Court Superior

of Appeal Court

Case Case

No. F064556 No. 09CECG03601

IN THE

COURT FIFTH

OF APPEAL, APPELLATE

STATE

OF CALIFORNIA

DISTRICT

THOMAS Plaintiff

A. GLASKI, and Appellant

VS.

BANK OF AMERICA, MERGER TO "LA MORTGAGE TRUST, CHASE AND

NATIONAL ASSOCIATION AS SUCCESSOR SALLE BANK N.A. AS TRUSTEE FOR WAMU CERTIFICATES SERIES 2005-AR-17"

BY

PASS-THROUGH

HOME FINANCE LLC, JPMORGAN CHASE BANK, CALIFORNIA RECONVEYANCE COMPANY, Defendants and Respondents.

N.A.,

Appeal

from

the Superior Case

Court

of the State

of California

County of Fresno No. 09CECG03601

The

Honorable

Alan

Simpson,

Judge

RESPONDENTS'

BRIEF

Theodore Mikel

E. Bacon,

SBN: SBN: APC Suite

115395 186590 1100

A. Glavinovich, AlvaradoSmith, Fifth Street,

633 West Phone: Email:

Los Angeles, 213-229-2400

California / Fax:

90071 213-229-2499

mglavinovich@alvaradosnaith.com

Attorneys for Respondents Bank of America, National Association as successor by merger to "La Salle Bank NA as trustee for WaMu Mortgage Pass-Through Certificates Series 2005-AR17" Trust, JPMorgan Chase Bank, N.A. as successor by merger to Chase Home Finance, LLC, JPMorgan Chase Bank, N.A., and California Reconveyance Company

3371907.1 -- ALl 09.W837

TO BE FILED COURT OF APPEAL,

ATTORNEY OR PARTY WITHOUT

IN THE COURT

OF APPEAL
Court of Appeal Ca=a Numbar.

APP-008

FIFTH
ATTORNEY (Name,

APPELLATE DISTRICT, DIVISION

Slate Bat'number, and address):

F064556
Superior Coutl Case Number:

Theodore E. Bacon. SBN: -- AlvaradoSmith, APC

i 15395 / Mikel

A. Glavinovich,

SBN:

186590 09CECG03601 Roe COURTUSE ONLY

633 West Fifth Street, Suite 1100 LOS Angeles, California 90071 TELEPHO,E He.: 213-229-2400 ArrORN_ FOa _o,,_: Respondents APPELLANT/PETITIONER: Thomas Bank A.

f'AX,O,rO._io.',,O: 213-229-2499 of America, et al.

E.MA,..AOORESEOpt_O,,,,O: mglavinovich(_,alvaradosmith.com

Glaski

RESPONDENT/REAL

PARTY

IN

INTEREST:

Bank of America,
ENTITIES r--]

et al.

CERTIFICATE (Check one): _

OF INTERESTED

OR PERSONS CERTIFICATE

iNITIAL CERTIFICATE

SUPPLEMENTAL

Notice: Please read rules 8,208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebrlefing motion, application, or opposition to such a motion or application in tile Court of Appeal, and when you file a petition for an extraordinary writ, You may also use this form as a supplemental certificate when you learn of changed or additional Information that must be disclosed. 1. This form is being submitted on behalf of the following party (name): Respondents 2. a. I'-'-I b. _] Bank of America, et al.

There are no interested entities or persons that must be listed in this certificate under rule 8.208. Interested entities or persons required to be listed under rule 8.208 are as follows: Full name of interested entity or person

I Respondent/Defendant

Nature (Explain): of interest

(1) (2) (3) (4) (5)

Bank.

of America,

National by merger as Trustee

Association to "La Salle

as successor Bank Mortgage N.A.

for WaMu

Pass-Through

Continued

on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership Interest of 10 percent or more In the party If It is an entity; or (2) a financial or other interest In the outcome of the proceeding that the justices should consider In determining whether to disqualify themselves, as defined in rule 8,208(e)(2).

Date:

November

26,

2012

LMIKEL

A.

GLAVINOVICH
(TYPE OR PRINT NAME)

_1_

Is/Mikel A. Glavinovich
(SIGNATURE OF PAR1Y OR ATTORNEY)

Page 1 of 1

Fon_ A_rovod lotO_tl=== u,e

Judicial Courll of Celifortda APP-O06 IRov. JanUaw 1,2009]

CERTIFICATE

OF INTERESTED

ENTITLES

OR PERSONS

c81. Re**olcou.._es 8208, 8.488

www.coulllnfo.ca.gov

COURT OF APPEAL, FIFTH APPELLATE DISTRICT, APPELLANT:THOMAS A. GLASKI RESPONDENT: BANK OF AMERICA, ET AL

COURT OFAPPEAL CASE NO. F064556 SUPERIOR COURT CASE NO. 09CECG03601

CERTIFICATE

OF INTERESTED

ENTITIES 2

OR PERSONS (CONT)

ATTACHMENT Full name of interested Entity or person 1. cont. 2. 3. Chase Home Finance LLC JPMorgan Certificate Series 2005-AR-17" Trust

Nature of interest

Respondent/Defendant Respondent/Defendant

Chase Bank, N.A. as successor by merger

to Chase Home Finance, LLC 4. 5. California Reconveyance Company Respondent/Defendant Attorney for

Mikel A. Glavinovich

Respondent/Defendant 6. 7. Thomas A. Glaski Catarina M. Benitez Appellant/Plaintiff Attorney for

Appellant/Plaintiff

3372834.1--AL109.W837

TABLE

OF

CONTENTS P_

1. II. III. IV. V. VI. VII.

INTRODUCTION SUMMARY SUMMARY

............................................................................................................... ...........................................................................................

1 1 3 4 5 6

OF ARGUMENT OF FACTS

..................................................................................................... .......................................................................................... ...............................................................................

PROCEDURUAL ISSUES

SUMMARY

PRESENTED

FOR REVIEW

STANDARD

OF REVIEW

.................................................................................................

THE TRIAL COURT PROPERLY SUSTAINED THE DEMURRER TO APPELLANT'S SECOND AMENDED COMPLAINT ..................................................... A. B. C. Appellant Foreclosure Plaintiffs Was Not Harmed Proceedings Second Cause by the "Forgery". ........................................................ ................................................ Claim

7 8 10

Were Properly of Action

Initiated

Does Not State a Viable

to Set Aside VIII. APPELLANTS WILLINGNESS

the Foreclosure

Sale ..........................................................................

14

FAILURE TO ALLEGE ABILITY AND TO TENDER THE FULL AMOUNT OWED

IS FATAL 14

TO THE CAUSES CANCELLATION IX. APPELLANT FOR UNFAIR A. B. X. Appellant

OF ACTION FOR WRONGFUL FORECLOSURE, AND QUIET TITLE ......................................................................... NOT AND CANNOT PRACTICES STATE A VIABLE CLAIM

DOES

BUS1NESS Lacks

.........................................................................

17 17 l8

Standing

To Sue Under The UCL ..............................................

Appellant Fails to Allege Any Underlying Statutory Violations or Seek a Form of Relief Available Under the UCL .................................................. SETTLEMENT COMPLAINT DOES NOT ............................................

THE U.S.v. BANK OFAMERICA CORP. CURE ANY DEFECTS IN APPELLANT'S CONCLUSION

19 20

XI.

