Filed 11/24/14 Hetrick v. Deutsche Bank Nat. Trust Co. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

BENJAMIN HETRICK,
                                                                                           F067675
         Plaintiff and Appellant,
                                                                                 (Super. Ct. No. 662271)
                   v.

DEUTSCHE BANK NATIONAL TRUST                                                             OPINION
COMPANY,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M.
Beauchesne, Judge.
         Richard C. Sinclair for Plaintiff and Appellant.
         Wright Finlay & Zak, Jonathan D. Fink, Bradford E. Klein and Richard J. Lee for
Defendant and Respondent.
                                                        -ooOoo-
       In this wrongful foreclosure case brought by plaintiffs Benjamin and Darla Hetrick
against defendant Deutsche Bank National Trust Company,1 plaintiffs alleged that
defendant failed to provide a modification of their home loan pursuant to the federal
mortgage assistance program known as “Home Affordable Modification Program”
(HAMP)2 and then improperly proceeded to foreclose on their home. The trial court
granted defendant’s motion for summary judgment, and plaintiffs now appeal from the
resulting judgment. Plaintiffs argue that the trial court should have continued the hearing
of the motion for summary judgment to allow them additional time to complete discovery
and that, even apart from the issue of the continuance, the trial court erred in granting
summary judgment. Plaintiffs further argue the trial court erred when it failed to grant
several motions filed by them, including motions to compel further responses to
discovery requests, to reconsider prior orders, to grant relief under Code of Civil
Procedure section 473 and for a new trial.3 On the record before us, we conclude that
plaintiffs have failed to demonstrate any error or abuse of discretion. Accordingly, we
affirm the judgment of the trial court.
                        FACTS AND PROCEDURAL HISTORY
       On August 22, 2006, plaintiff Benjamin Hetrick obtained a mortgage loan in the
amount of $530,000 (the loan) from Plaza Home Mortgage, Inc. (the lender). The

1      Defendant was sued under the following name and capacity: “Deutsche Bank National
Trust Company as Trustee of the Residential Asset Securitization Trust 2006-A13, Mortgage
Pass-Through Certificates, Series 2006-M under the Pooling and Servicing Agreement Dated
October 1, 2006 .…” (Some capitalization omitted.)
2      “As authorized by Congress, the United States Department of the Treasury implemented
the Home Affordable Mortgage Program (HAMP) to help homeowners avoid foreclosure during
the housing market crises of 2008. ‘The goal of HAMP is to provide relief to borrowers who
have defaulted on their mortgage payments or who are likely to default by reducing mortgage
payments to sustainable levels, without discharging any of the underlying debt.’ [Citation.]”
(West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 785.)
3     Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure.



                                                2.
monthly payments under the terms of the loan were $4,290.71.4 The loan was secured by
a deed of trust (the deed of trust) encumbering plaintiffs’ primary residence located in
Turlock, California (the real property). Coplaintiff Darla Hetrick was not a borrower on
the subject loan, nor was she named on the deed of trust; her sole interest in the litigation
was apparently based on the fact that she shared a community property interest in the real
property. Because Benjamin Hetrick was the party who entered the loan transaction,
executed the deed of trust and sought a loan modification to avoid foreclosure, when we
refer in this opinion to plaintiff (in the singular), we mean Benjamin Hetrick.5
       Under the express terms of the deed of trust, Mortgage Electronic Registration
Systems, Inc. (MERS) was the nominee of the lender (and of the lender’s successors and
assigns) and was also the beneficiary under the deed of trust. The deed of trust secured
the repayment of the loan and all extensions or modifications thereof, and included
plaintiff’s grant of a power of sale to the trustee. In November 2009, MERS, as the
lender’s nominee and as beneficiary under the deed of trust, assigned all of its beneficial
interest in the deed of trust, together with its rights concerning the loan or note therein
described, to defendant. During the relevant time period, OneWest Bank, FSB, through
its servicing division, IndyMac Mortgage Services (IndyMac), was the servicing agent on
behalf of defendant.
       In 2009, during the real estate downturn, plaintiff experienced difficulty meeting
the loan obligation. By September 2009, he had fallen behind in his payments. On or

4     The amount of the monthly payment under the loan was undisputed. Since the monthly
payment was more than the amount stated on the face of the promissory note (i.e., $3,570.71), it
presumably included (in addition to principal and interest) sums for other mortgage-related
expenses such as property taxes and insurance.
5       We find it unnecessary to determine whether Darla Hetrick lacked standing, since the
appeal is being resolved on other grounds, as discussed herein. Even assuming she could bring
suit here as a coplaintiff, her claims stand or fall with those of her husband. As noted, when we
use the singular “plaintiff” herein, we are referring to Benjamin Hetrick, but we do so with the
understanding that if his claims are negated, so are his wife’s.



                                                3.
about August 11, 2009, IndyMac sent plaintiff a document entitled “Modification
Agreement,” which purported to “confirm” his agreement to modify the loan but
cautioned that the agreement was “not binding” on the note holder or its servicing agent,
IndyMac, “unless and until” it was “verifie[d] that [he] qualifie[d] for this modification
offer.” The same document was also described in its caption as a “Stipulated
Forbearance to Loan Modification Program.” Under this proposed
modification/forbearance program, plaintiff was required to “promptly provide IndyMac
acceptable information to permit verification of [his] income, and make the payments
shown in the payment schedule … while IndyMac verifie[d] [his] information.”
According to defendant, plaintiff failed to submit the required documentation necessary
to verify his financial information to establish that he qualified for the modification offer.
Plaintiff was notified by letter that his effort at modification had been rejected for that
reason.
       Since plaintiff was in default on the loan and had failed to comply with the terms
of the August 2009 modification/forbearance program, on November 12, 2009, a notice
of default and election to sell under deed of trust (notice of default) was recorded. The
notice of default was recorded by Regional Trustee Services Corporation, which entity
had been substituted in as trustee under the subject deed of trust.
       On or about December 17, 2009, plaintiff was sent an application for a loan
modification under the federally regulated HAMP program. Since plaintiff remained in
default on the loan, a notice of trustee’s sale pursuant to the deed of trust was recorded on
February 16, 2010.6 Shortly thereafter, plaintiff submitted a loan modification
application under the HAMP program.

6      According to the notice of trustee’s sale, the property would be sold on March 8, 2010.
However, since prior to that sale date the loan was under review for a permanent modification
under HAMP, the foreclosure sale was intermittently postponed to allow the trial program and
evaluation process under HAMP to be completed.



                                               4.
        On February 25, 2010, based on initial information he had provided, plaintiff was
approved by defendant through its servicing agent (IndyMac) for a “trial period plan”
under HAMP that included a forbearance of the foreclosure proceedings while plaintiff’s
eligibility for a permanent modification under HAMP was verified. The terms of the trial
period plan were set forth in a written document dated February 25, 2010 (the HAMP
trial plan). As provided in the HAMP trial plan document, in addition to making three
monthly payments of $3,410.76 (beginning on April 1, 2010), plaintiff was required to
submit documentation to verify his income in order to establish that he qualified for a
permanent modification under HAMP. The type of documentation that would be used to
verify plaintiff’s income was set forth, and a warning was given that “[i]f your verified
income is different from the amount you gave us verbally, you may no longer be eligible”
for a loan modification under HAMP.
        In the HAMP trial plan document, defendant promised that, during the trial period,
it “will not proceed to foreclosure sale …, provided [plaintiff was] complying with the
terms of the trial period plan .…” At the same time, the HAMP trial plan document
clearly stated that the foreclosure process would proceed if plaintiff did not qualify:
“During the trial period, any pending foreclosure action or proceeding will not be
dismissed and may be immediately resumed if you fail to comply with the terms of the
Trial Period Plan or do not qualify for a modification. A new notice of default … or
similar notice will not be necessary to continue the foreclosure action .… You waive any
and all rights to receive such foreclosure notices to the extent permitted by applicable
law.”
        In compliance with the HAMP trial plan document, plaintiff made the three
adjusted monthly payments for April, May and June 2010, as required, and submitted the
requested financial documentation to verify his income.
        By letter dated June 1, 2010, sent by IndyMac to plaintiff, plaintiff was informed
that the loan did not qualify for a permanent modification under HAMP based on the

                                             5.
federally regulated HAMP guidelines requiring that the borrower’s housing expense must
be greater than 31 percent of his or her gross monthly income to be eligible for a
modification under HAMP. The letter explained: “Unfortunately, due to changes in your
financial information since the time you submitted for a trial modification, we have
determined that your loan is no longer eligible for a permanent modification under
HAMP because your current monthly housing expense, which includes the monthly
principal and interest payment on your first lien mortgage loan plus property taxes,
hazard insurance and homeowners dues (if any) is less than or equal to 31% of your gross
monthly income (your income before taxes and other deductions) which, we have
verified as .… Your housing expenses must be greater than 31% of your gross monthly
income to be eligible for Home Affordable Modification.”7
       Although plaintiff was determined to be ineligible for a permanent loan
modification under HAMP, the June 1, 2010, letter offered to plaintiff a custom IndyMac
loan modification. The terms of the offered IndyMac loan modification were not as
advantageous to plaintiffs as the HAMP loan modification would have been. Pursuant to
the IndyMac loan modification offered to plaintiff, the new monthly principal and interest
payment would be $3,888.40, which amount did not include any additional sums that
would be required for taxes and insurance. Plaintiff declined the offered IndyMac loan
modification.
       From defendant’s perspective, since plaintiff had failed to reinstate the loan and
was still in default, it was appropriate to proceed with the foreclosure process. The real
property was sold at a foreclosure sale on November 16, 2010. A trustee’s deed upon

7       HAMP’s eligibility requirements (including the 31 percent requirement) were recently
summarized in Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal.App.4th 915, 923-924.
We note that beginning June 1, 2010, a borrower’s financial information had to be verified by the
lender before offering a HAMP trial plan. Prior to June 1, 2010, as was the case here, a lender
was permitted to offer a trial plan based on the borrower’s initial unverified representations,
which would be verified thereafter. (Id. at p. 924, fn. 4.)



