1 Filed 9/18/14 Estate of Johnson CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Estate of EDITH JOHNSON, Deceased.

JOSIENA BROWN, Indi vidually and as Administrator, etc., Petitioner and Appellant,

v. MTC FINANCIAL INC., Objector and Respondent. A134733
(City & County of San Francisco Super. Ct. No. PES10293632)

Estate of EDITH JOHNSON, Deceased.

JOSIENA BROWN, Indi vidually and as Administrator, etc., Petitioner and Appellant,

v. FINANCIAL FREEDOM SENIOR FUNDING CORPORATION et al., Objectors and Respondents. A135452
(City & County of San Francisco Super. Ct. No. PES10293632)2 Estate of EDITH JOHNSON, Deceased.

JOSIENA BROWN, Indi vidually and as Administrator, etc., Petitioner,

v. FINANCIAL FREEDOM ACQUISITION, LLC et al., Objectors and Respondents; RICHARD A. CANATELLA, Objector and Appellant. A136389
(City & County of San Francisco Super. Ct. No. PES10293632)

I. INTRODUCTION In this probate matter, appellant Josiena Br own, individually and as administrator
of the estate of her mothe r, Edith Johnson, filed petiti ons alleging respondents MTC Financial Inc. (MTC), Financial Freedom Senior Funding Corporation (FFSFC), Financial Freedom Acquisitio n, LLC (FFA) and Mortgage Electronic Registration Systems, Inc. (MERS) engaged in racial disc rimination in connection with their efforts to foreclose on real property owned by Johnson’s estate. The trial court sustained, without leave to amend, MTC’s demurrer to Brown’ s second amended petition (SAP). The court later sustained, without leave to amend, th e demurrers of the remaining respondents to Brown’s third amended petition (TAP). Brown filed two appeals, challenging th e dismissal of her claims against MTC (No. A134733) and the dismissal of he r claims against the other respondents (No. A135452). In addition, Brown’s attorn ey, Richard Canatella, appealed a trial court order imposing sanctions on him for making a false allegation in the TAP (No. A136389). We consolidated the three appeals for purposes of oral argument and3 decision. 1 We affirm the trial court’s dismissal of the SAP (as to MTC) and the TAP (as to the other respondents). We reverse the sanctions award against Canatella.
II. BACKGROUND 2 Brown is African-American. Her mother, Johnson, was also African-American. In 2005, Johnson entered a reverse mortgage secured by real property on Jamestown Avenue in San Francisco (the property). Pu rsuant to the applicable note and deed of trust, FFSFC advanced money to Johnson. The deed of trust provides that, upon Johnson’s death, all borrowed amounts would be due and payable. FFSFC initially held
the beneficial interest in the deed of trust an d later transferred the beneficial interest to MERS, as nominee for FFSFC. MERS later tran sferred the beneficial interest to FFA, which Brown describes as FFSFC’s “corporat e foreclosure arm.” MTC was a trustee
under the deed of trust. Johnson died on January 1, 2010. In early 2010, Brown, wh o was living at the Jamestown Avenue property, received repa yment notices and demands from FFSFC,
which stated the amount due under the reve rse mortgage was nearly $300,000. During this time period, FFSFC also se nt an inspector who inspecte d the property and obtained
financial and other information from Brown and her daughter. In July 2010, FFSFC
issued a notice of intent to foreclose. Also in July 2010, Brown was appointed ad ministrator of Johnson’s estate. Brown sought to sell the property to avoid a fore closure. In August 2010, Brown published notice of a private sale of the prop erty, but she received no offers. On October 25, 2010, responde nts recorded a notice of de fault. In January 2011, respondents recorded a notice of trustee’s sale , setting the foreclosure sale for February 22, 2011.

1 In No. A136389, appellant Canatella fi led a request for judicial notice of the appendices filed in all three a ppeals. We deferred considera tion of that request until our decision on the merits. In light of our cons olidation of the three appeals, we deny the request for judicial notice as moot.

