Filed 4/5/22 Kingsland Investment LLC v. Tanriverdi CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Affirmed.

Verdi Tanriverdi, in pro. per., for Defendant and Appellant.

Cooksey, Toolen, Gage, Duffy & Woog and Matthew R. Pahl; Thomas F. Zimmerman for Plaintiff and Respondent.

* * *

This case concerns the unconsummated sale of real property that fell through during escrow. Defendant Verdi Tanriverdi, as trustee of the Quartz Trust and Fireside Circle Trust, the seller, agreed to sell certain real property to plaintiff Kingsland Investment LLC, the buyer. As required by their agreement, plaintiff transferred an initial deposit of $52,140 to the escrow agent. Plaintiff later exercised its rights to cancel the purchase agreement and sought the return of its deposit. Defendant disagreed, arguing he was entitled to the deposit as liquidated damages because plaintiff could not cancel the agreement. Plaintiff then initiated the instant action, and defendant filed a cross-complaint. Both parties argued they were entitled to the deposit.

Plaintiff filed a motion for summary judgment asserting it was entitled to cancel the agreement because the subject property was divided in violation of the Subdivision Map Act, defendant had failed to obtain a public report in violation of the Subdivided Lands Act, and various other contingencies authorized cancellation. Plaintiff argued defendant breached the agreement by refusing to instruct the escrow agent to refund plaintiff’s security deposit.

The court entered summary judgment in plaintiff’s favor and found plaintiff was entitled to cancel the agreement because a preliminary title report revealed several defects with the title and that defendant did not hold clear title to the property. The court also noted the parties’ agreement required plaintiff to obtain a policy for title insurance from a specific title company, but the title company would not insure title without a court order quieting title. The court concluded the intent of the parties’ agreement could not be realized.

Defendant raises several arguments on appeal. First, he argues plaintiff could not have cancelled the agreement due to any title-related contingencies. Second, defendant contends the court violated his constitutional rights to due process and various evidentiary rules. Finally, he claims the court’s ruling violated numerous provisions of the Code of Civil Procedure. We disagree with defendant’s contentions and affirm the judgment.

FACTS

The Purchase Agreement

In January 2019, plaintiff, the buyer, and defendant, the seller, executed a Vacant Land Purchase Agreement and Joint Escrow Instructions (the Agreement). The Agreement concerned the sale of 158 residential lots located in Apple Valley, California and required plaintiff to transfer an initial deposit of $52,140 to the escrow agent. The Agreement’s provisions regarding title insurance and plaintiff’s cancellation rights are relevant to this appeal.

With respect to title insurance, the Agreement required defendant to pay for an owner’s title insurance policy issued by First American Title Company (First American). Paragraph 15 of the Agreement provided: “Within the time specified in paragraph 19, Buyer shall be provided a current preliminary title report, which shall include a search of the General index, Seller shall 7 Days After Acceptance, give Escrow Holder a completed Statement of Information. The preliminary report is only an offer by the title insurer to [insure] a policy of title Insurance and may not contain every item affecting title. Buyer’s review of the preliminary report and any other matters which may affect title are a contingency of this Agreement as specified in paragraph 19B.”

Paragraph 19(A) of the Agreement indicated defendant had 90 days after acceptance to deliver to plaintiff all relevant reports, disclosures, and information. This included the preliminary title report and title insurance policy issued by First American. Under paragraph 19(B)(1), plaintiff had 17 days after acceptance to complete all buyer investigations and approve all disclosures, reports, and other applicable information received from defendant. Within the 17-day period, plaintiff was required to deliver a removal of the applicable contingency or a cancellation of the Agreement based upon a remaining contingency or defendant’s failure to deliver specified items. Paragraph 19(B)(3) added: “However, if any report, disclosure or information for [sic] Seller is responsible is not Delivered within [90 days after acceptance], then Buyer has 5 Days After Delivery of any such items, or [17 days after acceptance], whichever is later, to Deliver to Seller a removal of the applicable contingency or cancellation of this Agreement.”

