Iovino v. JP Morgan Chase Bank, N.A. CA4/1

Filed 10/21/22 Iovino v. JP Morgan Chase Bank, N.A. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GREGORY IOVINO, D079479

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2020-
00031690-CU-OR-NC)
JP MORGAN CHASE BANK, N.A.
et al.,

Defendants and Respondents.

APPEAL from judgments of the Superior Court of San Diego County,
Cynthia A. Freeland, Judge. Affirmed.
Law Offices of Ronald H. Freshman and Ronald H. Freshman, for
Plaintiff and Appellant Gregory Iovino.
Davis Wright Tremaine, Mary H. Haas, and Frederick A. Haist, for
Defendant and Respondent JPMorgan Chase Bank, N.A.
Kirby & McGuinn, Jana Logan, and Matthew H. Aguirre, for
Defendants and Respondents Rushmore Loan Management Services, LLC
and U.S. Bank, N.A., as Legal Title Trustee for Truman 2016 SC6 Title
Trust.
 INTRODUCTION
Plaintiff Gregory Iovino purchased property in Escondido in 2007 and
entered a loan agreement with Washington Mutual Bank, FA (WaMu). After
WaMu failed in 2008 and the Federal Deposit Insurance Corporation (FDIC)
took over as receiver, it conveyed WaMu’s assets to JP Morgan Chase, N.A.
(Chase). In 2019, Chase assigned the deed of trust to U.S. Bank, N.A. (US
Bank), as trustee for Truman 2016 SC Title Trust. In 2020, Rushmore
Management Services, LLC (Rushmore), acting as US Bank’s attorney in
fact, sold the property at public foreclosure.
In 2020, Iovino filed a verified complaint alleging wrongful foreclosure
and violations of Civil Code sections 2924f and 3412 and the Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq), and he sought damages,
an order to set aside the trustee sale, and a declaration quieting title. Among
other things, he alleged that the transfers from WaMu to Chase and from
Chase to US Bank were void.
Chase demurred, and Iovino opposed the motion. The court granted
that demurrer without leave to amend and entered judgment in favor of
Chase. Iovino moved to vacate the judgment under Code of Civil Procedure
sections 657 and 659, arguing newly-discovered evidence justified permitting
him to amend the complaint. The court denied the motion.
US Bank and Rushmore demurred to the complaint separately from
Chase, and Iovino failed to timely oppose their demurrer, so the court
sustained it and entered judgment in favor of US Bank and Rushmore.
Iovino moved to vacate the judgment under Code of Civil Procedure section
473, arguing he had moved and did not receive the demurrer before the
hearing date. The court denied the motion to vacate the judgment.

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 On appeal, Iovino argues the court should have taken his status as a
self-represented litigant into account, and the failure to do so led the court to
improperly sustain both demurrers without leave to amend. He contends he
can amend the complaint to allege additional causes of action. He also
contends the court abused its discretion by failing to vacate the judgment in
favor of US Bank and Rushmore because his failure to respond to their
demurrer was excusable.
We conclude the trial court properly sustained the demurrers. We
further conclude the court did not abuse its discretion when it found that
Iovino did not demonstrate excusable mistake or neglect in failing to respond
to US Bank and Rushmore’s demurrer. Accordingly, we affirm the
judgments.
BACKGROUND AND PROCEDURAL FACTS
Iovino purchased property at Slivkoff Drive in Escondido, California on
July 5, 2007. The deed of trust was recorded July 10, 2007. It identified
Iovino as the borrower, WaMu as the beneficiary, and California
Reconveyance Company as the trustee. It granted the lender the right to
appoint a successor trustee.
At some point in 2008, WaMu failed. The FDIC was appointed as
receiver.
The 2011 Lawsuit
In February 2011, Iovino filed suit against Chase and California
Conveyance Company in San Diego County Superior Court, case No. 37-2011-
00051823-CU-OR-NC. It alleged 16 causes of action, including declaratory
relief, slander of title, breach of the implied covenant of good faith and fair
dealing, rescission for violating Civil Code section 1916.7, cancellation due to
misrepresentations, unfair business practices, breach of fiduciary duty in

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violation of Civil Code section 2924f, quiet title, and fraud. In that complaint,
Iovino alleged that the companies had engaged in predatory lending
practices, that attempts to modify the loan terms had been rejected, and that
the banks were pushing to foreclose on February 25, 2011. He claimed
WaMu never assigned its beneficial interest to Chase, and he challenged the
validity of the loan and promissory note, as well as the deed of trust. He
contended that the power of sale contained in the deed of trust held no force
because the defendants’ security interest in the property had been rendered
void, and he sought reconveyance. He also sought to void the mortgage
contract on the basis of impossibility and unconscionableness.
Chase and California Reconveyance moved for summary judgment,
which the court granted. The court entered judgment in favor of Chase and
California Reconveyance and dismissed the matter. Iovino did not appeal.
Chain of Title
On November 18, 2014, a corporate assignment of deed was recorded
memorializing an assignment and transfer of the deed of trust from the FDIC
(acting as the receiver for WaMu) to Chase that had occurred on September