2 We take our summary of the underlying facts from Brown’s allegations in the SAP and the TAP.4 Brown sought and obt ained temporary injunctive re lief (from the superior court and from the federal district court, to wh ich this action was removed in May 2011) preventing the foreclosure sale. After the fe deral court remanded the case, the trial court (Judge Quidachay) entered an order on Septem ber 20, 2011, denying Brown’s request for a preliminary injunction and di ssolving any temporary restrain ing order or injunction in
effect. The property was sold at a nonjudicial fo reclosure sale on November 1, 2011, for $275,000.01. Brown had scheduled a probat e auction sale for December 6, 2011, had received an offer of $228,0 00, and hoped to receive additional, higher bids. As we discuss below, in her petitions se eking to prevent (and now seeking redress for) respondents’ allegedly wrongful fore closure sale, Brown alleges respondents conspired to, and did, discrimi nate against her on the basis of her race. Brown asserts the nonjudicial foreclosure sale and respondents’ related actions leading up to the foreclosure (outlined above) were in fu rtherance of the conspiracy. Brown contends respondents were motivated by racial animus and inte ntionally discriminated against her. As noted, the trial court sustained, withou t leave to amend, MTC’s demurrer to the
SAP and the demurrers of the re maining respondents to the TAP. 3
III. DISCUSSION
A. The Demurrers 1. Standard of Review In reviewing whether the trial court erre d in sustaining respondents’ demurrers without leave to amend, we review the operative petition (t he SAP for MTC; the TAP for the other respondents) de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory. ( McCall v. PacifiCare of Cal., Inc. (2001)

3 The court entered judgments of dismissa l as to MTC and FF SFC. Although the court did not enter a separate judgment of dismissal as to FFA and MERS, the court’s order sustaining their demurrer without leave to amend also st ated the case was dismissed with prejudice. It is appropriate to construe the trial court’s order as an appealable order dismissing the case as to FFA and MERS. (See Hudis v. Crawford (2005) 125 Cal.App.4th 1586, 1590, fn. 4.)5 25 Cal.4th 412, 415.) “ ‘ “We treat the demurre r as admitting all mate rial facts properly pleaded, but not contentions, deduc tions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpreta tion, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states
facts sufficient to constitute a cause of acti on. [Citation.] And when it is sustained without leave to amend, we decide whethe r there is a reasonabl e possibility that the defect can be cured by amendm ent: if it can be, the trial c ourt has abused its discretion and we reverse; if not, there has been no abus e of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is s quarely on the plaintiff.’ ” ( Zelig v. County of Los Angeles (2002) 27 Cal.4t h 1112, 1126.) 2. Brown’s Federal Civil Rights Claims In the SAP and the TAP, Brown alleges respondents conspired to, and did, discriminate against her on the basis of her race in violation of federal civil rights and antidiscrimination laws, including title 42 United States Code sections 4 1981, 1982, 1985 and 3604 (first through third causes of action in the SAP; first through fourth causes of action in the TAP). 5 Brown asserts the nonjudicial fo reclosure sale and related actions taken by respondents were in furtherance of the conspiracy. As we will discuss, we conclude Brown’s allegations are insu fficient to withstand a demurrer. Brown’s principal theory is that responde nts, in taking step s toward foreclosure and in conducting the foreclosure sale, were motivated by racial animus and intentionally

4 All undesignated section references are to title 42 of the United States Code.

5 Brown also asserts claims under Californi a civil rights statutes (Civ. Code, §§ 43, 51, 52.1, fourth cause of acti on in SAP; Civ. Code , § 52.1, fifth cause of action in TAP), as well as claims for interfe rence with administrative dutie s and injunctive relief (fifth and sixth causes of action in SAP). In he r opening appellate br iefs, Brown makes no argument that the trial court’s dismissal of these causes of action was erroneous. She therefore has forfeited any such argument. (See Supervalu, Inc. v. Wexford Underwriting Managers, Inc. (2009) 175 Cal.App.4t h 64, 84, fn. 5.)6 discriminated against her. Even un der federal notice pleading standards, 6 “complaints based on civil rights statutes must include specific allegations of facts showing a violation of rights ‘instead of a litany of general conclusi ons that shock but have no meaning.’ ” ( Waldron v. Rotzler (N.D.N.Y. 1994) 862 F.Supp. 763, 768 ( Waldron ); accord, Catsouras, supra, 181 Cal.App.4th at p. 891 [“me re conclusions” are insufficient to state a claim under federal Civil Rights Ac t; “ ‘[s]ome particularized facts’ ” are needed]; Bach, supra, 147 Cal.App.3d at p. 564 [same]; Akhavein v. Argent Mortgage
Co. (N.D.Cal. Jul. 18, 2009, No. 5:09–c v–00634 RMW (RS)) 20 09 U.S.Dist. LEXIS 61796, pp. *15–17 ( Akhavein ).) 7 Accordingly, a plaintiff alleging intentional
discrimination in violation of federal civil rights laws must “plead facts which establish that defendants’ actions were racially motiv ated and purposefully discriminatory.” ( Waldron, supra, 862 F.Supp. at p. 768 [§ 1981 claim]; id . at p. 769 [§ 1982 claim].) 8 The plaintiff must allege facts supporting the inference of a cau sal link between the defendant’s actions and the plaintiff’s race; conclusory allegations are not sufficient. ( Grimes v. Fremont General Corp. (S.D.N.Y. 2011) 785 F.Supp.2d 269, 296 ( Grimes ) [§§ 1981, 1982]; see id . at pp. 289–290, 292, fn. 33 [s tating that claim under provisions of federal Fair Housing Act (FHA), including §§ 3604, subd. (b) and 3605, subd. (a), was