..................................................................................................................

3371907.1

--ALI09.W837

TABLE

OF AUTtlORITIES

Cases

Abdallah v. United Sav. Bank, 43 Cal.App.4th 1101, 1109 (1996)

.........................................................................

15, 16

Aeeves v. U.S. Bank, N.A., 192 Cal.App.4th 218, 232 (2011) ................................................................................... Arnold Management Corporation v. Eischen, 158 Cal.App.3d 575,579 (1984) .................................................................................. Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 ....................................................................................... Barrionuevo v. Chase Bank, N.A. 2012 WL 3225953 (N.D. Cal. 2012) ............................................................................ Blank v. Kirwan (1985) 39 Cal.3d

16

12

311,318

..........................................................................................

5, 6

Californians For Disability Rights v. Mervyn 's, LLC, 39 Cal.4th 223,228 (2006) ........................................................................................... Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880, fn. 10 ............................................................................ Construction Protective Services v. TIG Specialty Insurance Co., 29 Cal.4 _ 189, 199 (2002) .............................................................................................. Davaloo v. State Farm Ins. Co. (2005) 135 Cal.App.4th 409, 414 ................................................................................... Dimock v. Emerald Properties LLC, et al. th 81 Cal.App.4 868 (2000) ............................................................................................ Evans v. City of Berkeley (2006) 38 CaI.4 th 1, 6 .................................................................................................. Gomes v. Country.wide Homeloans Inc. 192 Cal.App.4 c1'1149 (2011) ........................................................................................ Hill v. Wrather, 158 Cal.App.2d

17

11

16

6, 8

12

818, 825 (1958)

....................................................................................

Javaheri v. JPMorgan Chase Bank, N.A. (C.D. Cal. 2011) 2011 WL 2173786 ........................................................................... Johnson v. Sup. Ct. (Calif. Cryobank, Inc.), 80 Cal. App. 4th 1050, 1064 (2000) ...............................................................................

13

11

3371907.

I -- ALl 09.W837

Karlsen v. American Savings & Loan Association, 15 Cal.App.3d 112 (1971) ............................................................................................ Khoury v. Maly's 14 Cal.App.4th of Cal_rnia, 612, 619 (1993)

15

...................................................................................

18

Korea Supply Co. v. Lockheed Martin Corp. 29 Cal. 4th 1134, 1144 (2003) ...................................................................................... Lomboy v. SCME Mortgage Bankers, 2009 WL 1457738 * 12-13 (N.D. Cal. 2009) ............................................................... Lucas v. Harem, 56 Cal. 2d 583,590

18

11

(1961) .............................................................................................

11

Lujan v. Defenders of Wildlife (1992) 504 U.S. 555,561, 112 S.Ct. 2130, 119 L.Ed.2d .............................................. McDonald v. John P. Scripps Newspaper (1989) 210 Cal.App.3d 100, 104 .................................................................................... Mervyn _, supra, 39 Cal.4th at 233 ........................................................................................................... Nguyen v. Calhoun, 105 CaI.App.4 th at 428 at 445 (2003)

17

11

17

("Nguyen")

........................................................

14

Ohlendolf v. American Home Mortgage Servicing, et al. 279 F.R.D. 575 (E.D. Cal. 2010) .................................................................................. People v. McKale, 25 Cal.3d 626, 635 (1979)

12

............................................................................................

18

Performance Plastering v. Richmond American Homes of Cal!f., Inc., 153 Cal. App. 4th 659 (2007) ......................................................................................... Service By Medallion, Inc. vs. Clorox Co., 44 Cal.App.4th 1807, 1818 (1996) ................................................................................. Shadoan v. World Savings" & Loan Association, 219 Cal. App. 3d 97 at 103, 108, n. 7 (1990) ................................................................. Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D. Cal. 2009) ............................................................................... Tamburri v. Suntrust Mortgage, Inc. 2011 WL 6294472 (N.D. Cal. 201 l) ............................................................................ Troyk v. Farmers Group, hw., 171 Cal.App.4th 1305, 1345 (2009)

11

18

11

12

.............................................................................

17

United States Cold Storage v. Great Western Savings' & Loan Association, 165 Cal.App.3d 1214 (1985) ........................................................................................

15

iii
3371907.1 -- ALI09.W837

United States

v. Bank o)CAmeriea

Corp ............................................................................

19

Williams v. Koenig, 219 Cal. 656, 660 (1934) .............................................................................................. Wise v. Southern Pacific Co., 223 Cal.App.2d 50, 60 (1963) ........................................................................................ Wood v. Aegis Wholesale Corp. 2009 WL 1948844, 5 (E.D.Cal. Statutes Business and Professions Code 17204 ............................................................................ Code 17206 ........................................................... Code 17200 through 17209 ...............................

16

11

2009)

........................................................................

11

17 18 16 9 2, 11, 12 11 11 8 12 5

Calitbrnia Business California California California Business

and Professions and Professions

Civil Code 2934 and 2924 ............................................................................ Civil Code 2924 et seq .........................................................................

CCC 2924(a)(1)

.............................................................................................................

Civil Code 1559 .............................................................................................................. Civil Code Civil Code 3333 ............................................................................................................... 2924, subd. (a)(l) .........................................................................................

Code of Civil Procedure

430.10 .......................................................................................

iv 3371907.1 -- ALl 09.W837

I.

INTRODUCTION Appellant Thomas A. Glaski ("Appellant") seeks to have this Court overrule Amended Complaint by the

Trial Court's Respondents trustee

decision

to sustain

the Demurrer

to the Second by merger

Bank of America, Mortgage

N.A. as successor

to "La SaUe Bank NA as Trust ("Bank

for WaMu

Pass-Through

Certificates

Series 2005-AR17" by merger

of America"); Finance,

JPMorgan

Chase Chase

Bank, N.A. as successor Bank, N.A. (collectively collectively

to Chase Home and California leave to amend.

LLC, JPMorgan Company offers

"JPMorgan"), without

Reconveyance However,

("CRC";

"Respondents")

Appellant

no substantive

reason

for this Court to find that the Trial that he should have been given decision should

Court was in error, nor does Appellant tburth opportunity to plead a viable

demonstrate complaint.

Thus, the Trial Court's

be affirmed. II, SUMMARY OF ARGUMENT obtained a loan from Washington Mutual Bank. Appellant

In 2005, Appellant later became foreclosure delinquent process

on the loan and failed to cure the delinquencies, Appellant contends there were irregularities

thus the associated

followed. process

with the foreclosure relief, wrongful

and filed suit in 2009 alleging and Unfair Business Practices.

claims of fraud, declaratory

foreclosure

The purported assumes "forged"

bases for Appellant's of Deborah

allegations

are twofold.

