A139655

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION NO. 3

LEIGHTON LEE PERRY, Appellant, vs. JPMORGAN CHASE BANK, N.A.; QUALITY LOAN SERVICE CORP.; FEDERAL NATIONAL MORTGAGE ASSOCIATION; CHASE HOME FINANAS, LLC; and all persons unknown, claiming any legal or equitable right, title estate, lien or interest in the property described in this Complaint adverse to Plaintiffs' title thereto and as DOES 1-100, inclusive, Respondents. Appeal from the Superior Court of Contra Costa County Case No. MSCl0-02914 The Honorable LaurelS. Brady (Notice of Appeal Filed: September 3, 2013)
RESPONDENTS JPMORGAN CHASE BANK, N.A. AND FEDERAL NATIONAL MORTGAGE ASSOCIATION'S OPENING BRIEF

JOHN COX, CASB No. 197687 john.cox@kyl.com IAN ROSS, CASB No. 284842 ian.ross@kyl.com KEESAL, YOUNG & LOGAN A Professional Corporation 450 Pacific Avenue San Francisco, California 94133 Telephone: (415) 398-6000 Facsimile: (415) 981-0136
Attorneys for Respondents JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to CHASE HOME FINANCE LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION

CERTIFICATE OF INTERESTED ENTITIES

Respondents JPMORGAN CHASE BANK, N .A. ("Chase") and FEDERAL NATIONAL MORTGAGE ASSOCIATION ("Fannie Mae") (collectively, "Respondents") hereby submit this Certificate of Interested Entities pursuant to Rule 8.208 of the California Rules of Court. Chase is a wholly-owned subsidiary of JP Morgan Chase & Co., which is a publicly-traded corporation. No publicly-held corporation owns ten percent (10%) or more of JP Morgan Chase & Co.'s stock as of August 21, 2009. Federal National Mortgage Association ("Fannie Mae") is a federally chartered corporation and has no parent corporation. No publicly held company owns 10 percent or more of its stock.

Dated: February 6, 2014 JOHN COX IAN ROSS KEESAL, YOUNG & LOGAN Attorneys for Respondents JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to CHASE HOME FINANCE LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION

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TABLE OF CONTENTS
Page
PAGEl I. II. III. IV. V. VI. VII. PRELIMINARY STATEMENT ........................................................ ! INTRODUCTION .............................................................................. ! STATEMENT OF FACTS ................................................................. 2 PROCEDURAL HISTORY .............................................................. .4 ISSUES PRESENTED ........................................................................ 5 STANDARD OF REVIEW ................................................................ 6 LEGAL DISCUSSION ....................................................................... 7 A. THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT AS TO APPELLANT'S FOUR CAUSES OF ACTION, AND RESPONDENTS ARE ENTITLED TO IDDGMENT AS A MATTER OF LAW ........................................................................................ 8 1. There Are No Triable Issues of Material Fact as to Appellant's First Cause of Action for Declaratory Relief, and Respondents are Entitled to Judgment as a Matter of Law ..................................................... 8 There Are No Triable Issues of Material Fact as to Appellant's Second Cause of Action for Slander of Title, and Respondents are Entitled to Judgment as a Matter of Law ................................................... 10 There Are No Triable Issues of Material Fact as to Appellant's Third Cause of Action for Quiet Title, and Respondents are Entitled to Judgment as a Matter of Law .......................................................................... 11 There Are No Triable Issues of Material Fact as to Appellant's Fourth Cause of Action for "Violation of Calif. Civil Code 2943," and Respondents are Entitled to Judgment as a Matter of Law ................ .12

2.

3.

4.

B.

APPELLANT'S FOURTEEN "ISSUES PRESENTED" DO NOT DEMONSTRATE THE EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT, AN ABUSE OF DISCRETION, OR A PREJUDICIAL ERROR ............................................. 15
1

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. C.

Appellant's First "Issue Presented" ......................... 15 Appellant's Second "Issue Presented" ..................... 16 Appellant's Third "Issue Presented" ...................... .1 7 Appellant's Fourth "Issue Presented" ...................... 18 Appellant's Fifth "Issue Presented" ........................ .19 Appellant's Sixth "Issue Presented" ........................ 23 Appellant's Seventh and Eighth "Issues Presented" ................................................................ 23 Appellant's Ninth "Issue Presented" ....................... 25 Appellant's Tenth "Issue Presented" ....................... 26 Appellant's Eleventh "Issue Presented" .................. 28 Appellant's Twelfth "Issue Presented" .................... 29 Appellant's Thirteenth "Issue Presented" ................................................................ 30 Appellant's Fourteenth "Issue Presented" ................................................................ 31

APPELLANT'S "ARGUMENT" SECTION DOES NOT DEMONSTRATE THE EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT, AN ABUSE OF DISCRETION, OR A PREJUDICIAL ERROR .................................................................................. 32 1. The Trial Court's "Failure" to Provide the Requested Statement of Decision Is Not Reversible Error ................................................ 32 The Trial Court Did Not Award Respondents "Equitable Relief' by Granting the Motion................................................. 33 California Civil Code Section 2943 is Preempted by Federal Law ...................................... 33 Appellant Does Not Have a Legal Basis for an Action Challenging Respondents' Authority to Foreclose ............................................ .34

2.

3. 4.

VIII. CONCLUSION ................................................................................. 36

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TABLE OF AUTHORITIES

FEDERAL CASES

Javaheri v. JPMorgan Chase Bank, N.A., 2012 U.S. Dist. LEXIS 114510 (C.D. Cal. Aug. 13, 2012) ................. 13 Jelsing v. MIT Lending, 2010 U.S. Dist. LEXIS 68515, at *7 (S.D. Cal. July 9, 2010) ....... 14, 16 Richards v. Bank ofAmerica, N.A., 2010 U.S. Dist. LEXIS 92389 (N.D. Cal. Aug. 13, 2010) ................... 11
STATE CASES

Aceves v. U.S. Bank N.A., 192 Cal. App. 4th 218 (2011) ................................................... 10, 20,22 Berger v. Cal. Ins. Guarantee Assn., 128 Cal. App. 4th 989 (2005) ........................................................ passim Berger v. Godden, 163 Cal. App. 3d 1113 (1985) .............................................................. 18 Carnes v. Superior Court, 126 Cal. App. 4th 688 (2005) ................................................................. 7 Cassim v. Allstate Ins. Co., 33 Cal. 4th 780 (2004) .................................................................... 16, 30 Dearth v. Great Republic Life Ins. Co., 9 Cal. App. 4th 1256 (1992) ................................................................. 14 Debrunner v. Deutsche Bank National Trust Co., 204 Cal. App. 4th 433 (2012) ........................................................... 9, 19 Estate ofRandall, 194 Cal. 725 (1924) .............................................................................. 18 Fontenot v. Wells Fargo Bank, N.A., 198 Cal. App. 4th 256 (20 11) ................................................... 17, 22, 26 Halliburton Energy Services, Inc. v. Dep 't of Trans., 220 Cal. App. 4th 87 (2013) ................................................................... 7

In reIns. Installment Fee Cases, 211 Cal. App. 4th 1395 (2012) ............................................................. 25 Jolley v. Chase Home Fin., LLC, 213 Cal. App. 4th 872 (2012) ............................................................... 27 Kern County Dept. of Child Support Services v. Camacho, 209 Cal. App. 4th 1028 (2012) ........................................... 18, 20, 27,34 Keyes v. Bowen, 189 Cal. App. 4th 657 (20 10) ............................................................... 25 Lopez v. World Savings & Loan Assn., 105 Cal. App. 4th 729 (2003) ................................................... 13, 14, 16 Mansell v. Bd. ofAdmin., 30 Cal. App. 4th 539 (1994) ................................................................. 29 Mechanical Contractors Assn. v. Greater Bay Area Assn., 66 Cal. App. 4th 672 (1998) ................................................................. 32 Nwosu v. Uba, 122 Cal. App. 4th 1229 (2004) ............................................................. 15 Perry v. Farley Bros. Moving & Storage, Inc., 6 Cal. App. 3d 884 (1970) .................................................................... 32 Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association, 163 Cal. App. 4th 550 (2008) ............................................................... 29 Sangster v. Paetkau, 68 Cal. App. 4th 151 (1998) .......................................................... passim Schuster v. BAC Home Loans Servicing, LP, 211 Cal. App. 4th 505 (2012) ........................................................... 9, 19 Scott v. JPMorgan Chase Bank, NA., 214 Cal. App. 4th 743 (2013) ............................................................... 27 Shimpones v. Stickney, 219 Cal. 637 (1934). (Resp. App. pg. 048-049) ................................... 12 Siliga v. Mortg. Electronic Registration Systems, Inc., 219 Cal. App. 4th 75 (2013) ................................................................. 22