6 The court in Bach v. County of Butte (1983) 147 Cal.App. 3d 554 at pages 560– 563 ( Bach ) applied federal law to de termine whether a complaint states a cause of action under a provision of the federal Civil Rights Act (§ 1983), although acknowledging that prior courts had assumed that California pl eading laws should apply. (Accord, Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 891 ( Catsouras ) [following Bach ].) We follow federal notice pleading requirements, although we do not believe the distinction is dispositive in th is case. Whether state or federal law applies, the outcome in this action would be the same.

7 The California Rules of Court do not pr ohibit citation to unpublished federal cases, which may be cited as persuasive authority. ( Nungaray v. Litton Loan Servicing, LP (2011) 200 Cal.App.4th 1499, 1501, fn. 2.)

8 Section 1981 prohibits racial discrimina tion in the making and enforcement of contracts. Section 1982 guarante es every United States citizen “the same right . . . as is enjoyed by white citizens . . . to inherit, purch ase, lease, sell, hold, and convey real and personal property.”7 deficient where plaintiffs made only gene ralized allegations of discriminatory treatment].) Similarly, to state a section 1985 conspiracy claim, “the plaintiff must allege with specificity facts sufficien t to show or raise a plausible inference of: [¶] (1) a conspiracy between two or more persons for the purpose of depriving any person or class of persons of equal protection of the la ws, or of equal privileges a nd immunities under the law, and [¶] (2) an act by one of the conspirators in furtherance of the object of the conspiracy whereby another person was [¶] (a) injured, or [¶] (b) deprived of exercising any right or privilege of a citizen of the United States.” ( Garg v. Albany Indus. Dev. Agency (N.D.N.Y. 1995) 899 F.Supp. 961, 970 ( Garg ).) The plaintiff must also allege the “conspiracy was motivated by ‘some racial or perhaps otherwise class-based, invidious discriminatory animus.’ ” ( Ibid. ; Gorokhovsky v. City of New York (S.D.N.Y. May 19, 2011, No. 10 Civ. 8 848 (LBS)) 2011 U.S.Dist. LEXIS 54941 , p. *39, aff’d in part and rev’d in part on another point in Gorokhovsky v. New York City Housing Authority (2d Cir. 2014) 552 Fed.Appx. 100.) 9 The allegations of conspi racy must be specific and nonconclusory. ( Taylor v. Mitzel (1978) 82 Cal.App. 3d 665, 673–675 ( Taylor ); Grimes,

supra, 785 F.Supp.2d at p. 297.)
The SAP and the TAP do not contain suffici ent allegations suggesting respondents were involved in any intentional discriminati on or conspiracy so as to be liable under federal civil rights laws. The SAP and the TAP just recount Johnson’s entry into the reverse mortgage transaction and the events leading to the nonjudicial foreclosure sale (beginning with a January 2010 repayment no tice), and make the conclusory allegations that all respondents (1) were somehow motivat ed by a “racially disc riminatory animus,” (2) intentionally discriminated against Brown, and (3) conspired to deprive Brown of her

