Filed 5/7/14 Migdal v. JP Morgan Chase Bank CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT

MARK MIGDAL,                                                         H038797
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV203756)

         v.

JPMORGAN CHASE BANK et al.,

         Defendants and Respondents.


         In this action for declaratory and injunctive relief, plaintiff Mark Migdal seeks to
prevent the sale of his home through a nonjudicial foreclosure sale. Migdal appeals from
a judgment of dismissal entered after the trial court sustained without leave to amend a
demurrer to his second amended complaint against defendants JPMorgan Chase Bank,
N.A. (JPMorgan) and California Reconveyance Company (CRC) (collectively
defendants). Migdal contends the trial court erred by sustaining defendants’ demurrer
because he adequately alleged that defendants have no interest in the property, and thus
no right to foreclose, and that there were irregularities in the foreclosure documents. We
conclude that Migdal has shown no error and will affirm the judgment.
I.       FACTUAL AND PROCEDURAL BACKGROUND1
         In 2002, Migdal obtained a residential loan in connection with real property


         1
        Because this matter comes to us following a judgment sustaining a demurrer
without leave to amend, we assume the truth of the material facts properly pleaded in
Migdal’s complaints. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
located in Mountain View, California. The loan was secured by a deed of trust
encumbering the property, which was recorded with the Santa Clara County Recorder’s
Office on May 28, 2002. The deed of trust identifies Washington Mutual Bank (WaMu)
as the lender and beneficiary, CRC as the trustee, and Migdal as the borrower.
       On September 25, 2008, JPMorgan entered into a purchase and assumption
agreement with the Federal Deposit Insurance Corporation (FDIC), acting as receiver for
WaMu (“the P & A Agreement”). Pursuant to the P & A Agreement, JPMorgan
purchased “all right, title, and interest of the [FDIC] in and to all of [WaMu’s] assets.”
As discussed below, the parties’ dispute whether Migdal’s deed of trust was among the
assets JPMorgan purchased.
       Migdal “made the regularly scheduled payments on the loan[] until December of
2008.” CRC recorded a notice of default and election to sell under deed of trust on April
27, 2009. Thereafter, JPMorgan contacted Migdal about a possible loan modification
agreement under the federal Home Affordable Mortgage Program (HAMP). Migdal’s
application for loan modification was later denied.
       CRC filed a notice of trustee’s sale on November 18, 2009, which announced
CRC’s intention to sell the property at public auction on December 10, 2009. The
signature on the notice is that of Deborah Brignac as vice president of CRC. That sale
never took place. In April 2010, Migdal received a notice of trustee’s sale, informing
him that his property was going to be nonjudicially foreclosed upon by CRC as trustee.2
CRC recorded a second notice of trustee’s sale on June 10, 2011, indicating that the
property would be sold at a nonjudicial foreclosure sale on July 1, 2011. As discussed
below, that sale initially was enjoined. To our knowledge, Migdal’s property still has not


       2
         Although it is not clear from the record or the parties’ briefs, the notice Migdal
alleges he received in April 2010 may have been the November 18, 2009 notice of
trustee’s sale.