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Smith v. Commonwealth Land Title Ins. Co., 177 Cal. App. 3d 625 (1986) ................................................................ 11 Stebly v. Litton Loan Servicing, LLP, 202 Cal. App. 4th 522 (2011) ............................................................... 16 Tropico Land & Improv. Co. v. Lambourn, 170 Cal. 33 (1915) ................................................................................ 35
FEDERAL STATUTES AND RULES

HOLA ............................................................................................. 13, 16, 34

STATE STATUTES AND RULES

CAL. CIV. CODE 2924(a)(1) ............................................................... 11, 21 CAL. CIV. CODE 2924(d)(1) .................................................................... 10 CAL. CIV. CODE 2943 ....................................................................... passim CAL. CODE CIV. PROC. 473(b) ................................................................ 25 CAL. CODE CIV. PROC. 632 ..................................................................... 32 CAL. R. COURT 3.1308(e) .......................................................................... 31

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I.

PRELIMINARY STATEMENT
In this appeal, Appellant LEIGHTON LEE PERRY ("Appellant")

seeks the review of an order issued by the trial court simultaneously granting the separate motions for summary judgment filed by Respondents JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to CHASE HOME FINANCE LLC ("Chase"), and FEDERAL NATIONAL MORTGAGE ASSOCIATION ("Fannie Mae") (collectively, "Respondents"), on the one hand, and QUALITY LOAN SERVICE CORPORATION ("QLSC"), on the other hand. (Appellant's Opening Brief ("Opening Brief') pg. 11 ("This appeal is from the entry of judgment [ ... ] on orders granting summary judgments [sic] in favor of [Respondents] and [QLSC] .... "). With this brief, Respondents respectfully submit that the trial court did not err in granting their motion for summary judgment ("Motion"), and that this Court should affirm the trial court's judgment in its entirety.

II.

INTRODUCTION
This action arises out of a deed of trust securing a $130,000 loan and

encumbering Appellant's real property located in Martinez, California ("Subject Property"). Pursuant to the terms ofthis deed of trust, Respondents and QLSC initiated non-judicial foreclosure proceedings against the Subject Property in June 2010, and Appellant filed the instant lawsuit to contest this process. Appellant admits that he executed the deed of trust and obtained the loan that it secures. Appellant also admits that he defaulted on the loan, thereby indisputably triggering the power of sale provided by the deed of trust. Accordingly, Appellant cannot contend that foreclosure was not warranted under the circumstances. Rather, Appellant's objection concerns the authority of Respondents and QLSC to

initiate foreclosure. Appellant asserts, with no legal or factual support, that Respondents did not physically possess his loan note and therefore did not wield the beneficial interest necessary to authorize foreclosure.
In the trial court, Respondents and QLSC produced indisputable

evidence proving that they did have the requisite interests in Appellant's loan and deed of trust, that they did possess Appellant's loan note, and that Appellant's allegations of procedural improprieties in the foreclosure process were completely unfounded. When Respondents and QLSC offered up this evidence in support of their motions for summary judgment, Appellant offered nothing to the contrary. The trial court correctly found that Appellant had failed to demonstrate the existence of a triable issue of material fact, and granted the motions in their entirety. On appeal, Appellant sets forth fourteen "issues presented" and four sections of "argument," each of which attempt to demonstrate that the trial court committed prejudicial error or abused its discretion. Several of these points were not raised in the trial court, many are unintelligible, and all are without merit. Appellant's Opening Brief does not articulate a single

triable issue of material fact.

The vast majority of Appellant's arguments are entirely divorced

from the question of whether Respondents were entitled to judgment as a matter oflaw. None of Appellant's contentions on appeal warrant reversal of the trial court's judgment. Accordingly, Respondents respectfully request that this Court affirm said judgment in its entirety.

III.

STATEMENT OF FACTS
In May 1988, Appellant executed a Deed of Trust ("DOT") securing

a $130,000 loan ("Subject Loan" or "Promissory Note") and encumbering the Subject Property. (Respondents JPMorgan Chase Bank, N.A. and

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Federal National Mortgage Association's Appendix in Support of Opening Brief ("Resp. App.") pg. 057). The lender under the Subject Loan and DOT was Valley Federal Savings & Loan Association ("Valley Federal"), a federally chartered savings association, while the trustee was an entity by the name of All Valley Financial Corporation. (Resp. App. pgs. 057, 187). The DOT was recorded with the Contra Costa County Recorder's Office on May 20, 1988. (Resp. App. pg. 057). In October 1988, an Assignment of Deed of Trust ("1st Assignment") was executed, through which Valley Federal transferred all beneficial interest under the DOT to assignee Fannie Mae. (Resp. App. pg. 064). Chase received a letter dated January 27, 2010 ("January 2010 Letter") bearing the signature of one "Leighton Lee Perry." (Resp. App. pg. 098). The January 2010 Letter requested a beneficiary statement, a copy of the DOT, and a copy of the Promissory Note. (Resp. App. pg. 098). Chase responded to the January 2010 letter with three letters of its own in March 2010 ("March 2010 Responses"). (Resp. App. pgs. 100104). The March 2010 Responses acknowledge Appellant's disclosure
request, detailed Appellant's loan obligations and informed him that he

could obtain a copy of the DOT from the county recorder. (Resp. App. pgs. 100-104). Chase also received a letter dated June 9, 2010 ("June 2010 Letter") bearing the signature of"Leighton Lee Perry." (Resp. App. pg. 116). The June 2010 Letter also requested a beneficiary statement, a copy of the DOT, and a copy of the Promissory Note. (Resp. App. pg. 116). Chase acknowledge this disclosure request in a letter dated June 23, 2010. (Resp. App. pg. 118). Chase followed up on this acknowledgment with a letter

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dated August 24,2010 which enclosed copies of the Promissory Note and DOT. (Resp. App. pg. 120). A Notice of Default ("NOD") was recorded pursuant to the DOT on June 15, 2010 by QLSC in its capacity as agent for the beneficiary, reciting that Appellant's loan account was $7,039.03 in arrears. (Resp. App. pgs. 067-068). Appellant defaulted on the Subject Loan in November 2009, a fact that is not disputed by Appellant. (Resp. App. pg. 081 ). Additionally, Appellant admits that in March 20 10 he "elected" to stop making payments entirely. (Resp. App. pg. 010). A second Assignment of Deed of Trust ("2nd Assignment") was recorded on August 30, 2010. (Resp. App. pg. 070). With the 2nd Assignment, Fannie Mae transferred all beneficial interest under the DOT to assignee Chase. (Resp. App. pg. 070). On September 23, 2010, a Substitution of Trustee ("SOT") was recorded, substituting QLSC in as trustee of the DOT. (Resp. App. pg. 072). Finally, on September 28, 2010, a Notice of Trustee's Sale ("NOTS") was recorded by QLSC pursuant to the DOT and NOD. (Resp. App. pgs. 076-077). The NOTS announced that a foreclosure sale had been scheduled for October 19, 2010, and that there was $70,811.10 of unpaid balance and other charges in Appellant's loan account. (Resp. App. pg. 076).
IV.

PROCEDURAL HISTORY
This action was initiated in the trial court on October 14, 2010.

