Law Offices of Anthony N. Ehiemenonye and Anthony N. Ehiemenonye for Plaintiff and Appellant. Bryan Cave, Glenn J. Plattner and Richard P. Steelman, Jr., for Defendants and Respondents JP Morgan Chase Bank, N.A.; California Reconveyance Company; Mortgage Electronic Registration Systems, Inc.; and U.S. Bank National Association, as trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2 Asset Backed Pass-Through Certificates, Series 2006-WMC2. Anderson, McPharlin & Conners and William R. Larr for Defendants and Respondents Juan Moreno and Guillermina Moreno.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC1304784) APPEAL from a judgment of the Superior Court of Riverside County, John D. Molloy, Judge. Affirmed. Law Offices of Anthony N. Ehiemenonye and Anthony N. Ehiemenonye for Plaintiff and Appellant. Bryan Cave, Glenn J. Plattner and Richard P. Steelman, Jr., for Defendants and Respondents JP Morgan Chase Bank, N.A.; California Reconveyance Company; Mortgage Electronic Registration Systems, Inc.; and U.S. Bank National Association, as trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2 Asset Backed Pass-Through Certificates, Series 2006-WMC2. Anderson, McPharlin & Conners and William R. Larr for Defendants and Respondents Juan Moreno and Guillermina Moreno.
Karolyn Flannigan defaulted on her home loan payments and seeks to set aside a nonjuducial foreclosure. In her third amended complaint, she alleged, inter alia, that the assignments of a deed of trust securing the real property and the substitution of a trustee were void and that numerous statutory requirements pertaining to the foreclosure were violated. Flannigan sought rescission of the foreclosure sale, damages, and other relief.
Flannigan's former home was purchased at a foreclosure sale by Onuldo, Inc. (Onuldo). Onuldo subsequently sold the subject home to Juan and Guillermina Moreno (together Morenos). On November 26, 2013, the superior court sustained Onuldo's demurrer to the third amended complaint without leave to amend. On December 20, 2013, the superior court also sustained without leave to amend the demurrers of the Morenos as well as other defendants. Flannigan appealed the ensuing judgments.
On July 29, 2015, we issued a nonpublished opinion, affirming the superior court's judgments. (Flannigan v. Onuldo, Inc. (July 29, 2015, D067447) (Flannigan I) review granted, Oct. 28, 2015, S229113.) However, our high court granted Karolyn Flannigan's petition for review and deferred briefing pending its consideration and disposition of the following issue in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919 (Yvanova): " 'In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?' " (Id. at p. 926.)
In Yvanova, the Supreme Court resolved the split between the Courts of Appeal when it held a borrower has standing to challenge the validity of a preforeclosure assignment of a note and deed of trust as void, as opposed to merely voidable. (Yvanova, supra, 62 Cal.4th at p. 924.) As a result, our high court transferred Flannigan's case to this court with directions to vacate our previous opinion and to reconsider the cause in light of Yvanova. We did so, ultimately remanding the matter back to superior court to consider defendants' demurrers to the third amended complaint in light of the Supreme Court's guidance in Yvanova. (See Flannigan v. Onuldo, Inc. (June 8, 2016, D067447) [nonpub. opn.] (Flannigan II).)
After allowing additional briefing from the parties, the superior court again sustained demurrers to the third amended complaint and entered judgment in favor of defendants. Flannigan appeals, contending the superior court erred in sustaining the demurrers and entering judgment in favor of defendants J.P. Morgan Chase Bank, N.A. (Chase), California Reconveyance Company (CRC), Mortgage Electronic Registration Systems, Inc. (MERS), and U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2 Asset Backed Pass-Through Certificates, Series 2006-WMC2 (U.S. Bank, Trustee) (Chase, CRC, MERS, and U.S. Bank, Trustee collectively Entity Defendants), and the Morenos.
" 'MERS is a private corporation that administers the MERS System, a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans. Through the MERS System, MERS becomes the mortgagee of record for participating members through assignment of the members' interests to MERS. MERS is listed as the grantee in the official records maintained at county register of deeds offices. The lenders retain the promissory notes, as well as the servicing rights to the mortgages. The lenders can then sell these interests to investors without having to record the transaction in the public record. MERS is compensated for its services through fees charged to participating MERS members.' [Citation.] 'A side effect of the MERS system is that a transfer of an interest in a mortgage loan between two MERS members is unknown to those outside the MERS system.' [Citation.]" (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1151 (Gomes).) In other words, the promissory notes "may . . . be transferred among members without requiring recordation in the public records." (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 267 (Fontenot).) Flannigan contends here MERS was a suspended corporation in November 2004. However, the exhibit to Flannigan's operative complaint allegedly showing this suspension is for a similarly named, but altogether different, entity: "Mortgage Electronic Registration System, Inc." (not "Systems, Inc.," which is MERS).
Flannigan named other defendants in the third amended complaint, but none of those other defendants are part of this appeal.
In addition, Flannigan asserts the superior court erred in finding Flannigan's discovery motion were moot. We find none of Flannigan's claims has merit. Accordingly, we affirm.
Because the operative complaint remains the third amended complaint, we repeat our previous discussion of the pleaded facts as set forth in Flannigan I, supra, D067447.
"[Flannigan] in July 2005 purchased a home located in Moreno Valley, California (subject property). [Flannigan] in March 2006 refinanced the loan on the subject property through WMC Mortgage Corp. (WMC). The refinanced loan was in the amount of $382,500 (loan) and was secured by a deed of trust (DOT). In addition to identifying WMC as the lender, the DOT identified Westwood Associates as the trustee, MERS, acting as nominee for the lender and as the beneficiary, and plaintiff as the trustor. The record shows the DOT was recorded in early April 2006 with the Riverside County Recorder's Office, instrument No. 2006-0237528.
"The record shows all documents involving the subject property were in fact recorded in the Riverside County Recorder's Office."
"[Flannigan] defaulted on the loan. As a result, on January 24, 2007, a notice of default and election to sell was recorded, instrument No. 2007-0054476. This notice of default indicated [Flannigan] was then in arrears in the amount of about $12,333.
"An assignment of the DOT was recorded on March 16, 2007, instrument No. 2007-0182703. This assignment references 'US Bank, National Association' as the assignee. As discussed post, this assignment should have stated the entire trust name of the securitized trust, as described in the September 27, 2012 corrective corporate assignment of deed of trust.
