AFSHAN MULTANI et al., Plaintiffs and Appellants, v. WITKIN & NEAL et al., Defendants and Respondents.
No. B237295
Second Dist., Div. Seven
May 1, 2013
215 Cal. App. 4th 1428
Law Office of Gary Kurtz and Gary Kurtz for Plaintiffs and Appellants.
Richardson Harman Ober, Kelly G. Richardson and Brian D. Moreno for Defendants and Respondents.
OPINION
ZELON, J.-
INTRODUCTION
The Castle Green Homeowners Association notified Afshan and Rahim Multani that they were delinquent in paying their monthly assessment fees. After the Multanis disputed the debt, the association conducted a nonjudicial foreclosure sale of their condominium unit. The Multanis sued to set aside the foreclosure alleging irregularities in the sale notices and procedure. They further alleged that the association and its agents had committed tortious acts during the foreclosure process.
Defendants filed a motion for summary judgment or adjudication arguing that the court should dismiss the foreclosure claims because plaintiffs had actual knowledge of the foreclosure proceedings and failed to exercise their postsale right of redemption. Defendants also argued that plaintiffs’ tort claims were untimely and predicated on privileged conduct related to the foreclosure process. The court granted the motion.
We reverse the trial court‘s dismissal of plaintiffs’ claims seeking to set aside the foreclosure sale, concluding that defendants failed to demonstrate that they notified the plaintiffs of their right of redemption as required by
FACTUAL AND PROCEDURAL BACKGROUND
A. Summary of Plaintiffs’ Complaint
1. Plaintiffs’ factual allegations
In January of 2010, plaintiffs Afshan and Rahim Multani filed a сomplaint against the Castle Green Homeowners Association (the Association) and
In 2005, Rahim Multani returned from an overseas trip and was informed by the Association and its agents, LB Property Management and SBS Lien Services, that he was delinquent in paying his homeowner assessment fees. Although Multani paid the delinquent fees, he received a letter from SBS in August of 2005 alleging that he still owed approximately $2,000 in fees and costs. Multani met with SBS and issued a payment of $743.16 that was never credited to his account. In October, Multani attempted to pay the Association his monthly assessment but was told that the account had been referred to SBS “for collection.” One month later, the Association, acting through SBS, recorded a notice of delinquent assessment against the property in the amount of $3,317, which consisted of $2,229 in unpaid assessments and an additional $1,087 in attorney‘s fees, costs, late fees and interest.
Throughout 2006, Multani and the Association continued to “disput[e] the validity of the amount . . . owed . . . .” In February of 2007, Multani received a notice of sale informing him that the Association “intended to enforce the lien created by the November . . . recording of the Notice of Assessment by selling the Subject Property on March 27, 2007.” The Association alleged that Multani now owed almost $12,000 in assessment fees and costs. Although Multani disputed the Association‘s accounting, he agreed to pay the full amount and the Association released the assessment lien.
Shortly after the lien was released, Multani contacted the Association and “requested that his account be given . . . credit f[or] . . . previously non-credited payments.” Between April and July of 2007, Multani continued to make his “required monthly assessment payments, but was never given the credit due on the account.” In February of 2008, the Association recorded a second notice of delinquent assessment lien against the property and, in June, recorded a “Notice of Default and Lien.” Six months later, on December 5, 2008, the Association and its trustee, Witkin & Neal, “set a sale date of the property to take place on January 27, 2009.” Multani “sent a letter disputing the validity of the amount owed” and requested alternative dispute resolution. The Association did not respond.
The Association, however, elected to proceed and directed Witkin & Neal to record the notice of trustee sale set for January 27, 2009. In May of 2009, Multani informed the president of the Association, Randy Banks, that he “ha[d] been trying for some time to correct and rectify what seemed an impossible task of getting a [sic] accurate accounting on Plaintiffs’ account and getting the proper credits that were due.” Banks told Multani that he was unaware of the accounting discrepancies and would “provide assistance . . . with the outstanding issues regarding the [improper] Association assessments.”
