Opinion
D071935
05-21-2018
MAHER YOUNAN et al., Plaintiffs and Appellants, v. CIT BANK, N.A. et al., Defendants and Respondents.
Mirch Law Firm, Kevin J. Mirch and Marie C. Mirch for Plaintiffs and Appellants. Allen Matkins Leck Gamble Mallory & Natsis, Francis N. Scollan and Rachel M. Sanders for Defendant and Respondent CIT Bank, N.A. Callahan Firm and Rachael A. Callahan for Defendant and Respondent Southland Home Mortgage, LLC.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2014-00028898-CU-OR-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Judith F. Hayes, Judge. Appeal dismissed as to respondent Southland Home Mortgage, LLC; affirmed as to respondent CIT Bank, N.A. Mirch Law Firm, Kevin J. Mirch and Marie C. Mirch for Plaintiffs and Appellants. Allen Matkins Leck Gamble Mallory & Natsis, Francis N. Scollan and Rachel M. Sanders for Defendant and Respondent CIT Bank, N.A. Callahan Firm and Rachael A. Callahan for Defendant and Respondent Southland Home Mortgage, LLC.
I.
INTRODUCTION
Maher Younan (Maher) and his wife, Nadia Younan (Nadia) (collectively the Younans) brought this action against respondents CIT Bank, N.A (CIT) and Southland Home Mortgage, LLC (Southland), among other defendants. In the operative first amended complaint, the Younans claimed that CIT breached an oral agreement not to conduct a foreclosure sale of their home and that Southland wrongfully obtained title to the home at the unlawfully held foreclosure sale.
The operative first amended complaint named CIT's predecessor, One West Bank, N.A. as a defendant. We refer to One West Bank, N.A. as CIT for purposes of clarity throughout this opinion.
The trial court sustained Southland's demurrer to the complaint without leave to amend, and entered a judgment of dismissal in its favor. The trial court subsequently granted CIT's motion for summary judgment and entered a judgment in favor of CIT. On appeal, the Younans claim that the trial court erred in sustaining Southland's demurrer without leave to amend and in granting CIT's motion for summary judgment.
We conclude that the Younans' appeal is untimely as to the judgment of dismissal in favor of Southland and that the trial court properly granted CIT's motion for summary judgment. Accordingly, we dismiss the Younans' appeal as to Southland and affirm the judgment in favor of CIT.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The operative first amended complaint
The Younans brought a first amended complaint against the respondents alleging numerous causes of action arising out of a foreclosure sale of their home. The Younans alleged that they entered into a loan agreement with a division of CIT in 2010 and that an April 2014 notice of sale stated that the unpaid balance on the loan and other charges was $1,125,294.50. The Younans alleged that "[o]n July 15, 2014 Plaintiffs home was sold in a foreclosure auction to Southland for approximately $863,000 . . . ."
The Younans also brought causes of action against two other entities, Meridian Foreclosure Service, Inc., and Meridian Trust Deed Service. These defendants are not parties to this appeal. Because the Younans' causes of action as to these parties are not relevant to the issues on appeal, we restrict our discussion to the Younans' causes of action against respondents.
The Younans maintained that the sale was wrongful for a number of reasons, including that it was contrary to an agreement between CIT and the Younans to postpone the foreclosure sale in exchange for $10,000 in payments that the Younans made to CIT in June 2014. According to the Younans, on June 30, 2014, after Maher explained that he had recently made $10,000 in payments to CIT, a CIT representative told Maher "that the sale that was set for July 3, 2014 was no longer scheduled and there [was] not a date for a foreclosure sale." The Younans claimed that "[i]n reliance" on CIT's statements, Maher left the country. Shortly after returning to the United States, Maher learned that the Younans' home had been sold at a foreclosure sale on July 15. The Younans claimed that Southland was not a bona fide purchaser of the home because Southland had notice of the allegedly defective sale before it recorded a trustee's deed to the property.
The Younans brought causes of action for wrongful foreclosure, breach of contract/promissory estoppel, negligent misrepresentation, intentional misrepresentation, negligence, unfair competition, false promise, and fraudulent concealment, against CIT. They also brought causes of action for intentional interference with contractual relations, quiet title, and declaratory relief against Southland. They brought causes of action for a violation of Civil Code section 2924g, subdivision (c), intentional infliction of emotional distress, and negligent infliction of emotional distress against both respondents. B. Southland's demurrer
As discussed in part III.B.3, post, this statute pertains to the circumstances under which a foreclosure sale shall be postponed.