                                              2
been sold at a nonjudicial foreclosure sale.
       A.     The Complaint, TRO, and Denial of a Preliminary Injunction
       Migdal filed suit against JPMorgan and CRC on June 24, 2011, asserting claims
for breach of contract and unfair business practices in violation of the unfair competition
act (Bus. & Prof. Code, § 17200 et seq. (UCL)), and seeking injunctive relief and an
accounting. The complaint alleged that JPMorgan had obtained an assignment of
Migdal’s deed of trust, originally held by WaMu, as a result of the P & A Agreement. It
further alleged that JPMorgan’s loan modification program was a “sham” designed to
obtain benefits from the federal and California governments in connection with HAMP.
       Also on June 24, 2011, Migdal filed an ex parte application for a temporary
restraining order preventing defendants from carrying out the trustee’s sale of the
property scheduled for July 1, 2011. The court granted the temporary restraining order
(TRO), required Migdal to post a $2,500 bond, and ordered defendants to show cause
why a preliminary injunction should not issue.
       In response to the order to show cause, defendants opposed the entry of a
preliminary injunction. In support of that opposition, defendants requested that the trial
court take judicial notice of copies of (1) the deed of trust, (2) the November 18, 2009
notice of trustee’s sale, and (3) the June 10, 2011 notice of trustee’s sale. In reply,
Migdal argued for the first time that JPMorgan was not entitled to enforce the deed of
trust because the deed of trust had been sold by WaMu to a third party before the P & A
Agreement was executed, such that JPMorgan had no interest in the deed of trust.
Migdal submitted the declaration of James Macklin in support of his reply. Macklin
declared that he had performed a search of the recorded deed of trust against Migdal’s
property and that the records “reflect that [WaMu] sold this note and deed of trust as part
of the sale of securities such that [WaMu] [is] no longer the beneficiary on the deed of
trust.” Macklin further declared that “the record is void as to whether or not [WaMu] or
JP Morgan Chase Bank were the beneficiaries on the note or deed of trust. The original
                                               3
loan contract was previously sold by [WaMu].” Migdal did not provide the court with
copies of the underlying records Macklin reviewed.
       Following a November 10, 2011 hearing, the court denied Migdal’s motion for a
preliminary injunction and dissolved the temporary restraining order. Migdal filed a
motion for reconsideration, which the court denied on February 17, 2012.
       B.       The First Amended Complaint and Defendants’ Demurrer
       Migdal filed a first amended complaint (FAC) on February 1, 2012. In contrast to
the initial complaint, Migdal now alleged that WaMu sold his deed of trust before
JPMorgan entered into the P & A Agreement, such that his deed of trust was not
purchased by JPMorgan. He alleged that CRC was not the trustee of the deed of trust and
had no authority to initiate a foreclosure proceeding with respect to the property. Migdal
further alleged that CRC had not given proper notice of default pursuant to Civil Code
section 2924.
       Migdal sought a declaration that JPMorgan was not entitled to enforce the deed of
trust under Commercial Code section 3301 and that the bank had no right to pursue a
foreclosure sale of the property. Migdal also sought to enjoin JPMorgan from selling the
property and alleged causes of action for fraud and violations of the UCL against the
bank. As to CRC, Migdal sought an injunction barring it from selling the property.
       Defendants’ demurrer to the FAC was sustained with leave to amend as to the
declaratory and injunctive relief claim only and sustained without leave to amend the
fraud and UCL claims against JPMorgan.
       C.       The Second Amended Complaint and Defendants’ Demurrer
       Migdal filed a second amended complaint (SAC) asserting a single claim for
declaratory and injunctive relief against JPMorgan and CRC. As in the FAC, Migdal
alleged that WaMu sold his deed of trust “as a part of [a] sale of securities . . . to
independent investors” prior to the 2008 P & A Agreement between the FDIC and
JPMorgan, such that his deed of trust “was not part of the assets transferred to
                                               4
[JPMorgan].” The SAC sought a declaration that JPMorgan has “no beneficial interest as
a person entitled to enforce a deed of trust under California Commercial Code § 3301”
and that “[o]n this basis” it has “no right to pursue a foreclosure sale of the property or to
enforce the deed of trust.” The SAC also sought to enjoin JPMorgan from selling the
property on the theory that it “has no beneficial interest in the property under California
Commercial Code § 3301.”
       Migdal alleged that CRC was not the trustee on the deed of trust. Migdal also
alleged that Deborah Brignac’s signature on the notice of trustee’s sale CRC filed on
November 18, 2009, was forged by a robo-signer. In support of that allegation, Migdal
attached to the SAC portions of documents bearing dissimilar “Deborah Brignac”
signatures on behalf of various companies (including CRC and JPMorgan). Migdal also
alleged that “the person signing the notice of default had no personal knowledge of the
facts stated therein” and that “[t]he amount stated as due was inaccurate and in excess of
the amount owed.” The SAC sought a declaration that CRC has “no beneficial interest as
a person entitled to enforce a deed of trust under California Commercial Code § 3301”
and, that “[o]n this basis,” it has “no right to pursue a foreclosure sale of the property or
to enforce the deed of trust.” The SAC also sought to enjoin CRC from selling the
property on the ground that it had not properly given notice of default and notice of
trustee’s sale as required by Civil Code section 2924.
       In an order dated August 8, 2012, the trial court sustained defendants’ demurrer to
the SAC on two grounds. First, the court held that Migdal’s requests for declaratory and
injunctive relief failed because they were premised on Commercial Code section 3301,
which has no application to nonjudicial foreclosures. Second, the court disregarded the
SAC’s allegation that JPMorgan did not have an interest in Migdal’s deed of trust based
on the sham pleading doctrine or, alternatively, because “judicially noticeable documents