                                               6.
sale (trustee’s deed) was recorded on November 30, 2010, with the Stanislaus County
Recorder’s Office, whereby all right, title and interest in the real property was granted to
defendant.
       On February 8, 2011, plaintiffs filed their lawsuit for wrongful foreclosure against
defendant. At the time of the motion for summary judgment, the operative pleading was
plaintiffs’ fourth amended complaint, filed on July 14, 2012. The fourth amended
complaint alleged that on August 22, 2006, plaintiff obtained a loan in the amount of
$530,000, secured by a deed of trust against his real property in Turlock, California.
When “the [r]eal [e]state [r]ecession hit,” plaintiff suffered financial hardship and his
income declined. At that point, he entered a program with his lender to obtain a loan
modification. Allegedly, a modification of the loan was “approved” on February 25,
2010, pursuant to HAMP. Plaintiff asserted he was entitled to the HAMP loan
modification, but defendant failed to perform. On June 1, 2010, plaintiff received a letter
indicating that he did not qualify for HAMP after all, but defendant offered plaintiff a
different loan modification on terms less favorable to plaintiff. Later, plaintiff’s real
property was foreclosed on, allegedly without providing plaintiff the required foreclosure
notices and in violation of statutory provisions. On these general facts, plaintiffs’ causes
of action included: (1) declaratory relief; (2) wrongful foreclosure, (3) slander of title,
(4) waiver and estoppel, (5) injunction, (6) negligence, (7) breach of contract,
(8) violations of the Truth in Lending Act (TILA; U.S.C. § 1601 et seq.), and (9) fraud
and misrepresentation.
       On November 8, 2012, defendant filed its motion for summary judgment and/or
for summary adjudication. The motion was based on the asserted undisputed facts that
plaintiffs were not guaranteed a HAMP loan modification, since it was always subject to
income verification, and that plaintiffs turned down the loan modification that defendant
did offer once it became clear that a HAMP modification was not available, leaving the



                                              7.
loan in default and the real property subject to defendant’s foreclosure remedy, which
defendant properly pursued and completed.
       On or about January 15, 2013, plaintiffs filed their opposition to the motion for
summary judgment and/or summary adjudication. No declaration was filed with the
opposition. The opposition papers included plaintiffs’ memorandum of points and
authorities, plaintiffs’ separate statement and plaintiffs’ request for judicial notice. The
request for judicial notice included pages 40 to 60 of plaintiff Benjamin Hetrick’s
deposition testimony, a copy of the third amended complaint and plaintiffs’ response to
production of documents, set one. The latter included an itemized listing of documents.8
Plaintiffs’ opposition was directed to the merits of defendant’s motion. However,
plaintiffs’ memorandum of points and authorities briefly perfunctorily observed:
“Plaintiffs also note that they have a motion to compel production of Discovery and must
then do depositions. Defendant is opposing providing discovery. This motion [for
summary judgment] is premature.”
       On January 23, 2013, defendant filed its reply papers in support of its motion for
summary judgment and/or summary adjudication. Defendant’s reply asserted that the
motion should be granted because plaintiffs’ opposition presented “absolutely no
evidence showing a triable issue of material fact,” and plaintiffs merely continued to
make the same conclusory and unsupported allegations set forth in their pleadings. As to
the argument that the motion was “premature,” defendant pointed out that plaintiffs failed
to mention that the discovery motion they referred to “has already been denied” and, in
any event, “Plaintiffs’ contention that the Court should delay in ruling on [defendant’s]
Motion because of any alleged discovery dispute is wholly meritless in that Plaintiffs

8       The actual documents are not provided, at least not in the copy of the request for judicial
notice (in opposition to the motion for summary judgment) contained in the record on appeal
submitted to this court by plaintiffs. In any event, the descriptions of documents on the list
appear to correspond to the same events and transactions that we have summarized above.



                                                 8.
have had almost two (2) years to conduct discovery. Additionally, [defendant] timely
and substantively responded to Plaintiffs’ discovery requests.”
       The hearing of the motion for summary judgment and/or summary adjudication
was held on February 6, 2013. The trial court took the matter under submission and, on
February 11, 2013, issued a minute order stating its decision to grant the motion. A
formal written order granting summary judgment was entered on March 15, 2013.
       Plaintiffs’ timely appeal followed. Their appeal claims, among other things, that
the trial court erred in failing to grant a discovery motion and in failing to continue the
motion for summary judgment and/or summary adjudication based on plaintiffs’ alleged
need of additional time for discovery. The appeal also challenges several of the trial
court’s rulings in which plaintiffs sought relief from the trial court’s orders, including
motions for reconsideration, a motion for relief under section 473 and a motion for new
trial. Finally, plaintiffs argue the trial court erred in granting the motion for summary
judgment because, allegedly, defendant was not entitled to judgment as a matter of law.
       In the discussion that follows, we shall address the issues in approximately the
same order as the parties have done in their briefing.
                                       DISCUSSION
I.     Plaintiffs’ Burden as Appellants
       Preliminarily, we highlight some of the fundamental principles that are applicable
when a party files an appeal.
       Because a judgment or order of a lower court is presumed to be correct on appeal,
error must be affirmatively shown. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564;
In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Thus, an appellant must
affirmatively show prejudicial error based on adequate legal argument and citation to the
record. (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655-656; Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556-557; Duarte v. Chino Community
Hospital (1999) 72 Cal.App.4th 849, 856; McComber v. Wells (1999) 72 Cal.App.4th

                                              9.
512, 522-523.) “[T]he trial court’s judgment is presumed to be correct, and the appellant
has the burden to prove otherwise by presenting legal authority on each point made and
factual analysis, supported by appropriate citations to the material facts in the record;
otherwise, the argument may be deemed forfeited.” (Keyes v. Bowen, supra, at p. 655.)
When points are perfunctorily raised, without adequate analysis and authority or without
citation to an adequate record, the appellate court may pass them over and treat them as
abandoned or forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793; Landry v.
Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700; Placer County Local
Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135
Cal.App.4th 793, 814 [“We need not address points in appellate briefs that are
unsupported by adequate factual or legal analysis.”].) As will be seen, plaintiffs failed to
meet their initial burden as appellants concerning a number of issues in the instant appeal.
II.    No Abuse of Discretion Shown in Trial Court’s Denial of Discovery Motion
       Plaintiffs contend that the trial court erred in denying their motion to compel
further responses to discovery requests. A trial court’s determination of a motion to
compel discovery is reviewed under the deferential abuse of discretion standard.
(Pirjada v. Superior Court (2011) 201 Cal.App.4th 1074, 1085-1086; Pomona Valley
Hospital Medical Center v. Superior Court (2012) 209 Cal.App.4th 687, 692.) “‘[A]
reviewing court generally will not substitute its opinion for that of the trial court and will
not set aside the trial court’s decision unless “there was ‘no legal justification’ for the
order granting or denying the discovery in question.”’ [Citation]” (Pirjada v. Superior
Court, supra, at p. 1085.)
       The subject discovery motion was filed on November 16, 2012, shortly after
defendant’s motion for summary judgment was filed. Plaintiffs’ discovery motion sought
to compel further responses to form interrogatories, special interrogatories, and request
for production of documents. The trial court denied the motion. As defendant points out,
plaintiffs’ motion failed to comply with fundamental procedural requirements relating to