(Resp. App. pg. 207). Appellant's First Amended Complaint, filed on July 29, 2011, asserted four causes of action: (1) declaratory relief; (2) slander of title; (3) quiet title; and (4) violation of California Civil Code section

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2943. (Resp. App. pgs. 013-023). This was the operative complaint when the trial court issued the judgment now on appeal. Over the course of litigation, Appellant filed multiple motions to compel discovery, each of which were adjudicated in Respondents' favor. Appellant is not appealing those decisions. (Opening Briefpg. 11). Respondents filed the Motion on January 24, 2013, arguing that the case involved no triable issues of material fact and that Respondents were entitled to judgment as a matter oflaw with respect to each of Appellant's four causes of action. (Resp. App. pgs. 034-051 ). Appellant filed an Opposition ("Opposition"), and Respondents filed a Reply ("Reply"). (Resp. App. pg. 265). The Motion was heard in tandem with co-defendant QLSC's separate motion for summary judgment, and both motions were granted in their entirety. (Resp. App. pgs. 266-274). Judgment was entered on behalf of Respondents on June 19,2013, and notice of the entry of judgment was served on Appellant on July 20, 2013. (Resp. App. pgs. 199, 203). Appellant filed a Notice of Appeal with the trial court on September 3, 2013. (Resp. App. pg. 275).
V.

ISSUES PRESENTED

In his Opening Brief, Appellant recites a laundry list of purported errors committed by the trial court throughout the life of this case. Appellant does not argue or explain how those alleged errors relate to the summary judgment motion at issue in this appeal. Nothing in the Opening Brief demonstrates the existence of a triable issue of material fact or suggests that Respondents are not entitled to judgment as a matter of law. Similarly, the Opening Brief does not show that the trial court abused its discretion or committed prejudicial error of any kind. As such,

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Respondents respectfully submit that the trial court's judgment should be affirmed in its entirety.

VI.

STANDARD OF REVIEW
Summary judgment is properly granted when no triable issue exists

as to any material fact and the moving party is entitled to judgment as a matter of law. !d. In moving for summary judgment, a defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. !d. Once the moving defendant has met its initial burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. !d. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to fmd the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. !d. A party may not avoid summary judgment by offering speculation or conjecture. See
Sangster v. Paetkau, 68 Cal. App. 4th 151, 163 (1998). A "plaintiff

opposing a motion for summary judgment may not rely on his or her
pleadings alone, but must file opposition to the motion, with affidavits

setting forth specific facts demonstrating that a triable issue of material fact exists as to the cause of action or defense." Id. at 162 (emphasis added). "[W]here the parties have had sufficient opportunity adequately to develop their factual cases through discovery and the defendant has made a sufficient showing to establish a prima facie case in his or her favor, in order to avert summary judgment the plaintiff must produce substantial
responsive evidence sufficient to establish a triable issue of material fact on

the merits of the defendant's showing." Id. at 162-63.

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On appeal, a trial court's decision to grant or deny a summary judgment motion is reviewed de novo on the basis of an examination of the evidence before the trial court and the appellate court's independent determination of its effect as a matter oflaw." Id. at 163. As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, an appellate court independently applies the same three-step analysis required of the trial court. Halliburton Energy Services, Inc. v. Dep 't of Trans., 220 Cal. App. 4th 87, 93 (2013). The appellate court "may consider only those facts which were before the trial court, and disregard any new factual allegations made for the first time on appeal." Sangster, 68 Cal. App. 4th at 163. "Thus, unless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create 'triable issues of material fact' may not be raised or considered on appeal." Id. Meanwhile, appellate courts review a trial court's rulings on evidentiary objections in summary judgment proceedings for abuse of discretion. Carnes v. Superior Court, 126 Cal. App. 4th 688, 694 (2005).
VII.

LEGAL DISCUSSION
In his Opening Brief, Appellant separates his legal argument into

two sections. First, Appellant presents fourteen "issues presented," each contending that the trial court erred in making a particular fmding or taking a particular action. Second, Appellant offers an "argument" section. It is difficult to distinguish the purposes of these two sections and, as such, Respondents will treat the aggregate sum of the two sections as Appellant's legal argument on appeal. Appellant's "issues presented" and "argument" sections rarely refer to the four causes of action alleged in the First Amended Complaint or the

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arguments raised in the Motion, Opposition, and Reply. With one limited exception, Appellant makes no argument as to how any particular point warrants the reversal of summary judgment as to any cause of action. The lone exception relates to the fourth cause of action for which Appellant simply has no legal support. In an effort to provide this Court with the necessary context, Section VII(A) outlines the arguments raised in the Motion, Opposition, and Reply and demonstrates why the trial court properly granted summary judgment against all of Appellant's claims. Sections VII(B) and VII( C), meanwhile, address all of the contentions made in Appellant's Opening Brief and establish that Appellant has failed to demonstrate the existence of a triable issue of material fact, abuse of discretion or prejudicial error, such that the trial court's judgment should be affirmed in its entirety.

A.

THERE ARE NO TRIABLE ISSUES OF MATERIAL FACT AS TO APPELLANT'S FOUR CAUSES OF ACTION, AND RESPONDENTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW

1.

There Are No Triable Issues of Material Fact as to Appellant's First Cause of Action for Declaratory Relief, and Respondents are Entitled to Judgment as a Matter of Law

Appellant's first cause of action sought a declaration stating that the DOT and Subject Loan are unenforceable by Respondents. (Resp. App. pgs. 013-014). Appellant's basis for seeking this relief is his contention that Respondents "have no right to collect on the loan and foreclose the Deed of Trust unless and until each of them actually had beneficiary interest evidenced by its [sic] possession the [sic] original Note .... " (Resp. App. pg. 014).

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This claim fails as a matter of law for three reasons. First, it is wellsettled that beneficial interest in or possession of a promissory note is not a pre-requisite to foreclosure. See Schuster v. BAC Home Loans Servicing, LP, 211 Cal. App. 4th 505, 511-12 (2012) ("California's statutory nonjudicial foreclosure scheme( 2924-2924k) does not require that the foreclosing party have a beneficial interest in or physical possession of the note."); Debrunner v. Deutsche Bank National Trust Co., 204 Cal. App. 4th 433, 440-42 (2012). This legal reality alone is fatal to Appellant's claim. Second, Respondents do possess the Promissory Note-Appellant admits that Respondents provided him with a copy of the Promissory Note in August 20 10 (Resp. App. pg. 011) and that his belief that Respondents lacked beneficial interest in or possession of the Promissory Note was in error (Resp. App. pgs. 022-023). Third, the recorded title documents illustrate a clear chain of title: Valley Federal, the original beneficiary of the DOT, transferred all beneficial interest in the DOT to Fannie Mae through the I st Assignment, and Fannie Mae transferred all beneficial interest in the DOT to Chase through the 2nd Assignment. (Resp. App. pgs. 057, 064, 070).
In support of his Opposition to the Motion in the trial court,

Appellant offered nothing more than (1) rank speculation that the Subject Loan "could have" been written off over the years and (2) a list of immaterial "flaws" in the 1st Assignment. (Resp. App. pgs. 143-145). However, as argued in the Reply, speculation does not create a triable issue of material fact, and alleged procedural irregularities in non-judicial foreclosure do not afford relief where there is no showing of prejudice. (Resp. App. pg. 176). See Sangster, 68 Cal. App. 4th at 163 ("Evidence that gives rise to no more than mere speculation is insufficient to establish a

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triable issue of material fact."). See also Aceves v. US. Bank NA., 192 Cal. App. 4th 218, 232 (20 11 ). Moreover, as the trial court noted, Appellant produced a Trustee's Sale Guarantee in support of his Opposition that expressly identified Chase as the beneficiary of Appellant's DOT. (Resp. App. pg. 157). As such, the trial court properly found that Appellant's Opposition to the Motion failed to show a triable issue of material fact as to Appellant's first cause of action for declaratory relief. Respondents are entitled to judgment as a matter of law as to this claim.

2.

