Filed 12/16/14 McDowell v. Aurora Loan Services 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE

SYLVIA MCDOWELL et al.,
         Plaintiffs and Appellants,
                                                                     A139140
v.
AURORA LOAN SERVICES LLC et al.,                                     (Alameda County
                                                                     Super. Ct. No. RG10-534281)
         Defendants and Respondents.


         Sylvia McDowell and Maurice Michael McDowell sued respondent Aurora Loan
Services LLC (Aurora) and others for attempting a foreclosure in violation of Civil Code
section 2924, based on Aurora’s alleged failure to record a valid notice of default before
recording a notice of the sale of their property. The McDowells contend the trial court
erred in (1) granting summary judgment against them, (2) denying their motion for a new
trial, and (3) striking their request for attorney fees. We will affirm.

                               I. FACTS AND PROCEDURAL HISTORY

         A. The Loan
         To purchase a four-unit building in Alameda, Sylvia McDowell (Sylvia) obtained
a mortgage loan in February 2006 and signed a $641,250 promissory note, secured by a
deed of trust against the property. Sylvia’s son, Maurice Michael McDowell (Mike),
lives at the property.1


1
        Because they have the same last name, we refer to appellants by their first names
for clarity, without disrespect.

                                                             1
               1. The McDowells’s Defaults
       By October 2006, Sylvia was three months behind on her payments and in default
on the loan. After Aurora discussed loss mitigation options with her in November and
December 2006, she entered into a forbearance agreement in February 2007, by which
she acknowledged her default and promised payment. The foreclosure process was
suspended. Sylvia failed to pay as agreed, however, and the loan was referred to
foreclosure.
       In March 2008, Sylvia again acknowledged her default and promised to make
payments, and the foreclosure process was suspended a second time. But Sylvia again
failed to pay as agreed.
       Under a loan assumption agreement signed in September 2008, Mike was added to
the loan and both Sylvia and Mike became liable under the note and deed of trust. By
November 2008, however, the McDowells stopped making payments and failed to pay
taxes on the property.
       From November 2008 through January 2009, Aurora attempted to contact the
McDowells regarding the delinquency and loss mitigation options. The McDowells told
Aurora at one point that they did not know when they could make a payment. According
to Aurora, the McDowells otherwise failed to respond to Aurora’s correspondence and
voicemail messages. On February 4, 2009, Aurora restarted the foreclosure process.

               2. February 2009 Notice of Default and Notice of Trustee’s Sale
       On February 5, 2009, a notice of default and election to sell under the deed of trust
was recorded. A notice of trustee’s sale announced Aurora’s intent to sell the property at
a public auction on May 26, 2009, if the McDowells did not bring the loan current.
       Five days before the auction date, the McDowells and Aurora entered into another
agreement by which the foreclosure process was suspended (May 2009 Agreement). In
this agreement, the McDowells acknowledged that the foreclosure process could resume
without further notice if they defaulted again. The McDowells subsequently failed to pay
as agreed, and the foreclosure process resumed.



                                             2
                3. July 2009 Trustee’s Sale
         The property was sold at a trustee’s sale on July 9, 2009. A trustee’s deed to
Aurora was recorded on July 23, 2009.

         B. Aurora’s 2009 Unlawful Detainer Litigation
         On July 30, 2009, Aurora filed an unlawful detainer action against the McDowells,
seeking to have them removed from the property. Aurora alleged that it had acquired
ownership and title to the property at the trustee’s sale in compliance with Civil Code
section 2924 et seq., and all applicable statutory requirements had been satisfied for the
sale.2
         The McDowells denied that Aurora had complied with section 2924 and asserted
an affirmative defense based on Aurora’s alleged failure to comply with section 2923.5.
Section 2923.5 generally requires mortgage beneficiaries to confer with borrowers, or
attempt to do so with due diligence, before recording a notice of default, and to include
with the notice of default a declaration of their compliance.
         In addition, the McDowells filed a cross-complaint against Aurora seeking to set
aside the trustee’s sale and obtain other relief based on Aurora’s failure to comply with
section 2923.5. A default on the cross-complaint was entered against Aurora in
September 2009.
         After a trial on Aurora’s unlawful detainer complaint, the court issued a tentative
decision and proposed statement of decision in favor of the McDowells on May 17, 2010.
The court noted the McDowells’s claim that Aurora’s notice of default and the trustee’s
deed were subject to the requirements of section 2923.5, subdivision (b), and that Aurora
had not complied with the statute’s due diligence requirements or provided a suitable
declaration setting forth its efforts to contact the borrowers. The court observed that, at
trial, Aurora never introduced the notice of default into evidence; the McDowells testified
that Aurora had never contacted them before the February 2009 notice of default; and
Aurora had failed to respond to the McDowells’s allegations in their cross-complaint.