First, Appellant CRC, was

that the signature on certain

Brignac,

an officer

of the trustee

foreclosure

documents. Cause

This allegation of Action

is the basis for Appellant's

First Cause Action Cause

of Action

for Fraud, Third Foreclosure,

to Quiet Title, Fourth Cause of fbr Declaratory Relief, Eighth

for Wrongful of Action

Fifth Cause of Action of Instrument

for Cancellation However,

and Ninth Cause of Action for Unfair while a court considering a demurrer

Business

Practices.

as set forth below,

will presume and cannot

that all allegations be mere conclusions

are true, those allegations such as Appellant's

must be made in good faith that Ms. Brignac's

assumption

3371907.1

-- ALI09.W837

signature authorizing

was forged. someone

Further,

California

law does not preclude

Ms. Brignac

from proceeded in

else to sign her name. thereby ratifying

And given that CRC as trustee in question, Indeed, Appellant's Appellant

using the documents, suppositions contend

the signatures

have no legal effect on the validity contained pursuant

of sale.

does not served

that the information recorded

in the notices to the California

was inaccurate, Civil Code.

improperly

and or improperly properly cognizable ratified

Thus, the trial court contention fail to state a CRC

tbund that the six causes claim, recognizing by treating second

of action

based on the forgery

that "even if the signature it as valid." contention, (Appellant's

of Brignac Appendix

was 'forged', ("AA")

the signature Appellant's

at 428.)

primary

i.e., that the trustee's allegedly Cause

sale should be

declared

"void ab initio" because note forms

Bank of America

was not a proper bolder of The

the promissory second records

the basis for his Second insufficient

of Action for Fraud.

contention reveal

also proved

to withstand

demurrer.

In this case, the public More specifically, an 8,

that Bank

of America

had standing

to foreclose. was properly interest

Assignment 2008, which was thereby Mortgage

of the Deed of Trust put Appellant granted, Pass-Through

("Assignment")

recorded

on December

on notice

that all "beneficial to LaSalle 2005-AR17

under the Deed of Trust" for WaMu At some

assigned

and transferred Series

Bank NA as trustee Trust ("LaSalle by merger

Certificates

Trust").

point after December Trust, and a second Indeed, there

8, 2008, Bank of America Assignment

succeeded

to the LaSalle

of Deed of Trust was recorded Civil Code to support thereby

on June 15, 2009. Appellant's allegations Property at the

is nothing

in the California was not entitled

that Bank of America trustee's allegations not survive requirements Given

to take title of the Subject recognized

sale on May 27, 2009. that the Deed as pled.

The trial court therefore

that Appellant's

of Trust was improperly A contrary

transferred

to the La Salle Trust could an expansion of the

(AA at 430.)

finding

would require

of Calilbrnia the defects

Civil Code 2924 et seq., and this the trial court would not do. in Appellant's two primary contentions, the trial court was

3371907.1

-- AI,109,W837

compelled Appellant resuscitate Appellant,

to sustain Respondents' could

Demurrer.

The trial court also concluded

that

point to no allegations

which, if added to the Complaint,

would

his causes of action, while asking

thus the trial court did not grant leave to amend. the lower court's ruling, does not identify

this Court to overturn

any error in the trial court's judgment court level, he does he identify claims. II1. Accordingly, SUMMARY

or reasoning,.

And just as was the case at thr trial to save any of his

any new facts that could be alleged should be affirmed.

the judgment OF FACTS

In July of 2005, Appellant ("WaMu") located ("Subject Loan").

obtained

a loan from Washington Loan was secured California

Mutual Bank real property Property"), as and to a

The Subject Way, Fresno,

by certain

at 7741 E. Saginaw by a recorded

93727 (the "Subject WaMu

evidenced

deed of trust ("DOT") (AA at 200-229.)

that named The Subject Finance,

as the beneficiary

CRC named mortgage

as the trustee.

Loan was later transferred LLC continuing to service

pool, with WaMu

mad then Chase Home the trustee

the loan, and CRC with remaining O11 September Mutual Bank ("WaMu") entered

throughout. placed Washington On the same

25, 2008, the Office of Thrift Supervision into the receivership into a Purchase an interest

of the FDIC. (AA at 305-307.) Agreement

day, JPMorgan whereby

and Assumption in the Subject

with the FDIC and Assumption an

JPMorgan

acquired

Loan. ("Purchase

Agreement"; Assignment in the Subject Pass Through 78-80.)

AA at 309-322.)

A few months

later, on December

8, 2008, CRC recorded all beneficial

of Deed of Trust ("2008 Loan was assigned Certificates Services

Assignment"),pursuant

to which

interest

to LaSalle

Bank N.A. as trustee for WaMu Trust. (Respondent's

Mortgage ("RA") at

2005-AR17

Appendix

In the same year that the Purchase JPMorgan Subject and the FDIC, Appellant Loan. (AA at 231-232.) became

and Assumption delinquent a Notice

Agreement

was entered into by under the to Sell

on his loan obligations of Default and Election

Therefore,

3371907.1

-- ALIO9,W837

Under Pursuant

Deed of Trust to the NOD, Loan.

("NOD")

was recorded

by CRC on December

9, 2008.

(Id.) in arrears on a

as of December

8, 2008, Appellant

was $11,200.78,

the Subject Notice NOTS'

(AA at 231.)

Appellant

did not cure the default

and CRC recorded As of the to be

of Trustee's recording,

Sale ("NOTS") the unpaid balance

on March

12, 2009. (AA at 241-242.) costs were estimated the Subject

and reasonable

$734,115.10. trustee's

(AA at 241.)

Appellant as scheduled

failed to reinstate on May 27, 2009.

Loan, and a

sale went forward a Trustee's

With the sale completed, all interest in the

CRC recorded Subject LaSalle Property

Deed Upon

Sale on June 15, 2009, granting National Association Pass-Through as successor Certificates

to Bank of America, for WaMu

by merger to Series 2005-

Bank as trustee

Mortgage

ARI 7 Trust] On October Chase IV. Home Finance 1, 2009, Appellant filed the instant action was later named against Bank of America, (AA at 18-31.)

and CRC; JPMorgan SUMMARY in Superior

as DOE 1.

PROCEDURUAL Appellant

filed his action

Court on October accounting, distress.

1,2009,

alleging

causes

of action injunctive Although Appellant 50.)

for fraud, quiet title, wrongful relief, and intentional indisputably in default

foreclosure,

declaratory

relief,

infliction and unable

of emotional to tender Injunction

(AA at 18-31.) his loan, (AA at 328, 2009.

funds to reinstate on October Injunction

also filed a Motion

for Preliminary the Motion

6, 2009. on October

The Trial Court denied

for Preliminary

(AA at 5.)

i (AA at 244-245.) Given that Bank of America had become the successor by merger to LaSalle Bank since the first Assignment of Deed of Trust was recorded on December 8, 2008, a second Assignment of Deed of Trust was recorded on June 15, 2009 ("2009 Assignment"), whereby all beneficial interest in the Deed of Trust was assigned to Bank of America, National Association as successor by merger to LaSalle Bank as trustee for WaMu Mortgage Pass-Through Certificates Series 2005-AR17 Trust. (AA 238-239.)

3371907.1

-- AI,109.W837

Respondents on the Pleadings, injunctive

answered which

the initial complaint, without

and then filed a Motion

for Judgment

was granted

leave to amend distress

as to the accounting, claims, Appellant Respondents and granted with

relief and intentional

infliction claims.

of emotional

leave to amend Amended

as to the remaining

(AA at 51-110.) (AA at 111-136.)

then filed a First demurred to the

Complaint

on April 29, 2011.

First Amended the demurrer,

Complaint and Appellant

on June 1, 2011.