Southland filed a demurrer in which it contended that the Younans had failed to properly allege any causes of action against it because the first amended complaint and the trustee's deed attached to the first amended complaint established that Southland was a bona fide purchaser of the Younans' property for value, without notice of any defect with respect to the foreclosure sale. The trial court sustained the demurrer without leave to amend on this basis, and entered a judgment of dismissal in Southland's favor. C. CIT's motion for summary judgment
CIT filed a motion for summary judgment in which it argued that there were no triable issues of material fact with respect to any of the Younans' causes of action against it. After briefing and oral argument, the trial court entered an order granting CIT's motion. The trial court concluded that CIT demonstrated that the Younans could not establish the essential elements of any of their causes of action. The trial court subsequently entered a judgment in favor of CIT. D. The Younans' appeal
The Younans filed a notice of appeal on February 14, 2017 in which they stated that they were appealing a judgment after an order granting summary judgment and a judgment of dismissal after an order sustaining a demurrer.
III.
DISCUSSION
A. The Younans' appeal must be dismissed insofar as it seeks reversal of the May 11, 2015 judgment in favor of Southland
Southland contends that the Younans' appeal is untimely insofar as it seeks reversal of the May 11, 2015 judgment in favor of Southland. We agree.
1. Procedural background
The Younans' first amended complaint contained numerous causes of action against Southland arising out of the July 2014 trustee's sale of the Younans' home to Southland.
Southland filed a demurrer with respect to all of the causes of action alleged against it in the first amended complaint. Among other arguments, Southland contended that it "did nothing more than purchase the property at a trustee's sale as a bona fide purchaser for value without notice of [any] defect [with the trustee's sale]."
The trial court sustained Southland's demurrer without leave to amend. The court ruled in relevant part:
"From the allegations of the complaint, and the exhibits attached thereto and incorporated therein, Southland is a bona fide purchaser. From the face of [the Younans'] complaint, Southland only learned of any alleged defect in the foreclosure process after the sale of the property and after the trustee's deed was recorded."
The trial court entered a judgment of dismissal in favor of Southland on May 11, 2015.
The Younans filed a notice of appeal on February 14, 2017. The notice of appeal states that the Younans appeal from a December 16, 2016 judgment entered in favor of CIT after an order granting summary judgment and a September 18, 2015 judgment of dismissal entered after an order sustaining a demurrer.
The February 14 notice of appeal did not mention Southland or contain a September 18, 2015 judgment of dismissal. The notice of appeal did attach a September 18, 2015 order overruling CIT's demurrer.
The Younans filed an amended notice of appeal on May 1, 2017. The amended notice of appeal indicates that the initial notice of appeal incorrectly listed September 18, 2015 as the date of the judgment of dismissal entered after an order sustaining a demurrer, and that the correct date of the judgment of dismissal was May 11, 2015. The May 11, 2015 judgment of dismissal in favor of Southland is attached to the amended notice of appeal.
After the notice of appeal was filed, this court sent the Younans a letter explaining that it appeared that the Younans' appeal as to the May 11, 2015 judgment was untimely. We requested that the Younans submit a letter explaining why their appeal as to the 2015 judgment should not be dismissed as untimely.
In response to our request, the Younans submitted a letter in which they contended that Southland's liability was "intertwined" with that of CIT. The Younans further noted that "CIT was not dismissed until the December 16, 2016 judgment," and argued that it was not until this date that a final judgment as to Southland was entered.
Specifically, the Younans argued that "the timeliness of this appeal should be based upon the December 16, 2016 judgment," since, according to the Younans, an appeal of the May 11, 2015 judgment would have been "premature."
After receiving the Younans' letter, this court issued an order permitting the appeal to proceed in its entirety, but directing the parties "to address the timeliness of the appeal as to the 2015 judgment" in their briefing. We explained that the issue with respect to the timeliness of the Younans' appeal as to the May 11, 2015 judgment "may be subject to further consideration during the pendency of the appeal."
Southland submitted a brief in which it argued that the appeal as to Southland was untimely and that this court lacked jurisdiction to consider the Younans' appeal as to it. Southland argued that the May 11, 2015 judgment of dismissal resolved all of the issues in the matter as to it and, therefore, constituted a final judgment. Southland further argued that because the Younans failed to timely appeal from the May 11, 2015 judgment, this court lacked jurisdiction over the Younans' appeal as to Southland. Southland also argued that any potential liability of CIT to the Younans could not affect Southland's liability in light of the May 11, 2015 final judgment.
In their brief, the Younans reiterated their contention that the appeal as to Southland was timely because, according to the Younans, they "could not appeal the May 11, 2015 judgment in favor of [Southland] until the claims against CIT had been fully adjudicated."
