Filed 8/3/16 Zavieh v. RWW Properties LLC CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


MEGAN E. ZAVIEH,
          Plaintiff and Appellant,
                                                                     A145977
v.
RWW PROPERTIES LLC,                                                  (Alameda County
                                                                     Super. Ct. No. HG12-615549)
          Defendant and Respondent.


          Megan E. Zavieh lost her home in a nonjudicial foreclosure sale (Civ. Code,
§ 2924). She filed a complaint to quiet title and alleged, among other things, the
existence of an enforceable agreement to modify her loan and irregularities in the
foreclosure sale. Her complaint named JP Morgan Chase Bank (Chase), California
Reconveyance Company (Cal Recon), and RWW Properties LLC (RWW) as defendants.
The trial court found no enforceable agreement to modify and concluded Zavieh could
not quiet title because RWW, who purchased the property at the foreclosure sale, was a
bona fide purchaser without notice of any defects. Zavieh appeals from the judgment
entered in favor of RWW, contending the trial court improperly deprived her of an
opportunity to litigate her quiet title cause of action.1 Zavieh elected to proceed without a
reporter’s transcript on appeal and has failed to show error on the face of the record. We
affirm.



          1   Zavieh’s claims against Chase and Cal Recon are not at issue on appeal.


                                                             1
                  I.     FACTUAL AND PROCEDURAL BACKGROUND2
       In March 2000, Zavieh acquired property located in Fremont, California (the
Property) by gift from her father, James J. Murray. In late 2007, Zavieh obtained a
mortgage on the Property from Washington Mutual Bank. The deed of trust named
Cal Recon as trustee.
       In October 2008, Chase informed Zavieh that it had acquired certain Washington
Mutual Bank assets, including the right to service and collect payments on her loan.
Between June and October 2009, Zavieh and Chase exchanged correspondence regarding
a loan modification application. Soon after Zavieh sent Chase additional documentation
it requested, including a Home Affordable Modification Program (HAMP) hardship
affidavit, she fell behind in her payments. Between February and September 2010, either
Murray or Zavieh made seven payments of $1,292 to Chase, under a “Trial Period Plan.”
However, in November 2010, Chase told Zavieh it could not offer her a permanent loan
modification because it was not approved by the loan’s owner given the net present value
calculation, which estimated the cash flow to the owner of the modified and unmodified
loan. Zavieh subsequently authorized Murray to act as her agent for purposes of dealing
with Chase on issues related to the loan modification and foreclosure process.


       2 Zavieh’s “Statement of Facts” and “Statement of the Case” are almost entirely
devoid of citation to the record as required by California Rules of Court,
rule 8.204(a)(1)(C). Accordingly, we could disregard her arguments on appeal. (Regents
of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1.)
However, Zavieh has twice sought writ relief in this court from a lis pendens
expungement order, the first of which resulted in an unpublished opinion reciting much
of the factual and procedural history of this case. (Zavieh v. Superior Court (Apr. 2,
2015, A142768) (Zavieh I) [granting a writ of mandate to vacate expungement order].)
Additionally, Zavieh and RWW each filed unopposed requests for judicial notice. We
grant both requests (Evid. Code, §§ 452, subd. (d)(1), 459) and take judicial notice of
(1) Zavieh I ; (2) Zavieh’s second petition in this court for writ relief from a lis pendens
expungement order (No. A146809); (3) an unlawful detainer judgment and statement of
decision in a trial court action between RWW and Murray (RWW Properties, LLC v.
Murray (Super. Ct. Alameda County, 2013, No. RG13-676304)); and (4) the dismissal of
Murray’s appeal from the unlawful detainer judgment (No. A140794). Thus, the facts
recited herein are largely drawn from Zavieh I and our independent review of the record.