25, 2008.1 The document was signed by a Chase vice president and notarized
with an acknowledgement in Louisiana, where Chase was located.
On May 31, 2016, a notice of default was recorded in the San Diego
County Recorder’s office. The recording was requested by First American
Mortgage Solutions, and the document identified MTC Financial, which does
business as Trustee Corp, as the agent of the trustee or beneficiary. It stated
that Iovino had not paid on his mortgage since January 1, 2016, and that he

1 The document states the transfer occurred by operation of law, as
authorized by the Federal Deposit Insurance Act, title 12 United States Code
section 1821(d)(2)(G)(i)(II).
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owed $12,191.95 as of May 27, 2016.2 Attached to the notice of default was a
declaration of compliance, signed by a Chase representative on May 17, 2016,
which stated the company had given the homeowner 30 days’ notice. Iovino
alleges he was never given proper notice, and he was not contacted to assess
his financial situation to avoid foreclosure.
In April and August 2018, Iovino filed for bankruptcy. Notice was
provided to Chase and Trustee Corps both times.
On September 24, 2019, a corporation assignment of deed of trust was
recorded with the San Diego County Recorder. In it, Chase assigned to US
Bank, as trustee for Truman 2016 SC Title Trust, its interest.

Iovino filed for bankruptcy in January 2020.3
On May 28, 2020, US Bank recorded a notice substituting as trustee
Attorney Lender Services (ALS) for California Reconveyance Company. The
notice was signed March 17, 2020, by US Bank as trustee for Truman 2016
SC Title Trust by Rushmore Loan Services, LLC (Rushmore), its attorney in
fact. An affidavit stated the notice of substitution had been sent by certified
and first class mail to Iovino on May 22, 2020.
Also on May 28, 2020, ALS recorded a notice of trustee sale set for June
29, 2020. Iovino’s complaint alleges he did not know a deed of sale was
happening; he received no notice.

2 The notice also directed Iovino to contact Chase c/o MTC Financial Inc.,
doing business as Trustee Corp to address payment and stop the foreclosure,
or for any reason if the property was in foreclosure.

3 The address listed with the Bankruptcy Noticing Center for the 2018
bankruptcy filings was the Slivkoff Drive address. The address provided on
the third filing was Hawk Drive.
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 On June 23, 2020, Lisa Ellsworth, an employee of Lugash Law Center,
contacted Rushmore on Iovino’s behalf and spoke with an employee there
named “Shiva” who confirmed there was no scheduled foreclosure sale.
On June 25, 2020, Ellsworth called Rushmore again, and Shiva again
said she had completed Iovino’s loan modification request file and placed it in
review status, so there was no pending foreclosure sale. Ellsworth also
contacted Trustee Corp; an employee told her the foreclosure sale scheduled
for June 29 had been canceled.
On June 29, 2020, Ellsworth called Rushmore and spoke with an
employee named Esmerelda who informed her that Iovino’s property had
gone to foreclosure sale that morning. Esmerelda told Ellsworth there was
no documentation showing the sale should not have proceeded, and she said
Iovino had been mailed a notice of the trustee’s sale.
On June 29, 2020, ALS conveyed legal title to US Bank as trustee for
Truman 2016 SC Title Trust the property at Slivkoff Drive. Rushmore
recorded the sale with the San Diego County Recorder’s office on July 8,
2020.
The Current Lawsuit
Iovino filed a verified complaint September 10, 2020, listing seven
causes of action: (1) wrongful foreclosure against WaMu, Chase, and US
Bank; (2) violation of Civil Code section 3412 against WaMu and US Bank;
(3) quiet title against WaMu, Chase, and US Bank; (4) violation of Civil Code,
section 2924f, against Chase and ALS; (5) violation of Civil Code, section
2923.5 against Chase, US Bank, and ALS; (6) violation of Business and
Professions Code, section 17200 for unfair business practices against all
defendants; and (7) a request for injunctive relief.

