Filed 10/23/20 Guliex v. PennyMac Holdings CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
FRED GULIEX,
F078598
Plaintiff and Appellant,
(Super. Ct. No. S1500CV280938)
v.
PENNYMAC HOLDINGS, LLC, OPINION
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Kern County. Stephen D.
Schuett, Judge.
J. Wright Law Group and Jamie Wright for Plaintiff and Appellant.
Duncan Peterson, Christopher L. Peterson and Michael M. Baker for Defendant
and Respondent.
-ooOoo-
Plaintiff Fred Guliex filed an action against defendant, PennyMac Holdings, LLC
(PennyMac or defendant), founded on the premise that defendant wrongfully foreclosed
on plaintiff’s property because, allegedly, defendant never received the beneficial interest
in the deed of trust nor any other interest conferring a right to foreclose. The trial court
previously entered a defense judgment in this case stemming from defendant’s successful
demurrer to most of the causes of action and a motion for summary judgment disposing
of the remainder. Plaintiff appealed from that prior judgment. In 2017, we reversed
because the trial court erroneously took judicial notice of the truth of disputable factual
matters contained in certain documents in the chain of title. We held that such disputable
evidentiary matters went beyond the permissible bounds of judicial notice, were improper
considerations on a demurrer, and resulted in a failure by defendant to meet its burden as
the moving party on the motion for summary judgment. Accordingly, the judgment was
reversed, and the case was remanded back to the trial court.1
In 2018, after conducting further discovery on remand, defendant filed a new
motion for summary judgment seeking to establish all the links in the chain of title to
confirm that it had acquired the beneficial interest in the deed of trust and, thus, had
authority to foreclose. The trial court held that defendant’s motion succeeded in doing
so, and plaintiff’s opposition failed to present evidence demonstrating a triable issue of
fact. In other words, under the uncontradicted showing made by defendant, defendant
had a right to foreclose—which right defeated plaintiff’s causes of action. Accordingly,
summary judgment was granted. Following entry of judgment, plaintiff filed the present
appeal challenging the trial court’s order granting summary judgment. Plaintiff’s appeal
consists of only cursory argument that error occurred, claiming in broad and conclusory
terms that defendant’s showing fell short of adequately establishing the missing links in
the chain of title that our 2017 opinion had identified. We find that plaintiff has failed to
meet his fundamental burden as an appellant, as shall be explained herein, and thus his
appeal fails on that basis alone. Alternatively, we conclude the trial court correctly
granted summary judgment because defendant’s motion made a sufficient prima facie
1 Our nonpublished opinion reversing the judgment is Guliex v. PennyMac
Holdings, LLC (July 12, 2017, F073142), and is referred to as the 2017 opinion.
2.
showing—under each of the two available methods for doing so—to shift the burden to
plaintiff, and plaintiff’s opposition failed to demonstrate the existence of a triable issue of
material fact. For these reasons, the judgment of the trial court is affirmed.
BACKGROUND AND PROCEDURAL HISTORY
Facts Leading to Plaintiff’s Lawsuit
For purposes of introducing the history of this dispute, the following summary of
background facts is largely derived from the facts recited in our 2017 opinion in this case.
In 2005, plaintiff purchased residential real property in Arvin, California (the
property), which he financed by obtaining a $156,000 loan from Long Beach Mortgage
Company. The loan was memorialized by a promissory note and was secured by a deed
of trust against the property, the latter being recorded on June 30, 2005 (the deed of
trust). Subsequently, according to documents presented in the case, Washington Mutual
Bank became the successor in interest to Long Beach Mortgage Company. In 2008,
according to documents presented in the case, Washington Mutual Bank was seized by
federal regulators, went into receivership conducted by the Federal Deposit Insurance
Corporation (FDIC), and the bulk of Washington Mutual Bank’s assets were sold by the
FDIC to JPMorgan Chase Bank, National Association.
Plaintiff defaulted on his loan payments in 2009. During his deposition, plaintiff
testified he called “Chase” to ask about a loan modification. No modification was ever
made. Plaintiff did not resume making payments under the loan.
On July 26, 2011, three documents relating to the deed of trust were recorded in
the official records of Kern County. The first document recorded was an assignment of
deed of trust dated July 25, 2011, which stated JPMorgan Chase Bank, National
Association, successor in interest to Washington Mutual Bank, successor in interest to
Long Beach Mortgage Company, granted, assigned and transferred to JPMorgan Chase
Bank, National Association all beneficial interest under the deed of trust together with the
note or notes secured by the deed of trust.
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The second document was a substitution of trustee dated July 25, 2011, stating that
California Reconveyance Company was substituted for the original trustee, Long Beach
Mortgage Company. The third document recorded on that same date was a notice of
default and election to sell under deed of trust, thereby formally initiating foreclosure
proceedings because plaintiff was behind or past due in his loan payments by $38,616.91.
On October 27, 2011, California Reconveyance Company recorded a notice of
trustee’s sale. The notice stated plaintiff was in default under the deed of trust and it
estimated the amount of plaintiff’s unpaid balance and other charges at $196,269.23. The
notice informed plaintiff that the trustee’s sale would occur on November 23, 2011, in
Bakersfield.
The trustee’s sale scheduled for November 2011 was not held. Plaintiff claimed
that after months of attempting to modify the loan, he filed for bankruptcy. It is not clear
when the bankruptcy proceedings were concluded.