2
         Unless otherwise indicated, all statutory references hereafter are to the Civil Code.

                                               3
Further, the court observed, the declaration on the notice of default averring compliance
with section 2923.5, subdivision (b) did not constitute a declaration under Code of Civil
Procedure section 2015.5. The court concluded: “The court finds that in order for
[Aurora] to prove its right to possession of the property, it has the burden of proving that
it perfected title to the property in compliance with the law. Unfortunately, [Aurora] has
not proven that it complied with the declaration requirements of [section 2923.5].
Therefore, once again, [Aurora] has not complied with the law and cannot obtain
possession.”3
         On June 10, 2010, judgment was entered in the unlawful detainer action, finding
that Aurora was not entitled to recover possession of the premises, and deeming the July
2009 trustee’s deed to be canceled and rescinded.
         In July 2010, Aurora filed a notice of appeal, but abandoned the appeal a few days
later.

         C. Aurora’s New Notice of Trustee’s Sale
         The McDowells’s loan remained in default. Without issuing a new notice of
default, Aurora caused the issuance of a new notice of trustee’s sale in August 2010,
setting a foreclosure sale date of September 7, 2010.

         D. The Present Litigation

                1. The McDowells’s Initial Complaint and Injunctive Relief
         On September 1, 2010, the McDowells filed their complaint in this action, seeking
injunctive relief and asserting a cause of action for wrongful foreclosure based on the


3
       The parties recognize that the trial court’s ruling may conflict with Mabry v.
Superior Court (2010) 185 Cal.App.4th 208 (Mabry), which was issued after the trial
court’s order but before entry of judgment. Mabry ruled that a declaration under section
2923.5 did not have to be “custom drafted”; it was sufficient “that the notice track the
language of the statute itself,” and the only remedy available for a violation of section
2923.5 was a postponement of the foreclosure sale. (Mabry, supra, 185 Cal.App.4th at
p. 235.) The McDowells assert that it is irrelevant if the trial court’s ruling is contrary to
Mabry because the judgment in the unlawful detainer action has become final. We need
not address the issue.

                                              4
allegation that Aurora violated sections 2924 through 2924k by causing the August 2010
notice of trustee’s sale to be recorded without first recording a new notice of default and
election to sell.
       On September 2, 2010, the court issued a temporary restraining order precluding
Aurora from conducting a trustee’s sale of the property. In November 2010, the court
granted a similar preliminary injunction, on the condition that the McDowells make
monthly payments of $3,900.30 for six months. In April 2011, the court dissolved the
preliminary injunction; Aurora explains it was dissolved because the McDowells had
failed to make the required payments.4

               2. First Amended Complaint
       In January 2011, the McDowells filed their first amended complaint, seeking a
permanent injunction and alleging causes of action for wrongful foreclosure, declaratory
relief, and quiet title.
       In February 2011, Aurora caused to be recorded a Notice of Rescission of the
Notice of Default, rescinding the February 2009 notice of default, and a Notice of
Withdrawal of the Notice of Trustee’s Sale of August 2010.
       The McDowells and Aurora then filed motions for judgment on the pleadings. In
September 2011, the court denied the McDowells’s motion and granted Aurora’s motion,
with leave to amend. In granting Aurora’s motion, the court questioned how a wrongful
foreclosure claim could be stated if no foreclosure sale had occurred.