2. Governing law
An appeal to the Court of Appeal may be taken from a final judgment in a civil proceeding, except in a limited civil case. (Code Civ. Proc., §§ 904, 904.1, subd. (a)(1).) "[A] judgment is final, and therefore appealable, ' " 'when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.' " ' " (Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1115 (Dhillon).) The law is well settled that a plaintiff may appeal from a judgment that is final as to one party in a case even if the case involves multiple defendants. (See, e.g., Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 430 [" 'It is settled that the rule [that an appeal may not be taken from an "interlocutory" judgment] does not apply when the case involves multiple parties and a judgment is entered which leaves no issue to be determined as to one party' "]; Tinsley v. Palo Alto Unified School Dist. (1979) 91 Cal.App.3d 871, 880 (Tinsley) ["when there is a . . . judgment resolving all issues between a plaintiff and one defendant, either party may appeal from an adverse judgment, although the action remains pending between the plaintiff and other defendants"].)
"Under [California Rules of Court,] rule 8.104, a notice of appeal must be filed within 60 days after service (whether by the superior court clerk or by a party) of a notice of entry of judgment or a file-stamped copy of the judgment. [Citation.] If there is no notice, the notice of appeal must be filed within 180 days after 'entry of judgment.' [Citation] . . . [¶] These time limits are jurisdictional. We are powerless to extend the time to file a notice of appeal, or to hear untimely appeals. [Citations]." (In re Marriage of Mosley (2010) 190 Cal.App.4th 1096, 1101-1102.)
When no appeal is taken from an appealable judgment or order within the statutory time limit, that judgment or order cannot be reviewed on an appeal from a subsequent order or judgment. (See, e.g., In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119.)
3. Application
The May 11, 2015 judgment resolved all of the issues between the Younans and Southland. Thus, it was an appealable final judgment. (Dhillon, supra, 2 Cal.5th at p. 1115.) That is so even though the action remained pending as between the Younans and CIT. (Tinsley, supra, 91 Cal.App.3d at p. 880.) The Younans failed to timely appeal from the May 11, 2015 judgment. (See Cal. Rules of Court, rule 8.104(a)(1)(C) [stating that a notice of appeal must be filed no later than 180 days after judgment].) As a result, this court lacks appellate jurisdiction over the Younans' appeal insofar as they seek reversal of the May 11, 2015 judgment in favor of Southland.
We are not persuaded by the Younans' contention that any "[a]ppeal of the May 11, 2015 [judgment] would have been premature and a waste of judicial resources because Southland's liability was dependent upon CIT's liability which had yet to be decided until the December 16, 2016 judgment." The one case that the Younans cite in support of this proposition, C3 Entertainment, Inc. v. Arthur J. Gallagher & Co. (2005) 125 Cal.App.4th 1022, is wholly distinguishable. In C3 Entertainment, after an insurer refused to defend the plaintiff in an underlying action, the plaintiff brought bad faith and breach of contract claims against the insurer and a negligence claim against an insurance broker (Gallagher). (Id. at p. 1024.) The trial court granted the plaintiff's motion for summary adjudication as to the insurer on the issue of the duty to defend, but left other issues remaining between the plaintiff and the insurer. (Ibid.) Thereafter, based on the trial court's ruling regarding the duty to defend, Gallagher moved for summary judgment on plaintiff's negligence claim on the ground that it had obtained the proper coverage for the plaintiff. (Id. at pp. 1024-1025.) The court granted the motion and entered a judgment in favor of Gallagher, while the action remained pending as to the insurer. (Id. at p. 1025.) The plaintiff timely appealed from the judgment in favor of Gallagher, and contended on appeal that the trial court had erred in entering a final judgment in favor of Gallagher because there had been no final judicial determination of the coverage issue. (Ibid.) The Court of Appeal noted that the judgment in favor of Gallagher "was entirely contingent on [a prior] ruling [against the insurer]," and the prior ruling "had not been reduced to a judgment." (Ibid.) The C3 Entertainment court ruled that "[u]nder those circumstances, entry of judgment in Gallagher's favor was premature, and violated the one final judgment rule." (Ibid.)
In contrast, in this case, the judgment in favor of Southland was in no way dependent on a prior ruling as to CIT. Rather, the trial court ruled that Southland was a bona fide purchaser. Accordingly, unlike the trial court in C3 Entertainment, the trial court in this case properly entered a judgment in favor of Southland. It was therefore incumbent upon the Younans to timely appeal from that judgment to the extent they sought its reversal.
Accordingly, we conclude that the Younans' appeal must be dismissed insofar as it seeks reversal of the May 11, 2015 judgment of dismissal in favor of Southland. B. The trial court properly granted CIT's motion for summary judgment
The Younans claim that the trial court erred in granting CIT's motion for summary judgment.