                                              5
demonstrate that the SAC lacks merit.”3 The court did not separately address the alleged
irregularities in the notice of default and notice of trustee’s sale.
       The court entered judgment against Migdal on August 20, 2012. Migdal timely
appealed on September 21, 2012.
II.    DISCUSSION
       A.     The Standard of Review
       We review an order sustaining a demurrer de novo, exercising our independent
judgment as to whether a cause of action has been stated as a matter of law. (Moore v.
Regents of University of California (1990) 51 Cal.3d 120, 125.) Because a demurrer tests
only the legal sufficiency of the pleading, the facts alleged in the pleading are deemed to
be true. (Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.)
We do not review the validity of the trial court’s reasoning, and therefore will affirm its
ruling if it was correct on any theory. (Ibid.) Nor are we “limited to plaintiff[’]s theory
of recovery in testing the sufficiency of [its] complaint against a demurrer, but instead
must determine if the factual allegations of the complaint are adequate to state a cause of
action under any legal theory.” (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d
94, 103 (Barquis).)
       “Where a demurrer is sustained without leave to amend, [we] must determine
whether there is a reasonable probability that the complaint could have been amended to
cure the defect; if so, [we] will conclude that the trial court abused its discretion by
denying the plaintiff leave to amend. [Citation.] The plaintiff bears the burden of
establishing that it could have amended the complaint to cure the defect.” (Berg & Berg
       3
        In connection with the demurrer to the SAC, the court took judicial notice of
copies of (1) the deed of trust; (2) the P & A Agreement; (3) an affidavit of the FDIC
recorded in the state of Washington stating that “JPMorgan Chase certain of the assets,
including all of the loans and all loan commitments, of Washington Mutual”; (4) a notice
of default and election to sell under deed of trust filed on April 27, 2009; and (5) the
November 18, 2009 and June 10, 2011 notices of trustee’s sale.