The foreclosure process was resumed on August 26, 2013, when California
Reconveyance Company recorded a second notice of trustee’s sale. The notice stated
plaintiff was in default under the deed of trust and it estimated the amount of the unpaid
balance and other charges to be $218,300.83. The notice stated the trustee’s sale would
be held on September 18, 2013, in Bakersfield.
A “California Assignment of Deed of Trust” dated September 14, 2013, was
recorded in Kern County on November 15, 2013. This document stated that JPMorgan
Chase Bank, National Association, granted, sold, assigned, transferred and conveyed to
PennyMac Mortgage Investment Trust Holdings I, LLC, all beneficial interest under the
deed of trust. For reasons that are not apparent, JPMorgan Chase Bank, National
Association subsequently recorded a second assignment of the same interest, entitled
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“Corporate Assignment of Deed of Trust,” dated November 21, 2013, purporting to
assign the deed of trust to PennyMac Holdings, LLC.2
On November 20, 2013, the property was sold by California Reconveyance
Company at a trustee’s sale. The trustee’s deed upon sale, as recorded on November 22,
2013, states that the purchaser was PennyMac Holdings, LLC, referred to herein as
PennyMac.
Plaintiff’s Lawsuit and the Proceedings Leading to the Prior Appeal
In December 2013, plaintiff filed his lawsuit against PennyMac, PennyMac Loan
Services, and California Reconveyance Company. In 2014, plaintiff filed a first amended
complaint, which is the operative pleading for purposes of this appeal.3 The first
amended complaint contained headings for five causes of action, all five of which were
premised on plaintiff’s basic position that the November 2013 foreclosure was illegal. As
we noted in our 2017 opinion, the first amended complaint alleged that PennyMac “has
no secured or unsecured right, title or interest in the note and deed of trust and has no
right to collect . . . or demand mortgage payments.” Additionally, plaintiff “specifically
disputed the validity of the assignment recorded in July 2011 and the two assignments
recorded in November of 2013.” Furthermore, in plaintiff’s point of view, PennyMac
must allegedly “establish a complete and unbroken chain of title from the origination of
2 As will be discussed, PennyMac Mortgage Investment Trust Holdings I, LLC,
changed its name to PennyMac Holdings, LLC; that is, the two names identified one and
the same entity. Thus, this was a second assignment of the beneficial interest in the deed
of trust to PennyMac. Of course, assuming the first assignment by JPMorgan Chase
Bank, National Association, of the beneficial interest in the deed of trust to PennyMac
was valid, it was the effective assignment thereof to PennyMac, making the second
merely superfluous.
3 Plaintiff’s record on appeal did not include a copy of the first amended complaint.
Our general description here of that pleading is based on the statement of background
facts contained in our 2017 opinion.
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the loan to the transaction that established PennyMac’s purported ownership of the deed
of trust.”
In September 2014, PennyMac filed a demurrer to the first amended complaint.
PennyMac argued that plaintiff lacked standing to challenge its authority to foreclose and
failed to allege facts showing prejudice or the ability and willingness to tender payment
of the debt. The trial court sustained the demurrer as to three of the five causes of action,
without leave to amend. The trial court concluded that PennyMac’s chain of title was
shown thereby perfecting its right to foreclose, all based on judicial notice, and plaintiff
lacked standing to challenge the foreclosure. In August 2015, PennyMac filed a motion
for summary judgment concerning the remaining two causes of action, which was
granted. Thus, as a result of the order sustaining the demurrer and the order granting
summary judgment, the entire case was resolved without a trial.
Plaintiff appealed, which resulted in our 2017 opinion as described below.
This Court’s 2017 Opinion
As noted, our resolution of plaintiff’s former appeal was to reverse the trial court’s
judgment (the 2017 opinion). In the 2017 opinion, we held the trial court erred in taking
judicial notice of disputable facts asserted in recorded documents in the chain of title.
Because such disputable evidentiary matters went beyond the permissible bounds of
judicial notice and were improper considerations on demurrer, we concluded the
demurrer should have been overruled. We also pointed out why the recorded documents,
at least as considered within the constraints of judicial notice, were insufficient to show
certain of the links in the chain of title; that is, we observed there were gaps in the
purported chain of title records relied upon by PennyMac in connection with the
demurrer. For similar reasons, the evidence submitted by PennyMac in support of its
motion for summary judgment of the remaining causes of action—which consisted of
PennyMac’s request for judicial notice of certain recorded documents in the chain of
title—was deemed insufficient to meet PennyMac’s burden as the moving party. As we
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pointed out in our 2017 opinion, it is well established that courts may take judicial notice
of the existence and wording of recorded documents, but not of disputed or disputable
facts stated therein. For these reasons, the judgment of the trial court was reversed, and
the case was remanded to the trial court for further proceedings.
Our 2017 opinion did not make factual findings, other than to point out the
inadequacy of the limited showing in the trial court on the issue of chain of title, which
had been premised solely on certain judicially noticed documents. Nothing in our 2017
opinion precluded PennyMac from attempting to make a more complete or adequate
evidentiary showing on remand in a subsequent hearing or trial. That is precisely what
PennyMac did do, as we now explain.
