Case No.

A139655 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE LEIGHTON LEE PERRY, Plaintiffs-Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, et al., Defendants-Respondents.

Appeal from Judgment of the California Superior Court County of Contra Costa Honorable Laurel S. Brady, Case No. SCV0030248

BRIEF OF RESPONDENT

McCARTHY & HOLTHUS, LLP Melissa Robbins Coutts, Esq. (SBN: 246723) Charles E. Bell, Esq. (SBN: 256848) 1770 Fourth Avenue San Diego, CA 92101 Telephone: (619) 685-4800 Facsimile: (619) 685-4811 Email: cbell@mccarthyholthus.com Attorneys for Defendant and Respondent, Quality Loan Service Corporation.

CERTIFICATE OF INTERESTED PARTIES

There are no interested entities or parties to list in this certificate per California Rules of Court, Rule 8.208(e). No entity has an ownership interest of 10% or more of Respondent.

Dated: February 6,2014

Respectfully Submitted, McCarthy & Holthus, LLP

Charles E. Bell, Esq. Attorneys for Respo (lent, Quality Loan Service Corporation

TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................. ii INTRODUCTION ......................................................................................... 1 STATEMENT OF THE CASE ..................................................................... 2 STATEMENT OF ISSUES PRESENTED ................................................... 2 STATEMENT OF FACTS ............................................................................ 2 ARGUMENT ................................................................................................. 4 I. Standard of Review .................................................................... 4 II. Perrys Opening Brief is based Upon Numerous Factual

Assertions without Citation to the Record. ................................................. 5 III. The Trial Court Properly Granted Qualitys Motion for

Summary Judgment Because the First Amended Complaint Did Not State Any Cause of Action Against Quality. ....................................................... 6 A. The Trial Court Properly Granted Qualitys Request for

Judicial Notice in Support of its Motion for Summary Judgment............... 6 B. The Trial Court Properly Ruled that the Notice of Default is

in Compliance with California Statute ....................................................... 8 C. The Trial Court Properly Granted Qualitys Motion for

Summary Judgment to Perrys First Cause of Action for Declaratory Relief. 1. 9 Perry Has Failed To Identify Any Actions Taken By Quality

That Are Outside The Scope Of Its Statutorily Protected Duties. ............ 10 2. The Tender Rule Bars Perrys arguments as to Wrongful

Foreclosure within the Declaratory Relief cause of action. ..................... 11

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IV. The Trial Courts Decision Not to Provide A Statement of Decision is Not Reversible Error After Ruling on Defendants Summary Judgment Motions. .................................................................................... 15

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TABLE OF AUTHORITIES Cases American Drug Stores, Inc. v. Stroh, (1992) 10 Cal.App.4th 1446, 1453 ..... 6 Baucum v. Le Baron (1955) 136 Cal.App.2d 593, 595 ................................ 17 Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 ......... 8 Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-267 . 8, 9 Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271 ....... 10 FPCI Re-Hab 01 v. E&G Invs. (1989) 207 Cal.App.3d 1018, 1021-1022 .. 12 Gafcon, Inc. v. Ponsor & Associates, (2002) 98 Cal.App.4th 1388, 1402 ..... 5 Homestead Sav. v. Darmiento, (1991) 230 Cal. App. 3d 424, 432-33......... 15 Kachlon v. Markowitz, (2008) 168 Cal. App. 4th 316, 336 ................... 14, 16 Karlsen v. Am. Sav. & Loan Assn. (1971) 15 Cal.App.3d 112 ................... 13 Kelly v. Methodist Hosp. of So. Cal., (1996) 48 Cal.App.4th 1431, 1442 ..... 7 Lenane v. Continental Maritime of San Diego, Inc., (1998) 61 Cal.App.4th 1073, 1079 ................................................................................................... 5 Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 .............................. 12 Mills v. U.S. Bank, (2008) 166 Cal.app.4th 871, 895 ...................................... 5 Mix v. Sodd (1981) 126 Cal.App.3d 386, 390 .............................................. 17 Moeller v. Lien, 25 (1994) Cal. App. 4th 822, 834 ...................................... 15 Neighbors v. Buzz Oates Enters., (1990) 217 Cal.App.3d 325, 335 fn. 8...... 6 Nguyen v. Calhoun, (2003) 105 Cal.App.4th 428, 439 ................................ 13 Rubin v. Green, (1993) 4 Cal. 4th 1187, 1193-94 .................................. 14, 16 Shimpones v. Stickney (1934) 219 Cal. 637, 649 ......................................... 16 Southcott v. Pioneer Title Co. (1962) 203 Cal. App. 2d 673, 676 ............... 14 Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526 ... 13
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Tisher v. Cal. Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361 ............... 6 Whittingon v. McKinney (1991) 234 Cal.App.3d 123 .................................. 15