There Are No Triable Issues of Material Fact as to Appellant's Second Cause of Action for Slander of Title, and Respondents are Entitled to Judgment as a Matter of Law

Appellant's second cause of action alleged that Respondents disparaged his title to the Subject Property when they caused the NOD, 2nd Assignment, SOT, and NOTS to be recorded. (Resp. App. pgs. 016-0 17). Appellant again grounded this claim on the allegation that none of Respondents held a beneficial interest in or possessed the Promissory Note or DOT. (Resp. App. pgs. 016-017). This claim shares the same fatal flaws that marred Appellant's first cause of action. Beneficial interest in or possession of the Promissory Note was not a prerequisite to foreclosure, Respondents did provide evidence of possession of the Promissory Note, and judicially noticeable documents demonstrate (and Appellant admits) that Respondents held the beneficial interest in the DOT. See Section VII(A)(l), supra. Moreover, as explained in the Motion, recordation of the NOD, 2nd Assignment, SOT, and NOTS is a privileged activity. CAL. CIV. CODE 2924( d)(l ). "A privilege, either absolute or qualified, is a defense to a

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charge of slander of title." Richards v. Bank ofAmerica, N.A., 2010 U.S. Dist. LEXIS 92389, at *10 (N.D. Cal. Aug. 13, 2010). To defeat a defense of qualified privilege, Appellant must demonstrate that Respondents acted with malice. See Smith v. Commonwealth Land Title Ins. Co., 177 Cal. App. 3d 625, 631 ( 1986). Appellant's Opposition to the Motion entirely ignored this argument, and Appellant did not present evidence that the recordation of any document was improper, much less performed with malice. Rather than address the arguments raised in the Motion, the Opposition focused on the fact that QLSC recorded the NOD as agent for the beneficiary. (Resp. App. pgs. 145-146). The Opposition erroneously argued that California law does not allow any entity other than the trustee of record to record a notice of default. (Resp. App. pg. 145). However, California Civil Code section 2924(a)(1) expressly allows a "trustee, mortgagee, or beneficiary, or any of their authorized agents" to record notices of default. CAL. CIV. CODE 2924(a)(1). Accordingly, the Opposition failed to establish a triable issue of material fact as to Appellant's second cause of action for slander of title,
and Respondents are entitled to judgment as a matter of law as to this

claim.

3.

There Are No Triable Issues of Material Fact as to Appellant's Third Cause of Action for Quiet Title, and Respondents are Entitled to Judgment as a Matter of Law

Appellant's third cause of action sought to quiet title to the Subject Property as against Respondents. Once again, Appellant grounded this claim on the allegation that Respondents did not have a beneficial interest in, or possession of, the Promissory Note. (Resp. App. pgs. 017-021).

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As explained in the Motion and in the two previous sections, however, (1) foreclosure is not conditioned upon having a beneficial interest in, or possession of, a promissory note, (2) Respondents provided substantial evidence that they did possess the Promissory Note and wield the beneficial interest, and (3) the recorded title documents and Appellant's own admissions illustrated that Respondents possessed all of the necessary interests to foreclose. See Section VII(A)(l), supra. Additionally, "[i]t is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured." Shimpones v. Stickney, 219 Cal. 637, 649 (1934). (Resp. App. pg. 048-049). In the First Amended Complaint, Appellant only alleged an ability or willingness to tender a portion of the debt. (Resp. App. pgs. 019-020). Appellant's Opposition merely restated the baseless and legally immaterial allegations of the First Amended Complaint and added that Respondents had presented "no facts" showing the amount they paid for the Subject Loan and DOT. (Resp. App. pgs. 146-147). However, Appellant offered no evidence demonstrating that Respondents lacked a secured interest in the Subject Property as provided by the DOT and, therefore, no evidence supporting his quiet title claim. Accordingly, the Opposition failed to show a triable issue of material fact as to Appellant's third cause of action for quiet title, and Respondents are entitled to judgment as a matter of law as to this claim.

4.

There Are No Triable Issues of Material Fact as to Appellant's Fourth Cause of Action for "Violation of Calif. Civil Code 2943," and Respondents are Entitled to Judgment as a Matter of Law

Appellant's fourth cause of action alleged that Respondents violated California Civil Code section 2943 by purportedly inadequately responding

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to Appellant's requests for information (e.g., requests for a beneficiary statement). (Resp. App. pgs. 021-023). As outlined in Respondents' moving papers, however, section 2943 is entirely preempted by federal law-namely, the Home Owners Loan Act ("HOLA") and the regulations promulgated thereunder. (Resp. App. pgs. 049-051; 180). In Lopez v. World Savings & Loan Assn., 105 Cal. App. 4th 729 (2003), the court held that "insofar as it applies to federal savings and loan associations, Civil Code section 2943 has been preempted by [HOLA and the regulations promulgated thereunder]," as has any cause of action that is predicated upon a violation of section 2943. See Lopez, 105 Cal. App. 4th at 745. Indeed, federal law "occupies the entire field of lending regulation for federal savings associations," and preempts "all state laws purporting to regulate any aspect of the lending operations of a federally chartered savings association .... " ld. at 737-38 (emphasis added). Since the original lender under the DOT and Subject Loan was Valley Federal Savings and Loan Association, a federally charted savings association regulated by the Office of Thrift Supervision, Appellant's claim is entirely preempted. (Resp. App. pgs. 057; 187). This preemption also applies to claims brought against Valley Federal Savings and Loan Association's successors-ininterest, such as Fannie Mae and Chase. See Javaheri v. JPMorgan Chase Bank, NA., 2012 U.S. Dist. LEXIS 114510, at *9 (C.D. Cal. Aug. 13, 2012) ("Although JPMorgan is not a federal savings bank and is not regulated by the OTS, the same HOLA preemption analysis still applies because the loan originated with [a federal savings bank]."). In his Opposition, Appellant argued that federal preemption should not be applied to his claim under section 2943 for two reasons. First, Appellant argued that a federal preemption argument was not available to

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Respondents because Respondents did not assert federal preemption as an affirmative defense in their Answer to the First Amended Complaint. (Resp. App. pg. 147). However, "California law does not require that preemption be alleged as an affirmative defense and specifically allows preemption to be raised for the first time by summary judgment motion."

Dearth v. Great Republic Life Ins. Co., 9 Cal. App. 4th 1256, 1276 (1992).
Accordingly, the Opposition's first argument against the application of federal preemption was without merit. Second, Appellant argued that federal preemption should not apply because the cases cited by Respondents in their moving papers "only reference payoff statements" and did not address each of the various types of statements that may be requested under section 2943. (Resp. App. pg. 147). Appellant contended that his case could be distinguished from Lopez-while Lopez involved a request for a payoff statement under section 2943, Appellant's claim involves a request for a beneficiary statement under section 2943. (Resp. App. pg. 147). Appellant offered no reasoning or authority to support his position that federal preemption should only be applied to certain types of statement requests under section 2943 and not others. (Resp. App. pg. 147). In fact, Lopez's holding cannot be so limited. Indeed, Lopez held that section 2943 is, without qualification, preempted by federal law in the case of federal savings associations. See Lopez, 105 Cal. App. 4th at 745. Moreover, courts have held that section 2943's provisions regarding beneficiary statements are preempted by federal law.

SeeJelsingv. MIT Lending, 2010 U.S. Dist. LEXIS 68515, at *7 (S.D. Cal.
July 9, 2010) ("Under California law, when a lender receives a letter demand for 'a copy of the note or other evidence of indebtedness,' it must deliver a copy, along with a beneficiary statement, within twenty-one days.

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This provision imposes a requirement related to disclosure [ ... ] or the processing or servicing of mortgages. It is therefore preempted." (emphasis added)). Accordingly, the distinction relied upon by Appellant in his Opposition is immaterial. Thus, the trial court properly entered judgment in favor of Respondents with regard to Appellant's fourth cause of action. Appellant's Opening Brief adds nothing to this analysis.

B.

