Opinion
B290145
07-14-2021
PARVIN JAMALI et al., Plaintiffs and Appellants, v. SELECT PORTFOLIO SERVICING, INC. et al., Defendants and Respondents.
Michael Shemtoub; Lorden & Reed, Zshonette L. Reed; Payman Taheri; and Michael Yesk for Plaintiffs and Appellants. Wright, Finlay & Zak, Gwen H. Ribar, Oliver J. Labarre, for Defendants and Respondents Select Portfolio Servicing Inc. and U.S. Bank, N.A., as Trustee, etc. Fidelity National Law Group, Kevin R. Broersma, for Defendants and Respondents U.S. Bank, N.A., as Trustee, etc.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC593550 Monica Bachner, Judge. Affirmed, with directions.
Michael Shemtoub; Lorden & Reed, Zshonette L. Reed; Payman Taheri; and Michael Yesk for Plaintiffs and Appellants.
Wright, Finlay & Zak, Gwen H. Ribar, Oliver J. Labarre, for Defendants and Respondents Select Portfolio Servicing Inc. and U.S. Bank, N.A., as Trustee, etc.
Fidelity National Law Group, Kevin R. Broersma, for Defendants and Respondents U.S. Bank, N.A., as Trustee, etc.
MOOR, ACTING P. J.
Plaintiffs, cross-defendants, and appellants Parvin Jamali and Mohsen Lotfimoghaddas appeal from a judgment following an order sustaining demurrers without leave to amend in favor of defendant and respondent Select Portfolio Servicing, Inc. (SPS), and defendant, cross-complainant, and respondent U.S. Bank, N.A., as trustee, successor in interest to Bank of America, N.A., as trustee as successor by merger to La Salle, N.A., as trustee for WAMU Mortgage Pass-Through Certificates Series 2007-HY7 Trust (the Trustee). In their sixth amended complaint, Jamali and Lotfimoghaddas sought to allege declaratory relief based on rescission of a loan from Washington Mutual Bank under the Truth in Lending Act (TILA) (15 U.S.C. § 1601 et seq.), quiet title, and elder abuse. On appeal, Jamali and Lotfimoghaddas contend: (1) the complaint is not barred on its face by any statute of limitations; (2) the trial court improperly took judicial notice of the fact that the Federal Deposit Insurance Corporation (FDIC) was appointed as receiver for Washington Mutual in September 2008; (3) Jamali and Lotfimoghaddas were not required to exhaust remedies provided under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) (12 U.S.C. § 1811 et seq.); (4) the deed of trust recorded by Washington Mutual is void, because it does not include the legal description of the property; (5) conduct by SPS and the Trustee to foreclose on the property constituted elder abuse; and (6) leave to amend should have been granted.
Except where stated otherwise, all statutory references are to Title 15 of the United States Code.
We conclude the trial court properly sustained the demurrers, because: (1) the alleged relief based on rescission under the TILA is barred by the statute of limitations; (2) the description of the property contained in the deed of trust was sufficient; and (3) no conduct was alleged that supported a claim for elder abuse. Jamali and Lotfimoghaddas have not shown on appeal that the complaint can be amended to state a cause of action. We modify the judgment to dispose of the first amended cross-complaint, and as modified, we affirm.
In accordance with the standard of review, the facts are stated based on the allegations of the operative sixth amended complaint, including documents attached to the complaint and incorporated by reference, as well omitted or inconsistent allegations from earlier pleadings and matters judicially noticed. (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 342-344; Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP (2010) 183 Cal.App.4th 238, 240.)
Jamali, who is an elderly person, and her son Lotfimoghaddas purchased a home on Robin Drive in Los Angeles. The legal description of the property attached as exhibit A to the grant deed recorded in August 2006, was: “Lot 86 of Tract No 23753, in the City of Los Angeles, County of Los Angeles, State of California, as per map recorded in book 630, page(s) 57 to 63 inclusive of maps, in the office of the Country Recorder of said county. [¶] Except therefrom all oil, gas, minerals and other hydrocarbon substances in and under said land lying below a depth of 500 feet from the surface, without however, the right of surface entry, as reserved in a deed recorded in book D217 page 635 official records.” The grant deed stated that the property was also known as 9219 Robin Drive, Los Angeles, California, and the assessor's parcel ID number was 5561-007-032.
Jamali and Lotfimoghaddas financed their purchase with a loan of $3 million from Washington Mutual. A deed of trust securing the loan was recorded in August 2006 on the following property interest in the county of Los Angeles: “Legal description exhibit ‘A' attached hereto and made a part hereof. Also: legal description exhibit ‘B' attached hereto and made a part hereof. Requirements for reconveyance: partial reconveyance of the property known as exhibit ‘B', may be obtained upon payment to the bank of $608,000.00. However, in no event shall the bank be required to release the property if the borrower is in default under the terms of this deed of trust, the note or other loan documents.” The deed of trust gave the parcel ID number 5561-007-032, which currently has the address of 9219 Robin Drive, Los Angeles, California.
Exhibit A provided the same legal description as exhibit A of the grant deed for the Robin Drive home, but added the assessor's parcel number: “Lot 86 of Tract No 23753, in the City of Los Angeles, County of Los Angeles, State of California, as per map recorded in book 630, page(s) 57 to 63 inclusive of maps, in the office of the Country Recorder of said county. [¶] Except therefrom all oil, gas, minerals and other hydrocarbon substances in and under said land lying below a depth of 500 feet from the surface, without however, the right of surface entry, as reserved in a deed recorded in book D217 page 635 official records. [¶] APN: 5561-007-032.”
Exhibit B stated, “All that certain real property situated in the County of Los Angeles, State of California, described as follows: [¶] Lot 5 of Tract No. 7737, partly in the City of Los Angeles, and partly in the County of Los Angeles, State of California, as per map recorded in Book 88, page(s) 85 through 87, inclusive, of Maps, in the office of the County Recorder of said County.”