Statutes California Civil Code 2924(b) ................................................................... 10 California Civil Code 2924(d) ................................................................... 13 California Civil Code 2924 ....................................................................... 13 California Civil Code 2924(c) ................................................................... 13 California Civil Code 2920 through 2944.5 ............................................ 13 California Civil Code 2305 .......................................................................... 9 California Civil Code 2315 .......................................................................... 9 California Civil Code 2305 ......................................................................... 9 California Civil Code of Procedure 632 ..................................................... 16 California Civil Code of Procedure 634 ..................................................... 16 California Civil Code 1493 ....................................................................... 12 California Civil Code 1494 ....................................................................... 12 California Civil Code 1495 ....................................................................... 12 California Civil Code 2924(a)(1) .......................................................... 9, 14 California Civil Code 2932.5 ...................................................................... 3 California Civil Code 2924(l)...................................................................... 4 California Civil Code 2934a........................................................................ 3

INTRODUCTION Appellant, Leighton Lee Perry (Perry), has appealed the trial courts ruling granting the Motions for Summary Judgment filed by Defendants Quality Loan Service Corporation (Quality) and JPMorgan Chase Bank, N.A. (JPMorgan) and Federal National Mortgage Association (FNMA). Perrys First Amended Complaint alleged three causes of action against Quality -- the trustee of a pending nonjudicial foreclosure of the subject property for declaratory relief, slander of title, and quiet title. But Appellants Opening Brief does not address any of these claims or the factual allegations in his complaint, instead arguing only that the trial court erred in failing to provide a statement of decision and the trial court did not have jurisdiction to rule in defendants favor. Besides his conclusory and unsupported statements, he does not identify any facts that would have changed the outcome of the Motions for Summary Judgment. Moreover, he does not point to any facts in the First Amended Complaint or his Oppositions to the Motion to Summary Judgments that would state a cause of action against the Defendants. As to Quality specifically, the First Amended Complaint failed to state any cause of action. Quality, as trustee, is inured with specific statutory protections that prohibit the imposition of liability for actions it took as trustee. Notably, nowhere in the factual allegations of Perrys First Amended Complaint, or in the record on appeal, or in Perrys Opening Brief, does he identify any actions taken by Quality that are outside of Qualitys statutorily-protected duties as trustee. Moreover, each of the three claims against Quality has independent deficiencies that necessitated the trial court granting Qualitys Motion for Summary Judgment. Thus, the trial
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court properly granted Qualitys Motion for Summary Judgment and this Court should affirm. STATEMENT OF THE CASE This appeal stems from the trial courts ruling granting the Motion for Summary Judgments filed by Defendants Quality and JPMorgan and FNMA to Appellants First Amended Complaint. STATEMENT OF ISSUES PRESENTED 1. Whether Perrys First Amended Complaint failed to state a

claim upon which relief could be granted against Quality. 2. Whether the trial court properly exercised its discretion in