                                             2
                                     Foreclosure Sale
       Chase recorded a notice of default in June 2011, which stated Zavieh was in
default in the amount of $49,006.68. The notice also stated Zavieh failed to pay principal
and interest installments from March 2010 and thereafter. In late 2011, a notice of
trustee’s sale was posted at the Property.3
       Cal Recon conducted a nonjudicial foreclosure sale on December 20, 2011, at
which RWW was the highest bidder. Murray, who announced he was acting as Zavieh’s
agent, appeared at the sale and claimed the sale was improper due to lack of timely notice
of the sale and other irregularities. A trustee’s deed was issued in favor of RWW and
recorded. The trustee’s deed stated: “All requirements of law regarding the mailing of
copies of notices or the publication of a copy of the Notice of Default or the personal
delivery of the copy of the Notice of Default and the posting and publication of copies of
the Notice of a Sale have been complied with.”
                                      Zavieh’s Action
       On February 2, 2012, Zavieh initiated the action below by filing a complaint to
quiet title and for declaratory relief. That same day, she filed a notice of pendency of
action in Alameda County Superior Court, and the notice was recorded five days later.
Her operative fourth amended complaint alleged six causes of action: (1) wrongful
foreclosure against Chase and Cal Recon; (2) breach of contract against Chase;
(3) negligent infliction of emotional distress against RWW; (4) intentional infliction of
emotional distress against all three defendants; (5) quiet title against RWW; and
(6) injunctive relief.4



       3The parties dispute when the notice of trustee’s sale was actually posted on the
Property. Zavieh asserts Murray would have testified the notice was not posted until
December 6, 2011. RWW maintains it was posted on November 29, 2011.
       4 The third cause of action was dismissed by Zavieh during trial; the sixth cause of
action to halt RWW’s unlawful detainer proceedings was rendered moot; and Zavieh
ultimately dismissed Chase and Cal Recon. Thus, only the fourth and fifth causes of
action as to RWW are disputed on appeal.


                                              3
                   RWW’s Unlawful Detainer Action Against Murray
       In August 2013, RWW filed an unlawful detainer action against Murray to obtain
possession of the Property. In an amended statement of decision filed the following
November, it was ruled that Murray’s appearance at the foreclosure sale and his
announcement of alleged irregularities in notice did not provide sufficient information for
an uninformed third party to conclude there was a serious legal impediment to the sale.
Therefore, RWW was a bona fide purchaser for value of the Property without notice
within the meaning of Civil Code section 2924, subdivision (c).5 Murray’s appeal of the
unlawful detainer judgment was dismissed in February 2014 for failure to procure the
record within the time allowed (see Cal. Rules of Court, rule 8.140(b)(1)).
                                 The Motion to Expunge
       In May 2014, RWW filed a motion to expunge the lis pendens. RWW contended
the notice should be expunged because Zavieh’s complaint did not affect either title to or
possession of the Property; RWW was a bona fide purchaser without notice within the
meaning of Civil Code section 2924, subdivision (c) and entitled to a conclusive
presumption that all procedural requirements for the notices of default and sale had been
satisfied; and the unlawful detainer judgment obtained against Murray collaterally
estopped Zavieh from attacking the validity of RWW’s title because she was in privity
with Murray, who acted as her agent. RWW also argued the true goal of Zavieh’s
complaint was recovery of damages and a lis pendens was inappropriate where money
damages would be sufficient. The motion was granted and an order expunging the lis
pendens and granting RWW attorney fees was entered in July 2014.



       5 Civil Code section 2924, subdivision (c) provides: “A recital in the deed
executed pursuant to the power of sale of compliance with all requirements of law
regarding the mailing of copies of notices or the publication of a copy of the notice of
default or the personal delivery of the copy of the notice of default or the posting of
copies of the notice of sale or the publication of a copy thereof shall constitute prima
facie evidence of compliance with these requirements and conclusive evidence thereof in
favor of bona fide purchasers and encumbrancers for value and without notice.”


                                            4
                                           Zavieh I
       Zavieh filed a petition for writ of mandate in this court, and the order expunging
the lis pendens and granting RWW attorney fees was reversed in Zavieh I. We held the
trial court (1) erroneously ruled Zavieh’s first cause of action for wrongful foreclosure
did not contain a real property claim, and (2) application of collateral estoppel to bar the
fifth cause of action for quiet title was overbroad since the unlawful detainer judgment
did not preclude all of Zavieh’s claims.
       Only the second ground for reversal has application to this appeal. On that point,
we observed: “The trial court found Zavieh’s fifth cause of action for quiet title stated a
real property claim but concluded she had failed to establish the probable validity of that
claim. ([Code Civ. Proc.,] § 405.32.) It held Zavieh was collaterally estopped by the
judgment in the unlawful detainer action against Murray, a judgment that had determined
RWW was a bona fide purchaser without notice entitled to a conclusive presumption that
the trustee’s sale had been regularly conducted. (See Civ. Code, § 2924, subd. (c).)
According to the trial court: ‘Collateral estoppel applies because (1) the issue presented
in the unlawful detainer action, i.e., was RWW a bona fide purchaser for value of the
subject property pursuant to Civil Code []§ 2924(c), is the same issue presented here;
(2) there was a final judgment on the merits in the unlawful detainer proceeding; and
(3) [Zavieh] is in privity with James Murray, the defendant in the unlawful detainer
action.’
       “The elements of collateral estoppel are well established. ‘ “First, the issue sought
to be precluded from relitigation must be identical to that decided in a former proceeding.
Second, this issue must have been actually litigated in the former proceeding. Third, it
must have been necessarily decided in the former proceeding. Fourth, the decision in the
former proceeding must be final and on the merits. Finally, the party against whom
preclusion is sought must be the same as, or in privity with, the party to the former
proceeding. [Citations.] The party asserting collateral estoppel bears the burden of
establishing these requirements.” ’ (Pacific Lumber Co. v. State Water Resources
Control Bd. (2006) 37 Cal.4th 921, 943.)


