Filed 9/13/18 Valbuena v. Law Offices of Les Zieve CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO
| GARY VALBUENA, as Trustee, etc.,
Plaintiff and Appellant,
v.
LAW OFFICES OF LES ZIEVE et al.,
Defendants and Respondents.
|
E067927
(Super.Ct.No. RIC1604457)
OPINION
|
APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed.
Douglas Honig for Plaintiff and Appellant.
Zieve, Brodnax & Steele, John C. Steele and Namson N. Pham for Defendant and Respondent Law Offices of Les Zieve.
McGlinchey Stafford, Brian A. Paino and Dhruv M. Sharma for Defendants and Respondents Homeward Residential, Inc. and Vicki Pospisil.
Dykema Gossett, Ashley R. Fickel and Robin Jung for Defendant and Respondent JPMorgan Chase Bank, N.A.
Gary Valbuena (Valbuena) as Trustee of the Jimmie and Angela Valbuena Private Revocable Living Trust (the Trust) sued (1) Ocwen Loan servicing, LLC (Ocwen)[1]; (2) the Law Offices of Les Zieve, a professional corporation (Zieve); (3) Homeward Residential, Inc. (Homeward); (4) Karen Smith (Smith); (5) Vicki Pospisil (Pospisil); and (6) JPMorgan Chase Bank, N.A. (Chase). Valbuena brought causes of action for (A) violating the Homeowner Bill of Rights; (B) aiding and abetting; (C) slander of title; (D) declaratory relief; and (E) injunctive relief. The trial court sustained defendants’ demurrers without leave to amend. Valbuena contends the trial court erred by sustaining the demurrers. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
A. FIRST AMENDED COMPLAINT
The facts in this subsection are taken from Valbuena’s first amended complaint (FAC). The Trust was created in 1997 by Angela Valbuena (Angela) and Jimmie Valbuena (Jimmie). In January 2002, Angela and Jimmie purchased a home in Banning (the property). In making the home purchase, Angela and Jimmie used a loan, secured by a deed of trust on the property. The lender was GreenPoint Mortgage Funding, Inc.
In January 2005, Jimmie died. In 2006, Angela refinanced the property with Washington Mutual Bank. In April 2014, the property was placed in the Trust. In August 2014, Angela died. Valbuena was the successor trustee of the Trust. The property remained in the Trust, and Valbuena resided in the house on the property.
On June 22, 2012, a void substitution of trustee, for the deed of trust, was recorded by Chase. The document was void because Chase, which did not have a beneficial interest in the deed of trust, substituted Northwest Trustee Services, Inc., as trustee. Chase did not have a beneficial interest in the deed of trust because Chase did not purchase the deed of trust when it bought Washington Mutual’s assets. The deed of trust was not part of Chase’s purchase of Washington Mutual’s assets because the deed of trust was not listed in or attached to Chase’s purchase agreement for Washington Mutual’s assets.
On November 8, 2012, a void assignment of the deed of trust was recorded. The assignment was void because (1) it reflected Homeward was Chase’s attorney-in-fact when no power of attorney document was recorded in Riverside County appointing Homeward as Chase’s attorney-in-fact; and (2) Gerard Heckermann, a known robo-signer, signed the document for Homeward.
On November 21, 2012, another void assignment of deed of trust was recorded. This second assignment was void because it reflected Chase assigned its beneficial interest to Homeward, but Chase was not the beneficiary of the deed of trust. On November 19, 2015, a void assignment of deed of trust was recorded. Homeward assigned its purported interest to Ocwen. The November 19 assignment was void because it was signed by a known robo-signer, Smith, and notarized by a known robo-notary, Pospisil, who were employees of Ocwen. On December 9, Ocwen, without authority, substituted Zieve as trustee.
On December 9, a void notice of default and election to sell under deed of trust was recorded. The notice was void because it was issued under the authority of a void assignment and because Zieve was not the true trustee of the deed of trust. A void notice of trustee’s sale was recorded on March 16, 2016. The notice of sale was void because it was based on the foregoing void documents.
The first cause of action was against all defendants and asserted a violation of the California Homeowner Bill of Rights. (Civ. Code, § 2924.17.)[2] Valbuena alleged defendants violated the law by recording void documents. The second cause of action was for aiding and abetting and it was against all defendants. Valbuena alleged all defendants assisted one another in recording void documents.