PennyMac’s Motion for Summary Judgment
As noted, the causes of action in the first amended complaint were predicated on
plaintiff’s contention that PennyMac did not have the beneficial interest in the deed of
trust and therefore did not have a right to foreclose. On July 26, 2018, PennyMac moved
for summary judgment on the ground that the supporting evidence showed that
PennyMac obtained the beneficial interest in the deed of trust. The points and authorities
in support of the motion included an extensive discussion of our 2017 opinion, and
PennyMac explained therein that its motion included additional supporting evidence to
establish the links in the chain of title that our 2017 opinion had pointed out were not
adequately shown by the formerly relied upon request for judicial notice. As will be
seen, the additional evidence referred to by PennyMac included discovery admissions and
other concessions by plaintiff under oath, declarations of bank representatives confirming
the authenticity of certain assignments, and evidence verifying PennyMac’s name
change.
The trial court agreed that PennyMac had met its burden of proof, stating: “The
Court finds that the links in the chain of title have now been established that were a
problem for the Fifth District in the prior motion for summary judgment. And based on
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the Court’s finding that there is not a cause of action for wrongful foreclosure, the other
causes of action fall for that reason.” In its written order filed on October 26, 2018, the
trial court explained that PennyMac had met its initial burden of establishing, with
competent evidence, that it was entitled under the undisputed facts to judgment as a
matter of law, and plaintiff had failed to controvert that showing. Thus, the motion for
summary judgment was granted.
Judgment was entered by the trial court in favor of PennyMac. Notice of entry of
judgment was filed and served on November 1, 2018. By a separate postjudgment order,
the trial court lifted a stay it had previously put in place on the enforcement by PennyMac
of its unlawful detainer default judgment, which enforcement was sought through a writ
of possession. On December 24, 2018, plaintiff timely filed his notice of appeal from the
judgment entered following the order granting the motion for summary judgment, and
also from the order lifting the stay. We issued a provisional order staying enforcement of
the writ of possession and any action to evict plaintiff from the property in question
pending determination of the instant appeal.4
DISCUSSION
I. Summary Judgment Law and Standard of Review
Summary judgment is appropriate when all the papers submitted show there is no
triable issue of material fact and the moving party is entitled to a judgment as a matter of
law. (Code Civ. Proc., § 437c, subd. (c); Regents of University of California v. Superior
Court (2018) 4 Cal.5th 607, 618.) “The purpose of the law of summary judgment is to
provide courts with a mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact necessary to resolve their
dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) “In a
motion for summary judgment, the moving party bears the initial burden to make a prima
4 PennyMac’s motion to dismiss the appeal as frivolous is denied.
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facie showing that no triable issue of material fact exists. [Citation.] If this burden is
met, the party opposing the motion bears the burden of showing the existence of disputed
facts.” (Sosa v. CashCall, Inc. (2020) 49 Cal.App.5th 42, 52; accord, Aguilar, supra, 25
Cal.4th at pp. 845, 849–850.) A prima facie showing is one that is sufficient to support
the position of the party in question; no more is called for. (Aguilar, supra, at pp. 850–
851.) The prima facie showing by the moving party must be such that it would, if
uncontradicted, entitle the moving party to judgment as a matter of law. (Id. at p. 851;
Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1101.) Where a moving defendant makes
an adequate initial showing, the burden shifts to the plaintiff to present evidence
demonstrating a triable issue of material fact. If the plaintiff fails to do so, the motion
will be granted. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 780–781.)
A defendant moving for summary judgment has the initial burden of showing,
with respect to each cause of action set forth in the complaint, the cause of action is
without merit. A defendant meets that burden by showing one or more elements of the
cause of action cannot be established, or there is a complete defense thereto. (Code Civ.
Proc., § 437c, subd. (p)(2); Leyva v. Garcia, supra, 20 Cal.App.5th at p. 1101.) This may
be done either by (i) presenting evidence that affirmatively disproves or negates an
element of the plaintiff’s case or establishes a complete defense thereto, or, alternatively,
(ii) presenting evidence that the plaintiff does not possess, and cannot reasonably obtain,
needed evidence—as through admissions by the plaintiff following extensive discovery
to the effect that he has discovered nothing to support an essential element of his case.
(Aguilar, supra, 25 Cal.4th at pp. 853–855; Leyva v. Garcia, supra, 20 Cal.App.5th at
pp. 1102–1103, accord, Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 110 [the
defendant’s burden under the second method may be met by means of, among other
things, presenting the plaintiff’s factually devoid discovery responses on an element of
the plaintiff’s cause of action]; Scheiding v. Dinwiddie Construction Co. (1999) 69
Cal.App.4th 64, 83.) As noted, if the defendant makes such an initial prima facie
9.
showing under either method, the burden shifts to the plaintiff to present evidence
demonstrating a triable issue of material fact. If the plaintiff fails to do so, the motion
will be granted. (Leyva v. Garcia, supra, at p. 1102; Saelzler v. Advanced Group 400,
supra, 25 Cal.4th at pp. 780–781.)
In our review, we keep in mind that a summary judgment is directed to the issues
framed by the pleadings. (Conroy v. Regents of University of California (2009) 45
Cal.4th 1244, 1250.) Accordingly, the burden of a defendant moving for summary
judgment only requires that he or she show that the plaintiff cannot establish the theories
of liability as alleged in the complaint. (Id. at p. 1254; accord, Leyva v. Garcia, supra,
20 Cal.App.5th at p. 1102.)
On appeal, we review the trial court’s decision granting a motion for summary
judgment de novo. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.) We
consider all the evidence set forth in the moving and opposing papers except that to
which objections were made and sustained. (Ibid.) In performing our de novo review,
we strictly construe the moving party’s evidence, we liberally construe the opposing
party’s evidence, with any doubts resolved in favor of the party opposing the motion.
(Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [evidence viewed in light
most favorable to losing party].) Guided by these principles, our task is to independently
determine whether an issue of material fact exists and whether the moving party is
entitled to summary judgment as a matter of law. (Jones v. Awad (2019) 39 Cal.App.5th
1200, 1206; Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601; see Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456, 464 [on review of a summary judgment order, “we
examine the facts presented in the trial court and determine their effect as a matter of
law”].)
II. Plaintiff Failed to Meet Burden on Appeal
In its respondent’s brief in this appeal, preliminary to its discussion of the merits
of whether it was entitled to summary judgment, PennyMac first contends that plaintiff’s
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appeal has failed to meet his fundamental burden as an appellant, under the rules and
minimum standards applicable to any civil appeal. As explained below, we agree with
PennyMac’s contention.
Although we apply a de novo standard of review, a party challenging a summary
judgment ruling still has the same burden on appeal as any other civil appellant. One of
the fundamental principles of appellate procedure is that a judgment or order of the trial
court is presumed correct, and error must be affirmatively shown by the appellant.
(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Accordingly, “ ‘ “On review of a
summary judgment, the appellant has the burden of showing error, even if he did not bear
the burden in the trial court. [Citation.] . . . . ‘As with an appeal from any judgment, it is
the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point
out the triable issues the appellant claims are present by citation to the record and any
supporting authority. In other words, review is limited to issues which have been
adequately raised and briefed.’ [Citation.]” [Citation.]’ ” (Dinslage v. City and County
of San Francisco (2016) 5 Cal.App.5th 368, 379; accord, Centex Homes v. St. Paul Fire
& Marine Ins. Co. (2018) 19 Cal.App.5th 789, 796 [same principles stated, including that
appellate review is limited to contentions adequately raised in the appellant’s briefs];
Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 645 [same, noting an
appellant challenging a summary judgment bears the burden of establishing error on
appeal, even though the respondent had the burden of proving its right to summary
judgment in the trial court].)
De novo review does not obligate a reviewing court to cull the record for the
benefit of the appellant in order to attempt to uncover the requisite triable issues. (Mark
Tanner Construction, Inc. v. HUB Internat. Ins. Services, Inc. (2014) 224 Cal.App.4th
574, 583–584.) Rather, as we have noted, the appellant has an affirmative burden to
demonstrate error. (Id. at p. 583.) Generally, this means the party appealing from a
summary judgment order must direct the reviewing court to evidence and issues of fact
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that support his arguments. (See Dinslage v. City and County of San Francisco, supra,
5 Cal.App.5th at p. 379.) Even on de novo review, “the appellant must frame the issues
for us, show us where the superior court erred, and provide us with proper citations to the
record and case law.” (Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892,
913.) Again, “an appellant must do more than assert error and leave it to the appellate
court to search the record and the law books to test his claim. The appellant must present
an adequate argument including citations to supporting authorities and to relevant
portions of the record.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154
Cal.App.4th 547, 557.) “An appellant who fails to pinpoint the evidence in the record
indicating the existence of triable issues of fact will be deemed to have waived any claim
the trial court erred in granting summary judgment.” (Dinslage v. City and County of San
Francisco, supra, 5 Cal.App.5th at p. 379.)
Applying the foregoing principles, we conclude that plaintiff failed to meet his
fundamental burden as appellant of affirmatively demonstrating error based on legal
argument and citation to the record. In particular, we agree with PennyMac’s contention
that plaintiff’s appeal (i) failed to provide an adequate record on appeal, and (ii) failed to
show the existence of any particular error in the trial court’s ruling through cogent legal
argument and citation to the record. In this context, plaintiff was obliged to identify the
existence of any purported triable issue of fact or any specific evidence in PennyMac’s
moving papers that plaintiff believed to be insufficient, but he did not do so. These
conclusions are further explained in our discussion below.
First, as correctly observed by PennyMac, the record on appeal furnished by
plaintiff failed to provide a copy of the relevant pleading, namely, the first amended
complaint. That omission renders the record on appeal incomplete to the point that
meaningful review of the summary judgment ruling is significantly hindered. It is well
established that the pleadings frame, delimit and define the issues to be considered on a
motion for summary judgment. (Nativi v. Deutsche Bank National Trust Co. (2014) 223
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Cal.App.4th 261, 289–290; Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351,
1355; Lee v. Bank of America (1994) 27 Cal.App.4th 197, 215–216.) Indeed, the
materiality of a disputed fact is measured by the pleadings, which set the boundaries of
the issues to be resolved on summary judgment. (Conroy v. Regents of University of
California, supra, 45 Cal.4th at p. 1250; see FPI Development, Inc. v. Nakashima (1991)
231 Cal.App.3d 367, 381 [the complaint measures the materiality of the facts tendered in
a defendant’s challenge to a plaintiff’s cause of action on motion for summary
judgment].) Accordingly, the burden of a defendant moving for summary judgment only
requires that he or she show that the plaintiff cannot establish the theories of liability as
alleged in the complaint. (Conroy v. Regents of University of California, supra, 45
Cal.4th at p. 1254; County of Santa Clara v. Atlantic Richfield Co. (2006) 137
Cal.App.4th 292, 332.) When an appellate court reviews a ruling on a motion for
summary judgment, the court is to consider the issues as framed or defined by the
pleadings. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252.)