"In any event, on October 22, 2007, a substitution of trustee was recorded, instrument No. 2007-0649482. Chase, as attorney-in-fact for U.S. Bank, National Association, substituted First American Loanstar Trustee Services for Westwood Associates.
"When the default was not cured, a notice of trustee's sale was recorded, instrument No. 2007-0659136. This notice provided the total unpaid balance was about $438,756. On May 23, 2008, a trustee's deed upon sale was recorded, instrument No. 2008-0280457. However, on June 11, 2008, a notice of rescission of the trustee's sale and the trustee's deed upon sale was recorded, instrument No. 2008-0318775, as a result of the parties' attempts to modify the loan so that plaintiff could retain the subject property.
"[Flannigan] again defaulted on the loan. As a result, a second notice of trustee's sale was recorded on November 10, 2008, instrument No. 2008-0595023. This notice provided the total unpaid balance due and owing on the loan was about $466,951. However, a notice of rescission of declaration of default and demand for sale was recorded on January 9, 2009, instrument No. 2009-0010254. Less than a week later, a second notice of default was recorded, instrument No. 2009-0019529, after the parties were again unable to reach any agreement to modify the loan. This notice of default provided that the amount in arrears was about $68,000 and that plaintiff was in breach of the obligations secured by the DOT because the installment of principal and interest due on '01/01/2007 and all subsequent installments, together with late charges,' had not been made.
"On April 16, 2009, a notice of trustee's sale was again recorded, instrument No. 2009-0186248. The notice set the sale for May 6, 2009.
"With the foreclosure completed, a trustee's deed upon sale was recorded on May 12, 2009, instrument No. 2009-0236841. However, once again a notice of rescission of the trustee's sale and of the trustee's deed upon sale was recorded, this time on May 20, 2009, instrument No. 2009-0253661. This notice of rescission provided in part:
" '2. On January 15, 2009, [the trustee] LOANSTAR commenced a foreclosure proceeding against the Property pursuant to the power of the sale contained in the Security Instrument by recording a Notice of Default and Election to Sell Under Deed of Trust as instrument No. 2009-0019529 in the office of RIVERSIDE County Recorder. More than three months later, on April 16, 2009, LOANSTAR recorded a Notice of Trustee's Sale as Instrument No. 2009-0186248 . . . stating its intent to sell the Property at public auction on May 06, 2009. On that date, LOANSTAR sold the Property to U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 for the total sum of $116,010.68. A Trustee's Deed Upon Sale was thereafter issued in favor of U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 and was recorded on May 12, 2009 as Instrument No. 2009-0236841. . . .
" '3. Before the sale was held, the current beneficiary approved the Trustors for a legally binding and enforceable agreement to modify the repayment terms of the loan and to thereby reinstate the default upon which the foreclosure proceeding was based, thereby divesting the power of sale pursuant to which LOANSTAR was purportedly acting when the Trustee's Sale was purportedly held and the Trustee's Deed Upon Sale was issued. Accordingly, the Trustee's Sale and the resulting Trustee's Deed Upon Sale were and are null, void and legally ineffective to transfer all or any interest in the Property. . . .
" 'NOW THEREFORE, by the recordation of this Notice of Rescission of Trustee's Sale and Trustee's Deed Upon Sale, the undersigned, as duly substituted trustee under the aforesaid deed of trust, does hereby rescind that certain Trustee's Deed Upon Sale recorded on May 12, 2009 . . . as though said instrument had never been executed . . . and the purported Trustee's Sale . . . had never been held.'
"On October 25, 2010, a notice of rescission of the declaration of default was recorded, instrument No. 2010-0509215. The October 25 notice of rescission in part provided the beneficiary rescinded the default and demand for sale, but that it was understood 'that this rescission shall not in any manner be construed as waiving or affecting any breach, or default—past, present or future under said Deed of Trust, or as impairing any right or remedy thereunder, but is, and shall be deemed to be, only an election, without prejudice, not to cause a sale to be made pursuant to said Declaration and Notice. . . .
"A corporate assignment of deed of trust was recorded on March 7, 2012, instrument No. 2012-0106142. This assignment identified U.S. Bank National Association, as trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2, as the assigned beneficiary.
"On July 20, 2012, a second substitution of trustee was recorded, instrument No. 2012-0340020. This document substituted CRC (i.e., California Reconveyance Company) as the trustee under the DOT. Also on July 20, 2012, a third notice of default was recorded, instrument No. 2012-0340024. This notice of default provided [Flannigan] was in arrears on the loan in the amount of about $224,692. This notice further provided that upon request, the beneficiary would provide a written itemization of the entire amount owed and that the beneficiary and homeowner could agree in writing for 'additional time in which to cure the default' or otherwise 'establish a schedule of payments' to cure such default.
"The record shows on September 27, 2012, CRC as trustee recorded a notice of rescission of declaration of default and demand for sale, instrument No. 2012-0461444. Also on September 27, a corporate assignment of deed of trust was recorded, instrument No. 2012-0461445. As note[d] ante, this assignment provided it was being 'recorded to correct the Assignee from the Corporate Assignment of Deed of Trust recorded on March 16, 2007 with instrument number 2007-0182703.'
"CRC on September 27 also recorded a notice of default, the fourth, instrument No. 2012-0461446. This notice of default provided plaintiff was in arrears under the loan in the amount of about $167,279. CRC on December 28, 2012 recorded a notice of trustee's sale, the fourth, instrument No. 2012-0633708. This notice of trustee's sale provided the sale of the real property would take place on January 18, 2013.
"On February 27, 2013, a trustee's deed upon sale was recorded, instrument No. 2013-0097392. This trustee's deed upon sale provided the subject real property was sold at public auction on February 20, 2013, with the grantee Onuldo being the highest bidder. Onuldo in April 2013 initiated an unlawful detainer action against [Flannigan]. Judgment for possession only was awarded in favor of Onuldo. Thereafter, Onuldo successfully moved to expunge the lis pendens [Flannigan] had recorded on the subject property and sold the subject real property to the Morenos."
Flannigan appealed the judgment in the unlawful detainer action. On May 12, 2014, the Appellate Division of the Riverside County Superior Court (Appellate Division) affirmed the judgment of the trial court in the unlawful detainer action, noting that Flannigan did not establish during the trial that there was no authority to foreclose.