(AA at 137-150.) opportunity is advised

The Trial Court sustained to amend his complaint,

was given a further "[Appellant]

with strict instructions cause of action reincorporation original].)

as follows:

for the last time to plead each

such that only the essential of lengthy 'general

elements

for the claim are set forth without

allegations'." Amended

(AA at 175-181 ; 179 [emphasis Complaint on August 5,2011, and the on of (AA at on 16,

Appellant

filed his Second Respondents'

Trial Court sustained November Dismissal 413-420.) December 2012. V. 15,2011. of Action The Notice 19, 2011.

demurrer

to the same, without 409-412,

leave to amend, A Judgment 20, 2011. Counsel

(AA at 182-276; in Favor

299-381;

and 420.) on November on Appellant's

of Respondent

was entered was served

of Entry of Judgment (AA at 421-432.)

The Notice

of Appeal

followed

on February

(Opening ISSUES

Brief at 433-434.) PRESENTED FOR REVIEW

The issues on appeal 1. assumption

are as follows: challenge a foreclosure sale based merely on an where the trustee with reason

May a borrower that certain

foreclosure forgery

documents

were forged,

to know of the alleged 2. ensue, Where

adopts

the documents

as valid? proceedings

a borrower

has defaulted

on his loan and foreclosure foreclosure

can that borrower

state a claim for wrongful

based on an allegation

that a particular violate the policy

entity did not have authority behind California's

to foreclose

even though such a claim would laws?

non-judicial

foreclosure

3371907,1

--ALI09,W837

V1.

STANDARD A demurrer

OF REVIEW tests the legal sufficiency Code of Civil Procedure for a general demurrer of the complaint. 430.10 is stated (Blank v. Kirwan (1985) a

39 Cal.3d demurrer. pleading

311,318.) The ground

lists the grounds in subdivision

for sustaining

(e) as ibllows: The appellate by

"The

does not state facts sufficient a judgment review[ing] entered

to constitute

a cause of action." sustaining whether a demurrer

court reviews "independently cause of action 135 Cal.App.4th properly (Evans however,

based on an order to determine

the pleading

the facts alleged

state a

under any possible 409, 414.)

legal theory."

(Davaloo

v. State Farm Ins. Co. (2005) facts sources.

The appellate

court accepts

as true ..... all material noticeable

pleaded .....

in the complaint, (2006) deductions

as well as facts from judicially

v. City of Berkeley to contentions,

38 Cal.4 th 1, 6.) The appellate or conclusions

court gives no effect, The appellate exists,

of fact or law. (Ibid.) for sustaining asserted

court will affirm whether (Cantu

the demurrer

if any proper ground

the demurrer

or not the trial court relied on it or the defendant v. Resolution Trust Corp. (1992) is properly 4 Cal.App.4th

it in the trial court.

857, 880, fn. 10.) Court reviews the trial

When a demurrer court's (Cantu grant or denial v. Resolution

sustained,

the Appellate

of leave to amend Trust Corp., supra,

the defective 4 Cal.App.4th

complaint at p. 889.)

for abuse of discretion. The appellate couffs can be

task is to determine amended Appellant Hospital

whether

there is a reasonable

possibility

that the complaint

to state a cause of action. has the burden Dist. (1992)

(Blank v. Kirwan,

supra, 39 Cal .3d at p. 318.) The possibility. (Aubry v. Tri-City but the trial court court

to show there is such a reasonable 962, 966-967.) If there

2 Cal.4th

is such a possibility,

court denied reverses affirms.

leave to amend, (Ibid.)

the trial court abused

its discretion,

and the appellate and the appellate

its ruling. (Ibid.)

If not, there is no abuse of discretion,

In this case, Appellant possibility of ability to amend

does not identify to state a cause

any abuse of discretion, of action or any reversible

any reasonable error of any

3371907.

I -- ALl (19.W837

kind on the part of the trial court. Second VII. Amended Complaint COURT

Thus, the ruling be affirmed.

on the Respondents'

Demurrer

to the

should

THE TRIAL APPELLANT'S

PROPERLY

SUSTAINED

THE

DEMURRER

TO

SECOND

AMENDED

COMPLAINT Second Amended Complaint and

First and foremost, those facts which

the allegations be judicially

of Appellant's noticed

may properly whether

are the only allegations sustained Respondents'

that may be

considered Demurrer Amended documents

to determine without leave

the trial court properly As stated above, assumptions:

to amend.

the causes

of action in the Second

Complaint

rest on two primary

(1) that certain foreclosure to foreclose.

were forged,

and (2) that Respondents concluded

did not have the authority could not survive.

The trial court correctly As to the "forgery" Brignac allegation was 'forged', of forgery

that these claims

(AA 428-430.) of the

allegations,

the court reasoned the signature (AA at 428.) foreclosure

that "... even if the signature by treating it as valid," under Gomes making

CRC ratified immaterial. nonjudicial challenging

Moreover,

"the exhaustive of

nature of Calitbrnia's additional nonjudicial Appellant's Cause Eighth requirements

scheme prohibits of the lender's

the introduction nominee

the authority

to initiate that the

foreclosure." First Cause

(AA at 428-429.) of Action

Thus, the trial court concluded Cause

for Fraud, Third

of Action to Quiet Title, Fourth of Action tbr Declaratory Relief, for

of Action

for Wrongful

Foreclosure,

Fifth Cause of Instrument,

Cause of Action Practices,

for Cancellation all of which

and Ninth Cause of Action "forgery" must be

Unfair Business sustained without

were based on alleged

leave to amend. to Appellants'

(AA at 428-430.) Second Cause of Action [br Fraud, the trial court again the authority

With regard turned to Gomes:

"Gomes

... holds that there is no legal basis to challenge beneficiary, or any of their 2924, authorized

of the trustee, the foreclosure the "policy

mortgagee, process

agents to initiate with

.... " (AA at 429.)

As the trial court noted, this is consistent statutes[, which] is to provide a quick,

behind

the nonjudicial

foreclosure

3371907.

I -- ALl 09.W837

inexpensive

and efficient

remedy

for default

on a loan secured or mortgagor beneficiary,

by real property." could challenge

(Id.) nonjudicial

Thus, the trial court concluded, foreclosure agents (Id.) by requiring

"If every trustor mortgagee,

the trustee,

or any of their authorized be thwarted." to

to prove their authority And again,

to initiate the foreclosure,

the policy would

the trial court found Cause offers of Action

there are no allegations for Fraud. reason to disturb

"under any theory"

support

the Second Appellant

no substantive

this sound reasoning

and its

resulting A.

conclusions. Appellant Was Not Harmed contends on certain by the "Forgery." and belief that Ms. documents. (AA at 189-

In this case, Appellant Brignac's 190.) signature was forged

based on information recorded foreclosure

However,

in order to allege a viable claim for fraud, a plaintiff must meet certain and also specially plead the "detriment This requires proximately specific caused" factual with the

requirements by det_ndant's allegations plaintiffs Clorox alleged resulting "Whatever

of specificity tortious

conduct.

(Civil Code 3333.) suffered,

of both the injury or damage reliance on the defendant's

as well as its causal connection (Service By Medallion, deception

representations.

Inc. vs. - whether -- without by

Co., 44 Cal.App.4th forgery

1807, 1818 (1996).) irregularity

In other words, in foreclosure

or any other alleged fraud.

proceedings

loss is not actionable form it takes,

(Hill v. Wrather,

158 Cal.App.2d

818, 825 (1958).) alleged but its by

the injury or damage

must not only be distinctly must be shown."

causal connection Medallion,

with the reliance

on the representations at 1818.) to assume

(Service

Inc., supra,

44 Cal.App.4th

Thus, it is not sufficient it is correct that the appellate

for Appellant court accepts

that signatures

are forged.

