Filed 7/30/13 Saunders v. American Home Mortgage Servicing CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



STEVEN SAUNDERS,                                                                             C069145

                   Plaintiff and Appellant,                                    (Super. Ct. No. TCV0001608)

         v.

AMERICAN HOME MORTGAGE SERVICING,
INC., et al.,

                   Defendants and Respondents.




         In this action, plaintiff Steven Saunders sought to stop a nonjudicial foreclosure
sale of property he owns in Truckee based on the general premise that the entities seeking
to foreclose had no right to do so. The trial court sustained demurrers to his third
amended complaint without leave to amend. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
         The following statement of facts takes as true “the properly pleaded factual
allegations, facts that reasonably can be inferred from those expressly pleaded, and
matters of which judicial notice has been taken” (Fremont Indemnity Co. v. Fremont


                                                             1
General Corp. (2007) 148 Cal.App.4th 97, 111) but ignores all “contentions, deductions
or conclusions of law” in the complaint (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th
962, 967).
       Saunders owns property on Palisades Drive in Truckee (the property). In January
2006, he executed a promissory note in the amount of $486,000 to The Mortgage Outlet.
The note was secured by a deed of trust on the property.1 The deed of trust listed The
Mortgage Outlet as the lender, Fidelity National Title as trustee, and defendant Mortgage
Electronic Registration System (MERS) as the beneficiary and nominee for the lender
and the lender’s successors and assigns.
       In August 2007, The Mortgage Outlet recorded an assignment of all beneficial
interest under the deed of trust and the promissory note to Option One Mortgage
Corporation (Option One). That assignment was signed by a “manager” for The
Mortgage Outlet.
       In March 2009, defendant American Home Mortgage Servicing, Inc. (American
Home), as successor-in-interest to Option One, recorded an assignment of the deed of
trust and the note to Deutsche Bank National Trust Company (Deutsche Bank) as trustee
for the Certificateholders of Soundview Home Loan Trust 2006-OPT3, Asset-Backed
Certificates, Series 2006-OPT3.
       In April 2009, American Home, as the attorney-in-fact for Deutsche Bank,
recorded a substitution of AHMSI Default Services, Inc. as trustee in place of Fidelity
National Title.




1       Some of the recorded documents referenced below were the subject of a request
for judicial notice filed by American Home and MERS in support of their demurrer to
Saunders’s third amended complaint, which the trial court granted. This document was
omitted from the clerk’s transcript on appeal, but American Home and MERS have asked
us to take judicial notice of it. We grant that request.

                                            2
       In April 2010, American Home, MERS, IndyMac Mortgage Services (IndyMac),2
and ServiceLink caused a notice of default to be recorded against the property. The
notice asserted that past due payments plus permitted costs and expenses were
$19,231.81 as of April 14, 2010. The contact information in the notice was for Deutsche
Bank care of American Home.
       In May 2010, American Home, as the attorney-in-fact for Deutsche Bank, caused
a substitution of trustee signed in March 2010 to be recorded, changing the trustee to
Power Default Services, Inc. Later in May, an assignment dated in March was recorded
in which MERS, acting as nominee for The Mortgage Outlet, assigned all beneficial
interest in the deed of trust and the note to Sand Canyon Corporation, formerly known as
Option One. In turn, Sand Canyon assigned all beneficial interest in the deed of trust and
the note to Deutsche Bank as trustee for the Certificateholders of Soundview Home Loan
Trust 2006-OPT3, Asset-Backed Certificates, Series 2006-OPT3, a securitized trust.
       In June 2010, Saunders commenced this action by filing a complaint against a
number of defendants, including OneWest Bank, American Home, MERS, and
ServiceLink,3 seeking to quiet title to the property based generally on the contention that
the parties attempting to foreclose on the property had no legally recognized interest in
the property and that no one had a secured interest in the property because there was no
operable deed of trust. American Home and MERS demurred to the complaint. The
resolution of that demurrer, and the possible existence of demurrers by other defendants,
is unclear on the record before us. Nevertheless, Saunders subsequently filed a second


2       IndyMac is a division of OneWest Bank, FSB. At various times papers have been
filed in this action in the name of IndyMac and at other times in the name of OneWest
Bank. We will treat them as one and the same.
3     Saunders sued ServiceLink as Fidelity National Financial, Inc., doing business as
ServiceLink. ServiceLink apparently appeared in the action as ServiceLink, a division of
Chicago Title Insurance Company.