APPELLANT'S FOURTEEN "ISSUES PRESENTED" DO NOT DEMONSTRATE THE EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT, AN ABUSE OF DISCRETION, OR A PREJUDICIAL ERROR 1. Appellant's First "Issue Presented"

Appellant's first "issue presented" is unintelligible. (Opening Brief pgs. 12-13). He appears to contend that the trial court erred in failing to determine whether Respondents had "capacity" or "standing" to receive "equitable relief from the court." Appellant's contention is baseless. In granting Respondents' Motion, the trial court did not grant Respondents "equitable relief." Rather, the trial court merely determined that Appellant was not entitled to relief because the causes of action he stated in the First Amended Complaint had no merit. It is well-settled that failure to make a coherent argument or to cite to supporting authority for contentions constitutes a waiver of an issue on appeal, and so this Court should disregard Appellant's first "issue presented." See Berger v. Cal. Ins. Guarantee Assn., 128 Cal. App. 4th 989, 1007 (2005) (holding that failure "to make a coherent argument or cite any authority to support [a] contention[ ... ] constitutes a waiver of the issue on appeal"). This principle is fully applicable even where an appellant represents himself. See Nwosu
v. Uba, 122 Cal. App. 4th 1229, 1247 (2004) (holding that litigants

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representing themselves on appeal in propria persona are not exempt from following the correct rules of procedure); Stebly v. Litton Loan Servicing,
LLP, 202 Cal. App. 4th 522, 524 (20 11) ("Although plaintiffs appear in this

court without counsel, that does not entitle them to special treatment."). To the extent this "issue presented" asserts that the trial court erred in failing to issue a "statement of decision" as purportedly requested in a facsimile communication responding to the trial court's tentative ruling on the Motion, this assertion is addressed infra. See Section VII(C)(l), infra.

2.

Appellant's Second "Issue Presented"

Appellant's second "issue presented" asserts that the trial court erred by allowing Respondents to supposedly put forth "new argument" regarding federal preemption of California Civil Code section 2943 in their Reply supporting the Motion. (Opening Briefpg. 13). This assertion is without merit. In the Motion, Respondents expressly argued that section 2943 is preempted by federal law, citing to Lopez and Jelsing, among other cases. (Resp. App. pgs. 049-051 ). The cases cited in the Motion held that section 2943 is preempted by HOLA and the regulations promulgated thereunder. The very same argument appeared in Respondent's Reply brief. (Resp. App. pg. 180). The trial court found this argument to be persuasive, and likewise cited to Lopez and Jelsing in reaching its conclusion. As such, no "new argument" was presented by Respondents' Reply brief. Even if "new argument" did appear in Respondents' Reply brief, Appellant does not demonstrate that it had any impact on the trial court's ruling. Accordingly, this "issue presented" does not show that the trial court committed prejudicial error and therefore fails to provide a basis for reversal. See generally Cassim v. Allstate Ins. Co., 33 Cal. 4th 780, 800-

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803 (2004) (explaining that an appellate court may only reverse a trial court ruling upon a showing of prejudicial error).

3.

Appellant's Third "Issue Presented"

Appellant's third "issue presented" contends that the trial court erred in taking judicial notice of the two recorded Assignments and "accepting [them] as true." (Opening Briefpg. 16). Appellate courts review a trial court's ruling on a request for judicial notice for abuse of discretion.

Fontenot v. Wells Fargo Bank, NA., 198 Cal. App. 4th 256,264 (2011)
As explained in Fontenot, a court may take judicial notice of recorded title documents, such as assignments of deeds of trust. !d. More specifically, "a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity." !d. at 265. "From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face." !d. at 265. Since the 1st Assignment and 2nd Assignment are both recorded documents, it was appropriate for the trial court to take judicial notice of them. In opposing Respondents' request for judicial notice of the Assignments, Appellant objected on the grounds that the Assignments supposedly "lacked foundation," incorporated hearsay, and contained statements that were not based on personal knowledge. (Resp. App. pgs. 167-168). Appellant makes substantially similar arguments in his Opening Brief. I However, these objections have no bearing upon the judicial

1 Respondents cannot fathom Appellant's suggestion that, since California law does not require assignments of a deed of trust to be recorded, such a

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noticeability of the Assignments. Rather, as the trial court explained, these objections "go to the weight or legal significance of the evidence." (Resp. App. pg. 194). Therefore, Appellant has not demonstrated that taking judicial notice of the Assignments was in any way improper. While Appellant vaguely suggests that the trial court took judicial notice of facts recited within the Assignments, Appellant offers no discussion of this issue. Appellant does not identify a single instance of the court "accepting as true the contents of' the Assignments. As such, this ambiguous contention should be disregarded. See Berger v. Godden, 163 Cal. App. 3d 1113, 1119 (1985) ("Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned.") (quoting Estate ofRandall, 194 Cal. 725, 728 (1924)). For the foregoing reasons, this "issue presented" does not show that the trial court abused its discretion in taking judicial notice of the Assignments or that it committed prejudicial error of any kind.

4.

Appellant's Fourth "Issue Presented"

In Appellant's fourth "issue presented" is wholly incoherent, and the Court should disregard it for that reason alone. See Berger v. Cal. Ins. Guarantee Assn., 128 Cal. App. 4th at 1007. Appellant appears to be contending that possession of a promissory note should be or is a pre-requisite to foreclosure. (Opening Brief pg. 21 ). Appellant argues that "it remains a material question of fact, beyond a recorded assignment is somehow irrelevant. (Opening Briefpg. 17). In any event, this argument was not raised in the trial court, and therefore cannot be raised on appeal. See Kern County Dept. of Child Support Services v. Camacho, 209 Cal. App. 4th 1028, 1038 (2012) ("It is axiomatic that arguments not raised in the trial court are forfeited on appeal.").

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shadow of a doubt, of who the 'note holder' is." (Opening Briefpg. 21). However, as the trial court correctly held, it is well-settled that possession of a promissory note is not a pre-requisite to foreclosure. See Schuster, 211 Cal. App. 4th at 511-12 ("California's statutory nonjudicial foreclosure scheme( 2924-2924k) does not require that the foreclosing party have a beneficial interest in or physical possession of the note."); Debrunner, 204 Cal. App. 4th at 440-42. Appellant has not cited any contrary authority, and is asking this Court to issue a ruling that directly contradicts the full weight of precedent. Accordingly, Appellant's fourth "issue presented" is entirely baseless. To the extent any of Appellant's claims are premised upon the assertion that one or more Respondents lacked physical possession of the Promissory Note, they fail as a matter of law.

5.

Appellant's Fifth "Issue Presented"

According to Appellant's fifth "issue presented," the trial court erred when it did not rule that the NOD was void. Appellant contends that the NOD was void because: (1) it purportedly did not include certain language regarding a borrower's right to contest acceleration and sale (Opening Brief pg. 21); (2) the DOT purportedly provides that "only the Trustee shall record a notice of default and sale" (Opening Brief pg. 22); (3) Fannie Mae supposedly did not hold the Promissory Note when the NOD was recorded (Opening Briefpg. 22); (4) under California law, only trustees may issue and record notices of default (Opening Brief pg. 24); and (5) there was somehow a triable issue of fact as to whether QLSC was acting as agent for the beneficiary when it issued the NOD (Opening Briefpg. 25). Each of these assertions will be addressed in tum.

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First, even if the NOD did not contain language regarding a borrower's right to contest acceleration and sale, Appellant did not argue that this supposed defect "voided" the NOD in the trial court. Accordingly, Appellant cannot raise this issue on appeal. See Kern, 209 Cal. App. 4th at 1038. See also Sangster, 68 Cal. App. 4th at 163 ("[U]nless they were factually presented, fully developed and argued to the trial court, potential theories which could theoretically create 'triable issues of material fact' may not be raised or considered on appeal."). Additionally, Appellant has not demonstrated and cannot demonstrate that the absence of any such language prejudiced him-as demonstrated in the moving papers and in this appeal, Appellant has no defense to the acceleration of his debt and the sale of the Subject Property. See Aceves, 192 Cal. App. 4th at 232 (holding that relief for procedural irregularities in foreclosure is not available absent prejudice). Second, even if the DOT provided that only trustees could issue notices of default, Appellant did not argue that this supposed defect "voided" the NOD in the trial court.2 Again, Appellant cannot raise this issue on appeal. See Kern, 209 Cal. App. 4th at 1038. See also Sangster,
68 Cal. App. 4th at 163. Even if Appellant could raise this issue on appeal,

as discussed more thoroughly below, Appellant cannot show that the recordation of the NOD by an agent of the beneficiary (as opposed to the trustee of record) prejudiced him in any way whatsoever. See Aceves, 192 Cal. App. 4th at 232.

2 In the trial court, Appellant argued that California law does not permit anyone other than trustees to initiate foreclosure. (Resp. App. pg. 145). Appellant did not contend that the terms of the DOT precluded anyone other than the trustee from initiating foreclosure.

