Filed 5/1/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

AFSHAN MULTANI et al.

Plaintiffs and Appellants,

v.

WITKIN & NEAL et al.

Defendants and Respondents.

 B237295

 (Los Angeles County

 Super. Ct. No. GC044440)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

C. Edward Simpson, Judge. Reversed.

Law office of Gary Kurtz and Gary Kurtz for Plaintiffs and Appellants. 

Richardson Harman Ober, Kelly G. Richardson and Brian D. Moreno for 

Defendants and Respondents.

________________________
2

INTRODUCTION

The Castle Green Homeowners Association notified Afshan and Rahim Multani 

that they were delinquent in paying their monthly assessment fees. After the Multanis 

disputed the debt, the Association conducted a nonjudicial foreclosure sale of their 

condominium unit. The Multanis sued to set aside the foreclosure alleging irregularities 

in the sale notices and procedure. They further alleged that the Association and its agents 

had committed tortious acts during the foreclosure process.

The defendants filed a motion for summary judgment or adjudication arguing that 

the court should dismiss the foreclosure claims because plaintiffs had actual knowledge 

of the foreclosure proceedings and failed to exercise their post-sale right of redemption. 

The defendants also argued that plaintiffs‟ tort claims were untimely and predicated on 

privileged conduct related to the foreclosure process. The court granted the motion. 

We reverse the trial court‟s dismissal of plaintiffs‟ claims seeking to set aside the 

foreclosure sale, concluding that defendants failed to demonstrate that they notified the 

plaintiffs of their right of redemption as required by Code of Civil Procedure section 

729.050.

FACTUAL AND PROCEDURAL BACKGROUND

A. Summary of Plaintiffs’ Complaint 

1. Plaintiffs’ factual allegations

In January of 2010, plaintiffs Afshan and Rahim Multani filed a complaint against 

the Castle Green Homeowners Association (the Association) and numerous other parties 

arising from a foreclosure of the Multanis‟ condominium unit.1 The complaint alleged 

that, in 1998, plaintiffs had purchased a condominium unit in the “Castle Greens” 

building in Pasadena, California. Plaintiffs obtained financing to purchase the unit from 

Chase Bank, who later transferred the loan to Indymac Bank. 

 

1 This factual summary is predicated on the allegations in plaintiffs‟ second 

amended complaint, which was filed on June 28, 2010.
3

In 2005, Rahim Multani returned from an overseas trip and was informed by the 

Association and its agents, LB Property Management and SBS Lien Services, that he was 

delinquent in paying his homeowner assessment fees. Although Multani paid the 

delinquent fees, he received a letter from SBS in August of 2005 alleging that he still 

owed approximately $2,000 in fees and costs. Multani met with SBS and issued a 

payment of $743.16 that was never credited to his account. In October, Multani 

attempted to pay the Association his monthly assessment but was told that the account 

had been referred to SBS “for collection.” One month later, the Association, acting 

through SBS, recorded a notice of delinquent assessment against the property in the 

amount of $3,317, which consisted of $2,229 in unpaid assessments and an additional 

$1,087 in attorney‟s fees, costs, late fees and interest. 

Throughout 2006, Multani and the Association continued to “disput[e] the validity 

of the amount . . . owed . . .” In February of 2007, Multani received a notice of sale 

informing him that the Association “intended to enforce the lien created by the November 

. . . recording of the Notice of Assessment by selling the Subject Property on March 27, 

2007.” The Association alleged that Multani now owed almost $12,000 in assessment 

fees and costs. Although Multani disputed the Association‟s accounting, he agreed to 

pay the full amount and the Association released the assessment lien.

Shortly after the lien was released, Multani contacted the Association and 

“requested that his account be given . . . credit f[or] . . . previously non-credited 

payments.” Between April and July of 2007, Multani continued to make his “required 

monthly assessment payments, but was never given the credit due on the account.” In 

February of 2008, the Association recorded a second notice of delinquent assessment lien 

against the property and, in June, recorded a “Notice of Default and Lien.” Six months 

later, on December 5, 2008, the Association and its trustee, Witkin & Neal, “set a sale 

date of the property to take place on January 27, 2009.” Multani “sent a letter disputing 

the validity of the amount owed” and requested alternative dispute resolution. The 

Association did not respond.
4

On January 5, 2009, “Indymac [Bank], the lender and beneficiary of the senior 

deed of trust [on the condominium unit], mistakenly instructed their [sic] trustee to 

foreclose . . . on the property.” Plaintiffs immediately filed a wrongful foreclosure action 

and Indymac agreed to issue a notice of rescission of foreclosure, which was recorded on 

April 28, 2009. Plaintiffs contended that Indymac‟s actions had effectively 

“extinguish[ed] [the Association‟s] lien and its Notice of Trustee‟s Sale,” thereby 

requiring the Association to reinitiate the foreclosure process by recording a new lien. 

The Association, however, elected to proceed and directed Witkin & Neil to 

record the notice of trustee sale set for January 27, 2009. In May of 2009, Multani 

informed the president of the Association, Randy Banks, that he “ha[d] been trying for 

some time to correct and rectify what seemed an impossible task of getting a [sic] 

accurate accounting on Plaintiffs‟ account and getting the proper credits that were due.” 

Banks told Multani that he was unaware of the accounting discrepancies and would 

“provide assistance . . . with the outstanding issues regarding the [improper] Association 

assessments.” 

Despite these assurances, on May 21, 2009, the Association placed a notice on the 

door of the Multanis‟ condominium stating that they owed $13,640 for delinquent 

assessments and costs. Shortly after the notice was posted, the Multanis‟ tenants 

informed them that the locks on the condominium unit had been changed. When Multani 

arrived at Castle Green to investigate the matter, he was met by Banks, who said that he 

had contacted the police and that Multani would be arrested if he did not leave the 

premises. Although Multani informed the responding officers that he was the legal 

owner of the condominium, he was forced to leave the building. Between May and 

October of 2009, Banks and other Association members continued to “harass[] Plaintiffs‟ 

tenants,” causing them to vacate the condominium. 

On July 23, 2009, the Association conducted a foreclosure sale of the Multanis‟ 

condominium, which was purchased by ProValue Properties. Although the “property 

was estimated to be valued at approximately $400,000,” ProValue paid only $20,400, 

subject to Indymac Bank‟s $75,000 deed of trust. The Association and its trustee never 
5

notified the Multanis that the sale had been postponed from January 27 to July 23, nor did 

they provide any notice after the sale was completed.

In October of 2009, the Multanis signed a lease with new tenants who moved into 

the condominium. However, on November 19, the Multanis received a courtesy copy of 

an unlawful detainer complaint from the Los Angeles Superior Court stating that: (1) a 

nonjudicial foreclosure of the condominium had occurred on July 23, 2009; (2) although 

originally scheduled to occur on January 27, 2009, the Association‟s trustee had “from 

time to time postponed” the sale until July 23; and (3) a trustee deed of sale had been 

recorded on October 24, 2009, which was 90 days after the plaintiffs‟ “right to 

redemption” had expired. Prior to receiving the unlawful detainer complaint, the 

plaintiffs were unaware of the foreclosure sale. 