                                              5
       “The parties devote much of their briefing to debating whether the final element of
collateral estoppel is present here, i.e., whether Zavieh and Murray were in privity. We
need not resolve that issue, however, because we conclude RWW failed to establish the
first element. Zavieh argues, and we agree, that the issues in the two proceedings are not
identical. For even if we assume the unlawful detainer judgment is binding on Zavieh—a
question we do not decide—that judgment would bar only some, but not all, of the claims
she asserts in this action.
       “A judgment in an unlawful detainer action generally has very limited preclusive
effect and will not prevent a party dispossessed of property from bringing a subsequent
action to resolve issues of title. (Vella v. Hudgins (1977) 20 Cal.3d 251, 255 (Vella).)
An exception to this rule is contained in [Code of Civil Procedure] section 1161a, which
‘provides for a narrow and sharply focused examination of title. To establish that he is a
proper plaintiff, one who has purchased property at a trustee’s sale and seeks to evict the
occupant in possession must show that he acquired the property at a regularly conducted
sale and thereafter “duly perfected” his title.’ ([Vella, at p. 255], italics added.) Thus, in
an unlawful detainer action brought under [Code of Civil Procedure] section 1161a, the
court necessarily must decide whether the purchaser at the trustee’s sale acquired legal
title to the property at issue in accordance with Civil Code section 2924. (Malkoskie v.
Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 974.) The resulting unlawful
detainer judgment is therefore a determination that the foreclosure sale was conducted in
accordance with Civil Code section 2924. ([Malkoskie, at p. 974].)
       “Consequently, a judgment in an unlawful detainer action will preclude
‘subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee’s
sale[.]’ (Vella, supra, 20 Cal.3d at p. 256.) The judgment will not, however, bar
subsequent claims not directly connected to the conduct of the trustee’s sale. (Ibid.) This
is because Civil Code section 2924 does no more than ‘establish presumptions about the
adequacy of notices related to a foreclosure sale[.]’ (Bank of America v. La Jolla
Group II (2005) 129 Cal.App.4th 706, 713.) The presumption created by Civil Code
section 2924 does not preclude actions alleging other defects in the foreclosure process.


                                               6
(See id. at p. 714.) For example, ‘[n]o statute creates a presumption—conclusive or
otherwise—for any purchaser—bona fide or otherwise—that any recitals in a trustee’s
deed render effective a sale that had no contractual basis.’ (Ibid.) ‘The [Civil Code]
section 2924 presumptions pertain only to notice requirements, not to every defect or
inadequacy short of fraud.’ (Ibid.)
       “While Zavieh certainly alleges Chase and Cal Recon failed to respect the
statutory notice requirements applicable to the trustee’s sale, that is not her only claim.
For example, in addition to the notice defects, her complaint asserts Chase had no power
of sale because it breached the alleged HAMP modification agreement and violated
regulations applicable to HAMP. She claims the breach and violation of the regulations
rendered subsequent ‘foreclosure actions’ improper. Breach of such a modification
agreement, if established, would render the trustee’s sale void because Chase would have
lacked a contractual basis to exercise the power of sale. (Chavez [v. Indymac Mortgage
Services (2013)] 219 Cal.App.4th [1052,] 1063.) Such a claim is ‘a challenge not to the
statutory proceeding but to something outside of it.’ (Plastino v. Wells Fargo Bank
(N.D.Cal. 2012) 873 F.Supp.2d 1179, 1190.) It therefore falls outside the scope of the
unlawful detainer judgment.
       “Simply put, this action involves issues not presented in the unlawful detainer
proceeding. Thus, even if the unlawful detainer judgment binds Zavieh, it does not
preclude her causes of action in their entirety. (See George v. California Unemployment
Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1488 [state personnel board findings
precluded relitigation of some issues related to plaintiff’s retaliation claim, but did not
entirely bar cause of action].) The trial court applied collateral estoppel too broadly to
defeat all claims in the fifth cause of action. And since RWW argued only the issue of
collateral estoppel and did not contradict Zavieh’s arguments on the claims falling
outside the scope of the unlawful detainer judgment, it has forfeited any challenge to her
showing of probable validity on those claims.” (Zavieh I, supra, A142768, fns. omitted
& some italics added.)