               3. Second Amended Complaint
       In October 2011, the McDowells filed their second amended complaint, asserting
causes of action for an attempted foreclosure in violation of sections 2924 to 2924k,
declaratory relief, and quiet title. They alleged that, when the notice of trustee’s sale was
recorded in August 2010, the only recorded notice of default was the one recorded in

4
        Aurora filed a request for judicial notice on April 1, 2014, seeking judicial notice
of the order dissolving the preliminary injunction as well as an assignment of the deed of
trust from Aurora to another entity, and other documents. We grant the unopposed
request.

                                              5
February 2009, which was the subject of the 2009 unlawful detainer action and rescinded
by Aurora in February 2011. They did not seek injunctive relief.
       Aurora filed a demurrer to the second amended complaint, which the court
overruled in part and sustained in part in March 2012, leading to the dismissal of the
McDowells’s claims for declaratory relief and quiet title. Only the cause of action for a
wrongful attempted foreclosure remained.5

               4. Aurora’s Summary Judgment Motion
       In December 2012, Aurora filed a motion for summary judgment, supported by
declarations and a statement of undisputed material facts, which set forth the facts
summarized ante. In essence, Aurora argued that the McDowells’s claim for an
attempted foreclosure in violation of section 2924 failed as a matter of law because
California does not recognize a cause of action for attempted wrongful foreclosure.
Further, Aurora argued, the McDowells were barred from pursuing the claim because
Sylvia does not reside in the property, they waived their right to a new notice of default,
they had unclean hands, and they failed to establish the elements of a claim for wrongful
foreclosure.
       The McDowells opposed the motion, insisting there must be a cause of action
when a creditor has attempted to conduct a nonjudicial foreclosure sale without following
California statutes requiring the service of a notice of default. The McDowells also
addressed the remainder of Aurora’s arguments.
       On March 5, 2013, the court granted Aurora’s motion for summary judgment.
First, the court concluded there was no cause of action for wrongful attempted
foreclosure: “Having reviewed the parties’ written submissions, the Court agrees with
Defendant’s assertion that California does not recognize a cause of action for Wrongful

5
        In February 2013, the court denied the McDowells’s motion for leave to file a
third amended complaint. The court also noted that the McDowells did not appear to
have a valid claim for attorney fees, and set a hearing on an order to show cause
regarding its intent to strike their attorney fees request from the second amended
complaint. The parties represent that the court ultimately struck the McDowells’s request
for attorney fees in March 2013, but they provide no citation to the record.

                                             6
Attempted Foreclosure. [Citations.]” Second, the court found the McDowells had not
suffered any damages: “The Court also holds that Plaintiffs have not shown that they
have sustained any damages based upon their wrongful attempted foreclosure theory.
Plaintiffs’ assertion that they were damaged because they were forced to incur attorney’s
fees and related costs is without merit.” Finally, the court took judicial notice of a prior
order in the case, which indicated that the McDowells had argued in opposition to a
demurrer that they were not seeking an injunction.
       A judgment of dismissal was entered on March 26, 2013.

               5. The McDowells’s New Trial Motion
       In April 2013, the McDowells sought a new trial on the ground that the court had
erred in concluding there was no cause of action for wrongful attempted foreclosure. The
motion was denied on May 29, 2013.

               6. Appeal
       The McDowells’s notice of appeal challenges the judgment and the order denying
a new trial.

                                     II. DISCUSSION
       We have considered all of the McDowells’s contentions and address them to the
extent necessary to resolve the appeal.

       A. Summary Judgment
       In reviewing the grant of summary judgment, we conduct an independent review
to determine whether there is a triable issue of material fact and the moving party is
entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.) We construe the moving party’s
evidence strictly, and the nonmoving party’s evidence liberally, in determining whether
there is a triable issue. (See D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1,
20; Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66,
72 (Thomas).)