granting the Motion for Summary Judgment filed by Defendants Quality to the First Amended Complaint. STATEMENT OF FACTS Perry filed his initial complaint in Contra Costa Superior Court on October 14, 2010, asserting various claims related to the pending nonjudicial foreclosure of the property located at 6724 Waverly Road, Martinez, CA 94553 (Subject Property). (1 AA 48; 53:7.) In 1988, the Subject Property was encumbered by a Deed of Trust securing a $130,000.00 loan that Perry borrowed from All Valley Financial Corporation, a California Corporation. (1 AA 54:15-20; 209-214.) An Assignment of Deed of Trust was recorded on July 29, 1991, under which All Valley Financial Corporation, a California Corporation, assigned all beneficial interest under the Deed of Trust to FNMA. (1 AA 122; 217.)
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On October 23, 2008, FNMA executed a Limited Power of Attorney, making McCarthy & Holthus, LLP its true and lawful Attorney-in-Fact, and in its name, place and stead and for its use and benefit, to do all things, and execute all documents, necessary and appropriate to conduct, or vacate, foreclosure proceedings in the State of California. (1 AA 295.) An Assignment of Deed of Trust was executed by FNMA, through its Attorney-in-Fact McCarthy & Holthus, LLP, on August 25, 2010 and recorded on August 30, 2010, under which all beneficial interest under the Deed of Trust was assigned to JPMorgan. (1 AA 89; 263.) On September 16, 2010, JPMorgan executed a Substitution of Trustee, whereby Quality was substituted as trustee under the Deed of Trust in place of the original trustee. (1 AA 90-91; 267-268.) Perry defaulted on his loan and a nonjudicial foreclosure was initiated by the recording of a Notice of Default in the Contra Costa County Recorders Office. (1 AA 259-260.) Due to Perrys continued default, Quality recorded a Notice of Trustees Sale on September 28, 2010. (1 AA 271-272.) On July 29, 2011, Perry filed a First Amended Complaint asserting six causes of action for: (1) Declaratory Relief; (2) Slander of Title; (3) Quiet Title; and (4) Violation of California Civil Code 2943. (1 AA 4980.) Perry alleged only three causes of action against Quality: the first cause of action for Declaratory Relief; the second cause of action for Slander of Title; and third cause of action for Quiet Title. (Id.) Initially, Quality filed a Declaration of Non-Monetary Status pursuant to California Civil Code 2924l, stating that it agreed to be bound to any non-monetary judgment of the court. (1 AA 46.) When Perry objected to the Declaration
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of Non-Monetary status, Quality filed a demurrer to the First Amended Complaint. (1 AA 45.) On March 1, 2012, Qualitys demurrer the First

Amended Complaint was overruled and Quality was directed to file an Answer. (1 AA 43.) Perry demurred to Qualitys Answer, but the demurrer was overruled. (1 AA 40.) On January 29, 2013, Quality filed its Motion for Summary Judgment and the motion was set to be heard on May 2, 2013. (1 AA 39.) On February 6, 2013, Perry filed a Motion to Compel Production of Documents and Further Responses to Admissions and Interrogatories against Quality. (1 AA 38.) On April 26, 2013, the trial court ruled on the Perrys Motion to Compel, finding Qualitys favor. (1 AA 36.) On May 23, 2013, Qualitys Motion for Summary Judgment came before the trial court. (1 AA 24-32.) After review of the pleadings and oral argument the trial court sustained its tentative ruling and granted Qualitys Motion for Summary Judgment. (1 AA 24-32.) On July 9, 2013, the trial court executed Qualitys proposed order granting judgment in Qualitys favor. (1 AA 24-32.) Perry has appealed the trial courts order. (1 AA 1-6.) ARGUMENT I. Standard of Review The standard of review of a decision to grant or deny a motion for summary judgment or summary adjudication is de novo. Mills v. U.S. Bank, (2008) 166 Cal.App.4th 871, 895. The Court will apply the same rules and standards which govern a trial courts determination of a motion for summary judgment to determine whether there is a triable issue as to any

material fact and whether the moving party is entitled to judgment as a matter of law. Id.; Lenane v. Continental Maritime of San Diego, Inc., (1998) 61 Cal.App.4th 1073, 1079. And the Court is not bound by the trial courts reasoning for the ruling on the motion, rather the court only reviews the trial courts ruling and not its rationale. Id.; Gafcon, Inc. v. Ponsor & Associates, (2002) 98 Cal.App.4th 1388, 1402.

II.