Despite these assurances, on May 21, 2009, the Association placed a notice on the door of the Multanis’ condominium stating that they owed $13,640 for delinquent assessments and costs. Shortly after the notice was posted, the Multanis’ tenants informed them that the locks on the condominium unit had been changed. When Multani arrived at Castle Green to investigate the matter, hе was met by Banks, who said that he had contacted the police and that Multani would be arrested if he did not leave the premises. Although Multani informed the responding officers that he was the legal owner of the condominium, he was forced to leave the building. Between May and October of 2009, Banks and other Association members continued to “ha-rass[] Plaintiffs’ tenants,” causing them to vacate the condominium.
On July 23, 2009, the Association conducted a foreclosure sale of the Multanis’ condominium, which was purchased by ProValue Properties. Although the “property was estimated to be valued at approximately $400,000,” ProValue paid only $20,400, subject to IndyMac Bank‘s $75,000 deed of trust. The Association and its trustee never notified the Multanis that the sale had been postponed from January 27 to July 23, nor did they provide any notice after the sale was completed.
In October of 2009, the Multanis signed a lease with new tenants who moved into the condominium. However, on November 19, the Multanis received a courtesy copy of an unlawful detainer complaint from the Los Angeles Superior Court stating that (1) a nonjudicial foreclosure of the condominium had occurred on July 23, 2009; (2) although originally scheduled to occur on January 27, 2009, the Association‘s trustee had “from time
In November and December of 2009, ProValue repeatedly changed the locks on the condominium unit. Multani and his tenants had several disputes with ProValue, culminating in an altercation on December 17, 2009. Based on misrepresentations made by ProValue, the Pasadena police told Multani that he had to vacate the condominium by the end of the weekend or he would be arrested for trespassing. After being repeatedly harassed and threatened with arrest, Multani finally relinquished possession of the unit and elected to file a lawsuit against the Association, its agents-Witkin & Neal, SBS Lien Services and LB Property Management and numerous other parties, including ProValue.
2. Summary of plaintiffs’ claims
The Multanis’ complaint asserted numerous claims seeking to set aside the foreclosure, including quiet title, wrongful foreclosure, rescission and declaratory relief. The Multanis alleged that the foreclosure was improper because the Association and its agents (collectively defendants) had failed to properly serve the notice of trustee sale or comply with other procedural requirements mandated under
In addition to the foreclosure claims, the complaint alleged several tort claims based on defendants’ actions during the foreclosure process. Plaintiffs asserted claims for fraud, breach of fiduciary duty and intentional infliction of emotional distress alleging that defendants had (1) “intentionally mixed up the accounting of Plaintiffs’ dues, imposed unwarranted dues and other charges, and confused Plaintiffs as to what was actually going on by repeated filings of notices, liens, and releases of liens by Defendants“; (2) “intentionally did not properly credit Plaintiffs’ account so as to further extract additional monies in the form of collections costs, attorneys fees and late penalties“; and (3) “conspired to conduct a [nоnjudicial foreclosure] sale without any notice to prevent Plaintiffs from opposing such sale.”
B. Defendants’ Motion for Summary Judgment or Summary Adjudication
1. Defendants’ motion and supporting evidence
a. Summary of motion for summary judgment or adjudication
In June of 2011, the Association and its agents filed a motion for summary judgment or, alternatively, summary adjudication. First, defendants asserted that the undisputed evidence showed the Multanis had “violated the ‘tender rule’ by failing to tender the full amount before the foreclosure sale.” Second, defendants argued that they had provided evidence demonstrating substantial compliance with all statutory notice requirements. Third, defendants contended that plaintiffs were not harmed by any alleged procedural irregularity because they had actual notice that the foreclosure sale was scheduled to occur on January 27, 2009. Fourth, defendants argued that, pursuant to
As to plaintiffs’ tort claims, defendants argued that all of the conduct alleged in the complaint was related to the “processing of [a] . . . foreclosure” and was therefore “covered by the Civil Code Section 47(b) absolute privilege.” The Association also argued that the allegations in the complaint demonstrated that plaintiffs’ interference claims were time-barred.