1. The law governing summary judgment motions and the applicable standard of review
A moving party is entitled to summary judgment when the party establishes that it is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant may make this showing by demonstrating that the plaintiff cannot establish one or more elements of all of his causes of action, or that the defendant has a complete defense to each cause of action. (Towns v. Davidson (2007) 147 Cal.App.4th 461, 466.)
In reviewing a trial court's ruling on a motion for summary judgment, the reviewing court makes " 'an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.' " (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)
2. The trial court properly granted judgment as a matter of law in favor of CIT on the Younans' breach of contract/promissory estoppel cause of action
The Younans contend that the trial court erred in determining that there was no triable issue of material fact with respect to whether CIT entered into an oral agreement with the Younans pursuant to which CIT promised to "postpone the foreclosure date" in exchange for the Younans making two $5,000 payments in June of 2014.
a. Procedural background
i. The relevant allegations in the first amended complaint
In their first amended complaint, the Younans allege the following:
"On June 19, 2014[] [Maher] made a mortgage payment for the residence at issue of $5,000.00 to [CIT]. On June 30, 2014, [the Younans] made an additional mortgage payment of $5000.00 to [CIT] (the payment may not have been processed until July 1, 2014).
"[¶] . . . [¶]
". . . On June 30, 2014 [Maher] called [CIT] and spoke with a woman at [CIT]. [Maher] explained that he paid $10,000.00 and asked if the sale, that was currently scheduled for July 3, 2014 was still going forward. [Maher] was told that the sale that was set for July 3, 2014 was no longer scheduled and there are [sic] not a date for a foreclosure sale.
". . . In reliance upon [CIT's] statements, [Maher] believed his home was not going to be sold and [Maher] went out of the country to do nonprofit work."
Although not material to the appeal, it is undisputed that Maher made the payment on June 18, rather than June 19.
In their cause of action for breach of contract/promissory estoppel, the Younans incorporated these allegations, and also alleged:
"[The Younans] claim that they and [CIT] entered into a contract in which the parties agreed that the home at issue would not be sold at a foreclosure sale because [the Younans] made [a] $10,000 payment in June of 2014. [CIT] accepted the $10,000.00 payment and told [the Younans] that the home was not scheduled for foreclosure."
ii. CIT's motion for summary judgment
In its motion for summary judgment, CIT argued that there was no triable issue of material fact with respect to the Younans' cause of action for breach of contract/promissory estoppel for several reasons, including that "CIT did not promise to halt the foreclosure based on the Younans' payments in June of 2014." In its accompanying separate statement of facts, CIT stated, "The Younans were not promised at any point that the foreclosure proceedings would be canceled based on the two $5,000 payments made by the Younans in June of 2014." In support of this contention, CIT cited exhibits containing transcripts of the June 18 and June 30 telephone calls on which the Younans based their cause of action, and a declaration from Rebecca Marks, the assistant vice president of litigation for CIT.
In her declaration, Marks stated the following with respect to the June 18th and 30th telephone calls:
"CIT's records include audio recordings of the telephone calls between [Maher] and CIT. These recordings are created, maintained, and preserved in the ordinary course of CIT's business. It is CIT's policy to record customer calls for quality assurance and other purposes and, before connecting the customer with a live CIT representative, CIT's automated call system informs customers that their calls may be recorded for those purposes. I have listened to a recorded telephone call made by [Maher] to CIT on June 18, 2014. I also reviewed the transcript of the telephone call, and it accurately transcribes the audio file of the recorded telephone call from June
18. A true and correct copy of the transcript of the June 18, 2014 telephone call is attached to the Compendium as Exhibit 13.
" . . . As can be seen from the transcript of the recording of the June 18, 2014 telephone call, [Maher] called to make a $5,000 payment toward the Loan. [Maher] stated that the Younans were 'trying to catch up' with their defaulted payments. At no point during that telephone call did the CIT representative inform [Maher] that the foreclosure would be canceled or postponed due to the $5,000 payment or for any other reason. The foreclosure date was not discussed in the June 18, 2014 telephone call whatsoever.
" . . . CIT's records also contain a recorded telephone call made by [Maher] to CIT on June 30, 2014. I have listened to that recorded call and reviewed the transcript of the call. The transcript accurately transcribes the audio file of the recorded telephone call from June 30, 2014. A true and correct copy of the transcript of the June 30, 2014 call is attached to the Compendium as Exhibit 14. CIT's records reflect that the recorded phone call was the only call between CIT and [Maher] on June 30, 2014.