Perrys Opening Brief is based Upon Numerous Factual Assertions without Citation to the Record. Perrys Opening Brief makes factual assertions without citation to

the record. (See generally Opening Brief.) [S]tatements of fact contained in the briefs which are not supported by the evidence in the record must be disregarded. Tisher v. Cal. Horse Racing Bd. (1991) 231 Cal.App.3d 349, 361. Therefore, all factual assertions in Perrys Opening Brief which are not supported by the evidence in the record must be disregarded. It would be improper for Perry to attempt to address the deficiencies identified above in his reply brief. It is a universal rule of appellate procedure that, without good cause shown, the appellate court will not consider any new issues in the reply brief which were not discussed in the appellants opening brief. See, e.g., Neighbors v. Buzz Oates Enters., (1990) 217 Cal.App.3d 325, 335 fn. 8; American Drug Stores, Inc. v. Stroh, (1992) 10 Cal.App.4th 1446, 1453; Kelly v. Methodist Hosp. of So. Cal., (1996) 48 Cal.App.4th 1431, 1442. This Court should not consider any attempt by Perry to address the above deficiencies in his reply brief.

III. The Trial Court Properly Granted Qualitys Motion for Summary Judgment Because the First Amended Complaint Did Not State Any Cause of Action Against Quality. Perrys Opening Brief presents a number of arguments that have no bearing to the fundamental issue in this appeal: whether there was any genuine dispute as to the material facts that would prevent Defendants from obtaining summary judgment. For instance, he contends the trial court lacked jurisdiction to grant summary judgment because Defendants raised new arguments concerning federal law preemption in their reply brief. (Opening Br. pg. 13-14, 39, 44.) Notably, this contention does not relate to Quality Loan Service, as Quality did not rely on federal preemption to support its motion. Additionally, Perry disputes the trial courts rulings on earlier discovery motions and the reference to a discovery facilitator. (Opening Br. pg. 6, 33, 40, 44.) None of these contentions demonstrate the existence of a genuine dispute as to the material facts as to Quality Loan Service that would undermine the summary judgment ruling. As discussed below, Perry failed to plead facts or present evidence that would support any cause of action against Quality. Accordingly, this Court should affirm.

A. The Trial Court Properly Granted Qualitys Request for Judicial Notice in Support of its Motion for Summary Judgment Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264. It is established that a court may take judicial notice of the fact of
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a documents recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the documents legally operative language, assuming there is no genuine dispute regarding the documents authenticity. Id. at 266. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. Id. Here the Court granted Qualitys Request for Judicial Notice citing to Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264267. (1 AA 27:11-13.) The Court went further and also provided parties with an explanation as to its basis for granting the Request for Judicial notice and overruling Perrys numerous evidentiary objections. (1 AA 27:27-28; 28:1-28; 29:1-2.) In response to Perrys Evidentiary Objection numbers 3-6 (1 AA 373:2-24) to Qualitys Request for Judicial Notice, the Court stated the following: Plaintiffs arguments go to the weight or legal significance of the evidence, and not to its admissibility. (1 AA 28:22-24.) The Court made clear that it was not judicially noticing the truth of the contents within the recorded documents as Perry argues, but rather that it was properly limiting its ruling as to the admissibility of the recorded documents, which is well within the Courts powers. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-267. Therefore, Perrys assertion that the Court decision in granting Qualitys Request for Judicial Notice fails in its entirety and should be disregarded.

B. The Trial Court Properly Ruled that the Notice of Default is in Compliance with California Statute Perry argues that the Court erred in its determination that there is no genuine dispute as to whether the Notice of Default is void. (Opening Brief, pg. 21.) Perry does not to cite to or make one reference to the Courts order. (Id. at 21-28.) Instead Perry references the Courts prior ruling on Qualitys Demurrer to the First Amended Complaint, as his basis that the court had already made a decision as to the Notice of Defaults validity. (Id. at 23.) However, simple review of the order explains that while the court had overruled Qualitys Demurrer to the First Amended Complaint, it had not made a binding determination that the notice of default was void, as repeatedly argued by Perry. (1 AA 31:3-4.) In light of this fact, Perry proceeds to argue[] that with respect to the deed of trust loans under Stockwell, on which Calvo relied, only the trustee holds the power to foreclose. (Opening Brief, pg. 24) As with

many of his arguments, Perry fails to realize that California law does not require the Notice of Default to be executed or recorded only by the trustee under the Deed of Trust. As discussed in the courts order, Qualitys recording of the Notice of Default prior to it being formally substituted in as Trustee under the Deed of Trust is not a procedural irregularity under California law. (1 AA 31:6-13.) California Civil Code 2924(a)(1)

specifically lists the individuals who are authorized to record the notice of default, which includes the trustee or an agent of the beneficiary. Here, the Notice of Default was executed by Quality as agent for the beneficiary. (1 AA 259-260.)