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 Iovino alleges WaMu securitized the note and sold it before 2008, so his
loan was not a part of the FDIC receivership sale to Chase, and Chase never
actually acquired the note. He further alleges the signatures on the
corporate assignment of deed from the FDIC to Chase were forged, and
because those documents were forged, Chase could not properly create the
corporation assignment of deed of trust to transfer ownership interest to US
Bank, and US Bank could not properly substitute ALS as the trustee.
Defendant Chase
Chase demurred to the complaint on April 30, 2021. Iovino opposed the
motion, and Chase replied. On June 25, 2021, the court sustained the
demurrer, and it entered judgment for Chase shortly thereafter.
In July 2021, Iovino filed a motion for new trial pursuant to Code of
Civil Procedure sections 657 and 659, which permit a court to vacate and
retry a matter when there is newly discovered, material evidence. (Code Civ.
Proc., §§ 657, 659.) In it, he asked the court to set aside its dismissal of the
action against Chase. He explained that prior to 2020, the FDIC was not able
to identify which loans were sold to Chase because it was not clear which
loans WaMu retained ownership of and which loans it sold but continued to
service. However, a new, searchable FDIC database suggested Iovino’s loan
was not part of the FDIC transaction with Chase because it does not appear
in the public securitization transactions. Further, he argued that the FDIC
did not retain any interest to transfer six years after the transaction
occurred. Because Chase never acquired the loan, it could not later transfer
any interest to US Bank.
Iovino reiterated that he had not received actual notice of a new
creditor or of the trustee sale, and that while his Homeowner’s Bill of Rights
(HBOR) dual tracking claim was misplaced, the facts nonetheless properly

7
alleged a UCL claim because the foreclosure had progressed during a time
when the servicer was reviewing a completed modification application and
assuring Iovino the sale would not go forward.
He also argued that because he is a pro. per. litigant, he did not “know
or understand . . . the proper manner in which to articulate his claims, or the
proper procedure for responding to any responsive or dispositive motions filed
by defendants,” and California holds a self-represented litigant to less
stringent pleading standards. He then clarified that he had pled facts
sufficient for an intentional misrepresentation claim based on Chase’s
statement that the interest in Iovino’s property was transferred from the
FDIC to Chase, and that he had pled sufficient facts for a fraudulent
concealment cause of action because Chase had concealed that the loan was

not part of WaMu’s assets when it failed.4 He also articulated reasons he
believed he alleged sufficient facts to support causes of action for UCL
violations, slander of title, quiet title, and civil conspiracy.
Chase opposed the motion, explaining that Iovino failed to satisfy the
newly-discovered evidence ground, and the newly-identified causes of action

likewise failed.5
The court denied the motion, explaining the new theories for
resurrecting the claims adjudicated by the demurrer were barred by res
judicata and collateral estoppel.

4 Chase filed objections to portions of the declarations supporting these
claims, and the court sustained these objections.

5 The court granted Chase’s request for judicial notice of the 2011
complaint, the 2012 minute order requesting judicial notice of the 2011
complaint, the 2012 judgment, the 2011 case docket for the suit between
Iovino and Chase, and Iovino’s bankruptcy petitions.
8
 Defendants Rushmore and US Bank
Rushmore and US Bank demurred to the complaint in January 2021,
with a hearing date set for April 30, 2021. They argued that the first, second,
third, fifth, and sixth causes of action were uncertain and did not contain

facts sufficient to meeting the pleading requirements.6 Iovino did not timely
file a responsive document, and the court sustained the demurrer without
leave to amend and entered judgment dismissing the defendants on May 6,
2021.
In May 2021, Iovino moved to set aside the judgment pursuant to Code
of Civil Procedure section 473, based on mistake, inadvertence, and excusable
neglect. Iovino explained that he was self-represented, and he moved and
filed a change of address with the United States Post Office around the time
the demurrer was mailed, but he did not change his address with the court.
He finally received the copy of the demurrer May 1, 2021, but because he did
not understand the pleadings, he needed to seek legal counsel so he could
appropriately respond. He attached to his motion a proposed opposition to
the demurrer, in which he alternatively sought leave to amend the complaint.
US Bank and Rushmore opposed the motion.
The court denied Iovino’s motion on June 25, 2021. It explained that
Iovino was entitled to the same consideration as other litigants, but no
greater consideration because he was acting in propria persona. It also
concluded that Iovino provided “no persuasive reason for why he did not give
the court and Defendants notice of his change of address between December
31, 2020 and April 28, 2021” or “why, despite his change of address, he

