Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 132180
RAYE, J.Over many years, homeowners Thomas and Robin Peterson (plaintiffs) repeatedly defaulted on their loan, entered a forbearance agreement, continued to make late payments, and finally in December 2003 failed to make a payment at all. By December 30 the bank, through its trustee, foreclosed and sold the property.
The trial court, sitting as a court of equity, aborted plaintiffs’ action to set aside the foreclosure sale (Code Civ. Proc., § 631.8) because they failed to make an unconditional tender of the full amount of their indebtedness -- a prerequisite to the equitable relief they seek. The court also sustained without leave to amend the demurrers of trustee Foreclosure Consultants, Inc. (FCI) to each of the causes of action. We dismiss the appeal as to FCI because plaintiffs failed to appeal the order sustaining the demurrers and therefore the judgment on the section 631.8 motion is moot as to FCI. We affirm the judgment as to the purchasers, Mark and Teresa Lighty (Lightys), because plaintiffs’ failure to demonstrate their ability to unconditionally cure their default constitutes a failure to overcome the threshold barrier to their appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996 plaintiffs purchased 40 acres in Butte County and executed a promissory note requiring monthly payments of $1,893.96 and a deed of trust in favor of Ashland Mortgage Corporation. The note and deed of trust were assigned multiple times. Although the assignment to Bankers Trust Company of California, N.A. (Bankers Trust) occurred in May 2001, it was not recorded, and a July 2002 assignment was recorded on August 9, 2002.
Plaintiffs were continually in default under the terms of the promissory note and deed of trust. Wilshire Credit Corporation (Wilshire), the servicing agent for Bankers Trust, instituted foreclosure proceedings in 2000, 2001, and finally again in 2002. On June 14, 2002, Bankers Trust substituted FCI as the trustee under the note and deed of trust, and four days later, on June 18, 2002, FCI recorded the substitution and a notice of default.
On September 20, 2002, FCI published and served the notice of sale. In a letter dated September 24, 2002, plaintiff Thomas Peterson explained the downturn in his business and requested a payment plan, including a $10,000 lump sum payment and an increase in the monthly payments to $2,700.
By October plaintiffs had a default balance of $25,541.63. On October 12, 2002, Wilshire and plaintiffs executed a forbearance agreement whereby Wilshire agreed to stay the foreclosure, and plaintiffs agreed to pay $10,000 and accept an increase of their monthly payments to $2,700. Paragraph 2 replaced the $1,893.96 payment “with a new payment amount being $2700.00 due and payable on the 1st day of each month commencing 11/01/02 and is to be paid each and every subsequent month until 12/01/02. In the event the terms of this provision are not met, this forbearance agreement will be cancelled without further notice.” Paragraphs 7, 8, and 10 reiterated that Wilshire could proceed with the foreclosure if plaintiffs defaulted under the terms of the agreement.
There is a dispute as to whether paragraph 2 contains a scrivener’s error. Plaintiffs argue they were only obligated to make the increased payment of $2,700 for two months, although they continued to make the higher payments until they defaulted in December 2003. FCI and Wilshire maintained in the trial court that the terms of paragraph 2 were an obvious error because the parties had agreed to terminate the increased payments in December 2003, not December 2002. The trial court ruled that plaintiffs’ allegations in their first amended complaint stating the 13 months of payments were made pursuant to the forbearance agreement constituted a judicial admission.
Nine of plaintiffs’ next thirteen payments were late. Wilshire sent plaintiffs default notices in December 2002 and June, July, August, and September 2003. The scheduled trustee’s sale from the 2002 default was postponed regularly by mutual agreement. On September 16, 2003, Wilshire provided plaintiffs a “Notice of Imminent Foreclosure Sale,” setting out in bold print that “THE FORECLOSURE SALE DATE IS SET FOR: 9/25/03.”
Plaintiffs’ September, October, and November payments were made on the 19th, the 24th, and the 25th, respectively. In October plaintiffs contacted Wilshire to request a change in the payment date. But in December they failed to make any payment at all. On December 16, 2003, Wilshire sent plaintiffs a letter notifying them that if they did not make the payment by December 23, foreclosure would be resumed. By then their default balance was $8,843.07. The property was sold to the Lightys on December 30, 2003.
