Filed 5/12/15 Popovich v. Wachovia Mortgage Corp. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


DEBORAH POPOVICH,                                                    B251320

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. YC063961)
         v.

WACHOVIA MORTGAGE
CORPORATION, et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Laura C.
Ellison, Judge. Affirmed.
         Law Offices of Jeffrey T. Belton, Jeffrey T. Belton; Trujillo & Winnick, Anthony
W. Trujillo and Alexander H. Winnick for Plaintiff and Appellant.
         Ram, Olson, Cereghino & Kopczynski and Matt J. Malone for Consumer
Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.
         Anglin Flewelling Rasmussen Campbell & Trytten and Robert A. Bailey for
Defendants and Respondents.


                                          _______________________
          Defendants Wachovia Mortgage Corporation and Wells Fargo Bank obtained
summary judgment in this post-foreclosure litigation. Plaintiff Deborah Popovich, the
special administrator of the estate of original plaintiff Larry Delassus, appeals. We
affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

          In September 2007, Delassus obtained a loan secured by a deed of trust from
World Savings Bank, FSB for his home.1 Although the parties dispute the details of the
changes in banking institutions that subsequently occurred, they appear to agree that
World Savings became a Wachovia institution2 and that ultimately Wells Fargo Bank
became the holder of the loan.
          In January 2009, Wachovia advised Delassus that he had become delinquent in
paying his property taxes for the years 2007-2008 and 2008-2009. This was an error; the
taxes were owed on a neighboring property. Wachovia paid the taxes and then increased
Delassus’s minimum loan payment in May 2009 to recover those taxes. Delassus made
no subsequent payments on the loan.

1       Although Delassus disputed this statement of material fact in the trial court, it
appears that he disputed the evidence the defendants supplied to support the statement of
fact rather than the truth of this introductory fact itself. While Delassus disputed the
majority of the statements of material fact made by the defendants in their separate
statement, when the dispute concerns immaterial matters or Delassus’s own papers and
evidence supports the statement of fact we treat the statement as fundamentally
undisputed.

2       Wachovia Mortgage Corporation and Wells Fargo Bank presented evidence to the
trial court that World Savings Bank changed its name to Wachovia Mortgage, FSB and
then became a division of Wells Fargo Bank. Delassus disputed this evidence and
submitted evidence that Wachovia, Inc., the parent company of Wachovia Bank, NA,
acquired all the shares of World Savings Bank’s parent company; that World Savings
sold its assets to Wachovia Bank, NA; and that Wachovia Mortgage, FSB became a
branch of Wells Fargo. While we acknowledge the existence of a factual dispute over the
corporate transitions, resolution of this dispute is not necessary to permit our review of
the summary judgment here. Without deciding the issue, for the purposes of resolution of
this appeal we assume that both Wachovia Mortgage Corporation and Wells Fargo Bank
are responsible for all lender activity in this action.

                                              2
       On July 16, 2010, a notice of default was recorded against the property. A
trustee’s sale of the home was scheduled, but Delassus filed this suit and obtained a
temporary restraining order barring the sale. In September 2010, Wells Fargo
acknowledged the error in paying the property taxes on the neighboring property and
corrected it, adjusting the amount due on Delassus’s account to reflect that he did not owe
for the taxes that had been paid. Wells Fargo also removed late charges imposed from
May 2009 through September 2010 from the account.3
       Delassus did not make any payments after these changes. He also failed to pay his
2009-2010 property taxes. Wells Fargo paid the property taxes. Delassus’s requests for a
loan modification were denied in March 2010 and in October 2010. In October 2010,
Wells Fargo informed Delassus that his monthly payment would rise to $1715.58 per
month as of December 2010. Delassus did not make the December 2010 payment or any
subsequent payments on the loan.
       The temporary restraining order barring the sale of the home was dissolved on
May 6, 2011, and the house was sold at a trustee’s sale on May 13, 2011.
       Delassus sued defendants Wachovia Mortgage Corporation and Wells Fargo Bank,
alleging in his second amended complaint causes of action for fraud, negligence,
discrimination on the basis of physical disability, wrongful foreclosure, breach of the
implied covenant of good faith and fair dealing, unjust enrichment, unfair business
practices under Business and Professions Code section 17200, and slander of title. The
defendants successfully demurred to the causes of action for discrimination, wrongful
foreclosure, and slander of title. Although Delassus was granted leave to amend with
respect to the discrimination claim, he did not file a third amended complaint; the
defendants answered the second amended complaint.