Paragraph 19(B)(4) of the Agreement indicates that even after the end of the 17-day period but before defendant opts to cancel the Agreement, plaintiff “retains the right to either (i) in writing remove remaining contingencies, or (ii) cancel th[e] Agreement based upon a remaining contingency or Sellers [sic] failure to Deliver the specified items . . . .” The Agreement further noted: “If Buyer removes, in writing, any contingency or cancellation rights, unless otherwise specified in a separate written agreement between Buyer and Seller, Buyer shall with regard to that contingency or cancellation right conclusively be deemed to have: (I) completed all Buyer Investigations and review of reports and other applicable information and disclosures; (II) elected to proceed with the transactions; and (III) assumed all liability, responsibility and expense for Repairs or corrections or for inability to obtain financing.” (Italics added).

Finally, if either party properly exercised its cancellation rights, the Agreement indicated the parties would sign “mutual instructions to cancel the sale and escrow and release deposits, if any, to the party entitled to the funds, less fees and costs incurred by that party . . . .”

Plaintiff’s Complaint and Defendant’s Cross-Complaint

In May 2019, plaintiff filed the operative complaint in the instant action against defendant alleging claims for: (1) breach of contract; and (2) declaratory relief. According to the complaint, plaintiff properly exercised its right to cancel the Agreement, but defendant refused to execute cancellation instructions and return plaintiff’s security deposit in the amount of $52,140.

In October 2019, defendant filed a cross-complaint against plaintiff and two other parties who are not involved in the instant appeal — Homer Yen, the broker for the land purchase, and Home Tech Realty Co. (Home Tech). According to the cross-complaint, defendant was entitled to retain plaintiff’s security deposit as liquidated damages because plaintiff had no right to cancel the Agreement. The cross-complaint also asserted a fraud claim against Yen and Home Tech for “intentionally failing to comply with the contract in order to cause financial harm to plaintiff . . . in the amount of $1,738,000.”

Plaintiff’s Motion for Summary Judgment

In February 2020, plaintiff moved for summary judgment, or in the alternative summary adjudication, seeking judgment in its favor on both the complaint and cross-complaint. Plaintiff argued it was entitled to cancel the Agreement because the subject property was divided in violation of the Subdivision Map Act, defendant had failed to obtain a public report in violation of the Subdivided Lands Act, and various other contingencies authorized cancellation. Plaintiff accordingly argued defendant breached the Agreement by refusing to instruct the escrow agent to refund plaintiff’s security deposit.

In support of its motion, plaintiff submitted evidence of the following material undisputed facts.[1] The parties executed the Agreement in January 2019. Plaintiff subsequently deposited $52,140 with the escrow agent. Plaintiff’s obligation to purchase the property was contingent upon its review and approval of a preliminary report and any other matters affecting title.

On January 28, 2019, First American provided a preliminary title report indicating defendant was not the owner of record of the property and the property was subject to an $11,970,000 deed of trust lien. The report also noted there was an option in favor of a third party and a recorded notice of violation. The next day, a senior title officer from First American sent an email to the escrow agent stating: “On this file we are unable to insure due to the fact that this was acquired by tax deed and the liability amount is over $125,000.00. We don’t insure Tax Deed properties over that amount. There is an $11.970M loan on the property that we will not remove based on the tax deeds. The owner will need to do a quiet title action in order for us to insure. We would have to wait out the appeal period once the court order is issued.”

On February 27, 2019, the parties exchanged emails about title insurance. Among other things, plaintiff asked defendant: “Do you have title insurance for your 158 lots? Can they be our title insurance company too? So far both First American Title Company and Chicago Title don’t want to do the deal.” After reviewing the preliminary title report from First American, defendant responded: “Although, I have not resolved the conditions listed in the Prelim, but those are IMO have no importance. Item 14 is about a loan from 1994. Item[s] 26 through 77 are about quieting the title via Ledford, clarifying their interest. Item[s] 84, 86 and 87 are about providing proper documentation to prove the legality of the entities. AND, IMO, those are not real issues. However, I am checking with another title company to see if we can get the title insurance without any conditions other than proving the legalities of all the parties involved.” Plaintiff responded: “I don’t think the title thing will be big issue but this is a complicated project.”