In a letter to Wilshire and FCI on January 30, 2004, plaintiffs’ lawyer protested that the foreclosure sale was defective. He asserted the assignment to Bankers Trust was not recorded until after FCI had been substituted and had recorded the notice of default; the foreclosure had been continued more than three times and no new notice had been given; he held in his trust account the December and January payments but the payments would not be made until the deed was rescinded and the title cleared; and he demanded that Wilshire and FCI pay plaintiffs’ attorney fees and costs.
The Lightys commenced unlawful detainer proceedings against plaintiffs for possession of the property. We requested the judgment in those proceedings (purportedly exhibit No. 66), but the Butte County Superior Court clerk filed an affidavit asserting that the judgment was never before the court in the underlying proceedings. The unlawful detainer judgment, therefore, is not before us.
In April 2004 plaintiffs filed the underlying action for quiet title, declaratory relief, and the intentional and negligent infliction of emotional distress. The trial court ordered the trial bifurcated and the equitable issues tried first. At the close of plaintiffs’ case, the court allowed them to file a second amended complaint, over defendants’ objections, asserting that the letter sent by their lawyer constituted a full and unequivocal tender. The amendment did not otherwise affect the four causes of action set forth in the first amended complaint.
A flurry of motions ensued after plaintiffs rested their case. On December 21, 2005, FCI filed a demurrer to the third and fourth causes of action on the ground they were barred by the litigation privilege set forth in Civil Code section 2924. On December 30, 2005, FCI and the Lightys filed motions under Code of Civil Procedure section 631.8. And on January 17, 2006, FCI demurred to the quiet title and declaratory relief causes of action.
In February 2006 the court ruled on the pending motions and demurrers simultaneously. The court sustained FCI’s demurrers to the quiet title cause of action because plaintiffs failed to allege FCI held an adverse interest, and to the declaratory relief cause of action because FCI was not a party to the contract. The court also sustained the demurrers to the causes of action for intentional and negligent emotional distress based on the litigation privilege. All demurrers were sustained without leave to amend.
The court granted the Code of Civil Procedure section 631.8 motions based on plaintiffs’ failure to prove the element of tender, which is a prerequisite to bringing an action to set aside a foreclosure sale. The court explained: “In the instant case, Peterson’s purported tender was limited to two monthly payments as opposed to the full amount of the secured indebtedness. On that basis alone the purported tender is insufficient. As a further and separate consideration, the purported tender was not unconditional inasmuch as it was predicated on the payment of Petersons’ attorney’s fees and costs, and on the receipt by the Plaintiffs of proof that the Trustee’s Deed had been rescinded and proof that title to the property had been cleared.”
On August 29, 2006, FCI’s cross-complaint was dismissed, and on October 5, 2006, the court ordered the county clerk to refund FCI’s deposit with the court. On November 17, 2006, the court entered judgment in favor of FCI on plaintiff’s second amended complaint, and notice of entry of judgment was served on November 27. Following the second phase of the court trial on the second amended complaint for quiet title and declaratory relief, the court entered judgment in favor of the Lightys for possession of the property and for damages.
Plaintiffs and parties who had liens and recorded abstracts against the property moved the court to reconsider its release of the interpled funds to FCI. The court denied the motion based on lack of jurisdiction and mootness. The court explained: “The court is of the view that the funds in question probably should not have been released after having been interpled, especially as claims had been made thereto. Interpleader indicates that the interpleading party disclaims any interest in the funds. The court feels the order for release of the funds was improvidently granted. Nevertheless, FCI is correct that a court generally has no jurisdiction to rule on a motion for reconsideration after a dismissal has been entered. [Citation.] In addition, the funds have already been released to FCI, and therefore a reconsideration on whether to release the funds is essentially moot.”