While

as true "all material noticeable self-serving

facts properly

pleaded" to

in the complaint, accept

as well as facts from judicially allegations that are merely

sources,

it is not required

as true those (2006)

assumptions.

(Evans v. City

of Berkeley

38 Cal.4 th 1, 6.)

3371907.1

-- AH09.W837

Moreover, caused

Appellant harm.

does not make any allegations (AA at 182-277.)

of how the purported

forgery fails to sale. signature he

him cognizable

. (Id.) In this case, Appellant irregularities in the foreclosure of the "forged" also contends

allege any prejudice Nonetheless, on the Notice suffered Home notice

as a result of the supposed contends Sale.

Appellant

that he was prejudiced (Opening

because

of Trustee's because

Brief at 38.) Appellant to negotiate

prejudice Finance.

he attempted

a loan modification that Appellant

with Chase failed to receive did not seek a loan

(Id.) However,

there are no allegations

of the default, protection. because

sale or any other foreclosure He likewise of the forgeries.

event and therefore

bankruptcy modification reject

does not allege that he failed to receive (Id. at 39.) Instead, Appellant without

asks this Court to any causal link any prejudice, v. U.S. Bank,

the reasoning the alleged

of the Trial Court based on a hypothetical forgeries and Appellant's notices purported

between

harm. Absent (See Aceves

irregularities N.A.,

in the foreclosure

are not actionable. ("Aceves").)

192 Cal.App.4th

218, 232 (2011)

2 In this case, as in Aceves, and served in

Appellant accordance

does not allege

that the documents provisions

at issue were not recorded

with the applicable contained

of the California

Civil Code 2934 and 2924, was not accurate. the purported Thus,

or that the information Appellant irregularity

on these recorded

documents

failed to allege the necessary in the foreclosure,

causal connection

between harm.

the "forgery",

and the alleged

To summarize, of Action

the speculation

and conjecture

included

in Appellant's

First Cause

tbr Fraud claim

do not meet the requirements Respondents' Demurrer

of an adequately

pied fraud claim

and the Trial Court sustained Further, and Appellant's

to the First Cause of Action. there is no allegation Finally, of any actual the same

conjecture

notwithstanding,

harm as a result of the so-called insufficient forgery allegation

fbrgery. also served

(AA at 182-277.)

because

as the basis for Appellant's

Third Cause of

2 Aceves held that no cause of action is stated the wrong beneficiary if the other intbrmation

simply because the NOD incorrectly on the NOD is provided.)

names

3371907.1

--AL109.W837

Action Action

for Quiet Title, Fourth Cause for Declaratory Relief, Eighth

of Action

for Wrongful

Foreclosure,

Fifth Cause of of Instrument, was sustained

Cause of Action

for Cancellation the Demurrer Appellant

and Ninth Cause without

of Action

for Unfair Business

Practices,

leave to amend

as to these causes of action and the ruling should Proceedings Cause Were of Action

as well.

has not identified

any error in this conclusion, B. Foreclosure

be affirmed. Initiated Appellant asserts Loan] had Appellant of (RA at 78-

Properly

In support that Respondents not been properly overlooks Default 80.)

of his Second

for Fraud, Property, "because Brief at 10.)

did not have the authority transferred to the Trust."

to foreclose (Opening

the [Subject However,

the dispositive was recorded

fact that on December

8, 2008 - well before the Notice by CRC.

- an Assignment

of Deed of Trust was recorded assigned all beneficial

Pursuant

to the Assignment,

JPMorgan

interest in the Subject Certificates herein,

Loan to LaSalle Services

Bank N.A. as trustee Trust.

for WaMu

Mortgage

Pass Through

2005-AR17

(RA at 78-80.) expressly

At this time and at all times relevant by the Deed of Trust to initiate default. (Id.) Appellant alleges that

CRC remained foreclosure

the Trustee

authorized

proceedings

in the event of Appellant's showing

Despite the clear public record "[Respondents] by assigning Servicing Appellant delivered Pooling alleges conducted a non-judicial

otherwise,

foreclosure

sale without pursuant

any right under the law and

the Deed of Trust after the date allowed of the ... Trust." (Opening

to the Pooling

Agreement alleges

Brief at 12.) More specifically, transferred and

that the "[promissory] prior to the Closing Agreement

Note was not duly endorsed,

to the Trust and Servicing

Date of the Trust, as set forth in 2.05 of the (AA at 9.) Appellant and physically also delivered

on file in this action." lawfully

that the promissory

note "was never

negotiated

to the Trust." entire Trustee's purported

(AA at 10.) Based

on these ostensible (AA at 10.)

facts, Appellant Appellant

claims that the

Sale was "void ab initio." of the Pooling

does not allege how the years before his default

violation(s)

and Servicing

Agreement

10
3371907.1 -- AlA09.W837

giveshim anyrightsasastranger tothe citedagreement. Morespecifically, thereis no allegation thatAppellantwasanintended thirdpartybeneficiary of thePoolingand ServicingAgreement. 3 In attacking Respondents' authorityto foreclose, Appellantignores thefactCRC wastheauthorized Trustee at all timesrelevant herein,andthatneither thetrustee northe beneficiary of theDOT is required to possess thepromissory noteatthetimeof the foreclosure. Indeed, contraryto Appellant's alleged contentions, "underCivil Code section 2924,nopartyneeds to physicallypossess thepromissory note. ''4Evenwithout these deficiencies, theclaimswouldstill besubject to demurrer: afterall,theDeedof Trustauthorized CRC,astrustee, to initiateforeclosure proceedings onceAppellant defaulted onthe Subject Loan.(AA at222.) Beyondthese defects in pleading, Appellant doesnot allegethathewasnot in default. In short,everything before thetrial court supported theconclusion thatAppellanthadnovalid claimandcouldnot state a valid 3To state a cause of actionforbreach of contract, aplaintiffmustallege (1)theterms of thecontract, (2) plaintiffsperformance or excuse fornonperformance, (3)thedefendant's breach, and(4)resulting damages totheplaintiff.(McDonald v. John P. Scripps Newspaper
(1989) 210 Cal.App.3d 100, 104.) Additionally, the facts constituting the defendant's breach should be stated with certainty. (Wise v. Southern Pacific Co., 223 Cal.App.2d 50, 60 (1963) Statements that the defendant "breached" or "violated his contract" or "failed and refused to perform" are held insufficient as conclusions of law. (Id.) Rather, Plaintiffmust plead the legal effect of the contract, meaning the material terms of the contract must be stated. (Construction Protective Services v. TIG Specialty Insurance Co., 29 Cal.4 th 189, 199 (2002) Furthermore, under third party beneficiary contracts, a contract made "exp_vssly for the benefit of a third person" may be enforced by that person. (See, Civil Code 1559; see also, Performance Plastering v. Richmond American Homes of Cal!F, Inc., 153 Cal. App. 4th 659 (2007).) In order to be able to enforce the contract, the person to be benefited need not be named in the contract, but the contracting parties' intent to benefit that person must appear in the terms of the agreement. (See, Johnson v. Sup.Ct. (Calif. Cryobank, Inc.), 80 Cal. App. 4th 1050, 1064 (2000).) On the other hand where, as here, someone is only incidentally or remotely benefited by an agreement between others cannot enfome it, that person cannot enforce the agreement. (,gee Lucas v. Hamm, 56 Cal. 2d 583, 590 (1961).) 4 (Sicairos v. NDEX West, LLC, 2009 WL 385855 (S.D. Cal. 2009) (citing CCC 2924(a)(1); See also Lomboy v. SCME Mortgage Bankers, 2009 WL 1457738 * 12-13 (N.D. Cal. 2009) ("Under California law, a trustee need not possess a note in order to initiate foreclosure under a deed of trust.") and Woody. Aegis Wholesale Corp. 2009 WL 1948844, 5 (E.D.Cal. 2009) (An allegation that MTC did not have physical possession of the original note is insufficient to render the foreclosure proceedings invalid.)