In November and December of 2009, ProValue repeatedly changed the locks on 

the condominium unit. Multani and his tenants had several disputes with ProValue, 

culminating in an altercation on December 17, 2009. Based on misrepresentations made 

by ProValue, the Pasadena police told Multani that he had to vacate the condominium by 

the end of the weekend or he would be arrested for trespassing. After being repeatedly 

harassed and threatened with arrest, Multani finally relinquished possession of the unit 

and elected to file a lawsuit against the Association, its agents – Witkin & Neal, SBS 

Lien Services and LB Property Management – and numerous other parties, including 

ProValue.

2. Summary of plaintiffs’ claims

The Multanis‟ complaint asserted numerous claims seeking to set aside the 

foreclosure, including: quiet title, wrongful foreclosure, rescission and declaratory relief. 

The Multanis alleged that the foreclosure was improper because the Association and its 

agents (collectively defendants) had failed to properly serve the notice of trustee sale or 

comply with other procedural requirements mandated under Civil Code section 2924, et 

seq. Plaintiffs also alleged that the defendants had failed to comply with “Civil Code 

section 1367 et seq.,” which imposes additional procedural requirements on nonjudicial 
6

foreclosures conducted by homeowner associations for delinquent assessment fees. More 

specifically, plaintiffs alleged that the defendants “failed to provide alternate dispute 

resolution as required by [Civil Code section 1367.4].” The Multanis further asserted 

that all of the defendants‟ foreclosure notices had been “effectively voided” when 

“Indymac Bank . . . conducted their non-judicial foreclosure sale of January 2009 and 

recorded the Deed Upon Sale.” 

In addition to the foreclosure claims, the complaint alleged several tort claims 

based on the defendants‟ actions during the foreclosure process. Plaintiffs asserted 

claims for fraud, breach of fiduciary duty and intentional infliction of emotional distress 

alleging that the defendants had: (1) “intentionally mixed up the accounting of Plaintiffs‟ 

dues, imposed unwarranted dues and other charges, and confused Plaintiffs as to what 

was actually going on by repeated filings of notices, liens, and releases of liens by 

Defendants”; (2) “intentionally did not properly credit Plaintiffs‟ account so as to further 

extract additional monies in the form of collections costs, attorneys fees and late 

penalties”; and (3) “conspired to conduct a [nonjudicial foreclosure] sale without any 

notice to prevent Plaintiffs from opposing such sale.” 

The complaint also asserted claims for interference with contractual relations and 

interference with prospective economic advantage, which were predicated on the 

defendants‟ harassment of the plaintiff‟s condominium tenants. The complaint listed 

numerous additional statutory claims based on similar conduct, including violation of the 

Unruh Civil Rights Act (Civ. Code, §§ 51 et seq.), violation of the Fair Debt Collection 

Practices Act (Civ. Code, §§ 1788 et seq.), violation of the federal Racketeer Influence 

and Corrupt Organization Act (18 U.S.C §§ 1961 et seq.) (RICO) and unfair business 

practices. 
7

B. Defendants’ Motion for Summary Judgment or Summary Adjudication 

1. Defendants’ motion and supporting evidence

a. Summary of motion for summary judgment or adjudication

In June of 2011, the Association and its agents filed a motion for summary 

judgment or, alternatively, summary adjudication. First, defendants asserted that the 

undisputed evidence showed the Multanis had “violated the „tender rule‟ by failing to 

tender the full amount before the foreclosure sale.” Second, defendants argued that they 

had provided evidence demonstrating substantial compliance with all statutory notice 

requirements. Third, defendants contended that plaintiffs were not harmed by any 

alleged procedural irregularity because they had actual notice that the foreclosure sale 

was scheduled to occur on January 27, 2009. Fourth, defendants argued that, pursuant to 

Civil Code section 1058.5, Indymac Bank‟s rescinded January 5th foreclosure had no 

effect on the Association‟s foreclosure.2

As to plaintiffs‟ tort claims, the defendants argued that all of the conduct alleged 

in the complaint was related to the “processing of [a] . . . foreclosure” and was therefore 

“covered by the Civil Code Section 47(b) absolute privilege.” The Association also 

argued that the allegations in the complaint demonstrated that plaintiffs‟ interference 

claims were time barred. 

The Association‟s agents, Witkin & Neil and LB Management, separately argued 

that all of the tort claims asserted against them should be dismissed because they were 

entitled to qualified immunity under Civil Code section 2924, subdivision (b) and 

defendants had “failed to articulate the alleged bad acts committed by [them].” 

b. Summary of evidence filed in support of defendants’ motion

In support of their motion, the defendants submitted a declaration from the chief 

operating officer of Witkin & Neal summarizing the actions the trustee had taken during 

 

2 Civil Code section 1058.5, subdivision (b) states, in relevant part: “Where a 

trustee‟s deed is invalidated by a pending bankruptcy or otherwise, recordation of a 

notice of rescission of the trustee‟s deed . . . shall restore the condition of record title to 

the real property described in the trustee‟s deed and the existence and priority of all 

lienholders to the status quo prior to the recordation of the trustee‟s deed upon sale . . . .” 
8

the foreclosure proceedings. According to the declaration, on April 21, 2008, Witkin & 

Neal mailed the plaintiffs a “pre-notice” of default letter informing them that a notice of 

delinquent assessment had been recorded against the property and that the current amount 

due on the account was $4,206.40. The letter further stated that the plaintiffs had the 

right to “dispute the assessment debt by submitting a written request for dispute 

resolution.” A declaration of mailing indicated that the letter was sent to the Multanis‟ 

condominium unit and a Pasadena post office box numbered “82341.” 

The declaration also stated that, on June 23, 2008, Witkin & Neal mailed the 

plaintiffs a notice of default and election to sell stating that the amount currently due 

totaled $5,494.73 and would continue to “increase until [the] account bec[a]me current.” 

A declaration of mailing indicated that the notice was sent to the same two addresses as 

the “pre-notice” letter and to a second Pasadena post office box numbered “92341.” On 

January 9, 2009, Witkin & Neal sent the plaintiffs a notice of trustee‟s sale informing 

them that: (1) the sale was scheduled to occur on January 27, 2009; (2) the total unpaid 

balance was currently $10,267.62; and (3) the foreclosure sale was subject to a 90-day 

redemption period during which the owners could reclaim the property. A declaration of 

mailing indicated that the notice was sent to the same three addresses as the notice of 

default. 