For these reasons, the absence from the appellate record of the relevant pleading to
which PennyMac’s dispositive motion was directed substantially hinders our ability to
engage in meaningful review of the issues presented. It was plaintiff’s responsibility as
the appellant to provide an adequate record for appellate review. (In re Marriage of
Wilcox (2004) 124 Cal.App.4th 492, 498.) He failed to meet that aspect of his burden,
which failure provides a basis for affirming the decision of the trial court. (Jameson v.
Desta (2018) 5 Cal.5th 594, 609; Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416; see Hernandez v. California Hospital Medical Center (2000) 78
Cal.App.4th 498, 502.)
A second reason plaintiff failed to meet his burden on appeal is that the argument
in his opening brief consists of broad, conclusory and unfocused claims to the effect that
PennyMac’s evidence relating to the chain of title was insufficient. Plaintiff fails to
identify any particular evidence or factual issue by making a proper citation to the record,
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nor does plaintiff explain with any legal analysis and case authority the grounds of any
purported insufficiency thereof.5 Indeed, despite the fact that PennyMac’s motion for
summary judgment included new or additional evidence beyond what was presented in
the prior motion and demurrer, plaintiff’s appeal appears to be based on a mistaken
generalization that all evidence on the question of chain of title had remained unchanged
since our 2017 opinion, or that if any new evidence was presented it was automatically
inadequate. However, no legal analysis or citation to the record is offered to support
these broad assumptions. Such conclusory and perfunctory arguments, lacking adequate
legal analysis and citation to the record, are insufficient to meet an appellant’s burden to
affirmatively demonstrate error or properly raise an issue on appeal, and, as such,
plaintiff’s arguments may be treated as waived or forfeited. (See, e.g., People v. Stanley
(1995) 10 Cal.4th 764, 793; Bank of America, N.A. v. Roberts (2013) 217 Cal.App.4th
1386, 1399; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862;
Yield Dynamics, Inc. v. TEA Systems Corp., supra, 154 Cal.App.4th at p. 557; People v.
Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4; Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856.)
For the reasons discussed above, we conclude that plaintiff failed to meet his
burden as appellant because (i) he failed to provide an adequate record on appeal, and
(ii) he failed to affirmatively demonstrate error by providing adequate legal analysis,
citation to authority, and citation to the record.
III. Summary Judgment Properly Granted
Even assuming for the sake of argument that plaintiff had not failed to meet his
fundamental burden as the appellant, we would still affirm the trial court’s ruling because
5 A cursory mention is made in plaintiff’s opening brief to the effect that the trial
court should not have relied on an admission made by him in his bankruptcy proceedings,
but no citation to the record is made by plaintiff, no description or analysis of that
evidence is presented, and no legal argument is offered on the matter.
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the record reflects that summary judgment was properly granted. Although we do not
have the benefit of the first amended complaint from which to evaluate the materiality of
the facts, we are able to glean from our 2017 opinion that plaintiff’s causes of action
depended upon his basic premise that PennyMac lacked authority to foreclose because,
allegedly, PennyMac did not receive the beneficial interest in the deed of trust.
PennyMac’s motion for summary judgment was made on the ground that plaintiff cannot
establish an essential element of each of his causes of action because the undisputed facts
show that PennyMac did acquire the beneficial interest in the deed of trust, and also on
the further ground that plaintiff has no evidence to the contrary and thus cannot prove his
claims. As explained below, it appears that PennyMac succeeded in making a prima
facie showing, while plaintiff’s opposition to the motion failed to produce any evidence
to indicate the existence of a triable issue of fact.6
We proceed to consider the facts and evidence presented by PennyMac in support
of the motion for summary judgment. It was shown in defendant’s separate statement of
undisputed material facts (separate statement) and the supporting evidence referenced
therein that, in 2005, plaintiff financed the purchase of the property in Arvin, California,
by obtaining a loan in the amount of $156,000 from Long Beach Mortgage Company.
The loan was evidenced by a promissory note and was secured by a deed of trust
recorded on June 30, 2005. Plaintiff admitted he defaulted on his payments under the
loan, and the last time plaintiff made any payment on the loan was “around 2009,
something like that.” Thus, the fact that plaintiff was in material default under the terms
of the note and deed of trust executed by him is undisputed. The only remaining question
6 Although plaintiff did produce written documents in his opposition, the trial court
sustained PennyMac’s objection thereto, and plaintiff’s appeal has not challenged the trial
court’s evidentiary ruling. Accordingly, our review is limited to the evidence considered
by the trial court, not that to which objection was made and sustained. (Paslay v. State
Farm General Ins. Co., supra, 248 Cal.App.4th 639, 645.)
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was whether, as claimed by plaintiff, PennyMac did not acquire the beneficial interest in
the deed of trust as a basis to rightfully foreclose.
The motion for summary judgment included, but was not exclusively predicated
upon, a request for judicial notice of an extensive array of recorded documents relating to
the chain of title. Although the truth of disputable factual matters stated in such recorded
or public documents may not be judicially noticeable, we do not ignore the chain of title
documents’ existence or their facial contents.7 As our Supreme Court has stated, “[t]he
existence and facial contents of . . . recorded documents [are] properly noticed in the trial
court under Evidence Code sections 452, subdivisions (c) and (h), and 453.” (Yvanova v.