                                               6
Enterprises, LLC v. Boyle, supra, 178 Cal.App.4th at p. 1035.)

         B.    The SAC Properly Alleges That JPMorgan Did Not Obtain Assignment of
               the Deed of Trust From WaMu
         Before we can assess the sufficiency of the SAC, we must determine what facts it
properly alleges. Therefore, we begin by considering whether the trial court erred in
disregarding the allegation that JPMorgan never obtained an assignment of Migdal’s deed
of trust. The court refused to consider that allegation based on the sham pleading
doctrine and unspecified “judicially noticeable documents.” Neither justification has
merit.
         “Under the sham pleading doctrine, plaintiffs are precluded from amending
complaints to omit harmful allegations, without explanation, from previous complaints to
avoid attacks raised in demurrers or motions for summary judgment.” (Deveny v.
Entropin, Inc. (2006) 139 Cal.App.4th 408, 425 (Deveny), italics added.) “If a party files
an amended complaint and attempts to avoid the defects of the original complaint by
either omitting facts which made the previous complaint defective or by adding facts
inconsistent with those of previous pleadings, the court may take judicial notice of prior
pleadings and may disregard any inconsistent allegations.” (Colapinto v. County of
Riverside (1991) 230 Cal.App.3d 147, 151.) “The sham pleading doctrine is not ‘
“intended to prevent honest complainants from correcting erroneous allegations . . . or to
prevent correction of ambiguous facts.” ’ ” (Deveny, supra, at p. 426.) “Instead, it is
intended to enable courts ‘ “to prevent an abuse of process.” ’ ” (Ibid.) Therefore, “the
party who made the pleadings must be allowed to explain the changes.” (Ibid.)
         There can be no dispute that the SAC omits an allegation from the initial
complaint that would be fatal to Migdal’s current theory--namely, that WaMu assigned
the deed of trust to JPMorgan. Instead, the SAC alleges the opposite--that WaMu did not
assign the deed of trust to JPMorgan, but rather sold it to an unidentified third party.
However, the sham pleading doctrine does not apply here because Migdal offered a

                                              7
plausible explanation for the amendment, i.e., that it was not until defendants opposed his
request for a preliminary injunction that he learned they did not have any documents
directly connecting his deed of trust to JPMorgan.4 (Deveny, supra, 139 Cal.App.4th at
p. 426 [“the sham pleading doctrine does not apply because [plaintiff’s attorney] offered
a plausible explanation for the amendment, i.e., that he had erred in relying on [certain
data] as the basis for the complaint because further discovery and consultation with
experts had shown that such data was inconclusive.”].)
       Nor do the documents defendants submitted for judicial notice justify disregarding
the allegation. “[F]acts alleged, which are contrary to those facts of which judicial notice
is taken, cannot be regarded as true.” (Arnold v. Universal Oil Land Co. (1941) 45
Cal.App.2d 522, 529.) But nothing in the judicially noticed documents contradicts the
allegation that WaMu sold Migdal’s deed of trust before the P & A Agreement was
executed, as the documents do not show whether WaMu still owned the deed of trust at
the time the P & A Agreement was executed.
       C.     California’s Nonjudicial Foreclosure Scheme
       In California, the financing or refinancing of real property generally is
accomplished by the use of a deed of trust. (Calvo v. HSBC Bank USA, N.A. (2011) 199
Cal.App.4th 118, 125.) Under a deed of trust, the borrower conveys nominal title to
property to an intermediary, the “trustee,” who holds that title as security for repayment
of the loan to the lender, or “beneficiary.” (Kachlon v. Markowitz (2008) 168
Cal.App.4th 316, 334.) “When the [borrower] defaults on the debt secured by the deed of
trust, the beneficiary may declare a default and make a demand on the trustee to


       4
          Contrary to the trial court’s suggestion, the record does not indicate that Migdal’s
counsel should be blamed for initially alleging, on information and belief, that JPMorgan
acquired an interest in Migdal’s deed of trust pursuant to the P & A Agreement. The
existence (or nonexistence, as the case may be) of documents establishing the chain of
title to the deed of trust is knowledge that lies exclusively with the defendants.

                                              8
commence foreclosure.” (Ibid.)
       The California Legislature has established a comprehensive set of legislative
procedures governing such nonjudicial foreclosures. (See Debrunner v. Deutsche Bank
National Trust Co. (2012) 204 Cal.App.4th 433, 440 (Debrunner); Civ. Code, §§ 2924-
2924k.) “ ‘The purposes of this comprehensive scheme are threefold: (1) to provide the
creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting
debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3)
to ensure that a properly conducted sale is final between the parties and conclusive as to a
bona fide purchaser.’ ” (Debrunner, supra, at p. 440.) Civil Code section 2924,
subdivision (a)(1), broadly allows a trustee, mortgagee, beneficiary, or any of their agents
to initiate nonjudicial foreclosure by recording a notice of default and election to sell.