                                              7
       A defendant seeking summary judgment must show that at least one element of
the plaintiff’s cause of action cannot be established, or that there is a complete defense to
the cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) The burden then shifts to the
plaintiff to show there is a triable issue of material fact on that issue. (See Code Civ.
Proc., § 437c, subd. (p)(2); Thomas, supra, 98 Cal.App.4th at p. 72.)
       In the matter before us, only the purported cause of action for an attempted
foreclosure in violation of section 2924 remained in the second amended complaint. The
McDowells based this claim on the allegation that Aurora had violated sections 2924
through 2924k because it failed to issue a new notice of default before it issued the
August 2010 notice of sale. Section 2924 provides that, to exercise the power of sale in a
trust deed or mortgage, “[t]he trustee, mortgagee, or beneficiary, or any of their
authorized agents shall first file for record, in the office of the recorder of each county
wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice
of default.” (§ 2924, subd. (a)(1).)
       We consider (1) whether there is a cognizable cause of action for wrongful
attempted foreclosure—that is, for wrongful foreclosure before a foreclosure sale; and
(2) whether the McDowells’s claim fails for lack of evidence of damages.

              1. Cause of Action Issue
       Courts have recognized a cause of action for wrongful foreclosure where a
foreclosing party has failed to follow the requirements for foreclosure set forth in section
2924. Although the parties in this case phrase the debate as whether there is a cause of
action for attempted wrongful foreclosure or wrongful attempted foreclosure, a more
precise statement of the issue is this: May a cause of action be maintained for failure to
follow the statutory requirements pertinent to foreclosure, where, as here, a foreclosure
sale has not yet occurred?
       We begin with a look at the cause of action for wrongful foreclosure. “Wrongful
foreclosure is an action in equity, where a plaintiff seeks to set aside a foreclosure sale.”
(Santos v. Countrywide Home Loans (E.D.Cal., Nov. 6, 2009, No. Civ. 2:09-02642) 2009



                                              8
WL 3756337 at p. *3 (unpub.) (Santos), italics added.) It may also allow a plaintiff to
recover damages incurred as a result of the wrongful sale. (Munger v. Moore (1970)
11 Cal.App.3d 1, 7 [“[The] rule is that a trustee or mortgagee may be liable to the trustor
or mortgagor for damages sustained where there has been an illegal, fraudulent or
wilfully oppressive sale of property under a power of sale contained in a mortgage or
deed of trust”].) An unlawful or fraudulent sale is a required element of the cause of
action. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 [citing elements as
unlawful or fraudulent sale, prejudice to the borrower, and tender or excuse from
tender].)
       If the foreclosure sale has not occurred, there is no sale to set aside, and the
damages that would have arisen from a sale have not been incurred. For this reason, it is
frequently said that there is no claim for wrongful foreclosure unless a foreclosure sale
has taken place. (E.g., Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D.Cal. 2010) 732
F.Supp.2d 952, 961 [wrongful foreclosure claim, based on lack of authority to foreclose
under § 2924 due to the failure to contact the borrower before issuing a notice of default
in violation of § 2923.5, was premature because no foreclosure sale had taken place];
Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F.Supp.2d 1104, 1113 [a
wrongful foreclosure claim, based on an alleged violation of § 2923.5, is premature
before the foreclosure sale]; see Robinson v. Countrywide Home Loans, Inc. (2011) 199
Cal.App.4th 42, 46 [no legal basis for claim seeking damages or declaratory relief to
determine whether foreclosing party had authority to foreclose (on ground it was neither
the current beneficiary of the deed of trust or its agent), because §§ 2924–2924k do not
provide for a “preemptive suit challenging standing”]; Gomes v. Countrywide Home
Loans, Inc. (2011) 192 Cal.App.4th 1149, 1155 [borrower could not sue before the
foreclosure sale to determine a nominee’s authorization to proceed with foreclosure on
behalf of the note holder, because such actions “would fundamentally undermine the