DEMURRER TO THIRD AMENDED COMPLAINT
Following our remand of this matter back to superior court in the wake of our high court's opinion in Yvanova, supra, 62 Cal.4th 919, the superior court permitted defendants to file renewed demurrers to address Yvanova and Flannigan II. The Entity Defendants and the Morenos filed renewed demurrers to the third amended complaint as well as requests for judicial notice. Flannigan opposed the demurrers and requests for judicial notice to which the Entity Defendants and the Morenos filed replies.
After hearing oral argument and considering the pleadings in support of and opposition to the demurrers, the superior court sustained the demurrers without leave to amend and granted the requests for judicial notice. The court subsequently entered judgment.
Flannigan timely appealed.
B. Flannigan's Contentions
In the third amended complaint, Flannigan alleged 12 causes of action, 11 of which are at issue in this appeal. In her opening brief, she asserts, "[a]ll elements of Quiet Title and all other causes of action have been properly pleaded; incorporating the information contained in Motions to Deem RFAs Admitted [citation], suffices to augment, supplement and/or complement any perceived deficiency." However, Flannigan does not identify the other causes of action, discuss their respective elements, or explain how she has or can allege the required facts. Instead, she merely incorporates portions of the record by general reference and insists that argument is sufficient. It is not.
"Appellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.]' " (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) "We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived." (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 (Falcone).) Here, Flannigan merely asserts that she has properly pled all causes of action without explaining how she has done so. We summarily reject this assertion and conclude she has waived any argument as to the specific allegations of the elements of the causes of action in the third amended complaint. Instead, we will focus on the two legal arguments she raises regarding the demurrers to the third amended complaint. First, Flannigan claims that the court erred in concluding the judgment in the unlawful detainer action had a preclusive effect on the allegations in the third amended complaint. Second, she claims she properly alleged that certain recorded documents were void, and as such, she had standing to pursue her claim that the subject nonjudicial foreclosure was wrongful. We reject these contentions.
In her reply brief, Flannigan finally attempts to address the elements of some of her causes of action. Any new substantive arguments raised by Flannigan in her reply brief are deemed forfeited. (See REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 [refusing to entertain argument raised for the first time in reply brief]; American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453 [noting arguments "raised first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument"].)
C. Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865 (City of Dinuba).) "When reviewing a judgment dismissing a complaint after a successful demurrer, we assume the complaint's properly pleaded or implied factual allegations are true . . . ." (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)
"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ. Proc., § 452.) "Reversible error is committed if the facts alleged show entitlement to relief under any possible legal theory." (Duggal v. G.E. Capital Communications Services, Inc. (2000) 81 Cal.App.4th 81, 86.)
"[W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse." (City of Dinuba, supra, 41 Cal.4th at p. 865.) In reviewing the sustaining of a demurrer, we review the trial court's result for error, and not its legal reasoning. (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.)
D. The Unlawful Detainer Judgment
Under the res judicata doctrine, a party is barred from relitigating "the same cause of action in a second suit between the same parties or parties in privity with them." (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Under the collateral estoppel doctrine, a party is precluded from relitigating an issue already decided in a prior litigation even if the causes of action were different. (Ibid.; Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) These doctrines " ' "promote judicial economy by minimizing repetitive litigation, . . . prevent inconsistent judgments which undermine the integrity of the judicial system, [and] . . . protect against vexatious litigation." ' " (Syufy Enterprises v. City of Oakland (2002) 104 Cal.App.4th 869, 878 (Syufy Enterprises).)
Our Supreme Court has recognized the potential of an unlawful detainer judgment to collaterally estop subsequent litigation: "Applying the traditional rule that a judgment rendered by a court of competent jurisdiction is conclusive as to any issues necessarily determined in that action, the courts have held that subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee's sale are barred by the prior unlawful detainer judgment." (Vella v. Hudgins (1977) 20 Cal.3d 251, 256.) Relying on Vella, state and federal courts have consistently held that a former owner's claims alleging irregularity of title related to a foreclosure sale are barred after an unlawful detainer judgment in favor of the party who purchased the property at the foreclosure sale. (See Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 972-976 (Malkoskie); Hopkins v. Wells Fargo Bank, N.A. (E.D.Cal., May 22, 2013, No. CIV. 2:13-00444) 2013 WL 2253837, pp. *4-*6; Castle v. Mortgage Electronic Registration Systems, Inc. (C.D.Cal., Aug. 16, 2011, No. EDCV 11-00538) 2011 WL 3626560, pp. *6-*11; Dancy v. Aurora Loan Services, LLC (N.D.Cal., Mar. 4, 2011, No. C 10-2602) 2011 WL 835787, pp. *5-*6; Lai v. Quality Loan Service Corporation (C.D.Cal., Aug. 26, 2010, No. CV 10-2308) 2010 WL 3419179, pp. *3-*5.)
" 'The requirements for invoking collateral estoppel are the following: (1) the issue necessarily decided in the previous proceeding is identical to the one that is sought to be relitigated; (2) the previous proceeding terminated with a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party to or in privity with a party in the previous proceeding.' " (Syufy Enterprises, supra, 104 Cal.App.4th at p. 878.)
The requirements of collateral estoppel are met here. The unlawful detainer action determined that Onuldo was entitled to judgment because Onuldo established it was entitled to possession of the property and had duly perfected its title to the property, issues Flannigan has challenged here. The unlawful detainer judgment is final because Flannigan appealed the unlawful detainer judgment, which the Appellate Division affirmed, and she did not seek further review of the Appellate Division's opinion. Moreover, the time in which to seek review has passed thus the unlawful detainer judgment is final. (See Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 974.) And Flannigan was a party to the unlawful detainer action.
The fundamental issue in an unlawful detainer proceeding is the plaintiff's right to possession. (See Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460, 465 (Old National Financial Services, Inc.).) But where, as here, the unlawful detainer action is brought pursuant to Code of Civil Procedure section 1161a, subdivision (b)(3), title also is an issue. This section provides that an unlawful detainer action may be filed "[w]here the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust . . . and the title under the sale has been duly perfected." (Civ. Code, § 1161a, subd. (b)(3).) "Indeed, because the sole basis upon which [Onuldo] asserted its right to possession of the property was its 'duly perfected' legal title obtained in the nonjudicial foreclosure sale, the validity of [Onuldo]'s title had to be resolved in the unlawful detainer action." (Malkoskie, supra, 188 Cal.App.4th at p. 974.)