6 The complaint does not name Rushmore or US Bank in the fourth
cause of action for violation of Civil Code section 2924f. It names Rushmore
only in the sixth cause of action, the UCL claim (Bus. & Prof. Code, § 17200
et seq.).
9
continued using his Slivkoff Drive address on his pleadings.” It determined
that a reasonably prudent person in Iovino’s position would not have
conducted himself or herself in the manner Iovino did.
Iovino timely appealed both judgments.
DISCUSSION
I.
Chase
A. Standard of Review
A demurrer tests the legal sufficiency of a pleading. (Code Civ. Proc.,
§ 430.30, subd. (a); Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th
968, 994.) “Where . . . judicial notice is requested of a legally operative
document—like a contract—the court may take notice not only of the fact of
the document and its recording or publication, but also facts that clearly

derive from its legal effect.”7 (Scott v. JPMorgan Chase Bank, N.A. (2013)
214 Cal.App.4th 743, 754.)
“On appeal from an order of dismissal after an order sustaining a
demurrer, the standard of review is de novo: we exercise our independent
judgment about whether the complaint states a cause of action as a matter of
law.” (Stearn v. County of San Bernardino (2009) 170 Cal.App.4th 434, 439.)
As we do so, we assume the truth of the petition’s properly pleaded facts and
judicially noticed matters. (Schifando v. City of Los Angeles (2003) 31 Cal.4th
1074, 1081.) “We do not, however, assume the truth of contentions,

7 Iovino argues the court should have denied the defendants’ requests for
judicial notice of the recorded documents because the statements contained
therein were hearsay and contained false factual findings. Iovino did not
oppose these requests in the superior court and therefore waived any
challenge to them. (See Shuster v. BAC Home Loans Servicing, LP (2012)
211 Cal.App.4th 505, 512, fn. 4.)
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deductions, or conclusions of law.” (Stearn, at p. 440.) To prevail, “the
appellant must show that the facts pleaded are sufficient to establish every
element of a cause of action and overcome all legal grounds on which the trial
court sustained the demurrer. [Citation].’ We will affirm the ruling if there
is any ground on which the demurrer could have been properly sustained.”
(Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047,
1052.) If the pleading is insufficient on any ground specified in a demurrer,
we will uphold the order sustaining the demurrer, even if it is not the ground
relied upon by the trial court. (Irwin v. Manhattan Beach (1966) 65 Cal.2d
13, 20; Intengan, at p. 1052; Debro v. Los Angeles Raiders (2001) 92
Cal.App.4th 940, 946.)
B. Res Judicata
The doctrine of res judicata gives preclusive effect to a prior, final
judgment involving the same controversy between the same parties or those
in privity. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.)
“Claim preclusion ‘prevents relitigation of the same cause of action in a
second suit between the same parties or parties in privity with them.”
[Citation.] Claim preclusion arises if a second suit involves (1) the same
cause of action (2) between the same parties [or their privies] (3) after a final
judgment on the merits in the first suit. [Citations.] If claim preclusion is
established, it operates to bar relitigation of the claim altogether.” (DKN
Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) The preclusive impact
is on both “issues that were actually litigated [and] also issues that could
have been litigated.” (Colombo v. Kinkle, Rodiger & Spriggs (2019) 35
Cal.App.5th 407, 416; Federal Home Loan Bank of San Francisco v.
Countrywide Financial Corp. (2013) 214 Cal.App.4th 1520, 1527.)

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 Iovino’s allegations challenging the transfer of the deed of trust from
WaMu and the FDIC to Chase form the basis of his first three causes of
action for wrongful foreclosure, violation of Civil Code section 3412, and quiet
title. He contends that the foreclosure sale was improper because US Bank
lacked the authority to sell his property. He bases this allegation on his
claims that the chain of title is invalid. He alleges that before WaMu failed,
the company securitized his note and sold it so that it was not part of the