11
3371907.1 -- ALI09.W837

claim.Nonetheless, Appellantseeks to havethisCourtexpand thenon-judicial

foreclosure There process set forth by California Civil Code 2924, et seq. _tbr his benefit.

is simply

no legitimate

basis for doing so. that "Gomes v. Countrywide _h1149 (2011)] mortgagee, holds that there is or any of

As Appellant [Gomes v. Countrywide

notes, the Trial Court concluded Homeloans, Inc. 192 Cal.App.4 of the trustee,

no legal basis to challenge their authorized (a)(1)." agents

the authority

beneficiary,

to initiate the foreclosure However, Appellant

process

citing Civil Code 2924, subd. contends his case falls that the

(AA Vol. 2 at 411.)

erroneously

within an exception Trial Court correctly For instance, Mortgage,

to Gomes., applied Appellant

A review

of Gomes

and its progeny

indicates

the case. suggests that the decision in Tamburri v. Suno'ust that he has

Inc. 2011 WL 6294472 claim

(N.D. Cal. 2011) supports

his argument

stated an actionable foreclosure concedes no dispute

based on the Respondents' Property. (Opening

lack of authority

to conduct Appellant and there is just as or was not

of the Subject

Brief at 21.)

This is notso.

he was in dehult on the Subject as to CRC's standing as Trustee

Loan and did not cure the default, throughout the foreclosure process,

there is no claim that Appellant made aware of the change Tamburri, discuss identity where

failed to receive

any notice of the proceedings

in beneficiary. alleged

These facts are quite different that her loan servicer

from those of her to the correct

the borrower alternatives

never contacted regarding

foreclosure

and made multiple supra,

misstatements Similarly,

of the beneficiary.

(Tamburrg

at 1-2.)

the facts of the present In Ohlendorf

case are also distinct v. American denied assigned

from those of the other cases relied on by Appellant. Servicing, as to whether et al. 279 F.R.D. a particular assignment

Home Mortgage to dismiss it appeared

575 (E.D. Cal. 2010), the court

a motion because

deed of trust had been properly had been backdated. (ld.) Again, Likewise case

that a relevant

there is no such allegation in Barrionuevo

in this matter

and the public record

shows otherwise. another

v. Chase Bank,

N.A. 2012 WL 3225953

(N.D. Cal. 2012),

12
3371907.1 --ALI09.W837

relieduponby Appellant,thefactsareinapposite t. In Barrionuevo,

the WaMu the WaMu had transferred title to an investor and thereon

the allegation

was

trust in 2006, prior to JPMorgan concluded that JPMorgan

purchasing

loan from the FDIC,

had no interest in for wrongful to file a

the that note. foreclosure Notice alleged

That court recognized where a party alleged and initiate

the "existence

of a valid cause &action instructs

not to be the true beneficiary foreclosure."

a trustee

of Default

nonjudicial

(Id at 7.) That is not what was

in this case. Here, plaintiff alleges just the opposite--that (Opening the transfer to the investor trust by

WaMu

was never

completed.

brief at p. 11, quoting

paragraph

47 of the to the

complaint). investor bought

So taking

plaintiff's

allegations owned

as true, if the loan did not transfer it on September

trust in 2006, then WaMu WaMu's

25, 2008, and when JPMorgan interest in

assets fi'om the FDIC on that same day, it also bought WaMu's to the December 8, 2008, Assignment

the Subject

Loan. And later, pursuant became

of Deed of the on this

Trust, the La Salle Trust Trustee

the beneficiary. (RA at 78-80.) to initiate

All the while, CRC remained Thus, when Appellant foreclosure proceedings

under the Deed of Trust.

defaulted

loan obligations, La Salle Trust.

CRC was authorized (RA at 78-80.) citation that prior to Javaheri

on behalf of the

Appellant's plaintiff alleged

is likewise

unavailing, acquisition

as again, because of WaMu,

there the

to the 2008 JPMorgan Mutual Mol_tgage

WaMu had sold (Javaheri v.

the note to "Washington JPMorgan

Securities

Corporation" WL 2173786.)

in 2007.

Chase Bank, N.A. (C.D. Cal. 2011) 2011 the Javaheri plaintiffs allegations

Thus, like the claims had nothing is that WaMu to did

in Barrionuevo, acquire in 2008.

were that JPMorgan

But it beat's repeating

that in this case, the allegation of 2008. (AA at 182-205.) WaMu's interest

not assign Appellant's

the loan prior to September own allegations, 25, 2008. JPMorgan

Thus, based on in the Subject arguments Loan - in

did acquire

on September

As such, Javaheri

is of little aid to Appellant's

13
3371907.1 --ALI09.W837

Javaheri contends

the plaintiff

alleged

the note was sold to early, while

in this case Appellant

it was sold to late. Appellant is tilting at windmills in a Hail Mary effort to revive his claims, but he

offers

no substantive Demurrer

argument

as to any error by the Trial Court and the ruling on Amended Complaint should be affirmed. a Viable Claim to

Respondents' C.

to the Second Second

Plaintiff's

Cause

of Action Sale

Does Not State

Set Aside the Foreclosure

Although a claim action for setting is an attack

Appellant

labeled

his second sale.

cause of action More specifically,

as one for fraud, it is really the second cause of to the

aside the foreclosure on the legitimacy

of the trustee's

sale of the Subject

Property

beneficiary Appellant servicing justify

Bank of America. contends agreement

(AA at 9-11.)

In his flawed effort to support

this claim, and

that the Promissory trust. (Id.)