                                             3
amended complaint, to which American Home and MERS demurred, as did IndyMac and
ServiceLink. The trial court concluded the complaint was unintelligible and gave
Saunders “one more chance to try and state a cause of action against these demurring
defendants.”
       In April 2011, Saunders filed his third amended complaint. American Home and
MERS filed a general demurrer and a special demurrer on the ground of uncertainty, as
did IndyMac.4 ServiceLink also filed a demurrer.5
       On July 25, 2011, the trial court entered its ruling sustaining all of the demurrers
without leave to amend. On August 5, 2011, the court entered an order of dismissal in
favor of American Home, MERS, IndyMac, and ServiceLink. On August 22, 2011,
Saunders filed his notice of appeal.6




4      Saunders designated these documents for inclusion in the clerk’s transcript but the
superior court failed to include them. American Home and IndyMac have requested that
we take judicial notice of the documents, and we grant those requests.
5      Saunders designated his opposition to ServiceLink’s demurrer for inclusion in the
clerk’s transcript, and it is included, but Saunders did not designate ServiceLink’s
demurrer for inclusion in the clerk’s transcript, and that document is not included.
6      Saunders’ notice of appeal states that he is appealing a “[j]udgment of dismissal
after an order sustaining a demurrer,” but the notice of appeal erroneously indicates that
the date of that judgment was July 25, 2011, when that was the date of the underlying
order sustaining the demurrers without leave to amend, which is not appealable (Beazell
v. Schrader (1962) 205 Cal.App.2d 673, 674). Nevertheless, because “[t]he notice of
appeal must be liberally construed” (Cal. Rules of Court, rule 8.100(a)(2)), we construe
Saunders’s notice as an appeal from the order of dismissal entered August 5, 2011, which
is an appealable order (Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 166).

                                              4
                                       DISCUSSION
                                              I
                                Civil Code Section 2923.57
        In his fourth cause of action,8 Saunders alleged the notice of default was void
because it did not include the due diligence declaration required by section 2923.5. The
trial court concluded that this allegation did “not state a cause of action under California
law.”
        Subdivision (b) of section 2923.5 provides as follows: “A notice of default
recorded pursuant to Section 2924 shall 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.” The
notice of default here included the following statement: “The undersigned mortgagee,
beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California
Civil Code § 2923.5(b) declares that the mortgagee, beneficiary or the mortgagee’s or
beneficiary’s authorized agent has either contacted the borrower or tried with due
diligence to contact the borrower as required by California Civil code 2923.5.”




7       Undesignated section references are to the Civil Code.
8       Because Saunders’s first cause of action (quiet title) depends in part on the
viability of his remaining causes of action, we will reserve our discussion of the quiet title
cause of action for the end of our opinion. Because Saunders offers no argument directed
to his second, third, sixteenth, and eighteenth causes of action, we do not address them,
taking his silence as a concession that the trial court properly sustained the demurrers to
those causes of action. Because Saunders’s fifteenth cause of action (breach of contract)
was asserted only against The Mortgage Outlet, and The Mortgage Outlet was not one of
the demurring defendants, we need not address that cause of action (even though the trial
court’s ruling purported to encompass it).

                                              5
       On appeal, Saunders asserts that “[t]he trial court erred in not requiring the
defendant to be the Lender capable of complying with the requirements of Civil Code
2923.5.” Saunders does not acknowledge or address the statement from the notice of
default set forth above and does not otherwise explain how his allegations stated a cause
of action given the inclusion of that statement.
       “[T]o be successful on appeal, an appellant must . . . affirmatively demonstrate
error on the record before the court. ‘ “ ‘A judgment or order of the lower court is
presumed correct. All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively shown. This is
not only a general principle of appellate practice but an ingredient of the constitutional
doctrine of reversible error.’ [Citations.]” [Citations omitted.]’ ” (In re Marriage of
Falcone & Fyke (2008) 164 Cal.App.4th 814, 822, quoting Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.)
       In the absence of any real argument as to why the statement contained in the
notice of default was insufficient to satisfy the requirements of subdivision (b) of section
2923.5, we conclude that Saunders has failed to carry his burden of showing that the trial
court erred in sustaining the demurrers to this cause of action.
                                              II
                                        Section 2924
       In his fifth cause of action, Saunders alleged the notice of default was void
because it was not signed by the trustee, mortgagee, beneficiary, or any of their
authorized agents; there was “no clear beneficiary from the face of the” notice; there was
“no Statement saying they would satisfy the obligations ‘secured by the Deed of Trust
that is in default’”; and there was no recital of mailing. The trial court concluded these
allegations “fail[ed] to state a cause of action that is recognized under California [law].”
       Subdivision (a)(1) of section 2924 provides that before a power of sale in a deed
of trust can be exercised, “[t]he trustee, mortgagee, or beneficiary, or any of their

                                              6
authorized agents shall first file for record, in the office of the recorder of each county
wherein the . . . trust property or some part or parcel thereof is situated, a notice of
default.” That notice must include various things. (§ 2924, subd. (a)(1)(A)-(D).)
       On appeal, Saunders asserts “[t]he trial court erred in allowing non-parties to the
Deed of Trust to succeed in their demurrer to Civil Code [] 2924,” but he makes no real
attempt to show how his complaint stated a cause of action for violation of that statute.
In the absence of any comprehensible argument on point, Saunders has not carried his
burden of showing that it was error for the trial court to sustain the demurrers to his fifth
cause of action.
                                              III
                                        Section 2924c
       In his sixth cause of action, Saunders alleged the notice of default was void
because it did not “include contact information for the ‘beneficiary or mortgagee.’” The
trial court concluded that this allegation “fail[ed] to state a cause of action under
California law.”
       Subdivision (b)(1) of section 2924c provides that a notice of default must begin
with a statement that includes the name of the beneficiary or mortgagee, along with an
address and telephone number for the borrower to contact. The notice of default here
provided an address and telephone number for Saunders to contact Deutsche Bank care of
American Home.
       On appeal, Saunders contends “[a] review of the document should have been
sufficient for the Court to see that [he] was correct and that the required [contact]
information is missing.” In support of this argument, he directs our attention to the first
page of the notice of default. The contact information, however, is on the second page of
the notice, which Saunders ignores. Under these circumstances, Saunders has shown no
error in the sustaining of the demurrers to his sixth cause of action.