Malkoskie is instructive. There, the homeowners refinanced with a loan from Home Loans USA, Inc. The deed of trust identified Home Loans as the beneficiary and Premier Trust Deed Services as the trustee. Later, a substitution was recorded evidencing Alliance Title Company as the new trustee as designated by Option One Mortgage Corporation. But there was no recorded substitution showing Option One as the new beneficiary of record with the authority to designate a substituted trustee. (Malkoskie, supra, 188 Cal.App.4th at p. 971.) At a trustee's sale, Wells Fargo acquired the property on a credit bid. Two months later a substitution was recorded acknowledging assignment of the deed of trust to Option One as the new beneficiary and another substitution was recorded evidencing the assignment of beneficiary status from Option One to Wells Fargo. (Id. at pp. 971-972.) The trustee deed upon sale documenting the purchase by Wells Fargo was recorded the same day. Wells Fargo then instituted an unlawful detainer action under Code of Civil Procedure section 1161a, in which the homeowners raised the affirmative defenses that the trustee's sale was invalid due to improper notice and other unspecified " 'irregularities in the sale.' " (Malkoskie, at p. 972.) At the time of trial, the parties agreed to entry of a stipulated judgment in favor of Wells Fargo, and the homeowners were forcibly evicted. (Ibid.)
The homeowners then filed a lawsuit against Wells Fargo and others attacking the authority of the defendants to foreclose, including the claim that the sale was conducted by an improper trustee and therefore no valid title passed to Wells Fargo. Like Flannigan's operative complaint, the homeowners alleged causes of action including quiet title, cancellation of trustee's deed, and declaratory relief. (Malkoskie, supra, 188 Cal.App.4th at p. 972.) The homeowners contended that "the issue of the improper trustee conducting the sale was not embraced by or otherwise resolved by the stipulated judgment such that there is no bar to plaintiffs' claims seeking to undo the foreclosure sale as invalid." (Id. at p. 973.) The court disagreed: "By stipulating to judgment against them, plaintiffs conceded the validity of Wells Fargo's allegations that the sale had been duly conducted and operated to transfer 'duly perfected' legal title to the property. ' "Title is duly perfected when all steps have been taken to make it perfect, i.e., to convey to the purchaser that which he has purchased, valid and good beyond all reasonable doubt . . . [citation], which includes good record title [citation] . . . [.]" [Citation.]' " (Id. at p. 975.)
Like Wells Fargo, Onuldo filed its unlawful detainer action against Flannigan under Code of Civil Procedure section 1161a. And, like Wells Fargo, Onuldo "alleged in its complaint the specific facts it contended established it had perfected legal title to the property, including that the foreclosure sale was conducted in accordance with Civil Code section 2924." (Malkoskie, supra, 188 Cal.App.4th at p. 974.) In the operative complaint here, Flannigan claims that she is the owner of the subject property and alleged the trustee's deed upon sale, on which Onuldo based its claim that it owned the property, is invalid. However, Onuldo's claim to title and possession of the subject property was determined in the unlawful detainer action. It was based on it purchasing the property at a trustee's sale as memorialized in the recorded trustee's deed upon sale. Therefore, the court in the unlawful detainer action necessarily had to find the trustee's deed upon sale valid before it could find in Onuldo's favor. By challenging the validity of the trustee's deed upon sale in the instant action, Flannigan is merely trying to relitigate a resolved issue. (See ibid.)
Although there was no stipulated judgment between Flannigan and Onuldo in the unlawful detainer action, Flannigan, like the homeowners in Malkoskie, challenges the conduct of the foreclosure sale and the validity of the resulting transfer of title to Onuldo. There is no suggestion in the Malkoskie opinion that the particular findings that the proper parties conducted the trustee's sale or that Wells Fargo had valid title were expressly included in the parties' stipulated judgment. The court in Malkoskie concluded that the homeowners' specific "consent to judgment conclusively determined the specific factual contentions embraced by the complaint, namely that Wells Fargo had obtained valid record title pursuant to a nonjudicial foreclosure sale that had been duly conducted pursuant to statute." (Malkoskie, supra, 188 Cal.App.4th at p. 975.)
The same is true here. Through the unlawful detainer action, Onuldo obtained possession of the property because it had obtained a valid record title from the trustee's sale. Indeed, the Appellate Division, in affirming the judgment of the trial court, noted:
"In this action, Onuldo moved to evict Flannigan from the property under Code of Civil Procedure section 1161a, subdivision (b)(3). This requires Onuldo to prove that the property ' "duly sold in accordance with Section 2924 of the Civil Code" and that "title under the sale has been duly perfected." ' (Seidell v. Anglo-California Trust Co. (1942) 55 Ca1.App.2d 913, 920, original italics.) Proper service of a notice to quit is also an essential element of an action in unlawful detainer after a nonjudicial foreclosure. (Code of Civ. Proc., § 1161a, subd. (b)(3).)
" 'A nonjudicial foreclosure sale is accompanied by a common law presumption that it "was conducted regularly and fairly." This presumption may only be rebutted by substantial evidence of prejudicial procedural irregularity. [Citation.] The "mere inadequacy of price, absent some procedural irregularity that contributed to the inadequacy of price or otherwise injured the trustor, is insufficient to set aside a nonjudicial foreclosure sale. [Citations.]" [Citations.] It is the burden of the party challenging the trustee's sale to prove such irregularity and thereby overcome the presumption of the sale's regularity.' (Melendrez v. D & I Investment, Inc. (2005) 127 Ca1.App.4th 1238, 1258.) In addition, under section 2924, subdivision (c), there is a conclusive statutory presumption created in favor of a bona fide purchaser who receives a trustee's deed that contains a recital that the trustee has fulfilled its statutory notice requirements.
"These presumptions affect the burden of producing evidence because they 'implement no public policy other than to facilitate the determination of the particular action in which the[y are] applied.' (Evid. Code, § 603.) Therefore, the effect of these presumptions is 'to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence.' (Evid. Code, § 604.)