The declaration further alleged that, “at the time and place fixed in the Notice of 

Trustee‟s Sale, [Witkin & Neal] did, by public announcement, and in a manner provided 

by law, postpone the sale date from time to time thereafter until July 23, 2009, when 

[Witkin & Neal] sold the Subject unit to ProValue Properties . . . for the sum of $20,200.” 

On July 31, 2009, defendants recorded a certificate of sale confirming that that the 

property was sold to ProValue and that the sale was subject to a 90-day “right of 

redemption.” According to the declaration, plaintiffs “made no attempt to tender the full 

amount before the foreclosure sale date” and “failed to redeem the Subject Property 

during the 90-day right of redemption period.” At the expiration of the 90-day 

redemption period, Witkin & Neal recorded a Trustee‟s Deed Upon Sale, dated 

November 6, 2009. 
9

The defendants also submitted excerpts from Rahim Multani‟s deposition in which 

he admitted that he stopped paying his assessment fees because he “felt that [a] claim of 

overpayment was not being handled correctly.” According to Multani, “no one gave 

[him] a correct accounting or breakdown of what the actual outstanding amount was 

owed.” Multani alleged that, in 2008, he had tried to pay the amount that he believed he 

owed but the Association rejected his payments. Thereafter, Multani made a “conscious 

decision” not to pay the “entire asserted balance” because he believed it was incorrect 

and was “always a moving target.” Multani also testified that, prior to December 16, 

2009, he was unaware that the Association had actually held a foreclosure sale. 

2. Plaintiffs’ opposition and supporting documentation

On August 10, 2011, plaintiffs submitted an opposition arguing that there were 

disputed issues of material fact as to whether the defendants had complied with all of the 

mandated procedural requirements. Plaintiffs argued, in relevant part, that: (1) 

“[d]efendants failed to provide notice to Plaintiffs for the secret sale [that occurred on 

July 23, 2009]”; (2) defendant failed to respond to Rahim Multani‟s letter dated 

December 2008, in which he specifically requested alternative dispute resolution; and (3) 

Indymac‟s subsequently rescinded foreclosure “extinguished” any prior notices the 

Association had issued in relation to their own foreclosure. The plaintiffs also argued 

that they were excused from complying with the tender rule because they had disputed 

“the validity of the underlying debt.” 

As to the tort claims, plaintiffs asserted that their complaint alleged numerous 

forms of non-communicative conduct that were not privileged under Civil Code section 

47 subdivision (b), including allegations that the defendants had unlawfully harassed 

Multani and his tenants and repeatedly changed the locks on the condominium unit.

In support of their opposition, plaintiffs submitted a 14-page declaration from 

Rahim Multani that contained a detailed discussion of the accounting dispute that 

preceded the Association‟s recording of the delinquency lien. Multani asserted that, in 

June of 2007, he paid the Association almost $12,000 to resolve a prior payment dispute 
10

that had begun in 2005, but that the defendants failed to properly credit him for two prior 

payments totaling approximately $1,500 and then began to intentionally inflate their 

monetary claims. Multani alleged that, on December 22, 2008, he sent the Association 

board a letter in which he disputed the amount that he owed and requested alternate 

dispute resolution. The Association, however, never responded to the letter.

Multani‟s declaration admitted that he knew defendants had scheduled a 

foreclosure sale for January 27, 2009, but asserted that he was led to believe the sale had 

been cancelled. Multani explained that, one day prior to the scheduled sale date, his 

attorney informed Witkin & Neal that Indymac Bank had foreclosed on the property two 

weeks earlier. In response, Witkin & Neal allegedly stated “if that was the case, then 

there would be no sale taking place the next day.” According to Multani, Witkin & Neal 

never indicated that it might postpone the foreclosure sale, but then “surreptitious[ly]” 

sold the property to ProValue on July 23, 2009. Multani further stated that, after this 

“secret” sale occurred, the defendants failed to provide him a notice of his right to 

redemption as required under Code of Civil Procedure section 729.050.3

Multani also asserted that, during the foreclosure sale, the defendants committed 

numerous “criminal acts by changing the locks on the Subject property . . . ; calling the 

Pasadena Police Department on more than one occasion to attempt to prevent [him] from 

[entering the subject property]; improperly having [him] detained; and attempt[ing] to 

place [him] under citizen‟s arrest for trespassing . . .”4 

C. The trial court’s ruling 

At the hearing, the plaintiffs argued that defendants had sent many of the 

foreclosure notices to the wrong address. According to the plaintiffs‟ attorney, Rahim 

 

3 Unless otherwise noted, all further statutory citations and references are to the 

Code of Civil Procedure.

4 The defendants filed objections to numerous aspects of Rahim Multani‟s 

deposition. The record, however, does not indicate whether the court ruled on the 

objections, and defendants have not asserted there were any erroneous evidentiary 

rulings.
11

Multani‟s proper mailing address was post office box number 92341, but the defendants 

had sent several of the notices to post office box number 82341. Plaintiffs counsel 

further argued that the proper address had been on file with the Association but, “at some 

point[,] the homeowners association started sending it to the wrong P.O. box.” 

In response, defendants‟ attorney argued that they had submitted several 

recordation of mailings in support of their motion showing that most of the notices had in 

fact been sent to post office box 92341. Counsel also argued that it was irrelevant 

whether the defendants had mailed the notices to the correct address because plaintiffs 

had admitted they “had actual knowledge of the [foreclosure] process.” After the court 

informed the parties that it was going to take the matter under submission, the following 

exchange occurred:

PLAINTIFFS‟ COUNSEL: Your honor, can I just ask the court to take a look at 

[section] 729.050. 

COURT: And what is it? 

PLAINTIFFS‟ COUNSEL: That talks about the requirements. Their certificate of sale. 

COURT: Oh yeah, I‟m going to look at that. 

On August 23, 2011, the trial court filed an order granting judgment in favor of 

Witkin & Neal and LB Property Management and granting the Association judgment on 

twelve of the fifteen remaining claims pleaded against it.5 The court concluded that the 

defendants were entitled to judgment on each of the four claims seeking to set aside the 

foreclosure because plaintiffs had admitted that they “failed to tender the amount of the 

debt prior to the sale or exercise [their] right[s] of redemption after the sale.”6 

 

5 The record indicates that, several months prior to the hearing on the motion for 

summary judgment or adjudication, the trial court had sustained a demurrer to plaintiffs‟ 

claims alleging violations of the Fair Debt Collection Practices Act and RICO. 

Appellants do not challenge that ruling.