                                               7
                                             IV
                                       Section 2932.5
       In his seventh cause of action, Saunders alleged that none of the foreclosing
defendants had the power to sell the property because none of the assignments of the
right to the money owed under the promissory note were valid because three of the four
assignments were not duly acknowledged. The trial court concluded that this allegation
“fail[ed] to state a cause of action under California law.”
       Section 2932.5 provides that “[w]here a power to sell real property is given to a
mortgagee, or other encumbrancer, in an instrument intended to secure the payment of
money, the power is part of the security and vests in any person who by assignment
becomes entitled to payment of the money secured by the instrument. The power of sale
may be exercised by the assignee if the assignment is duly acknowledged and recorded.”
       On appeal, Saunders contends he adequately alleged “that the four (4) recorded
Assignments violated this Civil Code [] 2932.5.” The flaw in Saunders’s argument is that
“[i]t has been established since 1908 that this statutory requirement that an assignment of
the beneficial interest in a debt secured by real property must be recorded in order for the
assignee to exercise the power of sale applies only to a mortgage and not to a deed of
trust.” (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 122.) Because
section 2932.5 did not apply here, the trial court correctly sustained the demurrers to
Saunders’s seventh cause of action.
                                             V
                                       Section 2934a
       In his eighth cause of action, Saunders alleged that the substitutions of trustee
recorded in April 2009 and May 2010 were invalid because they were not signed by all of
the beneficiaries under the deed of trust. The trial court concluded that Saunders had
“failed to state any wrongdoing by the[] demurring Defendants.”



                                              8
       Subdivision (a)(1) of section 2934a provides that “[t]he trustee under a trust deed
upon real property or an estate for years therein given to secure an obligation to pay
money and conferring no other duties upon the trustee than those which are incidental to
the exercise of the power of sale therein conferred, may be substituted by the recording in
the county in which the property is located of a substitution executed and acknowledged
by: (A) all of the beneficiaries under the trust deed, or their successors in interest . . . .”
       On appeal, Saunders contends he adequately alleged a cause of action for violation
of section 2934a by alleging that all of the beneficiaries under the deed of trust did not
sign the substitutions of trustee. We disagree. The documents subject to judicial notice
showed that in April 2009, American Home, acting as the attorney-in-fact for Deutsche
Bank, recorded a substitution of AHMSI Default Services, Inc., as trustee in place of
Fidelity National Title. Those documents also show that in May 2010, American Home
and others caused a substitution of trustee to be recorded changing the trustee to Power
Default Services, Inc. In his brief, reiterating the allegations from his complaint,
Saunders contends Deutsche Bank had no power to substitute a trustee and American
Home could not act on behalf of Deutsche Bank because “ ‘the Attorney in Fact is not
recorded as required under the subject Deed of Trust.’ ” Beyond this, however, Saunders
offers no argument, no explanation, and no facts. Under these circumstances, we
conclude Saunders has failed to carry his burden on appeal of demonstrating trial court
error in the sustaining of the demurrers to his eighth cause of action.
                                               VI
                                Sections 2939, 2940, and 2941
       In his ninth, tenth, and eleventh causes of action, Saunders alleged that no
certificate of discharge was recorded in connection with each of the assignments of the
rights under the deed of trust and the promissory note. The trial court concluded these
allegations were barred by the statute of limitations and failed to state a cause of action.



                                                9
       Sections 2939, 2940, and 2941 contain various requirements relating to the
recording of a certificate of discharge when a mortgage has been paid, satisfied, or
discharged.
       On appeal, Saunders contends his allegations were adequate to state a cause of
action for violation of each statute. He is wrong. Section 2939 applies when a mortgage
has been “paid, satisfied, or discharged,” and section 2941 applies when a mortgage has
been “satisfied.” (Section 2940 merely requires that a certificate of discharge be
recorded.) Here, the documents subject to judicial notice and the other allegations of
Saunders’s complaint make it clear that Saunders’s debt under the promissory note was
neither paid, satisfied, nor discharged. Rather, the original lender assigned away its
rights to Saunders’s performance (i.e., the payment of the money owed), and subsequent
assignments of those rights also occurred. The assignment of the right to receive
payments due under a promissory note does not result in the payment, satisfaction, or
discharge of the obligation to make those payments -- it simply changes who is entitled to
performance of the obligation. Because sections 2939, 2940, and 2941 do not apply to
the assignment of a deed of trust and promissory note, the trial court properly sustained
the demurrers to Saunders’s ninth, tenth, and eleventh causes of action.
                                            VII
                                       Section 1189
       In his twelfth cause of action, Saunders alleged that the assignment recorded in
August 2007, the substitution of trustee recorded in May 2010, and the assignment
recorded in May 2010 were all void because the certificate of acknowledgement
completed by the notary with respect to each document failed to comply with section
1189. In particular, Saunders alleged the August 2007 assignment was void because the
notary did not sign the certificate of acknowledgement under penalty of perjury, and the
May 2010 substitution of trustee and assignment were void because the notary could not
lawfully acknowledge that the persons who signed the documents acted in a “particular