3      Delassus disputed the statements of material fact concerning the removal of the
taxes and late charges from his account, but his disputes centered on his assertions that he
was not provided a reinstatement amount at that time and that collection activities
continued on his delinquent account. He did not argue that these amounts were not in
fact removed from his loan account.

                                             3
       The defendants moved for summary judgment in September 2012. The summary
judgment hearing began on December 19, 2012, but it was not completed due to Delassus
suffering a medical emergency in the courtroom. Delassus passed away that day.
       The action was subsequently stayed to permit Popovich to be substituted in as
plaintiff. After the substitution, the summary judgment hearing resumed on July 8, 2013.
The court granted summary judgment in the defendants’ favor. Popovich appeals,
claiming error as to the claims for negligence and breach of the covenant of good faith
and fair dealing.

                                      DISCUSSION
       I.     Evidentiary Objections

       The defendants filed 52 objections to the evidence in support of the opposition to
the summary judgment motion. At the conclusion of the summary judgment hearing,
after the trial court had granted summary judgment, the court ruled, “As to defendant[s’]
objections, Objections 1 to 52 are sustained.” Popovich’s counsel asked the court to state
the basis for the evidentiary rulings, and the court said, “No, I’m not going to go through
52 objections one by one. No.” Popovich argues that the trial court erred when it
summarily ruled on the 52 objections.
       The defendants argue that Popovich has forfeited any objection to the ruling on the
evidentiary objections by not submitting a record of the first portion of the summary
judgment hearing in December 2012. They argue that in the absence of a settled or
agreed statement or some other record of the untranscribed December 2012 portion of the
hearing, this court should presume that in the unrecorded portion of the hearing “the trial
court heard arguments on and properly addressed every issue raised by Appellant.”
While the defendants are correct that when the record is silent, all intendments and
presumptions weigh in favor of affirming the judgment (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564), this principle does not require us to make presumptions that
are contradicted by the record before us. Here, the record affirmatively shows that at the
conclusion of the summary judgment hearing in July 2013 the court expressly declined to


                                             4
articulate any basis for its blanket ruling on evidentiary objections. None of the court’s
statements suggest that the court had already addressed the evidentiary objections or that
counsel was returning to subjects previously discussed when he asked the court to
provide specific rulings for the evidentiary objections. The record before us is sufficient
to permit us to review the court’s ruling on the evidentiary objections.
       “Summarily ruling on multiple evidentiary objections ‘has been criticized by many
[appellate] courts.’ [Citation.] When a trial court issues a blanket ruling on numerous
evidentiary objections without providing any reasoning, there ‘is hardly a ruling, as it
could not provide any meaningful basis for review.’ [Citation.]” (Twenty-Nine Palms
Enterprises Corp. v. Bardos (2012) 210 Cal.App.4th 1435, 1447 (Twenty-Nine Palms).)
While we acknowledge that the standard of review applicable to evidentiary rulings on
summary judgment is unsettled (see Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535
[declining to decide whether the trial court’s rulings on evidentiary objections in
summary judgment proceedings are reviewed for abuse of discretion or reviewed de
novo]), under either standard of review, the trial court erred in its evidentiary rulings.
       Delassus filed two declarations to support his opposition to the summary judgment
motion, one by his counsel, Anthony Trujillo, and the other by expert witness Denise
Wilhite Thomas. Excluding the caption and proof of service pages, Thomas’s declaration
was two pages long and Trujillo’s seven pages long. The defendants submitted nine
objections to Thomas’s declaration and 43 objections to Trujillo’s declaration and its
attached exhibits. These objections included objections to both declarations in their
entirety, as well as to full paragraphs of each declaration.
       In Objection No. 1, the defendants objected to Trujillo’s entire declaration on the
grounds that it lacked foundation (Evid. Code, § 403), was not based on personal
knowledge and was speculative (Evid. Code, § 702), and that the declaration did not
“state [the] factual basis for the claim of personal knowledge beyond mere conclusion.”
It was error to exclude the entire declaration on these grounds. The objection to the
failure to state the factual basis of the claim of personal knowledge was based upon the
fact that Trujillo erroneously identified himself as the plaintiff rather than the attorney for