In May 2007, Jamali and Lotfimoghaddas obtained a new loan of $2.5 million from Washington Mutual. The earlier loan was repaid, and the 2006 deed of trust was reconveyed. A deed of trust dated May 16, 2007, with a recording date of May 24, 2007, secured the loan through property located in the County of Los Angeles having the assessor's parcel ID number 5561-007-032 and the address of 9219 Robin Drive, Los Angeles, California 90069. The space on the trust deed for the legal description was blank; stray marks in the space suggest text was covered and copied over to remove it, leaving the legal description blank.
Within three days, Jamali and Lotfimoghaddas rescinded the loan in writing. Washington Mutual ignored the written request to cancel the loan, declared bankruptcy, and was liquidated. J.P. Morgan Chase Co. and J.P. Morgan Chase Bank, N.A. (collectively Chase Bank) purchased all of Washington Mutual's assets in September 2008.
In early 2012, Jamali and Lotfimoghaddas fell behind on their mortgage payments. Chase Bank initiated foreclosure proceedings, which were later rescinded. In an assignment recorded on April 25, 2012, the beneficial interest under the deed of trust was assigned to the Trustee. In July 2013, Chase Bank notified Jamali and Lotfimoghaddas that SPS would be servicing the loan. In September 2014, a third party offered to purchase the property for $2.5 million.
On March 23, 2015, SPS, recorded a notice of default and election to sell the property at a non-judicial foreclosure sale. The notice stated that the amount due was $590,116.69. A notice was recorded on June 24, 2015, purportedly on behalf of SPS, which rescinded the notice of default and demand for sale. On August 26, 2015, SPS sent a notice to Jamali and Lotfimoghaddas that the Robin Drive property would be sold at a foreclosure sale scheduled for September 23, 2015.
PROCEDURAL BACKGROUND
Procedural History Prior to Operative Complaint
On September 9, 2015, Jamali filed a verified complaint against Chase Bank, SPS, and debt collector Nationwide Credit, Inc., for declaratory relief, violation of debt collection and homeowner protection laws, and elder abuse, among other claims. The original complaint did not allege that Jamali and Lotfimoghaddas sent a notice to Washington Mutual in 2007 rescinding the transaction. The complaint stated the principal balance of $2.5 million was secured by a deed of trust on the property. The 2007 deed of trust was attached to the complaint and incorporated by reference.
After demurrers were sustained with leave to amend to the first two versions of the complaint, Jamali and Lotfimoghaddas filed a second amended complaint in June 2016 adding a cause of action for rescission against Chase Bank based on allegations that they had requested in writing to rescind the loan, but Washington Mutual ignored their written request.
SPS filed a demurrer to the second amended complaint on several grounds, including that no conduct was alleged to have been taken by SPS, and the plaintiffs had tendered the amount of the principal only, rather than the full amount owed. Jamali and Lotfimoghaddas opposed the demurrer on several grounds, including the effect of their rescission under the TILA. The trial court sustained the demurrer with leave to amend.
The plaintiffs' third amended complaint was substantively similar. SPS filed a demurrer on several grounds, including that the TILA did not apply to residential purchase money mortgages, there is no liability for servicers under the TILA, the statute of limitations for rescission under the TILA barred the claim, and the complaint failed to allege SPS took any property from Jamali by wrongful act or with the intent to defraud her. The trial court sustained SPS's demurrer with leave to amend. In December 2016, Jamali and Lotfimoghaddas entered into a settlement with Chase Bank and Nationwide.
In January 2017, Jamali and Lotfimoghaddas filed a fourth amended complaint against SPS only. They alleged causes of action for cancellation of instrument, declaratory relief, quiet title, and elder abuse based solely on rescission under the TILA.
SPS filed a demurrer. In addition to the prior arguments, SPS argued that the complaint failed to allege the legal description of the property to which Jamali and Lotfimoghaddas were seeking to quiet title. On March 9, 2017, Jamali and Lotfimoghaddas filed a notice of errata stating that the legal description of the Robin Drive property was inadvertently omitted from the fourth amended complaint. To supply the legal description, they attached a copy of exhibit A from the 2006 trust deed. Jamali and Lotfimoghaddas opposed SPS's demurrer on several grounds, including arguing SPS was the true representative of the owner and the TILA claim was not barred by the statute of limitations contained in the statute.
In March 2017, Jamali and Lotfimoghaddas filed an amendment to the fourth amended complaint substituting the Trustee in place of Doe 1. The Trustee filed a notice of joinder in SPS's demurrer to the fourth amended complaint. The trial court sustained the demurrer with leave to amend. The court found there were no allegations made as to the Trustee, the TILA provisions for rescission were not applicable to residential mortgages, a borrower may sue a creditor under the TILA but not a servicer, and the action for rescission was barred by the statute of limitations.
In April 2017, Jamali and Lotfimoghaddas filed a fifth amended complaint against SPS and the Trustee. For the first time, they alleged the property was purchased in August 2006, and attached the 2006 deed of trust to the complaint. They included the assessor's parcel number and the street address, but did not allege the legal description of the property.
Allegations of the Cross-Complaint
On May 26, 2017, the Trustee filed a cross-complaint against Jamali, Lotfimoghaddas, and other individuals. The cross-complaint alleged causes of action for quiet title, reformation of instruments, and declaratory relief on the ground that the deed of trust was valid and enforceable despite the omission of the legal description. The Trustee attached the 2006 grant deed containing the legal description, as well as the deeds of trust securing loans from Washington Mutual.
Demurrer to the Fifth Amended Complaint
SPS and the Trustee filed a demurrer to the fifth amended complaint. In addition to grounds alleged previously, they argued that there is no right under the TILA to rescind a loan made by the same lender to the same borrower to pay off an existing loan, and the quiet title claim again failed to allege the legal description of the property.
Jamali and Lotfimoghaddas opposed the demurrer on several grounds. They argued that allegations of the property address and assessor's parcel number were sufficient to disclose the property description, and a complete legal description, although more precise, was not essential.