9 Section 1985, subdivision (3) provides fo r the recovery of damages “[i]f two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal pr otection of the laws, or of equal privileges and immunities under the laws, . . . or for th e purpose of preventing or hindering the constituted authorities of any State or Territo ry from giving or securing to all persons within such State or Territory the equa l protection of the laws . . . .”8 inheritance because of her race. But ther e are no factual allegations to support a conclusion the respondents acted with racial animus. (See Akhavein, supra, 2009 U.S.Dist. LEXIS 61796 at p. *17 [federal and California civil rights claims arising out of mortgage loan transaction failed where each claim offered “a conclusory allegation of discrimination, based on any number of criteri a, with no factual subs tantiation to ground the accusation”]; Grimes, supra, 785 F.Supp.2d at pp. 296–297 [allegations of discrimination in mortgage lending were insuffi ciently specific to state causes of action under federal civil rights statutes].) Nor ar e there any facts as to which respondents conspired and how they did so. Instead, th e conspiracy allegations are nonspecific and conclusory, and therefore are insufficient to st ate a cause of action for violation of section 1985, subdivision (3). ( Taylor, supra, 82 Cal.App.3d at pp. 673–675; Grimes, supra, 785 F.Supp.2d at pp. 297–298; Garg, supra, 899 F.Supp. at p. 970.) Finally, the SAP and the TAP assert generally that the respondent s treat non-African-American successors-ininterest more favorably than they did Brown, but without alleging any specific facts supporting these assertions. (See Grimes, supra, 785 F.Supp.2d at p. 292, fn. 33 [plaintiffs alleging discriminatory lending fa iled to plead that “any specific similarlysituated non-African American a pplicant received a better loan”]; id . at p. 296 [plaintiff failed to provide examples showing defend ants “targeted” discriminatory lending activities against minorities].)
A defendant’s effort to collect amount s owed to it, without more, does not establish or support a plausible inferenc e of intentional discrimination. In Carpenters Health and Welfare Fund of Phila delphia v. Kia Enterprises Inc. (E.D.Pa. Jul. 16, 2009, No. 09–116) 2009 U.S.Dist. LEX IS 61320, at page *2 ( Carpenters ), the plaintiffs (a
labor union and affiliated unio n funds, pension plans and indi viduals) sued the defendant (Kia), an African-American-owned business, to collect payments allegedly owed to plaintiffs under a collective bargaining ag reement (CBA). Kia filed a counterclaim, alleging that, in seeking to collect the paymen ts, the plaintiffs discriminated against Kia in violation of section 1981. ( Id. at pp. *2–3.) The court held Kia’s allegations that the union had a longstandi ng pattern and practice of disc riminating against minorities and9 minority-owned businesses, as well as allega tions that the plaintiffs’ actions were intentional and motivated by racial animus and a desire to exclude minorities and minority-owned businesses from the construction industry, we re legal conclusions that were not entitled to be assumed to be true. ( Id. at pp. *8–9; see Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126 [on demu rrer, court does not assume truth of “contentions, deductions or conclusions of fa ct or law”].) As to the counterclaim’s specific factual allegations about actions the plaintiffs took to collect the payments from Kia (including taking steps to make a cl aim against Kia’s performance bond, and demanding to audit Kia’s books and records), the Carpenters court stated: “These actions are entirely consistent with a lawful attempt by the plaintiffs to collect unpaid CBA obligations that they are owed. By themselves, these allegations are ‘not only compatible with, but more likely explained by,’ lawful behavior and therefore cannot ‘plausibly suggest’ act ionable wrongdoing.” ( Carpenters, supra, 2009 U.S.Dist. LEXIS 61320 at p. *9.) Finally, Kia’s allegation, on information and belief, that the plaintiffs did not make similar efforts to collect unpa id CBA obligations from non-minority-owned businesses, in the absence of more specific allegations iden tifying particular instances of disparate treatment, were legal conclusion s that could not be taken as true. ( Ibid. ) Similarly, here, the actions respondents took to foreclose on the property after Johnson’s death do not plau sibly suggest intentional di scrimination, because those actions are compatible with, an d more likely explained by, lawful conduct, i.e., efforts to collect the amounts secured by the deed of trust entered into by Johnson. ( Carpenters,

supra, 2009 U.S.Dist. LEXIS 61320 at p. *9.) The fact Brown sought to sell the property at a probate auction (as an alternative to fore closure) does not show respondents’ efforts to foreclose were improper and does not support an inference that respondents engaged in intentional discrimination. We thus reject Brown’s argument that “ ‘no other reason than race’ ” explains respondents’ efforts to fore close. Finally, Brown’s general allegations that respondents would not or do not make similar efforts to collect from non-AfricanAmerican successors-in-interest , without more specific alle gations identifying particular10 instances of disparate treatment, are legal c onclusions that cannot be taken as true. ( Id. at p. *10.) In her reply briefs, Brown cites Swierkiewicz v. Sorema N. A. (2002) 534 U.S. 506, at pages 508, 510–513 ( Swierkiewicz ), in which the United States Supreme Court held that, under rule 8(a) of the Federal Rules of Civil Procedure, a plaintiff in an employment discrimination case need not allege at the plea ding stage all facts necessary to establish a “prima facie case” of discrimination under th e burden-shifting framework established in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. Th e prima facie case is “an evidentiary standard, not a pleading requirement.” ( Swierkiewicz, supra, 534 U.S. at p. 510; see Lindsey v. Yates (6th Cir. 2007) 498 F.3d 434, 439–440 [ Swierkiewicz applies to housing discriminati on claims]; see also Barber v. Rancho Mortgage & Investment Corp. (1994) 26 Cal.App.4th 1819 , 1833 [discussing prima faci e case for discrimination in sale or rental of housing under § 1982].) But the United States Supreme Court has also held that, under rule 8(a) of the Federal Rule s of Civil Procedure, to survive a motion to dismiss, a discrimination complaint “must c ontain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ” 10 ( Ashcroft v. Iqbal (2009) 556 U.S. 662, 678; see Carpenters, supra, 2009 U.S.Dist. LEXIS 61320 at pp. *7–8.) Accordingly, as we have noted above, a plain tiff claiming intentional discrimination must allege facts supporting the inference of a ca usal link between the defendant’s actions and the plaintiff’s race; co nclusory allegations are not sufficient. ( Grimes, supra, 785 F.Supp.2d at p. 296.) The SAP and th e TAP do not meet this standard. In addition to alleging intentional discri mination, Brown argues briefly that she has stated a claim for disparate impact disc rimination under provisions of the federal FHA (§ 3601 et seq.). 11 We disagree. To prevail on a di sparate impact theory, a plaintiff