6 Plaintiffs sought to set aside the foreclosure in four separate claims: declaratory 

relief, quiet title, wrongful foreclosure and rescission. We refer collectively to these four 

claims as the “foreclosure claims” or as “claims seeking to set aside the foreclosure.” 
12

In addition, the court concluded that the following evidence demonstrated that 

plaintiffs were not “prejudice[ed]” by any “procedural irregularity” in the foreclosure 

proceedings: (1) prior to recording the notice of delinquent assessment, the Association 

sent plaintiffs a letter advising them of their right to alternative dispute resolution; (2) 

Witkin & Neal‟s declaration demonstrated that defendants had properly complied with all 

statutory requirements when postponing the foreclosure sale from January 27, 2009 to 

July 23; 2009; and (3) plaintiffs admitted they had “actual knowledge of the foreclosure 

proceedings” and, “[d]espite such knowledge, [had] failed to exercise their 90-day 

statutory right of redemption.” 

The trial court also concluded that the defendants‟ evidence showed that four 

notices had been sent to the plaintiffs‟ condominium unit and post office box 82341: (1) a 

notice to pay or lien, dated December 27, 2007; (2) a notice of delinquent assessment 

liens, which had been sent on February 28, 2008 and again on April 21, 2008; (3) a notice 

of default and election to sell, dated June 13, 2008; and (4) a notice of trustee‟s sale, 

dated October 31, 2009. The latter two items were also sent to post office box 92341, 

which Multani had alleged to be his proper mailing address. The court further noted that 

plaintiffs had never specifically alleged that they did not receive any of these four items. 

On the tort-based claims, the court ruled that the defendants were entitled to 

dismissal of the fifth cause of action (fraud), eighth cause of action (breach of fiduciary 

duty) ninth cause of action (intentional infliction of emotional distress) and the eighteenth 

cause of action (unfair business practices) because each of those claims was predicated 

on “actions . . . subject to immunities set forth in [Civil Code sections] 47 and 2924(b).” 

In addition, the court ruled that plaintiffs‟ thirteenth through sixteenth claims, which 

alleged interference with contractual relations and prospective economic advantage, were 

“time-barred.” 

The court entered judgment in favor of Witkin & Neal and LB Property 

Management on September 12, 2011. Three claims, however, remained pending against 

 

Plaintiffs also pleaded a claim for cancellation of deed against ProValue, which is not a 

party to this appeal. 
13

the Association: violation of the Unruh Civil Rights Act, forcible detainer and a request 

for an accounting. 

On September 23, the Association moved for judgment on the pleadings seeking 

dismissal “of these remaining claims . . . such that judgment [may be] entered in favor of 

the Association.” The trial court granted the motion on October 19, 2011 and entered a 

final judgment in favor of the Association on November 9, 2011. Plaintiffs filed a timely 

appeal of the trial court‟s judgment and order granting the defendants‟ motion for 

summary judgment or adjudication.7

DISCUSSION

A. Standard of Review

“„The standard for deciding a summary judgment motion is well-established, as is 

the standard of review on appeal.‟ [Citation.] „A defendant moving for summary 

judgment has the burden of producing evidence showing that one or more elements of the 

plaintiff‟s cause of action cannot be established, or that there is a complete defense to that 

cause of action. [Citation.] The burden then shifts to the plaintiff to produce specific 

facts showing a triable issue as to the cause of action or the defense. [Citations.] Despite 

the shifting burdens of production, the defendant, as the moving party, always bears the 

ultimate burden of persuasion as to whether summary judgment is warranted. 

[Citations.]‟ [Citation.].” (Hypertouch, Inc. v. ValueClick, Inc. (2011) 192 Cal.App.4th 

805, 817 (Hypertouch).)

“„On appeal, we review de novo an order granting summary judgment. [Citation.] 

The trial court must grant a summary judgment motion when the evidence shows that 

there is no triable issue of material fact and the moving party is entitled to judgment as a 

 

7 Plaintiffs‟ notice of appeal and portions of their appellate brief also allude to the 

trial court‟s order granting the Association‟s motion for judgment on the pleadings. As 

discussed in more detail below, however, the brief contains insufficient legal analysis of 

any of the three claims dismissed in that order. Plaintiffs have therefore abandoned any 

claim of error regarding the trial court‟s order granting defendants‟ motion for judgment 

on the pleadings. (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6 (Reyes).) 
14

matter of law. [Citations.] In making this determination, courts view the evidence, 

including all reasonable inferences supported by that evidence, in the light most favorable 

to the nonmoving party. [Citations.]‟ [Citation.]” (Hypertouch, supra, 192 Cal.App.4th 

at p. 818.) “The same standards apply to motions for summary adjudication.” (Id. at 

p. 817, fn. 3.)

B. Defendants Failed to Satisfy Their Initial Burden of Production on 

Plaintiffs’ Foreclosure Claims 

The plaintiffs argue that the trial court erred in dismissing each of their claims 

seeking to set aside the foreclosure sale because there are triable issues of fact as to 

whether defendants complied with numerous procedures required under the Civil Code 

and the Code of Civil Procedure. We reverse the trial court‟s dismissal of the foreclosure 

claims, concluding that defendants failed to demonstrate that they notified plaintiffs of 

their right to redemption or the applicable redemption period as required under section 

729.050.8

1. The post-sale right to redemption in nonjudicial foreclosures by a 

homeowner association for delinquent assessment fees

Special procedures govern nonjudicial foreclosures initiated by a homeowner

association for the collection of delinquent assessment fees. Under the Davis-Stirling 

Common Interest Development Act (see Civ. Code, § 1350 et seq.) (the Act), which 

governs common interest developments (CID) in California,9the amount of any unpaid 

association assessment, plus the reasonable costs of collection, late charges, and interest, 

constitutes a “debt of the owner of the separate interest.” (Civ. Code, § 1367.1, subd. (a); 

Civ. Code, § 1366, subds. (e)(1)-(3).) After complying with various notice requirements 

 

8 The plaintiffs raise numerous additional arguments as to why we should reverse 

the trial court‟s dismissal of their foreclosure claims. Because we reverse the dismissal 

of those claims based on defendants‟ failure to provide evidence demonstrating 

compliance with section 729.050, we need not address plaintiffs‟ additional arguments.

9 The parties do not dispute that the Multanis‟ condominium unit was part of a 

common interest development governed by the Act. 
15

(see Civ. Code, § 1367.1, subds. (a)-(c)), an association may record a lien of delinquent 

assessment against the property (see Civ. Code, § 1367.1, subd. (e)) and then enforce the 

lien through a nonjudicial foreclosure “conducted in accordance with [Civil Code] 

[s]ections 2924, 2924b and 2924c applicable to the exercise of powers of sale in 

mortgages and deeds of trust.” (Civ. Code, § 1367.1, subd. (g).) 

As a general rule, the debtor in a nonjudicial foreclosure may avoid the loss of the 

property by “pay[ing] all amounts due at any time prior to the sale . . .” (Knapp v. 

Doherty (2004) 123 Cal.App.4th 76, 86-87 (Knapp).) However, “[o]nce the sale is 

completed, the trustor has no further rights of redemption.” (Id. at p. 831.) Prior to 2006, 

these same rules applied to nonjudicial foreclosures by an association for delinquent 

assessments. 