                                            10
representative capacity.” The trial court concluded that these allegations “fail[ed] to state
a cause of action under California law.”
       Subdivision (a)(1) of section 1189 prescribes the form for a certificate of
acknowledgement taken within this state. The certificate must be made under penalty of
perjury. (§ 1189, subd. (a)(1).) Subdivision (c) of section 1189 provides that “[o]n
documents to be filed in another state or jurisdiction of the United States, a California
notary public may complete any acknowledgment form as may be required in that other
state or jurisdiction on a document, provided the form does not require the notary to
determine or certify that the signer holds a particular representative capacity or to make
other determinations and certifications not allowed by California law.”
       On appeal, Saunders contends in a conclusory manner that this cause of action was
“adequately pled,” but he makes no attempt to show how his complaint stated a cause of
action. In particular, Saunders offers no authority for the proposition that when a
certificate of acknowledgement is not signed by the notary under penalty of perjury, the
document notarized is void. Similarly, he offers no authority for the proposition that it is
unlawful for a notary to acknowledge that a signer acted in a particular representative
capacity9 or for the proposition that such an unlawful acknowledgement (assuming the
unlawfulness) renders the notarized document void. Under these circumstances,
Saunders has failed to carry his burden of showing that the trial court erred in sustaining
the demurrers to his twelfth cause of action.




9      To the extent Saunders intends to rely on subdivision (c) of section 1189 for his
proposition of unlawfulness, that statute does not, by itself, provide that it is unlawful for
a notary to acknowledge that the signer is acting in a particular representative capacity.
At most, read in isolation that subdivision provides that on a document to be filed in
another state or jurisdiction of the United States, a California notary public may not
complete an acknowledgment form that requires the notary to determine or certify that
the signer holds a particular representative capacity.

                                              11
                                             VIII
                                        Section 1190
       In his thirteenth cause of action, Saunders alleged that the assignment recorded in
August 2007, the notice of default recorded in April 2010, the substitution of trustee
recorded in May 2010, and the two assignments recorded in May 2010 were all void
because they were not signed by a “ ‘duly authorized person.’ ” In particular, Saunders
complained that the August 2007 assignment was signed by a manager and the remaining
documents were signed by persons whose capacities were not stated on the documents.
The trial court concluded that these allegations “fail[ed] to state a cause of action under
California law.”
       Section 1190 provides that “[t]he certificate of acknowledgment of an instrument
executed on behalf of an incorporated or unincorporated entity by a duly authorized
person in the form specified in Section 1189 shall be prima facie evidence that the
instrument is the duly authorized act of the entity named in the instrument and shall be
conclusive evidence thereof in favor of any good faith purchaser, lessee, or
encumbrancer. ‘Duly authorized person,’ with respect to a domestic or foreign
corporation, includes the president, vice president, secretary, and assistant secretary of
the corporation.”
       On appeal, Saunders contends in a conclusory manner that this cause of action was
“adequately pled,” but he makes no attempt to show how his complaint stated a cause of
action. In particular, Saunders offers no authority for the proposition that a document
signed on behalf of a corporation by a person whose capacity is either not shown or is
shown as something other than president, vice president, secretary, or assistant secretary,
is void. Under these circumstances, Saunders has failed to carry his burden of showing
that the trial court erred in sustaining the demurrers to his thirteenth cause of action.




                                              12
                                               IX
                                         Section 1624
       In his fourteenth cause of action, Saunders alleged that all four assignments were
void because they did not “assume the indebtedness by the purchaser in the conveyance.”
The trial court concluded that this allegation “fail[ed] to state a cause of action under
California law.”
       Subdivision (a)(6) of section 1624 (the statute of frauds) provides that “[a]n
agreement by a purchaser of real property to pay an indebtedness secured by a mortgage
or deed of trust upon the property purchased” is invalid unless that agreement, “or some
note or memorandum thereof, [is] in writing and subscribed by the party to be charged or
by the party’s agent,” “unless assumption of the indebtedness by the purchaser is
specifically provided for in the conveyance of the property.” What this means,
essentially, is that a promissory note by a purchaser of real property that is secured by a
deed of trust on the property must be in writing, unless the promise to pay is included in
the deed to (i.e., “the conveyance of”) the property.
       On appeal, Saunders contends in a conclusory manner that this cause of action was
“adequately pled,” but he makes no attempt to show how his complaint stated a cause of
action under section 1624, nor can we even imagine how it might do so. The provision in
the statute of frauds that the assumption of indebtedness by a purchaser of real property
satisfies the statute if it is specifically provided for in the conveyance of (i.e., the deed to)
the property simply has no bearing whatsoever on the validity of the assignments at issue
here. Accordingly, the trial court did not err in sustaining the demurrers to Saunders’s
fourteenth cause of action.
                                               X
                                    Wrongful Foreclosure
       In his seventeenth cause of action, Saunders alleged that defendants “are in the
process of conducting a wrongful foreclosure as they have violated several laws for