FDIC receivership sale.8 Thus, the FDIC, in its capacity as a receiver for

8 Iovino’s opening brief states WaMu testified to Congress that it sold
loans originated in 2007 for securitization without indorsing or transferring
the corresponding Notes. He theorizes that Chase’s acquisition of the note,
which could have been retained for servicing, is insufficient to prove Chase
acquired an interest in the property. Iovino does not reference the record or
any documents for which he requests judicial notice to support this claim.
(See Cal. Rules of Court, rule 8.204(a)(1)(C) [requiring a party to support
each reference to a matter in the record by citation to the record]; Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1247 (Nwosu) [failure to present argument
with references to the record results in a forfeiture of any assertion that could
have been raised].) Other factual claims regarding WaMu’s testimony in
public documents filed with the Securities and Exchange Commission
likewise reference events outside the four corners of the complaint and
without reference to the record. Although he offers a PDF link to a hearing
before the permanent subcommittee on investigations of the committee on
homeland security and governmental affairs, dated April 13, 2010, there is no
corresponding request for judicial notice or indication this material was
before the trial court. Nor does he direct us to relevant information within
the document. (See Nwosu, at p. 1246 [statements in appellate briefs not
support by citations to the record are improper and cannot be considered].)
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WaMu, could not properly have assigned and transferred it to Chase. Iovino
contends that because Chase held no valid interest in the property, it
likewise lacked authority to transfer it to US Bank. US Bank, in turn, could
not legally have substituted ALS as trustee. And none of the entities could
have sold the property in foreclosure.
He also separately alleges that the 2014 corporate assignment of deed,
which memorialized the 2008 transfer of the deed of trust from the FDIC to
Chase, was forged, as were the assignments of the deed of trust from Chase
to US Bank and the substitution of ALS as the trustee.
Chase contends the validity of the transfers has already been litigated
to finality, with a determination on the merits in its favor in a previous action
between it and Iovino; thus, res judicata bars claims arising from those
allegations. We agree.
Iovino’s 2011 lawsuit was between him as the plaintiff and Chase and
ALS as defendants, and it ended in a final judgment on the merits following a
motion for summary judgment.
Iovino sued Chase for slander of title, quiet title, injunctive relief, and
fraud, among other things. The slander of title cause of action was based on
Chase recording a notice of default against the property. He alleged this was
slander because only the beneficiary of a deed of trust or its assignee could

Iovino argues that he alleged the purchase and assumption agreement
between the FDIC and Chase did not identify his loan, and that congressional
testimony and depositions indicate WaMu sold all of the loans it had
originated before its failure and so had no beneficial interest to transfer to
Chase. As we detail post, because the validity of the transfer to Chase has
already been raised and resolved in previous litigation, this argument is
precluded by res judicata. Further, the trial court did not consider the
purchase and assumption agreement because Iovino objected to judicial
notice of it, and the court sustained the objection.
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record a notice of default against real property, and Chase was not a
beneficiary. He also sought to quiet title on the basis that Chase held no
interest in the property. Further, his request for injunctive relief was
founded on the argument that Chase was not a holder of the note on the
subject property. To make these contentions, Iovino alleged that WaMu had
never assigned its beneficial interest to Chase, thereby challenging the
validity of Chase’s claim over the loan and promissory note, as well as the
deed of trust.
Chase challenged these facts in a motion for summary judgment, which
the court granted in its favor, disposing of the entire action. To reach this
conclusion, the court necessarily determined that Chase was a beneficiary
and held an interest in the property. Thus, it necessarily concluded the
transfer of the deed of trust from WaMu to Chase (via the FDIC as receiver)
was valid.
Iovino now makes the same basic argument, that Chase never held an
interest in the property, challenging the same right. Although he now
contends that WaMu securitized his note and sold it so that it was not part of
the FDIC receivership sale, the foundational allegation is the same: WaMu
never assigned its beneficial interest to Chase (not even through a
receivership sale).
We look to the substance of a cause of action rather than its title.
(Standard Brands of California v. Bryce (1934) 1 Cal.2d 718, 721 [“The
subject matter of an action and the issues involved are determinable from the
facts pleaded, rather than from the title or prayer for relief”]; see San Diego
Unified School Dist. v. County of San Diego (2009) 170 Cal.App.4th 288, 305,
[explaining judgment for defendant is bar to subsequent action by plaintiff
based on same injury to same right even under different legal theory]; see

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Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 571 [factual
allegations control over title or label of pleading and over prayer or demand
for relief].) An action to quiet title, like one for declaratory relief, is to
determine the legal relationship between the parties with reference to
specific property; the goal is to finally determine all conflicting claims to the
property. (Lechuza Villas West v. California Coastal Com (1997) 60
Cal.App.4th 218, 242, quoting Peterson v. Gibbs (1905) 147 Cal. 1, 5.)
Iovino’s former slander and quiet title causes of action requested a
judicial determination that Chase held no ownership interest in the property.
Similarly, his previous request for injunctive relief asked the court to declare
the property rights as between him and Chase. These are the same claims
Iovino raises in his 2020 lawsuit, where he seeks to quiet the title of the
property (third cause of action), argues Chase engaged in wrongful
foreclosure by wrongfully claiming an interest in the property (first cause of
action), and invokes cancelation rights under Civil Code section 3412 based
on the allegedly wrongful transfer of the deed of trust (second cause of
action).
It does not matter that the 2019 transfer had not yet occurred or that
the 2014 recording had not happened. The court previously determined that
the transfer of the deed of trust to Chase, which occurred in 2008 even
though it was not recorded until 2014, was valid. The first, second, and third
causes of action, which are each based on Iovino’s challenge to Chase’s
interest in the property, are barred by res judicata, as are any claims that
derive from the allegation that Chase did not hold a legal interest in the
mortgage.
Finally, to the extent that Iovino’s challenge to the court’s application
of judicial notice extends to its acceptance of the judgment in the 2011

