Opinion
D072726
06-25-2018
RUDIE THOMAS, JR., Plaintiff and Appellant, v. WELLS FARGO BANK, N.A., Defendant and Respondent.
Rudie Thomas, Jr., in pro. per, for Plaintiff and Appellant. Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little, Jeremy E. Shulman and David M. Newman for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-0019344-CU-OR-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Affirmed. Rudie Thomas, Jr., in pro. per, for Plaintiff and Appellant. Anglin Flewelling Rasmussen Campbell & Trytten, Robert Collings Little, Jeremy E. Shulman and David M. Newman for Defendant and Respondent.
Rudie Thomas, Jr., in propria persona, filed a lawsuit against several defendants seeking to regain title to real property lost through foreclosure. The trial court granted the motion for summary judgment filed by Wells Fargo Bank, N.A. (Wells Fargo) on the claims against it for fraud, quiet title, wrongful foreclosure, declaratory relief, cancellation of instruments, and violation of Business and Professions Code section 17200. Thomas appeals. However, he failed to support his contentions with an adequate record on appeal or otherwise show error; therefore, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The procedural background and facts are taken primarily from our prior opinion in Thomas v. Southland Home Mortgage II, LLC (Dec. 14, 2017, D071594), 2017 Cal.App.Unpub. LEXIS 8528 (Thomas I), petition for review denied February 28, 2018. On our own motion, we take judicial notice of the record and unpublished opinion in Thomas I. (Evid. Code, §§ 459, subd. (a); 452, subd. (d); Forbes v. County of San Bernardino (2002) 101 Cal.App.4th 48, 50-51.) Citation of our prior unpublished opinion is permitted to explain the factual background of the case and as law of the case. (Cal. Rules of Court, rule 8.1115(b)(1) [Citation to unpublished opinion permitted "[w]hen the opinion is relevant under the doctrines of law of the case, res judicata, or collateral estoppel."]; Pacific Gas & Electric Co. v. City and County of San Francisco (2012) 206 Cal.App.4th 897, 907, fn. 10 [citation to unpublished opinion allowed for factual background].)
Undesignated rules references are to the California Rules of Court.
The factual and procedural background which follows is based primarily on the facts reflected in our prior opinion.
In June 2016 Thomas filed his original complaint against Southland Home Mortgage II, LLC (Southland) and Wells Fargo. Later that month Thomas filed a first amended complaint. In October 2016 Thomas filed his operative second amended complaint (SAC) alleging, among other things, that Southland was not a bona fide purchaser. He also alleged claims against Wells Fargo for: fraud, quiet title, wrongful foreclosure, declaratory relief, cancellation of instruments, and violation of Business and Professions Code section 17200. Thomas claimed that he owned certain real property located on Coleman Avenue in San Diego, California (the property). Attached to the complaint were numerous documents, including recorded documents pertaining to Thomas's real property transaction. The documents show the following:
On August 28, 2014, a grant deed was recorded transferring title to the property to Thomas. That same day a deed of trust was recorded against the property securing a $356,385 loan, listing Thomas as the borrower and Moria Development, Inc. (Moria) as the lender. At closing, a notary signed and stamped the deed of trust showing that the notary witnessed Thomas's signature. On September 9, 2015, a corporate assignment of deed of trust was recorded whereby Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Moria assigned all beneficial interest in the deed of trust to Wells Fargo.
On December 29, 2015, a substitution of trustee was recorded substituting Quality Loan Service Corporation (Quality Loan) as trustee under the deed of trust in place of Wells Fargo. On December 31, 2015, Quality Loan recorded a "Notice of Default and Election to Sell Under Deed of Trust" stating that Thomas was over $12,000 behind in his payments on the loan. On April 4, 2016, Quality Loan recorded a "Notice of Trustee's Sale" stating that the property would be sold at auction on May 3, 2016.
On May 3, 2016, the property was sold at a trustee's sale pursuant to the power of sale contained in the deed of trust. Southland was the successful bidder at the trustee's sale and received a trustee's deed upon sale under which it obtained title to the property. On May 13, 2016, the trustee's deed upon sale was recorded.
The operative complaint alleged the following facts: [¶] Thomas asserted that defendant Wells Fargo, under pressure to create phony accounts, forged his signature on the note that encumbered the property. Accordingly, he asserted the foreclosure of the property was void and Southland could not be a bona fide purchaser on a void foreclosure. Thomas also claimed that Southland was not a bona fide purchaser because Wells Fargo had no beneficial interest in the note and deed of trust, and because the foreclosure was not conducted by a duly appointed trustee. Based on the void foreclosure, Thomas sought to quiet title to the property.