                                              9
nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for
the purpose of delaying valid foreclosures”].) 6
       Calling it a claim for wrongful attempted foreclosure does not change the result.
(See Santos, supra, 2009 WL 3756337 at p. *3 [no cause of action for “wrongful
threatened foreclosure” based on a failure to comply with § 2924, and “the overwhelming
majority of states like California who provide for nonjudicial foreclosure, do not
recognize such a cause of action”]; see also Reese v. First Mo. Bank & Trust Co.
(Mo. 1987) 736 S.W.2d 371, 373, fn. 4 [out of the 29 states that conduct nonjudicial
foreclosures, only Georgia, Massachusetts, and North Carolina recognize a cause of
action for attempted wrongful foreclosure].)
       On the other hand, courts have allowed a pre-sale wrongful foreclosure claim to
proceed to the extent it sought injunctive relief—such as a postponement of the
foreclosure sale—in order to prevent the future sale and resulting harm. (Nguyen v.

6
       Numerous federal decisions express this general point of view. (E.g., Schneider v.
Bank of America N.A. (E.D.Cal., Mar. 26, 2013, No. 2:11-cv-2953) 2013 WL 1281902 at
p. *27 (unpub.) [wrongful foreclosure claim, based on an alleged failure to provide and
post proper notice of sale and default under § 2924, subd. (b) is premature before the
foreclosure sale]; Martin v. Litton Loan Servicing LP (E.D.Cal., Jan. 16, 2013, No. 2:12-
cv-00970) 2013 WL 211133 at p. *10 (unpub.) [wrongful foreclosure claim, based on
erroneous amount on notice of default and other grounds, is premature before the
foreclosure sale]; Pugh v. JPMorgan Chase Bank, N.A. (E.D.Cal., Oct. 22, 2013, No.
2:13-cv-01141) 2013 WL 5739147 at p. *3 (unpub.) [wrongful foreclosure claim, based
on defendants’ alleged lack of power to exercise power of sale, is premature before
foreclosure sale]; McGuire v. Recontrust Co., N.A. (E.D.Cal., Sep. 30, 2012, No. CIV
S-11-2787) 2012 WL 4510675 at p. *3 (unpub.) [no party can be liable for wrongful
foreclosure under § 2924 in the absence of a foreclosure sale]; Swanson v. EMC Mortg.
Corp. (E.D.Cal., Oct. 29, 2009, No. CV F-09-1507) 2009 WL 3627925 at p. *12 (unpub.)
[wrongful foreclosure claim is premature before the foreclosure sale]; Ramirez v. Kings
Mortg. Servs., Inc. (E.D.Cal., Nov. 8, 2012, No. 1:12-cv-01109) 2012 WL 5464359 at
p. *6 & fn. 1 (unpub.) [same]; Bogdan v. Countrywide Home Loans (E.D.Cal., Mar. 26,
2010, No. CIV-F-09-1055) 2010 WL 1241540 at p. *8 (unpub.) [same]. Accord
Schneider v. Bank of America N.A. (E.D.Cal., May 21, 2014, No. CIV S-11-2953) 2014
WL 2118327 at p. *14, fn. 36 [not all wrongful foreclosure claims before foreclosure sale
are premature, citing Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th
1250, which, as discussed post, allowed claims for declaratory relief and injunctive relief
based on wrongful foreclosure before the foreclosure sale].)