15
matter, we conclude there was no error. Even if the court’s conclusion that
Chase appropriately claimed an interest in the property was a factual
conclusion rather than a legal one, “ ‘the finding itself may be a proper
subject of judicial notice if it has a res judicata or collateral estoppel effect in
a subsequent action.’ [Citation.]” (Hawkins v. SunTrust Bank (2016) 246
Cal.App.4th 1387, 1393.) “ ‘[W]hen an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot again be
litigated between the same parties in any future lawsuit.’ ” (Ibid., quoting
Ashe v. Swenson (1970) 397 U.S. 436, 443.)
Although we conclude res judicata forecloses the causes of action that
rely on a challenge to Chase’s interest in the property, we note that Iovino’s
causes of action also fail because he does not allege any prejudice; he does not
allege he was current on his loan or that he was excused from fulfilling the
tender requirement under a judicially-recognized exception. (See Kalnoki v.
First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23,
47.) Without these allegations, he cannot demonstrate wrongful foreclosure.
(See Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561-
562 [describing elements of wrongful foreclosure, including that the
mortgagor “ ‘ “tendered the amount of secured indebtedness or was excused
from tendering” ’ ”].) Presumably, he contends there is no need to include
such an allegation because he alleges the transfers were void, not voidable.
(See Kalnoki, at p. 47 [explaining courts have found tender not required
where borrower attacks validity of underlying debt].) However, as we
explained ante, this claim is precluded.
C. Fourth and Fifth Causes of Action
The fourth cause of action, which names only Chase and ALS as
defendants, and the fifth cause of action, against Chase, US Bank, and ALS,

16
alleged violations of Civil Code sections 2924f and 2923.5 for failure to
provide proper notice of the trustee sale. The documentation attached to the
complaint shows it was US Bank, not Chase, that substituted ALS as the new
trustee. Further, the factual allegations and the attached documentation all
show that ALS acted on behalf of US Bank, not Chase, when it recorded the
notice of sale and the final sale of the property on May 28 and July 8
respectively. In short, there are no allegations that Chase took action to sell
the property or that any of the other named entities were acting on Chase’s
behalf. Because Iovino does not, and cannot, allege that Chase was the
foreclosing entity, Iovino cannot sustain a cause of action against Chase on
that basis.
Iovino did not substantively oppose Chase’s demurrer to his fourth
cause of action. Accordingly, the court appropriately sustained the demurrer
on that basis as well, and Iovino has forfeited that claim on appeal. (See
Avalos v. Perez (2011) 196 Cal.App.4th 773, 776 [“As a general rule, a claim of
error will be deemed to have been forfeited when a party fails to bring the
error to the trial court’s attention by timely motion or objection”].)
Moreover, to allege economic damages after a deed of sale is recorded, a
party must allege the wrongdoer is “a mortgage servicer, mortgagee,
beneficiary, or authorized agent.” (Civ. Code, § 2924.19, subd. (b)). Iovino
does not make this allegation. Nor can he because he insists Chase does not
have an interest in the property.
D. Sixth Cause of Action
On appeal, Iovino argues there is a basis for the UCL claim because
Ellsworth’s declaration shows an intentional misrepresentation, e.g., that
defendants were continuing to review his application for loan modification
and had cancelled the sale. However, these factual allegations regard US

17
Bank, not Chase. And because it was US Bank, not Chase, that foreclosed
and sold the property, there is no basis for a UCL cause of action against
Chase. Accordingly, the trial court properly sustained the demurrer on this
sixth cause of action.
In his motion for a new trial under Code of Civil Procedure sections 657
and 659, Iovino argued that the UCL cause of action is supported by claims
for intentional misrepresentation and fraudulent concealment, arguments he
repeats in his appeal. He contends that because the loan was not part of
WaMu’s assets at the time the bank failed, it was not among the loans that
the FDIC transferred to Chase. Further, Chase misrepresented that the loan
was included, and Chase concealed information that would have uncovered
its fraud. However, he did not present these possibilities below; Iovino did
not seek leave to amend at all.
Moreover, Iovino’s claims that he now has better proof that his loan
was not transferred to Chase are foreclosed by res judicata. He alleged in his
2011 lawsuit that Chase obtained no interest from WaMu. These are the
same allegations he makes in the present case.
II.
US Bank & Rushmore
Iovino contends the court abused its discretion by denying his motion to
vacate the default judgment following his failure to timely respond to US
Bank’s demurrer.
Code of Civil Procedure section 473, subdivision (b) provides the court
with discretion to relieve a party from a judgment taken against him or her
through the party’s mistake, inadvertence, surprise, or excusable neglect.
(Code Civ. Proc., § 473, subd. (b).) Because a motion to vacate the default