The third cause of action asserted all defendants slandered title. The Trust was the legal owner of the property. Defendants wrongly recorded documents asserting they have or had an interest in the property. The fourth cause of action sought declaratory relief against all defendants. Valbuena sought a declaration concerning the ownership of the property and the validity of any liens against the property. The fifth cause of action was a request for injunctive relief against all defendants. Valbuena sought an injunction restraining the foreclosure sale.
In the prayer for relief, Valbuena sought attorney’s fees and costs; treble damages or at least $50,000; an injunction restraining the foreclosure sale; declaratory relief; all damages allowed by law; and any other proper relief.
B. DEMURRERS
1. ZIEVE
Zieve filed a demurrer to the FAC. First, Zieve alleged the actions of a foreclosure trustee in a foreclosure sale, including the mailing of notices, are privileged and non-actionable. (§ 2924, subd. (d).) Zieve asserted the only conduct Valbuena alleged against Zieve was Zieve’s acts related to the foreclosure sale, and thus the acts were privileged. Therefore, Zieve concluded, Valbuena’s causes of action against Zieve were barred.
Second, Zieve alleged Valbuena’s original complaint included causes of action for (1) violating the Homeowner Bill of Rights under section 2924, subdivision (a)(6); (2) wrongful foreclosure; (3) quiet title; (4) declaratory relief; and (5) injunctive relief. Ocwen demurred to the original complaint, and the demurrer was sustained with leave to amend. Zieve asserted Valbuena could not amend his complaint to allege three entirely new causes of action; and therefore, the three causes of action for (A) violating the Homeowner Bill of Rights under section 2924.17; (B) aiding and abetting; and (C) slander of title were improper.
Third, Zieve contended Valbuena’s FAC failed to include a credible tender of the amount owed, and therefore, there was no reason to stop the foreclosure proceedings. Fourth, Zieve asserted Valbuena lacked standing to sue for an improper assignment because Valbuena did not contest the validity of the debt and Valbuena was not a party to the assignment.
Fifth, as to the allegation that there was not a recorded document reflecting Homeward possessed Chase’s power of attorney, Zieve contended a power of attorney document does not need to be recorded because it was a private agreement. Sixth, as to the assignment from Washington Mutual to Chase, Zieve alleged Chase acquired all of Washington Mutual’s assets and therefore was not required to record an assignment of the deed of trust. Seventh, Zieve contended Valbuena lacked standing to seek a preforeclosure determination of defendants’ right to foreclose. Zieve asserted the propriety of a foreclosure can only be determined postforeclosure.
Eighth, Zieve alleged that section 2924.17 requires a mortgage servicer to ensure it has credible evidence of the homeowner being in default prior to initiating foreclosure proceedings. Zieve asserted that Valbuena failed to allege there was not competent evidence of the Trust being in default. As a result, Zieve concluded that Valbuena did not allege a violation of section 2924.17.
Ninth, Zieve asserted that the aiding and abetting cause of action failed because Valbuena did not allege an intentional tort. Tenth, Zieve contended the slander of title cause of action failed because Valbuena did not allege a defamatory cloud on the property’s title. Zieve explained that the recorded documents reflected the deed of trust was assigned; the documents did not disparage the Trust’s ownership of the property. Zieve also asserted the notice of default did not rise to the level of a defamatory statement.
Eleventh, Zieve contended Valbuena’s cause of action for declaratory relief failed because Valbuena failed to allege an actual controversy due to Valbuena’s legal theories being faulty. Twelfth, Zieve contended Valbuena’s cause of action for injunctive relief failed because injunctive relief is a remedy, not a cause of action.
Valbuena did not file a timely opposition to the demurrer. The trial court sustained Zieve’s demurrer without leave to amend.
2. HOMEWARD AND POSPISIL
Homeward and Pospisil (collectively H&P) filed a demurrer. First, H&P asserted they were not foreclosing on the property. H&P asserted Ocwen recorded the notice of default and Zieve recorded the Notice of Sale. H&P asserted that because a violation of section 2924.17 concerned foreclosure activity, and H&P were not foreclosing, Valbuena failed to state a cause of action against H&P.