New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1.) However, although a
court may take notice of such documents’ existence and content, that does not allow it to
judicially notice the truth of “disputed or disputable facts” stated therein. (Ibid.; accord,
Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375
[“While courts take judicial notice of public records, they do not take notice of the truth
of matters stated therein”]; Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369,
374 [“Taking judicial notice of a document is not the same as accepting the truth of its
contents or accepting a particular interpretation of its meaning”].)
The existence and facial contents of certain of the documents submitted in
PennyMac’s request for judicial notice to the trial court may be summarized at this point.
In an effort to support its claimed undisputed fact that Washington Mutual Bank was the
7 We note two distinguishable situations from what we have before us. Under
Evidence Code section 622, “The facts recited in a written instrument are conclusively
presumed to be true as between the parties thereto, or their successors in interest . . . .”
This section is not applicable here via a request for judicial notice in the context of the
present controversy because it puts the cart before the horse; that is, one would have to
first establish being the successor in interest to gain the benefit of section 622. Also, the
present case does not involve the situation of a court’s ability to judicially notice facts
found in the recitals of exhibits attached to a complaint. (See Satten v. Webb (2002) 99
Cal.App.4th 365, 375.)
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successor in interest to Long Beach Mortgage Company, PennyMac referred to a 2006
public document from the Office of Thrift Supervision, a federal agency, indicating Long
Beach Mortgage Company was approved to be owned by Washington Mutual Bank.
Additionally, PennyMac referred to a 2011 court document from a United States District
Court case in which Washington Mutual Bank was actually the named plaintiff, which
stated, by a sworn affidavit, that Washington Mutual Bank is the successor in interest to
Long Beach Mortgage Company.
On the issue of whether JPMorgan Chase Bank, National Association was the
successor in interest of Washington Mutual Bank, the motion for summary judgment
referred to a recorded document by the FDIC, which stated that (i) on September 25,
2008, Washington Mutual Bank was closed and placed in receivership by the FDIC, and
(ii) JPMorgan Chase Bank, National Association, on September 25, 2008, acquired
certain assets “including all loans and loan commitments” of Washington Mutual Bank
from the FDIC, as receiver, and thus JPMorgan Chase Bank, National Association
became the owner of all such assets. Also referred to in the motion for summary
judgment was a 2008 purchase and assumption agreement, by which JPMorgan Chase
Bank, National Association purchased such assets from the FDIC as the receiver for
Washington Mutual Bank, including all loans and loan commitments.
Additionally, PennyMac’s motion attached records indicating that in the course of
plaintiff’s federal court Chapter 13 bankruptcy proceedings initiated in 2012, “Chase” is
identified in his bankruptcy plan as the secured creditor with respect to the subject
property and the plan states that upon confirmation of the Chapter 13 plan, the subject
property would be surrendered as collateral. The same bankruptcy plan was confirmed
by the Bankruptcy Court. Similarly, in deposition, plaintiff testified that “Chase” as used
in the Chapter 13 plan referred to “Chase” as the beneficiary under the deed of trust.
That is, he acknowledged in his deposition that, in fact, JP Morgan Chase Bank, National
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Association was the beneficiary of his deed of trust at that time, regarding his loan on the
subject property. None of these facts were controverted by plaintiff’s opposition.
Furthermore, in attempting to show both that Washington Mutual Bank became
the successor in interest of Long Beach Mortgage Company, and that JPMorgan Chase
Bank, National Association became the successor in interest of Washington Mutual
Bank, the separate statement filed by PennyMac in support of the motion for summary
judgment also referred to the July 25, 2011 assignment of deed of trust, which recorded
document was submitted as part of PennyMac’s request for judicial notice in the trial
court. This was the assignment executed by “JPMorgan Chase Bank, National
Association, successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR
IN INTEREST TO LONG BEACH MORTGAGE COMPANY,” which in that capacity
purported to assign “all beneficial interest” in the deed of trust to “JPMorgan Chase
Bank, National Association.” We note this assignment is referred to in PennyMac’s
moving papers as the First Assignment.
As additional evidence in support of PennyMac’s motion, and offered to support
or corroborate the validity of the assignment of deed of trust described above,
PennyMac’s motion included the declaration of Aquanda Thomas, a legal specialist
employed by JPMorgan Chase Bank, National Association, who, as part of her job
functions, is familiar with business records maintained by JPMorgan Chase Bank,
National Association for the purpose of servicing mortgage loans, including data
compilations, electronically imaged documents, and other records, made and maintained
by JPMorgan Chase Bank, National Association in the ordinary course of business at or
near the time of the act, event or transaction. Thomas states in her declaration that the
July 25, 2011 assignment of deed of trust, as described above, is a true and correct copy
of that document and was executed by Colleen Irby, who was authorized to sign on
behalf of “JPMorgan Chase Bank, National Association, successor in interest to
Washington Mutual Bank, successor in interest to Long Beach Mortgage Company.” She
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further states the assignment was duly recorded on or about July 26, 2011. As indicated
by Thomas, the assignment accomplished what the document itself states; that is, it
“assigned all of its beneficial interest” in the deed of trust from JPMorgan Chase Bank,
National Association, as successor in interest to simply JPMorgan Chase Bank, National
Association. Plaintiff’s opposition to the motion made no written or oral evidentiary
objection to the Thomas declaration.