       D.     Migdal Failed to State a Claim Based on Defendants’ Alleged Lack of
              Authority to Foreclose
       The primary theory underlying Migdal’s sole claim against defendants is that they
have no beneficial interest in the property under section 3301 of the Commercial Code,
which governs the enforceability of negotiable instruments. But, given the
comprehensive nature of California’s nonjudicial foreclosure scheme, this court has
refused to apply Commercial Code section 3301 to nonjudicial foreclosure under deeds of
trust. (Debrunner, supra, 204 Cal.App.4th at p. 441 [“we are not convinced that the cited
sections of the California Uniform Commercial Code (particularly § 3301) displace the
detailed, specific, and comprehensive set of legislative procedures the Legislature has
established for nonjudicial foreclosures”].) Numerous federal courts applying California
law have done the same. (See Spence v. Wells Fargo Bank, N.A. (E.D.Cal., May 3, 2011)
(No. 1:10-cv-02057-IWW-GSA) [2012 U.S. Dist. LEXIS 32838]; Padayachi v. IndyMac
Bank (N.D.Cal., Oct. 28, 2010) (No. C 09-5545 JF (PVT)) [2010 U.S. Dist. LEXIS
120963]; Quintero Family Trust v. OneWest Bank, F.S.B. (S.D. Cal., Jan. 27, 2010) (No.
09-CV-1561-IEG (WVG)) [2010 U.S. Dist. LEXIS 6618]; Gaitan v. Mortgage Electronic