In 2005, however, the Legislature adopted S.B. 137 (2005 Stats., c. 452 (S.B. 

137), § 5), which placed numerous limitations on an association‟s ability to utilize 

foreclosure as a means to collect assessments. The legislative history indicates that S.B. 

137 was intended to “institute . . . important procedural . . . requirements to protect CID 

homeowners” from the “extreme hammer of non-judicial foreclosure in order to collect 

relatively small amounts of overdue assessments.” (California Bill Analysis, S.B. 137 

Assembly Fl. (2005-2006 Reg. Sess.) September 1, 2005.) Supporters of the Bill argued 

that there had been “too many instances” in which “CID associations [had] . . . initiated 

[foreclosures] for relatively small amounts . . ., [and then] sold [the property] for an alltoo-often shockingly small fraction of its actual value.” (Ibid.) The bill sought to avoid 

similar outcomes in the future by providing “CID homeowners” additional “due process 

protections.” (Ibid.)

S.B. 137 added Civil Code section 1367.4, which prohibits (with certain 

exceptions) the use of foreclosure to collect delinquent assessments that total less than 

$1,800. (Civ. Code, § 1367.4, subd. (b).) Although the statute permits an association to 

“use . . . nonjudicial foreclosure” for delinquent assessments exceeding $1,800 (see Civ. 

Code, § 1367.4, subd. (c)), section 1367.4, subdivision (c)(4) requires that the association 

provide CID owners a right to redeem the property within 90 days after the sale: “A 
16

nonjudicial foreclosure by an association to collect upon a debt for delinquent 

assessments shall be subject to a right of redemption. The redemption period within 

which the separate interest may be redeemed from a foreclosure sale under this paragraph 

ends 90 days after the sale. . . .” A similar provision appears in section 729.035, which 

was also added as part of S.B. 137: “Notwithstanding any provision of law to the 

contrary, the sale of a separate interest in a common interest development is subject to the 

right of redemption within 90 days after the sale if the sale arises from a foreclosure by 

the association of a common interest development pursuant to subdivision (g) of Section 

1367.1 of the Civil Code, subject to the conditions of Section 1367.4 of the Civil Code.”10

The redemption process, which is normally available only in the context of 

judicial foreclosure, is governed by requirements set forth in the Code of Civil 

Procedure.11 Section 729.040 mandates that, following a foreclosure subject to a right of 

redemption, the trustee must deliver a “certificate of sale” to the purchaser and record a 

duplicate of the certificate in the office of the county recorder. Under section 729.050, 

 

10 Civil Code section 1367.4 imposes various other conditions on an association‟s 

use of nonjudicial foreclosure. First, “prior to initiating the foreclosure,” the association 

must “offer the owner and, if so requested by the owner, participate in” various, 

enumerated forms of alternative dispute resolution, including binding arbitration. (Civ. 

Code, § 1367.4, subd. (c)(1).) Second, the statute requires that the decision to initiate 

foreclosure must be made by the association‟s board of directors in an open vote. 

(Civ. Code, § 1367.4, subd. (c)(2).) Third, the board must provide the owner notice of its 

decision. (Civ. Code, § 1367.4, subd. (c)(3).)

11 A judicial foreclosure involves significant “court oversight” (Arabia v. BAC Home 

Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 470) and provides the creditor and the 

debtor certain rights that are generally not available in nonjudicial foreclosure: “In a 

judicial foreclosure, if the property is sold for less than the amount of the outstanding 

indebtedness, the creditor may seek a deficiency judgment, or the difference between the 

amount of the indebtedness and the fair market value of the property, as determined by a 

court, at the time of the sale. [Citation.] However, the debtor has a statutory right of 

redemption . . . for a period of time after foreclosure. [Citation.]” (Alliance Mortgage 

Co. v. Rothwell (1995) 10 Cal.4th 1226, 1236 (Alliance).) By contrast, in a nonjudicial 

foreclosure, there “is no oversight by a court, . . . the debtor has no postsale right of 

redemption[,] . . . and the creditor may not seek a deficiency judgment.” (National 

Enterprises, Inc. v. Woods (2001) 94 Cal.App.4th 1217, 1226.)
17

the trustee must also promptly notify the debtor of his redemption rights: “If property is 

sold subject to the right of redemption, promptly after the sale the levying officer or 

trustee who conducted the sale shall serve notice of the right of redemption on the 

judgment debtor. Service shall be made personally or by mail. The notice of the right of 

redemption shall indicate the applicable redemption period.”

Sections 729.060-729.090 describe how the debtor may redeem his or her property 

following the foreclosure sale. “[S]ection 729.060, subdivision (a) requires „[a] person 

who seeks to redeem the property [to] deposit the redemption price with the levying 

officer who conducted the sale before the expiration of the redemption period.‟ 

Subdivision (b) of this statute defines the redemption price as „the total of the following 

amounts . . . . [¶] (1) The purchase price at the sale. [¶] (2) The amount of any 

assessments or taxes and reasonable amounts for fire insurance, maintenance, upkeep, 

and repair of improvements on the property. [¶] (3) Any amount paid by the purchaser on 

a prior obligation secured by the property to the extent that the payment was necessary 

for the protection of the purchaser‟s interest. [¶] (4) Interest on the amounts described in 

paragraphs (1), (2), and (3) . . . .‟ In addition, subdivision (c) of . . . section 729.060 

authorizes an offset to the redeeming party for „[r]ents and profits from the property 

paid to the purchaser or the value of the use and occupation of the property to the 

purchaser . . . .‟” (Barry v. OC Residential Properties (2011) 194 Cal.App.4th 861, 866 

(Barry).)

Section 729.070 establishes “a procedure allowing one „seeking to redeem the 

property [who] disagree[s with the purchaser‟s claimed] redemption price‟ to petition „the 

court for an order determining the redemption price . . .‟ [Citation.]” (Barry, supra, 194 

Cal.App.4th at pp. 866-867.) If the debtor does not deposit the redemption price or 

otherwise file a petition challenging the redemption price within the applicable 

redemption period, the trustee must deliver an executed trustee‟s deed to the purchaser 

and provide the debtor notice that the trustee sale has occurred. (§ 729.080, subd. (a).) 

If, however, the debtor tenders “the redemption price determined by court order or agreed 

upon by the purchaser . . . the effect of the sale is terminated and the person who 
18

redeemed the property is restored to the estate therein sold at the sale.” (§ 729.080, subd. 

(b).)

2. Defendants failed to make a prima facie showing that plaintiffs cannot 

establish the elements necessary to set aside the foreclosure sale

Plaintiffs contend that the trial court erred in dismissing their foreclosure claims 

because the defendants failed to notify them of their right of redemption as required 

under section 729.050.

a. Defendants have waived any argument regarding plaintiffs’ failure to 

plead a violation of section 729.050

Before addressing the merits of this argument, we assess defendants‟ contention 

that we should “disregard[]” this “alleged [procedural] violation” because it “is outside 

the scope of the Second Amended Complaint.” 