PennyMac’s motion for summary judgment also included evidence of the
subsequent assignment by JPMorgan Chase Bank, National Association to PennyMac,
referred to in PennyMac’s moving papers as the Second Assignment. The September 14,
2013 assignment of deed of trust stated that the beneficial interest in the deed of trust was
assigned by JPMorgan Chase Bank, National Association to “PennyMac Mortgage
Investment Holdings I, LLC.” As confirmed by the declaration of Thomas, the person
executing the assignment of deed of trust was authorized to sign that document to thereby
make the assignment on behalf of JPMorgan Chase Bank, National Association.
Sometime after the assignment, PennyMac Mortgage Investment Holdings I, LLC
shortened its legal name to PennyMac Holdings, LLC; that is, the two names are of the
same entity. The name change was established by the declaration of Johnny Morton, a
foreclosure supervisor employed by PennyMac with knowledge of the underlying
business records, as well as by public filings with the California Secretary of State.
Morton’s declaration also asserted that plaintiff’s loan was sold to PennyMac on July 26,
2013, and PennyMac has been in possession of the promissory note since September 3,
2013, with the beneficial interest under the deed of trust assigned to PennyMac by the
assignment of deed of trust dated September 14, 2013. No objection was made by
plaintiff to Morton’s declaration.
Finally, PennyMac’s motion referred to extensive deposition testimony of plaintiff
as well as admissions to discovery responses establishing, unequivocally, that plaintiff
has no evidence whatsoever to prove his claims. Plaintiff admitted he did not know of or
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possess any facts or evidence to rebut the recorded chain of title or related documents
submitted for judicial notice by PennyMac, or concerning PennyMac’s name change.
That is, plaintiff admitted he had no evidence to dispute that Washington Mutual Bank
was a valid successor in interest to Long Beach Mortgage Company, or that JPMorgan
Chase Bank, National Association was a valid successor in interest to Washington
Mutual Bank. He further admitted he had no evidence to dispute the validity of the
assignment executed on September 14, 2013, by JPMorgan Chase Bank, National
Association assigning the beneficial interest in the deed of trust to PennyMac. Moreover,
plaintiff testified that if the case were to go to trial, the only thing he would present to the
jury would be a copy of our 2017 opinion—which of course is not evidence.
Based on the above showing by PennyMac on its motion for summary judgment,
we have no difficulty in agreeing with the trial court that summary judgment was proper.
PennyMac succeeded in establishing the action had no merit on two distinct grounds.
First, PennyMac’s moving papers showed that it possessed the beneficial interests in the
deed of trust, and therefore had a right to foreclose.8 Unlike PennyMac’s earlier motions
that became the subject of the 2017 opinion, here PennyMac did not rely solely and
exclusively on the recorded or public documents relating to the chain of title that were
submitted for judicial notice. Rather, additional supporting evidence was presented in
connection with the motion, including (i) corroborating declarations from two bank
representatives to authenticate certain key documents and confirm the authority of the
signing party to make the assignments indicated therein, and (ii) plaintiff’s admissions
8 As a further or additional basis of its authority to foreclose, PennyMac also
presented undisputed evidence that, in addition to having the beneficial interest in the
deed of trust, it also was assigned plaintiff’s loan and was the holder of the original
promissory note. (Yvanova v. New Century Mortgage Corp., supra, 62 Cal.4th at p. 927
[the deed of trust “is inseparable from the note it secures, and follows it even without a
separate assignment”]; see Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118,
121–125 [assignee of lender properly foreclosed]; Civ. Code, § 2924, subd. (a)(1).)
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under oath in the course of his 2012 bankruptcy proceedings and in subsequent
deposition testimony expressly acknowledging or agreeing that the holder of the note and
deed of trust was, at the time of the bankruptcy proceedings, JPMorgan Chase Bank,
National Association. A further piece of corroborating evidence was the undisputed fact
that the loan and promissory note had been assigned to, and was held by, PennyMac prior
to foreclosure, which is noteworthy since the right to the security presumably follows the
note. (See Yvanova v. New Century Mortgage Corp., supra, 62 Cal.4th at p. 927; Civ.
Code, § 2936.) On the totality of this showing, we conclude the trial court correctly held
that the links in the chain of title were adequately shown and prima facie evidence
established that PennyMac acquired the beneficial interest in the deed of trust prior to
foreclosure. Therefore, PennyMac affirmatively showed it was lawfully entitled to
foreclose, thereby defeating plaintiff’s causes of action.
Second, and as an alternative ground supporting the motion, PennyMac showed
that plaintiff cannot establish his claims because plaintiff admittedly lacks any evidence
to dispute the chain of title or PennyMac’s right to foreclose. PennyMac’s presentation
of plaintiff’s discovery admissions established that he lacks any evidence to support his
claims, which showing was sufficient to shift the burden of proof on a summary
judgment motion. (See Aguilar, supra, 25 Cal.4th at p. 855 [a defendant meets its initial
burden by presenting evidence that the plaintiff does not possess and cannot reasonably
obtain needed evidence, as through “admissions by the plaintiff following extensive
discovery to the effect that he has discovered nothing”]; Union Bank v. Superior Court
(1995) 31 Cal.App.4th 573, 590 [“factually devoid discovery responses” may be used to
shift burden on motion for summary judgment].) In plaintiff’s opposition to the motion
for summary judgment, he did not dispute based on any countervailing evidence the
above showing that he lacked essential evidence to prove his case, even though he had a
lengthy opportunity to engage in discovery since the time of his original complaint in
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2013. The reasonable inference may be drawn that he not only lacked such evidence, but
also cannot or will not obtain the needed evidence.