18
“ ‘ “ is addressed to the sound discretion of the trial court, . . . in the absence
of a clear showing of abuse . . . the exercise of that discretion will not be
disturbed on appeal.” ’ [Citations.]” (Anastos v. Lee (2004) 118 Cal.App.4th
1314, 1318.) Moreover, “ ‘if a party fails to show that a judgment [or order]
has been taken against him through his mistake, inadvertence, surprise or
excusable neglect the court may not grant relief. It has no discretion.’ ”
(Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042.)
A party seeking relief under Code of Civil Procedure section 473 based
on mistake or neglect must demonstrate that the mistake or neglect was
excusable, meaning a reasonably prudent person under the same
circumstances might have made the same error. (Ebersol v. Cowan (1983) 35
Cal.3d 427, 435 [describing the showing required for relief under Code Civ .
Proc., § 473].)
Iovino offered two reasons for why his mistake or neglect was

excusable.9 First, around the time the defendants served the demurrer, he
had moved to a new address and filed a change of address form with the
United States Post Office. He did not receive the mailed copy of the demurrer
until May 1, 2021, the day after the hearing. Because he received the
pleadings after the date of the hearing, he was “not given the opportunity to
address his failure to file an opposition . . . or to appear to argue the matter

9 Iovino also argued that the defendants did not meet and confer with
him, implying that would have provided him notice of their intent to file the
demurrer. The trial court concluded opposing counsel had properly reached
out to Iovino in email and by telephone on December 23 and 24, 2020. Iovino
concedes in his opening brief that the meet and confer requirement was met.

19
on his behalf.”10 Second, he did not understand the demurrer pleadings or
the ramifications of failing to appear, and he could therefore not respond to

them until after seeking legal counsel to explain them.11 He also argued the
defendants were not prejudiced by his delay. He attached a proposed
opposition to the demurrer for the court’s consideration in the event it set
aside the default judgment.
On April 4, 2021, four months after he moved and changed his address
with the post office, Iovino appeared by filing a notice of limited
representation in which he listed the Slivkoff address as the address for
service, the same address to which the January demurrer had been mailed.
Then, on April 28, 2021, Iovino filed a change of address form with the court,
listing the Hawk Ridge address, where he also had his mail forwarded
through the post office.
Iovino argues that his failure to alert the court to his change of address
was excusable because he was self-represented and therefore entitled to some
leniency. “Except when a particular rule provides otherwise, the rules of civil
procedure must apply equally to parties represented by counsel and those
who forgo attorney representation.” (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 984-985; see also Bianco v. California Highway Patrol (1994) 24
Cal.App.4th 1113, 1125-1126 [pro. per. litigant held to same rules of
procedure as attorney].) Thus, “as is the case with attorneys, pro. per.

10 It is not clear from this statement whether Iovino means to convey that
the mail was never actually forwarded, and Iovino eventually retrieved the
demurrer at the Slivkoff address; or if it was forwarded to the Hawk Ridge
address, but the postal service took four months to complete that process.

11 Iovino does not restate this reason on appeal, instead focusing on the
mistake in failing to change his address.

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litigants must follow correct rules of procedure.” (Nwosu, supra, 122
Cal.App.4th at p. 1247.) “ ‘A lay person, who is not indigent, and who
exercises the privilege of trying his own case must expect and receive the
same treatment as if represented by an attorney–no different, no better, no
worse. [Citation.]” (Westervelt v. Robertson (1981) 122 Cal.App.3d Supp. 1, 8
(Westervelt).)
In cases where pro. per. litigants have failed to change their address
with the court and consequently not received the properly-served notice of
case-dispositive pleadings, courts have not viewed the self-representation as
a reason for leniency. For example, in Westervelt, the pro. per. defendants
filed and served an answer but did not appear on the day of trial. (Westervelt,
supra, 122 Cal.App.3d Supp.1, 5.) When the defendants eventually realized
judgment had been entered against them, they moved for an order setting
aside the judgment, contending they had not been served with and had not
received a notice of trial because they had moved from the rental property
and received no mail addressed to that address. (Id. at pp. 5-6.) Based on
evidence in the record that the defendants had not returned their keys; that
the type of car defendants drove was seen in the driveway in the weeks
leading up to the trial date; and that all the documents that defendants filed
gave the rental address as their address of record, the court of appeal
concluded it would have been reasonable for the trial court to infer that the
defendants received notice of trial. (Id. at p. 7.) The appellate court
explained that the failure to notify the court of a change of address does not
allow a party to claim improper notice. (Id. at p. 8.) Consequently, lack of
notice was not an excuse for failing to appear.
In Lint v. Chisholm (1981) 121 Cal.App.3d 615 (Chisholm), a self-
represented attorney failed to notify the court clerk of a change of address,