The Association‘s agents, Witkin & Neal and LB Property Management, separately argued that all of the tort claims asserted against them should be dismissed because they were entitled to qualified immunity under
b. Summary of evidence filed in support of defendants’ motion
In support of their motion, defendants submitted a declaration from the chief operating officer of Witkin & Neal summarizing the actions the trustee had taken during the foreclosure proceedings. According to the declaration, on April 21, 2008, Witkin & Neal mailed plaintiffs a “pre-notice” of default letter informing them that a notice of delinquent assessment had been recorded against the property and that the current amount due on the account was $4,206.40. The letter further stated that plaintiffs had the right to “dispute the assessment debt by submitting a written request for dispute resolution.” A declaration of mailing indicated that the letter was sent to the Multanis’ condominium unit and a Pasadena post office box numbered “82341.”
The declaration also stated that, on June 23, 2008, Witkin & Neal mailed plaintiffs a notice of default and election to sell stating that the amount currently due totaled $5,494.73 and would continue to “increase until [the] account bec[a]me current.” A declaration of mailing indicated that the notice was sent to the same two addresses as the “pre-notice” letter and to a second Pasadena post office box numbered “92341.” On January 9, 2009, Witkin & Neal sent plaintiffs a notice of trustee‘s sale informing them that (1) the sale was scheduled to occur on January 27, 2009; (2) the total unpaid balance was currently $10,267.62; and (3) the foreclosure sale was subject to a 90-day redemption period during which the owners could reclaim the property. A declaration of mailing indicated that the notice was sent to the same three addresses as the notice of default.
The declaration further alleged that, “at the time and place fixed in the Notice of Trustee‘s Sale, [Witkin & Neal] did, by public announcement, and in a manner provided by law, postpone the sale date from time to time thereafter until July 23, 2009, when [Witkin & Neal] sold the Subject unit to ProValue Properties . . . for the sum of $20,200.” On July 31, 2009, defendants recorded a certificate of sale confirming that the prоperty was sold to ProValue and that the sale was subject to a 90-day “right of redemption.” According to the declaration, plaintiffs “made no attempt to tender the full amount before the foreclosure sale date” and “failed to redeem the Subject Property during the 90-day right of redemption period.” At the expiration of the 90-day redemption period, Witkin & Neal recorded a trustee‘s deed upon sale, dated November 6, 2009.
Defendants also submitted excerpts from Rahim Multani‘s deposition in which he admitted that he stopped paying his assessment fees because he
2. Plaintiffs’ opposition and supporting documentation
On August 10, 2011, plaintiffs submitted an opposition arguing that there were disputed issues of material fact as tо whether defendants had complied with all of the mandated procedural requirements. Plaintiffs argued, in relevant part, that (1) “[d]efendants failed to provide notice to Plaintiffs for the secret sale [that occurred on July 23, 2009]“; (2) defendant failed to respond to Rahim Multani‘s letter dated December 2008, in which he specifically requested alternative dispute resolution; and (3) IndyMac‘s subsequently rescinded foreclosure “extinguished” any prior notices the Association had issued in relation to their own foreclosure. Plaintiffs also argued that they were excused from complying with the tender rule because they had disputed “the validity of the underlying debt.”
As to the tort claims, plaintiffs asserted that their complaint alleged numerous forms of noncommunicative conduct that were not privileged under
In support of their opposition, plaintiffs submitted a 14-page declaration from Rahim Multani that contained a detailed discussion of the accounting dispute that preceded the Association‘s recording of the delinquency lien. Multani asserted that, in June of 2007, he paid the Association almost $12,000 to resolve a prior payment dispute that had begun in 2005, but that defendants failed to properly credit him for two prior рayments totaling approximately $1,500 and then began to intentionally inflate their monetary claims. Multani alleged that, on December 22, 2008, he sent the Association board a letter in which he disputed the amount that he owed and requested alternate dispute resolution. The Association, however, never responded to the letter.
Multani‘s declaration admitted that he knew defendants had scheduled a foreclosure sale for January 27, 2009, but asserted that he was led to believe
Multani also asserted that, during the foreclosure sale, defendants committed numerous “criminal acts by changing the locks on the Subject property . . . ; calling the Pasadena Police Department on more thаn one occasion to attempt to prevent [him] from [entering the subject property]; improperly having [him] detained; and attempt[ing] to place [him] under citizen‘s arrest for trespassing . . . .”4
C. The Trial Court‘s Ruling
At the hearing, plaintiffs argued that defendants had sent many of the foreclosure notices to the wrong address. According to plaintiffs’ attorney, Rahim Multani‘s proper mailing address was post office box number 92341, but defendants had sent several of the notices to post office box number 82341. Plaintiffs’ counsel further argued that the proper address had been on file with the Association but, “at some point[,] the homeowners association started sending it to the wrong P.O. box.”