Note was not timely included even if this allegation (See Nguyen

in a pooling

However, sale.

were true, it would not 105 Cal.App.4 th at

the setting aside of the trustee's ("Nguyen").)

v. Calhoun,

428 at 445 (2003) setting

Specifically, valid foreclosure itself....A

the Court in Nguyen sale, the claimed mistake

held, "To justify irregularity must arise the

aside a presumptively proceeding

from the foreclosure confines sale."

that occurs outside

("dehors')

of the statutory

proceeding omitted].)

does not provide In Nguyen,

a basis for invalidating

the trustee's i.e. the

(Id. at 445 [Citations transfer

as here, the purported the foreclosure.

mistake,

"improper"

of the Deed of Trust, was dehors

Thus, there can be should be

no valid claim to set aside the foreclosure affirmed. VIII. APPELLANT'S TO TENDER OF ACTION AND QUIET Assuming FAILURE

sale and the ruling on the demurrer

TO ALLEGE

ABILITY

AND WILLINGNESS TO THE CAUSES

THE FULL AMOUNT FOR WRONGFUL

OWED

IS FATAL

FORECLOSURE_

CANCELLATION

TITLE that Appellant's insufficient forgery allegations were not at

arguendo

14
3371907.1 -- ALI09,W837

theheartof his third,fourthandeighthcauses of action,thoseclaims wouldstill be subject to demurrer dueto lackof tender.These claimsfor wrongfulforeclosure, cancellation andquiettitle areall associated with anallegedlyimproper foreclosure. A conditionprecedent to anycause of actionarisingfi'omanalleged wrongfulforeclosure is thattheborrowermusttenderor offerto tender a sumsufficienttocurethedefault. (UnitedStates
Cal.App.3d Second Cold Storage v. Great Appellant Western Savings & Loan Association, 165 from the

1214 (1985).) Complaint.

nevertheless

omits this critical

allegation

Amended

In United States

Cold Storage,

the Court stated:

It would be futile to set aside a foreclosure sale on the technical ground that notice was improper, if the party making the challenge did not first make full tender and thereby establish his ability to purchase the property. Thus, it is sensible to require that a trustor, whose default to begin with resulted in the foreclosure, give proof before the sale is set aside that he now can redeem the property. (Id at 1225.)

This rule of requiring American stated: Savings'

a tender

from the borrower 15 Cal.App.3d

was also addressed

in Karlsen

v.

& Loan Association,

112 (1971), where the Court

"A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust. [Citations omitted.] A tender of payment is of no effect if the offerer does not have the present ability to make the tender good." The Court of Appeal "in order to maintain sale, plaintiffs UnitedSav. affirmed borrower's reaffirmed the rule in Abdallah v. United Savings Bank that

any cause of action for irregularity" to tender the amount

in the procedure indebtedness.

ofa trustee's Abdallah v.

are required

of the secured

Bank, 43 Cal.App.4th the trial court's action sustaining

1101, 1109 (1996). of a demurrer,

InAbdallah,

the Court of Appeal to a

without

leave to amend,

to set aside a trustee's of the amount

sale and for damages,

which among other things,

failed to allege tender the action. Miller

due on the foreclosed

upon loan prior to the filing of of Trust", section 10:212,

& Start,

Calif. Real Estate

4 rh ed "Deeds

15
3371907. I -- ALl 09.W837

pg. 653-654 validity

("Without

an allegation

of such tender

in the complaint

that attacks

the

of the sale, the complaint Here, Appellant makes

does not state a cause of action.") of his ability to tender the amount cannot seek equitable due under relief

no allegation

the Loan. because Appellant

(AA at 192-195; Appellant

199-203.)

Thus, Appellant 5 In an attempt

has not done equity. that tender (Opening

to avoid the tender requirement, he is also seeking damages,

now contends

is not required

because

not simply equitable or cancel an allegedly

relief.

Brief at 32-33.) are equitable to equitable

However,

claims to set aside and The fact

wrongful

foreclosure in addition

by their very nature.

that a plaintiff

seeks damages

relief does not change the fact that with the pleading requirements

he or she is still seeks equitable for such relief. (Abdallah, supra,

relief and must comply 43 CaI.App.4th

at 1109.) Moreover, For instance, Appellant

the law Appellant places great In a

relies upon is inapplicable weight Dimock, foreclosure Appeal on Dimock

to the facts at hand. Properties

v. Emerald

LLC, et al. 81 Cal.App.4

a_ 868 (2000).)

the first trustee

conveyed

the property

at issue to the new buyer following for the first.

sale, but a second District

trustee

had been substituted found

The Court of trustee

for the Fourth

of California,

that, because

only the second

had the power voidable. entitled (Id.)

to convey

the property

following

the sale, the sale was void and not merely of the trustee and thus CRC was

In this case, there was no substitution the Subject Property

to convey

to Bank of America.

As such, the Trial Court's

ruling was sound

and need not be disturbed.

5 (Williams v. Koenig, 219 Cal. 656, 660 (1934). "A cause of action 'implicitly integrated' with the irregular sate fails unless the trustor can allege and establish a valid tender. [Citation Omitted.]" See also, ArnoM Management Corporation v. Eisehen, 158 Cal.App.3d 575,579 (1984).)

16
3371907.1 -- ALr09.W837

IX.

APPELLANT FOR UNFAIR Appellant's

DOES

NOT AND CANNOT PRACTICES is brought Code

STATE

A VIABLE

CLAIM

BUSINESS Cause

Ninth

of Action

under the Unfair Competition 17200 through Furthermore,

Law

("UCL"),

California

Business

and Professions

17209, but the Appellant's Opening (See

claim fails to allege any facts showing Brief fails to address Opening Court's Brief.) ruling A. the Trial Court's

that Appellant.

ruling as to the Ninth Cause of Action. waived his right to appeal

While Appellant as to this particular Appellant

has arguably

the Trial below.

claim, the defects

in the claim are addressed Tile UCL. Code 17204 specified

Lacks Standing

To Sue Under

As amended by Proposition limits standing in an Unfair

64, Business

and Professions to certain

now

Competition

Law action

public officials as a has

and to "any person result of...

who has suffered

injury in fact and has lost money or property added).) 6 Whether

unfair competition."

(Id. at 228 (emphasis issue that must be decided by a demurrer. Because

a plaintiff

standing decided

to sue is a threshold and is properly raised

before the merits of a case can be Group, Inc., 171

(See Troyk v. Farmers elements for standing

Cal.App.4th requirements supported proof,

1305, 1345 (2009).) but rather

"are not mere pleading must be

an indispensable

part of the plaintiff's on which

case, each element

in the same way as any other matter and degree 7

the plaintiff

bears the burden of stages of

i.e., with the manner [Citations.]"

of evidence

required

at the successive

the litigation.

6 Prior to its amendment in 2004, the Unfair Competition Law ("UCL"), 17200 of the Business and Professions Code and related provisions, permitted any person acting for the general public to sue for relief from unfair competition and did not predicate standing on a showing of injury or damage. (See Cal!fornians For Disability Rights v. Mervyn 's, LLC, 39 Cal.4th 223,228 (2006).) 7 Lujan v. Defenders of Wildlife (1992) 504 U.S. 555,561, 112 S.Ct. 2130, 119 L.Ed.2d. See also Mervyn's, supra, 39 Cal.4th at 233 ('[C]ontentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceeding. [Citations.]'

17
3371907.1 --ALI09.W837

In thiscase, Appellanthasnotalleged anyeconomic injuryor lossofproperty due to analleged violationof anystatute or otherlaw. Instead, Appellantrepeats his allegations regarding the legitimacyof Ms. Brignac's signatures on theAssignment and/orNOTS,andAppellantalsorepeats thatRespondents "[attempted] totransfer Plaintiffs Deedof Trustaftertheclosingdateof thePoolingandServicing Agreement." (AA at 201.) However, by Appellant's ownadmission, it is hisfailuretomaintain his monthlypayments undertheSubjectLoandocuments andhisfailureto curethe delinquency, thatcaused theSubjectProperty to besoldatthetrustee's sale. Consequently, theTrial Courthadabsolutely noallegations beforeit satisfytheelement of economic injury or lossof property because of anypurported unfairor unlawful actions by anyof theRespondents. Accordingly, theTrial Court's rulingontheNinth Cause of
B. Action should Appellant stand. Fails to Alle_e Available standing, Any Underlyin_ Under the UCL of actlon for an Statutory Violations or Seek

a Form of Relief In addition to establishing unlawful business practice violates

in order to state a cause

under the UCL, the plaintiff an underlying law. (See People with reasonable

must allege facts demonstrating v. McKale, 25 Cal.3d 626, 635 Khoury v. Maly's of

that the practice (1979).) California, practices elements violated

These facts must be alleged 14 Cal.App.4th under these statutes of the violation.") any underlying

particularity.