" . . . As can be seen from the transcript of the recording of the June 30, 2014 telephone call, [Maher] again called to make a $5,000 payment toward the Loan. During that phone call, [Maher] inquired whether the foreclosure sale was proceeding. The CIT representative responded 'No, because you're in bankruptcy. We can't foreclose on you while you're in bankruptcy.' There was no further discussion regarding the foreclosure sale." (Boldface omitted.)
Marks's declaration provides an accurate summary of the transcripts.
iii. The Younans' opposition
In contending that CIT was not entitled to judgment as a matter of law on its breach of contract/promissory estoppel cause of action, the Younans maintained, "[CIT] promised [the Younans] if they made the two $5000 payments, the foreclosure sale would not proceed." In support of that contention, the Younans cited the following statement from their statement of undisputed facts: "[Maher] made two payments of $5000 each on June 18, 2014 and June 30, 2014 in exchange for the bank's agreement to stop the foreclosure sale." The Younans' separate statement in turn cited the following portion of Maher's deposition:
"[CIT's counsel:] So it was your assumption that when the bank accepted those two payments, they would accordingly cancel the foreclosure sale?
"[Maher:] It's not my assumption, but they took my payments."
"[¶] . . . [¶]
"[CIT's counsel:] Did they ever -- following the payments in June 2014, did the bank ever send you anything in writing saying that they were not going to hold the foreclosure sale because of those payments?
"[Maher:] No. She told me in person; on the phone. I'm sorry. When I say, 'in person,' on the phone.
"[CIT's counsel:] Okay. So you think then it was communicated to you orally?
"[Maher:] Yeah."
iv. CIT's reply
CIT filed a reply in which it argued that Maher had admitted during his deposition that there was no agreement between CIT and the Younans. CIT argued in relevant part:
"When questioned about such an agreement, [Maher] testified that 'I don't have any contract, but it's logic.' [Citation.] He went on to testify that 'There was no contract to begin with. There was, like, no contract, "We're going to foreclose your house. We're going to take your house. You make payments, or we're going to take your house." It was never like this. We thought, like, in good faith, we make some payments and we make some back — extra payments so we can catch up.' [Citation.] Although the Younans may have believed that making two payments of $5,000 would be enough to halt the foreclosure, there is no evidence that they formed that belief
through any representation or 'agreement' made by CIT. There is no evidence before the Court to support the existence of an oral or written agreement to halt the foreclosure."
CIT lodged the relevant excerpts of Maher's deposition quoted in its reply. In addition, CIT lodged the portion of the transcript of Maher's deposition that followed immediately after the excerpt of Maher's deposition relied upon by the Younans in their opposition. (See part III.B.2.a.iii, ante.) That portion of the transcript provides as follows:
"[CIT's counsel:] Okay. Thank you.
"[Maher:] You're welcome.
"[CIT's counsel:] And when the bank did communicate that to you orally, was that in the June 30th phone call?
"[Maher:] Yeah. Before I left the country. And I am, like, I want to say 99 percent sure that I tell them, 'I'm leaving out of country, so I'll make you a payment before I go.' And I did that, the June 30th [sic]. [¶] And I asked [the CIT representative], 'Is there any foreclosure sale date, July 2nd?'
"She said, 'There is no foreclosure sale date scheduled at this moment.'
"[CIT's counsel:] And did she say that that was because of the payments you had made?
"[Maher:] I am not sure if she said that or not."
v. The trial court's ruling
In its order granting CIT's motion for summary judgment, the trial court stated:
"The Court finds [the Younans] failed to create a triable issue of material fact as to, among other things, the existence of an agreement, written or oral, that CIT . . . would not foreclose on their home in exchange for plaintiffs' payment of the two $5,000
payments. . . . [Maher's] deposition testimony, also does not establish there was an oral agreement not to foreclose on the property in exchange for the two $5,000 payments. [Citation.] [Maher's] testimony does establish he had a subjective belief that if he made any payments on his defaulted loan, CIT . . . would not foreclose on the property. [Citation.]"
b. Application
In order to establish their breach of contract/promissory estoppel cause of action, the Younans were required to establish either that CIT and the Younans entered into an agreement/contract (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [listing elements of a breach of contract cause of action]) or that CIT made a promise (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416 [listing elements of a promissory estoppel cause of action]), among other elements. On appeal, the Younans contend that Maher's deposition testimony, quoted in their opposition, together with evidence that CIT accepted the two June payments after having previously rejected the Younans' payments, and evidence of CIT's postforeclosure purported "admissions," constituted substantial evidence of an oral agreement/promise by CIT to postpone the foreclosure sale in exchange for the June payments. We disagree.