In this appeal, plaintiffs contend: (1) The Lightys’ trust deed is void because the notice of sale was not republished, reposted, and rerecorded as required by Civil Code section 2924g; (2) the judgment on the unlawful detainer proceedings denying the Lightys’ request for possession is res judicata in the underlying proceedings; and (3) the sale is void because Banker’s Trust failed to record its deed of trust until after FCI gave notice of default.
The Lightys maintain there is but one dispositive issue: whether the trial court erred by finding plaintiffs’ failure to make an unconditional and full tender barred their claims for equitable relief.
While we agree with the Lightys that plaintiffs’ failure to make an unconditional and full tender barred their equitable claims and obviates many of the issues they raise, there are two preliminary issues we must first resolve.
DISCUSSION
I
Plaintiffs insist the deed is void because of the irregularities in the sale process, and as a consequence, they had no obligation to tender full payment. It is true that if the sale had been totally void their tender obligation would have been excused. (Scott v. Security Title Ins. & Guar. Co. (1937) 9 Cal.2d 606, 610-611.) Ironically, however, the two cases they cite support the contrary conclusion that on the facts before us the deed was not void. (Angell v. Superior Court (1999) 73 Cal.App.4th 691 (Angell); Little v. CFS Service Corp. (1987) 188 Cal.App.3d 1354 (Little).) Not only do these two cases present egregious facts, but they both highlight the importance of the common law and statutory presumptions that arise when a trustee’s deed, containing a recital that the foreclosure sale was conducted regularly and fairly, is issued to a purchaser at a nonjudicial sale.
In Little, no notice was given the trustor, the junior lienor, or the judgment creditor. The defect was discovered before the trustee’s deed was executed. The court held that the foreclosure sale was void, explaining: “Although conclusive presumption language was directed to be included in the trustee’s deed, that deed was never prepared, executed or delivered. The trustee discovered the notice defect before completing the transaction by preparation and delivery of the deed; in the absence of the proper notice, the trustee was not required to prepare and deliver a deed containing the conclusive presumption language required by the trust deed. [Citation.] Since the deed was neither prepared nor delivered, any language regarding presumptions of regularity of notice of sale which would have been contained therein did not take effect. Thus there is no conclusive presumption that the sale was properly noticed. This factor aligns our case with those that have held sales with defective notice void.” (Little, supra, 188 Cal.App.3d at p. 1360.)
In Angell, the purchasers attempted to take advantage of a huge mistake discovered after the bid was accepted but before issuance of a trustee’s deed. (Angell, supra, 73 Cal.App.4th at p. 695-696.) The notice of sale erroneously stated that the debt due was $377,011.75, when in fact the unpaid balance was $2,938,542.21. (Id. at p. 695.) The mistake arose because a single deed of trust secured payment of two promissory notes, one for $350,000 and the other for $2,750,000. (Ibid.) The purchasers successfully bid $340,000 for the property, tendered cashier’s checks for that amount, and that afternoon entered into an agreement to sell the property for $895,000. (Id. at p. 696.) The next day the purchasers asked and the bank agreed to cancel the sale and return their checks. However, the purchasers claimed they had an understanding with the bank that they had five days to consult legal counsel and return the money to confirm the sale. (Ibid.) When they did, the bank refused. (Ibid.)
The foreclosure purchasers contended there were no irregularities in the sale, the sale was neither void nor voidable, and they were entitled to receive a trustee’s deed. (Angell, supra, 73 Cal.App.4th at p. 699.) Both the trial court and the Court of Appeal disagreed. Like the facts in Little, the notice defect was discovered after the sale but before issuance of a trustee’s deed. Accordingly, “the presumptions which attach to the deed never came into existence.” (Id. at p. 700.) The court equated the notice defect to the failure to give notice in Little “because the notice defects here were substantial, and therefore equivalent to no notice at all.” (Angell, at p. 699.) In Angell, as in Little, the sale was void because the mistake in the notice was substantial and caused obvious prejudice to the person attacking the validity of the sale. (Angell, at p. 700.)