On June 20, 2017, the trial court sustained the demurrer as to cancellation of the promissory note and deed of trust without leave to amend. The court sustained the demurrer as to the cause of action for quiet title and declaratory relief without leave to amend as to SPS and with leave to amend as to the Trustee. The demurrer to the cause of action for elder abuse was sustained with leave to amend as to both defendants.
Allegations of the Operative Sixth Amended Complaint
On July 13, 2017, Jamali and Lotfimoghaddas filed the operative sixth amended complaint for declaratory relief and quiet title against the Trustee, and elder abuse against the Trustee and SPS. The cause of action for declaratory relief was based solely on rescission under the TILA. The real property at issue was commonly known as 9219 Robin Drive, Los Angeles, California, assigned assessor's parcel number 5561-007032, and legally described as: “Lot 86 of Tract No. 23753, in the City of Los Angeles, County of Los Angeles, State of California, as per map recorded in book 630, pages 57 to 63 inclusive of maps, in the office of the Country Recorder of said county. [¶] Except therefrom all oil, gas minerals and other hydrocarbon substances in and under said land lying below a depth of 500 feet from the surface, without however, the right of surface entry, as reserved in a deed recorded in book D217 page 635 official records.”
The deed of trust securing the second promissory note that was recorded on May 24, 2007, stated the commonly known address of the property on Robin Drive and the assessor's number, but not the legal description. As a result, the deed of trust should be found void. In addition, it was void as a result of the plaintiffs' rescission under the TILA. The plaintiffs sought a determination that they held title in fee simple, free of any encumbrance except the loan from the third party.
The elder abuse claim was based on rescission of the deed of trust under the TILA and the omission of a legal description from the deed of trust. SPS and the Trustee were trying to take Jamali's property without legal authority, causing her to suffer emotional and financial harm.
Demurrers and Amended Cross-Complaint
In December 2017, SPS filed a demurrer. In addition to grounds raised previously, SPS argued the elder abuse provisions at issue were not in effect at the time of the transaction and there was no liability under the TILA for a loan servicer who never owned the note. SPS requested the trial court take judicial notice of five documents: the 2007 deed of trust; a corporate assignment of the 2007 deed of trust from Chase Bank to the Trustee, which was recorded on April 25, 2012, and referred to Chase Bank as “successor in interest by purchase from the FDIC as receiver of Washington Mutual;” a substitution of a firm acting on behalf of SPS under the deed of trust, which was recorded in February 2015; the March 2015 notice of default; and the June 2015 notice of rescission of the notice of default, purportedly signed on behalf of SPS.
Jamali and Lotfimoghaddas opposed SPS's demurrer on the ground that SPS had no liability under the TILA, but could be held liable for elder abuse because SPS had received money and exercised control over the property since 2010.
On December 21, 2017, the Trustee filed a demurrer. In addition to grounds raised previously, the Trustee argued: (1) the 2007 loan transaction was a refinance that was not protected by the TILA; (2) Jamali and Lotfimoghaddas failed to exhaust the administrative process for bringing claims against a failed institution and its successors as provided under the FIRREA; (3) a legal description is not required for a valid, enforceable deed of trust as long as it provides other means to identify the property and locate its position on the ground; and (4) there were no allegations that the Trustee took or retained Jamali's property.
On January 12, 2018, the Trustee filed an amended cross-complaint solely against Jamali and Lotfimoghaddas alleging a single cause of action for declaratory relief as follows. The property subject to the lawsuit was commonly known as 9219 Robin Drive, Los Angeles, California, assigned assessor's parcel number 5561-007-032, and legally described as: “Lot 86 of Tract No. 23753, in the City of Los Angeles, County of Los Angeles, State of California, as per map recorded in book 630, pages 57 to 63 inclusive of maps, in the office of the Country Recorder of said county. [¶] Except therefrom all oil, gas minerals and other hydrocarbon substances in and under said land lying below a depth of 500 feet from the surface, without however, the right of surface entry, as reserved in a deed recorded in book D217 page 635 official records.”
The 2007 deed of trust was inadvertently recorded without referencing the legal description, which the Trustee learned through a trustee's sale guarantee. A controversy existed between the Trustee and Jamali and Lotfimoghaddas concerning the validity and enforceability of the 2007 deed of trust and their respective rights and duties. The Trustee contended the legal description was not required for the 2007 deed of trust to be valid and enforceable, and the 2007 deed of trust was valid and enforceable as a lien against the property. The Trustee believed it was the contention of Jamali and Lotifmoghaddas that the 2007 deed of trust was invalid and unenforceable because it did not contain a legal description, and as a result, they contended the Trustee did not have any interest in the property. The trustee sought a declaration that the second deed of trust was a valid and enforceable lien, as of May 24, 2007, against the real property commonly known as 9219 Robin Drive, Los Angeles, California, with the legal description alleged. Jamali and Lotfimoghaddas filed an answer to the amended cross-complaint.
Jamali and Lotfimoghaddas opposed the Trustee's demurrer on the ground that the complaint did not admit facts necessary to implicate FIRREA, and FIRREA did not apply because the action was not being brought against the failed institution. In addition, the deed of trust was void because it lacked a legal description. The elder abuse cause of action was founded on the actions by SPS and the trustee to foreclose on the property when the contract had been rescinded and the deed of trust was void.
The Trustee filed a reply arguing that the claims were based on conduct by Washington Mutual, so FIRREA applied, and the deed of trust was not invalid without a legal description, because the borrowers were aware of the property they intended to encumber. In support of the reply, the Trustee filed a request for judicial notice of a declaration by an FDIC employee in a different case stating that Washington Mutual was declared insolvent on September 25, 2008, and the FDIC appointed as receiver. SPS also filed a reply. Jamali and Lotfimoghaddas filed a “sur-opposition” to the reply briefs.