"Here, the minutes from the trial do not indicate which exhibits the trial court considered, merely stating: 'Various documents received by the court, considered and returned to offering party.' The Statement on Appeal, certified by the trial court, states 'At trial, plaintiff presented a certified copy of the trustee's deed upon sale as well as proper notice to quit which was served on the defendant.' Flannigan offers no reason why the trial court could not rely on the trustee's deed upon sale to prove that a sale took place. ([S]ee Fontenot[, supra,]198 Cal.App.4th [at p.] 265.) At the very least, the above-mentioned common law presumption attaches. This means Onuldo could rely on the trustee's deed upon sale to prove the elements of [Code of Civil Procedure] section 1161a, sub[division] (b)(3) unless and until Flannigan produced some evidence rebutting the presumption that the sale had regularly occurred.
"Flannigan argues Onuldo never provided proof that the trustee had authority to conduct the sale. However, given the presumption of regularity, it is Flannigan's duty to establish there was no authority to foreclose. No such evidence is contained in the record."
Despite existing California case law establishing the prescriptive impact of an unlawful detainer judgment on subsequent challenges to a trustee's sale or title to the property as well as the well-reasoned opinion from the Appellate Division, Flannigan nevertheless maintains collateral estoppel is not applicable here. To this end, she insists the unlawful detainer court refused to examine the right of CRC to conduct the trustee's sale, the court had no jurisdiction to adjudicate title to the property, and Onuldo did not request a transcript or written findings of the unlawful detainer trial. We reject these contentions.
Flannigan insists that the unlawful detainer has little prescriptive effect on the issues in the instant action because the trial court would not consider CRC's authority to conduct the trustee's sale. To support her position, Flannigan cites to her proposed statement of appeal where she asserted: "The Honorable Judge Pro Tem also insisted that the Court would not address any issue of the legal authority of CHASE of [sic] CRC to convey the property to Onuldo, Inc." Put differently, Flannigan appears to be arguing that the court in the unlawful detainer action did not consider the validity of the trustee's deed upon sale. However, the essential issue in an unlawful detainer proceeding is the plaintiff's right to possession. (See Old National Financial Services, Inc., supra, 194 Cal.App.3d at p. 465.) Here, where Onuldo's right to possess the property is contingent on the validity of the trustee's deed upon sale, it is axiomatic that the court had to find that document valid. Indeed, on appeal, the Appellate Division found this to be so. Further, it noted that Flannigan did not point to any evidence in the record that CRC did not have authority to conduct the trustee's sale. And Flannigan does not indicate any evidence the Appellate Division might have overlooked. At best, Flannigan emphasizes the self-serving statement in her own proposed statement of appeal of the unlawful detainer judgment that the court did not properly consider CRC's authority to convey the property to Onuldo. In other words, but for this single statement Flannigan made in her appeal, there is no indication in the record that the court in the unlawful detainer action did not consider the validity of the trustee's deed upon sale.
Next, Flannigan attacks the unlawful detainer judgment on the grounds that the court had no jurisdiction to adjudicate title to the property beyond its jurisdictional limits because the property's value surpassed the $25,000 limit of limited civil action. (See Code Civ. Proc., § 86, subd. (a)(5).) The Appellate Division considered this issue as well and found Flannigan's claim without merit for good reason. The plain language of subdivision (a)(4) of section 86 of the Code of Civil Procedure makes it clear that the classification of unlawful detainer actions as limited or unlimited civil cases turns on the amount of damages claimed by the plaintiff. In the subject unlawful detainer action, Onuldo's complaint included a claim for damages in the amount of $50 per day, running from the date of the expiration of the three-day notice to vacate. The damages available to unlawful detainer plaintiffs are limited to those damages that directly result from the tenant's unlawful detention and which accrue during that unlawful detention. (Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 748; Glendale Federal Bank v. Hadden (1999) 73 Cal.App.4th 1150, 1153; see Code Civ. Proc, § 1174, subd. (b).) Thus, the court could have awarded Onuldo a total of $2,200 in damages. Because Onuldo's claim for damages did not exceed $25,000, that case was properly classified as a limited civil action. (See Code Civ. Proc., § 86, subd. (a)(5).) Accordingly, the fact that unlawful detainer case was tried in a limited court does not impact the prescriptive impact of that judgment.
The three-day notice to quit expired February 25, 2013. The trial court entered judgment in the unlawful detainer action on April 10, 2013.
Finally, there is no requirement that a plaintiff in an unlawful detainer action request a written statement of decision or obtain a transcript of the trial as a prerequisite to apply collateral estoppel. We thus find no merit in this argument as well.
Flannigan urges this court to follow Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150 to conclude collateral estoppel does not apply. That case is not instructive as it did not involve an unlawful detainer judgment, but instead, a final judgment of dismissal of prejudice after a general demurrer had been sustained with leave to amend and the plaintiffs did not amend. (Id. at p. 1165.)
In summary, because Flannigan's claims here are premised on the alleged invalidity of the trustee's sale, we conclude that Flannigan is collaterally estopped from asserting any such claim in her operative complaint. The issues were finally determined and are established as a matter of law in the underlying unlawful detainer judgment as affirmed by the Appellate Division.
E. Flannigan's Standing to Challenge the Trustee's Sale
Even if we were to determine that the judgment in the unlawful detainer action did not collaterally estop Flannigan from alleging valid claims in the third amended complaint, we nonetheless would affirm the judgment because Flannigan lacks standing to challenge the foreclosure here. As we explain below, Flannigan has not alleged, and does not claim that she can properly allege, any of the critical recorded documents are void.
In Yvanova, supra, 62 Cal.4th 919, our high court concluded that, where an assignment of a deed of trust is void, as opposed to being merely voidable, "[a] foreclosed-upon [home loan] borrower" (id. at p. 937) "has standing to claim a nonjudicial foreclosure was wrongful" (id. at p. 942). This is "because an assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void, depriv[es] the foreclosing party of any legitimate authority to order a trustee's sale." (Id. at pp. 942-943.)
The California Supreme Court disapproved of Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497; Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75; Fontenot, supra, 198 Cal.App.4th 256; and Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495 (Herrera) only to the extent that they held borrowers lack standing to challenge an assignment of the deed of trust as void. (See Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.)