Generally, “[a] defendant moving for summary judgment need address only the 

issues raised by the complaint; the plaintiff cannot bring up new, unpleaded issues in his 

or her opposing papers. [Citation.]” (Government Employees Ins. Co. v. Superior Court

(2000) 79 Cal.App.4th 95, 98, fn. 4.) Defendants assert that, in this case, plaintiffs‟ 

“allegation that [the Association and its trustee] somehow violated . . . [s]ection 729.050 . 

. . . does not exist in the [second amended complaint],” which prohibits them from raising 

the issue on appeal. 

Plaintiffs‟ complaint, however, alleges that the defendants “conducted the 

foreclosure proceedings unlawfully in that they did not follow the California nonjudicial foreclosure sale procedures prescribed by . . . Civil Code § 2924 and 1367.” 

The complaint also alleges violation of “§ 1367 et seq.” As discussed above, Civil 

Code section 1367.4, subdivision (c)(4) requires the association to provide CID owners a 

90-day period to redeem the property, which triggers the trustee‟s notice requirements 

under section 729.050. 

In any event, defendants have forfeited this issue. When a plaintiff opposes a 

motion for summary judgment or adjudication by raising an “unpleaded issue,” the 
19

defendant‟s failure to “object to [the] injection of [the] unpleaded theory . . . [constitutes 

a] waive[r].” (Knapp, supra, 123 Cal.App.4th at p. 90; see also Stalnaker v. Boeing Co. 

(1986) 186 Cal.App.3d 1291, 1302.) The purpose of this objection requirement is to 

ensure that, if the objection is sustained, the plaintiff has an opportunity to request leave 

to amend the pleading to raise the unpleaded theory. (See Stalnaker, supra, 186 

Cal.App.3d at p. 1302.)

In the trial court, plaintiffs‟ opposition papers included a declaration from Rahim 

Multani in which he alleged that defendants did not comply with section 729.050‟s notice 

requirements. Although the defendants objected to numerous statements in Multani‟s 

declaration on the ground that they introduced issues outside the pleadings, defendants 

did not raise this objection in regards to Multani‟s statements about section 729.050. 

Moreover, during oral argument, the plaintiffs‟ attorney specifically requested that the 

trial court review section 729.050 and determine whether defendants had demonstrated 

compliance with its requirements. The defendants did not object to this request and the 

trial court agreed that it would consider the issue. Under these circumstances, “we deem 

waived defendants‟ objection to plaintiffs‟ . . . mode of pleading and argument.” 

(Stalnaker, supra, 186 Cal.App.3d at p. 1302, fn. 7 [finding waiver where “the newly 

introduced theory was . . . presented to the trial court, without defendants‟ objection”].)

b. Defendants failed to make a prima facie showing that they were entitled 

to dismissal of plaintiffs’ claims seeking to set aside the foreclosure

As the party moving for summary adjudication of plaintiffs‟ foreclosure claims, 

the defendants had the “„initial burden of production to make a prima facie showing” that 

“one or more elements of the plaintiff‟s cause of action cannot be established.” 

(Hypertouch, supra, 192 Cal.App.4th at p. 838.) 

“The rights and powers of trustees in nonjudicial foreclosure proceedings have 

long been regarded as strictly limited and defined by the contract of the parties and the 

statutes.” (I.E. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 287.) “Because 

nonjudicial foreclosure is a „drastic sanction‟ and a „draconian remedy‟ [citation], „“[t]he 
20

statutory requirements must be strictly complied with, and a trustee‟s sale based on 

statutorily deficient notice of default is invalid.”‟ [Citations].” (Ung v. Koehler (2005) 

135 Cal.App.4th 186, 202-203; see also Holland v. Pendleton Mortg. Co. (1943) 61 

Cal.App.2d 570, 573-574 [foreclosure sale invalid where trustee fails to comply with 

statutory notice procedures]; 4 Miller & Starr, Cal. Real Est. (3d ed. 2011) § 10:210 [“A 

sale of the collateral by an exercise of the power of sale in violation of the statutory 

limitations on the power is invalid”].) 

To set aside a foreclosure, a plaintiff must generally establish three elements: “(1) 

the trustee . . . 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 

. . . was prejudiced or harmed; and (3) in cases where the trustor . . . challenges the sale, 

the trustor . . . tendered the amount of the secured indebtedness or was excused from 

tendering.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104 (Lona).) The 

defendants argue that their moving papers made a prima facie showing that plaintiffs 

cannot establish any of these three elements. 

i. Defendants introduced no evidence that they complied with section 729.050 

“Justifications . . . which satisfy the first element [to set aside a foreclosure] 

include the trustee‟s . . . failure to comply with the statutory procedural requirements for 

the notice or conduct of the sale.” (Lona, supra, 202 Cal.App.4th at p. 104.) Although 

there is generally no “postsale right of redemption” in nonjudicial foreclosure 

proceedings (Alliance, supra, 10 Cal.4th at p. 1236), a nonjudicial foreclosure by an 

association for delinquent assessments is “subject to the right of redemption within 90 

days after the sale.” (§ 729.035; see also Civ. Code, § 1367.4, subd. (c)(4).) As a result, 

the trustee who conducts the sale must “promptly . . . serve notice of the right of 

redemption on the judgment debtor,” which “shall indicate the applicable redemption 

period.” (§ 729.050.)

Defendants have failed to provide any evidence that they complied with this 

statutory requirement. In support of their motion for summary adjudication, the 
21

defendants submitted evidence that they mailed the Multanis the following notices 

regarding the foreclosure proceedings: (1) a “pre-notice of Default letter,” mailed April 

21, 2008; (2) a “Notice of Default and Election to Sell,” mailed June 23, 2008; (3) a 

“Notice of Board Decision to Foreclose and Notice of Default,” mailed October 7, 2008; 

and (4) a “Notice of Trustee‟s Sale,” mailed January 9, 2009. The defendants also 

submitted evidence that, following the foreclosure sale, the trustee recorded a 

“Certification of Sale” on July 31, 2009 and then recorded the “Trustee‟s Deed Upon sale 

. . . [a]fter the 90-day right of redemption period expired.” 

Defendants, however, have cited no evidence in the record – and we have located 

none – demonstrating that it mailed the Multanis a notice of right to redemption as 

required under section 729.050. Instead, defendants contend that they had no burden to 

present evidence that they complied with section 729.050 because “[a] nonjudicial 

foreclosure sale is accompanied by a common law presumption that it „was conducted 

regularly and fairly.‟ [Citations.]” (Lona, supra, 202 Cal.App.4th at p. 105.) Defendants 

appear to assert that this presumption was, standing alone, sufficient to “„to make a prima 

facie showing‟” (Hypertouch, supra, 192 Cal.App.4th at p. 839) that plaintiff could not 

demonstrate any procedural irregularity in the foreclosure proceedings. 