On March 1, 2019, defendant proposed using Orange Coast Title Company, which apparently agreed to “insure the title without any conditions other than regularly requested legal documentation.” In early April 2019, Orange Coast Title Company indicated it needed to receive an up-front payment of $5,000 to commence the title searches for the preliminary report. On April 8, 2019, defendant asked Orange Coast Title Company to waive the $5,000 fee. Later that day, plaintiff sent an email to defendant stating, among other things: “Regarding the title insurance, I don’t think it is a big issue and believe we can find a way to solve it. I worked very hard on the due diligent [sic] these few weeks, but there are many uncertainties. If you can give me one more month extension for the due diligent [sic], I will be very thankful and try to see if I can figure out ways to solve these problems . . . .” On April 11, 2019, Orange Coast Title Company told defendant it would not waive the $5,000 fee and could not begin the necessary search until payment was received.

On April 15, 2019, plaintiff cancelled the Agreement. Plaintiff’s email to defendant stated: “After 3 months study and a few conference calls with the attorney, regretfully we have decided to stop pursuing the purchase . . . until we resolve a few concerns especially the formation of CC&R . . . .” When defendant asked for additional details, plaintiff explained it was unlikely the owners of other residential lots in the same tract would consent to the recordation of necessary CC&Rs encumbering their properties. Defendant ultimately agreed to cancel the Agreement but indicated he would be keeping plaintiff’s security deposit.

Defendant’s Opposition to Plaintiff’s Motion for Summary Judgment

In opposition to plaintiff’s motion for summary judgment, defendant accused plaintiff of filing a “defective and illegal” motion in violation of various sections of the Code of Civil Procedure. Defendant also argued plaintiff was not entitled to cancel the Agreement based on any of the grounds raised in the motion. We need not summarize all of those grounds and instead focus on arguments concerning the title contingency.

Although defendant acknowledged matters affecting title were a contingency of the Agreement, he argued plaintiff’s failure to remove the title contingency within the allowed time period had the effect of removing the contingency. Relying on paragraphs 19(B)(1) and 19(B)(3) of the Agreement, defendant claimed plaintiff had 17 days or five days after issuance of the preliminary title report to remove the title contingency. Because plaintiff received First American’s preliminary title report on January 28, 2019, defendant concluded plaintiff effectively removed the title contingency five days later on February 2, 2019. Defendant accordingly argued plaintiff could not cancel the Agreement and forfeited the $52,140 deposit.

Order Granting Plaintiff’s Motion for Summary Judgment

The court granted the motion for summary judgment and found it did not need to address plaintiff’s arguments regarding the various breaches entitling it to cancel the Agreement. Instead, the court focused on plaintiff’s cancellation rights due to title-related issues. Relying on paragraph 4 of the Agreement, the court noted defendant was required to pay for an owner’s title policy from First American guaranteeing he was transferring good title. But the court emphasized the preliminary title report “came back showing significant title problems” that were “so severe the title company refused to insure title.” The court concluded it was undisputed defendant could not guarantee good title because First American “told everyone it would only insure title after a court order quieting title, and there is nothing in the file indicating that a quiet title action was ever filed . . . .”

Although plaintiff’s cancellation rights extended to only 17 days from the Agreement’s signing date, the court explained defendant had 90 days to deliver all reports, including the preliminary title report and owner’s title policy. The court accordingly reasoned: “A contract that allows the seller 90 days from the date of the agreement to deliver the reports while the buyer is only allowed 17 days from contract formation to make an informed decision about whether the reports should be accepted creates a potentially illusory contract.” Regardless, the court explained there was “a more prosaic problem” with defendant’s argument. Looking at the “‘big picture,’” the court emphasized the purpose of the Agreement was to transfer title of the property to plaintiff. Because First American found neither defendant nor his trusts held clear title and it was not willing to insure title without a court order, the court held the intent of the Agreement could not be realized. The court accordingly found plaintiff was entitled to cancel the Agreement as a matter of law and ordered the return of plaintiff’s $52,140 deposit.