A hearing was held on the demurrers on February 21, 2018. The trial court asked the status of the cross-complaint. The Trustee's attorney stated that the cross-complaint might be dismissed based on the ruling sustaining the demurrer, but the attorney would have to take a look at it. SPS's attorney asked the court to consider entering a separate judgment of dismissal solely as to the complaint, which the court agreed to do.
The court sustained both demurrers without leave to amend. The court noted the parties did not receive permission to file the untimely oppositions to the demurrers, the replies, or the sur-opposition. As a result, the documents had not been considered, but the court noted the conclusions would have been the same if the documents were considered. SPS's request for judicial notice was granted, but not for the truth of the matters asserted.
The court concluded the declaratory relief claim was based on Washington Mutual's violation of the TILA, but the plaintiffs did not allege facts to show that they exhausted administrative remedies provided under the FIRREA. The plaintiffs failed to allege a quiet title claim for the same reason. In addition, they failed to establish that the deed of trust was void, since it identified the property by address and assessor's parcel number. The plaintiffs failed to allege a cause of action for elder abuse, because they did not allege facts showing that they exhausted administrative remedies or that either defendant took or retained Jamali's property for a wrongful use or with the intent to defraud.
On March 26, 2018, the trial court entered a “separate judgment of dismissal, ” dismissing the complaint with prejudice as against the Trustee and SPS. On May 1, 2018, the Trustee filed a case management statement which noted that the complaint had been dismissed. The Trustee had discovered the June 2015 rescission document was fraudulent. The Trustee reserved September 7, 2018, for a motion to amend the cross-complaint to revise the declaratory relief claim in light of the ruling on the demurrer and to add a cause of action for cancellation of instruments applicable to the June 2015 rescission document.
On May 17, 2018, Jamali and Lotfimoghaddas filed a notice of appeal from the judgment of dismissal entered on March 26, 2018. The defendants and respondents were listed as “J.P. Morgan Chase Co., J.P. Morgan Chase Bank, N.A.; et al.” The case information statement listed SPS and the Trustee as the respondents.
On May 18, 2018, the trustee filed a notice of motion seeking leave to file a second amended cross-complaint. The second amended cross-complaint would strike the cause of action for declaratory relief, because it was moot in light of the order sustaining the demurrer, and allege causes of action related to the June 2015 rescission document.
Proceedings after Notice of Appeal Filed
In September 2018, the Trustee filed an amended notice of motion for leave to file a second amended cross-complaint, in order to attach a proposed second amended cross-complaint that was inadvertently omitted from the notice filed in May 2018. The proposed second amended cross-complaint solely involved setting aside the recorded rescission of the notice of default.
The request for judicial notice filed by Jamali and Lotfimoghaddas on May 28, 2019, asking this court to take judicial notice of the September 4, 2018 amended notice of motion and an October 23, 2018 minute order, is granted.
A minute order entered on October 23, 2018, reflects that the trial court ordered the case stayed. In April 2019, the Trustee filed a request for dismissal of the cross-complaint, which was entered by the clerk. Jamali and Lotfimoghaddas filed a motion to vacate the dismissal of the cross-complaint, on the ground that the matter was stayed under Code of Civil Procedure section 916 pending the resolution of the appeal of the order sustaining the demurrer without leave to amend. On May 29, 2019, the trial court denied the motion as moot, because the Trustee had dismissed the non-operative, original cross-complaint. The same day, the Trustee filed a request for dismissal of the first amended cross-complaint. The clerk refused to enter the dismissal due to the stay.
The request for judicial notice filed by Jamali and Lotfimoghaddas on June 3, 2019, asking this court to take judicial notice of the May 29, 2019 order of the trial court and the May 29, 2019 request for dismissal, is granted. The motion for imposition of the disentitlement doctrine filed with this appellate court on June 3, 2019, to preclude SPS and the Trustee from filing a response to the instant appeal is denied. In addition, we deny the application by Jamali and Lotfimoghaddas filed on October 28, 2019, to consider their attorney's declaration with further exhibits in connection with the disentitlement doctrine and leave to amend based on actions after judgment was entered in favor of SPS and the Trustee.
On May 22, 2019, SPS recorded a notice of default and election to sell under the deed of trust for the Robin Drive property.
On August 20, 2019, SPS and the Trustee requested this appellate court take judicial notice of a document reflecting that the FDIC transferred Washington Mutual's assets to Chase Bank. Although the appointment of the FDIC as receiver for Washington Mutual and the transfer of the failed bank's assets to Chase Bank are judicially noticeable facts (see Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-753), we deny the August 20, 2019 request for judicial notice because it is not relevant to our resolution of the appeal on statute of limitations grounds. On March 2, 2020, Jamali and Loftimoghaddas filed a request for judicial notice of a proposed pleading that they would file in the trial court if given leave to amend. The request is denied, as the material is not appropriate for judicial notice. On June 12, 2019, SPS and the Trustee filed a request for judicial notice of six documents. The request is granted as to the May 22, 2019 notice of default. The request is denied as to the five remaining documents (the sixth amended complaint, the judgment of dismissal, the motion for leave to file a second amended cross-complaint and two declarations supporting the motion for leave), because the documents are already included in the clerk's transcript on appeal.
This appeal was stayed for a substantial period, beginning in March 2020 and continuing into April 2021, because of proceedings involving Jamali in the United States Bankruptcy Court for the Central District of California.
On May 18, 2021, Jamali filed a request for judicial notice of three bankruptcy court orders made in her March 2020 bankruptcy proceeding and a pleading filed in an entirely different civil case pending in the superior court. Jamali's May 18, 2021, request for judicial notice is denied, as the material is not relevant to our resolution of the appeal.
DISCUSSION
Appealability of Judgment as to Trustee
The March 26, 2018 judgment did not dispose of the Trustee's first amended cross-complaint, which remains pending. We issued a letter to the parties providing an opportunity to address appealability in supplemental letter briefs and at oral argument.