The defendants have not cited any authority indicating that this common law 

presumption of regularity applies to the postsale redemption procedures at issue here. All 

of the cases they cite applied the presumption in the context of standard nonjudicial 

foreclosures that were not subject to statutory redemption. Even if the common law 

presumption were to apply to redemption procedures, however, a defendant moving for 

summary adjudication of claims seeking to set aside a foreclosure may not discharge his 

or her initial burden of production by merely referencing the presumption. The 

presumption, which is rebuttable (see 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. 

(2001) 85 Cal.App.4th 1279, 1284), merely requires that the party “attacking the sale . . . 

[must] „plead[] and prove[] an improper procedure and resulting prejudice‟ [Citation.]” 

(Knapp, supra, 123 Cal.App.4th at p. 86, fn. 4.) Thus, the plaintiff has the burden to 
22

allege in its pleading that a prejudicial irregularity occurred and then to prove that 

allegation at trial. 

For the purposes of summary judgment or adjudication, however, defendants still 

must make a prima facie showing that plaintiffs could not prove that any irregularity 

occurred. This initial burden required defendants here to “present evidence” that they 

complied with the statutory procedures applicable to this foreclosure. (Hypertouch, 

supra, 192 Cal.App.4th at p. 838.) Their failure to do so means that they failed to 

“conclusively negate[]” the first element of plaintiffs‟ foreclosure claims. (Ibid.) 

ii. Defendants did not make a prima facie showing that plaintiffs 

suffered no harm from the procedural defect 

The second element necessary to set aside a foreclosure requires the plaintiff to 

show that he or she was “prejudiced or harmed” by defendants‟ failure to comply “with 

the procedural requirements for the foreclosure sale.” (See Lona, supra, 202 Cal.App.4th 

at p. 104 [“to challenge a sale successfully there must be evidence of a failure to comply 

with the procedural requirements for the foreclosure sale that caused prejudice to the 

person attacking the sale”].) 

Section 729.050‟s notification requirement serves two purposes. First, it ensures 

that the debtor is aware that the property may still be redeemed. Second, it informs the 

debtor the date on which his or her redemption rights expire. Presumably, a debtor who 

has not received such notice has been harmed or prejudiced by the fact that they were not 

informed of those rights. (See Residential Capital v. Cal-Western Reconveyance Corp. 

(2003) 108 Cal.App.4th 807, 822 (Residential Capital) [“The inquiry is whether . . . 

there is a . . . defect in the statutory procedure that is prejudicial to the interests of the 

trustor and claimants”].)

Defendants, however, contend that no such prejudice occurred here because 

plaintiffs were provided enough information to independently calculate when their 

redemption period was set to expire. In support, defendants cite evidence indicating that, 

prior to the foreclosure sale, they provided plaintiffs a statutorily-required notice of intent 
23

to sell stating that: (1) the foreclosure sale was scheduled to occur on January 27, 2009; 

and (2) the sale would be subject to a right of redemption that would end 90 days after the 

sale date. Defendants assert that, based on this information, plaintiffs could have 

determined when their right to redemption ended and therefore were not harmed by the 

trustee‟s failure to comply with section 729.050. 

For the purposes of this appeal, we assume that defendants did in fact make a 

prima facie showing that they properly notified plaintiffs that the foreclosure sale was 

originally scheduled to occur on January 27 and that the sale would be subject to a 90-day 

right of redemption.12 Such evidence, however, is insufficient to demonstrate that 

plaintiffs suffered no prejudice or harm from defendants‟ failure to comply with the 

notice requirements of section 729.050. Defendants‟ argument is predicated on the 

assumption that a debtor has an independent duty to calculate the applicable redemption 

period based on information received during the foreclosure process. Section 729.050, 

however, specifically relieves the debtor of any such burden by requiring the trustee to 

provide notice of the applicable redemption period promptly after the foreclosures sale. 

This post-sale notice requirement is of heightened importance where, as here, the 

trustee postponed the original sale date without individualized notice to the debtor. Civil 

Code section 2924g permits a trustee to postpone a foreclosure sale for up to a year by 

making a public announcement “at the time and place last appointed for sale. . . . No 

other notice of postponement need be given.” (Civ. Code, § 2924g, subd. (d).)13

Although the foreclosure in this case was originally scheduled for January 27, 2009, the 

defendants‟ moving papers state that “[a]t the time and place fixed in the [notice of sale, 

 

12 Plaintiffs argue that the notice of sale was ineffective because there is a triable 

issue of fact as to whether defendants sent it to the correct address. For the purpose of 

our analysis, however, we need not resolve that dispute.

13 The Civil Code has since been amended to require that, as of January 1, 2011, 

“whenever a sale is postponed for a period of at least 10 business days pursuant to 

Section 2924g, a mortgagee, beneficiary, or authorized agent shall provide written notice 

to a borrower regarding the new sale date and time, within five business days following 

the postponement.” (Civ. Code, § 2924, subd. (a)(5).) 
24

the trustee] did, by public announcement . . . postpone the sale date from time to time . . . 

until July 23.” Defendants provided no evidence that they gave plaintiffs any notice 

regarding the postponements beyond the public announcement requirements described in 

Civil Code section 2924g. Thus, without the section 729.050 notice, plaintiffs could have 

only determined their applicable redemption period by attending each of the scheduled 

sale dates or otherwise researching when, exactly, the sale occurred. Again, section 

729.050 relieved them of any such obligation.

Defendants‟ argument would also permit homeowner associations to ignore 

section 729.050 without consequence. The defendants were statutorily required to send 

the pre-sale notice that contained the information they now contend remedied any harm 

from their subsequent failure to comply with section 729.050. The Civil Code requires 

that, before conducting a foreclosure sale predicated on delinquent assessment fees, the 

association must provide a notice of sale that includes the date of the sale and a statement 

“that the property is being sold subject to the right of redemption.” (Civ. Code, 

§§ 1367.4, subd. (c)(4); 2924b, subd. (b) and 2924f.) Thus, defendants are essentially 

arguing that a trustee who complies with this pre-sale notice requirement need not 

comply with section 729.050‟s post-sale notice requirement. This argument is the 

antithesis of the statutory scheme, which imposes a duty to provide a pre-sale notice 

referencing the right to redemption and a post-sale notice stating the applicable 

redemption period. The Legislature plainly concluded that, for the purpose of protecting 

a CID owner‟s due process rights, both forms of notice are necessary.