In response, defendants’ attorney argued that they had submitted several recordations of mailings in support of their motion showing that most of the notices had in fact been sent to post office box 92341. Counsel also argued that it was irrelevant whether defendants had mailed the notices to the correct address because plaintiffs had admitted they “had actual knowledge of the [foreclosure] process.” After the court informed the parties that it was going to take the matter under submission, the following exchange occurred:
“PLAINTIFFS’ COUNSEL: Your honor, can I just ask the court to take a look at [section] 729.050.
“COURT: And what is it?
“PLAINTIFFS’ COUNSEL: That talks about the requirements. Their certificate of sale.
“COURT: Oh yeah, I‘m going to look at that.”
On August 23, 2011, the trial court filed аn order granting judgment in favor of Witkin & Neal and LB Property Management and granting the Association judgment on 12 of the 15 remaining claims pleaded against it.5 The court concluded that defendants were entitled to judgment on each of the four claims seeking to set aside the foreclosure because plaintiffs had admitted that they “failed to tender the amount of the debt prior to the sale or exercise [their] right[s] of redemption after the sale.”6
In addition, the court concluded that the following evidence demonstrated that plaintiffs were not “prejudice[ed]” by any “procedural irregularity” in the foreclosure proceedings: (1) prior to recording the notice of delinquent assessment, the Association sent plaintiffs a letter advising them of their right to alternative dispute resolution; (2) Witkin & Neal‘s declaration demonstrated that defendants had properly complied with all statutory requirements when postponing the foreclosure sale from January 27, 2009, to July 23, 2009; and (3) plaintiffs admitted they had “actual knowledge of the foreclosure proceedings” and, “[d]espite such knowledge, [had] failed to exercise their 90-day statutory right of redemption.”
The trial court also concluded that defendants’ evidence showed that four notices had been sent to plaintiffs’ condominium unit and post office box 82341: (1) a notice to pay or lien, dаted December 27, 2007; (2) a notice of delinquent assessment liens, which had been sent on February 28, 2008, and again on April 21, 2008; (3) a notice of default and election to sell, dated June 23, 2008; and (4) a notice of trustee‘s sale, dated October 31, 2009. The latter two items were also sent to post office box 92341, which Multani had alleged to be his proper mailing address. The court further noted that plaintiffs had never specifically alleged that they did not receive any of these four items.
The court entered judgment in favor of Witkin & Neal and LB Property Management on September 12, 2011. Three claims, however, remained pending against the Association: violation of the Unruh Civil Rights Act, forcible detainer and a request for an accounting.
On September 23, the Association moved for judgment on the pleadings seeking dismissal “of these remaining claims . . . such that judgment [may be] entered in favor of the Association.” The trial court granted the motion on October 19, 2011, and entered a final judgment in favor of the Association on November 9, 2011. Plaintiffs filed a timely appeal of the trial court‘s judgment and order granting defendants’ motion for summary judgment or adjudication.7
DISCUSSION
A. Standard of Review
“‘The standard for deciding a summary judgment motion is well-established, as is the standard of review on appeal.’ [Citation.] ‘A defendant moving for summary judgment has the burden of producing evidence showing that one or more elements of the plaintiff‘s cause of action cannot be established, or that there is a complete defense to that cause of action. [Citations.] The burden then shifts to the plaintiff to produce specific facts showing a triable issue as to the cause of action or the defense. [Citations.] Despite the shifting burdens of production, the defendant, as the moving party, always bears the ultimate burden of persuasion as to whether summary judgment is warranted. [Citation.] [Citation.]’ (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 805, 817.)”