Second, H&P asserted Valbuena lacked standing to sue under section 2924.17 because Valbuena was not the borrower; rather, the trustor of the Trust, i.e., Angela, was the borrower. H&P asserted section 2924.17 only granted standing to borrowers. Third, H&P contended Valbuena lacked standing to sue preforeclosure. Fourth, H&P asserted Valbuena lacked standing to sue for invalid assignments because Valbuena was not a party to the assignments.
Fifth, H&P contended that Valbuena failed to allege that the current beneficiary lacked the right to foreclose. H&P asserted that if the beneficiary of the deed of trust received the note, then it could foreclose, even if a formal assignment were lacking. H&P explained that an assignment does not constitute a loan transfer; rather, an assignment is the notice that a transfer occurred. H&P reasoned that the lack of a proper assignment would not prevent a foreclosure. H&P asserted that Valbuena would need to allege the current beneficiary is not the beneficiary in order to properly plead a cause of action. H&P argued that Valbuena failed to make such an allegation.
Sixth, H&P asserted the aiding and abetting cause of action failed because an intentional tort was not alleged against H&P. Seventh, H&P contended Valbuena failed to allege slander of title because Valbuena did not dispute that a debt was owed and did not allege that the foreclosing beneficiary was not the beneficiary. H&P explained that because Valbuena did not challenge the debt or default, he cannot win on slander of title. Seventh, H&P asserted that declaratory relief and injunctive relief are remedies, not causes of action. Chase joined in H&P’s demurrer.
Valbuena filed an untimely opposition. Valbuena did not appear at the hearing. The trial court sustained the demurrer without leave to amend. For the first cause of action, the trial court found: (A) Valbuena lacked standing because he was not the borrower, (B) Valbuena lacked standing to pursue preforeclosure litigation; (C) there was no need to record an assignment from Washington Mutual to Chase; and (D) Valbuena failed to allege that the information in the various documents was false or that defendants did not review the information.
The trial court found the aiding and abetting cause of action was based upon wrongful foreclosure, and that allegation failed because the property had not been foreclosed upon. As to the slander of title cause of action, the trial court found that there was no allegation that the information in the recorded documents was false, and therefore, the cause of action failed. The trial court found the declaratory relief cause of action failed because it was based upon the conduct alleged in the first cause of action. The trial court found the injunctive relief cause of action failed because an injunction is a remedy, not a cause of action. On February 1, 2017, the trial court dismissed the entire action.[3]
DISCUSSION
A. STANDARD OF REVIEW
“ ‘We review de novo the trial court’s order sustaining a demurrer.’ [Citation.] In doing so, this court’s only task is to determine whether the complaint states a cause of action. [Citation.] We accept as true all well-pleaded allegations in the operative complaint, and we will reverse the trial court’s order of dismissal if the factual allegations state a cause of action on any available legal theory.” (Brown v. Deutsche Bank National Trust Company (2016) 247 Cal.App.4th 275, 279.)
B. SECTION 2924.17
1. CONTENTION
Valbuena contends the trial court erred by sustaining the demurrers to his first cause of action, which alleged a violation of section 2924.17.
2. LAW
Section 2924.17, subdivision (a), requires that any “notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure . . . be accurate and complete . . . .” Section 2924.12, subdivision (a)(1), provides, “If a trustee’s deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section . . . 2924.17.” In sum, in order to state a cause of action, Valbuena needed to allege the recorded documents related to the foreclosure are materially inaccurate or incomplete. (§ 2924.17, subd. (a).)
3. JUNE 22, 2012
Valbuena contends the June 22, 2012 substitution of trustee wherein Chase substituted Northwest Trustee Services, Inc. as trustee of the deed of trust was void because there was not a document transferring Washington Mutual’s beneficial interest to Chase such that Chase had the authority to appoint Northwest.
Washington Mutual closed, and the Federal Deposit Insurance Corporation (FDIC) served as its receiver. Chase purchased Washington Mutual’s assets.[4] Case law provides, “It has been established since 1908 that this statutory requirement that an assignment of the beneficial interest in a debt secured by real property must be recorded in order for the assignee to exercise the power of sale applies only to a mortgage and not to a deed of trust.” (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118, 122; see also Haynes v. EMC Mortgage Corp. (2012) 205 Cal.App.4th 329, 336.) The assignment of the beneficial interest in the deed of trust from Washington Mutual to Chase did not need to be recorded. Therefore, Valbuena’s allegation of a void assignment fails because there was no need to record an assignment transferring Washington Mutual’s interest to Chase.