Under the one final judgment rule, a judgment that fails to dispose of all causes of action pending between the parties is interlocutory and not generally appealable. (Code Civ. Proc., § 904.1, subd. (a); Kurwa v. Kislinger (2013) 57 Cal.4th 1097, 1100-1101; Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740-741.) A judgment that does not adjudicate issues raised by a cross-complaint in violation of the one final judgment rule is premature and nonappealable. (Roy Brothers Drilling Co. v. Jones (1981) 123 Cal.App.3d 175, 180 (Roy Brothers).) However, “‘[t]he effect of the one judgment rule has... been avoided in several cases “in the interests of justice and to prevent unnecessary delay... by amending the judgment on appeal as needed and then construing the notice of appeal as from the judgment, as amended, ...” [Citations.]' [Citation.]” (Ibid.) When an order sustaining a demurrer effectively disposes of the issue raised by the cross-complaint, we can amend the judgment to do explicitly what was previously implicit. (See Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6 [directing amendment of judgment to enter judgment on cross-complaint where order granting summary judgment resolved the issues raised by cross-complaint].)
The March 26, 2018 judgment entered in favor of the Trustee was not final, because it did not resolve the pending first amended cross-complaint, and therefore, the appeal is premature as to the Trustee. However, the cause of action for declaratory relief in the first amended cross-complaint was entirely based on the allegation that a legal description of the property was not required for the 2007 deed of trust to be valid and enforceable. In sustaining the demurrers to the complaint, the trial court found the 2007 deed of trust was valid and enforceable without the legal description. The Trustee argued in the trial court that the issue raised in the first amended cross-complaint was moot as a result of the order sustaining the demurrer and attempted to dismiss the first amended complaint unsuccessfully. We agree that the issue raised in the cross-complaint was necessarily determined by the ruling on the demurrers. In the interests of justice, we exercise our discretion to modify the March 26, 2018 judgment to enter judgment on the cross-complaint in favor of the Trustee, declaring that the 2007 deed of trust is not invalid or unenforceable for failing to state the property's legal description. As modified, we deem the March 26, 2018 judgment to be appealable as to the Trustee.
Standard of Review
On appeal from a judgment based on an order sustaining a demurrer, we assume all the facts alleged in the complaint are true. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 (Sheehan); Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 (Evans).) We accept all properly pleaded material facts but not contentions, deductions, or conclusions of fact or law. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152; Evans, supra, 38 Cal.4th at p. 6.) We read the complaint as a whole and its parts in their context to give the complaint a reasonable interpretation. (Evans, supra, 38 Cal.4th at p. 6; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“‘Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer.' [Citation.]” (Qualcomm, Inc. v. Certain Underwriters at Lloyd's, London (2008) 161 Cal.App.4th 184, 191.) To the extent a plaintiff's factual allegations conflict with the content of exhibits to the complaint, “we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader's allegations as to the legal effect of the exhibits.” (Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505.) In addition, we consider judicially noticed matters. (Evans, supra, 38 Cal.4th at p. 6.)
We determine de novo whether the complaint alleges facts sufficient to state a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) “Because a demurrer raises only questions of law, ‘“an appellant challenging the sustaining of a general demurrer may change his or her theory on appeal [citation], and an appellate court can affirm or reverse the ruling on new grounds. [Citation.]”' [Citation.]” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1022.) We affirm an order sustaining a demurrer only if the complaint fails to state a claim under any possible legal theory. (Sheehan, supra, 45 Cal.4th at p. 998; Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810 (Fox).)
When a trial court sustains a demurrer without leave to amend, we determine whether there is a reasonable possibility that the defect can be cured by amendment. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924; City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) The trial court abuses its discretion if there is a reasonable possibility plaintiff could cure the defect by amending the complaint. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.) The plaintiff has the burden of proving the defect would be cured by an amendment. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)
Rescission under the TILA
Jamali and Lotfimoghaddas contend the operative complaint stated a cause of action for declaratory relief based on their rescission of the loan transaction within three days, as allowed under the TILA. They also contend they stated an action for quiet title based on the same rescission. We conclude the declaratory relief and quiet title claims based on rescission under the TILA are barred by the statute of limitations.
“The TILA protects a consumer from fraud, deception, and abuse by requiring the creditor to disclose to the consumer certain information about the subject financing. (15 U.S.C. § 1601; see, e.g., 12 C.F.R. §§ 1026.17-1026.23 (2016).) It generally entitles a consumer who has secured a credit transaction with a lien on the consumer's principal dwelling... to rescind a loan transaction within three business days. (§ 1635(a).)” (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 779-780, fn. omitted.) If the creditor fails to provide disclosures to the consumer that are required under the TILA, including notice of the right to rescind, the rescission period is “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first.” (§ 1635(f); 12 C.F.R. § 1026.23(a)(3)(i) (2019).)
“To exercise the right of rescission, the consumer must notify the creditor of his or her intention to rescind ‘by mail, telegram or other means of written communication.' (12 C.F.R. § 1026.3(a)(2) (2016).)” (U.S. Bank National Assn. v. Naifeh, supra, 1 Cal.App.5th at p. 780.) When a consumer exercises the right to rescind, the consumer is not liable for any finance or other charge, and any security interest given by the consumer “becomes void upon such a rescission.” (§ 1635(b).) When a consumer exercises a valid right of rescission, the creditor must act within 20 days after receipt of the notice of rescission to return the borrower's money and take any action necessary to reflect the termination of its security interest. (§ 1635(b).) Failure to respond to the consumer's request constitutes a separate TILA violation. (§ 1640(a).) Section 1640(e) provides a one-year statute of limitations to bring an action for legal damages based on a violation of section 1635.
In Jesinoski v. Countrywide Home Loans, Inc. (2015) 574 U.S. 259, the Supreme Court determined that the TILA does not require a borrower to file a lawsuit within the period stated. “[R]escission is effected when the borrower notifies the creditor of his intention to rescind.... [S]o long as the borrower notifies within three years after the transaction is consummated, his rescission is timely. The statute does not also require him to sue within three years.” (Id. at p. 262.)
