NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSC11-00671)
Cross-complainant David Dold appeals the entry of summary judgment against him on his sole cause of action requesting declaratory relief concerning the seniority of his alleged security interest in a one million dollar promissory note. He contends the trial court erred in concluding the deed of trust creating his security interest was invalid because it was never delivered. We affirm the summary judgment ruling on the alternate ground that, as argued by respondent, Dold's security interest was time-barred, and thus in effect extinguished. That is an issue cross-defendant and respondent raised both below and again on appeal, but Dold declined to address in the briefing.
This action was commenced in March 2011, when Patricia O'Brien brought suit against Dold and others in connection with a $1 million deed of trust recorded on October 5, 2005, against a property she and her husband, Carl Miller, owned in Orinda, California and naming Dold as the beneficiary. O'Brien sought to enjoin foreclosure proceedings the trustee had commenced and she also sought cancellation of the deed of trust on various grounds, alleging it was invalid because Dold never paid the $1 million in consideration it identified, her signature on it had been forged and, in any event, the $1 million debt it purportedly secured had been paid off. In addition, she asserted a number of related tort and statutory claims, and sought declaratory relief that another lender's deed of trust recorded against the property later in time, in favor of Washington Mutual Bank FA (WaMu), occupied a senior lien position.
The three other named defendants were the trustee, Medallion Silver LLC, and its foreclosure agent, Medallion Servicing LLC, and an individual, Brenda Diles, alleged to have improperly notarized the deed of trust bearing O'Brien's signature.
Dold cross-complained against O'Brien and Miller, both individually and in their capacities as trustees of the living trust into which O'Brien and Miller had allegedly transferred the property, and also against JPMorgan Chase Bank, NA (Chase) as successor under the later recorded WaMu deed of trust. He asserted a single cause of action for declaratory relief, seeking a determination that the $1 million debt "remains secured by the lien of the Dold Deed of Trust on the Property and that the Dold Deed of Trust is in first priority position on the Property prior to and superior to the [WaMu] Deed of Trust." Chase filed a cross-complaint against Dold, principally seeking declaratory relief that the Dold deed of trust is void and/or unenforceable and/or paid off and, conversely, that the WaMu deed of trust is valid and is senior to all other deeds of trust secured by the property, and in the alternative requesting the imposition of a $1.4 million equitable lien against the property for the amounts it had funded to pay off senior lienholders for taxes, liens, and encumbrances, when the loan secured by the WaMu deed of trust was funded.
The cross-complaint was filed on April 21, 2011, and the operative first amended complaint on August 30, 2011.
Thereafter, Chase moved for summary judgment on Dold's cross-complaint for declaratory relief and, reaching only one of six grounds asserted, the trial court granted its motion. The court ruled the deed was invalid as a matter of law because it had not been delivered. (See, e.g., 3 Miller & Starr, Cal. Real Estate (4th ed. Dec. 2016 update) Deeds and Descriptions, § 8:41 ["A deed does not transfer title to the grantee until it has been legally delivered. Ordinarily, a deed that has not been delivered is void and completely ineffective. In the absence of estoppel, it cannot be enforced by the grantee or by any bona fide purchaser or encumbrancer from the grantee"], fns. omitted.)
Chase's cross-complaint against Dold was dismissed without prejudice, and this timely appeal from the resulting judgment followed.
On review of a summary judgment order, our standard of review is de novo. (Dammann v. Golden Gate Bridge, Highway and Transportation Dist. (2012) 212 Cal.App.4th 335, 340.) We are not bound by the trial court's stated reasons and must affirm a summary judgment ruling if it is correct on any ground asserted in the trial court. (See ibid.; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 181.)
The sole issue Dold raises in his opening brief is that the trial court erred in concluding the deed had not been legally delivered. We do not reach that issue because the judgment can be affirmed on the more straightforward alternative ground, as raised by Chase below and argued by Chase in its respondent's brief, that Dold's cross-complaint for declaratory relief is time-barred. Dold filed no appellant's reply brief, and we could deem his silence on this issue as a concession. (See Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1072 (Flores) [conclusion that error was harmless is "a conclusion that plaintiffs appear to have conceded given their omission of any reference to the matter in their reply brief"].) Nevertheless, we proceed to address this question briefly.
In light of this ruling it is unnecessary for us to decide the other issues raised by Chase, including whether this loan was a "sham" and/or was paid off and extinguished.
The relevant facts are undisputed. The note secured by the Dold deed of trust provides that " 'all sums of principal and interest then remaining unpaid shall be due and payable in full' " on September 15, 2005. Dold acknowledged in deposition testimony that as of that date, the borrowers were in default. This action was commenced more than five years later, on March 25, 2011, in which Dold filed a cross-complaint alleging he was owed $710,000 in principal and more than $400,000 in interest.
Chase argues Dold's cross-complaint, even assuming it dates back to the March 25, 2011 commencement of this action, is time-barred. It contends that breach of the promissory note was governed by the four-year statute of limitations applicable to contract actions, and Dold did not argue otherwise either below or in his appellate briefing. (See Code Civ. Proc., § 337, subd. (1) ["Within four years: 1. An action upon any contract, obligation or liability founded upon an instrument in writing . . . "].)
Below, Dold opposed this aspect of the summary judgment motion on the sole ground there was an agreement to extend the note's maturity date. His argument on this issue in full consisted of a single sentence, supported by no authority: "The obligation by its initial terms required payment in September of 2005 but in fact because of agreements between the borrower and lender the payments were delayed by agreement with the debt being acknowledged and delay being by agreement with the creditor and debtor. David Dold's declaration makes this clear." That theory was based on Dold's statement in a declaration: "It is true that the note identifies that the balance due was due on September 15, 2005. In 2005, 2006, 2007 and 2008 I had a number of conversations with Carl Miller about when he was going to pay back this debt. He asked me on several occasions if I could defer full payment and asked if I would accept continuing interest payments. I was agreeable to allowing later payments."