10 Brown thus is incorrect in suggesting (i n her reply briefs) th at she only needed to assert respondents’ actions were racially motivated. Instead, as Brown acknowledges, factual allegations, rather than mere conclusions, are required.

11 Brown cites section 3604, subdivision (b), which provides that “it shall be unlawful [¶] . . . [¶] . . . [t]o discriminate against any person in th e terms, conditions, or11 must show a facially neutral housing prac tice or policy has a disproportionate adverse effect on members of a protected class. (See Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1420–1421 ( Sisemore ); Cabrera v. Alvarez (N.D.Cal. 2013) 977 F.Supp.2d 969, 976.) For example, in Sisemore , the plaintiffs stated a viable disparate impact claim by alleging a mortgage lender’s policy of refusing to lend to family home day care operators had a disproportionate adve rse effect on protected classes (women and families with children). ( Sisemore, supra, 151 Cal.App.4th at pp. 1420–1421.) Here, in contrast, Brown has not identified a facial ly neutral practice or policy employed by respondents. Instead, she just describes the respondents’ specific decisions affecting the property at issue in this case; Brown refers to the “facially neutral decisions” to enter the reverse mortgage transaction w ith Johnson and later to forecl ose pursuant to the deed of trust. As to the impact on a protected cla ss, Brown suggests the respondents’ decisions in her case had a negative impact on her as an African-American and on the neighborhood where the property is located (by removing an African-Americ an family from the neighborhood). But Brown has not alleged facts showing comparable treatment of similarly situated members of the protected cl ass, or facts supporting an inference that respondents’ conduct has had a disproportio nately adverse impact on members of the protected class. (See Cabrera v. Alvarez, supra, 977 F.Supp.2d at p. 976.) For the foregoing reasons, we conclude the trial court correctly sustained, without leave to amend, respondents’ demurrers to Br own’s federal civil righ ts causes of action, including her claims under sec tions 1981, 1982, 1985, and the FHA (§ 3601 et seq.) (the

privileges of sale or rental of a dwelling, or in the provision of serv ices or facilities in connection therewith, because of race . . . .” Brown also quotes from section 3605, subdivision (a), which provides that “[i]t sh all be unlawful for any person or other entity whose business includes engaging in reside ntial real estate-related transactions to discriminate against any person . . . in the terms or conditions of such a transaction, because of race . . . .” A “ ‘residential real estate-related transaction’ ” means “(1) [t]he making or purchasing of loan s or providing other financ ial assistance—[¶] (A) for purchasing, constructing, improving, repair ing, or maintaining a dwelling; or [¶] (B) secured by residential real estate[] [or] (2) [¶ ] [t]he selling, brokering, or appraising of residential real property.” (§ 3605, subd. (b).)12 first through third causes of action in the SA P, and the first through fourth causes of action in the TAP). 12 Because we conclude Brown’s federal civil rights claims are conclusory and insufficiently specific, we ne ed not address respondents’ arguments that
these claims fail for other reasons. 3. Wrongful Foreclosure Brown suggests she has stated, or could amend to state, a cause of action for wrongful foreclosure based on respondents’ failure to comply with regulations promulgated by the United States Depart ment of Housing a nd Urban Development (HUD) that apply to reverse mortgage le nders. In particular, Brown contends respondents did not comply with title 24 Code of Federal Regulatio ns part 206.125(b), which requires a mortgagee to obtain an appr aisal of the property “no later than 15 days
before a foreclosure sale.” We conclude respondents’ allege d violation of HUD regulations provides no basis for Brown to assert a cause of action for wrongful
foreclosure.
In Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250 at pages 1255, 1277–1278 ( Pfeifer ), cited by Brown, our colleagues in Division Two of this court concluded that, where the applicable deed of trust incorporated HUD regulatory requirements, the lenders had to comply with the regulations before commencing a nonjudicial foreclosure. But the relief av ailable to the borrowers is limited. The Pfeifer court stated it agreed “with those courts that refuse to permit any private right of action for failure to comply with the HUD regulations and the Pfeifers cannot seek damages based on their wrongful foreclosure action.” ( Id. at pp. 1255, 1269–1 270, 1282 & fn. 17.)
The Pfeifer court also agreed with “courts di stinguishing an offensive action from a defensive action”; the Pfeifers therefore coul d seek to enjoin the lenders from proceeding