                                              7
                          Trial Court Proceedings After Zavieh I
       After the writ proceeding in Zavieh I, the underlying civil case proceeded to trial.
Chase and Cal Recon’s motion to bifurcate the trial was granted “and a court trial was
first conducted to determine whether there had been an agreement between [Zavieh] and
Chase to modify her loan. At the conclusion of the court trial, Chase and Cal Recon
moved for judgment under Code of Civil Procedure section 631.8.”
       The trial court’s June 12, 2015 statement of decision primarily sets forth its
reasons for determining Zavieh did not have a loan modification agreement with Chase.
After stating its conclusion on the contractual portion of Zavieh’s case and that “Chase
and Cal Recon did not wrongfully foreclose on the home,” the court stated: “In addition,
because RWW is a bona fide purchaser without notice of any void trustee sale, the court
will not quiet title in favor of [Zavieh].”6 The court also provided: “The motion by
Chase and Cal Recon for judgment is GRANTED as to the entire action. Chase and Cal
Recon are ordered to submit a proposed judgment in favor of defendants Chase,
Cal Recon, and RWW consistent with this order for the court’s review and signature, plus
costs of suit.”
       Judgment was entered in favor of Chase, Cal Recon, and RWW, stating that
Zavieh “failed to establish, by admissible evidence, any of her claims and any of her
causes of action.” Zavieh filed a timely notice of appeal from the judgment entered in
RWW’s favor.
                                    II.    DISCUSSION
       Zavieh does not challenge the trial court’s findings or conclusions with respect to
her contract cause of action. Instead, she focuses on her quiet title cause of action against



       6 In the footnotes of its statement of decision, the trial court cited Melendrez v.
D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1255–1256 and “RWW Properties,
LLC v. James J. Murray, Third Amended Judgment and Statement of Decision, Superior
Court of California, County of Alameda, (2013) RG13 676304, p. 4, where the Court
determined in the unlawful detainer action that the Notice of Default was not invalid and
is law of the case.”


                                              8
RWW and maintains she was improperly deprived of the opportunity to fully litigate her
claims.
       Zavieh points out that she alleged three different theories for recovering title:
(1) Chase breached its contract to modify Zavieh’s loan, (2) Chase and Cal Recon issued
a void notice of default which could not support a valid trustee sale, and (3) Chase and
Cal Recon did not provide proper notice of trustee’s sale. Because the bench trial was
limited to the first question of whether a modification contract existed, Zavieh’s position
is that the trial court improperly concluded RWW was a bona fide purchaser “without
taking any evidence or argument from the parties as to whether RWW had in fact been on
actual notice of defects in the foreclosure process, and without taking any argument or
testimony from the parties as to whether collateral estoppel applied . . . .” Zavieh
maintains the trial court’s application of collateral estoppel was erroneous for another
reason—she was not a party to the unlawful detainer action or in privity with Murray.
RWW, on the other hand, insists Zavieh has provided an inadequate record and was in
privity with Murray. According to RWW, the trial court correctly concluded, after
resolving her contract claim adversely, that the unlawful detainer judgment precluded
Zavieh from recovering title under her other two theories.
       Zavieh asks us to review “the trial court’s dismissal of [her] entire case de novo, as
it is a question of law whether the matter was fully litigated.” Zavieh insists her appeal
presents “an unusual procedural posture, as there was no motion to dismiss [her]
remaining claims at the end of the limited trial, nor a motion for judgment on the
pleadings . . . . Instead, the court took testimony on a discrete issue, then issued its
judgment which went far beyond what the parties expected it to handle and dismissed the
matter entirely.” We agree with RWW that Zavieh has failed to meet her burden to
provide an appellate record showing error.
       It is a cardinal rule of appellate review that “a judgment or order of the trial court
is presumed correct and prejudicial error must be affirmatively shown. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564.) ‘In the absence of a contrary showing in the
record, all presumptions in favor of the trial court’s action will be made by the appellate