“Thus, although emphasizing that the borrower need only give the notice of rescission within the three years, the Court did not clarify when a suit to enforce the rescission must be brought after a lender's failure to act on that notice of rescission.” (Hoang v. Bank of America, N.A. (9th Cir. 2018) 910 F.3d 1096, 1100 (Hoang).) “TILA does not include a statute of limitations outlining when an action to enforce such a rescission must be brought.” (Id. at p. 1098.) “When there is no statute of limitations expressly applicable to a federal statute, ‘we do not ordinarily assume that Congress intended that there be no time limit on actions at all.' [Citation.] Rather, ‘the general rule is that a state limitations period for an analogous cause of action is borrowed and applied to the federal claim.' [Citation.]” (Id. at p. 1101.)
“Because TILA rescissions necessarily require a contract to be rescinded, contract law provides the best analogy and we adopt the general contract law statute of limitations.... There is no federal law that provides a closer analogy, nor do TILA policies at stake and the practicalities of TILA rescission litigation make federal law a more appropriate vehicle for interstitial lawmaking.” (Hoang, supra, 910 F.3d at p. 1101.) In California, an “[a]ction based upon the rescission of a contract in writing” is subject to a four-year statute of limitations. (Code Civ. Proc., § 337, subd. (c); Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 873.)
“To determine which statute of limitations applies to a particular action, we consider the ‘gravamen' of the action rather than its form or the relief demanded. (Yee v. Cheung (2013) 220 Cal.App.4th 184, 194.) The gravamen of an action depends on the nature of the right sued upon or the principal purpose of the action. (Davies v. Krasna (1975) 14 Cal.3d 502, 515.)” (Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 943.) “A claim for declaratory relief is subject to the same statute of limitations as the legal or equitable claim on which it is based.” (Ibid.) The declaratory relief claim in this case is based on allegations of rescission pursuant to the TILA. To determine the statute of limitations that applies in a quiet title action, we also refer to the underlying theory of relief, so to the extent the quiet title allegations were based on the TILA rescission, it is also governed by the statute of limitations for rescission. (See Oates v. Nelson (1969) 269 Cal.App.2d 18, 21-22.)
Applying California's four-year contract statute of limitations, the claims based on rescission under the TILA are clearly untimely. Jamali and Lotfimoghaddas alleged they sent a rescission notice within three days of their transaction with Washington Mutual, no later than May 19, 2007. They have not asserted Washington Mutual failed to provide TILA disclosures. Their cause of action to enforce the rescission arose when Washington Mutual failed to take any action to wind up their loan within 20 days of receiving their notice of rescission. (See § 1635(b).) The four-year statute of limitations on an action to enforce the TILA rescission ran no later than June 8, 2011. Jamali and Lotfimoghaddas waited to file the instant action until September 9, 2015, more than four years after the statute of limitations had run, and even then, they waited several more months to allege that they sent a timely notice of rescission under the TILA to Washington Mutual. Since the statute of limitations barred an action for rescission under the TILA, the demurrers to the claims for declaratory relief and quiet title based on the rescission were properly sustained.
Quiet Title based on Legal Description
Jamali and Lotfimoghaddas also contend the operative complaint alleged a cause of action for quiet title based on the lack of a legal description in the deed of trust securing the promissory note. We disagree.
“This state observes a ‘first in time, first in right' system of lien priorities where, generally, competing enforceable interests have priority among themselves ‘according to the time of their creation.' ([Civ. Code] § 2897.) As to determining the enforceability of such interests, a trust deed must sufficiently describe the property securing it to be enforceable. (Saterstrom v. Glick Bros. Sash, Door & Mill Co. (1931) 118 Cal.App. 379.) ‘To be sufficient the description must be such that the land can be identified or located on the ground by use of the same.' (Edwards v. Santa Paula (1956) 138 Cal.App.2d 375, 380.) ‘[A] description that is equally applicable to two different parcels is fatally defective.' (Id. at p. 382.)” (MTC Financial Inc. v. California Dept. of Tax & Fee Administration (2019) 41 Cal.App.5th 742, 747.)
Although assessor's maps do not need to correspond to parcel maps, an assessor's parcel number identifies a specific lot with particularity on the assessor's map and clearly discloses its location. (See Cafferkey v. City and County of San Francisco (2015) 236 Cal.App.4th 858, 872.)
There is no allegation in any version of the complaint in this case that the property description in the deed of trust is ambiguous, unclear, or misleading. The assessor's parcel number together with the Robin Drive address satisfied the requirement of a sufficient legal description of the property, because the property can be identified or located on the ground based on this description. The legal description of the property is undisputed; Jamali, Lotfimoghaddas, and the Trustee all alleged in verified pleadings that the legal description of the property is “Lot 86 of Tract No 23753, in the City of Los Angeles, County of Los Angeles, State of California, as per map recorded in book 630, pages 57 to 63 inclusive of maps, in the office of the Country Recorder of said county. [¶] Except therefrom all oil, gas, minerals and other hydrocarbon substances in and under said land lying below a depth of 500 feet from the surface, without however, the right of surface entry, as reserved in a deed recorded in book D217 page 635 official records.” Jamali and Lotfimoghaddas have not alleged that the parcel number on the trust deed does not correctly correspond to a property depicted in a tax assessor's map, that the property shown in the tax assessor's map varies from the legal description of the property, or that the street address does not correspond to the legal description. The demurrers to the quiet title claim were properly sustained on the ground that the property description in the deed of trust was sufficient, and therefore, the deed of trust is not void.
Elder Abuse
Jamali's elder abuse claim is dependent on her allegations that the deed of trust was invalid as a result of rescission under the TILA and an inadequate property description. As explained above, the deed of trust is not invalid for these reasons. We conclude that the trial court properly sustained the demurrers to the elder abuse claim.