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Third, as already discussed, possession of the Promissory Note is not a pre-requisite to foreclosure. See Section VII(A)(l ), supra. As such, even if Fannie Mae did not physically possess Appellant's Promissory Note, this would not preclude Fannie Mae from issuing or authorizing the issuance of the NOD. Fourth, Appellant's contention that California law only allows trustees to issue and record notices of default is entirely baseless. As recognized by the trial court, California Civil Code section 2924(a)(l) allows a "trustee, mortgagee, or beneficiary, or any of their authorized agents" to record notices of default. CAL. CN. CODE 2924(a)(l). Fifth, Appellant did not challenge QLSC's authority to act on behalf of the beneficiary in the moving papers. Appellant merely argued that an agent for a beneficiary cannot record a notice of default under California law, but as already discussed, California Civil Code section 2924(a)(l) expressly allows such conduct. During oral argument, Appellant vaguely stated that "a missing fact is the business document reflecting any beneficiaries selected [QLSC] to act as an agent of anyone to do anything." (Reporter's Transcript of Proceedings ("Transcript") pg. 14). As the trial court found, however, QLSC's recordation of the NOD itself constitutes evidence that QLSC was an authorized agent of the beneficiary. (Resp. App. pgs. 067-068). Apart from speculation, Appellant offered no evidence demonstrating that QLSC did not act as an authorized agent in recording the NOD. As such, he failed to show the existence of a triable issue of material fact with respect to QLSC's status as an authorized agent.

See Sangster, 68 Cal. App. 4th at 163 ("Evidence that gives rise to no more
than mere speculation is insufficient to establish a triable issue of material fact.").

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Similarly, California courts do not entertain "preemptive" challenges to an entity's authority to initiate foreclosure. See Siliga v. Mortg.
Electronic Registration Systems, Inc., 219 Cal. App. 4th 75, 82-83 (2013).

A challenge is "preemptive" if the plaintiff sets forth no "specific factual basis" for the claim that the foreclosure was not initiated by the correct person. Id. at 82. Here, Appellant has offered no specific factual basis for his assertion that QLSC lacked the authority to act as agent of the beneficiary and record the NOD. For this additional reason, Appellant's contention fails. Finally, as argued by Respondents in the trial court, Appellant has not demonstrated that he was prejudiced by any purported defect in the NOD. (Resp. App. pg. 178). As stated in Aceves, absent prejudice, alleged irregularities do not warrant relief. See Aceves, 192 Cal. App. 4th at 232. Appellant attempts to distinguish Aceves from the instant case on unintelligible grounds, but it is well-settled that prejudice is a prerequisite to seeking relief on the basis of purported procedural irregularities in foreclosure. See, e.g., Fontenot, 198 Cal. App. 4th at 272 ("[A] plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiffs interests."). Here, Appellant admits that he ceased making loan payments and triggered the power of sale in the DOT, and there is no allegation or evidence that foreclosure would have been avoided in the absence of the purported defects in the NOD. Since Appellant has offered no evidence of a prejudicial procedural defect in the NOD, any claim premised upon the assertion that the NOD was "void" fails as a matter of law.

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In light of the foregoing, Appellant's fifth "issue presented" does not show the existence of a triable issue of material fact, nor that the trial court committed prejudicial error.

6.

Appellant's Sixth "Issue Presented"

Appellant's sixth "issue presented" contends that the trial court erred in fmding that QLSC was acting as agent of the beneficiary when it recorded the NOD. (Opening Briefpgs. 28-30). However, as already discussed supra, Appellant has not shown the existence of a triable issue of material fact as to QLSC's agency. See Section VII(B)(5), supra. First, Respondents have provided evidence that QLSC was acting as an authorized agent, and Appellant has offered no evidence to the contrary. Second, Appellant may not preemptively challenge QLSC's authority to participate in foreclosure absent a "specific factual basis." Third, Appellant has not provided any evidence that he was prejudiced by QLSC's recordation of the NOD. In light of the foregoing, Appellant's sixth "issue presented" does not demonstrate the existence of a triable issue of material fact or that the trial court committed prejudicial error, and Appellant therefore fails to provide a basis for reversal.

7.

Appellant's Seventh and Eighth "Issues Presented"

Appellant's first three causes of action are largely premised upon the theory that Respondents and QLSC could not foreclose on the Subject Property because they allegedly did not have physical possession of Appellant's Promissory Note. As noted above, Appellant's theory fails for two independent reasons. First, a foreclosing entity does not need to physically possess a promissory note. Second, Respondents have offered substantial evidence that Respondents did possess the original Promissory
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Note. The trial court noted that one such piece of evidence was the fact that Appellant had been presented with the original Promissory Note at his deposition and acknowledged that the signature on that document appeared to be his. (Resp. App. pg. 196). Appellant's seventh "issue presented" appears to contend that the trial court erred when it found that "plaintiff was presented with an original promissory note[ ... ] at his deposition .... " (Opening Briefpg. 30). Similarly, Appellant's eighth "issue presented" asserts that the trial court erred when it found that Appellant had attested at that deposition that the signature appearing on the original Promissory Note appeared to be his. (Opening Briefpg. 32). Even if Appellant is correct, however, this does not show the existence of a triable issue of material fact or that the trial court committed prejudicial error. Appellant's assertion that Respondents cannot foreclose without physical possession of the Promissory Note contradicts well-settled principles oflaw. See Section VII(A)(l), supra. Additionally, Appellant's admission at his deposition is not the only evidence demonstrating that Respondents had physical possession of the original Promissory Note. For example, Appellant acknowledged in the First Amended Complaint that Respondents had provided him with a copy of the original Promissory Note in August 2010. (Resp. App. pg. 011). As such, the issues of(a) whether or not Appellant was actually presented with the original Promissory Note at his deposition and (b) whether or not Appellant actually attested to his signature are immaterial. Appellant's claims still fail as a matter of law. For the foregoing reasons, Appellant's seventh and eighth "issues presented" do not show the existence of a triable issue of material fact or that the trial court committed a prejudicial error.

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8.

Appellant's Ninth "Issue Presented"

Appellant's ninth "issue presented" is incredibly vague, but appears to contend that the trial court erred in utilizing a "discovery facilitator" in connection with ruling on Appellant's Motion to Compel Production of Documents and Further Responses to Interrogatories. (Opening Briefpg. 33). Appellant offers no argument demonstrating that the trial court's use of a "discovery facilitator" was procedurally improper or in any way prejudicial to Appellant. In fact, Appellant provides no discussion as to how the trial court's use of a "discovery facilitator" affected the outcome of the Motion at all. Instead, Appellant merely sets forth an incomprehensible discussion of California Code of Civil Procedure section 473(b) and directs this Court to review the arguments asserted in a motion filed with the trial court. (Opening Briefpgs. 33-35). This "issue presented" should be disregarded for two reasons. First, it is unintelligible. Failure to make a coherent argument or to cite to supporting authority for contentions constitutes a waiver of an issue on appeal. See Berger v. Cal. Ins. Guarantee Assn., 128 Cal. App. 4th at 1007. Second, while Appellant directs this Court to read a pleading filed with the trial court for "further argument," an "appellant may not simply incorporate by reference arguments made in papers filed in the trial court, rather than briefing them on appeal." Keyes v. Bowen, 189 Cal. App. 4th 657, 565 (2010). Since Appellant does not explain how the use of a "discovery facilitator" constituted an abuse of the trial court's discretion or a prejudicial error of any kind, his ninth "issue presented" fails to provide a basis for reversal. See In reIns. Installment Fee Cases, 211 Cal. App. 4th 1395, 1425 (2012) ("Management of discovery generally lies within the

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sound discretion of the trial court." (internal quotations omitted)). Moreover, this issue has no bearing on the trial court's ruling on the summary judgment motion and fails to establish that there was a triable issue of fact in this case.

9.