Although we need not reach the merits of plaintiffs’ contentions that the notice they were given did not comport with statutory requirements, we must point out the alleged irregularities are qualitatively of a completely different nature than the deficiencies in Little and Angell. In both cases, the notice, if any, failed to provide any notice at all. Here plaintiffs object to FCI’s failure to republish a notice of default, arguably because the sale had been postponed more than three times in violation of Civil Code section 2924g, former subdivision (c)(1). FCI contends that because each of the postponements was by mutual agreement, the postponements do not count toward the number of postponements requiring a new notice of sale. (§ 2924g, former subd. (c)(2).) Whether or not the mutual agreement exception applies, the fact remains that plaintiffs were notified on nearly a monthly basis that they were in default and they were provided yet another notice of sale to be held on September 25, 2003. There is no question Thomas Peterson knew of the deficiencies because he contacted Wilshire in October 2003 to request a change of payment date.
As a result, plaintiffs were not the victims of an egregious mistake, nor did they suffer from a complete lack of notice. Their payments were routinely late and they were warned routinely of the imminent threat of foreclosure. They had requested and received a second chance to save their property by execution of the forbearance agreement, which contained a warning the foreclosure could be resumed without notice if they defaulted on their obligation. The irregularities, if any, were neither substantial nor prejudicial and therefore did not render the deed void as in Little and Angell.
Plaintiffs also contend the deed is void because Bankers Trust’s assignment was not recorded until after FCI had recorded the 2002 notice of default. Again, we emphasize that even if the notice preceded the recording, a technical defect at best, plaintiffs have made no showing of prejudice. Thus, neither alleged defect in the notice and sale process rendered the deed void.
II
Plaintiffs next assert that the judgment they obtained in unlawful detainer proceedings bars the Lightys from relitigating title under well-accepted principles of res judicata. They have failed to offer the evidence or the record to support their res judicata argument.
“The burden of proving that the requirements for application of res judicata have been met is upon the party seeking to assert it as a bar or estoppel.” (Vella v. Hudgins (1977) 20 Cal.3d 251, 257.) Because an unlawful detainer proceeding is summary in nature, it is uncommon for an ensuing judgment to bar a subsequent adjudication of title for rarely has there been “full and fair” litigation. (Ibid.)
Throughout the briefing, plaintiffs cite and discuss “Exhibit 66,” which is purportedly a statement of decision from an unlawful detainer proceeding. Exhibit 66, however, was not admitted into evidence and is not part of the record on appeal. As a consequence, we cannot determine whether the proceedings were, as is customary, summary in nature. Whatever the scope of the litigation below, plaintiffs have failed to sustain their burden of proving that the requirements for the application of res judicata have been met by failing to provide evidence below and a record on appeal.
III
We turn then to the dispositive issue on appeal.
Plaintiffs sued in equity for quiet title and declaratory relief. But “‘“‘[e]quity will not interpose its remedial power in the accomplishment of what seemingly would be nothing but an idly and expensively futile act, nor will it purposely speculate in a field where there has been no proof as to what beneficial purpose may be subserved through its intervention.’”’” (Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 118, citations omitted.) Thus, the question presented is whether plaintiffs made a sufficient tender to invoke the equitable powers of the court.
“‘The rules which govern tenders are strict and are strictly applied, and where the rules are prescribed by statute or rules of court, the tender must be in such form as to comply therewith. The tenderer must do and offer everything that is necessary on his part to complete the transaction, and must fairly make known his purpose without ambiguity, and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction.’ [Citation.]” (Gaffney v. Downey Savings & Loan Assn. (1988) 200 Cal.App.3d 1154, 1165 (Gaffney), italics omitted.) “[I]t is a debtor’s responsibility to make an unambiguous tender of the entire amount due or else suffer the consequence that the tender is of no effect.” (Ibid.) Simply put, a debtor must do equity by tendering the amount of the debt as a prerequisite to a demand to cancel a trustee’s sale. (MCA, Inc. v. Universal Diversified Enterprises Corp. (1972) 27 Cal.App.3d 170, 177.)