                                               5
the plaintiff in the first sentence of the declaration. The defendants argued, “He
obviously is not [the plaintiff] and has not stated any other factual basis for his
knowledge.” Trujillo filed a corrected declaration and a notice of errata regarding this
error in the declaration, but the court nonetheless sustained the objection as part of its
blanket ruling on the evidentiary objections. The presence of a typographical error in a
declaration, particularly one that subsequently has been corrected, does not provide a
legal basis for excluding an entire declaration and all of the plaintiff’s exhibits in support
of the opposition to the summary judgment motion.
       Moreover, while some portions of Trujillo’s declaration are speculative, lack
foundation, or lack personal knowledge, the entire declaration was not subject to
exclusion on these grounds. For instance, Paragraph 2 of the declaration states in its
entirety, “Attached to the Plaintiff’s Evidence in Support of Plaintiff’s Opposition to
Motion (‘ESPO’) as Exhibit 1 is a true and correct copy of the Ruling by this Court on
November 9, 2011.” Clearly this paragraph does not lack foundation; it is not
speculative; and there is no basis for concluding that Trujillo, as counsel of record, lacked
personal knowledge as to the documents filed in the matter. Similarly, several
paragraphs recite actions that Trujillo took as counsel for the plaintiff, actions such as
contacting Wachovia on multiple occasions, faxing a power of attorney document and his
identification, providing documentation to Wachovia, and transmitting other documents.
Counsel’s recitation of his own conduct cannot be said to be without foundation or
personal knowledge, or to be speculative, and thus sustaining the objection to the
declaration in its entirety was error.
       Other objections to Trujillo’s declaration are problematic as well. As noted above,
a number of the paragraphs identified actions that Trujillo personally took in the course
of his representation of Delassus with respect to the pre-foreclosure proceedings and
contact with the relevant financial institutions. In a single objection, Objection No. 10,
the defendants objected to ten paragraphs that included such recitations, asserting hearsay
and relevance as the basis for the objections. The factual allegations of these paragraphs
are clearly relevant to the plaintiff’s theory of the case. While many of the paragraphs

                                              6
contain hearsay, they also contain statements that are not hearsay, and the objection to all
ten paragraphs in their entirety could not properly be sustained.
       Given the sweeping nature of the objections, and the problematic nature of some
of the objections, as set forth above, we conclude that the trial court erred by sustaining
all the objections to Trujillo’s declaration in their entirety. (Twenty-Nine Palms, supra,
210 Cal.App.4th at p. 1449.) Thus, we shall consider all admissible evidence in
Trujillo’s declaration in reviewing the trial court’s ruling on the summary judgment
motion. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852 [“‘[i]n
determining whether a triable issue was raised or dispelled, we must disregard any
evidence to which a sound objection was made in the trial court, but must consider any
evidence to which no objection, or an unsound objection was made’”].)
       It was not error, however, to exclude the other declaration in its entirety. In this
second declaration, declarant Thomas is referred to in the caption as an expert witness,
but the declaration does not allude to, let alone establish, her qualifications or
competency to testify. No information is given as to her training, experience, or skill in
any field that would render her an expert witness. (Salasguevara v. Wyeth Labs., Inc.
(1990) 222 Cal.App.3d 379, 386 [expert witness declaration excluded where there is no
showing that the purported expert is qualified to express an opinion on relevant matters].)
Moreover, the opinions set forth in the declaration are inadmissible because the
declaration does not relate the matters relied upon in expressing the opinions; that the
opinions rest on matters of a type reasonably relied upon by experts; and the bases for
these opinions. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523-524.)
       Not only does Thomas’s declaration fail as an expert witness declaration, it also
fails as the declaration of a lay witness. Although Thomas declares that she has personal
knowledge of the facts recited in the declaration, this conclusory statement is not
accompanied by any facts showing that these matters are within her personal knowledge;
indeed, the only basis she articulates for the representations made in the declaration is
that she reviewed the complaint in the matter and the declarations in support of the
summary judgment motion. This is insufficient to establish that the declaration is based

                                              7
on personal knowledge and that the declarant is competent to testify to the matters stated.
(Code Civ. Proc.,4 § 437c, subd. (d); Snider v. Snider (1962) 200 Cal.App.2d 741, 753
[conclusory allegation of personal knowledge not sufficient to meet the requirements of
§ 437c, subd. (d) where the facts stated in the declaration are not matters as to which the
declarant would presumably have personal knowledge].) Although the blanket ruling on
the objections to this declaration was not ideal, the court properly excluded the Thomas
declaration.