                                              10.
motions to compel further discovery responses. According to defendant, such failures on
plaintiffs’ part clearly justified the trial court’s denial of the discovery motion. We agree
with defendant.
         A motion to compel further responses to interrogatories and/or document requests
must provide a “separate statement” as specified at California Rules of Court,
rule 3.1345.9 “The separate statement must include—for each discovery request … to
which a further response, answer, or production is requested—the following: [¶] (1) The
text of the request, interrogatory, question or inspection demand; [¶] (2) The text of each
response, answer, or objection, and any further responses or answers; [¶] (3) A
statement of the factual and legal reasons for compelling further responses, answers, or
production as to each matter in dispute .…” (Rule 3.1345(c).) Failure to include a
separate statement as required by the California Rules of Court provides justification for
a trial court to deny a motion to compel further discovery responses. (Mills v. U.S. Bank
(2008) 166 Cal.App.4th 871, 893.) Here, plaintiffs’ motion did not include a separate
statement, as required.
         Additionally, prior to filing a motion to compel further discovery responses, the
moving party is required to submit a declaration substantiating that a reasonable and good
faith effort at an informal resolution of each issue presented in the motion was made.
(§§ 2030.300, subd. (b), 2031.310, subd. (b)(2), 2016.040.) It must be shown there was
“a serious effort at negotiation and informal resolution” of each issue. (Townsend v.
Superior Court (1998) 61 Cal.App.4th 1431, 1435, 1438.) “[T]he law requires that
counsel attempt to talk the matter over, compare their views, consult and deliberate.” (Id.
at p. 1439.)10 Here, it is clear that no serious or good faith effort was made prior to filing

9        Unless otherwise indicated, all further references to rules are to the California Rules of
Court.
10    While not every instance of an inadequate effort at informal resolution requires a
complete denial of discovery (see Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 433-


                                                  11.
the motion. Plaintiffs’ counsel merely sent a last-minute conclusory e-mail and letter,
claiming that responses were inadequate, approximately three days before filing the
motion.11 Further, defendant’s counsel sent a fairly detailed responsive letter, but
plaintiffs proceeded to file their motion without any serious effort to discuss, consult or
negotiate. We conclude that plaintiffs failed as a matter of law to comply with the
statutory meet and confer requirement.
       Because plaintiffs failed to file and serve a separate statement and failed to show
that they met and conferred prior to filing the motion, we conclude the trial court did not
abuse its discretion in denying the discovery motion.12
No Abuse of Discretion Shown in Trial Court’s Denial of Reconsideration Motion
       Additionally, we reject plaintiffs’ claim on appeal that the trial court should have
granted their motion for reconsideration under section 1008 of the trial court’s denial of
the discovery motion. Plaintiffs’ opening brief failed to provide any meaningful legal or
factual analysis or discussion, nor any precise citation to the record. Accordingly, we
treat the issue of reconsideration of the subject discovery motion under section 1008 as
forfeited on appeal by plaintiffs. (Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 655-
656.)13


434), the failure here, combined with the failure to serve and file a separate statement, clearly
reflected that the trial court’s broad discretion was not abused.
11      The e-mail sent by plaintiffs’ counsel on Monday, November 12, 2012, demanded further
responses by Wednesday, November 14, 2012, or else a motion would be filed. It claimed, in
conclusory fashion, that the responses were inadequate. His letter faxed the next day was little
better.
12      Moreover, in addition to the procedural obstacles, the record on appeal is insufficient to
indicate the adequacy or inadequacy of the responses, the merits of objections, etc. Plaintiffs
have failed to meet their burden of demonstrating an error or abuse of discretion.
13      The same is true of plaintiffs’ perfunctory claim that the trial court should have granted
section 473, subdivision (a), relief to plaintiffs by treating the discovery motion as “amended” to
include the missing separate statement. The argument is forfeited on appeal.



                                                12.
III.   No Abuse of Discretion Shown in Trial Court’s Failure to Continue Summary
       Judgment Hearing
       Plaintiffs contend that because their opposition mentioned that discovery was still
pending, the trial court erred in granting the summary judgment motion. Allegedly, the
trial court “ignored” section 437c, subdivision (h), when it granted the motion rather than
continuing the hearing to permit further discovery. We disagree. Preliminarily, we note
that we apply the abuse of discretion standard of review to the trial court’s decision
whether or not to continue the hearing of a summary judgment motion for the purpose of
permitting additional discovery. (Combs v. Skyriver Communications, Inc. (2008) 159
Cal.App.4th 1242, 1270.)
       Section 437c, subdivision (h), states:

               “If it appears from the affidavits submitted in opposition to a motion
       for summary judgment or summary adjudication or both that facts essential
       to justify opposition may exist but cannot, for reasons stated, then be
       presented, the court shall deny the motion, or order a continuance to permit
       affidavits to be obtained or discovery to be had or may make any other
       order as may be just. The application to continue the motion to obtain
       necessary discovery may also be made by ex parte motion at any time on or
       before the date the opposition response to the motion is due.”
       An opposing party who seeks a continuance of the motion under subdivision (h) of
section 437c must show by declaration that (1) the facts sought to be obtained are
essential to opposing the motion; (2) there is reason to believe such facts may exist; and
(3) the reasons why additional time is needed to obtain these facts. (Combs v. Skyriver
Communications, Inc., supra, 159 Cal.App.4th at p. 1270; Ace American Ins. Co. v.
Walker (2004) 121 Cal.App.4th 1017, 1023.) The elements of section 437c,
subdivision (h), which must be shown by the opposing party’s declaration, have been
more fully and specifically elaborated as follows: “(1) ‘Facts establishing a likelihood
that controverting evidence may exist and why the information sought is essential to
opposing the motion’; (2) ‘The specific reasons why such evidence cannot be presented
at the present time’; (3) ‘An estimate of the time necessary to obtain such evidence’; and


                                            13.
(4) ‘The specific steps or procedures the opposing party intends to utilize to obtain such
evidence.’” (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521,
532, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2011) ¶ 10:207.15, p. 10-83 (rev. # 1, 2011).)
       Unless a declaration is submitted to make the required showing, the trial court is
not required to grant the requested continuance and instead has considerable discretion to
deny it. (Johnson v. Alameda County Medical Center, supra, 205 Cal.App.4th at p. 532;
Combs v. Skyriver Communications, Inc., supra, 159 Cal.App.4th at p. 1270.) The timing
of the submittal of the declaration requesting a continuance is also important. The statute
requires that it must be made in the opposition affidavits (i.e., opposition declarations), or
by an ex parte application prior to the date the opposition is due. (§ 437c, subd. (h);
Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353
[continuance properly denied where request was untimely and the tardy declaration did
not satisfy elements of section 437c, subdivision (h)].)
       Moreover, “[t]he statute cannot be employed as a device to get an automatic
continuance by every unprepared party who simply files a declaration stating that
unspecified essential facts may exist. The party seeking the continuance must justify the
need, by detailing both the particular essential facts that may exist and the specific
reasons why they cannot then be presented.” (Lerma v. County of Orange (2004) 120
Cal.App.4th 709, 715-716.)
       Here, plaintiffs failed to submit a declaration with their opposition papers
requesting a continuance and reciting the necessary facts and circumstances to obtain
such relief under subdivision (h) of section 437c. Plaintiffs’ argument (i.e., memorandum
of points and authorities) in opposition to the motion merely contained a statement that
discovery was still pending. That was utterly insufficient to comply with the
requirements of section 437c, subdivision (h). We conclude the trial court was well
within its discretion in declining to grant a continuance of the hearing.

                                             14.
No Abuse of Discretion Shown in Trial Court’s Denial of Reconsideration of
Section 437c, Subdivision (h) Request
       We also reject plaintiffs’ claim that the trial court should have subsequently
“reconsidered,” pursuant to plaintiffs’ section 1008 motion, the issue of continuing the
summary judgment hearing (and/or denying the motion) under subdivision (h) of
section 437c based on allegedly pending discovery issues. We review a trial court’s
ruling on a motion for reconsideration under the abuse of discretion standard. (Glade v.
Glade (1995) 38 Cal.App.4th 1441, 1457.) A party seeking reconsideration must provide
a satisfactory explanation for the failure to produce the evidence at an earlier time.
(Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689.) Here, plaintiffs’ reconsideration
motion did not present any facts or circumstances that could not have been presented
earlier—i.e., in opposition to the motion for summary judgment. (Morris v. AGFA Corp.
(2006) 144 Cal.App.4th 1452, 1460, 1468 [if facts could have been produced earlier, no
basis for reconsideration shown].) Therefore, the trial court’s denial of the
reconsideration request was proper and was not an abuse of discretion.
       Furthermore, plaintiffs’ tardy and conclusory declaration under subdivision (h) of
section 437c failed to show that facts obtainable by discovery were essential to plaintiffs’
opposition to the motion. In short, plaintiffs’ effort at a reconsideration of section 437c,
subdivision (h) issues, by means of a motion heard after the trial court had already issued
its minute order granting the motion for summary judgment, was (1) manifestly untimely
under subdivision (h) of section 437c and (2) insufficient as a matter of law to comply
with the substantive requirements of either subdivision (h) of section 437c or
section 1008. Finally, plaintiffs’ opening brief failed to provide adequate legal and
factual discussion or analysis of this matter, and failed to make a precise citation to the
relevant record below. Therefore, we consider the issue of section 1008 reconsideration
of the section 437c, subdivision (h) issue to be forfeited on appeal.