Plaintiffs failed to allege tender in either the complaint or the first amended complaint. Following FCI’s and Lightys’ motions for judgment at the end of plaintiffs’ case, the court allowed plaintiffs to file a second amended complaint to cure the deficiency. Oddly, the only reference to tender was included in the following paragraph from plaintiffs’ fourth cause of action for the negligent infliction of emotional distress: “The PETERSONS gave notice of all of the facts and information and tendered an offer of payments for December 2003 and January 2004 through a letter dated January 30, 2004, including notice that the trustee’s sale was not held or enforceable as soon as they learned of it to each of the defendants asking that they correct the actions and rescind the sale. The LIGHTYS took no such action and then commenced to threaten the PETERSONS with dispossession of their property. WILSHIRE and BANKERS TRUST took no corrective action upon notification and have refused to rescind the sale.”
Although there is some reference to Thomas Peterson’s testimony at trial in plaintiffs’ opposition to a judgment on the pleadings, the reporter’s transcript is not part of the record on appeal. Because this is a judgment roll appeal, we must conclusively presume the evidence was sufficient to sustain the trial court’s factual findings. (Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.) Plaintiffs have thereby forfeited their right to challenge the sufficiency of the evidence.
Thus we are limited to a review of the trial court’s findings. The court found the tender did not meet the legal standard of a full, unconditional offer to satisfy the entire amount of the debt. We set forth the terms of the letter referenced in the second amended complaint in our description of the facts.
To reiterate briefly, plaintiffs’ lawyer claimed the sale was void because of various irregularities, asserted that plaintiffs had deposited two payments in his trust account, demanded payment of his attorney fees, and offered to deliver the payments if, and when, the deed to the Lightys was rescinded. Plaintiffs’ default in December, when added to the remaining balance due on the default that precipitated their forbearance agreement, amounted to $8,843.07 -- far more than the alleged two months of payments put in the attorney’s trust account. Their action, therefore, “must fail because their tender of payment was not an unconditional offer to pay all of the sums necessary to cure the default.” (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 580.)
Additionally, plaintiffs’ demand for attorney fees and rescission as a precondition to payment was not the unequivocal and unambiguous tender required. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439.) As in Wiener v. Van Winkle (1969) 273 Cal.App.2d 774, 782, “the offer of performance by the makers was not free from an improper condition and therefore failed as a tender.... It is well established that a tender must be unconditional, and an unwarranted condition annexed to an offer to pay is in effect a refusal to perform.”
Plaintiffs attempt to evade the tender rule. They assert any objections to a tender are waived if the creditor fails to give notice to the debtor of the deficiencies in the tender. (Civ. Code, §§ 1501; Code Civ. Proc, § 2076.) “‘The purpose of these two code sections is to allow a debtor who is willing and able to pay his debt to know what his creditor demands so that the debtor may, if he wishes, make a conforming tender.’ [Citation.] ‘These statutory provisions do not apply where, as here, the amount of the creditor’s demand is known to the debtor and the amount of the tender is wholly insufficient.’ [Citation.]” (McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394.)
But more significantly, plaintiffs have not cited to any place in the record to support their contention that they had the ability to pay the outstanding arrearages or that they made an unconditional offer. As a result, any reference to Civil Code section 1501 or Code of Civil Procedure section 2076 is a red herring. Even with the benevolent ruling allowing them to amend their complaint midtrial, they failed to make the type of tender necessary to invoke the court’s equitable powers.
We conclude plaintiffs provide no justification for failing to make a full, unconditional tender to cure their default before invoking the court’s equitable jurisdiction to quiet title or provide declaratory relief. We reject the notion the deed was void, pointing out the deed itself contained the presumptive language that notice was properly given and any irregularities were neither substantial nor prejudicial. Moreover, as Justice Sparks wrote 20 years ago: “With apologies to Gertrude Stein, part payment is part payment is part payment. ‘An offer of partial performance is no effect.’ (Civ. Code, § 1486.) (Gaffney, supra, 200 Cal.App.3d at p. 1165.)
DISPOSITION
The appeal of the judgment insofar as it pertains to FCI is dismissed. The judgment insofar as it pertains to the Lightys is affirmed. Respondents shall recover costs on appeal.
We concur: BLEASE, Acting P. J., NICHOLSON, J.