“‘Financial abuse' of an elder” under Welfare and Institutions Code section 15610.30, subdivision (a)(1), occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” Welfare and Institutions Code section 15610.30, subdivision (b) provides, “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” It is unnecessary to show a fraudulent intent if the defendant took the property for a wrongful use and knew or should have known the challenged conduct harmed the plaintiff. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-528 (Stebley); Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302, 1315-1316.)
However, “It is simply not tortious for a commercial lender to lend money, take collateral, or to foreclose on collateral when a debt is not paid.... [A] commercial lender is privileged to pursue its own economic interests and may properly assert its contractual rights.” (Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334-335; see also Stebley, supra, 202 Cal.App.4th at p. 528.)
Jamali's cause of action for elder abuse is predicated on the deed of trust being invalid as a result of rescission or an inadequate property description. As explained above, the deed of trust is not invalid for these reasons. Jamali has not alleged that SPS or the Trustee took her property for a wrongful use or with the intent to defraud, and the trial court did not err by sustaining the demurrers to the elder abuse claim.
Leave to Amend
A. Additional FIRREA Allegations
Jamali and Lotfimoghaddas contend the trial court abused its discretion by denying them leave to amend to file an eighth complaint in this case. In their opening brief on appeal, they requested leave to amend to add a conclusory allegation that the provisions of FIRREA do not apply. Based on our conclusions above, the proposed allegation is not relevant, and no abuse of discretion has been shown.
B. Allegations of Fraud
Jamali and Lotfimoghaddas assert for the first time on appeal, in an untimely reply brief received on November 19, 2019, that they can amend the complaint to state several causes of action, including quiet title, conversion, declaratory relief, slander of title, and elder abuse, that are all based on new factual allegations that the deed of trust was fraudulently created and illegally recorded. Specifically, they would allege the empty space for the legal description on the 2007 deed of trust previously identified property as security for the loan, which was not the Robin Drive property, but the text of the legal description was covered up after Jamali and Lotfimoghaddas signed the document, in order to conceal the text, and recorded in altered form.
In their letter brief on the issue of appealability filed on February 26, 2020, Jamali and Lotfimoghaddas assert for the very first time that the security given for the 2007 deed of trust was Lotfimoghaddas's home on 1401 Queens Way in Los Angeles, but the deed of trust was manually altered by Washington Mutual to remove the legal description of the Queens Way property after it was signed and before it was recorded.
Jamali and Lotfimoghaddas attached a single-page exhibit to their letter brief which is nearly identical to the recorded 2007 deed of trust, but includes a legal description of the property that they claimed in the letter brief was the correct description of the security. The new exhibit provides a legal description corresponding to exhibit B of the 2006 deed of trust, but provides the assessor's parcel number and address of the Robin Drive property. It is clear from examining both documents that the newly submitted page cannot be from an original deed of trust that was subsequently altered and recorded as the 2007 deed of trust; in the new exhibit, part of the printed form is obscured by the text of the legal description, where the same portion of the form is clearly visible on the recorded 2007 deed of trust. Jamali and Lotfimoghaddas have not explained the context of the new exhibit, and they did not provide the entire document.
At oral argument, Jamali and Lotfimoghaddas abandoned their new factual theory that the 2007 deed of trust as executed identified the property on Queens Way, and that the document was subsequently altered to suggest it applied to the Robin Drive property. Appellants' counsel confirmed that there is no question that Jamali and Lotfimoghaddas have always agreed that the 2007 deed of trust was made on the Robin Drive property, not some other property. Despite abandoning the new factual theory that the 2007 deed of trust was on a different property, appellants suggest they can amend their complaint to allege fraud-based legal theories based on an allegation that the deed of trust was altered to cover up its legal description of the Robin Drive property.
When a plaintiff proposes new amendments for the first time on appeal to show leave to amend should be granted, “[t]he plaintiff must clearly and specifically set forth the ‘applicable substantive law' [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. 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.” (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43-44, (Rakestraw).) The plaintiff bears the burden of demonstrating in what manner the pleading can be amended and how the amendment will change its legal effect. (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388 (Careau).)
“Authorities indicate that when a deed is altered or changed by someone other than the grantor before it is delivered or recorded, and the alteration is without the grantor's knowledge or consent, the deed is void and no title vests in the grantee or subsequent purchasers, even bona fide purchasers for value; and if the deed is altered by the grantee after delivery but before recordation, the deed is void and conveys no title to the grantee. (See 3 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 8:53, p. 8-145 (rel. 9/2011) (3 Miller & Starr); Montgomery v. Bank of America (1948) 85 Cal.App.2d 559, 563.)” (Lin v. Coronado (2014) 232 Cal.App.4th 696, 702 (fn. omitted).)
An action to set aside and cancel a deed that is void ab initio is subject to either the three-year statute of limitations under Code of Civil Procedure section 338, subdivision (d), for claims based on fraud or mistake, or the four-year catchall statute of limitations under Code of Civil Procedure section 343 that usually applies to cancellation of an instrument, depending on the theory alleged. (See Moss v. Moss (1942) 20 Cal.2d 640, 644; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 433, fn. 16; Salazar v. Thomas (2015) 236 Cal.App.4th 467, 477, fn. 8 (Salazar); Robertson v. Superior Court (2001) 90 Cal.App.4th 1319, 1326.)
The statute of limitations for a quiet title cause of action similarly depends on the underlying theory of relief. (Muktarian v. Barmby (1965) 63 Cal.2d 558, 560 (Muktarian); Bank of New York Mellon v. Citibank, N.A., supra, 8 Cal.App.5th at p. 943.) “Generally, the most likely time limits for a quiet title action are the five-year limitations period for adverse possession, the four-year limitations period for the cancellation of an instrument, or the three-year limitations period for claims based on fraud and mistake.” (Salazar, supra, 236 Cal.App.4th at pp. 476-477, fns. omitted.) The statute of limitations for slander of title is three years. (Code Civ. Proc., § 338, subd. (g).)