12 Brown, who has now ame nded her petition three times, presents no argument as to how she could further amend her federal civil rights claims to state a cause of action. (See Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1491 [plaintiff has appellate burden to specify how she coul d amend to state cause of action].)13 with a nonjudicial foreclosure sale (and could seek associated declaratory relief) based on the lenders’ failure to comply w ith HUD servicing requirements. ( Id. at pp. 1255, 1281.) Pfeifer does not assist Brown. Here, the nonj udicial foreclosure sale has occurred. Accordingly, even assuming the deed of trus t in the present case incorporates the HUD regulations that Brown contends respondents violated (a que stion we need not address), Brown cannot rely on the regula tions as the basis for a “d efensive” action to prevent respondents from proceeding with a no njudicial foreclosure sale. (See Pfeifer, supra, 211 Cal.App.4th at pp. 1255, 1281.) And, Brown cannot bring an “offensive action” seeking damages based on respondents’ alle ged noncompliance with the regulations. ( Id. at pp. 1255, 1269–1270, 1282 & fn. 17.) Although Brown does not contend she can seek damages, she suggests that, under Pfeifer , she can rely on the HUD regulations as a basis for seeking “equitable re lief,” such as imposing a “ ‘c onstructive trust’ ” on, or requiring the respondents to “ ‘disgorg[e],’ ” the proceeds of the foreclosure sale. We disagree. As noted, the Pfeifer court held a borrower has no right to bring any “offensive” action to enforce HUD regulations , and the court only authorized borrowers to rely on the regulations “defensive[ly],” to prevent a foreclosure sale and to obtain associated declaratory relief. ( Id. at pp. 1255, 1269–1270, 1277–1278, 1281, 1282 & fn. 17.) We decline to extend Pfeifer to permit a borrower to re ly on HUD regulations to seek monetary relief based on a comple ted nonjudicial foreclosure sale.
B. Sanctions 1. Background After demurring to the TAP, FFA and MERS filed a motion unde r Code of Civil Procedure section 128.7, seek ing sanctions against Brown’s counsel, Richard Canatella, for filing the TAP. FFA and MERS argued th e TAP lacked legal and factual support and included false factual allegations, including an allegation (which we discuss in more detail below) that FFA and MERS had failed to obtain a pre -foreclosure appraisal of the property as required by HUD regulations. FF A and MERS sought an award of $11,631 in attorney fees incu rred in responding to the TAP and in making the sanctions motion.14 In his brief opposing the sanctions mo tion, Canatella argued FFA’s and MERS’s
motion was itself frivolous and sanctionable. At the May 15, 2012 hearing on FFA’s and MERS’s sanctions motion, the trial court stated its “leaning” was to deny the moti on, because, although the court had by then
sustained the demurrers to th e TAP without leave to amend, the court was not persuaded the TAP was “totally meritless” so as to justify sanctions . Counsel for FFA and MERS responded by focusing on the contention that th e TAP (signed by Canatella on January 6, 2012) included a specifi c false factual allegation, i.e., the allegation that respondents had not obtained the appraisal re quired by HUD. Counsel for FFA and MERS stated that, although he had served Canatella with the sanctions motion papers (which included a copy of an appraisal) on Fe bruary 27, 2012, Canatella di d not withdraw the offending allegation; instead, he had argued orally at the March 27, 2012 h earing on the demurrers
that he had not receive d an appraisal. The appraisal report submitte d by FFA and MERS is date d October 24, 2011, i.e., seven days before the November 1, 2011 foreclosure sale. On June 13, 2012, the court entered an or der sanctioning Canatella under Code of
Civil Procedure section 128.7. The court co ncluded the allegation in the TAP about the lack of an appraisal was false, and Canate lla failed to withdraw the allegation after receiving a copy of the appraisal, but inst ead, at the March 27, 2012 demurrer hearing, “reiterated the false allegation that ‘we never r eceived an appraise value in this case.’ ”
The court ordered Canatella and his law firm to pay, as a sanction, $7,290 in attorney fees
to FFA. The court did not address Canatella ’s argument that coun sel for FFA and MERS
should be sanctioned.