After we remanded the instant matter back to the superior court, that court considered the renewed demurrers in light of Yvanova, supra, 62 Cal.4th 919 and sustained the subject demurrers without leave to amend. Flannigan claims the court erred, summarizing its argument as follows: "[a]ll recorded documents, including the Notices of Default, Election to Sell, Assignments, etc. [citation] by CRC/CHASE were all unlawful, invalid and void, since CRC was not duly appointed as trustee and MERS did not have authority, right or interest to convey and neither did MERS act or issue any of the three assignments[.]" Alternatively stated, Flannigan argues CRC was not authorized to hold the trustee's sale and MERS did not have the authority to assign the DOT. These are substantially similar claims to those that Flannigan made before us on her last appeal prior to the California Supreme Court issuing its opinion in Yvanova. Even after our high court's guidance in that case, what remains lacking in Flannigan's contentions here is the factual and legal basis for rendering any of the critical recorded documents void as opposed to voidable as required by Yvanova to establish standing. (See id. at p. 942.)
For example, in her opening brief, Flannigan asserts the third amended complaint "clearly shows that belated/attempted transfer of the Deed of Trust was one of the numerous violations, engaged by the Defendants/Respondents herein, specifically CHASE and CRC." But Flannigan fails to explain how she has alleged the "numerous violations" resulted in the subject assignments of the DOT being void as opposed to voidable. Instead, she merely cites to her entire 183-page (including exhibits) third amended complaint. It is not our role to review the operative complaint and create Flannigan's arguments for her. (See Falcone, supra, 164 Cal.App.4th at p. 830.) Therefore, this argument is not helpful to us in determining whether Flannigan has properly alleged any of the critical foreclosure related documents are void.
Additionally, Flannigan again takes issue with MERS involvement in the assignment of the DOT. We find no merit to Flannigan's challenge to MERS's role in assigning the DOT.
As summarized ante, the record shows MERS initially assigned the deed of trust in March 2007 to "US Bank, National Association" (U.S. Bank). MERS in March 2012 next assigned the deed of trust to "US Bank National Association, as trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMCS, Asset Backed Pass-Through Certificates, Series 2006-WMC2" . . . . In late September 2012, MERS for a third time, assigned the deed of trust to correct the designation of the assignee as U.S. Bank, Trustee, for the assignment recorded in March 2007, in which the assignee was then designated only as U.S. Bank. Finally, between the second and third assignments of the DOT, the record shows U.S. Bank, Trustee, by and through its attorney-in-fact Chase, substituted CRC as trustee of the DOT.
Flannigan claims that MERS could not assign the DOT from WMC to U.S. Bank because WMC (the original lender) had "dissolved/surrendered its license" and had "relinquished all interests in the note and deed of trust." Yet, a lender's status does not void actions taken by MERS as the nominal beneficiary under a deed of trust. (See Ghuman v. Wells Fargo Bank, N.A. (E.D.Cal. 2013) 989 F.Supp.2d 994, 1003 [holding "because the power of MERS as nominee under the Deed of Trust was not impaired in any way the Lender becoming defunct, there is no basis upon which the subsequent assignment of the Deed of Trust . . . can be found invalid"].) In addition, California courts have noted that MERS has authority to act on behalf of lenders. (See Gomes, supra, 192 Cal.App.4th at pp. 1157-1158 [discussing MERS's authority to act on behalf of a lender]; Herrera, supra, 205 Cal.App.4th at pp. 1504-1505 [rejecting a claim that a defect existed in an assignment of a deed of trust merely because MERS assigned it].) Moreover, we find Flannigan's challenge to MERS's role here all the more perfunctory because the deed of trust Flannigan signed explicitly stated: "Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary . . ., MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender including, but not limited to, releasing and canceling this Security Instrument." Therefore, WMC's status had no impact on the validity of any of MERS's assignments of the DOT.
Without much explanation, relying on Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, Flannigan also challenges "the attempted assignment into the Securitized Trust" as void. Presumably, Flannigan is claiming the subject securitized trust was closed before the subject note was transferred into it. (See id. at p. 1096.) Putting aside the fact that Glaski has been routinely criticized not only as being inconsistent with California's developing foreclosure jurisprudence, but also as incorrectly applying New York law, even if we assume Flannigan is correct that the subject note was assigned to a securitized trust after that trust was closed, the untimely assignment is merely voidable not void. (See Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 815; Yhudai v. IMPAC Funding Corp. (2016) 1 Cal.App.5th 1252, 1259.) Thus, this allegation does not render any of the three assignments void and Flannigan still has not sufficiently alleged standing under Yvanova, supra, 62 Cal.4th 919 to challenge the foreclosure sale here.
(See, e.g., Sandri v. Capital One, N.A. (Bankr. N.D.Cal. 2013) 501 B.R. 369, 374-375 [explaining how Glaski unpersuasively departs from California jurisprudence]; Rajamin v. Deutsche Bank Nat'l Trust Co. (2d Cir. 2014) 757 F.3d 79, 90 [rejecting Glaski as inconsistent with other courts' interpretations of New York statute].)
Flannigan additionally maintains the assignments of the DOT are void because an unauthorized person, robo-signer, and/or nonemployee of MERS signed the assignments. This challenge is not of the moment here. California courts have explicitly rejected similar challenges to recorded documents. (See Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 819 (Mendoza) [" '[T]o the extent that an assignment was in fact robo-signed, it would be voidable, not void, at the injured party's option.' (Citation.) The bank, not the borrower, would be the injured party."]; Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 46 (Kalnoki) [" ' "As to the robo-signer allegations, there does not appear to be anything about 'robo-signing' the notice of default or the notice of substitution that makes them invalid or ineffective. Even if true, 'robo-signing' does not have any bearing on the validity of the foreclosure process here." ' "].)
In summary, Flannigan has not alleged any authority supporting her claim that the allegations in the third amended complaint rendered any of the assignments of the DOT void thus conferring standing to challenge the foreclosure sale under Yvanova, supra, 62 Cal.4th 919.
Similarly, we are not persuaded by Flannigan's argument that she has sufficiently alleged the substitution of trustee naming CRC as the new trustee is void. Flannigan bases this claim on the allegation that the person who signed the substitution of trustee was not authorized to do so.
Here, the subject substitution of trustee was executed by Colleen Irby, on behalf of "U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage Acquisition Trust 2006-WMC2, Asset Backed Pass-Through Certificates, Series 2006-WMC2 by JPMorgan Chase Bank, National Association, as attorney-in-fact." Further, allegations in the operative complaint support Irby's authority to sign the substitution of trustee. Flannigan alleges that Irby is an employee of CRC. And Flannigan avers that CRC was the agent of U.S. Bank, Trustee, the very entity Irby signed for as attorney-in-fact.