Perry also argues that the trial court failed to address the alleged issues surrounding the agency relationship between Quality and other parties in the action. (See Opening Brief, pg. 25.) Specifically, that Quality is not named on any document establishing an agency relationship. (Id.) But, Perry disregards California Civil Code 2315 which provides that an agent has such authority as a principal confers on the agent. Fontenot v.

Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271. And an agent can be authorized to do any act the principal may do. Id.; California Civil Code 2305, California Civil Code 2305. JPMorgan had the authority to execute the Notice of Default as beneficiary under the Deed of Trust, Quality as its agent was also authorized to do so. Further, JPMorgan has never alleged that Qualitys actions were not carried out as its agent and it is the only one with standing to assert that Qualitys actions were not authorized. Therefore, Perrys claims regarding the Courts ruling on the Notice of Default fail and the Courts ruling should be affirmed. C. The Trial Court Properly Granted Qualitys Motion for Summary Judgment to Perrys First Cause of Action for Declaratory Relief. Perrys first cause of action for Declaratory Relief is based upon his allegation that the defendants did not have authority to foreclose on the Subject Property. (1 AA 61:7-28; 62:1-28; 63:1-28; 64:1-13.) However, Perrys allegations even if true would not impose liability upon Quality, the foreclosure trustee.

1. Perry Has Failed To Identify Any Actions Taken By Quality That Are Outside The Scope Of Its Statutorily Protected Duties. It has long been established that a trustee under a Deed of Trust, such as Quality, has no personal interest in the properties upon which it forecloses, and instead its limited role is to conduct a nonjudicial sale in the event of the borrowers default, or to reconvey title to the property once the debt is satisfied. Ainsa v. Mercantile Trust Co. (1917) 174 Cal. 504, 510. As a result of its limited role the trustee shall incur no liability for any good faith error resulting from reliance on information received in good faith from the beneficiary regarding the nature and the amount of the default under the secured obligation, deed of trust, or mortgage. California Civil Code 2924(b). Therefore, regardless of Perrys standing allegations, Quality will incur no liability for its reliance upon the information it received from the beneficiary regarding the secured obligation. Further, both the First Amended Complaint and Perrys Opening Brief fail to allege any actions taken by Quality which were outside its statutory protected trustee duties. Indeed the First Amended Complaint alleges only that Qualitys was not the trustee at the time the foreclosure was initiated. (See 1 AA 61:7-28; 62:1-28; 63:1-28; 64:1-13.) However, Perry identified no wrongful actions taken by this Defendant. Therefore, Perry has failed to identify how the trial court erred in granting Qualitys Motion for Summary Judgment as to Perrys first cause of action for Declaratory Relief.

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2. The Tender Rule Bars Perrys arguments as to Wrongful Foreclosure within the Declaratory Relief cause of action. There is a maxim in the context of foreclosures known as the tender rule. An action to set aside a foreclosure rests in equity. Consequently, a defaulted borrower seeking to set aside a foreclosure sale cannot state a claim without alleging tender of the outstanding debt that is owed, or at least tender of the full amount required to cure her default. Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112. Without alleging facts showing a complete and valid tender, the plaintiff cannot demonstrate any prejudice suffered by any irregularities in the foreclosure sale. FPCI ReHab 01 v. E&G Invs. (1989) 207 Cal.App.3d 1018, 1021-1022. The rationale behind the rule is that if plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs. Id at 1022. Likewise,