“‘On appeal, we review de novo an order granting summary judgment. [Citation.] The trial court must grant a summary judgment motion when the
B. Defendants Failed to Satisfy Their Initial Burden of Production on Plaintiffs’ Foreclosure Claims
Plaintiffs argue that the trial court erred in dismissing each of their claims seeking to set aside the foreclosure sale because there are triable issues of fact as to whether defendants complied with numerous procedures required under the
1. The postsale right to redemption in nonjudicial foreclosures by a homeowner association for delinquent assessment fees
Special procedures govern nonjudicial foreclosures initiated by a homeowner association for the collection of delinquent assessment fees. Under the Davis-Stirling Common Interest Development Act (
As a general rule, the debtor in a nonjudicial foreclosure may avoid the loss of the property by “pay[ing] all amounts due at any time prior to the
In 2005, however, the Legislature adopted Senate Bill No. 137 (2005-2006 Reg. Sess.) (Stats. 2005, ch. 452, § 5, p. 3649), which placed numerous limitations on an association‘s ability to utilize foreclosure as a means to collect assessments. The legislative history indicates that Senate Bill No. 137 was intended to “institute[] . . . important procedural . . . requirements to protect CID homeowners” from the “extreme hammer of non-judicial foreclosure in order to collect relatively small amounts of overdue assessments.” (Off. of Assem. Floor Analyses, 3d reading analysis of Sen. Bill No. 137 (2005-2006 Reg. Sess.) as amended Sept. 1, 2005, pp. 4, 3.) Supporters of the bill argued that there had been “too many instances” in which “CID associations [had] . . . initiated [foreclosures] for relatively small amounts . . . , [and then] sold [the property] for an all-too-often shockingly small fraction of its actual value.” (Id. at pp. 3-4.) The bill sought to avoid similar outcomes in the future by providing “CID homeowners” additional “due process protections.” (Ibid.)
Senate Bill No. 137 added
2. Defendants failed to make a prima facie showing that plaintiffs cannot establish the elements necessary to set aside the foreclosure sale
Plaintiffs contend that the trial court erred in dismissing their foreclosure claims because defendants failed to notify them of their right of redemption as required under
a. Defendants have waived any argument regarding plaintiffs’ failure to plead a violation of section 729.050
Before addressing the merits of this argument, we assess defendants’ contention that we should “disregard[]” this “alleged [procedural] violation” because it “is outside the scope of the Second Amended Complaint.”
Generally, “[a] defendant moving for summary judgment need address only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]” (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98-99, fn. 4.) Defendants assert that, in this case, plaintiffs’ “allegation that [the Association and its trustee] somehow violated [s]ection 729.050 . . . does not exist in the [second amended complaint],” which prohibits them from raising the issue on appeal.
Plaintiffs’ complaint, however, alleges that defendants “conducted the foreclosure proceedings unlawfully in that they did not follow the California non-judicial foreclosure sale procedures prescribed by . . .
In the trial court, plaintiffs’ opposition papers included a declaration from Rahim Multani in which he alleged that defendants did not comply with
b. Defendants failed to make a prima facie showing that they were entitled to dismissal of plaintiffs’ claims seeking to set aside the foreclosure
As the party moving for summary adjudication of plaintiffs’ foreclosure claims, defendants had the ” ‘initial burden of production to make a prima facie showing’ ” that ” ‘one or more elements of the plaintiff‘s cause of action cannot be established.’ ” (Hypertouch, supra, 192 Cal.App.4th at pp. 838, 818.)
“The rights and powers of trustees in nonjudicial foreclosure proceedings have long been regarded as strictly limited and defined by the contract of the parties and the statutes.” (I. E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 287 [216 Cal.Rptr. 438, 702 P.2d 596].) “Because nonjudicial foreclosure is a ‘drastic sanction’ and a ‘draconian remedy’ [citation], ‘[t]he statutory requirements must be strictly complied with, and a trustee‘s sale based on statutorily deficient notice of default is invalid.’ [Citation.]” (Ung v. Koehler (2005) 135 Cal.App.4th 186, 202-203 [37 Cal.Rptr.3d 311]; see Holland v. Pendleton Mtge. Co. (1943) 61 Cal.App.2d 570, 573-574 [143 P.2d 493] [foreclosure sale invalid where trustee fails to comply with statutory notice procedures]; 4 Miller & Starr, Cal. Real Estate (3d ed. 2011) § 10:210, p. 670 [“A sale оf the collateral by an exercise of the power of sale in violation of the statutory limitations on the power is invalid.“].)