                                               9
court. “[I]f any matters could have been presented to the court below which would have
authorized the order complained of, it will be presumed that such matters were
presented.” ’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181,
187.) “It is the appellant’s responsibility to include in the appellate record the portions of
the reporter’s transcript relevant to the appellant’s issues on appeal.” (In re Valerie A.
(2007) 152 Cal.App.4th 987, 1002.) “ ‘A necessary corollary to this rule is that if the
record is inadequate for meaningful review, the appellant defaults and the decision of the
trial court should be affirmed.’ ” (Gee v. American Realty & Construction, Inc. (2002)
99 Cal.App.4th 1412, 1416.)
       Zavieh has proceeded by way of appendix and has not provided this court with a
certified reporter’s transcript under rule 8.130 of the California Rules of Court. Contrary
to California Rules of Court, rule 8.124(b)(3)(B),7 Zavieh provided uncertified
transcripts, within her appendix, from April 3, April 21, and April 22. The limited record
suggests Zavieh may very well have had an opportunity to fully litigate her case. On the
first day of trial (April 3, 2015), the trial court mentioned its concern that the remaining
causes of action against RWW—the third cause of action for negligent infliction of
emotional distress, fourth cause of action for intentional infliction of emotional distress,
and fifth cause of action for quiet title—could be subject to nonsuit because of the
collateral estoppel effect of the unlawful detainer judgment. The court indicated it
wanted to receive additional briefing and discuss the matter further “on Monday”—
presumably April 6, 2015. However, Zavieh elected to proceed with this appeal without
any record of the oral proceedings from that day.8



       7“An appendix must not: [¶] . . . [¶] . . . [c]ontain transcripts of oral proceedings
that may be designated under rule 8.130.” (Cal. Rules of Court, rule 8.124(b)(3)(B).)
       8 We cannot agree with RWW that the record before us shows Zavieh forfeited her
current argument by failing to object. Zavieh filed objections to the trial court’s tentative
statement of decision, in which she maintained “it is premature to render judgment on all
causes of action.” Zavieh also filed a trial brief, in which she asserted collateral estoppel
has no application.


                                              10
       In her reply brief, Zavieh argues the missing transcripts are not “material” to this
appeal. She also minimizes the trial court’s April 3 requests for further briefing, saying
“[t]he court’s comments are of no concern to this appeal unless there was an actual
motion and/or a ruling.” (Italics added.) This begs the question. Without a reporter’s
transcript, how can we conclude that no rulings, concessions, or additional arguments
were made on April 6 or thereafter? It is entirely possible that the absent reporter’s
transcripts would show Zavieh either conceded or was, in fact, permitted to litigate all of
her claims and/or the applicability of collateral estoppel. We cannot assume the contrary.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 [appellant has the burden on appeal to
provide an adequate record showing error]; Osgood v. Landon (2005) 127 Cal.App.4th
425, 435 [“ ‘a record is inadequate, and appellant defaults, if the appellant predicates
error only on the part of the record he provides . . . , but ignores or does not present . . .
portions of the proceedings below which may provide grounds upon which the decision
of the trial court could be affirmed”]; Cal. Rules of Court, rule 8.163.)9
       Zavieh failed to furnish an adequate record. Accordingly, we cannot address the
merits and the judgment must be affirmed. (Maria P. v. Riles, supra, 43 Cal.3d at
p. 1295; Foust v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 187;
Hodges v. Mark (1996) 49 Cal.App.4th 651, 657 [because reversal of nonsuit ruling
requires review of evidence presented to trial court, merits of appellant’s claim cannot be
reached when reporter’s transcript not provided].)
                                     III.    DISPOSITION
       The judgment is affirmed. RWW is to recover its costs on appeal.




       9 California Rules of Court, rule 8.163 provides: “The reviewing court will
presume that the record in an appeal includes all matters material to deciding the issues
raised. If the appeal proceeds without a reporter’s transcript, this presumption applies
only if the claimed error appears on the face of the record.”


                                               11
                                 _________________________
                                 BRUINIERS, J.


WE CONCUR:


_________________________
JONES, P. J.


_________________________
SIMONS, J.




A145977



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