                                               13
maintaining a secured interest in a piece of real property.” The trial court concluded that
Saunders had “failed to state any facts alleging wrongdoing by any specific Defendant
and [the cause of action] fails for uncertainty.”
       On appeal, Saunders cites the rule “that a trustee or mortgagee may be liable to the
trustor or mortgagor for damages sustained where there has been an illegal, fraudulent or
willfully oppressive sale of property under a power of sale contained in a mortgage or
deed of trust” (Munger v. Moore (1970) 11 Cal.App.3d 1, 7) and then asserts without
further explanation or argument that “[t]he above requirements are alleged in the 43 page
[third amended complaint].” This is simply not sufficient to carry Saunders’s burden on
appeal. To the extent Saunders means to contend that his wrongful foreclosure cause of
action is premised on the statutory violations alleged in the previous causes of action that
we have discussed already, the failure of those previous causes of action (discussed
above) necessarily dooms his derivative wrongful foreclosure cause of action.
Accordingly, Saunders has shown no error in the trial court sustaining the demurrers to
his seventeenth cause of action.
                                              XI
                                          Quiet Title
       The first cause of action Saunders purported to allege in his third amended
complaint was one to quiet title to the property. Saunders alleged that defendants were
wrongfully claiming an interest in the property because he was not in default to them and
they had not paid for the note that was secured by the property. The gist of his claim
appears to be that because the promissory note was sold “into the secondary market to an
unknown investor” (otherwise identified as “a securitized trust”), defendants had no
interest in the note and therefore no right or standing to exercise the power of sale under
the deed of trust.
       In demurring to the third amended complaint, IndyMac argued that Saunders could
not quiet title to the property “without alleging [that he is] able to tender the entire

                                              14
indebtedness owing on the loan.” American Home and MERS argued more broadly that
Saunders’s entire complaint, which challenged defendants’ attempt to conduct a
nonjudicial foreclosure sale, was barred because he did not allege that he tendered, or had
the ability to tender, the amounts owed under the loan. American Home and MERS also
argued that all of Saunders’s claims were time-barred because the action was not
commenced until nearly four and a half years after the loan closed. With respect to the
quiet title cause of action in particular, American Home and MERS contended that
Saunders had not alleged any wrongful conduct by either of them, the notice of default
was properly recorded, and American Home was authorized to conduct the foreclosure
sale as attorney-in-fact for the beneficiary, Deutsche Bank.
       In sustaining the demurrer as to the quiet title cause of action, the trial court
concluded that “an offer of tender of the entire indebtedness” was required, “failure to
tender is fatal,” and the cause of action was barred by the three-year statute of limitations.
                                              A
                       A Quiet Title Action Is Subject To Demurrer
       On appeal, Saunders first argues that a quiet title cause of action that alleges the
plaintiff’s ownership of the property and the defendant’s assertion of an adverse claim is
not subject to demurrer. In support of this argument, he quotes from Leeper v. Beltrami
(1959) 53 Cal.2d 195, but he takes the language of that case out of context. As we will
explain, properly read, Leeper does not support Saunders’s argument.
       In Leeper, the plaintiffs sought to cancel or set aside a deed they claimed they had
conveyed out of duress. (Leeper v. Beltrami, supra, 53 Cal.2d at p. 211.) The question
arose as to “whether, because the ultimate relief sought is recovery of real property, the
five-year provisions of [Code of Civil Procedure] section 318 are automatically
applicable, or should the plaintiffs be held to the ordinary rules applicable to rescission?”
(Id. at p. 213.) In addressing that point, the California Supreme Court noted that “[t]he
authorities on this subject are in confusion” and “[t]his confusion apparently arises out of

                                              15
the failure of the cases to consider adequately the basic rights of the plaintiff arising out
of defendant’s wrongful conduct, and the failure to consider the substantive rules
applicable to these basic rights.” (Id. at pp. 212-213.) The court went on to explain as
follows:10
       “There are many cases holding that quiet title actions are of an independent nature
completely divorced from the facts that give rise to the plaintiff’s right to have his title
quieted. Thus it has been held that a complaint couched in general terms alleging
plaintiff’s ownership and defendant’s assertion of an adverse claim is not demurrable.
[Citations.] It has also been held that if a complaint is in two counts, one in general
terms for quiet title, and the other specifying the defendant’s wrongdoing which is the
basis of the quiet title action, the complaint is not demurrable even though the specific
count is faulty. [Citations.] These cases seem to hold that suits to recover real property,
where the relief sought is quiet title, must be viewed independently from the grounds
upon which the relief is sought, and that the five-year statute is applicable.
       “On the other hand, the more modern rule places more emphasis on the basic
rights involved. Thus it has been held that, where the complaint is in two counts, one to
quiet title, and one to cancel a deed, if the count to quiet title depends upon the
cancellation count, the complaint must stand or fall on the cancellation count. [Citation.]
And there are many cases holding that, where the legal title is in the defendant, and the
plaintiff seeks to quiet title on the ground defendant’s title was secured from plaintiff by
fraud, the plaintiff must plead and prove facts constituting the fraud. [Citations.] It has
been held that this rule requiring allegations of fraud in such actions is an exception to the
general rule that a cause of action to quiet title may be stated in general terms. [Citations.]