                                              9
Registration Systems (C.D. Cal., Oct. 5, 2009) (No. ED CV-09-1009 VAP MANX) [2009
U.S. Dist. LEXIS 97117].) In view of the foregoing authority, we agree with the trial
court that Migdal cannot state an actionable claim based on Commercial Code section
3301.
        However, we are not “limited to plaintiff[’]s theory of recovery in testing the
sufficiency of [his] complaint against a demurrer, but instead must determine if the
factual allegations of the complaint are adequate to state a cause of action under any legal
theory.” (Barquis, supra, 7 Cal.3d at p. 103.) Accordingly, we must consider whether
the SAC states a claim for declaratory relief on the issue of whether defendants have the
authority to initiate nonjudicial foreclosure under any other theory.
        California courts have held that a debtor has no right to pursue preemptive judicial
action, such as a claim for declaratory relief, to challenge the authority of a foreclosing
party to initiate and pursue foreclosure. (See Gomes v. Countrywide Home Loans, Inc.
(2011) 192 Cal.App.4th 1149, 1155 (Gomes) [California’s nonjudicial foreclosure
scheme does not “provide for a judicial action to determine whether the person initiating
the foreclosure process is indeed authorized”]; Jenkins v. JPMorgan Chase Bank, N.A.
(2013) 216 Cal.App.4th 497, 513 [refusing to find implied authority for a preemptive
judicial action to determine whether a defendant has the authority to initiate nonjudicial
foreclosure, as doing so “would result in the impermissible interjection of the courts into
a nonjudicial scheme enacted by the California Legislature”]; Robinson v. Countrywide
Home Loans, Inc. (2011) 199 Cal.App.4th 42, 46 [“the statutory scheme ([Civ. Code,] §§
2924-2924k) does not provide for a preemptive suit challenging standing”].) Case law
suggests “a potential exception, however, where there is ‘a specific factual basis for
alleging that the foreclosure was not initiated by the correct party.’ ” (Gates v. LPP
Mortg., Inc. (C.D. Cal., Dec. 30, 2013) (CV 13-8737 DSF PLAX) [2013 U.S. Dist.
LEXIS 183638 at p. 6]; see also Gomes, supra, at p. 1156 [noting that plaintiff “has not
asserted any factual basis to suspect that [defendant] lacks authority to proceed with the
                                             10
foreclosure”].) Indeed in Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1094
the court concluded that there exists “ ‘a valid cause of action for wrongful foreclosure’ ”
where the plaintiff “allege[s] facts that show the defendant who invoked the power of sale
was not the true beneficiary.”
       Here, Migdal arguably alleges sufficient facts showing JPMorgan is not the
beneficiary of the deed of trust. (See Barrionuevo v. Chase Bank, N.A. (N.D. Cal. 2012)
885 F.Supp.2d 964, 973-974 [denying JPMorgan’s motion to dismiss wrongful
foreclosure claim where plaintiff alleged that original lender WaMu had sold deed of
trust at issue prior to JPMorgan’s 2008 acquisition of WaMu’s assets].) But even
assuming Migdal’s allegations are sufficient, he still failed to state a viable wrongful
foreclosure cause of action because he did not allege “facts showing that [he] suffered
prejudice as a result of any lack of authority of the parties participating in the foreclosure
process.” (Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219
Cal.App.4th 75, 85 [affirming order sustaining demurrer without leave to amend where
plaintiff showed no prejudice arising from defendants’ alleged lack of authority to
foreclose].) Any transfer of the deed of trust did not change Migdal’s obligations, and,
like the plaintiffs in Siliga, he “do[es] not dispute that [he is] in default” of those
obligations. (Ibid.) Despite having been in default for over four years, Migdal continues
to occupy the property. Migdal does not allege that defendants interfered with his
payments under the loan or that the proper entity “would have refrained from foreclosure
in these circumstances.” (Ibid.; see also Herrera v. Federal National Mortgage Assn.
(2012) 205 Cal.App.4th 1495, 1507-1508 [affirming order sustaining demurrer to
wrongful foreclosure action without leave to amend where plaintiffs were not
prejudiced].)
       In his appellate briefs, Migdal argues that he has established prejudice by alleging
the threat of losing his home through nonjudicial foreclosure. As Migdal points out,
federal courts have held that “ ‘the threat of foreclosure by the wrong party would
                                               11
certainly be sufficient to constitute prejudice to the homeowner because there is no power
of sale without a valid notice of default.’ ” (Mena v. JP Morgan Chase Bank, N.A. (N.D.
Cal., Sept. 7, 2012) (No. 12-1257 PSG) [2012 U.S. Dist. LEXIS 128585 at pp. 25-26],
quoting Tamburri v. Suntrust Mortg., Inc. (N.D. Cal. Dec. 15, 2011) (No. C-11-2899
EMC) [2011 U.S. Dist. LEXIS 144442].) But “ ‘federal decisional authority is neither
binding nor controlling in matters involving state law.’ ” (Nagel v. Twin Laboratories,
Inc. (2003) 109 Cal.App.4th 39, 55.) While we likewise “are not bound by precedents
created by other appellate courts,” we find the reasoning set forth in Siliga more
persuasive than that of the federal decisions on which Migdal relies. (California Clean
Energy Committee v. City of San Jose (2013) 220 Cal.App.4th 1325, 1345, fn. 8.)
Accordingly, we conclude Migdal has not shown prejudice, and his cause of action must
fail.5 (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 (Fontenot)
[“[A] plaintiff in a suit for wrongful foreclosure has generally been required to
demonstrate [that] the alleged imperfection in the foreclosure process was prejudicial to
the plaintiff’s interests.”].)

               E.      Migdal Fails to State a Claim Based on Alleged Procedural
                       Irregularities in the Notice of Default and Notice of Trustee’s Sale
       As a separate ground for his cause of action for declaratory relief, Migdal asserted
certain irregularities in the notice of default and the first notice of trustee’s sale. With

       5
         At oral argument, Migdal claimed that if JPMorgan is allowed to foreclose on the
property, he would lose the protections of the anti-deficiency statute if the actual owner,
whoever that may be, subsequently sought to enforce the note against him. Even if this
were an accurate statement of the law, we decline to consider it. Migdal made no such
allegation in his pleadings below, nor did he make this assertion to the trial court in either
of the hearings on defendants’ demurrers. It was not raised in his appellate briefs. This
court may not “rewrite the complaint based on new facts raised for the first time on
appeal. While we may consider on appeal whether the trial court abused its discretion in
not granting leave to amend, we look only to the [operative complaint] and any new facts
raised in the trial court during the hearing on the demurrer.” (Herrera v. Federal
National Mortgage Assn., supra, 205 Cal.App.4th at p. 1506.)