If we accept as true the allegation that the PAA did not list the deed of trust at issue in this case, that alone does not support a finding that Chase failed to acquire a beneficial interest in the deed of trust. More facts are needed to demonstrate the relevance of the failure to specifically list the deed of trust. In sum, Valbuena has not adequately alleged that Chase failed to acquire a beneficial interest, and, in turn, has failed to adequately allege that the June 22, 2012, assignment is void.
4. NOVEMBER 8, 2012
Valbuena contends the November 8, 2012, assignment of deed of trust from Chase to Homeward is void because it was signed by Homeward as attorney-in-fact for Chase when there was no recorded document granting Homeward Chase’s power-of-attorney. If we accept as true Valbuena’s allegation that no document was recorded reflecting Homeward was Chase’s attorney-in-fact, it is unclear why that is relevant. Valbuena needs to provide further allegations. For example, “It is necessary for attorney-in-fact appointments to be recorded in Riverside County.” The fact, alone, that an attorney-in-fact appointment was not filed does not support a finding that the assignment from Chase to Homeward was void. Therefore, Valbuena’s allegation fails.
Valbuena contends the November 8, 2012 assignment of deed of trust from Chase to Homeward is void because it was signed by Gerard Heckermann who “is a known ‘Robo Signer.’ ” Valbuena supports this allegation with a citation to Exhibit 10 to the FAC. Exhibit 10 consists of approximately eight mortgage assignments. One of the assignments was signed by Heckermann. The signing of one additional document does not support the allegation that Heckermann is a robo-signer. Moreover, it is unclear how the signature of a robo-signer would render inaccurate the information in the assignment or void the assignment. Accordingly, Valbuena has failed to sufficiently allege that the November 8, 2012 assignment is inaccurate or void.
5. NOVEMBER 21, 2012
Valbuena contends the November 21, 2012, second assignment of deed of trust from Chase to Homeward is void because Chase was not the beneficiary and therefore lacked authority to transfer any interest to Homeward. As explained ante, Valbuena has not sufficiently alleged that Chase was not a beneficiary.
Next, Valbuena contends the November 21, 2012, assignment is void because Chase had already transferred its interest to Homeward. It is unclear why this second assignment between Chase and Homeward was filed. However, we can speculate that it may be because Heckermann, on behalf of Homeward, signed the first assignment as Chase’s attorney-in-fact, when the transfer was being made to Homeward. One might find such an arrangement to be a conflict, i.e., Homeward signing on behalf of Chase for a transfer to Homeward, and thus desire the filing of a second assignment with a different signatory on behalf of Chase. The second assignment was signed by one of Chase’s vice presidents.
Nevertheless, the issue is whether neither assignment from Chase to Homeward was valid, such that Homeward could be found to have never had a beneficial interest in the deed of trust. Valbuena’s argument that the second assignment to Homeward was invalid because the first assignment already transferred Chase’s interest to Homeward reflects that Homeward was properly granted a beneficial interest. Accordingly, if Valbuena’s allegations are accepted as true, the second assignment from Chase to Homeward may have been surplusage, but Homeward had a valid interest. In particular, Valbuena alleged in the FAC, “Homeward was the true beneficiary at the time [the second assignment to Homeward] was signed.” In sum, Valbuena has not sufficiently pled that neither assignment from Chase to Homeward was valid.
6. NOVEMBER 19, 2015
Valbuena contends the November 19, 2015, assignment of deed of trust from Homeward to Ocwen is void because it is signed by Smith, who is a robo-signer, and notarized by Pospisil, a robo-notary. Valbuena refers to Exhibit 10, which consists of approximately eight mortgage assignments. Many of the assignments are signed by Smith and Pospisil, who Valbuena alleges are employees of Ocwen. Assuming Valbuena’s allegations about Smith and Pospisil are correct, Valbuena fails to allege how the involvement of a robo-signer and robo-notary causes the information in the assignment to be inaccurate or causes the assignment to be void. Accordingly, Valbuena has not set forth sufficient facts to support his allegation.
In Valbuena’s FAC he alleges that in April 2014, an article was written about Ocwen entering into a settlement agreement due to robo-signing issues. In the instant case, the assignment from Homeward to Ocwen was recorded in 2015. It is unclear how issues that were settled in 2014 are relevant to Valbuena’s allegations. Valbuena alleges that Ocwen “continues to violate [the settlement] agreement,” but offers only that conclusion. Valbuena does not plead facts supporting his conclusion.