For the foregoing reasons, PennyMac met its initial burden as the moving party,
and the burden shifted to plaintiff to present evidence demonstrating a triable issue of
material fact. Plaintiff failed to do so, and therefore the motion for summary judgment
was properly granted. (Leyva v. Garcia, supra, 20 Cal.App.5th at p. 1102; Saelzler v.
Advanced Group 400, supra, 25 Cal.4th at pp. 780–781.)
IV. No Prejudicial Error Regarding Content of Trial Court’s Order
Plaintiff next contends the trial court erred, and the judgment should be reversed,
because the trial court’s order failed to comply with the requirements of Code of Civil
Procedure section 437c, subdivision (g). Although that section requires the trial court to
specify by written or oral order the reasons for its grant of summary judgment, including
reference to the evidence indicating that no triable issue of fact exists (Code Civ. Proc.,
§ 437c, subd. (g)), the trial court’s “failure to provide a sufficient statement of reasons is
not automatically a ground for reversal. . . . Where our independent review establishes
the validity of the judgment, any error is harmless.” (Ace American Ins. Co. v. Walker
(2004) 121 Cal.App.4th 1017, 1027; see Hasso v. Hasso (2007) 148 Cal.App.4th 329,
338; see also F.P. v. Monier (2017) 3 Cal.5th 1099, 1108–1109 [nonstructural error such
as failure to provide a written statement of decision as required by statute is subject to
harmless error review].)
Here, the trial court’s oral ruling from the bench stated reasons for its decision to
grant the motion; i.e., PennyMac had adequately cured the missing links in the chain of
title identified in our 2017 opinion. The trial court also mentioned such evidence as
plaintiff’s admissions in the bankruptcy proceedings, and plaintiff’s failure to object to
any evidence offered by PennyMac. Additionally, the trial court’s written order found
that “PennyMac has made a proper showing that it is entitled to summary judgment” and
“[plaintiff] has not controverted that showing.” In particular, the trial court’s written
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order stated that “all facts stated in PennyMac’s Separate Statement of Undisputed Facts
in support of the Motion for Summary Judgment are established to be true by competent
evidence,” which plaintiff failed to controvert, and that on PennyMac’s facts it was
entitled to judgment as a matter of law. We note the trial court did identify the facts that
had been established (i.e., all those in PennyMac’s separate statement), and the evidence
(i.e., all of PennyMac’s supporting evidence), but it did not isolate and describe the
particular evidence in support of each fact.
Although there was arguably a lack of strict compliance with Code of Civil
Procedure section 437c subdivision (g) due to the generality of the trial court’s order, we
fail to discern any potential prejudice or miscarriage of justice. Rather, under our de
novo review, PennyMac made a sufficient showing that it was entitled to summary
judgment, and that showing was not placed in dispute by contrary evidence. As our
independent review of the motion confirms, the judgment of the trial court was and is
correct as a matter of law. Thus, the purported error, if any, regarding the content of the
order, was plainly harmless.
V. Other Orders or Issues
We may quickly dispose of other orders or issues referred to by plaintiff in his
notice of appeal and/or opening brief. Plaintiff argues the trial court should not have
denied his motion for judgment on the pleadings, which was heard one week before the
summary judgment motion. We disagree. One of the reasons the trial court denied that
motion was because plaintiff admittedly failed to comply with the meet and confer and
declaration requirements of Code of Civil Procedure section 439, subdivision (a). For
that reason alone, which is not addressed in plaintiff’s opening brief, plaintiff has not
demonstrated any error or abuse of discretion. Additionally, the record on appeal is
inadequate concerning this motion because plaintiff failed to include a copy of the first
amended complaint, which is necessary for our meaningful review of any such pleading
issues. (See Code Civ. Proc., § 438, subd. (c)(1)(A) [a plaintiff’s motion for judgment on
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the pleadings necessarily relates to allegations of both the complaint and the answer].)
Finally, because the motion for summary judgment established that plaintiff’s causes of
action cannot be established, which outcome is also in accord with the allegations of
PennyMac’s first amended answer that plaintiff was not entitled to relief under the first
amended complaint, our affirmance of the summary judgment clearly renders plaintiff’s
prior pleading challenge moot. We conclude no abuse of discretion has been shown
regarding the trial court’s denial of plaintiff’s motion for judgment on the pleadings, and
plaintiff’s appeal from that order is hereby rejected.
Although plaintiff’s notice of appeal indicates that in addition to appealing from
the judgment after an order granting summary judgment, plaintiff was also appealing
from the trial court’s subsequent order to lift the stay of the writ of possession. However,
because plaintiff failed to present any argument or legal discussion on that issue in his
opening brief, we conclude the issue is forfeited. Likewise, plaintiff’s one sentence
cursory mention of a sanctions order made by the trial court was insufficient to
adequately raise that issue on appeal, and therefore it also is forfeited.
DISPOSITION
The judgment of the trial court is affirmed. PennyMac is entitled to costs on
appeal. Our provisional order to stay enforcement of the writ of possession pending the
outcome of this appeal shall expire 30 days after the filing of this opinion.
LEVY, J.
WE CONCUR:
HILL, P.J.
PEÑA, J.
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