Judgment and Defendant’s Motion for Reconsideration

In January 2021, the court entered judgment in plaintiff’s favor. In March 2021, defendant filed a motion for reconsideration. In May 2021, while the motion for reconsideration was pending, defendant filed a notice of appeal. In June 2021, the court denied the motion for reconsideration as procedurally defective and without merit.

DISCUSSION

Defendant’s opening brief is largely indecipherable and devoid of any reasoned legal analysis, record citations, or clearly articulated issues. Nonetheless, defendant’s contentions on appeal seem to be as follows: First, defendant argues plaintiff could not have cancelled the Agreement due to any title-related contingencies. Among other things, defendant claims plaintiff effectively waived the title contingency by remaining silent and failing to cancel the Agreement within the permitted time period. Second, defendant contends the court violated his constitutional rights to due process and various evidentiary rules. He suggests the court erroneously ignored his cross-complaint and an ex parte motion, denied his motion to compel necessary discovery, and failed to consider a default judgment. Finally, defendant claims the court’s ruling violated numerous provisions of the Code of Civil Procedure. For the reasons below, we disagree with defendant’s contentions and affirm the judgment.

Standard of Review and Applicable Law

An appellate court reviews a grant of summary judgment de novo, “considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.” (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334.) “[W]e [accordingly] assume the role of a trial court and apply the same rules and standards which govern a trial court’s determination of a motion for summary judgment.” (Zavala v. Arce (1997) 58 Cal.App.4th 915, 925.) The motion shall be granted if “all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)[2] “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

In moving for summary judgment, “[a] plaintiff . . . has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (§ 437c, subd. (p)(1).) If the plaintiff meets that burden, “the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.) “The defendant . . . shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exist but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . .” (Ibid.)

Although we independently assess the grant of summary judgment, defendant, as the appellant, still bears the burden of establishing error on appeal. “‘As with an appeal from any judgment, it is the appellant’s responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed.’” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) Parties in propria persona are held to the same standards as attorneys. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Defendant’s self-represented status accordingly does not exempt him from satisfying his appellate burden.

Defendant’s Duty to Provide Marketable Title and a Title Insurance Policy

A. Relevant Background and Law

As discussed ante, the Agreement required defendant to provide an owner’s title insurance policy issued by First American. Pursuant to paragraphs 4, 15, and 19(A) of the Agreement, defendant had 90 days after acceptance to deliver a preliminary title report from First American. Plaintiff’s review of the preliminary title report and matters affecting title were a contingency of the Agreement.

Under paragraph 19(B)(1), plaintiff had 17 days after acceptance to deliver a removal of the applicable contingency or cancel the Agreement based upon a remaining contingency or defendant’s failure to deliver specified items. But even after the end of the 17-day period, assuming defendant had not opted to cancel the Agreement, plaintiff still could remove remaining contingencies or cancel the Agreement based upon a remaining contingency or defendant’s failure to deliver specified items.

As to the applicable law, we note a seller of real property generally has a duty to provide good and marketable title to the buyer. (King v. Stanley (1948) 32 Cal.2d 584, 589-590, disapproved on another ground in Patel v. Liebermensch (2008) 45 Cal.4th 344, 349.) “A preliminary title report is an offer ‘to issue a title policy subject to the stated exceptions set forth’ therein. . . . The reports serve to apprise the prospective insured of the state of title against which the insurer is willing to issue a title insurance policy.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1389.) Finally, title insurance is defined to mean “insuring, guaranteeing or indemnifying owners of real or personal property or the holders of liens or encumbrances thereon or others interested therein against loss or damage suffered by reason of: [¶] (a) Liens or encumbrances on, or defects in the title to said property; [¶] (b) Invalidity or unenforceability of any liens or encumbrances thereon; or [¶] (c) Incorrectness of searches relating to the title to real or personal property.” (Ins.Code, § 12340.1.)

