MARKOWITZ v. FIDELITY NATIONAL TITLE COMPANY
Filed 5/31/06; Supreme Court publication order 8/30/06
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
| DONALD J. MARKOWITZ, Plaintiff and Appellant, v. FIDELITY NATIONAL TITLE COMPANY, Defendant and Respondent. | B179923 (Los Angeles County Super. Ct. No. BC301492) |
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€