To set aside a foreclosure, a plaintiff must generally establish three elements: “(1) the trustee . . . caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale . . . was prejudiced or harmed; and (3) in cases where the trustor . . . challenges the sale, the trustor . . . tendered the amount of the secured indebtedness or was excused from tendering.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104 [134 Cal.Rptr.3d 622] (Lona).) Defendants argue that their moving papers made a prima facie showing that plaintiffs cannot establish any of these three elements.
i. Defendants introduced no evidence that they complied with section 729.050
“Justifications . . . which satisfy the first element [(to set aside a foreclosure)] include the trustee‘s . . . failure to comply with the statutory procedural requirements for the notice or conduct of the sale.” (Lona, supra, 202 Cal.App.4th at p. 104.) Although there is generally no “postsale right of redemption” in nonjudicial foreclosure proceedings (Alliance, supra, 10 Cal.4th at p. 1236), a nonjudicial foreclosure by an association for delinquent assessments is “subject to the right of redemption within 90 days after the sale.” (
Defendants have failed to provide any evidence that they complied with this statutory requirement. In support of their motion for summary adjudication, defendants submitted evidence that they mailed the Multanis the following notices regarding the foreclosure proceedings: (1) a “pre-notice of Default letter,” mailed April 21, 2008; (2) a “Notice of Default and Election to Sell,” mailed June 23, 2008; (3) a “Notice of Board Decision to Foreclose and Notice of Default,” mailed October 7, 2008; and (4) a “Notice of Trustee‘s Sale,” mailed January 9, 2009. Defendants also submitted evidence that, following the foreclosure sale, the trustee recorded a “Certification of Sale” on July 31, 2009, and then recorded the “Trustee‘s Deed Upon sale . . . [a]fter the 90-day right of redemption period expired.”
Defendants, however, have cited no evidence in the record—and we have located none—demonstrating that it mailed the Multanis a notice of right to
Defendants have not cited any authority indicating that this common law presumption of regularity applies to the postsale redemption procedures at issue here. All of the cases they cite applied the presumption in the context of standard nonjudicial foreclosures that were not subject to statutory redemption. Even if the common law presumption were to apply to redemption procedures, however, a defendant moving for summary adjudication of claims seeking to set aside a foreclosure may not discharge his or her initial burden of production by merely referencing the presumption. The presumption, which is rebuttable (see 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279, 1284 [102 Cal.Rptr.2d 711]), merely requires that the party “attacking the sale” must ” ‘plead[] and prove[] an improper procedure and the resulting prejudice.’ [Citation.]” (Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.) Thus, the plaintiff has the burden to allege in its pleading that a prejudicial irregularity occurred and then to prove that allegation at trial.
For the purposes of summary judgment or adjudication, however, defendants still must make a prima facie showing that plaintiffs could not prove that any irregularity occurred. This initial burden required defendants here to ” ‘present evidence’ ” that they complied with the statutory procedures applicable to this foreclosure. (Hypertouch, supra, 192 Cal.App.4th at p. 838.) Their failure to do so means that they failed to ” ‘conclusively negate[]’ ” the first element of plaintiffs’ foreclosure claims. (Ibid.)
ii. Defendants did not make a prima facie showing that plaintiffs suffered no harm from the procedural defect
The second element necessary to set aside a foreclosure requires the plaintiff to show that he or she was “prejudiced or harmed” by defendants’ failure to comply “with the statutory procedural requirements” for the foreclosure sale. (Lona, supra, 202 Cal.App.4th at p. 104 [to challenge a sale successfully there must be evidence of a failure to comply with the procedural requirements for the foreclosure sale that caused prejudice to the person attacking the sale].)