B. Analysis

Here, there is no dispute defendant could not obtain a title insurance policy from First American as required by paragraph 4 of the Agreement. Defendant took the first step and obtained a preliminary title report from First American in January 2019 – within the required 90-day period after acceptance. But the report indicated there were various problems with the title, including: (1) defendant was not the owner of record; (2) the property was subject to an $11,970,000 deed of trust lien; and (3) there was an option in favor of a third party and a recorded notice of violation. First American also refused to issue an insurance policy unless there was a court order quieting title. As the court properly noted, there is nothing in the record indicating a quiet title action was ever filed or that defendant could guarantee good title. Although defendant tried to obtain a title insurance policy through another title company, he failed to pay the fee required to start the title search. By the time plaintiff cancelled the Agreement on April 15, 2019, defendant had not delivered a title insurance policy from First American (or any other title company). Considering all of this evidence and the “big picture,” as the court did below, the intent of the Agreement could not be realized. Plaintiff met its burden of establishing it was entitled to cancel the Agreement, and the burden shifted to defendant to show a triable issue of material fact.

Defendant argues plaintiff could not have cancelled the Agreement due to defendant’s failure to provide a title insurance policy. According to defendant, if “seller cannot produce a Title Policy, it falls out of escrow automatically when the time comes . . . . A title report was a contingency, (and that contingency was removed by [plaintiff]) but the title policy was not a contingency.” (Emphasis omitted.) But the Agreement indicates: “Buyer’s review of the preliminary report and any other matters which may affect title are a contingency of this Agreement as specified in paragraph 19B.” (Italics added.) Under paragraph 19(A), defendant was required to deliver all reports, disclosures, and information for which he was responsible under paragraph 4 within 90 days after acceptance. Paragraph 4 in turn required defendant to provide the owner’s title insurance policy from First American. Regardless, even if the parties’ negotiations continued, escrow likely would never close, and plaintiff would have been entitled to its security deposit at that time. It was undisputed defendant could not guarantee good title because First American refused to insure title without a court order quieting title and nothing in the record suggests defendant took steps to file a quiet title action.

In any event, plaintiff never removed the title contingency as defendant suggests. Defendant points to a February 2019 email from plaintiff stating: “I don’t think the title thing will be big issue but this is a complicated project.” Defendant also relies on a March 2019 email from plaintiff stating: “Regarding the title insurance, I don’t think it is a big issue and believe we can find a way to solve it.” While plaintiff’s comments expressed some optimism, none of these comments suggest plaintiff approved the preliminary title report or waived the title contingency. We also note the parties executed a California Association of Realtors standard form agreement, which required the removal of contingencies or cancellation to be in writing. In other words, the Agreement imposed an affirmative obligation on plaintiff to remove contingencies or cancel the Agreement. We accordingly reject defendant’s suggestion that plaintiff’s silence or informal emails somehow removed the title contingency.

Relying on paragraph 19(B)(2) of the Agreement, Defendant also contends plaintiff only had 17 days within which to remove the contingency or cancel the Agreement. By failing to do so, defendant claims plaintiff effectively waived the contingency and could not cancel the Agreement at a later time. We disagree. The Agreement allows plaintiff to cancel the Agreement even after the 17-day period. Paragraph 19(B)(4) of the Agreement states: “Even after the end of the time specified in 19B(1) [the 17-day period] and before Seller cancels this Agreement, if at all, . . . Buyer retains the right to either (i) in writing remove remaining contingencies, or (ii) cancel this Agreement based upon a remaining contingency or Sellers [sic] failure to Deliver the specified items . . . .”

Defendant further argues the court did not have jurisdiction to rule “on an issue that was not a Cause of an Action.” While the complaint does not explicitly reference title insurance issues, the complaint attached a copy of the Agreement, which included the title contingency. The issue of whether defendant breached the Agreement accordingly encompassed defendant’s failure to provide free and clear title or a title insurance policy.