Appellant's Tenth "Issue Presented"

In Appellant's Statement of Objections and Request for Decision ("Statement of Objections"), he objected to three statements regarding the recordation of certain documents set forth in the Declaration of Juan C. Sierra ("Sierra Declaration") filed in support of the Motion. (Resp. App. pgs. 168-170). First, Appellant objected to Mr. Sierra's declaration that the NOD was recorded. (Resp. App. pg. 170). Second, Appellant objected to Mr. Sierra's declaration that the 2nd Assignment was recorded. (Resp. App. pg. 170). Third, and fmally, Appellant objected to Mr. Sierra's declaration that the SOT was recorded. (Resp. App. pg. 170). Each of Appellant's objections were made on various grounds, including lack of foundation and lack of personal knowledge. (Resp. App. pg. 170). The trial court, however, overruled each objection, explaining that it had already taken judicial notice of the NOD, 2nd Assignment and SOT such that Appellant's objections were moot. (Resp. App. pg. 194). Appellant's tenth "issue presented" contends that the trial court erred when it judicially noticed the fact of recordation of the NOD, 2nd Assignment and SOT. (Opening Briefpg. 35). However, as already discussed, California courts may judicially notice the fact of recordation.

See Fontenot, 198 Cal. App. 4th at 265 ("[A] court may take judicial notice
of the fact of a document's recordation ...."). Accordingly, the trial court did not abuse its discretion in judicially noticing that the NOD, 2nd

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Assignment and SOT had been recorded and therefore overruling Appellant's three objections. Appellant also argues that the trial court erred in judicially noticing a copy of a webpage from the FDIC's official website ("FDIC Webpage") which was attached as an exhibit to Respondent's Supplemental Request for Judicial Notice. (Opening Briefpg. 37). According to Appellant, such a document cannot be judicially noticed pursuant to Jolley v. Chase Home Fin., LLC, 213 Cal. App. 4th 872 (2012). Appellant argues that, under Jolley, "[s]ubstantive information and contents of documents taken from websites, even 'official' government websites, do not deserve judicial notice under California evidentiary rules, even where there are no factual disputes over the content or substance of the documents." (Opening Brief pg. 37). As a preliminary matter, Appellant did not make this argument in the trial court, and cannot raise it on appeal. See Kern, 209 Cal. App. 4th at 1038. Even if Appellant could make this contention on appeal, Jolley does not stand for the proposition that documents published on official government websites are, as a matter of law, not judicially noticeable. As
explained in Scott v. JPMorgan Chase Bank, NA., 214 Cal. App. 4th 743

(2013), Jolley merely held that 'judicial notice can be taken of matters not reasonably subject to dispute, but cannot be taken of matters shown to be reasonably subject to dispute." Scott, 214 Cal. App. 4th at 760-61. "[T]he mere fact that a statement appears on a Web page does not mean that it is not reasonably subject to dispute[ ... ][a]nd if the information on the Web site is reasonably disputed by the parties, it is not subject to judicial notice."

!d. at 760. However, where a document published on an official

government website is "not shown by [a party] to be subject to reasonable

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dispute in the trial court," the trial court does not err in taking judicial notice of that document. See id. Here, Appellant did not show or even argue that the FDIC Webpage was subject to reasonable dispute in the trial court. Accordingly, Appellant has not demonstrated that the trial court abused its discretion in taking judicial notice of the document. See id. Additionally, Appellant does not in any way demonstrate how taking judicial notice of the FDIC Webpage prejudiced him or had any impact on the outcome of the Motion. For the foregoing reasons, Appellant's tenth "issue presented" does not show that the trial court abused its discretion in taking judicial notice of the documents at issue.

10.

Appellant's Eleventh "Issue Presented"

Appellant's eleventh "issue presented" contends that the trial court erred when it found that Appellant had submitted "as part of his own opposition evidence a trustees' sale guaranty showing defendant JP Morgan as being the deed of trust beneficiary of record." (Opening Briefpg. 38). The trial court was referring to Exhibit C of the Declaration of Leighton Lee Perry, which was filed in support of Appellant's Opposition to the Motion. (Resp. App. pgs. 195-196). According to Appellant, Exhibit C was a compilation of two non-consecutive pages of Chase's response to a discovery request, "depicting Trustees' Sale Guarantee by Stewart Title Company for the Beneficiary JPMorgan Chase Bank, N.A. dated 6115/2010." (Resp. App. pg. 151). The second page of this Exhibit lists QLSC and Chase as the trustee and beneficiary, respectively, of the DOT. (Resp. App. pg. 157). Appellant argues that the excerpt of the Trustee's Sale Guarantee does not constitute evidence that Chase was the beneficiary of the DOT,

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explaining that "in actuality'' the Trustee's Sale Guarantee also identified a distinct "investor" separate from the beneficiary, such that "it is uncertain who declared a default." (Opening Briefpg. 38). If this is true, it appears
nowhere in the excerpt of the Trustee's Sale Guarantee attached to

Appellant's Declaration. (Resp. App. pgs. 156-157). As such, it seems Appellant is referring to facts that were not presented to the trial court and that cannot be considered on appeal. See Premier Medical Management Systems, Inc. v. California Insurance Guarantee Association, 163 Cal. App. 4th 550, (2008) ("[W]e ignore arguments, authority, and facts not presented and litigated in the trial court. Generally, issues raised for the first time on appeal which were not litigated in the trial court are waived.") (internal quotations omitted). In light of the foregoing, the exhibits attached to Appellant's Declaration must be accepted as-is. On its face, the excerpt of the Trustee's Sale Guarantee produced by Appellant stated that Chase was the beneficiary of record. Thus, Appellant's eleventh "issue presented" does not show the existence of a triable issue of material fact or that the trial court committed prejudicial error, and fails to provide a basis for reversal. 11. Appellant's Twelfth "Issue Presented"

Appellant's twelfth "issue presented" merely contends that "[r]esolution of the Fourth cause of action is precedent to determining the remaining causes of action." (Opening Briefpg. 39). Appellant offers no explanation of this statement and, as such, this Court should disregard it. See Mansell v. Bd. ofAdmin., 30 Cal. App. 4th 539, 545 (1994) ("[A]n appellate brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court

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may treat it as waived, and pass it without consideration." (internal quotations omitted)). To the extent Appellant argues that his claims for declaratory relief, slander of title, and quiet title rely entirely upon his claim for violation of California Civil Code section 2943, Appellant is only confirming the propriety of granting the Motion. Indeed, as demonstrated in the Motion and in this brief, section 2943 is preempted by federal law and, as such, Appellant's claim under that section fails as a matter oflaw. Appellant's twelfth "issue presented" therefore does not show that the trial court committed prejudicial error and fails to provide a basis for reversal. See generally Cassim, 33 Cal. 4th at 800-803.

12.

Appellant's Thirteenth "Issue Presented"

Appellant's thirteenth "issue presented" is incomprehensible, and this Court should pass it without consideration. See Berger v. Cal. Ins. Guarantee Assn., 128 Cal. App. 4th at 1007. The section header reads: "Did the trial court deny Appellant due process by allowing new significant argument regarding diversity jurisdiction of the court in a reply to a summary judgment motion?" (Opening Brief pg. 39). It is not at all clear what Appellant means by this. The trial court did not entertain "new significant argument" regarding "diversity jurisdiction" in a reply brief. The principle of diversity jurisdiction has no place in this litigation, and no reference to the principle was made in Respondent's Reply brief. The subject header is followed by a brief discussion of whether California Civil Code section 2943 is preempted by federal law. (Opening Brief pg. 39). This issue is thoroughly discussed elsewhere in this brief. See Section VII(A)(4), supra.

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Appellant next asserts that he was unduly prejudiced when the trial court opted not to issue a tentative ruling on his "discovery motions" and to deliver the final rulings on those motions to the parties via regular mail. (Opening Briefpg. 40). Appellant does not provide any authority demonstrating that this conduct constituted error-i.e., no authority requiring courts to deliver fmal rulings to parties via any means other than regular mail and no authority requiring courts to publish tentative rulings. 3 Additionally, Appellant does not draw any causal connection between the trial court's purported conduct and any alleged prejudice. For the foregoing reasons, Appellant's thirteenth "issue presented" does not show the existence of a triable issue of material fact or that the trial court committed prejudicial error, and fails to provide a basis for reversal.

13.

Appellant's Fourteenth "Issue Presented"

Appellant's fourteenth "issue presented" appears to be yet another attempt to argue that California Civil Code section 2943 is not preempted by federal law. (Opening Briefpg. 41). The issue of federal preemption has been thoroughly discussed elsewhere in this brief, and it has been demonstrated that the trial court correctly found that section 2943 is preempted by federal law. See Section VII(A)( 4), supra. Accordingly, Appellant's fourteenth "issue presented" does not provide a basis for reversal.