10     The italics in the following quotation are added to show exactly the part of the
case that Saunders quotes in his opening brief.

                                              16
       “Thus the modern tendency is to look beyond the relief sought, and to view the
matter from the basic cause of action giving rise to the plaintiff’s right to relief. This
approach is a sensible one.” (Leeper v. Beltrami, supra, 53 Cal.2d at pp. 213-214.)
       In quoting from Leeper, Saunders fails to quote most of the pertinent portion of
the opinion. As the court succinctly explained later in the opinion, “[q]uieting title is the
relief granted once a court determines that title belongs in plaintiff” but “the plaintiff
must show he has a substantive right to relief before he can be granted any relief at all.”
(Leeper v. Beltrami, supra, 53 Cal.2d at p. 216.) Thus, a plaintiff cannot avoid a
demurrer to a cause of action seeking to quiet title if the cause of action fails to
adequately allege a substantive basis for the court to grant that relief. For this reason,
Saunders cannot avoid the demurrers to his first cause of action just because that cause of
action seeks to quiet title to the property.
                                               B
                                  Tender Was Not Required
       Saunders next contends that the trial court erred in sustaining the demurrer based
on his failure to tender the amounts owed on the loan. He contends that tender is required
only where the plaintiff seeks to set aside a voidable foreclosure sale that has already
happened, not where (as here, in his view) the plaintiff seeks to stop, before it has
occurred, a foreclosure sale that will be void if it goes forward.
       Support for Saunders’s argument can be found in Dimock v. Emerald Properties
(2000) 81 Cal.App.4th 868. There, the court explained that “in the context of
overcoming a voidable sale, the debtor must tender any amounts due under the deed of
trust. [Citations.] This requirement is based on the theory that one who is relying upon
equity in overcoming a voidable sale must show that he is able to perform his obligations
under the contract so that equity will not have been employed for an idle purpose.” (Id.
at pp. 877-878, italics omitted.) On the other hand, where the debtor is not relying on
equity to set aside a merely voidable deed, but instead relies on the face of the record to

                                               17
show that the deed is void, the debtor is not required to tender any of the amounts due
under the note. (Ibid.)
        It is true, as defendants assert, that “a mortgagor cannot quiet his title against the
mortgagee without paying the debt secured.” (Shimpones v. Stickney (1934) 219 Cal.
637, 649, italics added.) To some extent, however, the gist of Saunders’s claim here is
that the defendants who recorded the notice of default against his property and who seek
to foreclose on the property are not the holders of the promissory note and therefore are
not entitled to any amounts owed on the debt secured by the property. To that extent, this
is not simply a case where the plaintiff alleges some mere irregularity in a foreclosure
sale conducted by the party that was otherwise entitled to conduct that sale. Rather,
Saunders alleges that defendants are not entitled to conduct a foreclosure sale of his
property in the first place.
        Over 100 years ago, our Supreme Court offered the following language, which is
helpful here: “It has often been held that an action to set aside a sale by trustees or on
foreclosure for irregularities of any kind should ordinarily be accompanied by an offer to
redeem by paying the sum due. [Citations.] The plaintiff is held to compliance with the
old maxim that he who seeks equity must do equity. [Citations] On the other hand, there
are not a few cases holding that where a party has the right to avoid a sale, he is not
bound to tender any payment in redemption. [Citations.] Whatever may be the correct
rule, viewing the question generally, it is certainly not the law that an offer to pay the
debt must be made, where it would be inequitable to exact such offer of the party
complaining of the sale.” (Humboldt Sav. Bank v. McCleverty (1911) 161 Cal. 285, 290-
291.)
        Here, it would be inequitable to require Saunders to tender payment of any
amounts owed under the promissory note in order to stop a foreclosure sale by entities
that have no right to the amounts owed under the note and no right to sell his property to