21
did not receive notice of trial, and consequently failed to appear at trial. (Id.
at pp. 618-619.) Chisholm argued that “overwhelming domestic problems
resulted in his inability to receive mail regularly during the period in which
notice was sent.” (Id. at p. 620.) The court of appeal concluded Chisholm’s
failure to notify the court of his address change or otherwise adequately
arrange for mail delivery was not the act of a reasonably prudent person in
the same situation. (Ibid.) Although Chisholm was not licensed to practice
in California, he was a member of two bars and party to at least seven other
lawsuits in San Diego County during the time in which the notice was sent,
and he was aware of his duty to inform the court of an address change. (Id.
at pp. 620-621.) Thus, he could not claim lack of notice as an excuse for
failing to appear at trial. (Ibid.)
In Westervelt, like here, there was evidence of actual notice, so the
delay in response was unjustified. In Chisholm, the court focused on the
defendant’s knowledge of his obligation to report the change of address and
the failure to follow through as the reason it did not find the mistake
excusable. Similarly here, Iovino changed his address on April 28, indicating
knowledge of the requirement to do so. In both Westervelt and Chisholm, the
courts treated the pro. per. litigants as they would any represented party.
Those courts offered no leniency for the parties’ failure to change their
addresses with the court because they were self-represented. Just as the
courts in Westervelt and Chisholm did not give the litigants leniency as a
result of their self-representation, the court here did not give Iovino leniency
due to his status as a pro. per. litigant.
Iovino does not direct us to any case law that treats pro. per. litigants
in this circumstance differently. He cites several cases in which courts offer
leniency in permitting pro. per. litigants opportunities to amend their

22
pleadings. However, none of the cases he cites involve a party that failed to
timely respond to a demurrer then, after entry of a default judgment, were
granted the opportunity to oppose the demurrer and amend the complaint.
(See Unruh-Haxton v. Regents of University of California (2008) 162
Cal.App.4th 343, 371 [declining to remand to allow for amended pleading
because complaint was not defective]; Schaefer v. Berinstein (1956) 140
Cal.App.2d 278, 288, 294 [explaining complaint allegations must be “liberally
construed with a view to substantial justice between the parties” and
concluding the complaint alleged sufficient facts to support a fraud claim];
Peak v. Richmond Elementary School Dist. (1958) 161 Cal.App.2d 366, 367-
369 [overruling demurrer after finding the facts sufficiently stated a claim for
negligence].)
Like the court in Westervelt, the court here treated Iovino as having
received actual notice of the demurrer. It recognized Iovino’s claim that “he
did not receive the documents until after the hearing.” Yet, it nonetheless
concluded that Iovino provided no persuasive reason for not sharing his
change of address with either the court or opposing parties. It further
considered that the Slivkoff address was the only one on file with the court
and the only address Iovino ever listed on the pleadings. Like the court in
Chisholm, the court here concluded that a reasonable person in similar
circumstances would not fail to change the address on file with the court.
Iovino does not claim he failed to file a change of address because he
was ignorant of the requirement. Indeed, he filed a change of address with
the trial court eventually, months after ceasing to reside on the property and
after filing additional papers with the Slivkoff address. He does not explain
what prevented him from changing his address with the court when he filed

23
the form with the postal service, or why he continued to use the Slivkoff
address on all his pleadings
Iovino’s emphasis on the leniency afforded to amend a complaint is
misplaced. The issue here is whether the court abused its discretion in
concluding the default was not the result of excusable mistake or neglect. We
find no fault in the trial court’s conclusion. The failure to comply with the
requirement to update the court and parties violates California Rules of
Court, rule 2.200, which requires an attorney or self-represented party to
notify the court and all parties in writing of a change of address.
Because we conclude that the court did not abuse its discretion by
denying the motion to vacate the judgment, we affirm the judgment in favor
of US Bank and Rushmore. Accordingly, we do not reach the separate,

substantive basis for the court’s sustention of the demurrer.12

12 Defendants remain the prevailing parties; thus, we do not revisit the
court’s award of attorney fees.
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 DISPOSITION
The judgments in favor of Chase and in favor of US Bank and
Rushmore are affirmed. Appellant is to bear costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.

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