In Valbuena’s FAC, he asserted that, in trying to obtain information from Ocwen he was sent a letter, in March 2016, reflecting that Ocwen was the servicer of his loan on behalf of Freddie Mac. In other words, Freddie Mac was the correct beneficiary, not Ocwen. Valbuena’s allegations fail to support a finding that the assignment to Ocwen is void. Assuming Valbuena is correct that Ocwen was servicing the loan on behalf of Freddie Mac, then Ocwen was listed as the beneficiary in the assignment because Ocwen was working in an agency capacity for Freddie Mac. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1157, fn. 9.) Because Valbuena has not sufficiently pled facts reflecting the assignment was inaccurate, his claim that the assignment is void fails.
7. DECEMBER 9, 2015
Valbuena contends the December 9, 2015, (1) notice of default and election to sell, and (2) the substitution of trustee were void because they were issued under the authority of the void assignment to Ocwen. As set forth ante, Valbuena has not pled sufficient facts to support the allegation that the assignment to Ocwen was invalid. Consequently, Valbuena’s allegations concerning the notice of default and substitution of trustee are also not supported by sufficient factual allegations.
8. MARCH 16, 2016
Valbuena contends the March 16, 2016, notice of trustee’s sale is void because it was issued under the authority of the prior void documents. As explained ante, Valbuena has not pled sufficient facts supporting his allegations that the prior documents were void. As a result, Valbuena’s dependent allegation concerning the notice of trustee’s sale is also not supported by sufficient factual allegations.
9. CONCLUSION
In sum, Valbuena needed to allege that there were material inaccuracies in the foreclosure documents. Valbuena has failed to plead sufficient facts to support his allegations that the foreclosure documents and prior documents are inaccurate. (§ 2924.17, subd. (a).) As a result, the trial court did not err by sustaining the demurrers to the first cause of action.
B. AIDING AND ABETTING
Valbuena contends the trial court erred by sustaining the demurrers to his aiding and abetting cause of action.
“ ‘Liability may . . . be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person. [Citations.]’ [Citation.] . . . To plead aiding and abetting by a defendant, the plaintiff must allege that the defendant had actual knowledge of the ‘specific primary wrong’ being committed, and gave substantial assistance to the wrongful conduct.” (Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, 188.)
In the FAC, Valbuena alleges Ocwen controlled the other defendants “to wrongfully initiate and process a foreclosure on the Subject Property.” “ ‘The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They are: “(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” ’ ” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184-1185.)
Valbuena has not alleged that he tendered the amount due on the debt or was excused from tendering the amount due. Because Valbuena is missing this allegation, he had not pled the tort of wrongful foreclosure. Because Valbuena has not sufficiently alleged the underlying tort, we conclude his allegations will not support a cause of action for aiding and abetting wrongful foreclosure. Therefore, the trial court did not err by sustaining the demurrer. (See Nasrawi v. Buck Consultants (2014) 231 Cal.App.4th 328, 343, fn. 7 (Nasrawi) [“there can be no aiding and abetting liability absent the commission of an underlying tort”].)
Valbuena contends the underlying tort for his aiding and abetting cause of action is not wrongful foreclosure, instead, it is the violation of section 2924.17. In the aiding and abetting cause of action, Valbuena alleges “on information and belief that none of the Defendants in this action were beneficiaries or representatives of the beneficiary.” A “[p]laintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true.” (Pridnoff v. Balokovich (1951) 36 Cal.2d 788, 792.)
As explained ante, Valbuena has failed to allege sufficient facts, which, if true, would support a finding that the foreclosure documents are materially inaccurate. (§ 2924.17, subd. (a).) Valbuena has not explained what information leads him to believe his allegations are true. For example, Valbuena includes information about a 2014 article concerning a settlement with Ocwen due to robo-signing. Valbuena then concludes that Ocwen is violating the settlement agreement, but fails to explain what information leads him to believe that violations are ongoing. Because Valbuena has not sufficiently alleged an underlying violation of section 2924.17, he has failed to allege a cause of action for aiding and abetting, a violation of section 2924.17. (See Nasrawi, supra, 231 Cal.App.4th at p. 343, fn. 7 [“there can be no aiding and abetting liability absent the commission of an underlying tort”].)