                                             15.
IV.    No Abuse of Discretion Shown in Trial Court’s Denial of Relief Under
       Section 473, Subdivision (b)
       Plaintiffs argue the trial court should have granted their motion for relief under the
provisions of section 473, subdivision (b) (section 473(b)). We discern no abuse of
discretion. The motion was heard on March 12, 2013, which was after the trial court
issued its minute order granting summary judgment but before the formal written order
granting summary judgment was entered.
       We begin with a brief overview of the legal principles involved in a section 473(b)
motion. A motion for relief from a judgment, order or other proceeding may be made on
the ground that it was taken against the moving party as a result of mistake, inadvertence,
surprise or excusable neglect. (§ 473(b).) Whether to grant such relief lies within the
sound discretion of the trial court, and the trial court’s decision will not be overturned
absent an abuse of discretion. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233
(Elston).) The discretionary relief provided under section 473(b) is applied liberally
where the party moves promptly to seek relief and no prejudice will be suffered by the
party opposing the motion if relief is granted. In such instances, only very slight
evidence is needed to justify relief. (Elston, supra, at p. 233; Rogalski v. Nabers Cadillac
(1992) 11 Cal.App.4th 816, 819-820) Additionally, because the law favors trial on the
merits, doubts are to be resolved in favor of the party seeking relief. As a result, a trial
court order denying relief is more closely scrutinized on appeal than an order permitting
trial on the merits. (Elston, supra, at p. 233.)
       In addition to the discretionary relief noted above, section 473(b) provides for
mandatory relief based on an attorney affidavit of fault. The mandatory relief provision
of section 473(b) provides that the court “shall, whenever an application for relief is
made no more than six months after entry of judgment, is in proper form, and is
accompanied by an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk



                                              16.
against his or her client, and which will result in entry of a default judgment, or
(2) resulting default judgment or dismissal entered against his or her client, unless the
court finds that the default or dismissal was not in fact caused by the attorney’s mistake,
inadvertence, surprise, or neglect.” (Italics added.) “Relief [under the attorney fault
provision of section 473] is mandatory when a complying affidavit is filed, even if the
attorney’s neglect was inexcusable.” (Rodrigues v. Superior Court (2005) 127
Cal.App.4th 1027, 1033.)
       Here, plaintiffs’ argument is apparently that the trial court should have granted
their motion for relief under section 473(b) by allowing plaintiffs to file a tardy, separate
statement in support of its previously denied motion to compel further responses to
discovery, and assuming that such relief was granted and that the discovery motion was
also granted, the trial court should then have denied the summary judgment motion on the
ground that discovery was still pending.
       Preliminarily, we note that plaintiffs’ appeal failed to reference any evidence in
the record supporting grounds for relief under section 473(b). Defendant has furnished
exhibits in its respondent’s appendix, and has drawn our attention to a supplemental
declaration by plaintiffs’ attorney, Richard Sinclair, filed in connection with the
section 473(b) motion, wherein he merely stated that in his legal practice in which he had
been handling litigation matters for over 10 years, he never read the applicable Rules of
Court that relate to discovery motions, and he was ignorant of the requirement to provide
a separate statement in discovery motions to compel further responses. The trial court
concluded that plaintiffs had failed to show excusable mistake, inadvertence, surprise or
neglect as to the discretionary relief provision of section 473(b).14 On that basis, the trial

14     Additionally, as noted by defendant, plaintiffs’ motion for relief failed to mention the
procedurally defective nature of the underlying motion to compel (i.e., no declaration showing a
reasonable and good faith effort to informally resolve issues) and failed to explain why plaintiffs
believed the responses provided by defendant were deficient or objections without merit.



                                                17.
court denied plaintiffs’ motion. We are unable to discern any error in the trial court’s
conclusion, and plaintiffs have failed to demonstrate that this holding by the trial court
was an abuse of discretion.
       Moreover, plaintiffs are not assisted here by the mandatory provision of
section 473(b). The mandatory provisions of section 473(b) require relief to be granted
from a default, default judgment or dismissal entered as a result of the attorney’s fault
where that attorney submits an affidavit of fault in support of the motion. Since the
mandatory provision relates only to defaults, default judgments and dismissals, most
recent appellate cases addressing the issue have held that such provision is inapplicable to
a summary judgment motion. (Las Vegas Land & Development Co., LLC v. Wilkie Way,
LLC (2013) 219 Cal.App.4th 1086, 1091 (Las Vegas Land); Huh v. Wang (2007) 158
Cal.App.4th 1406, 1418; Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th
290, 297; English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143.)
The rationale of the above cases is that a grant of summary judgment after a hearing is
manifestly not a default, default judgment or dismissal. (Las Vegas Land, supra, at
pp. 1091-1092.) In one earlier appellate decision, Avila v. Chua (1997) 57 Cal.App.4th
860, the court was willing to apply the mandatory relief provision where a summary
judgment motion was granted by the trial court under circumstances that were deemed
“analogous to a default judgment.” (Id. at p. 868.) In that case, since the motion was
granted after striking the plaintiff’s untimely opposition papers, the court concluded it
was sufficiently analogous to a default judgment to allow application of the mandatory
provision of section 473(b). (Ibid.)
       Here, plaintiffs filed opposition to the motion for summary judgment, a hearing
was held, the parties argued the matter through their respective legal counsel, and
afterwards, the trial court granted the motion. We conclude that the nature of the order
entered by the trial court was not a default, default judgment, dismissal, nor anything
remotely analogous thereto. Accordingly, the mandatory relief provision was

                                             18.
inapplicable. For all of the foregoing reasons, the trial court correctly denied the motion
for relief under section 473.
V.     No Abuse of Discretion Shown in Trial Court’s Denial of Trial Continuance
       Plaintiffs contend the trial court erred by failing to continue the hearing of the trial
date. Since summary judgment was granted prior to the trial date, we fail to see how the
trial court’s denial of plaintiffs’ request for a trial continuance has any bearing on the
disposition of the matter before us. In any event, plaintiffs have failed to demonstrate
that the trial court abused its discretion. The California Rules of Court provide: “To
ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All
parties and their counsel must regard the date set for trial as certain.” (Rule 3.1332(a).)
Moreover, “continuances of trial are disfavored .…” (Rule 3.1332(c).) The trial court
may grant a motion to continue trial “only on an affirmative showing of good cause
requiring the continuance.” (Ibid.) The motion must be made “as soon as reasonably
practical once the necessity for the continuance is discovered.” (Rule 3.1332(b).) When
a motion to continue trial is made, the trial court will consider all the relevant
circumstances that may indicate whether good cause exists, including unavailability of
witnesses, parties or counsel due to death, illness or other excusable circumstances
(rule 3.1332(c)(1)-(3)), “[a] party’s excused inability to obtain essential testimony,
documents, or other material evidence despite diligent efforts” (rule 3.1332(c)(6), and
“[a] significant, unanticipated change in the status of the case as a result of which the
case is not ready for trial” (rule 3.1332(c)(7)).
       Other factors to be considered by the trial court include: (1) the proximity to the
trial date; (2) whether there was any previous continuance, extension of time, or delay of
trial due to any party; (3) the length of the continuance requested; (4) the availability of
alternative means to address the problem that gave rise to the motion for a continuance;
(5) the prejudice that parties or witnesses will suffer as a result of the continuance;
(6) whether the case is entitled to preferential trial setting; (7) the trial court’s calendar;

                                               19.
(8) whether trial counsel is engaged in another trial; (9) whether all parties have
stipulated to a continuance; (10) whether the interests of justice are best service by a
continuance, by the trial of the matter, or by imposing conditions on the continuance; and
(11) any other fact or circumstance relevant to the fair determination of the motion.
(Rule 3.1332(d).)
       Here, as pointed out by defendant, plaintiffs filed their lawsuit in February 2011,
yet failed to commence any discovery until September 2012. The motion to continue was
noticed for March 1, 2013, which hearing date was approximately one month prior to the
original trial date of April 9, 2013. By the time the motion to continue trial was heard,
the case had been pending for over two years and plaintiffs had the opportunity to amend
their complaint four times. Also, by the time the motion to continue was heard, the
summary judgment motion had already been briefed, heard, taken under submission, and
the trial court had issued its minute order to grant the summary judgment motion.
Plaintiffs’ motion to continue trial made vague and conclusory references to plaintiffs
learning of the existence of other potential defendants located out-of-state and also to
attorney Sinclair’s alleged disability, but the motion failed to provide relevant dates and
sufficient factual detail to show diligence and to confirm that these matters actually
constituted good cause. We conclude, based on the close proximity to the trial date, the
apparent lack of diligence on plaintiffs’ part, and the failure to affirmatively show good
cause, that the trial court did not abuse its discretion when it denied plaintiffs’ motion to
continue trial.