Thomas also sought damages for wrongful foreclosure, alleging that Wells Fargo lacked the power to foreclose. Thomas sought a declaration of his rights and duties under the note and deed of trust. He also sought to cancel the notice of trustee's sale, assignment of deed of trust, trustee's deed upon sale, substitution of trustee and notice of default alleging these instruments are void based on his forged signature. Finally, Thomas claimed a violation of Business and Professions Code section 17200 based on Wells Fargo's act of forging his signature.
Southland demurred, essentially arguing that the recorded documents showed that Thomas's allegations lacked merit. The trial court sustained the demurrer without leave to amend, and Thomas timely appealed.
In Thomas I we concluded that Quality Loan properly conducted the foreclosure sale as trustee and that Southland was a bona fide purchaser for value. We affirmed the judgment of dismissal in favor of Southland.
During the pendency of the appeal in Thomas I, Wells Fargo moved for summary judgment. Thomas opposed the motion by filing lengthy documents labeled as requests for judicial notice. Thomas did not file any response to Wells Fargo's separate statement of material facts. The trial court granted Wells Fargo's motion.
In granting summary judgment in favor of Wells Fargo the trial court found that the SAC appeared to allege three general claims: (1) Wells Fargo did not have the right to foreclose on Thomas's home because the note was forged, (2) Wells Fargo was not properly assigned the deed of trust, and (3) Wells Fargo did not properly substitute Quality Loan as the trustee under the deed of trust. The trial court found that the undisputed evidence presented by Wells Fargo demonstrated that Thomas's claims lacked merit because Thomas entered into the subject loan transaction, accepted the loan funds, purchased the property, moved into the property, and made payments to Wells Fargo. The undisputed evidence also demonstrated that Wells Fargo was properly assigned the deed of trust and properly substituted Quality Loan as the foreclosure trustee. An authorized MERS signing officer executed the assignment of the deed of trust on behalf of the original lender.
The trial court found that the separate statement filed by Wells Fargo presented undisputed facts supported by admissible evidence that negated one or more elements of each cause of action in the SAC. Thomas, however, did not file a response to Wells Fargo's separate statement and all of Wells Fargo's facts remained undisputed. The trial court noted that much of the "evidence" presented by Thomas was irrelevant as it did not address the claims in Thomas's SAC. Rather, Thomas referred to unrelated litigation and investigations.
The court entered judgment in favor of Wells Fargo. Thomas timely appealed.
DISCUSSION
I. STANDARD OF REVIEW
"Summary judgment provides a court with a procedure to pierce pleadings in order to determine whether a trial is truly necessary to resolve the dispute between the parties." (Jordan v. City of Sacramento (2007) 148 Cal.App.4th 1487, 1492.) A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) A moving defendant meets its burden by showing that an essential element of a cause of action cannot be established, or by establishing a complete defense to the cause of action. The burden then shifts to the plaintiff to show that a triable issue of material fact exists as to the cause of action or defense. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849; § 437c, subd. (p)(2).) The failure to file a separate statement in opposition to a summary judgment motion is a ground for granting the motion. (§ 437c, subd. (b)(3).) When an opposing party fails to file a proper separate statement, the court may accept the facts as submitted by the moving party as true, as long as they are properly supported by evidence in the record. (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 416-417 (Kojababian).)
Undesignated statutory references are to the Code of Civil Procedure.
We review the trial court's ruling on a motion for summary judgment de novo, viewing the evidence in the light most favorable to the opposing party. (Shin v. Ahn (2007) 42 Cal.4th 482, 499.) We consider all of the evidence offered by the parties in connection with the motion, except that which the court properly excluded. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
On appeal, Thomas, as the appellant, has the burden of demonstrating by an adequate record that there is prejudicial error in the trial court's ruling. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) We do not presume the existence of error. Rather, we are required by the rules of appellate review to presume that the trial court's ruling was correct. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.) Even on review of a summary judgment, "[t]he appellant has the burden of showing error occurred." (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140.) " ' "[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." ' [Citation.] 'Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].' " (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.)