                                               18
collect those amounts. To that extent, the lack of tender does not support the trial court’s
ruling sustaining defendants’ demurrers.
                                              C
                               The Action Is Not Time-Barred
       In arguing that all of the causes of action against them were time-barred, American
Home and MERS asserted that Saunders’s “allegations focus on the origination of a loan
which closed in January, 2006” and “since [his] claim to quiet title is an action based on
allegations of fraud or mistake, the three (3) year statute of limitations . . . applies.” They
also argued that all of Saunders’s causes of action for statutory violations were similarly
barred by the three-year statute.
       On appeal, Saunders argues that the trial court erred in sustaining the demurrers
based on the statute of limitations because he should not be held to “have discovered [at
the outset] the MERS fraud and banking industry fraud that . . . hit the entire planet in
2006.” He contends he is entitled to the benefit of the delayed discovery rule.
       In response, American Home and MERS note that “[a]t least in part, the Quiet
Title cause of action is founded upon [Saunders’s] theory that MERS was ‘fraudulently’
named in the original deed of trust.” They further argue that there are no allegations that
justify reliance on the delayed discovery rule and that rule was not raised in the trial court
and Saunders’s argument on this point is not supported by citations to the record.
       Despite Saunders’s failure to argue otherwise, we do not perceive that his request
to quiet title to his property was based on an allegation of fraud relating to MERS being
named in the deed of trust as nominee on behalf of the original lender, its successors and
assigns. Rather, it was based on the assertion that due to the various conveyances and
assignments of the beneficial interests in the deed of trust property and the note,
defendants had no right to any money due under the note and therefore no right to sell the
property under the deed of trust. Thus, the assertion by American Home and MERS that
Saunders’s “allegations focus on the origination of a loan which closed in January,

                                              19
2006” was not really true. The focus of the allegations was on the various conveyances
and assignments that occurred after the loan closed. Under these circumstances, we
conclude Saunders’s complaint was not time-barred.
                                             D
                                  Authority To Foreclose
       As we have noted, in demurring to the quiet title cause of action, American Home
and MERS contended Saunders had not stated a cause of action because Saunders had not
alleged any wrongful conduct by either of them, the notice of default was properly
recorded, and American Home was authorized to conduct the foreclosure sale as
attorney-in-fact for the beneficiary, Deutsche Bank. In particular, they pointed out that a
notice of default may be recorded by the “ ‘the trustee, mortgagee, or beneficiary, or any
of their authorized agents,’ ” and they noted that the notice of default here was recorded
by T.D. Service Company as authorized agent for the beneficiary, Deutsche Bank. They
also explained that to the extent American Home initiated the foreclosure process, it was
authorized to do so as an agent for the beneficiary under the deed of trust.
       In Saunders’s argument challenging the sustaining of the demurrers to his quiet
title cause of action, nowhere do we find any response to the foregoing assertions. To the
extent Saunders intended to rely on the validity of his other causes of action (discussed
above) to support his attempt to quiet title to the property, on the theory that because of
the various statutory violations alleged elsewhere in the complaint the entities who were
seeking to foreclose on the property had no right to do so, we have concluded already that
Saunders has failed to show any error in the sustaining of the demurrers to his other
causes of action. As a result, Saunders has failed to show that his complaint pleads any
basis for concluding that the entities seeking to foreclose lack the right to do so. Absent
such pleading, Saunders has shown no basis for quieting title to the property.
Accordingly, the trial court did not err in sustaining the demurrers to Saunders’s first
cause of action.

                                             20
                                             XII
                                      Leave To Amend
       Saunders asserts at various places in his brief that the trial court should have given
him leave to amend his complaint again, but he fails to offer any specifics as to how he
could have cured the deficiencies in his complaint. This omission is fatal.
       “The plaintiff bears the burden of proving there is a reasonable possibility of
amendment. . . . [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what
manner he can amend his complaint and how that amendment will change the legal effect
of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy
this burden. [Citation.] The plaintiff must clearly and specifically set forth the
‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the
elements of the cause of action and authority for it. Further, the plaintiff must set forth
factual allegations that sufficiently state all required elements of that cause of action.
[Citation.] Allegations must be factual and specific, not vague or conclusionary.
[Citation.] [¶] The burden of showing that a reasonable possibility exists that
amendment can cure the defects remains with the plaintiff; neither the trial court nor this
court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to
support the possibility of amendment and no legal authority showing the viability of new
causes of action, there is no basis for finding the trial court abused its discretion when it
sustained the demurrer without leave to amend.” (Rakestraw v. California Physicians’
Service (2000) 81 Cal.App.4th 39, 43-44.)
       Under the foregoing rules, Saunders has failed to show any abuse of discretion in
the trial court’s denial of further leave to amend.
                                             XIII
                                          Sanctions
       IndyMac has filed a motion to dismiss the appeal as frivolous and for sanctions
against Saunders’s attorney, Kathryn Reynolds, contending “no reasonable attorney

                                              21
would have prosecuted this appeal against [IndyMac] because . . . [IndyMac] had nothing
to do with the non-judicial foreclosure proceedings that are the subject of this lawsuit and
appeal” and because Reynolds “has prosecuted this appeal with an improper motive: her
personal disagreement with the Placer County Superior Court for what she perceived as
an erroneous ruling.”11
       “[A]n appeal may be found frivolous and sanctions imposed when (1) the appeal
was prosecuted for an improper motive -- to harass the respondent or delay the effect of
an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any
reasonable attorney would agree that the appeal is totally and completely without merit.”
(Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310.)
       IndyMac’s assertion that no reasonable attorney would have prosecuted this appeal
turns primarily on a statement that appeared in Saunders’s opposition to IndyMac’s
demurrer to the third amended complaint. There, Reynolds asserted that “[t]he only
reason Defendants ONE WEST BANK or INDYMAC SERVICES were named was the
NOTICE OF DEFAULT came in an envelope with Defendants ONE WEST BANK or
INDYMAC SERVICES name on it.” According to IndyMac, “[a]n alleged name on an
envelope is too flimsy a basis to associate OneWest with these non-judicial foreclosure