Assuming without deciding this declaration raised at least a triable fact as to the existence of an oral agreement, it was legally immaterial, because Code of Civil Procedure section 360.5 bars oral waivers of limitations periods. It provides: "No waiver shall bar a defense to any action that the action was not commenced within the time limited by this title unless the waiver is in writing and signed by the person obligated." (Code Civ. Proc., § 360.5, italics added.) Moreover, the decision Chase cites, Lombardi v. Tranchina (1954) 129 Cal.App.2d 775, supports its position that once an obligation has become due and payable, an oral agreement to forbear or accept later payment does not "toll the statute or start it running anew." (Id. at p. 777; see also Butt v. Burkett (1937) 18 Cal.App.2d 612, 614 [to take case out of statute of limitations, acknowledgement of debt or promise to pay on account must be in writing and signed]; Code Civ. Proc., § 360.) Dold cited no contrary authority below, and on appeal has failed altogether to address the issue. Thus, he has not met his burden as appellant to demonstrate a different rule should apply.
Chase also tells us in its brief that "[d]uring oral argument . . . Dold argued for the first time that his cross-complaint was not time-barred because the power of sale in the Dold Deed of Trust had a longer statute of limitations than the four year limitations applicable to contract claims, citing Nicolopulos v. Superior Court (2003) 106 Cal.App.4th 304 [Nicolopulos]." And Chase proceeds, then, to discuss this issue briefly. We need not consider the question at all, though, because Dold has not made this argument on appeal despite having the opportunity to do so, at the very least in a reply brief. We are not required to address a point of law the appellant has not raised. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1372.) In addition, Dold elected to proceed on appeal without a reporter's transcript of the hearing, and so the appellate record does not reflect that Dold even raised this issue below. That is a further reason to deem the point forfeited.
In addition to the issue having been forfeited, it appears to us Chase is right. Chase argues that even if, under Nicolopulos, Dold's power of non-judicial foreclosure under the Dold deed of trust is not time-barred, "the non-judicial power of sale is not the subject of Dold's first amended cross-complaint." Rather, all that Dold has sought in his cross-complaint against Chase is a judicial declaration that the outstanding balance on the debt owed to him is $710,000 and that his security interest is valid and senior to Chase's. Although, as Nicolopulos and other authority it cites make clear, a non-judicial power of sale under a deed of trust may be exercised for up to 10 years, and sometimes as long as 60 years, after the date of a debt's maturity under Civil Code section 882.020 because "the running of the statute of limitations does not extinguish a power of sale conferred on a trustee by a deed of trust," it is equally clear under those authorities that judicial enforcement of a time-barred secured debt cannot be had. (See Nicolopulos, supra, 106 Cal.App.4th at pp. 309-311; Miller v. Provost (1994) 26 Cal.App.4th 1703, 1708; Civ. Code, § 882.030; see also Civ. Code, § 2911 ["[a] lien is extinguished by the lapse of time within which, under the provisions of the Code of Civil Procedure, . . . [¶] 1. An action can be brought upon the principal obligation"]; Ung v. Koehler (2005) 135 Cal.App.4th 186, 194 [power of sale is not a "lien" that expires under Civil Code section 2911].) What is more, as explained by subsequent authority following Nicolopulos, Civil Code section 882.030 "automatically remov[es] the cloud on title otherwise created by a recorded but expired security interest." (Ung, at p. 197.) It "precludes enforcement of the security interest that has been statutorily extinguished." (Id. at p. 196.) In sum, as stated by a leading commentator, "[t]he mere expiration of the period of limitations on the underlying debt does not bar the exercise of the power of sale of a deed of trust," but "after the expiration of certain time periods there is a statutory termination of the right of the beneficiary to enforce the security." (5 Miller & Starr, Cal. Real Estate (4th ed. December 2016 update) Deeds of Trust and Mortgages, § 13:165.)
That section states in relevant part: "Expiration of the lien of a mortgage, deed of trust, or other security interest pursuant to this chapter or any other statute renders the lien unenforceable by any means commenced or asserted thereafter and is equivalent for all purposes to a certificate of satisfaction, reconveyance, release, or other discharge of the security interest, and execution and recording of a certificate of satisfaction, reconveyance, release, or other discharge is not necessary to terminate or evidence the termination of the security interest." (Civ. Code, § 882.030.) --------
Dold cites no authority that Civil Code section 2911's time-bar on judicial enforcement of an expired security interest (see Nicolopulos, supra, 106 Cal.App.4th at p. 309) does not extend to a judicial action requesting declaratory relief concerning the alleged validity of that expired security interest. And California Supreme Court authority cited in Nicolopulos suggests it is. (See Flack v. Boland (1938) 11 Cal.2d 103, 105 ["Although the statute of limitations does not run against the power of sale in a deed of trust [citations], the limitation of the statute does apply to the commencement of actions [citation], including actions for the foreclosure of mortgages, and commences to run upon the maturity of the obligation"], italics added.) We treat any such argument as abandoned by Dold, "since it is counsel's duty by argument and citation of authority to show in what respects rulings complained of are erroneous . . . ." (Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265.) We therefore affirm the summary judgment ruling on the ground that Chase has shown Dold's cross-complaint to be time-barred and Dold has conceded the issue or abandoned and/or forfeited any argument to the contrary.
The judgment is affirmed. Respondent shall recover its costs on appeal.
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________