       II.     Negligence and Breach of the Covenant of Good Faith and Fair
               Dealing Causes of Action

       A motion for summary judgment is properly granted only when “all the papers
submitted show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c).) “[T]he party
moving for summary judgment bears the burden of persuasion that there is no triable
issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) “Once the [movant] has
met that burden, the burden shifts to the [other party] to show that a triable issue of one or
more material fact exists as to that cause of action or a defense thereto.” (§ 437c, subd.
(p)(2).) A triable issue of material fact exists where “the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof.” (Aguilar, at p. 850.)
       We review the trial court’s ruling granting summary judgment de novo and
independently examine the record to determine whether there is a triable issue of material
fact. (Aguilar, supra, 25 Cal.4th at p. 860.) In performing our de novo review, we
consider all evidence presented by the parties in connection with the motion (except that
which the trial court properly excluded) and all uncontradicted inferences that the
evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) We


4     Unless otherwise indicated, all statutory references are to the Code of Civil
Procedure.

                                              8
affirm summary judgment where the papers and pleadings show that there is no triable
issue of material fact and the moving party is entitled to judgment as a matter of law.
(§ 437c, subd. (c).)
          The defendants contend that the entire appeal is foreclosed by the failure to submit
a reporter’s transcript or settled or agreed statement regarding the first portion of the
December 2012 summary judgment hearing. In this case, the record provided to this
court is adequate to permit our de novo review of the trial court’s summary judgment
ruling.

          A. Negligence Cause of Action

          In the negligence cause of action, Delassus alleged that the defendants owed him a
duty of care in the manner in which they handled and serviced his loan and modification
proceedings; that they breached that duty of care by disregarding his welfare and by
failing to stop the foreclosure and trustee’s sale; and that as a result, he suffered damage
from the loss of his real property and “sustained severe emotional distress along with
physical manifestations thereof.” As to this cause of action, the defendants asserted that
they owed no duty of care to Delassus; the claim was an improper attempt to turn a
breach of contract claim into a tort; there were no damages; and the cause of action was
preempted by the Home Owners’ Loan Act, 12 U.S.C. § 1461 et seq. Wachovia
Mortgage Corporation also asserted that it was not a proper defendant, as it was a distinct
financial institution that had nothing to do with Delassus’s loan or its servicing.
          The trial court granted the defendants’ motion on the negligence claim, stating,
“[A] financial institution owes no duty of care to a borrower when the institution’s
involvement doesn’t exceed its scope as a mere lender of money. [¶] Again, there’s no
evidence here that the defendant did anything other than act in its conventional role as a
lender of money. [¶] Additionally, the negligence action with respect to the tax issue is
defective, as it improperly attempts to convert a breach of contract cause of action into a
tort cause of action. [¶] Also, Plaintiff’s theory of negligence based on a breach of duty
with respect to defendant’s own credit file is not pled in the Second Amended Complaint.

                                                9
[¶] Finally, there aren’t any facts to establish damages proxim[ate]ly caused by any
conduct on the part of defendants.” The court also concluded that Wachovia Mortgage
Corporation was not a proper defendant because “[t]he plaintiff failed to establish that
that defendant had any connection with the loan or communicated with the plaintiff or his
representative regarding the loan.”
       Although Popovich and amicus curiae extensively brief the issue of whether a duty
of care existed here, we need not reach this question because Delassus and Popovich’s
failure to demonstrate the existence of a triable issue of material fact as to the element of
causation is fatal to the claim. Even if we accept for the sake of argument the position
that the defendants breached a duty of care to Delassus, neither Popovich nor Delassus
demonstrated that their actions caused the injury attributed to the defendants, the loss of
Delassus’s home.
       The defendants produced evidence that Delassus made no loan payments after
May 1, 2009; that he became delinquent on his 2009-2010 property taxes; that Wells
Fargo paid those taxes and added them to Delassus’s account; that it informed him that it
was raising his monthly payment as of December 2010; that Delassus did not make the
payments due December 2010 or thereafter; that Delassus’s monthly income was
$1751.50 and his monthly payment starting in December 2010 was $1715.58; that no
modification program was available in light of Delassus’s monthly income and his debt-
to-income ratios; and that foreclosure followed.
       In response to the defendants’ evidentiary showing, Delassus did not dispute that
he defaulted on his loan, that he became delinquent on his property taxes, and that his
monthly payment rose but that he did not pay it. He disputed the defendants’ statements
of material fact that his monthly income was insufficient to support the payment required
under any available modification program and that neither Wells Fargo’s internal
mortgage assistance program nor the federal mortgage assistance program would permit a
modification for one with debt-to-income ratio as high as Delassus’s, but the evidence he
provided in response did not actually dispute their evidence; instead, he identified
excessive forbearance as the reason for the denial of a modification and noted that

                                             10
Delassus was not considered for at least one kind of modification because of the value of
his home. Delassus neither disputed that he was unable to pay his monthly loan payment
amount nor identified any modification program available to one in his circumstances.
Even if the defendants breached a duty to him by incorrectly determining in 2009 that he
was delinquent on his property taxes and by failing to properly process and apply his
final early 2009 loan payment, neither Delassus nor Popovich has established a triable
issue of material fact as to whether those breaches of duty caused him to lose his home.
Because the papers and pleadings showed that there was no triable issue of material fact
and that the defendants were entitled to judgment as a matter of law on this claim (§
437c, subd. (c)), the trial court properly adjudicated the negligence cause of action.