VI.    Trial Court Correctly Granted Defendant’s Motion for Summary Judgment
       Plaintiffs contend the trial court erred in granting summary judgment in favor of
defendant. As explained in our discussion below, we conclude that plaintiffs’ appeal of
the summary judgment ruling fails on two fronts: First, plaintiffs did not meet their
fundamental burden as appellants of adequately addressing the issues in their opening



                                             20.
brief; second, the record before us reflects that the trial court correctly granted summary
judgment. In short, error has not been demonstrated by plaintiffs and, therefore. we will
affirm the trial court’s ruling.
       A.      Plaintiffs’ Failure to Meet Burden on Appeal
       We repeat and expand on the nature of an appellant’s burden on appeal, because
those threshold requirements have direct application here. Because a judgment or order
of a lower court is presumed to be correct on appeal, error must be affirmatively shown.
(Denham v. Superior Court, supra, 2 Cal.3d at p. 564; In re Marriage of Arceneaux,
supra, 51 Cal.3d at p. 1133.) Thus, an appellant must affirmatively show prejudicial
error based on adequate legal argument and citation to the record. (Keyes v. Bowen,
supra, 189 Cal.App.4th at pp. 655-656; Yield Dynamics, Inc. v. TEA Systems Corp.,
supra, 154 Cal.App.4th at pp. 556-557; Duarte v. Chino Community Hospital, supra, 72
Cal.App.4th at p. 856; McComber v. Wells, supra, 72 Cal.App.4th at pp. 522-523.)
“[T]he trial court’s judgment is presumed to be correct, and the appellant has the burden
to prove otherwise by presenting legal authority on each point made and factual analysis,
supported by appropriate citations to the material facts in the record; otherwise, the
argument may be deemed forfeited.” (Keyes v. Bowen, supra, at p. 655.) When points
are perfunctorily raised, without adequate analysis and authority or without citation to an
adequate record, the appellate court may pass them over and treat them as abandoned or
forfeited. (People v. Stanley, supra, 10 Cal.4th at p. 793; Landry v. Berryessa Union
School Dist., supra, 39 Cal.App.4th at pp. 699-700 [issue deemed abandoned where the
appellant cited only general principles governing the motion without applying those
principles to the circumstances before the court].)
       “‘It is the duty of a party to support the arguments in its briefs by appropriate
reference to the record, which includes providing exact page citations.’ [Citations.]”
(Duarte v. Chino Community Hospital, supra, 72 Cal.App.4th at p. 856.) “‘If a party fails
to support an argument with the necessary citations to the record, … the argument [will

                                             21.
be] deemed to have been waived. [Citation.]’ [Citation.]” (Sky River LLC v. County of
Kern (2013) 214 Cal.App.4th 720, 740-741.) The rule applies to matters referenced at
any point in the brief, not just in the statement of facts. (Ibid.)
       In Guthrey v. State of California (1998) 63 Cal.App.4th 1108, the appellant had
contended, without specific citation to the record, that “‘a plethora of admissible
evidence’” reflected that triable issues of fact existed precluding the granting of summary
judgment. (Id. at p. 1115.) The appellate court rejected this challenge, concluding that
the appellant’s failure to adequately cite the record waived such challenge on appeal. (Id.
at pp. 1115-1116.) The appellate court further explained: “‘“‘Instead of a fair and
sincere effort to show that the trial court was wrong, [the] appellant’s brief is a mere
challenge to [the] respondents to prove that the court was right.’”’ [Citation.] Therefore,
[the appellant’s] contention that the trial court erred by granting [the] defendants’ motion
for summary judgment is deemed waived.” (Id. at pp. 1115-1116.)
       In view of an appellant’s burden to affirmatively show prejudicial error, his or her
opening brief must apprise the opposing party and the appellate court of those alleged
errors and/or identify the specific questions to be decided on appeal, with supporting
argument. “[T]he appellant must present each point separately in the opening brief under
an appropriate heading, showing the nature of the question to be presented and the point
to be made; otherwise, the point will be forfeited.” (Keyes v. Bowen, supra, 189
Cal.App.4th at p. 656; rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995)
34 Cal.App.4th 1826, 1830-1831, fn. 4.) This rule is “designed to lighten the labors of
the appellate tribunals by requiring the litigants to present their cause systematically and
so arranged that those upon whom the duty devolves of ascertaining the rule of law to
apply may be advised, as they read, of the exact question under consideration, instead of
being compelled to extricate it from the mass.” (Landa v. Steinberg (1932) 126 Cal.App.
324, 325.) An opening brief that fails to comply with this rule “is equally confusing to



                                              22.
the respondent, who labors under an unwarranted handicap in attempting to
understandingly reply.” (Ibid.)
         In the present appeal, plaintiffs’ opening brief failed to meet the threshold burden
required of all appellants. Rather than identifying the trial court’s purported errors by
making specific citation to the record below with cogent legal analysis concerning each
point raised, plaintiffs’ opening brief is little more than a cut-and-paste reproduction of
their memorandum of points and authority filed in the trial court. Moreover, although
plaintiffs’ opening brief references the location in the record of their entire separate
statement (filed in opposition to defendant’s motion), nowhere in the course of plaintiffs’
particular arguments do they refer us to the particular portion of the record below that
allegedly supported each point in question. Such generalized argument, which failed to
adequately cite the page and line of the record to support the purported claims of error,
was insufficient to meet plaintiffs’ burden as appellants to affirmatively demonstrate
error. Additionally, plaintiffs’ legal discussion in its opening brief is presented in such a
conclusory, disjointed and shotgun fashion, we find it to be largely unintelligible. For all
of these reasons, we conclude that plaintiffs’ arguments concerning the summary
judgment motion are deemed waived or forfeited on appeal. Consequently, the
presumption that the judgment is correct must prevail.
         B.     Summary Judgment Was Properly Granted
         In any event, even if we examined the merits of the order granting summary
judgment, plaintiffs’ appeal would fail. That is, defendant’s motion successfully showed
under undisputed facts that plaintiffs’ causes of action were without merit, and plaintiffs’
opposition failed to demonstrate the existence of a triable issue of material fact. (§ 437c,
subd. (p)(2).) Thus, even under a de novo review of the trial court’s grant of summary
judgment, we would affirm the order and the resulting judgment entered by the trial
court.



                                              23.
       We begin with a brief overview of the legal principles applicable to summary
judgment and summary adjudication motions. Summary judgment is appropriate when
all of the papers submitted show there is no triable issue of material fact and the moving
party is entitled to a judgment as a matter of law. (§ 437c, subd. (c).) “The purpose of
the law of summary judgment is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 843.)
       A defendant may move for summary judgment if it is contended that the action has
no merit. (§ 437c, subd. (a).) A defendant moving for summary judgment has the initial
burden of showing a cause of action is without merit. A defendant meets that burden by
showing that one or more elements of the cause of action cannot be established, or that
there is a complete defense thereto. (Id., subd. (p)(2).) If the defendant makes such a
showing, the burden shifts to the plaintiff to produce evidence demonstrating the
existence of a triable issue of material fact. (Ibid.; Aguilar v. Atlantic Richfield Co.,
supra, 25 Cal.4th at p. 849.)
       On appeal from a summary judgment, our task is to independently determine
whether an issue of material fact exists and whether the moving party is entitled to
summary judgment as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591,
1601.) “We independently review the parties’ papers supporting and opposing the
motion, using the same method of analysis as the trial court. Essentially, we assume the
role of the trial court and apply the same rules and standards.” (Kline v. Turner (2001) 87
Cal.App.4th 1369, 1373.) We apply the same three-step analysis required of the trial
court. First, we identify the issues framed by the pleadings since it is these allegations to
which the motion must respond. Second, we determine whether the moving party’s
showing has established facts which negate the opponent’s claim and justify a judgment
in the moving party’s favor. When a summary judgment motion prima facie justifies a

                                              24.
judgment, the third and final step is to determine whether the opposition demonstrates the
existence of a triable issue of material fact. (Hamburg v. Wal-Mart Stores, Inc. (2004)
116 Cal.App.4th 497, 503; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th
544, 548.) In so doing, we liberally construe the opposing party’s evidence, strictly
construe the moving party’s evidence, and resolve all doubts in favor of the opposing
party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; Saelzler v.
Advanced Group 400 (2001) 25 Cal.4th 763, 768.)
       The thrust of defendant’s summary judgment motion was that, in light of
plaintiffs’ default on the loan and failure to cure that default, defendant properly carried
out its nonjudicial foreclosure remedy under the deed of trust. Although foreclosure
proceedings were for a time in forbearance while the proposed HAMP loan modification
went through a verification process, it was ultimately determined by defendant that
plaintiffs were not entitled to a HAMP loan modification due to plaintiff’s income level
in relation to housing expenses (i.e., the borrower’s housing expenses had to be greater
than 31% of gross monthly income). Defendant proceeded to hold the trustee’s sale
regarding the real property (i.e., foreclosed) only after plaintiff (1) failed to qualify for
the HAMP loan modification and (2) declined the alternative loan modification offered
by defendant. The documentation had made clear that plaintiff was not guaranteed a
HAMP loan modification and that if plaintiff did not qualify, there would be no HAMP
loan modification. Hence, according to defendant’s motion, when defendant
subsequently proceeded to foreclose on the deed of trust after the forbearance period
ended, no factual basis existed for claiming wrongful foreclosure, breach of promise or
other wrongdoing as a matter of law. (See defendant’s separate statement of undisputed
material facts in support of motion for summary judgment, etc. (defendant’s separate
statement), facts Nos. 1-47, and evidence referenced therein.)
       As correctly pointed out by defendant, plaintiffs’ opening brief on appeal (as was
the case with plaintiffs’ opposition to the motion for summary judgment) makes a