                                             10
JPMorgan Chase Bank N.A. (N.D.Cal., May 15, 2013, No. 12-CV-04183) 2013 WL
2146606 at p. *4 (unpub.) (Nguyen) [injunctive relief sought after foreclosing party
recorded a notice of sale, which reflected the intent to sell the property]; Vong v. Bank of
America, N.A. (E.D.Cal., May 22, 2013, No. CIV. S-12-2860) 2013 WL 2254243 at p. *8
& fn. 20 (Vong) [claim to enjoin foreclosure sale, where notice of sale pending];
see Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1057
(Intengan) [declaration of compliance with § 2923.5 was insufficient to sustain demurrer
to wrongful foreclosure claim that would postpone foreclosure sale pending statutory
compliance]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250,
1280-1281 [failure to tender indebtedness did not bar claim for declaratory relief or
injunctive relief based on wrongful foreclosure, before foreclosure sale].) In short, a
cause of action for wrongful foreclosure, before a foreclosure sale, may remain in the
case as the basis for injunctive relief. (Vong, supra, 2013 WL 2254243 at p. *8 & fn. 20
[although wrongful foreclosure claim is permissible to enjoin a foreclosure sale, based on
the allegation of failure to comply with § 2923.5 before recording the notice of default,
the claim is premature “[t]o the degree plaintiff seeks damages arising from a wrongful
foreclosure due to an alleged lack of authority to foreclose”].)
       Here, the McDowells’s second amended complaint—the operative pleading at the
time of the summary judgment motion—does not seek injunctive relief. It seeks only
damages (in the form of attorney fees and costs, discussed post). Indeed, the McDowells
represented in their opposition to a demurrer that they were not seeking an injunction.
Furthermore, Aurora withdrew the notice of the sale of the property, and the parties’
evidentiary submissions disclosed no imminent foreclosure sale to be enjoined. Because
there has been no foreclosure sale and the McDowells’s operative pleading does not seek
to enjoin one, the McDowells have no cause of action as a matter of law.
       The McDowells’s arguments to the contrary are unpersuasive. Primarily, they rely
on our decision in Intengan, supra, 214 Cal.App.4th 1047. There, a borrower had
asserted a wrongful foreclosure claim based on, inter alia, the alleged failure to contact
her before the notice of default was issued, in violation of section 2923.5. (Id. at


                                             11
p. 1052.) No foreclosure sale had yet occurred, although a notice of sale had been
recorded. (Id. at pp. 1050, 1053.) The trustee and mortgage servicer filed a demurrer and
sought judicial notice of a declaration attached to the notice of default, averring that the
servicer had complied with the statute. (Id. at p. 1056.) We concluded that judicial
notice could not be taken of the facts asserted in the declaration, and in any event the
declaration’s averments would only create a factual dispute precluding dismissal at the
demurrer stage. (Id. at pp. 1057-1058.) On that basis, we found that the borrower had
stated a cause of action for wrongful foreclosure. (Id. at p. 1058.) We also noted,
however, that there was no remedy for a violation of section 2923.5 except a delay of the
foreclosure sale. (Id. at p. 1058, fn. 4.) In short, the borrower could maintain her cause
of action for wrongful foreclosure, before the foreclosure sale occurred, in order to seek
the injunctive relief of postponing the sale.
       Intengan is certainly of no help to the McDowells. In the first place, Intengan did
not address the precise issue in this case, since there was no argument in Intengan that a
wrongful foreclosure claim could not be maintained due to the absence of a foreclosure
sale. A case is not precedent for a matter it did not decide. (Santisas v. Goodin (1998)
17 Cal.4th 599, 620.) Moreover, the wrongful foreclosure claim recognized in Intengan
sought injunctive relief, and there was a pending notice of sale. Here, the McDowells did
not seek injunctive relief in their second amended complaint, and the undisputed
evidence was that there was no pending notice of sale.
       The McDowells’s reliance on Nguyen is similarly misplaced. There, the court
stated, “As the complaint prays for an injunction based on allegedly wrongful
foreclosure, the court finds it appropriate to examine the merits of the wrongful
foreclosure claim, even though no sale has yet taken place.” (Nguyen, supra, 2013 WL




                                                12
2146606 at p. *4, italics added.) Here, the operative pleading in this case—the
McDowells’s second amended complaint—does not pray for an injunction.7