Defendant alternatively appears to argue the court lacked jurisdiction because plaintiff did not cancel the Agreement due to title issues. Instead, defendant notes plaintiff “gave CC&R as the reason for cancellation.” But defendant fails to explain why plaintiff’s reason for cancelling the Agreement was material. In any event, plaintiff was entitled to cancel the Agreement due to CC&R issues. Plaintiff’s investigation and due diligence revealed the owners of other residential lots in the same tract likely would not consent to the recordation of CC&Rs encumbering their properties. Thus, plaintiff could cancel the Agreement pursuant to the investigation contingency in paragraph 13(A): “Buyer’s acceptance of the condition of, and any other matter affecting the Property, is a contingency of this Agreement . . . . Buyer shall have the right, at Buyer’s expense unless otherwise agreed, to conduct inspections, investigations, tests, surveys and other studies . . . .” In short, plaintiff could cancel the Agreement for a whole host of reasons.

Finally, defendant generally accuses the trial court judge of bias, corruption, and being paid off by plaintiff. These statements (and other even more insulting and offensive ones) are unsupported and do not aid defendant or this court.

Because there was not a triable issue of fact regarding defendant’s breach of the Agreement and plaintiff’s right to cancel the Agreement, the court properly granted summary judgment in plaintiff’s favor.

Defendant’s Constitutional and Evidentiary Claims

Defendant next contends the court violated his due process rights by: (1) ignoring his cross-complaint; (2) refusing to hear an ex parte motion; (3) denying a motion to compel certain unidentifiable discovery regarding Homer Yen, which rendered the summary judgment motion “illegal”; and (4) failing to consider a default judgment. He also ambiguously argues the court violated the Evidence Code and Federal Rules of Evidence. But defendant fails to support any of these conclusory arguments with legal authority or citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) “‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived.’” ([i]Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) For these reasons, defendant has not met his burden of demonstrating any error based on any evidentiary issues or his due process rights.

Defendant’s Claims Regarding the Code of Civil Procedure

Defendant also claims the court should not have considered the motion for summary judgment because it was “defective and illegal.” According to defendant, the motion violated eight provisions of the Code of Civil Procedure. We address each of these provisions in turn.

Defendant first relies on section 439 to argue the motion was “illegal.” But section 439 is irrelevant because it concerns motions for judgment on the pleadings. Defendant next argues plaintiff’s motion violated section 437c, subdivision (b)(1) because it contained no “undisputed material facts.” To the contrary, plaintiff supported the motion with a separate statement of undisputed material facts. Defendant also claims the motion was illegal because he was “denied answers to interrogatories” in violation of section 437c, subdivision (2). Again, defendant fails to support this ambiguous and conclusory argument with any citations to the record. We accordingly do not consider it.

Defendant next contends the motion violated section 437c, subdivision (c) “because the evidence used as a material fact is contradicted and presented in the original Complaint and the Cross Complaint.” Defendant’s argument makes no sense as he never offered any objections to plaintiff’s evidence. Defendant further argues the motion violated section 437c, subdivision (e) “[b]ecause the declaration presented as a material fact is coming from the sole witness to that fact.” Again, defendant never objected to plaintiff’s evidence or declarations. In any event, plaintiff’s declarations were supported with documentary evidence. Finally, defendant claims the motion did not dispose of any cause of action or provide an affirmative defense in violation of sections 437c, subdivisions (f)(1) and (o). Not true. For the reasons discussed ante, plaintiff’s motion disposed of the entire action involving the parties. In short, none of plaintiff’s conclusory assertions regarding the Code of Civil Procedure warrant reversal of the judgment.

DISPOSITION

The judgment is affirmed. Plaintiff shall recover its costs incurred on appeal.

MARKS, J.*

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

*Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] Because plaintiff’s motion for summary judgment can be resolved based on the material undisputed facts pertaining to title issues, we need not summarize the other facts and arguments plaintiff raised below.

[2] All further statutory references are to the Code of Civil Procedure, unless otherwise noted.