                                              25.
number of general arguments, but fails to squarely address any of the undisputed facts
presented in defendant’s motion and does not reference any evidence adequate to show
the existence of a triable issue of material fact.
               1.     Defendant’s Authority to Foreclose
       Preliminarily, we address an issue argued by plaintiffs with respect to all of the
causes of action—namely, that defendant did not have authority to initiate foreclosure.
First, contrary to plaintiffs’ contention that defendant lacked authority to foreclose, we
conclude that defendant’s status and authority to initiate foreclosure proceedings was
clear and undisputed based on the relevant instruments. Under the express terms of the
deed of trust, MERS was initially the nominee of the lender (and of the lender’s
successors and assigns) and was also the beneficiary under the deed of trust. The deed of
trust expressly secured the repayment of the loan and all extensions or modifications
thereof, and included plaintiff’s grant of a power of sale to the trustee. In November
2009, MERS, as the lender’s nominee and as beneficiary under the deed of trust, assigned
all of its beneficial interest in the deed of trust, together with all its rights concerning the
loan or note therein described, to defendant. During the relevant time period, OneWest
Bank, FSB, through its servicing division, IndyMac, was the servicing agent on behalf of
defendant. In 2009, a substitution of trustee named Regional Service Corporation as
trustee under the deed of trust. Based on this undisputed record, it is clear that defendant
had acquired all beneficial interest in the deed of trust as well as rights to enforce the
loan, and had full authority to cause its agents to commence foreclosure proceedings
against the real property following plaintiffs’ default on the loan. (See Moeller v. Lien
(1994) 25 Cal.App.4th 822, 830 [“Upon default by the trustor, the beneficiary may
declare a default and proceed with a nonjudicial foreclosure sale.”]; Civ. Code, § 2924,
subd. (a)(1) [nonjudicial foreclosure may be initiated by a trustee, beneficiary or “any of
their authorized agents”]; see also Calvo v. HSBC Bank USA, N.A. (2011) 199



                                               26.
Cal.App.4th 118, 125; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
266, 269-271 [MERS assignment of rights as beneficiary and nominee upheld].)15
               2.      Each Cause of Action Defeated by Defendant’s Motion
       We now address the particular causes of action in the fourth amended complaint to
confirm whether defendant’s motion met its initial burden as the moving party regarding
each separate cause of action and to ascertain whether plaintiffs’ opposition specified
evidence creating a triable issue of material fact with respect to such cause of action.
(§ 437c, subd. (p)(2).)
                       a.       First Cause of Action for Declaratory Relief
       Plaintiffs’ first cause of action requested a judicial declaration that defendant
wrongfully foreclosed on the real property based on (among other things) alleged
irregularities, failure to adequately serve a foreclosure notice, breach of obligation to
provide a HAMP modification, etc. As established by plaintiffs’ own pleading as well as
by the factual summary provided in defendant’s separate statement, this cause of action
failed as a matter of law because declaratory relief operates prospectively to declare
future rights, not redress past wrongs. (County of San Diego v. State of California (2008)
164 Cal.App.4th 580, 607; accord, Kirkwood v. California State Automobile Assn. Inter-
Ins. Bureau (2011) 193 Cal.App.4th 49, 59.) It is undisputed that this case was entirely
about alleged past wrongs. Accordingly, defendant was entitled to summary adjudication
of the first cause of action.




15     Contrary to plaintiffs’ suggestion, the original note need not be held by, or in defendant’s
possession, to foreclose on the deed of trust. (Debrunner v. Deutsche Bank National Trust Co.
(2012) 204 Cal.App.4th 433, 440.) Moreover, the foreclosing party need not have actual
beneficial interest in both the deed of trust and promissory note to commence and execute a
foreclosure sale. (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513,
518.) It is enough to have the beneficial interest in the deed of trust.



                                                27.
                       b.      Second Cause of Action for Wrongful Foreclosure
       “To obtain the equitable set-aside of a trustee’s sale or maintain a wrongful
foreclosure claim, a plaintiff must allege that (1) the defendants caused an illegal,
fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a
mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff
tendered the amount of the secured indebtedness or was excused from tendering.”
(Chavez v. IndyMac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.)16
Plaintiffs’ second cause of action alleged that defendant wrongfully foreclosed on the real
property based on (among other things) alleged procedural irregularities, failure to
adequately serve a foreclosure notice, failure to provide plaintiff his rights under Civil
Code section 2923.5, and a breach of obligation to provide a HAMP loan modification.
       In its summary judgment motion, defendant’s separate statement presented the
relevant facts of the original loan transaction, defendant’s status and right to initiate
foreclosure, plaintiff’s default on the loan, the recording of a notice of default and a
notice of trustee’s sale, the effort to modify the loan pursuant to HAMP while foreclosure
proceedings were in forbearance during the HAMP review process, the determination by
defendant that plaintiff was ineligible for a HAMP modification because his verified
income exceeded 31 percent of housing expenses, plaintiff’s rejection of the custom
IndyMac loan modification offered by defendant, and the eventual completion of
foreclosure by means of a trustee’s sale. (See defendant’s separate statement, facts
Nos. 1-26, relating to the second cause of action.)



16      “Recognized exceptions to the tender rule include when (1) the underlying debt is void,
(2) the foreclosure sale or trustee’s deed is void on its face, (3) a counterclaim offsets the amount
due, (4) specific circumstances make it inequitable to enforce the debt against the party
challenging the sale, or (5) the foreclosure sale has not yet occurred.” (Chavez v. IndyMac
Mortgage Services, supra, 219 Cal.App.4th at p. 1062.) No such exceptions were asserted here,
and none are apparent.



                                                28.
       We believe that defendant’s showing was sufficient to establish that plaintiffs’
claim for wrongful foreclosure was without merit. This is so for several reasons. First, to
the extent the cause of action was premised on the HAMP loan modification, defendant’s
showing was adequate to establish that it did not breach any obligation to plaintiffs. The
facts set forth in defendant’s separate statement reflected that plaintiff had to verify his
income in order to qualify for a permanent loan modification. Moreover, the documents
relating to the HAMP trial plan clearly stated that if his verified income differed from
what had been originally reported, “[h]e may no longer be eligible” for a HAMP
modification. Thus, the HAMP trial plan documents did not make a guarantee or an
unconditional promise that plaintiff would necessarily receive a permanent loan
modification. IndyMac’s June 1, 2010, letter notified plaintiff that, in light of “federally
regulated HAMP guidelines … that the borrower’s housing expense must be greater than
31% of … gross monthly income,” plaintiff did not qualify for a HAMP loan
modification. This evidence showed, at least in a prima facie sense, that no specific
promise was breached by defendant, since an eligibility condition for providing the
HAMP modification was unmet. Thus, the burden shifted to plaintiffs to show a triable
issue of fact, which they failed to do.
       Second, to the extent that plaintiffs’ cause of action was premised on purported
irregularities in the recorded instruments or foreclosure notices, defendant met its burden
as the moving party. The fact that defendant duly recorded the notice of default, the
notice of trustee’s sale and the trustee’s deed was established by evidence in defendant’s
separate statement and plaintiffs’ opposition failed to present evidence creating a triable
issue of fact. Furthermore, the trustee’s deed itself recited that the notices required by
law were properly mailed and posted. Nothing in plaintiffs’ opposition to the summary
judgment motion referred to competent evidence showing that foreclosure notices were




                                              29.
not properly served, posted or recorded.17 Additionally, we note that a nonjudicial
foreclosure is accompanied by a presumption that it was conducted regularly and fairly.
(Melendrez v. D&I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258.) This
presumption may only be rebutted by substantial evidence of prejudicial procedural
irregularity. (Ibid.; accord, Herrera v. Federal National Mortgage Assn. (2012) 205
Cal.App.4th 1495, 1505.) It was further undisputed that when plaintiff entered the
HAMP trial plan, he agreed the pending foreclosure would not be dismissed and may be
immediately resumed if he failed to qualify for a HAMP loan modification, without
defendant needing to provide new or further notice. We conclude that defendant met its
initial burden on this claim, the burden shifted to plaintiffs, and plaintiffs failed to specify
any evidence in opposition to the summary judgment motion that would create a triable
issue of material fact regarding the alleged irregularity of the foreclosure proceedings
and/or foreclosure notices.18
       Third, plaintiff admitted he could not tender the amount due under the loan. Of
course, tender must be made in good faith; the party making the tender must have the
ability to perform; and the tender must be unconditional. (See, e.g., Lona v. Citibank,
N.A. (2011) 202 Cal.App.4th 89, 112 [tender rule stated]; Nguyen v. Calhoun (2003) 105
Cal.App.4th 428, 439 [same]; see also Karlsen v. American Sav. & Loan Assn. (1971) 15