Valbuena also asserted that defendants participated in “Foreclosure Fraud.” The elements of fraud are (1) misrepresentation, (2) knowledge of the falsity, (3) intent to defraud, i.e., intent to induce reliance, (4) justifiable reliance, and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) “ ‘In California, fraud must be pled specifically; general and conclusory allegations do not suffice.’ ” (Small v. Fritz (2003) 30 Cal.4th 167, 184.)
Valbuena has not alleged how he justifiably relied upon the alleged misrepresentations. In the FAC, Valbuena alleged that he contacted Ocwen to obtain further information concerning the identity of the beneficiary of the deed of trust. Assuming this allegation is true, it reflects Valbuena did not rely upon the assignment to Ocwen. Accordingly, because Valbuena did not rely upon the recorded documents, he has not sufficiently pled fraud. Because Valbuena has not sufficiently pled the underlying tort of fraud, he had not sufficiently alleged the act of aiding and abetting fraud. (See Nasrawi, supra, 231 Cal.App.4th at p. 343, fn. 7 [“there can be no aiding and abetting liability absent the commission of an underlying tort”].)
C. SLANDER OF TITLE
Valbuena contends the trial court erred by sustaining the demurrers to his slander of title cause of action.
“The elements of a cause of action for slander of title are (1) a publication, which is (2) without privilege or justification and thus with express or implied malice, (3) false, either knowingly so or made without regard to its truthfulness and (4) causes pecuniary loss.” (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 527, fn. 7.)
As set forth ante, Valbuena has failed to set forth sufficient factual allegations to support his assertion that the various recorded documents are inaccurate. Therefore, there is also a lack of sufficient factual allegations reflecting the documents are false. Further, Valbuena has not alleged what pecuniary loss he has suffered, as Valbuena does not dispute that someone has the right to foreclose on the property. In sum, Valbuena has failed to allege sufficient facts supporting a slander of title cause of action.
D. DECLARATORY AND INJUNCTIVE RELIEF
Valbuena contends the trial court erred by sustaining the demurrers to his declaratory and injunctive relief causes of action. “[I]njunctive and declaratory relief are equitable remedies, not causes of action.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 173.) Because declaratory relief and injunctive relief are not causes of action, the trial court did not err by sustaining the demurrers.
Valbuena contends his declaratory relief cause of action is based upon Code of Civil Procedure section 1060, which permits a party to bring a complaint seeking “a declaration of his or her rights or duties with respect to another . . . in cases of actual controversy relating to the legal rights and duties of the respective parties.” As explained ante, Valbuena has not alleged sufficient facts to state a cause of action. As a result, Valbuena has not set forth an actual controversy. Due to the lack of controversy, there is no need for a declaration. In sum, the trial court did not err.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
McKINSTER
Acting P. J.
FIELDS
J.
[1] Ocwen was dismissed as a party to this appeal.
[2] All subsequent statutory references will be to the Civil Code, unless otherwise indicated.
[3] Valbuena requests this court take judicial notice of (1) the trustee’s deed upon sale, recorded on October 26, 2017, reflecting the foreclosing beneficiary of the deed of trust was the Federal Home Loan Mortgage Corporation (Freddie Mac), and the foreclosure resulted in the property being conveyed to Freddie Mac; and (2) a corporate assignment of deed of trust, recorded on October 26, 2017, wherein Ocwen transferred all of its interest in the deed of trust to Freddie Mac. We deny the request because the documents were not before the trial court when it ruled on the demurrers, in that the documents were generated months after the trial court dismissed the matter. (Shuts v. Covenant Holdco LLC (2012) 208 Cal.App.4th 609, 622, fn. 7.)
[4] This information was derived from the FAC and Zieve’s request for judicial notice. It appears that the trial court did not rule on Zieve’s request. The PAA from which these facts were derived has been judicially noticed by other courts in other cases. (Brown v. Deutsche Bank National Trust Company, supra, 247 Cal.App.4th at p. 282, fn. 4.) Nevertheless, because the trial court did not grant the request for judicial notice, we do not rely on the PAA in rendering our decision. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) We use these facts, in conjunction with the allegations in the FAC, to provide context and clarity concerning the relationship between Washington Mutual and Chase.