Despite the recorded substitution of trustee and her own allegations, Flannigan offered contradictory allegations in her third amended complaint: "CHASE caused to be filed and recorded another Substitution of Trustee, appointing California Reconveyance Company (A CHASE Subsidiary) as the new Trustee, issued by Colleen Irby, Vice President of J. P. Morgan Chase . . . as attorney-in-fact for U.S. Bank National Association . . . . [Flannigan] reasonably believes that Colleen Irby has never held a position of Vice President with either CHASE nor [sic] with [U.S. Bank] and neither did CHASE have the authority to act as attorney-in-fact for [U.S. Bank] . . . ." Flannigan alleged that Irby is an employee of CRC and CRC is an agent of U.S. Bank National Association. Nevertheless, she subsequently averred Irby did not have authority to sign the substitution of trustee on behalf of U.S. Bank.
Later in the operative complaint, Flannigan further alleged the assignments of the deed of trust to Chase Bank are "invalid and/or void." She claimed a "purported self assignment" of the deed of trust is "unlawful and hence, no legal or equitable authority was derived and the resulting Trustee's Sale is void and invalid." These allegations are not supported by recorded documents attached to the complaint. There is no document showing an assignment of the deed of trust to Chase Bank. Instead, the assignments are to U.S. Bank or U.S. Bank, Trustee. For purposes of considering a demurrer, a court accepts as true facts appearing in exhibits attached to a complaint and give them precedence over any contrary allegations in the pleadings. (Holland v. Morse Diesel Internat., Inc. (2001) 86 Cal.App.4th 1443, 1447; Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627.) Therefore, we disregard Flannigan's allegations that the foreclosure sale was somehow unlawful because of purported assignments of the DOT to Chase Bank. To the extent Flannigan is arguing such assignments somehow void the substitution of trustee naming CRC as the trustee, we summarily disregard that argument as well.
Even if we were to disregard the contrary allegations in the operative complaint and accept as true Flannigan's allegation that Irby did not have authority to sign the substitution of trustee, we still would conclude she has not alleged that particular document is void as opposed to voidable. Her challenge is no different than her similar claim that an unauthorized person, robo-signer, and/or nonemployee of MERS signed the assignments. As we noted ante, California courts have rejected the argument that those allegations, if true, could void the subject recorded documents. (See Mendoza, supra, 6 Cal.App.5th at p. 819; Kalnoki, supra, 8 Cal.App.5th at p. 46.)
Further, with respect to the substitution of trustee, we note that a " 'person authorized to record the notice of default or the notice of sale' " includes "an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee." (Civ. Code, § 2924b, subd. (b)(4); see Civ. Code, § 2924, subd. (a)(1) [providing when a deed of trust expressly grants a power of sale to a trustee, a nonjudicial foreclosure may be initiated by the recording of a notice of default by a "trustee, mortgagee, or beneficiary, or any of their authorized agents"].)
Thus, CRC was at the very least acting as the agent of the prior named trustee when in late September 2012 it recorded a notice of default and election to sell under the DOT and when in late December 2012 it recorded a notice of trustee's sale. (See Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 871 [noting that by statute "the Legislature has permitted the beneficiary of a deed of trust to substitute, at any time, a new trustee for the existing trustee," and noting that once such a document is recorded, " 'the new trustee shall succeed to all the powers, duties, authority, and title granted and delegated to the trustee named in the deed of trust' " and that "[o]ther than by recording a further substitution[,] there are no other statutory means by which the effect of a substitution, once recorded, may be avoided"].)
For these reasons, we agree with the superior court that Flannigan has not sufficiently alleged that the substitution of trustee was void.
Flannigan also contends that the California Homeowner Bill of Rights (HBR), which became effective on January 1, 2013, voids foreclosure. As relevant here, the HBR amended Civil Code section 2924 to provide that "[n]o entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest." (Id., subd. (a)(6).)
Although the notice of default at issue here was recorded in late September 2012—before Civil Code section 2924 became effective, we need not decide whether that statute applies to a foreclosure in 2013. (See Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 [noting that "California courts comply with the legal principle that unless there is an 'express retroactivity provision, a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature . . . must have intended a retroactive application' "].)
Rather, we conclude U.S. Bank, Trustee (through its attorney-in-fact) caused to be recorded a valid substitution of trustee substituting CRC as the trustee under the deed of trust. As the duly substituted trustee, CRC clearly was authorized to commence foreclosure by filing the notice of default.
MOTION TO HAVE REQUESTS FOR ADMISSIONS DEEMED ADMITTED
A. Background and Flannigan's Contentions
After we remanded this matter back to the superior court, Flannigan, on August 26, 2016, filed renewed motions against the Entity Defendants for the court to deem requests for admissions admitted and award Flannigan monetary sanctions. Flannigan's primary argument was that the Entity Defendants did not timely serve verified responses. Specifically, Flannigan contends the Entity Defendants served unverified responses to the requests for admission on December 16, 2013, with "false/invalid" proofs of service. However, Flannigan admits the Entity Defendants served verifications to their responses on January 7, 2014. In addition, on August 18, 2016, the Entity Defendants again served their responses, objections, and verifications to the requests for admissions.
Flannigan originally filed her motion to deem requests for admissions admitted on December 20, 2013. The superior court took the motions off calendar as moot after sustaining the demurrers to the third amended complaint without leave to amend.
The Entity Defendants opposed the renewed motions, arguing they had already served responses, objections, and verifications.
Flannigan's renewed motions were calendared to be heard the same date as the renewed demurrers. However, when the court sustained the demurrers without leave to amend, it deemed Flannigan's discovery motions moot.
Flannigan maintains the court erred in deeming her discovery motions moot after it sustained the demurrers without leave to amend. She argues the requests for admissions she moved to have deemed admitted would "conclusively show" the subject foreclosure was wrongful. In other words, Flannigan insists the court improperly determined her motions were moot because the court would have considered her motions and granted them, which would have defeated the demurrers. However, Flannigan has not offered sufficient authority, argument, or citations to the record to support her position, let alone persuaded us the superior court erred.