[a]llowing plaintiffs to recoup the property without full tender would give them an inequitable windfall, allowing them to evade their lawful debt. Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526. A valid tender must be an unconditional offer of performance (California Civil Code 1494), made in good faith and in such a manner as is most likely to benefit the creditor (California Civil Code 1493), by a person able and willing to perform (California Civil Code 1495). The tender rule is strictly applied, Nguyen v. Calhoun, (2003) 105 Cal.App.4th 428, 439, and absent an alleged and actual tender, the First Amended Complaint in its entirety fails to state a cause of action. Karlsen v. Am. Sav. & Loan Assn. (1971) 15 Cal.App.3d 112. Perry has not tendered, nor has he made an unconditional offer to tender, the full amount owing on the
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loan. Without such a payment, he has no standing to challenge the foreclosure sale or to bring any of his other implicitly integrated claims. There are exceptions to the tender rule; however, Perry did not plead any facts in his First Amended Complaint that would render any of the exceptions applicable in the present case. Also, Perrys Opening Brief failed to identify a single fact alleged in the First Amended Complaint or that he could allege to support an exception to the tender rule. Therefore, the tender rule bars Perrys wrongful foreclosure claims within his declaratory relief cause of action. D. The Trial Court Properly Granted Qualitys Motion for Summary Judgment to Perrys Second Cause Of Action For Slander of Title.

Slander of Title is an unprivileged or malicious publication of a false statement that disparages plaintiffs title to real property and causes pecuniary loss. . Kachlon v. Markowitz, (2008) 168 Cal. App. 4th 316, 336; Rubin v. Green, (1993) 4 Cal. 4th 1187, 1193-94; Southcott v. Pioneer Title Co. (1962) 203 Cal. App. 2d 673, 676. Perry asserts that Quality is liable for Slander of Title based on the recording of non-judicial foreclosure documents against the subject property. (See 1 AA 64:14-28; 65:1-23.) But executing and recording a Notice of Default and Notice of Sale in accordance with California Civil Code 2924(c) are privileged actions, and accordingly, cannot subject Quality to liability. The California Legislature has codified the manner and procedure for conducting non-judicial foreclosures in the California Civil Code 2920 through 2944.5. These sections comprise a comprehensive regulation
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of the non-judicial foreclosure process by the legislature. Moeller v. Lien, 25 (1994) Cal. App. 4th 822, 834; see also Homestead Sav. v. Darmiento, (1991) 230 Cal. App. 3d 424, 432-33. In recognizing the importance of non-judicial foreclosure procedures, the legislature has extended the litigation privilege to encompass performance of any of the procedures involved in a non-judicial foreclosure. California Civil Code 2924 states: The mailing, publication, and delivery of notices as required herein, and the performance of the procedures set forth in this article, shall constitute privileged

communications within 47. California Civil Code 2924(d). This includes the recording of a notice of default under 2924(a)(1 by a trustee, mortgagee, beneficiary, or any of their authorized agents. The California Civil Code 2924(a)(1) specifically lists the individuals who are authorized to record the notice of default, which includes the trustee or an agent of the beneficiary. Here, the Notice of Default was executed by Quality as agent for the beneficiary. (1 AA 259-260.) The effect of the litigation privilege is to bar any tort action based on a protected communication. The only exception is for suit based on malicious prosecution. Kachlon v. Markowitz, (2008) 168 Cal. App. 4th 316, 336; Rubin v. Green, (1993) 4 Cal. 4th 1187, 1193-94 Thus, Perrys action for slander of title based on the recordation of the Notice of Default and Notice of Sale is barred by the litigation privilege. Kachlon v. Markowitz, (2008) 168 Cal. App. 4th 316, 336; Rubin v. Green, (1993) 4 Cal. 4th 1187, 1193-94.340-41. Accordingly, Perry has failed to identify how the trial court erred in granting Qualitys Motion for Summary Judgment as to Perrys Second Cause of Action.

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E. The Trial Court Properly Granted Qualitys Motion for Summary Judgment to Perrys Third Cause of Action for Quiet Title. Perrys third cause of action for Quiet Title also fails as a matter of law. (1 AA 65:24-28; 66:1-28; 67:1-28; 68:1-28; 69:1-3.) Foremost, Perry does not have standing to assert a cause of action for Quiet Title. A mortgagor cannot maintain a Quiet Title cause of action against the mortgagee without paying the debt secured. Shimpones v. Stickney (1934) 219 Cal. 637, 649; see also Mix v. Sodd (1981) 126 Cal.App.3d 386, 390 (no quite title action may lie without paying the debt, even if the debt is otherwise unenforceable, because a court of equity will not a aid a person in avoiding the payment of his or her debts). It is undisputed that Perry has not tendered the principal balance on the loan. Accordingly, Perry is unable to state a claim for Quiet Title. The purpose of pursuing a Quiet Title action is to have conflicting claims against an interest in property settled. Baucum v. Le Baron (1955) 136 Cal.App.2d 593, 595. However, as discussed above, a Trustee has no claim to ownership of the property and is simply a common agent for purposes of either foreclosing or reconveying title upon payment of the debt. Ainsa v. Mercantile Trust Co. (1917) 174 Cal. 504, 510. Perrys third cause of action for Quiet Title must fail as to Quality because Quality has no claim to the Subject Property. Perry has failed to allege in his First Amended Complaint or discuss in his Opening Brief how he can maintain a cause of action for Quiet Title against Quality. Therefore, Perry has failed to identify how the trial court erred in granting Qualitys motion for summary judgment to the third cause of action for Quiet Title.