612, 619 (1993)

("A plaintiff

alleging unfair business particularity the statutory that Respondents with reasonably

must state with reasonable In this case, Appellant

has not alleged

law, much less made any such allegations

particularity. Further, Appellant does not allege any credible recoverable under the UCL. supporting facts that would entitle No damages Corp. 29 Cal. for

him to relief that is actually are recoverable

(AA at 202-203.) Martin

under the UCL. ("Korea

(See Korea Supply Supply").) Instead,

Co. v. Lockheed the UCL provides

4th 1134, 1144 (2003)

primarily

18
3371907.1 --ALI09.W837

injunctivereliefandrestitution. 8 Here,Appellant does not seek thepermissible injunctive reliefor restitution, butinstead seeks only attorney's fees whicharenotrecoverable under theUCL. (AA at202-203;see
App. 3d 97 at 103,108, been alleged Respondent's X. THE CURE Appellant agreement the United ("Federal reached by Appellant Demurrer U.S.v. Shadoan v. Worm Savings & Loan Association, 219 Cal.

n. 7 (1990).)

Consequently,

no available

relief under the UCL has to sustain

and the trial court was within its authority without leave to amend. CORP. SETTLEMENT COMPLAINT

BANK

OFAMERICA

DOES

NOT

ANY DEFECTS

IN APPELLANT'S

seeks to have this Court consider in a separate matter,

a consent judgment v. Bank of America

and settlement Corp., filed in

United States

States District Settlement").

Court for the District (Opening

of Columbia,

Case No. 12-CV-00361 the fact that not only

Brief at 16.) Appellant to this matter,

overlooks

does the Federal retroactively, asserts

Settlement

not apply

but it also does not apply in any event. 9 Appellant sworn statements (Opening I.A.(11).) and Brief at 17, Appellant is

and would not apply to Appetlant's to the Federal Settlement,

allegations "affidavits,

that according

Declarations quoting apparently

shall be signed

by the hand signature Settlement

of the affiant."

the Federal seeking

Settlement,

Term Sheet, Section was required

to argue that Ms. Brignac of Deed of Trust that either of those Settlement

to sign the Notice

of Default

Sale and Assignment law does not require requirements required

under oath and by her own hand. documents

But California

be signed under oath and the limited to those documents for Judicial Notice.) As such,

of the Federal

are specifically

to be signed

under oath.

(See Appellant's

Request

8 Id. at 1144. Civil penalties are available only in government Cali/brnia Business and Professions Code 17206.)

enforcement

actions.

(See

9 Respondents objected to Appellant's Request for Judicial Notice of the Federal Settlement and do not waive those objections by addressing Appellant's mistaken interpretation of the Federal Settlement. Rather, they address Appellant's arguments the event the Request for Judicial Notice is granted.

in

19
3371907,1--ALI09.W837

Appellant's positionis withoutmerit andprovides nogrounds for overturning theTrial Court's ruling. XI,
CONCLUSION In an attempt Court, Appellant to confuse at straws the issues and seek relief from a sound ruling by the Trial with hypothetical allegations of forgery and reliance on

grasps

inapplicable

case law. However,

the facts are in reality very simple: instructed

Appellant the Trustee out without

defaulted to

on his loan, the default initiate foreclosure

was not cured, and the beneficiary and those proceedings cannot

proceedings

were carried

procedural

irregularity.

Appellant decision

in good faith allege anything Respondent's Demurrer without

to the contrary leave to amend

and the Trial Court's should be affirmed.

to sustain

Dated:

November

26,

2012

ALVARADOSMITH A Professional Corporation

By:/s/Mikel Mikel

A. Glavinovich A. Glavinovich

Attorneys for Respondents Bank of America, National Association as successor by merger to "La Salle Bank NA as trustee for WaMu Mortgage Pass-Through Certificates Series 2005ARI 7" Trust, JPMorgan Chase Bank, N.A. as successor by merger to Chase Home Finance, LLC, JPMorgan Chase Bank, N.A., and California Reconveyance Company

2O
3371907.1-oALI09.W837

CERTIFICATE [California Rules

OF BRIEF of Court,

LENGTH

rule 8.204(c)(1)]

Pursuant foregoing computer brief

to Califomia contains 7513

Rules words,

of Court, as shown

rule 8.204(c)(1), by the word

I certify count

that the of the

function

program

used to prepare

the brief.

Dated:

November

26, 2012

/s/Mikel A. Glavinovich Mikel A. Glavinovich

21
3371907.1 -- ALI09.W837

PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is ALVARADOSMITH, 633 W. Fifth Street, Suite 1100, Los Angeles, CA 90071. On NOVEMBER 26, 2012, I served the foregoing document RESPONDENTS' BRIEF on the interested parties in this action. described as

[]

by placing addressed

the original as follows:

and/or

a true

copy enclosed

in (a) sealed

envelope(s),

SEE A'I-rACHED

SERVICE LIST

[]

BY REGULAR MAIL: I deposited such envelope in the mail at 633 W. Fifth Street, Los Angeles, California 90071. The envelope was mailed with postage fully prepaid. I am "readily familiar" with this firm's practice of collecting and processing correspondence for mailing. It is deposited with U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than 1 day after date of deposit for mailing in affidavit. BY FACSIMILE MACHINE: facsimile numbers. I Tele-Faxed a copy of the original document to the above

[]

[]

BY OVERNIGHT MAIL: I deposited such documents Box located at 633 W. Fifth Street, Los Angeles, deposited with delivery fees fully prepaid. BY PERSONAL addressee(s). SERVICE: I caused such envelope(s)

at the Overnite Express or FedEx Drop California 90071. The envelope was

[]

to

be delivered

by hand to the above

[]

(State) I declare under penalty of perjury that the foregoing is true and correct. Executed on NOVEMBER

under

the laws of the State of California

26, 2012, at Los Angeles,

California,

_U_L:_A EVANS

22
3371907.1 -- ALI09.W837

SERVICE LIST

CATARINA

M. BENITEZ, ESQ. M. BENITEZ

Attorney

for Appellant Delivery]

LAW OFFICES OF CATARINA

2014 TULARE STREET, SUITE 400 FRESNO, CA 93721

[1 copy by Overnight Tel.: Fax: (559) 472-7337 (559) 579-1100

SUPERIOR COURT OF FRESNO COUNTY B.F. SISK COURTHOUSE 1130"O"STREET FRESNO, CA 93721 CALIFORNIA COURT OF APPEAL

1 Copy [by Overnight Delivery]

Original

+ 4 copies

FIFTH APPELLATE DISTRICT 2424 VENTURA STREET FRESNO, CA 93721 SUPREME COURT OF THE STATE OF CALIFORNIA [1 extra copy to conform] [by Overnight i Electronic Delivery] Copy

23
337i907.1 -- ALIO9.W837