To begin with, the Younans fail to present any argument on appeal with respect to how a jury could reasonably find the existence of such an oral agreement/promise, in view of CIT's presentation of the transcripts of audio recordings of the telephone calls at issue that unequivocally contain no such agreement or promise. In a separate portion of their brief, the Younans do contend that the trial court abused its discretion in sustaining CIT's evidentiary objections to evidence that the Younans offered to demonstrate that the audio recordings of the calls were not complete. Specifically, the trial court sustained CIT's foundation objections to a declaration offered by the Younans' counsel that detailed counsel's efforts to compare the length of the calls as shown on the Younans' telephone records with the length of the audio recordings offered by CIT, in an apparent effort to establish that the recordings did not contain the entirety of the conversations at issue. We agree with CIT that the Younans' counsel did not present any "foundation as to how phone call length is determined or reported by [the Younans' phone carrier], and no foundation as to how CIT records calls (including matters such as time spent on menus, on hold, in transfers, or the like)." In the absence of such foundation, we conclude that the Younans have failed to demonstrate that the trial court abused its discretion in sustaining the objections. Accordingly, the Younans' counsel's declaration does not create a triable issue of material fact.
" '[A]ppellate courts review a trial court's rulings on evidentiary objections in summary judgment proceedings for abuse of discretion.' " (Duarte v. Pacific Specialty Ins. Co. (2017) 13 Cal.App.5th 45, 52.)
In response to the Younans' counsel's declaration, CIT lodged a supplemental declaration from Marks that stated in relevant part:
"[I]n connection with my position at CIT and in the regular performance of my job functions, I am familiar with the telephone call system used to direct incoming phone calls from customers of the bank to the appropriate bank representative. When a customer places a call to CIT, the customer is presented with an automated menu of options to make a payment, to order a payoff, to be routed to a call center, amongst other things. If the customer is routed to a call center, there is sometimes an additional wait time while the customer holds on the line before speaking with the next available bank representative. Wait times can range depending on the volume of calls at any given time. Although CIT generally records phone calls between customers and bank representatives, it does not record the time period when a customer is utilizing the menu option system or is waiting to speak with a bank representative. CIT also does not record the time period when a customer is placed on hold."
In addition, while the Younans note in the factual background portion of their brief that Maher lodged a declaration in which he asserted, "[t]he tapes do not include the whole conversation I had with [CIT]," Maher did not state in his declaration that the unrecorded portions of the conversation contained an oral agreement or promise to postpone the foreclosure in exchange for payments. In addition, the statements made on the transcripts demonstrate that Maher was making payments without any assurances that that the foreclosure would be delayed, and Maher presents no argument that the transcripts were fabricated or could be reconciled with an unrecorded oral agreement that would be contrary to the statements made on the transcripts. Thus, Maher's declaration did not provide a basis on which a jury could find that CIT entered into an oral agreement/promise to postpone the foreclosure sale in exchange for the Younans' payments.
Further, the Younans do not point to any other evidence in the record that would be sufficient to create a triable issue of material fact. The fact that that CIT accepted payments from the Younans toward the balance owing on their mortgage, even if CIT had previously refused such payments, clearly does not establish an oral agreement to postpone the foreclosure sale. In addition, none of the purported "admissions," referred to in the Younans' brief constitutes evidence of an oral agreement between CIT and the Younans.
The evidence consists of e-mails and notes from a CIT representative and Meridian Foreclosure Service discussing the legality of the foreclosure in light of the fact that CIT had accepted the Younans' June payments. However, none of the e-mails or notes suggest the existence of an agreement between CIT and the Younans to postpone the foreclosure sale in exchange for those payments. Moreover, the Younans have not made any argument that CIT's mere acceptance of the two $5,000 payments owed to it rendered the sale invalid. Further, given that it is undisputed that the Younans' payments were for far less than the amount that would be required to cure their default or pay off the loan, those payments were not sufficient to prevent CIT's foreclosure. (See Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 777-778 ["A debtor on a loan secured by a deed of trust on real property has at least two ways under state law to prevent a foreclosure sale. He may either reinstate, or cure, the loan by bringing his payments current no later than five business days before the scheduled sale [citation], or he may redeem, or pay off, the loan by paying off the entire amount owed before the sale occurs"].)