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IV. The Trial Courts Decision Not to Provide A Statement of Decision is Not Reversible Error After Ruling on Defendants Summary Judgment Motions. On a hearing on a motion for summary judgment, the court is without power to make findings of fact. Perry v. Farley Bros. Moving & Storage, Inc. (1970) 6 Cal.App.3d 884, 889. Under such circumstances, 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. Id. Perry contends that the trial court committed reversible error bynot providing a statement of decision based on an inaccurate interpretation of California Code of Civil Procedure. Specifically, Perry cites to California Code of Civil Procedure 632, California Code of Civil Procedure 634 and to Whittingon v. McKinney (1991) 234 Cal.App.3d 123, in support of his claim. (See Opening Brief pgs. 42-43). However, Perry ignores the simple fact that these authorities apply to bench trials and do not apply to motion for summary judgment hearings. As discussed above, courts have found that a trial court has no power to issue findings of fact when ruling on a motion for summary judgment. Perry v. Farley Bros. Moving & Storage, Inc. (1970) 6 Cal.App.3d 884, 889. Unlike in Whittingon v.

McKinney, the trial court provided parties with a detailed tentative ruling explaining the basis for its findings and further instructed the prevailing party to draft a proposed order identical to the courts tentative ruling. (1 AA 26-32.) Most importantly, the court did not execute the final order on the motions for summary judgment until after the proposed order was approved as to form by Perry. (1 AA 32) Therefore, Perry cannot argue that the trial court failed to provide him with the basis for its decision or
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that Perry was not aware of the court's reasoning as provided in the proposed order, which he himself approved. Thus, Perry has failed to

provide any basis to support a claim for reversible error concerning the trial court's decision not to provide a statement of decision. CONCLUSION For the foregoing reasons, the Court should affirm the judgment of the trial, court granting Defendant Quality Loan Service Corporation's motion for summary judgment.

Dated: February 6,2014

Respectfully Submitted, McCarthy & Holthus, LLP

Charles E. Bell, Esq. Attorney for Respon nt, Quality Loan Service Corporation

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CERTIFICATE OF WORD COUN'f

(California Rules of Court, Rule 8.204)

The undersigned certifies that this Brief was prepared in Times New Roman size 13 font. The text of this Brief contains 4,186 words (exclusive of the tables and other items exempted from the word count by Rule 8.204(c)(3)), as counted by the Microsoft Word 2007 word-processing program used to generate the document.

Dated: February 6,2014

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PROOF OF SERVICE I, Karen Ann Rincon, declare as follows: I am employed in the County of San Diego, State of California. I am over the age of eighteen (18) years and not a party to this action. My business address is 1770 Fourth Avenue, San Diego, California 92101. On February 6, 2014, I served a true and correct copy of the foregoing document, titled: BRIEF OF RESPONDENT, by U.S. First Class Mail to the following persons: Leighton Lee Perry 6724 Waverly Road Martinez, CA 94553 Contra Costa County Superior Court Attn: Hon. Laurel S. Brady 725 Court Street Department 5 Martinez, CA 94553

John D. Ives, Esq. Supreme Court of California SEVERSON & WERSON 350 McAllister Street One Embarcadero Center, Suite 2600 San Francisco, CA 94102 San Francisco, CA 94111 I placed a true copy in a sealed envelope addressed as indicated above. I am readily familiar with the firm's practice of collection and

processing correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of-business. I am aware that on a motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one date after date of

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I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 6, 2014, at San Diego, California.

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