Defendants, however, contend that no such prejudice occurred here because plaintiffs were provided enough information to independently calculate when their redemption period was set to expire. In support, defendants cite evidence indicating that, prior to the foreclosure sale, they provided plaintiffs a statutorily required notice of intent to sell stating that (1) the foreclosure sale was scheduled to occur on January 27, 2009, and (2) the sale would be subject to a right of redemption that would end 90 days after the sale date. Defendants assert that, based on this information, plaintiffs could have determined when their right to redemption ended and therefore were not harmed by the trustee‘s failure to comply with
For the purposes of this appeal, we assume that defendants did in fact make a prima facie showing that they properly notified plaintiffs that the foreclosure sale was originally scheduled to occur on January 27 and that the sale would be subject to a 90-day right of redemption.12 Such evidence, however, is insufficient to demonstrate that plaintiffs suffered no prejudice or harm from defendants’ failure to comply with the notice requirements of
This postsale notice requirement is of heightened importance where, as here, the trustee postponed the original sale date without individualized notice to the debtor.
Defendants’ argument would also permit homeowner associations to ignore
The primary authority defendants cite in support of their assertion that plaintiffs cannot establish harm is Knapp, supra, 123 Cal.App.4th 76, which held that “a slight deviation from statutory notice requirements” does not always require a court to “invalidate a foreclosure sale, where the trustee otherwise complies fully with the
The court ruled that, under such circumstances, the foreclosure need not be set aside, concluding: “[T]he slight procedural irregularity in the service of the [s]ale [n]otice did not cause any injury to [b]orrowers. They had notice of the original sale date; the trustee‘s sale did not go forward until almost one year after the date noticed. There was no prejudicial procedural irregularity.” (Knapp, supra, 123 Cal.App.4th at p. 94, some italics omitted.) In the court‘s view, the “[b]orrowers’ objection to the premature notice [wa]s, in effect, a criticism that the trustee provided too much notice of the sale. There [wa]s no evidence that they were prejudiced by the premature mailing of the notice. Given the fact that the trustee‘s sale did not occur until almost a year after service of the [s]ale [n]otice, it is difficult to imagine how [b]orrowers could claim any prejudice.” (Id. at p. 96.)
In reaching its holding, the court specifically differentiated prior decisions setting aside foreclosure sales in which the debtor had been denied a ” ‘substantial statutory right’ ” that was likely to result in prejudice. (Knapp, supra, 123 Cal.App.4th at p. 94.) According to the court, “no such substantial statutory right was abridged by trustee‘s premature mailing of the [s]ale [n]otice, which otherwise gave [b]orrowers adequate and timely notice of the trustee‘s sale.” (Ibid.)
The facts in Knapp bear little resemblances to the facts in this case. Defendants’ failure to comply with
iii. Defendants failed to establish that the tender rule precluded plaintiffs from seeking to set aside the foreclosure sale
Defendants argue that plaintiffs cannot satisfy the third element necessary to set aside a foreclosure sale, which requires a showing that “the trustor . . . tendered the amount of the secured indebtedness or was excused from tendering.” (Lona, supra, 202 Cal.App.4th at p. 104.) Defendants assert that plaintiffs have admitted they never offered to pay the full amount of the debt and are therefore precluded from challenging the foreclosure sale.
The tender requirement is rooted in the equitable nature of an action to set aside a nonjudicial foreclosure. “Because the action is in equity, a defaulted borrower who seeks to set aside a trustee‘s sale is required to do equity before the court will exercise its equitable powers. [Citation.] Consequently, as a condition precedent to an action by the borrower to set aside the trustee‘s sale on the ground that the sale is voidable because of irregularities in the sale notice or procedure, the borrower must offer to pay the full amount of the debt for which the property was security. [Citation.] ‘The rationale behind the rule is that if [the borrower] could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the [borrower].’ [Citation.]” (Lona, supra, 202 Cal.App.4th at p. 112.)
There are, however, several exceptions to the requirement. “First, if the borrower‘s action attacks the validity of the underlying debt, a tender is
As discussed above, a nonjudicial foreclosure by an association predicated on delinquent assessment fees is unique in that the CID owner is entitled to a postsale right of redemption. (See
Defendants assume, without discussion, that the tender requirement applies where, as here, the debtor is seeking to set aside a nonjudicial foreclosure subject to a statutory, postsale right of redemption. Although we have found no authority analyzing the issue, we conclude that a debtor is properly excused from complying with the tender requirement where the nonjudicial foreclosure is subject to a statutory right of redemption and the trustee has failed to provide the notice required under
Applying the tender rule under such circumstances would be inconsistent with the statutory scheme. CID owners who were denied their statutory right to be notified of the redemption process could only challenge the denial of that right by offering to tender the amount of the secured debt. In other words, CID owners could only challenge an association‘s failure to provide notice of the redemption process by offering to forgo the redemption process. Such an outcome would be neither logical nor equitable.