With respect to Maher's deposition testimony, the testimony was, at best, equivocal. Maher acknowledged that "[t]here was no contract," and stated that he had made the June payments in "good faith," in an attempt to "catch up." Maher also stated that his contention that there was an agreement was based on "logic," and the fact that CIT "took [his] payments." While it is true that in response to a question about whether he had ever been promised anything in "writing," Maher appeared to suggest that a CIT representative had made an oral promise to him, but Maher clarified that he was "not sure" whether a CIT representative had told him that the foreclosure sale would be delayed because of his payments. In sum, given CIT's presentation of evidence of audio recordings that clearly and unequivocally establish the that no oral agreement to postpone the foreclosure sale in exchange for the Younans' payments was made during the June 30 telephone call, as the Younans allege, Maher's equivocal deposition testimony does not establish a triable issue of material fact. (See Ahrens v. Superior Court (1988) 197 Cal.App.3d 1134, 1152 [stating "equivocal" evidence insufficient to create a triable issue of material fact].)
Accordingly, we conclude that the trial court properly granted judgment as a matter of law for CIT on the Younans' causes of action for breach of contract/promissory estoppel.
In light of our conclusion that the trial court properly granted judgment as a matter of law for CIT on the Younans' promissory estoppel/breach of contract cause of action on the ground that there is no triable issue of material fact with respect to the existence of an agreement sufficient to support such a cause of action, we need not consider any of the other grounds for affirmance of the trial court's ruling that the parties' discuss in their briefing.
3. The trial court properly granted judgment as a matter of law for CIT on the Younans' cause of action for a violation of Civil Code section 2924g, subdivision (c), and on their negligence, emotional distress, and fraud related causes of action
The Younans contend that the trial court erred in granting judgment as a matter of law for CIT on their cause of action for a violation of Civil Code section 2924g, subdivision (c) and on their negligence, emotional distress, and fraud related causes of action. As outlined below, the trial court properly granted judgment as a matter of law in favor of CIT on these causes of action since they were all based on the same factual premise as the Younans' breach of contract/promissory estoppel cause of action.
Civil Code section 2924g, subdivision (c) provides in relevant part:
"(c)(1) There may be a postponement or postponements of the sale proceedings, including a postponement upon instruction by the beneficiary to the trustee that the sale proceedings be postponed, at any time prior to the completion of the sale for any period of time not to exceed a total of 365 days from the date set forth in the notice of sale. The trustee shall postpone the sale in accordance with any of the following:
"[¶] . . . [¶]
"(C) By mutual agreement, whether oral or in writing, of any trustor and any beneficiary or any mortgagor and any mortgagee."
The Younans' cause of action for a violation Civil Code section 2924g, subdivision (c) was based on their allegation that CIT entered into the same agreement with the Younans to postpone the sale that we discussed in part III.B.2, ante. In light of our conclusion that there is no evidence upon which a reasonable jury could find the existence of such an agreement (id.), we conclude that the trial court properly granted judgment as a matter of law for CIT on this cause of action.
The Younans also contend that the trial court erred in granting judgment as a matter of law for CIT on their negligence and negligent and intentional infliction of emotional distress causes of action. The Younans argue that the trial court erred in granting judgment as a matter of law on these causes of action because "[in] their opposition to [the motion for summary judgment]," (italics added) they cited case law that demonstrated that CIT owed them a duty of care related to the loan modification process, as outlined in the Homeowners' Bill of Rights. (§ 2923.4 et seq.) The trial court properly concluded that the Younans' arguments with respect to the loan modification process and the Homeowners' Bill of Rights were "irrelevant" because the Younans' negligence and negligent and intentional infliction of emotional distress causes of action did not mention either issue. (See Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 477 ["A plaintiff may not avoid a summary judgment by producing evidence to support claims outside the issues framed by the pleadings"].) Rather, the Younans' causes of action for negligence and negligent and intentional infliction of emotional distress in the operative first amended complaint were premised entirely on the same alleged promise to postpone the foreclosure in exchange for payments as discussed in part III.B.2, ante.
In their negligence cause of action, the Younans alleged, "[CIT] breached a duty of care owed to the Plaintiffs by failing to ensure that the July 15, 2014 sale was actually postponed and by accepting payments equaling $10,000.00 the month prior to the foreclosure sale." The Younans alleged in causes of action for both intentional and negligent infliction of emotional distress that "[i]t is also common knowledge that selling a person[']s home after they have paid $10,000.00 in mortgage payments less than a month prior, and after the person is assured by the bank that the sale will not go forward, would cause severe emotional distress."
Finally, the Younans concede that their fraud causes of action for negligent and intentional misrepresentation and for false promise and concealment all arise "from the same facts as the breach of oral contract, promissory estoppel and negligence" causes of action. We therefore conclude that the trial court properly granted judgment as a matter of law for CIT on these causes of action because there is no evidence that CIT promised the Younans that the foreclosure sale would be postponed in exchange for their June 2014 payments. (See pt. III.B.2, ante.)