Here, the superior court deemed Flannigan's discovery motions moot and took them off calendar. This had the effect of denying the requested relief. A discovery order is normally reviewed under the deferential abuse of discretion standard. (John B. v. Superior Court (2006) 38 Cal.4th 1177, 1186; Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.) "[A] reviewing court generally will not substitute its opinion for that of the trial court and will not set aside the trial court's decision unless 'there was "no legal justification" for the order granting or denying the discovery in question.' " (Krinsky, at p. 1161.)
Further, considering the arguments before us, we find it necessary to briefly review an appellant's burden on appeal. To be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Further, error alone does not warrant reversal. "It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result." (In re Sophia B. (1988) 203 Cal.App.3d 1436, 1439.) " 'The burden is on the appellant, not alone to show error, but to show injury from the error.' " (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740.) "Injury is not presumed from error, but injury must appear affirmatively upon the court's examination of the entire record." (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) "Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal." (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114.) A miscarriage of justice is not found "unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result." (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1841.) With these principles in mind, we consider Flannigan's arguments regarding her discovery motions.
In the instant action, Flannigan's challenge to the court determining her discovery motions were moot involves two steps. First, Flannigan must show that the court abused its discretion in determining the motions were moot. Put differently, the court abused its discretion simply by not considering the motions. Second, the court would have abused its discretion had it not granted the motions. Flannigan glosses over the second component of this challenge. She does not provide any argument or authority showing that the court would have had to grant her motions. By failing to do so, she is unable to show that she was prejudiced by the court's determination that the discovery motions were moot.
"Although requests for admissions are included in the Code of Civil Procedure among discovery procedures [citation], they 'differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof.' " (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.) If the party responding to requests for admissions fails to timely respond, the requesting party may move for an order that the requests for admissions be deemed admitted. (Code Civ. Proc., § 2033.280, subd. (b).) The court must make that order, unless it concludes that the responding party served a response that is in "substantial compliance" with the statutes. (Id., subd. (c).) The statutes do not define " 'substantial compliance,' " and there is little case authority interpreting it. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.)
Here, Flannigan argues, without explanation, that the Entity Defendants' respective responses to the requests for admissions were "untimely and defective." However, it is clear that the Entity Defendants served objections, substantive responses, and, at a later time, verifications well before the hearing on Flannigan's discovery motions. (See Code. Civ. Proc., § 2033.280, subd. (c) [a court may not grant the propounding party's deemed admitted motion if "it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with (Code Civ. Proc., §) 2033.220."].) Flannigan provides no citation to the record or relevant authority to explain why the Entity Defendants' respective responses do not substantially comply with Code of Civil Procedure section 2033.220. As such, she has waived this issue. (See Falcone, supra, 164 Cal.App.4th at p. 830.) Because Flannigan has not shown that the superior court had to grant her motions to deem the requests for admission admitted, she has no argument to support her claim that the court erred in deeming her discovery motions moot.
Section 2033.220 of the Code of Civil Procedure provides: "Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. [¶] (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter."
In addition, in reviewing the admissions that Flannigan sought to be admitted, we are not persuaded that any of those admissions would have impacted the superior court's ruling on the demurrers. Essentially, the subject requests for admissions were focused on the authority of the individuals who signed the assignments of the DOT and the substitution of trustee. Apparently, Flannigan believes these admissions would bolster her allegations that the subject documents were void because the individuals signing the documents lacked the authority to do so. However, Flannigan made these same allegations in her operative complaint and we concluded they did not sufficiently allege the recorded documents were void as opposed to voidable. (See Mendoza, supra, 6 Cal.App.5th at p. 819; Kalnoki, supra, 8 Cal.App.5th at p. 46.)
Similarly, we are not convinced that the "admission" that U.S. Bank and US Bank, Trustee "did not participate in the [subject] foreclosure" bolsters the validity of Flannigan's claims in the third amended complaint. Civil Code section 2924, subdivision (a)(1) states that a "trustee, mortgagee, or beneficiary, or any of their authorized agents" may initiate the foreclosure process. Here, CRC, the substituted trustee, initiated the foreclosure process. Even if we assume neither U.S. Bank nor U.S. Bank, Trustee were involved with the foreclosure, Flannigan has provided no authority that such an assumption would void any of the essential recorded documents or void the foreclosure itself.
Not surprisingly, but tellingly, we note Flannigan in the third amended complaint has not alleged any facts suggesting one or more of the Entity Defendants lacked the power or authority to record various documents rescinding the myriad notices of defaults and/or the notices of trustee's sales that were recorded on the subject property over the course of years. (See International Billing Services, Inc. v. Emigh (2000) 84 Cal.App.4th 1175, 1188 [applying the axiom what is "[s]auce for the goose is sauce for the gander" when rejecting the contention it was fair to apply Civ. Code, § 1717 to allow a party to recover attorney fees if the party prevailed but deny the party's opponent attorney fees if the party lost].)
In short, Flannigan has not shown that she suffered any prejudice when the court deemed her discovery motions moot.
LEAVE TO AMEND
To demonstrate that the trial court abused its discretion in denying leave to amend, a " '[p]laintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.]' [Citation.]" (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; accord, Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491.) As the court held in Rossberg: " 'Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary. [Citation.]' [Citation.]" (Rossberg, at p. 1491.) The burden to make this showing is on the plaintiff. (Goodman, at p. 349; Rossberg, at p. 1491.)
Here, Flannigan has not provided any additional factual allegations that she can allege to state a valid cause of action against the Entity Defendants or the Morenos. At best, she baldly asserts "[t]he admissions and other non-responsive information contained in [her discovery] Motions . . . [citation], completely proves that the foreclosure was unlawful . . . [and] sufficiently proves [Flannigan]'s causes of action and will suffice to satisfy any perceived deficiency." She neither provides specific factual allegations nor discusses why she can do allege the required elements of her causes of action. Accordingly, we conclude the court did not abuse its discretion in sustaining the demurrers without leave to amend.
Because Flannigan has not and cannot allege that any of the recorded documents were void, she must allege the ability to tender the amount due and owing under her note before she can challenge the foreclosure sale. (See Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-579; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) She does not claim she can allege tender. As such, her claims attacking the foreclosure sale in the third amended complaint fail for this reason as well and cannot be cured by further amendment. --------
The judgment is affirmed. The Entity Defendants and the Morenos are entitled to their costs on appeal.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.