       B. Breach of Implied Covenant of Good Faith and Fair Dealing Cause of Action

       The elements of a cause of action for breach of contract and for breach of the
implied covenant of good faith and fair dealing are similar. “The essential elements of a
breach of contract claim are: ‘(1) the contract, (2) plaintiff’s performance or excuse for
nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.’
[Citation.]” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602,
1614.) While the third element of a breach of contract cause of action is the defendant’s
actual breach, a breach of the implied covenant of good faith and fair dealing cause of
action requires proof the defendant unfairly interfered with plaintiff’s right to receive the
benefits of the contract. The implied covenant is supplemental to the express contractual
covenants. (Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992)
11 Cal.App.4th 1026, 1031-1032.) It imposes upon each contracting party the duty to do
everything the contract presupposes he or she will do to accomplish its purpose but
cannot be used to create obligations not contemplated by the contract. (Pasadena Live v.
City of Pasadena (2004) 114 Cal.App.4th 1089, 1093-1094.) The trial court adjudicated
the cause of action for breach of the implied covenant of good faith and fair dealing,
concluding that Delassus/Popovich failed to specifically identify the contracts that were



                                             11
allegedly breached; failed to demonstrate any breach; and failed to establish Delassus’s
performance of the contract.
       While we perform a de novo review of summary judgments, it is always the
appellant’s burden on appeal to demonstrate that the trial court erred. (Boyle v.
CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649-650.) On appeal, Popovich argues
that the trial court erred for several reasons, one of which was that Delassus’s
nonperformance under the deed of trust was excused by lender error. Specifically,
Popovich contends that “Wachovia’s errors prevented Delassus from making further
payments.” She argues that Wachovia’s mistaken determination that Delassus owed
property taxes prompted Wachovia to place Delassus in default, and that “[o]nce in
default, he could no longer make his scheduled payments.” Delassus, she claims, “was
prevented from making his payments because Wachovia demanded an incorrect and
unaffordable payment and would not accept payment of the correct amount.”
       We have reviewed the citations to the record provided by Popovich to support
these contentions and find that the record does not support her claim that Wachovia
prevented Delassus from performing his obligations under the contract. The record is
devoid of evidence that Delassus attempted to submit payment on his loan in any amount
after his final payment in March 2009 but that the tendered payment was rejected, or that
he was otherwise frustrated in his attempt to make payments on his loan. Popovich
provided three citations in her opening brief to support her assertions: a citation to three
facts in Delassus’s separate statement of material facts in opposition to the motion for
summary judgment; a citation to two Wachovia loan statements from February and May
2009; and a citation to a few lines of the deposition testimony of Michael Dolan, a Wells
Fargo employee. The three identified facts in the separate statement pertain to Delassus’s
payment made in March 2009 and Wachovia’s alleged misapplication of that payment;
they do not assert any attempt to make a payment after Delassus’s minimum payment
was increased as a result of the erroneous determination that he was delinquent on his
property taxes. The two loan statements do not show any rebuffed payment attempts, and
the deposition testimony referred to by Popovich concerns whether Delassus was advised

                                             12
of the amount he owed under the loan prior to January 25, 2011, and does not pertain to
payments attempted or refused. In her reply brief, Popovich points to another excerpt
from Dolan’s deposition in which he stated that once the foreclosure had proceeded to the
final days preceding a trustee’s sale, a reinstatement amount should be available to a
defaulted borrower, but “[i]f he’s asking for ‘what my payment is,’ they would not be
able to provide that because a payment isn’t an option at that point in time.” This does
not establish that Delassus ever attempted to make a payment on the loan but that it was
refused, nor does the fact that no monthly payments will be accepted once a home is
about to be sold at a trustee’s sale demonstrate that the defendants ever frustrated any
timely attempts by Delassus to make payments. Delassus and Popovich have failed to
demonstrate that the trial court erred and that there existed a triable issue of material fact
as to the element of Delassus’s performance of the contract or an excuse for his
nonperformance.

                                       DISPOSITION

       The judgment is affirmed. Respondents shall recover their costs on appeal.




                                                   ZELON, J.




We concur:




       PERLUSS, P. J.                              STROBEL, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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