II. ANALYSIS
A. Procedural Issues
Wells Fargo argues that the judgment must be affirmed because Thomas failed to present an adequate record on appeal. An appellant must designate the record on appeal. (Rule 8.120(a).) Thomas chose to proceed with a clerk's transcript and without a record of the oral proceedings. (Rule 8.122.) Under rule 8.122(b), a clerk's transcript automatically contains certain documents, including the notice of appeal and the judgment or order being appealed. An appellant seeking to include additional documents must identify them in the notice of designation. (Rule 8.122(a)(1) & (b)(3).) Thomas designated the following documents: Thomas affidavit, Reynolds declaration, multiple requests for judicial notice, Penno declaration, motion for summary judgment, summary judgment separate statement, tentative ruling on demurrer, and evidentiary objections filed by Wells Fargo.
Thomas did not designate documents that would be necessary for us to consider his appeal, such as the operative pleadings. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 ["the pleadings determine the scope of relevant issues on a summary judgment motion"].) After Wells Fargo filed a respondent's brief pointing out the deficiencies in the record on appeal, Thomas did not respond to these contentions and did not seek to augment the record. Thomas's status as self-represented litigant does not excuse his failure to provide an adequate record. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984 ["[M]ere self-representation is not a ground for exceptionally lenient treatment."].)
B. Merits
The trial court concluded that Wells Fargo met its initial burden to present admissible evidence negating one or more elements of each cause of action in the SAC. Namely, the trial court found that Thomas's fraud cause of action failed because Thomas accepted the loan proceeds, and Wells Fargo properly foreclosed on the property. Thomas was not entitled to quiet title or cancellation of instruments because he no longer had an interest in the property and did not tender the amount owed. Thomas could not show wrongful foreclosure because Wells Fargo was the beneficiary under the deed of trust and Quality Loan was the properly substituted trustee under the deed of trust. Finally, his claim under Business and Professions Code section 17200 failed because there was no predicate unfair, unlawful or fraudulent conduct.
We conclude that Wells Fargo satisfied its initial burden to set forth a prima facie case supporting summary judgment. Thomas, however, failed to show the existence of a triable issue of material fact.
1. Fraud
Wells Fargo argued that it was entitled to judgment on Thomas's fraud claim related to Thomas's promissory note because it did not originate the loan. The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) scienter or knowledge of its falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) The evidence shows that Wells Fargo was not the loan originator and thus could not have made any representations about the loan. After Wells Fargo acquired the servicing rights on Thomas's loan and learned of his forgery claim, it investigated the claim and found no evidence of forgery. The lack of a false representation establishes a complete defense to Thomas's fraud cause of action.
2. Wrongful foreclosure
"The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They are: '(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.' " (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.)
Thomas was in default on his home loan and has no substantive defense to foreclosure, such as the nonexistence of a default. Instead, Thomas generally argues that Wells Fargo lacked standing to foreclose. The evidence presented by Wells Fargo shows that MERS, as the beneficiary and nominee for the lender, properly assigned the deed of trust and that Wells Fargo was the beneficiary under the deed of trust at the time of the foreclosure. This evidence shows that Wells Fargo did not wrongfully foreclose on the property.
Thomas argues in his opening brief that Michelle Erin Wihren, as the MERS corporate officer, lacked standing to assign the deed of trust. MERS is authorized to act under a deed of trust where, as here, it is designated therein to do so. (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 125.) Here, Wells Fargo's evidence reflected that Wihren was a designated signing officer for MERS. Thomas argues that Wihren's authority had been revoked, citing the "MERS System Rules of Membership," which states that signing officers may not initiate foreclosures or legal proceedings in MERS's name after July 22, 2011. Thomas's argument fails because MERS did not initiate the foreclosure proceeding. Rather, Wells Fargo though its trustee, Quality Loan, initiated the foreclosure proceeding on Thomas's loan.
3. Quiet title and cancellation of instruments
Thomas sought to quiet title, cancel the foreclosure notice, and the resulting trustee's deed. "Quieting title is the relief granted once a court determines that title belongs in plaintiff. . . . In other words, in such a case, the plaintiff must show he has a substantive right to relief before he can be granted any relief at all." (Leeper v. Beltrami (1959) 53 Cal.2d 195, 216.) An essential element to a claim to quiet title or to cancel title-related documents is proof that the plaintiff has an interest in and is the rightful owner of real property. (§ 761.020, subd. (c).) In Thomas I, we adjudicated Southland's title to the property and this holding is law of the case. " ' "The doctrine of 'law of the case' deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case." ' " (Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.) Because neither Thomas nor Wells Fargo is the owner of the property, Thomas's quiet title claim fails. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 802-803 [rejecting postforeclosure quiet title claim when subject property sold to a third party].)
