Markowitz v. Fidelity National Title

Filed 5/31/06 Markowitz v. Fidelity National Title CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Aurelio Munoz, Judge. Affirmed.

Gary G. Kuist for Plaintiff and Appellant.

Hershorin & Henry and Lori C. Hershorin for Defendant and Respondent.

introduction

Plaintiff Donald J. Markowitz (Donald) appeals from a judgment entered following the trial court's granting of a motion for nonsuit in favor of Fidelity National Title Company (Fidelity). Donald brought the present action against Fidelity and other defendants, who are not parties to this appeal, based in part on the defendants' failure to record a request for reconveyance of a deed of trust on Donald's real property that secured a promissory note held by two of the defendants. Donald alleged that Fidelity, which acted as a sub-escrow in the transaction at issue, breached statutory and fiduciary duties it owed to him. The trial court granted Fidelity's motion for nonsuit following Donald's opening statement. Because we find that Donald did not, and could not under the factual circumstances alleged by him, establish that Fidelity owed any duty to him, we conclude that nonsuit was properly granted in favor of Fidelity. We therefore affirm the judgment.

factual and procedural background

The present lawsuit arises out of non-judicial foreclosure proceedings initiated by Mordechai Kachlon (Mordechai), his wife Monica Kachlon (Monica),[1] and the trustee, Best Alliance Foreclosure and Lien Services, against a residence jointly owned by Donald and his wife, Debra W. Markowitz (Debra).[2]

Donald's Opening Statement

We set forth the facts as framed by Donald's pleadings and as stated in his opening statement, incorporating the contents of exhibits on which he relied.

In September 1998, the Markowitzes purchased a residence on Leghorn Avenue from the Kachlons. As part of the purchase price, the Kachlons received a promissory note for $53,000, secured by a second deed of trust (â€