Defendants argue that even if plaintiffs were not required to tender the amount of the secured debt as a condition of bringing their suit, they were
Because defendants failed to make a prima facie showing that plaintiffs cannot establish any of the three elements necessary to set aside the foreclosure, it is not entitled to summary adjudication on plaintiffs second, third, sixth or seventh causes of action.
C. Plaintiffs Have Forfeited Any Claim of Error Regarding Additional Causes of Action Pleaded in the Second Amended Complaint
In addition to their four claims seeking to set aside the foreclosure, plaintiffs’ second amended complaint asserts 13 tort and statutory-based claims arising from various acts that defendants allegedly committed during the foreclosure process. The trial court dismissed all 13 of these additional claims at various points in the proceedings. The сourt sustained a demurrer without leave to amend on two of the claims—violations of the Rosenthal Fair Debt Collection Practices Act and RICO—prior to the hearing on the motion for summary adjudication. The trial court‘s order granting defendants’ motion for summary adjudication dismissed four of the claims—fraud, breach of fiduciary duty, intentional infliction of emotional distress and unfair business practices—on the basis that each claim was predicated on “actions . . . subject to immunities set forth in [Civil Code sections] 47 and 2924(b).” The summary adjudication order also dismissed plaintiffs’ four interference claims, concluding that they were “time barred.” Finally, the court dismissed the remaining three claims for violation of the Unruh Civil Rights Act, accounting and forcible detainer pursuant to an order granting defendants’ motion for judgment on the pleadings.
For the purposes of this appeal, we need not assess whether the litigation privilege applies to plaintiffs’ claims seeking to set aside the foreclosure sale. The trial court‘s order granting the motion for summary adjudication demonstrates that it dismissed those particular claims based on its finding that plaintiffs had not complied with the tender rule and had not been prejudiced by any “procedural irregularity,” not because the claims were precluded under the litigation privilege. For the reasons discussed above, we have reversed the trial court‘s dismissal of those claims.
As to the remaining causes of action set forth in the second amended complaint, plaintiffs have forfeited any claim of error. “[I]t is appellant‘s burden to affirmatively show error. [Citation.] To demonstrate error, appellant must present meaningful legal analysis suрported by citations to authority and citations to facts in the record that support the claim of error. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408 [41 Cal.Rptr.3d 453] (S.C.).) “Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078 [123 Cal.Rptr.2d 278].) “Hence, conclusory claims of error will fail.” (S.C., supra, 138 Cal.App.4th at p. 408.)
Plaintiffs’ conclusory assertions that the litigation privilege does not apply to their “cause of action for intentional interference with contractual relations” or their “eight through twentieth causes of action”15 do not constitute “adequate factual or legal analysis.” (Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135
Plaintiffs’ discussion of the litigation privilege consists of little more than a summary of general abstract principles that is devoid of a single citation to the record. (See generally Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199 [214 P.2d 603] [“[A]n appellate court cannot be expected to search through a voluminous record to discover evidence on a point raised by appellant when his brief makes no reference to the pages where the evidence on the point can be found in the record.“].) Although plaintiffs’ brief summarizes various holdings pertaining to different aspects of the litigation privilege, it fails to adequately explain how those holdings relate to the nonforeclosure claims asserted in the complaint.
In sum, to the extent plaintiffs were requesting that we reverse the trial court‘s dismissal of any claims beyond those seeking to set aside the foreclosure sale, they failed “to provide meaningful legal analysis and record citations for [their] complaints.” (S.C., supra, 138 Cal.App.4th at p. 408.)16 These claims have therefore been abandoned. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
DISPOSITION
The trial court‘s judgment is reversed and the case is remanded for further proceedings. The trial court‘s order granting defendants’ motion for summary judgment, or, in the alternative, summary adjudication is reversed to the
Perluss, P. J., and Jackson, J., concurred.
A petition for a rehearing was denied May 29, 2013, and the opinion was modified to read as printed above.