"To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud, and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one's position." (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.) Wells Fargo's evidence shows no defect in the foreclosure notice or the trustee's deed. Rather, MERS, as nominee for Moria, the loan originator, assigned all beneficial interest in the deed of trust to Wells Fargo. Quality Loan was then substituted as trustee under the deed of trust in place of Wells Fargo. Quality Loan, as the new trustee, properly recorded a notice of default and sold the property to Southland. Accordingly, because none of the documents that Thomas seeks to cancel are void or voidable, Thomas's claim for cancellation of instruments fails.
4. Violation of Business and Professions Code and declaratory relief
The Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.) "prohibits unfair competition, including unlawful, unfair, and fraudulent business acts." (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) The UCL " 'borrows' violations from other laws by making them independently actionable as unfair competitive practices.' " (Ibid.) To pursue a UCL action, a plaintiff must show he or she has suffered actual injury. (Bus. & Prof. Code, § 17204.) "A private plaintiff must make a twofold showing: he or she must demonstrate injury in fact and a loss of money or property caused by unfair competition." (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1590.)
Wells Fargo argued that it was entitled to judgment on this claim because Thomas had failed to show any unlawful, fraudulent or unfair conduct. The trial court agreed. Because Wells Fargo has shown that it did not commit fraud and that the foreclosure proceedings did not violate California law or the agreement with Thomas, Thomas's claim under the UCL fails. Where, as here, a UCL claim is derivative of other substantive causes of action, the claim "stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action." (Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 178.)
"Declaratory relief is an equitable remedy, which is available to an interested person in a case 'of actual controversy relating to the legal rights and duties of the respective parties . . . .' " (In re Claudia E. (2008) 163 Cal.App.4th 627, 633.) This remedy is attached to and wholly derivative of Thomas's substantive causes of action. Because Wells Fargo is entitled to judgment on Thomas's substantive causes of action, his claim for declaratory relief necessarily fails. (See Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [trial court properly sustained the demurrer as to declaratory relief claim because it was "wholly derivative of" other nonviable causes of action].)
5. Thomas failed to show a triable issue of material fact
Since Wells Fargo met its initial burden as moving party, the burden shifted to Thomas to produce evidence showing a triable issue of material fact on his claims. (§ 437c, subd. (p)(2).) Where, as here, the moving party made a prima facie showing of entitlement to summary judgment and the opponent of the motion did not file a separate statement, the court may conclude the opponent failed to meet its burden to show the existence of a triable issue and grant summary judgment. (§ 437c, subd. (b)(3); (Kojababian, supra, 174 Cal.App.4th at p. 417.) The court therefore did not err in granting summary judgment.
Additionally, Thomas's opening brief does not challenge the trial court's ruling or identify which of his claims against Wells Fargo should have survived summary judgment. Accordingly, Thomas forfeited any challenge to the trial court's conclusions. (People v. JTH Tax, Inc. (2013) 212 Cal.App.4th 1219, 1237 [affirmance based on defendant's failure to address on appeal all bases justifying trial court's ruling].) Instead, Thomas claims he did not sign the note and that his signature is forged. The undisputed evidence presented by Wells Fargo refutes these claims.
This evidence shows that Thomas obtained the loan, signed the loan documents, moved into the property, made payments on the loan for about 10 months and then defaulted on the loan by failing to make the required payments. The gravamen of Thomas's action against Wells Fargo was to regain title to the property. This he cannot do as we adjudicated Southland's title to the property in Thomas I and this decision is law of the case. Although Thomas filed numerous documents in opposition to Wells Fargo's motion, as the trial court properly noted, these documents referred to "unrelated litigation and investigations."
While Thomas makes additional arguments in his opening brief, he fails to explain how these arguments are relevant to the trial court's ruling on Wells Fargo's summary judgment motion, or how they support reversal of the judgment. Where, as here, a party asserts a point but fails to support it with reasoned argument and citations to relevant authority, we may treat the argument as waived and disregard it. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Accordingly, we decline to address Thomas's remaining arguments. (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984 ["'[a]n appellate court is not required to examine undeveloped claims'"].)
DISPOSITION
The judgment is affirmed. Wells Fargo is entitled to recover its costs on appeal.
NARES, J. WE CONCUR: HUFFMAN, Acting P. J. IRION, J.