17      The written notices required by law (Civ. Code, § 2924 et seq.) at that time were a notice
of default and a notice of trustee’s sale, the latter of which set the intended sale date. Any
notices of postponement of sale were given orally at the time of the sale date. (Civ. Code,
§ 2924g, subds. (a) & (d).) Effective January 1, 2013, after the relevant time period of this case,
the law was amended to require written notice of postponement to the borrower. (See Civ. Code,
§ 2924, subd. (a)(5), eff. Jan. 1, 2013 (Stats. 2012, ch. 86, § 10).)
18     Among other things, plaintiff generally alleged in his pleading that the notice of trustee’s
sale was not served and that, after the forbearance period had ended, he did not receive any
subsequent written notices relating to the postponement of the trustee’s sale date after the HAMP
loan modification fell through. (See fn. 17, ante.)



                                               30.
Cal.App.3d 112, 118 [an offer of performance is of no effect if the person making it
cannot perform].)
          Fourth, to the extent the cause of action was premised on section 2923.5 of the
Civil Code, it does not assist plaintiffs because that section does not provide a basis for a
postforeclosure sale remedy. Section 2923.5 requires that at least 30 days prior to
recording a notice of default, the mortgage servicer must attempt to contact the borrower
in person or by telephone “in order to assess the borrower’s financial situation and
explore options for the borrower to avoid foreclosure.” (Id., subd. (a)(2).) A notice of
default must include a declaration that the servicer has either contacted the borrower or
has tried with due diligence to contact the borrower. (Id., subd. (b); see id., subd. (e) [due
diligence described].) As construed by case law, the only remedy for noncompliance
with Civil Code section 2923.5 is to allow a borrower to obtain a postponement of the
foreclosure sale before it happens. (Mabry v. Superior Court (2010) 185 Cal.App.4th
208, 214, 235; Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526
(Stebley).) Section 2923.5 “does not provide for damages, or for setting aside a
foreclosure sale [and] the sole remedy available is ‘more time’ before a foreclosure sale
occurs.” (Stebley, supra, at p. 526.) “After the sale, the statute provides no relief.”
(Ibid.)
          Not only does Civil Code section 2923.5 not provide a viable legal basis for
plaintiffs’ postforeclosure cause of action, but we note in passing that the notice of
default in this case did include a declaration indicating a diligent effort to contact plaintiff
was made. Plaintiffs’ separate statement did not offer any specific evidence to the
contrary. Thus, from every angle, we conclude that defendant met its burden as moving
party, the burden shifted to plaintiffs, and plaintiffs failed to demonstrate the existence of
a triable issue of material fact. Defendant was entitled to summary adjudication of the
second cause of action.



                                              31.
                      c.        Third Cause of Action for Slander of Title
       Plaintiffs alleged that posting a postforeclosure three-day notice to quit the
premises constituted slander of title. The elements of a slander of title cause of action
consist of (1) the plaintiff’s title; (2) the defendant’s disparagement of title (a false and
unprivileged disparagement or false claim of an interest); and (3) pecuniary damages that
specifically resulted from the disparagement of title. (5 Witkin, Cal. Procedure (5th ed.
2008) Pleading, § 749, p. 169.) Here, defendant’s separate statement presented facts to
prima facie substantiate its proper foreclosure of the real property. Accordingly, the
element of a false, disparaging or unprivileged publication was negated, as well as the
element of pecuniary damages. Plaintiffs’ opposition failed to produce any evidence
creating a triable issue of material fact. Defendant was entitled to summary adjudication
of the third cause of action.
                      d.        Fourth Cause of Action for Promissory Estoppel
       Plaintiffs’ fourth amended complaint labeled this as a claim for waiver and
estoppel, but the parties treat it as an attempt to plead promissory estoppel. It appears
that plaintiff is contending that he stated a cause of action for promissory estoppel based
on the HAMP trial plan. However, defendant’s separate statement presented evidence
showing that there was no promise that plaintiff would be found eligible for a permanent
HAMP loan modification. Rather, that depended upon income verification. This was
sufficient to carry defendant’s burden as moving party. (See, e.g., Lange v. TIG Ins. Co.
(1998) 68 Cal.App.4th 1179 1185 [for purposes of promissory estoppel, only a clear and
definite promise is actionable]; Laks v. Coast Fed. Sav. & Loan Assn. (1976) 60
Cal.App.3d 885, 890-892 [conditional commitment for a loan held insufficient to
establish promissory estoppel].) In opposition to the motion, plaintiffs failed to produce
evidence showing a triable issue of material fact on this matter. Defendant was entitled
to summary adjudication of the fourth cause of action.



                                               32.
                      e.      Fifth Cause of Action for Injunction
       Injunction is an equitable remedy to a person aggrieved by certain torts or other
wrongful acts. (5 Witkin, supra, Cal. Procedure, Pleading, § 822, p. 238.) Entitlement to
injunctive relief requires pleading: (1) the tort or other wrongful act constituting the
cause of action and (2) the ground for equitable relief of this kind. (Id., § 823, p. 239.)
That is, in order to establish a basis for injunctive relief, a plaintiff must allege (1) the
elements of a cause of action involving a wrongful act sought to be enjoined and (2) the
grounds for equitable relief. (San Diego Unified Port Dist. v. Gallagher (1998) 62
Cal.App.4th 501, 503.) “Injunctive relief is a remedy and not, in itself, a cause of action,
and a cause of action must exist before injunctive relief may be granted.” (Shell Oil Co.
v. Richter (1942) 52 Cal.App.2d 164, 168.) Plaintiffs’ injunctive relief claim relied upon
the prior causes of action in the fourth amended complaint as the underlying wrongs or
causes of action to support the remedy of injunctive relief. However, as the discussion
above indicates, those causes of action were properly adjudicated in defendant’s favor in
the motion for summary judgment. Therefore, no cause of action existed upon which to
premise the remedy of injunctive relief in this case. Defendant was entitled to summary
adjudication of the fifth cause of action.
                      f.      Sixth Cause of Action for Negligence
       The same alleged wrongdoing that was alleged in the previous causes of action
was set forth in plaintiffs’ negligence cause of action, with plaintiffs alleging that
defendant’s handling of the HAMP loan modification and its subsequent foreclosure of
the real property, etc., constituted an unreasonable failure to exercise due care.
According to plaintiffs’ opening brief on appeal, “Lender took on the duty to handle
HAMP and screwed it up.” Defendant’s motion for summary judgment challenged the
cause of action by asserting that, under the undisputed facts, plaintiff did not qualify for a
permanent loan modification under HAMP (i.e., even if there was a duty, it was not
breached). Defendant further argued that there was no duty of care to automatically

                                               33.
modify plaintiffs’ loan, since defendant acted as a conventional lender only; and that
when plaintiff failed to qualify for HAMP modification, defendant properly foreclosed.
       The elements of a negligence cause of action include the existence of a duty of
care owed to the plaintiff, the defendant’s breach of that duty, and damages proximately
caused thereby. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49,
62 (Lueras).) Whether a duty of care exists is a question of law to be determined on a
case-by-case basis. (Ibid.) The general rule is that “a financial institution owes no duty
of care to a borrower when the institution’s involvement in the loan transaction does not
exceed the scope of its conventional role as a mere lender of money.” (Nymark v. Heart
Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096.) The offering or
consideration of home loan modifications are sufficiently connected to conventional
lending transactions as to come within the scope of a bank’s conventional role as a mere
lender of money. (Lueras, supra, at p. 67.) In Lueras, where the defendant
lender/servicer was sued for mishandling or failing to approve a HAMP loan
modification (id. at p. 59), the Court of Appeal explained why there was no common law
duty of care: “The Biakanja [v. Irving (1958) 49 Cal.2d 647] factors do not support
imposition of a common law duty to offer or approve a loan modification. If the
modification was necessary due to the borrower’s inability to repay the loan, the
borrower’s harm, suffered from denial of a loan modification, would not be closely
connected to the lender’s conduct. If the lender did not place the borrower in a position
creating a need for a loan modification, then no moral blame would be attached to the
lender’s conduct.” (Id. at p. 67.) Accordingly, no common law duty of care was imposed
on the lender for purposes of pleading a negligence cause of action. (Id. at p. 68.)
       On the record before us, we find the analysis and holding in Lueras to be
applicable here. That is, on the facts presented in connection with defendant’s summary
judgment motion, no duty of care existed. Moreover, even if a duty of care did exist, no
breach of duty was shown by plaintiffs’ opposition to defendant’s motion for summary