Accordingly, we conclude that the trial court properly granted judgment as a matter of law for CIT on the Younans' cause of action for a violation of Civil Code section 2924g, subdivision (c)(1)(C), and on their negligence, emotional distress, and fraud related causes of action.
4. The trial court properly granted judgment as a matter of law for CIT on the Younans' wrongful foreclosure cause of action
The Younans claim that the trial court erred in granting judgment as a matter of law for CIT on the Younans' wrongful foreclosure cause of action on the ground that it was undisputed that they had not tendered the debt owed to CIT.
Where trustors, such as the Younans, bring a wrongful foreclosure cause of action challenging a foreclosure sale as unlawful, the trustors must establish, among other elements, that they " ' "tendered the amount of the secured indebtedness or [were] excused from tendering." ' " (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561-562.) It is undisputed that the Younans did not tender the amount of secured indebtedness. Further, the only case on which the Younans rely in support of their contention that no tender was required, Mabry v. Superior Court (2010) 185 Cal.App.4th 208 (Mabry), is distinguishable. In Mabry, the Court of Appeal concluded that tender was not required in order for a borrower to state a cause of action for the violation of Civil Code section 2923.5, which requires that a lender contact a borrower in order to assess alternatives to foreclosure. (Mabry, supra, at p. 225.) The Mabry court explained that to require tender under these circumstances would "defeat the purpose of the statute," (ibid.) since the remedy for a violation of the statute "is . . . to postpone the sale until there has been compliance with section 2923.5." (Id. at p. 223.) In this case, the Younans did not seek to postpone the foreclosure sale through their wrongful foreclosure cause of action but rather, sought to collect damages for a purportedly illegal completed sale. Mabry thus does not provide any authority excusing the Younans from the tender requirement.
Accordingly, we conclude that the trial court properly granted judgment as a matter of law for CIT on the Younans' wrongful foreclosure cause of action.
In light of our conclusion, we need not consider whether the trial court's summary adjudication of the Younans' wrongful foreclosure cause of action may be affirmed on additional grounds discussed in the parties' briefing.
5. The Younans have not established that the trial court erred in granting judgment as a matter of law for CIT on their unfair competition cause of action
The Younans argue that the trial court erred in granting judgment as a matter of law for CIT on their unfair competition cause of action "for the same reasons," as outlined with respect to their other claims of error. In light of our rejection of all of the Younans' other claims, we conclude that the Younans have not established that the trial court erred in granting judgment as a matter of law on their unfair competition cause of action.
6. The Younans have not established that the trial court committed any reversible error in excluding three items of evidence that they offered in opposition to CIT's motion for summary judgment
As a final argument, the Younans contend that the trial court erred in excluding three items of evidence that they offered in opposition to CIT's motion for summary judgment. First, the Younans claim that the trial court erred in excluding a declaration that they offered in support of their contention that they would have cured their default if they had known that CIT intended to hold the foreclosure sale. As Younans' argue on appeal, "[We] did not pay [the amount needed] to cure the default because [we] relied on the bank's promise to delay the sale in exchange for the two $5000 payments." In light of our conclusion that the Younans failed to establish the existence of any promise or agreement to postpone the foreclosure, any erroneous exclusion of evidence with respect to this issue was harmless.
Second, the Younans contend that the trial court erred in excluding several paragraphs of their counsel's declaration pertaining to the length of the audio recordings of Maher's phone calls with CIT on June 18, 2014 and June 30, 2014, which the Younans offered in support of their contention that CIT had not "present[ed] the entire phone call." We reject the Younans' argument for the reasons stated in part III.B.2, ante.
Finally, the Younans contend that the trial court abused its discretion in excluding certain portions of Maher's declaration on the ground that the statements amounted to hearsay. Specifically, the Younans contend that the trial court erred in excluding Maher's statement that, " 'The [CIT] customer service agent said the bank would stop the sale date because of my payment.' " Even assuming that the trial court erred in excluding this statement, any error was harmless in light of the evidence discussed in part III.B.2, ante.
The Younans also contend that the trial court erred in excluding certain statements regarding conversations that Maher had with a representative of Meridian Foreclosure Service, Inc. after the foreclosure. None of the statements demonstrate an agreement between CIT and the Younans. Any erroneous exclusion was thus harmless. --------
Accordingly, we conclude that the Younans have not established that the trial court committed any reversible error with respect to its evidentiary rulings.
IV.
DISPOSITION
The appeal as to respondent Southland is dismissed. The judgment in favor of CIT is affirmed. Southland and CIT are entitled to recover their costs on appeal.
AARON, J. WE CONCUR: NARES, Acting P. J. O'ROURKE, J.