11      American Home and MERS requested sanctions in their respondents’ brief but did
not file a separate motion for sanctions and did not file a declaration in support of their
request. That is insufficient to put the issue of sanctions in favor of American Home and
MERS properly before us. Rule 8.276(a) of the California Rules of Court provides that
this court may impose sanctions “[o]n motion of a party or its own motion.” Rule 8.54(a)
provides that “a party wanting to make a motion in a reviewing court must serve and file
a written motion stating the grounds and the relief requested and identifying any
documents on which the motion is based,” and the “motion must be accompanied by a
memorandum.” Rule 8.276(b)(1) further provides that “[a] party’s motion under [rule
8.276](a) must include a declaration supporting the amount of any monetary sanction
sought and must be served and filed before any order dismissing the appeal but no later
than 10 days after the appellant’s reply brief is due.” American Home and MERS
satisfied none of these requirements. Accordingly, we do not consider their request for
sanctions further.

                                            22
proceedings, particularly where the entirety of the public record, which counsel obviously
consulted in detail, confirms the contrary.”
       In our view, the precise evidentiary basis for Reynolds’s decision to name
OneWest and IndyMac as defendants in this action cannot be determined reliably from an
isolated statement in an unsworn opposition to a demurrer such that that statement may
reasonably serve as the basis for finding that the action against those defendants (and the
resulting appeal) was totally and completely without merit. We do not mean to say
conclusively that Reynolds had a sufficient basis for pursuing this action against
OneWest and IndyMac. We only conclude that on the record presented to us, IndyMac
has not sufficiently shown that she did not.
       As for IndyMac’s claim that Reynolds prosecuted this appeal for an improper
motive, IndyMac premises that claim in part on its assertion that the appeal totally lacked
merit -- an assertion we have discussed already. Beyond that, IndyMac points to various
statements Reynolds made in Saunders’s opening brief that are openly disrespectful and
disdainful of the trial court and its ruling. While we certainly do not condone those
statements (see below), we do not perceive that they evidence an improper purpose for
Reynolds’s pursuit of this appeal. Although she certainly expressed her disagreement
with the trial court inappropriately at various points in the opening brief, it still appears
that her appeal on behalf of Saunders was motivated by an honest belief that the court’s
ruling was error. That is not an improper motive and cannot serve as the basis for an
award of sanctions on appeal.
       For the foregoing reasons, we deny IndyMac’s motion to dismiss and for
sanctions.
                                             XIV
                 Request To Strike Opening Brief And Contempt Of Court
       In its brief, IndyMac asked that we strike Saunders’s opening brief and hold
Reynolds in contempt of court because of various statements in Saunders’s opening brief

                                               23
that “impugn[] the integrity of the Placer County Superior Court and the Commissioner
assigned to [t]his case.”12
       “There can be no doubt of the power of an appellate court to strike from its files a
brief or other document containing disrespectful, scandalous, or abusive language
directed against the courts, officials, or litigants, or to take such other action as the
circumstances may require.” (Carpenter v. Pacific Mut. Life Ins. Co. (1937)
10 Cal.2d 307, 314.) While we agree that various statements in Saunders’s opening brief
are disrespectful and disdainful of the trial court (see below), we nonetheless decline to
strike the brief. As we have shown already, the brief contains no argument sufficient to
justify reversal of the judgment of dismissal, and therefore IndyMac suffers no prejudice
from our denial of this request.
       As for IndyMac’s request that we hold Reynolds in contempt, IndyMac points to
only two cases as authority for this relief, and both of those cases involved a situation
where the attorney made contemptuous statements about a court to that court. (In re
White (2004) 121 Cal.App.4th 1453, 1477-1479; In re Buckley (1973) 10 Cal.3d 237,
246-250.) IndyMac offers no authority that directly supports a finding of contempt where



12     Among others, Saunders’s opening brief contains the following statements:

        “The trial court has no patients [sic] to properly review this case, and no
understanding that a foreclosure requires the Note Holder to not only declare the default,
but to collect the debt. There is no law that allows the trial court to be acting as a lap dog
for the big banks. The Ruling on the demur [sic] is lazy and shows no legal analysis and
a misreading of fact.”

      “The trial court again in its haste to rule for a top bank against the public
wrongfully sustained this cause of action . . . . [¶] This is lazy and insulting to the
Appellant spending time and money, and the public forced to use this court.”

       “The deeds of trust have been breached, and the [C]ivil [C]ode sections dedicated
to maintaining the county records, are ignored by the courts in the Tahoe area, who
blindly are handing over properties, ignoring the law.”

                                               24
an attorney makes contemptuous statements about a court to a different court. In light of
this absence of authority, we decline to hold Reynolds in contempt. At the same time,
however, we want to make clear that disrespectful statements like those put forth by
Reynolds have no place in any appellate document.
                                     DISPOSITION
       The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.276(a).)




                                         ROBIE         , Acting P. J.



We concur:



      MAURO           , J.



      DUARTE          , J.




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