                                            34.
judgment. Therefore, we conclude defendant was entitled to summary adjudication of the
Sixth cause of action for negligence.
       We note there is a recent appellate decision that concluded, on the particular facts
before it, that a duty of care existed in connection with a bank’s undertaking of a HAMP
loan application. In Alvarez v. BAC Home Loans Servicing, LP (2014) 228 Cal.App.4th
941, 945 (Alvarez), the trial court had sustained the defendant’s demurrer to the
plaintiff’s negligence claim without leave to amend on the ground there was no duty of
care owed. The complaint had alleged that the defendant lender affirmatively mishandled
the plaintiff’s HAMP home loan modification application by detrimentally failing to
consider or review the application in a timely fashion (which prevented the plaintiff from
seeking other loan modification options), relying on incorrect financial information,
losing key documents, making false statements relating to the loan application, and
holding itself out to the plaintiff/borrower as processing the HAMP loan application in
good faith while simultaneously actively pursuing its foreclosure remedies against the
plaintiff’s real property (the latter practice was referred to as “dual tracking”). (Id. at
pp. 945, 951.) The Court of Appeal reversed and held that, under the allegations alleged
by the plaintiff in that case, a cause of action for negligence was properly alleged. (Id. at
pp. 949-951.)
       However, the Alvarez decision does not assist plaintiffs in the present appeal.
Unlike the procedural posture in Alvarez, the motion before the trial court here was for
summary judgment—which means it was an evidentiary hearing. Even assuming the
Alvarez court’s approach to the negligence and duty of care issues were correct, in this
case plaintiffs failed to set forth evidence in opposition to the motion for summary
judgment that a triable issue of material fact existed. That is, no evidence was presented
or identified in plaintiffs’ separate statement to indicate that defendant either stepped
beyond the role of a conventional lender or that, in undertaking the HAMP loan
application, defendant affirmatively mishandled the application by such acts as using the

                                              35.
wrong financial information and/or committing dual tracking.19 For all of these reasons,
the trial court did not err in adjudicating the sixth cause of action in defendant’s favor.
                      g.      Seventh Cause of Action for Breach of Contract
       The essential elements of a cause of action for breach of contract are: “(1) the
contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s
breach, and (4) the resulting damages to plaintiff.” (Reichert v. General Ins. Co. (1968)
68 Cal.2d 822, 830.) Plaintiffs’ seventh cause of action alleged that the HAMP trial plan
documents, together with plaintiff’s original note and deed of trust, created a contract by
which plaintiffs were entitled to a permanent loan modification. Again, defendant’s
motion showed that plaintiff was not unconditionally promised that he would
automatically receive a permanent HAMP loan modification, but rather it was made clear
that receiving a permanent loan modification under HAMP depended on verified income.
Therefore when it was ultimately ascertained that plaintiff did not qualify or was found
ineligible under federal guidelines to receive a permanent HAMP loan modification, no
breach of contract occurred. Plaintiffs’ opposition to the summary judgment motion did
not present any evidence to the contrary. We conclude that no basis for a breach of
contract cause of action existed under the undisputed facts and that defendant was
entitled to summary adjudication of the seventh cause of action.
                      h.      Eighth Cause of Action for violation of TILA
       Plaintiffs’ fourth amended complaint alleged that defendants failed to make
written disclosures required by the TILA prior to consummation of the transaction. TILA
was enacted by Congress “to assure a meaningful disclosure of credit terms so that the


19      On the latter point, the evidence was undisputed that once plaintiff made his HAMP
application, the foreclosure proceedings were in a forbearance period until such time as it was
determined that plaintiff did not qualify for the HAMP loan modification. Thus, there was no
dual tracking here. (See Alvarez, supra, 228 Cal.App.4th at pp. 949-950 [dual tracking was
prohibited by legislation taking effect in 2013].)



                                               36.
consumer will be able to compare more readily the various credit terms available to him
and avoid the uninformed use of credit, and to protect the consumer against inaccurate
and unfair credit billing and credit card practices.” (15 U.S.C. § 1601(a); see
implementing regulation at 12 C.F.R § 226.1 et seq. (Reg. Z); Pacific Shore Funding v.
Lozo (2006) 138 Cal.App.4th 1342, 1349 [summarizing congressional intent].)
       Defendant’s motion for summary judgment asserted that under the undisputed
facts, no basis for liability existed under TILA because plaintiffs rejected the offered
IndyMac loan modification and did not qualify for the HAMP loan modification. We
agree because, under these unique circumstances, credit was never actually extended by
defendant nor was a credit transaction consummated with the consumer. (See, e.g., 15
U.S.C. §§ 1602(f) & 1638(b); 12 C.F.R. § 226.2(a)(12)-(14); Crawford v. Farmers
Group, Inc. (1984) 160 Cal.App.3d 1164, 1169 [“a consumer credit transaction must
exist” before TILA liability applies].) Although a lender is required to make the proper
disclosures prior to the extension of credit, generally speaking TILA does not impose
liability on the lender until credit is in fact extended. (Weintraub v. Quicken Loans, Inc.
(4th Cir. 2010) 594 F.3d 270, 274-275.) Accordingly, we agree with defendant that no
cause of action under TILA was viable under the undisputed facts. Consequently,
defendants were entitled to summary adjudication of the eighth cause of action.
                     i.      Ninth Cause of Action for Fraud
       Plaintiffs’ cause of action for fraud was dismissed from the third amended
complaint in June 2012 for failure to comply with the trial court’s prior ruling. We are
not surprised by that outcome, as the allegations in the third amended complaint were
utterly lacking in the specificity required of a fraud cause of action, even though plaintiffs
had several opportunities to plead adequate facts. Plaintiffs attempted to reassert the
previously dismissed fraud cause of action in the fourth amended complaint, but as was
the case with the prior pleading, the allegations remained wholly inadequate to state a
cause of action for fraud.

                                             37.
       The elements of a fraud cause of action are: a representation, usually of fact,
which is false, knowledge of its falsity, intent to defraud, justifiable reliance upon the
misrepresentation, and damage resulting from that reliance. (Stansfield v. Starkey (1990)
220 Cal.App.3d 59, 72-73.) Every element of a fraud cause of action must be alleged
with particularity (id. at p. 73), including the pleading of facts which “show how, when,
where, to whom, and by what means the representations were tendered” (Hills Trans. Co.
v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 707). “The requirement
of specificity in a fraud action against a corporation requires the plaintiff to allege the
names of the persons who made the allegedly fraudulent representations, their authority
to speak, to whom they spoke, what they said or wrote, and when it was said or written.”
(Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)
       Here, plaintiffs’ cause of action was utterly devoid of the factual specificity
required of a fraud cause of action, including with respect to the elements of
representation, justifiable reliance and resulting damages. Moreover, as pointed out in
defendant’s motion, the cause of action was previously dismissed by the trial court and
no relief was sought by plaintiffs from that dismissal. Finally, no facts were presented in
opposition to the motion for summary judgment to indicate the existence of a triable issue
of material fact. For all of these reasons, we conclude that defendant was entitled to
summary adjudication of the ninth cause of action.
VII.   Trial Court Did Not Abuse its Discretion in Denying Motion for New Trial
       Plaintiffs contend the trial court erred in denying their motion for new trial. We
disagree. “[A] trial judge is accorded a wide discretion in ruling on a motion for new trial
and … the exercise of this discretion is given great deference on appeal. [Citations.]
However, we are also mindful of the rule that on an appeal from the judgment it is our
duty to review all rulings and proceedings involving the merits or affecting the judgment
as substantially affecting the rights of a party [citation], including an order denying a new
trial. In our review of such order denying a new trial, as distinguished from an order

                                              38.
granting a new trial, we must fulfill our obligation of reviewing the entire record,
including the evidence, so as to make an independent determination as to whether the
error was prejudicial.” (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872;
accord, Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)
       Here, plaintiffs’ motion for new trial outlined the various legal grounds for a
motion for new trial pursuant to section 657 and made general and perfunctory
allegations of error without factual support. The trial court denied the motion,
explaining: “Upon a thorough review of the moving, opposing and reply papers, the
Court fails to discern any basis for granting the Plaintiffs the relief sought.” Having
considered the entire record, we agree with the trial court’s assessment. No abuse of
discretion has been shown with regard to the trial court’s denial of plaintiffs’ motion for
new trial. For the same reasons, plaintiffs’ motion to vacate the judgment and enter a
new judgment under section 663 was, likewise, properly denied.
                                      DISPOSITION
       The judgment and orders of the trial court are affirmed. Costs on appeal are
awarded to defendant.

                                                                 _____________________
                                                                        Kane, Acting P.J.
WE CONCUR:


 _____________________
Poochigian, J.


 _____________________
Franson, J.




                                            39.
