its own terms on January 1, 2011, and became inoperative. (Id. at § 2923.52, subd. (e).) Nothing in the statute expressly prescribes the requirements for a HAMP modification. In fact, the statute enabled lenders, like CitiMortgage, operating qualified modification programs to be exempted from section 2923.52, including the requirement that borrower eligibility was determined, in part, if the home was owner occupied at the time the loan became delinquent. (Civ. Code. § 2923.53 [repealed].) Former Civil Code section 2923.52 simply has no bearing on Rufini's eligibility for HAMP modification.
Finally, Rufini argues that "even if all the documents in this case do not line up perfectly on Rufini's behalf," he raised an issue of fact because he could provide an explanation for why he neither lived in the Sunset Way property nor received his mail there. He seems to argue that one's principal residence is a state of mind, not a fact that can be proven by "secondary" documentary evidence. Maybe in some metaphysical sense that can be true. But in the context of HAMP documentation requirements, the fact of residence or suitable documentation of eligibility for loan modification was required and Rufini could demonstrate neither. Because he did not fulfill all the TPP eligibility requirements, CitiMortgage was not obligated to modify Rufini's loan.
E. The Causes of Action in the Second Amended Complaint
Five of Rufini's seven causes of action in his second amendment complaint for damages for an illegal trustee's sale, breach of the covenant of good faith and fair dealing, breach of contract—promissory estoppel, negligent misrepresentation of fact, and negligent review of his loan application under HAMP are based upon allegations that CitiMortgage was contractually obligated to modify his loan because he fulfilled all the requirements for a HAMP modification and the bank, therefore, wrongfully foreclosed on his property. Each of these causes of action fails because, as we have discussed, Rufini cannot show he qualified under HAMP.
Whether in equity or in tort, a cause of action for an illegal trustee's sale consists of the following elements: " '(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.' " (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408, citing Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) Here, Rufini could not satisfy the first element and show that CitiMortgage did anything illegal, fraudulent or oppressive in foreclosing because he was unable to raise an issue of fact to demonstrate he fulfilled the TPP requirements to qualify for a HAMP modification.
This same failing defeats Rufini's cause of action for breach of the implied covenant of good faith and fair dealing. The covenant of good faith and fair dealing presupposes an underlying contract and is read into the agreement of the parties in order to protect their express covenants or promises. (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 371-372.) As we have discussed, because Rufini cannot raise a factual issue to establish he fulfilled the requirements of the TPP, there was no binding agreement under HAMP and CitiMortgage was under no obligation to modify his loan. There was no breach of the implied covenant of good faith and fair dealing.
Rufini's failure to raise a question of fact over his fulfillment of the requirements of the TPP also defeats his claim for breach of contract. "[W]hen a lender offers a TPP to a distressed borrower, the lender effectively has already determined that the borrower qualifies for HAMP, assuming that the borrower's representations on which modification is based remain true and correct." (Bushell, supra, 220 Cal.App.4th at p. 924.) Here, the evidence did not confirm Rufini's representation that Sunset Way was his primary residence and an owner-occupied home. So, there was no enforceable agreement with CitiMortgage to modify the loan.
Nor is there any basis for promissory estoppel on this record. A lender may be obligated to re-finance a loan based upon a clear and unambiguous offer; reasonable and foreseeable reliance by the party to whom the offer is made; and injury to the party asserting the estoppel due to reliance upon the offer. (Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60 Cal.App.3d 885, 890.) Here, as we have discussed, the promise to modify Rufini's loan was conditional on his meeting the terms of the TPP. Moreover, any reliance on his part that CitiMortgage would modify the loan without verification that it was his primary residence and owner-occupied would be unreasonable in light of the written notice provided to Rufini regarding the TPP and the HAMP directives.
The cause of action for negligent misrepresentation also fails. Rufini alleges that CitiMortgage told him his loan modification would be approved with no reasonable ground for believing it to be true. A cause of action for misrepresentation also requires that the plaintiff justifiably rely on a false promise to the plaintiff's detriment. (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.) The record does not support a claim of justifiable reliance.
The TPP offer CitiMortgage extended to Rufini clearly states: "If you qualify under the federal government's Home Affordable Modification Program and comply with the terms of the Trial Period Plan, we will modify your mortgage loan and you can avoid foreclosure." Thus, the requirement that he be eligible for modification under the terms of HAMP was clearly communicated to Rufini, and the record reflects that whether Sunset Way was his owner-occupied primary residence was an issue he knew about and tried to prove throughout the TPP. On this record we would not conclude he justifiably relied on any statement that CitiMortgage would unconditionally approve his loan modification without regard for the HAMP requirements.
In Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, we recognized a cause of action for negligence for the failure to exercise reasonable care in the review of an application for a loan modification. (Id. at p. 944) But we were careful to distinguish the allegations in that case from the cases that hold a lender owes no common law duty to a borrower to offer, consider or approve a loan modification. (Id. at p. 946, discussing Lueras v. BAC Home Loans Servicing, L.P. (2013) 221 Cal.App.4th 49.) Here, Rufini's negligent review claim fails for two reasons. His opening brief argues that CitiMortgage negligently rejected his tender of modified loan payments in spite of approval of his permanent loan modification. Nothing in this record demonstrates that CitiMortgage ever approved a HAMP modification. So, this claim is untenable and without evidentiary support. Moreover, any breach of the duty of care by CitiMortgage must have been the actual or proximate cause of Rufini's loss. (See Id. at p. 944.) Rufini was not denied a HAMP modification because CitiMortgage did not review his application with care. He was denied the modification because he could not demonstrate the Sunset Way property was owner-occupied and his primary residence as required under HAMP.
Rufini's remaining two causes of action under Business and Professions Code section 17200 and RICO also fail. Rufini's section 17200 cause of action for an unfair or unlawful business practice is wholly derivative of the claims and conduct alleged in his other causes of action and fails for the same reason as his other causes of action. So, too are the operative facts alleged in his civil claim brought under RICO. Since CitiMortgage acted within legal guidelines and directives in denying his loan modification, Rufini cannot establish that his injury was caused by a racketeering activity as proscribed under federal law. "The activity underlying plaintiff's claims was a simple loan transaction and foreclosure under a deed of trust. This is not the kind of unlawful activity contemplated by the Civil RICO Act." (Johnson v. Wachovia Bank FSB (E.D. Cal. 2012) 2012 WL 4092426 at *1, fn. 2.)
II. Appeal No. 149410
Unless authorized by statute or a written agreement, attorney's fees are not ordinarily recoverable as costs. (Lerner v. Ward (1993) 13 Cal.App.4th 155, 158 (Lerner).)
Civil Code section 1717 states in relevant part that: "(a) In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs. [¶] Where a contract provides for attorney's fees, as set forth above, that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract. [¶] Reasonable attorney's fees shall be fixed by the court, and shall be an element of the costs of suit. [¶] (b) (1) The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract."
When a cause of action based upon a contract containing an attorney's fees provision is joined with other causes of action beyond the contract, the prevailing party may recover fees only as they relate to the contract action. (Lerner, supra, 13 Cal.App.4th at p. 159.) But fees need not be apportioned when incurred on an issue common to both a contract cause of action in which fees are proper and one in which they are not allowed. There may be situations where the claims for relief are so intertwined that it is " 'impracticable, if not impossible, to separate the attorney's time into compensable and noncompensable units.' " (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1178 (Hjelm).)
"Finally, and fundamentally, 'California courts liberally construe the term " ' "on a contract" ' " as used within section 1717. [Citation.] As long as the action "involve[s]" a contract it is " 'on [the] contract' " within the meaning of section 1717." (Hjelm, supra, 3 Cal.App.5th at p. 1168.)
An award of attorney's fees is a matter committed to the sound discretion of the trial court. (Lerner, supra, 13 Cal.App.4th at p. 158.) " 'In resolving a motion for attorney fees, the [trial] court should consider the pleaded theories of recovery, the theories asserted and the evidence produced at trial, if any, and also any additional evidence submitted on the motion in order to identify the legal basis of the prevailing party's recovery.' " (Ibid.) Absent a manifest abuse of discretion, a trial court fee award will not be disturbed on appeal. (Ibid.)
Here, the deed of trust provided that CitiMortgage was entitled to recover reasonable attorney's fees in defending any decision to declare a default under the deed of trust or accelerate the amount due. The decision to declare a default of Rufini's loan and accelerate the amount due is precisely what he argued breached the covenant of good faith and fair dealing. Rufini correctly acknowledges that his claim for breach of the covenant of good faith and fair dealing is a claim founded in contract. (See Smith v. Home Loan Funding, Inc. (2011) 192 Cal.App.4th 1331, 1337.) Although, it is only one of seven causes of action alleged in his amended complaint, it provided the basis for a fee award, and all of his allegations of wrongdoing center on CitiMortgage's action to accelerate his loan and foreclose on the Sunset Way property. In awarding fees, the court reduced the amount sought by CitiMortgage by approximately half to $60,000. On this record we will not conclude the fee award was an abuse of discretion.
The trial court determined that "at least some of the Plaintiff's causes of action arose out of contract," and that "a portion of the requested attorney's fees and costs were reasonably incurred by Citi[Mortgage] in connection with its defense of such causes of action." That is all that is required. "[A] ruling on a fee motion does not require judicial explanation or a statement of decision." (Hjelm, supra, 3 Cal.App.5th at p. 1178.)
DISPOSITION
The judgment and order awarding attorney's fees are affirmed.
/s/_________
Siggins, J. We concur: /s/_________
McGuiness, Acting P.J. /s/_________
Jenkins, J.
Retired Presiding Justice of the Court of Appeal, First Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.