Canatella filed a motion to vacate the sanc tions award and for a new trial, which the trial court denied on August 16, 2012. Ca natella filed a notice of appeal, stating he was appealing (1) the order awarding sanc tions, (2) the court’s failure to impose sanctions on counsel for FFA and MERS, and (3) the order denying his motion to vacate
and for a new trial.15 2. Analysis Code of Civil Procedure section 128.7, su bdivision (b) provides in part that, “[b]y presenting to the court, whether by signing , filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney . . . is certifying that to the best of the person’s know ledge, information, and belief, formed after an inquiry reasonable under the circumstances , all of the following conditions are met: [¶] . . . [¶] (3) The allegations and other factual c ontentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further inves tigation or discovery.” (Ital ics added.) Code of Civil Procedure section 128.7, subdivision (c) author izes sanctions for viol ations of Code of Civil Procedure section 128.7, subdivision (b ). We review a trial court’s award of
sanctions under Code of Civil Procedure se ction 128.7 for abuse of discretion. ( Burkle v.
Burkle (2006) 144 Cal.App. 4th 387, 399.)
We conclude the trial court abused its discretion in awarding sanctions. The appraisal produced by FFA and MERS did not show the disputed factual allegation in the TAP about the appraisal was false or lacked evidentia ry support. The TAP’s allegations about a pre-forecl osure appraisal refer to HUD regulations and related materials specifying a reverse mo rtgage lender must conduct an appraisal no later than 15 days before a foreclosure sale. T itle 24 Code of Federa l Regulations part 206.125(b) specifies: “(b) Ap praisal. The mortgagee shall obtain an appraisal of the property no later than 30 days after the mortgagor is notified that the mortgage is due and payable, or no later than 30 days after the mortgagee becomes aware of the mortgagor’s death, or upon the mortga gor’s request in connection with a pending sale. The property shall be appraised no later than 15 days be fore a foreclosure sale . . . .” (Italics added.) A set of frequently asked questions (FAQs) prepared by HUD (which FFA and MERS
submitted to the trial court in connection with the sanctions motion) notes this requirement. Question 24 of the FAQs states: “ 24. When is a mortgagee required to obtain appraisals? New 1/22/2009 [¶] Regulations at [24 Co de of Federal Regulations part] 206.125(b) state the mortgagee shall obtai n an appraisal of the property no later than16 30 days after the mortgagor is notified that th e mortgage is due and payable, or no later than 30 days after the mortga gee becomes aware of the mortgagor’s death, or upon the mortgagor’s request in connec tion with a pending sale. The property shall be appraised no later than 15 days be fore a foreclosure sale .” (Italics added.) Canatella argues he reasonably concluded and alleged that respondents had not complied with this regulatory re quirement. We agree. The relevant paragraphs of the TAP refer to the above regula tion and FAQ answer, but incorre ctly paraphrase them as requiring an appraisal “within” 15 days of a foreclosure sale. 13 Paragraph 7 of the TAP
states: “Petitioner is informed and believe s and alleges that th e sale was conducted without an appraisal made w ithin 15 days of November 1, 2011. See Department of Housing and Urban Developm ent (HUD) HECM Servicing FAQ’s no. 24.” (Some bolding omitted.) Paragraph 39 of the TAP repeats this al legation and cites the same FAQ response. Finally, paragraph 46 of th e TAP states: “Petitioner is informed and believes and alleges that respondents knew they were in violation of HUD regulations for selling the property at a foreclosure sale with out an appraisal made within 15 days of the November 1 sale as required under [24 C.F.R. part] 206.125(b), . . .” 14 Fairly construed, the above paragraphs of the TAP (althou gh poorly worded) allege that respondents did not comply w ith the cited HUD regu latory requirements governing when an appraisal must occur. As noted, the applicable regulation requires an appraisal no later than 15 days before a fore closure sale. (24 C.F.R. § 206.125(b); see Dept. of Housing & Urban Development, HE CM Servicing Frequently Asked Questions (FAQs), revised 11/16/2011, No. 24.) FFA’s a nd MERS’s submission to the trial court of an appraisal conducted on or about October 24, 2011 (just seven days before the November 1, 2011 foreclosure sale) did no t establish the allegations in the above