When selecting among various statutes of limitations, “a specific limitations provision prevails over a more general provision.” (Creditors Collection Service v. Castaldi (1995) 38 Cal.App.4th 1039, 1043 (Castaldi).) Moreover, “‘[t]he statute of limitations that applies to an action is governed by the gravamen of the complaint, not the cause of action pled.' [Citation.] It is the substance of the action, rather than the form of the pleading or the labels employed, that governs.” (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 967-968.)
The gravamen of Jamali and Lotfimoghaddas's proposed allegations is fraud, which is subject to the three-year statute of limitations period set forth in Code of Civil Procedure section 338, subdivision (d). Section 338, subdivision (d) provides for a three-year statute for “[a]n action for relief on the ground of fraud or mistake.” Whether a complaint seeks legal or equitable relief, in contract or in tort, if fraud or mistake is the basis of the legal injury, section 338, subdivision (d) applies. (Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1110.) “[F]raud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)
“Where the operative facts are undisputed, the question of the application of the statute of limitations is a matter of law.” (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1142.) “Under the statute of limitations, a plaintiff must bring a cause of action within the limitations period applicable thereto after accrual of the cause of action.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) An action alleging fraud has a three-year statute of limitations, but the cause of action does not accrue “until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.” (Code Civ. Proc., § 338, subd. (d).)
The acts showing delayed discovery also must be pleaded with specificity, including the time and manner of the discovery and the inability to have discovered the fraud earlier despite reasonable diligence. (Fox, supra, 35 Cal.4th at p. 808.) The plaintiffs bear the burden to show diligence; conclusory allegations will not survive a demurrer. (Ibid.)
We conclude that Jamali and Lotfimoghaddas have not met their burden to show they could amend the complaint to state a cause of action based on a forged deed of trust within the applicable statute of limitations. They attached a copy of the 2007 deed of trust to their original complaint filed in September 2015, which had no legal description, and incorporated it by reference. Since the deed of trust was executed and recorded in May 2007, and an action based on fraud had to have been brought within three years, the statute of limitations barred a fraud action after May 2010.
Jamali and Lotfimoghaddas have not shown that they could allege delayed discovery with the requisite specificity. They have not stated the date that they received a copy of the recorded deed of trust, putting them on notice that it lacked a legal description. Jamali and Lotfimoghaddas have not met their burden on appeal to demonstrate that they could amend the complaint to allege a cause of action based on fraud within the statute of limitations in connection with the deed of trust. No abuse of discretion has been shown.
We note that even if appellants had not abandoned the new factual theory that the 2007 deed of trust was made on a property other than Robin Drive, we would deny leave to amend to add such a theory as it contradicts their several verified complaints and, in any event could not be made within the statute of limitations. Based on the allegations of the complaint, Jamali and Lotfimoghaddas were aware by early 2012 that the lender purported to hold an interest in the Robin Drive property when Chase Bank initiated foreclosure proceedings on the Robin Drive property. If they believed they had provided different security for the deed of trust, the lender's actions to initiate the foreclosure process as to the Robin Drive property immediately alerted them to investigate. Even allowing for delayed discovery, the statute of limitations on an action for fraud began to run no later than early 2012 and the complaint filed more than three years later was untimely. In addition, we note that in seven versions of their complaint, Jamali and Lotfimoghaddas alleged they had attached and incorporated the 2007 deed of trust, without ever once alleging that a different property was the security for the 2007 deed of trust.
C. Rosenthal Fair Debt Collection Practices Act
In a letter brief bringing new authorities to this court's attention just prior to oral argument, appellants cited Best v. Ocwen Loan Servicing, LLC (2021) 64 Cal.App.5th 568, 580, for its statement that “a nonjudicial foreclosure can be a ‘debt collection' by a ‘debt collector' to trigger the protections of the Rosenthal Act” and contend they should be given leave to add a cause of action under the Rosenthal Act. Appellants' reference to the Rosenthal Act is vague and conclusory, and they do not even attempt to meet their burden to set forth factual allegations that sufficiently state all required elements of that cause of action. (Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.) The attempted nonjudicial foreclosure identified in their complaint took place in 2015, and the statute of limitations for the Rosenthal Act is one year from the date of occurrence of the violation. (Cal. Civ. Code section 1788.30(f).) Appellants attempt to rely on the continuing violations doctrine, but offer no factual allegations to support its applicability here. Appellants have not met their burden of demonstrating in how the pleading can be amended and how the amendment will change its legal effect. (Careau, supra, 222 Cal.App.3d at p. 1388.)
In denying leave to amend, a court may properly consider the conduct of the moving party and delayed presentation of the proposed amendment. (Del Mar Beach Club Owners Assn. v. Imperial Contracting Co. (1981) 123 Cal.App.3d 898, 914.) Appellants' original complaint was based on unfair debt collection practices, and they received ample opportunities to amend their complaint to state a viable cause of action. They have not demonstrated on appeal that leave to file a seventh amended complaint is warranted.
DISPOSITION
We modify the March 26, 2018 judgment, nunc pro tunc to the date that the judgment was entered, to provide that cross-complainant U.S. Bank, N.A., as trustee, successor in interest to Bank of America, N.A., as trustee as successor by merger to La Salle, N.A., as trustee for WAMU Mortgage Pass-Through Certificates Series 2007-HY7 Trust, take judgment on the cross-complaint by way of a declaration that the lack of a legal description did not render the 2007 deed of trust invalid or unenforceable. As modified, we affirm the judgment. Respondents Select Portfolio Servicing, Inc., and U.S. Bank, N.A., as trustee, successor in interest to Bank of America, N.A., as trustee as successor by merger to La Salle, N.A., as trustee for WAMU Mortgage Pass-Through Certificates Series 2007-HY7 Trust, are awarded their costs on appeal.
We concur: KIM, J. ROTHSCHILD, P. J. [*]
[*] Presiding Justice of the Court of Appeal, Second Appellate District, Division One, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.