                                              12
respect to the notice of default, Migdal alleged that “the person signing the notice of
default had no personal knowledge of the facts stated therein” and “[t]he amount stated as
due was inaccurate.” He also alleged that the first notice of trustee’s sale was forged by a
robo-signer. None of these allegations is sufficient to state a claim for wrongful
foreclosure.
       Migdal’s “personal knowledge” allegation appears to be based on Civil Code
section 2923.5, subdivision (b), which requires that a notice of default “include a
declaration that the mortgage servicer has contacted the borrower, has tried with due
diligence to contact the borrower as required by this section, or that no contact was
required because the individual did not meet the definition of ‘borrower’ pursuant to
subdivision (c) of Section 2920.5.” But “[Civil Code] [s]ection 2923.5 does not require
that the compliance statement be signed by a person with personal knowledge.”
(Ghuman v. Wells Fargo Bank, N.A. (E.D. Cal., Feb. 13, 2013) (1:12-CV-00902-AWI)
[2013 U.S. Dist. LEXIS 19647 at p. 24]; see also Mabry v. Superior Court (2010) 185
Cal.App.4th 208, 233 [“The way [Civil Code] section 2923.5 is set up, too many people
are necessarily involved in the process for any one person to likely be in the position
where he or she could swear that all three requirements of the declaration required by
subdivision (b) were met.”].) Nor, in our research, have we found any other provision
imposing a personal knowledge requirement. Accordingly, Migdal’s allegation that the
notice of default was signed by someone lacking personal knowledge of its contents is
insufficient to state a claim for wrongful foreclosure.
       Migdal’s allegation that the notice of default stated the incorrect amount also fails
to state a claim because the notice of default “need not . . . state the amounts which are in
default; it need only describe the nature of the breach.” (Middlebrook-Anderson Co. v.
Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038, citing Civ. Code, §
2924.) Consequently, the notice of default is neither statutorily deficient, nor invalid.
Moreover, assuming the amount listed in the notice of default was incorrect, Migdal
                                             13
alleges no resulting prejudice. (Fontenot, supra, 198 Cal.App.4th at p. 271.) Migdal
does not deny that he defaulted, nor does he allege that he could or would have cured the
default by paying the lesser amount he did owe.
       Migdal’s robo-signing allegations fail to state a claim because, again, Migdal fails
to allege facts showing that he suffered prejudice as a result of any lack of authority on
the part of the party signing the first notice of trustee’s sale. (Knapp v. Doherty (2004)
123 Cal.App.4th 76, 94 [“courts have rejected claims of deficient notice [of sale] where
no prejudice was suffered as a result of the procedural irregularity”].) Significantly, it is
undisputed that the foreclosure sale noticed in that first notice of trustee’s sale never took
place. And a second notice of trustee’s sale, the validity of which Migdal does not
contest, has since been issued. Under these circumstances, we cannot imagine how
Migdal could have been prejudiced by any deficiencies in the first notice of trustee’s sale.
       Finally, we conclude the trial court did not abuse its discretion in denying Migdal
leave to amend as Migdal has failed to meet his burden of demonstrating a reasonable
possibility that an amendment could cure the pleading defects we have identified.




                                              14
III.   DISPOSITION
       The judgment is affirmed. Defendants JPMorgan Chase Bank and California
Reconveyance Company shall recover their costs on appeal.




                                                            Premo, J.




       WE CONCUR:




             Rushing, P.J.




             Márquez, J.




                                         15