13 In his reply brief on appeal, Canatella notes the TAP should have used the phrase “no[] later than,” instead of the word “within.”

14 In their sanctions motion, FFA and MERS contended the allegations in paragraphs 7 and 46 of the TAP lacked ev identiary support. In its order awarding sanctions, the trial court cited only the a llegation in paragrap h 7 of the TAP.17 paragraphs of the TAP were false or lacked evidentiary support. (S ee Code Civ. Proc., § 128.7, subd. (b)(3).) Canatella therefore did not violate Code of Civil Procedure section 128.7 by including the disputed allega tions in the TAP, or by “later advocating” those allegations at the Ma rch 27, 2012 hearing. (See Code Civ. Proc., § 128.7, subd. (b).)
To the extent Canatella went further at the March 27, 2012 hearing, such as by stating he had never received an appraisal (altho ugh FFA and MERS ha d by then served him with the sanctions motion papers, which included a copy of the October 24, 2011 appraisal), his oral statements provide no i ndependent basis for sanctions under Code of Civil Procedure section 128.7. (See Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352 , 368–369 [Code Civ. Proc., § 128.7 did not authorize sanctions for oral misconduct].) Moreover, a sanctions motion under Code of
Civil Procedure section 128.7 must “describ e the specific conduc t alleged to violate [Code of Civil Procedure section 128.7, subdi vision (b)].” (Code Ci v. Proc., § 128.7, subd. (c)(1).) FFA’s and MERS’s sanctions motion (which was signed on February 22, 2012 and served on February 27, 2012) could not have, and did not, describe Canatella’s
oral statements at the March 27, 2012 hearing and allege that those statements violated
Code of Civil Procedure sect ion 128.7, subdivision (b). For the foregoing reasons, we reverse the trial court’s June 13, 2012 order awarding sanctions against Canatella. 15 We dismiss as moot the portion of Canatella’s appeal challenging the court’s August 16, 2012 order denying Cana tella’s motion for a
new trial and to vacate the sanctions award. Finally, Canatella asks that we direct th e trial court, on remand, to address his request for sanctions against counsel for FFA and MERS. We decline Canatella’s

15 FFA and MERS filed a moti on in this court seeking sa nctions against Canatella and his law firm on the ground Canatella’s app eal of the trial court’s sanctions award is frivolous. We deferred consideration of the motion to the decision of the appeal on the merits. Because we have concluded Canatella ’s appeal has merit, we deny FFA’s and MERS’s motion for appellate sanctions.18 request. In his trial court brief in oppos ition to the sanctions motion filed by FFA and MERS, Canatella argued the motion was frivolou s and sanctionable under Code of Civil Procedure section 128.7, subdivision (h). That subdivision provides: “A motion for sanctions brought by a party or a party’s atto rney primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in th e cost of litigation, shall itself be subject to a motion for sanctions . It is the intent of the Legislature that courts shall vigorously use its sanctions au thority to deter that improper conduct or comparable conduct by others similarly situat ed.” (Code Civ. Proc., § 128.7, subd. (h), italics added.) Code of Civil Procedure sec tion 128.7, subdivisio n (c)(1) specifies the manner by which a motion for sanctions pursuant to section 128.7 may be filed. (See Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1130 .) Such a motion must be “made separately from other motions or requests,” and must be served 21 days before it is filed with the court. (Code Civ. Proc., § 128.7 , subd. (c)(1).) Canatella did not make a separate motion for sanctions, and did not serv e his request for sanctions 21 days before filing it. Instead, he just included a reque st for sanctions in his opposition to the sanctions motion filed by FFA and MERS. The trial court di d not err by failing to rule on, or by implicitly denying, this request.
IV. DISPOSITION In No. A134733, the ju dgment of dismissal in favo r of MTC is affirmed. MTC shall recover its costs on appeal. In No. A135452, the ju dgment of dismissal in favor of FFSFC is affirmed. FFSFC shall recover its costs on appeal. Also in No. A135452, the order dismis sing the action as to FFA and MERS is
affirmed. FFA and MERS shall r ecover their costs on appeal. In No. A136389, the trial c ourt’s June 13, 2012 order imposing sanctions against Canatella is reversed. Canatella’s appeal of the court’s August 16, 2012 order denying
Canatella’s motion for a new trial and to vacate the sanctions award is dismissed as moot.
The motion of FFA and MERS for an award of appellate sanctions is denied. The parties shall bear their own costs on appeal.19 _ ____________ ____________ McGuiness, P.J.

We concur:

_____________ ____________ Siggins, J.

_____________ ____________ Jenkins, J.