II II II
3 In fact, the California Rules of Court expressly do not require judges to issue tentative rulings. See Cal. R. Court 3.1308(e).

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C.

APPELLANT'S "ARGUMENT" SECTION DOES NOT DEMONSTRATE THE EXISTENCE OF A TRIABLE ISSUE OF MATERIAL FACT, AN ABUSE OF DISCRETION, OR A PREJUDICIAL ERROR
1.

The Trial Court's "Failure" to Provide the Requested Statement of Decision Is Not Reversible Error

According to the Opening Brief, when Appellant informed the trial court that he would be contesting its tentative ruling on the Motion, he explained that he would "be asking the court to provide the factual determination of the amount of money Fannie Mae paid to the original lender for the Subject Loan, and the amount of money [Chase] paid to Fannie Mae for the Subject Loan .... " (Opening Briefpg. 42). Appellant states that the trial court declined to address the issue in a statement of decision, and that this declination somehow constituted a reversible error. (Opening Briefpg. 43). Appellant's argument is without merit. Statements of decision are governed by California Code of Civil Procedure section 632. It is well-settled that "the express language of section 632 requires a trial court to issue a statement of decision only after a 'trial of a question of fact by the court."' Mechanical Contractors Assn. v. Greater Bay Area Assn., 66 Cal. App. 4th 672, 677 (1998). This appeal does not concern the trial of a question of fact by the court-rather, it concerns the trial court's ruling on a motion for summary judgment. "The general rule is that a trial court need not issue a statement of decision after a ruling on a motion." !d. More importantly, however, in ruling on a motion for summary judgment "it is the duty of the trial court to determine whether plaintiff or defendant has presented any facts which give rise to a triable issue or defense, not to pass upon or determine the issue itself." Perry v. Farley Bros. Moving & Storage, Inc., 6 Cal. App. 3d 884, 889 (1970).

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Indeed, "[ o]n hearing such a motion the court is without power to make findings of fact." !d. Since Appellant's last-minute request for a statement of decision was procedurally improper, Appellant cannot argue that the trial court's "failure" to accommodate the request constituted a "reversible error."

2.

The Trial Court Did Not Award Respondents "Equitable Relief' by Granting the Motion

Here, Appellant again asserts that the trial court somehow awarded Respondents "equitable relief' by granting the Motion, and argues that the trial court lacked jurisdiction to do so. (Opening Briefpg. 44). Appellant appears to be asserting that the trial court could not grant Respondents' Motion until Respondents offered evidence that they had paid consideration for the Subject Loan and/or DOT, but Appellant offers no authority supporting such a proposition. Moreover, as already discussed, in granting Respondents' Motion, the trial court did not grant Respondents "equitable relief." Rather, the trial court merely determined that Appellant had failed to demonstrate the existence of a triable issue of material fact and that Appellant was not entitled to the relief he was seeking as a matter of law. Since Appellant's argument is unsupported by authority or reason, this Court should disregard it. See Berger v. Cal. Ins. Guarantee Assn., 128 Cal. App. 4th at 1007 (holding that failure "to make a coherent argument or cite any authority to support [a] contention [ ... ] constitutes a waiver of the issue on appeal").

3.

California Civil Code Section 2943 is Preempted by Federal Law

On Appeal, Appellant now argues that California Civil Code section 2943 is not preempted by the Real Estate Settlement Procedures Act

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("RESPA") or the Truth-in-Lending Act ("TILA"). (Opening Briefpgs. 44-46). As a preliminary matter, Appellant did not make this argument in the trial court. As such, Appellant cannot raise this argument on appeal.

See Kern, 209 Cal. App. 4th at 1038. In any event, even if it is correct that
section 2943 is not preempted by RESP A or TILA, as Appellant now argues, this does not mean that section 2943 is not preempted by other federal law. Indeed, as argued in Respondents' moving papers, in this action section 2943 is preempted by HOLA and regulations issued thereunder. See Section VII(A)(4), supra. Accordingly, this point does not demonstrate the existence of a triable issue of material fact, an abuse of discretion, or a prejudicial error of any kind.

4.

Appellant Does Not Have a Legal Basis for an Action Challenging Respondents' Authority to Foreclose

Appellant next argues that "the contract language both authorizes and obligates the borrower to question the authority of a beneficiary who attempts to slander the clear title to the Subject Property." (Opening Brief pg. 46). Once again, whether the DOT or Subject Loan authorized Appellant to bring this lawsuit was not an issue before the trial court, and cannot be raised here. See Kern, 209 Cal. App. 4th at 1038. Even if Appellant could raise this issue on appeal, Appellant is completely misconstruing the language of the DOT. Appellant appears to be relying on the following language found within the DOT: BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands,

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subject to any encumbrances of record. (Resp. App. pg. 057). (See Opening Brief pg. 18). This language does not authorize or obligate a borrower to "question the authority of a beneficiary," as Appellant erroneously suggests. Rather, the covenant of warranty and defense in a deed conveying any interest in land "is an undertaking by the warrantor, that on the failure of the title which the deed purports to convey[ ... ] that [the warrantor] will make compensation in money for the loss sustained by such failure of title." Tropico Land &
Jmprov. Co. v. Lambourn, 170 Cal. 33, 38 (1915).

Even assuming, arguendo, that the DOT authorizes Appellant to "question the authority of a beneficiary," this would not mean that Appellant's case has any merit. Indeed, as demonstrated by Respondent's moving papers and throughout this Brief, Appellant's case has no merit and all of his claims fail as a matter oflaw.

II II II II II II II II II II II II II II
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VIII. CONCLUSION

For the reasons set forth in this Brief, Appellant has given this Court no reason to reverse the trial court's ruling on Respondent's Motion. Indeed, Appellant has failed to demonstrate the existence of any triable issue of material fact, and has failed to dispute that Respondents are entitled to judgment as a matter oflaw. Additionally, Appellant has not shown that the trial court abused its discretion or committed any prejudicial errors of any kind. Accordingly, Respondents respectfully request that this Court affirm the trial court's judgment in its entirety.

Dated: February 6, 2014 JOHN COX IAN ROSS KEESAL, YOUNG & LOGAN Attorneys for Respondents JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to CHASE HOME FINANCE LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION

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WORD COUNT CERTIFICATION

I, IAN ROSS, certify that the foregoing brief contains 9,948 words.

Dated: February 6, 2014 JOHN COX IAN ROSS KEESAL, YOUNG & LOGAN Attorneys for Respondents JPMORGAN CHASE BANK, N.A., for itself and as successor by merger to CHASE HOME FINANCE LLC, and FEDERAL NATIONAL MORTGAGE ASSOCIATION

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PROOF OF SERVICE Perry v. JPMorgan Chase Bank, N.A., et al. Case Number A139655

STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is Keesal, Young & Logan, 450 Pacific Avenue, San Francisco, California 9413 3. On February 6, 2014, I served the foregoing documents described as RESPONDENTS JPMORGAN CHASE BANK, N.A. AND FEDERAL NATIONAL MORTGAGE ASSOCIATION'S OPENING BRIEF on the parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows:
Leighton Lee Perry 6724 Waverly Road Martinez, CA 94553 (925) 949-8377 LL Perry@att.net Plaintiff and Appellant Charles Edward Bell, Jr., Esq. McCarthy & Holthus 1770 Fourth Avenue San Diego, CA 92101 Email: cbell@mccarthyholthus.com Counsel for Defendant and Respondent Quality Loan Service Corp.

Service by Email and Overnight Mail

Service by Overnight Mail

BY OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the above-named persons at the addresses exhibited therewith. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery earner. E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the above-named persons at the e-mail addresses exhibited therewith. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. Executed on February 6, 2014 at San Francisco, California. I declare under penalty of perjury under the laws of the State of California and United States of America that the foregoing is true and correct.

[2J

[2J

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PROOF OF SERVICE- Case Number A139655

I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made.

Maria Cefina M. Schilt

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PROOF OF SERVICE- Case Number A139655