              2. No Damages
       Even if the law recognized a pre-sale cause of action for damages based on a
violation of section 2924, summary judgment in this case was still appropriate because
the McDowells did not allege, or produce evidence of, any recoverable damages.
       Because no foreclosure sale has occurred, the McDowells have not suffered the
damages customarily awarded in a wrongful foreclosure action. (See Munger, supra,
11 Cal.App.3d at p. 11 [damages awarded in a wrongful foreclosure action are measured
by “the value of the property at the time of the sale in excess of the mortgages and liens
against said property”].) In their second amended complaint, they alleged that they
incurred damages “according to proof, including the out of pocket costs and attorneys’
fees incurred in prosecuting this action.”
       In support of its summary judgment motion, Aurora presented excerpts from the
transcript of Sylvia’s deposition, in which she testified that she had to hire an attorney to
“take care of this,” and her attorney claimed that the out-of-pocket costs alleged in the
second amended complaint referred to statutory costs. From this evidence, it is
reasonable to infer that the McDowells did not incur any damages or loss other than the
costs and fees associated with prosecuting the lawsuit.
       The burden shifted to the McDowells to establish a triable issue of material fact.
In their opposition to the summary judgment motion, the McDowells did not submit




7
        The McDowells also contend that the court in Chavez v. Indymac Mortgage
Services (2013) 219 Cal.App.4th 1052 stated that plaintiffs may enjoin a wrongful
foreclosure sale even if the sale has not occurred. It did not. In Chavez, the court ruled
that the borrower had alleged a claim for breach of a modification agreement and was not
required to allege tender in order to state a cause of action for wrongful foreclosure,
based on a foreclosure sale that had already occurred. (Id. at pp. 1056, 1062.) In any
event, even if Chavez allowed a cause of action to enjoin a sale, the McDowells’s second
amended complaint does not seek to enjoin a sale.

                                             13
evidence of expenses other than those incurred in bringing the lawsuit. There is,
therefore, no triable factual issue.
       The trial court concluded that the McDowells’s attorney fees and costs were not
recoverable damages. The McDowells do not establish that the court was wrong in this
respect. (See Ramirez, 2012 WL 5464359 at p. *7, fn. 1 [“in the absence of a
foreclosure sale, it is difficult to ascertain what damages would be suffered to support” a
claim for attempted wrongful foreclosure, as “any resulting damages would be merely
speculative”].) Instead, they refer us to Intengan, Nguyen, and Vong, pointing out that
those cases allowed a wrongful foreclosure claim before a foreclosure sale. But in those
cases, the borrower had sought injunctive relief. They did not hold that evidence of
damages is unnecessary when injunctive relief is not requested. Nor did they hold that
attorney fees and costs incurred in prosecuting the lawsuit constitute recoverable
damages sufficient to support a cause of action.
       The McDowells fail to establish that the trial court erred in granting summary
judgment.8

       B. Motion for New Trial
       In their motion for a new trial, the McDowells contended the trial court erred in
granting summary judgment because, according to the McDowells’s interpretation of
Intengan, they had a cause of action for an attempted foreclosure in violation of section
2924. The court denied their motion, and the McDowells now claim this was error. As
we have just explained, however, the court did not err in granting summary judgment. It
therefore did not err in denying the motion for a new trial.

       C. Order Striking the McDowells’s Request for Attorney Fees
       In September 2011, the trial court set a hearing on an order to show cause
regarding the court’s intent to strike the McDowells’s request for attorney fees from their
second amended complaint. The McDowells contend the court erred by setting this
8
       Aurora asserts a number of other grounds for affirmance. Because the grounds
relied upon by the trial court were sufficient to resolve this appeal, we need not address
these other grounds.

                                             14
hearing and subsequently striking their claim for attorney fees. Their argument in their
opening brief in this appeal is as follows: “Plaintiffs’ position regarding the trial court’s
action in this regard is set forth in its opposition to the order to show cause (Vol. IV,
AA:934-987), and will not be repeated here, except to say that should this Court agree
with plaintiffs and reverse the order granting summary judgment, plaintiffs should not be
precluded on remand from seeking attorneys’ fees in the trial court.”
       Because we do not reverse the order granting summary judgment, the
McDowells’s request is moot and they fail to establish prejudicial error.

                                     III. DISPOSITION
       The judgment and the order denying appellants’ motion for a new trial are
affirmed.




                                              15
                          NEEDHAM, J.



We concur.




SIMONS, Act. P. J.




BRUINIERS, J.




                     16