The primary authority defendants cite in support of their assertion that plaintiffs 

cannot establish harm is Knapp, supra, 123 Cal.App.4th 76, which held that “a slight 

deviation from statutory notice requirements” does not always require a court to 

“invalidate a foreclosure sale, where the trustee otherwise complies fully with the Civil 

Code.” (Id. at p. 93.) The plaintiff in Knapp provided evidence that the defendant had 

served a notice of sale prematurely. Under the Civil Code, the trustee was required to 

comply with multiple timing requirements when serving the notice of sale: Civil Code 

section 2924 required the trustee to serve the notice no earlier than “„three months‟ 
25

following recordation of the notice of default” (id. at p. 92), while section 2924b required 

that the trustee serve “the notice at least 20 days prior to the sale.” (Id. at p. 88.) The 

court explained that the evidence showed the trustee “served the [s]ale [n]otice on . . . a 

date that was slightly less than three months after recordation of the [d]efault [n]otice,” 

but 29 days prior to the sale date. (Id. at p. 92.) “Thus, while the [s]ale [n]otice did not 

comply fully with the three-month requirement under section 2924, it provided more than 

the 20 days notice mandated under section 2924b . . .” (Ibid.)

The court ruled that, under such circumstances, the foreclosure need not be set 

aside, concluding: “[T]he slight procedural irregularity in the service of the [s]ale 

[n]otice did not cause any injury to [b]orrowers. They had notice of the original sale 

date; the trustee‟s sale did not go forward until almost one year after the date noticed. 

There was no prejudicial procedural irregularity.” (Knapp, supra, 123 Cal.App.4th at 

p. 94.) In the court‟s view, the “[b]orrowers‟ objection to the premature notice [wa]s, in 

effect, a criticism that the trustee provided too much notice of the sale. There [wa]s no 

evidence that they were prejudiced by the premature mailing of the notice. Given the fact 

that the trustee‟s sale did not occur until almost a year after service of the Sale Notice, it 

is difficult to imagine how Borrowers could claim any prejudice.” (Id. at p. 96.)

In reaching its holding, the court specifically differentiated prior decisions setting 

aside foreclosure sales in which the debtor had been denied a “„substantial statutory 

right‟” that was likely to result in prejudice. (Knapp, supra, 123 Cal.App.4th at p. 94.) 

According to the court, “no such substantial statutory right was abridged by trustee‟s 

premature mailing of the Sale Notice, which otherwise gave [b]orrowers adequate and 

timely notice of the trustee‟s sale.” (Ibid.)

The facts in Knapp bear little resemblances to the facts in this case. The 

defendants‟ failure to comply with section 729.050 was not “a slight deviation from 

statutory notice requirements.” (Knapp, supra, 123 Cal.App.4th at p. 93.) Defendants 

did not, as in Knapp, send a statutorily-required notice “slightly” prematurely; instead, 

the evidence suggests that they completely failed to send the notice required under 

section 729.050. Moreover, unlike in Knapp, defendants have provided no evidence that 
26

plaintiffs were not harmed by the procedural defect. Nothing in the defendants‟ moving 

papers demonstrates that, despite the lack of section 729.050 notice, plaintiffs were 

actually aware of the date on which their redemption rights were set to expire but elected 

not to redeem. At most, defendants have shown that plaintiffs might have been able to 

calculate when their redemption rights expired based on information that was provided in 

other statutorily-mandated pre-sale notices.

In sum, the defendants have failed to make a prima facie showing that their failure 

to comply with section 729.050 was not “prejudicial to the interests of the . . . claimants.” 

(Residential Capital, supra, 108 Cal.App.4th at p. 822.) Because the defendants have 

provided no evidence that plaintiffs were notified, or were otherwise aware of the actual

date on which their right to redemption expired, we cannot conclude that plaintiffs 

suffered no prejudice.14

iii. Defendants failed to establish that the tender rule precluded 

plaintiffs from seeking to set aside the foreclosure sale

The defendants argue that plaintiffs cannot satisfy the third element necessary to 

set aside a foreclosure sale, which requires a showing that “the trustor . . . tendered the 

amount of the secured indebtedness or was excused from tendering.” (Lona, supra, 202 

Cal.App.4th at p. 104.) Defendants assert that plaintiffs have admitted they never offered 

 

14 Defendants also argue that plaintiffs were not harmed by the trustee‟s failure to 

comply with section 729.050 because, shortly after the foreclosure sale, the trustee 

recorded a certificate of sale referencing the date of the sale and the 90 day redemption 

period. According to defendants, the trustee‟s recording of the certificate provided 

plaintiffs “constructive notice of the right to redemption.” This argument fails for the 

same reasons discussed above. First, the argument presumes that plaintiffs had a duty to 

monitor whether a certificate of sale was recorded against their property. The Legislature 

relieved CID owners of any such duty by requiring that the trustee provide notice of the 

redemption period promptly after the sale pursuant to section 729.050. Second, the 

trustee‟s act of recording a certificate of sale that included the sale date and a statement 

regarding the right to redemption was statutorily mandated under section 729.040. Thus, 

defendants argue that a trustee who complies with section 729.040‟s recording 

requirements need not comply with section 729.050‟s post-sale notice requirements. 

Such an outcome would be inconsistent with the legislative scheme.
27

to pay the full amount of the debt and are therefore precluded from challenging the 

foreclosure sale.

The tender requirement is rooted in the equitable nature of an action to set aside a 

nonjudicial foreclosure. “Because the action is in equity, a defaulted borrower who seeks 

to set aside a trustee‟s sale is required to do equity before the court will exercise its 

equitable powers. [Citation.] Consequently, as a condition precedent to an action by the 

borrower to set aside the trustee‟s sale on the ground that the sale is voidable because of 

irregularities in the sale notice or procedure, the borrower must offer to pay the full 

amount of the debt for which the property was security. [Citation.] „The rationale behind 

the rule is that if [the borrower] could not have redeemed the property had the sale 

procedures been proper, any irregularities in the sale did not result in damages to the 

[borrower].‟ [Citation.]” (Lona, supra, 202 Cal.App.4th at p. 112.) 

There are, however, several exceptions to the requirement. “First, if the 

borrower‟s action attacks the validity of the underlying debt, a tender is not required 

since it would constitute an affirmation of the debt. [Citation.] [¶] Second, a tender will 

not be required when the person who seeks to set aside the trustee‟s sale has a counterclaim or setoff against the beneficiary. In such cases, it is deemed that the tender and the 

counter claim offset one another, and if the offset is equal to or greater than the amount 

due, a tender is not required. [Citation.] [¶] Third, a tender may not be required where it 

would be inequitable to impose such a condition on the party challenging the sale 

[Citation.] . . . . [¶] Fourth, no tender will be required when the trustor is not required to 

rely on equity to attack the deed because the trustee‟s deed is void on its face. 

[Citation.]” (Lona, supra, 202 Cal.App.4th at pp. 112-113.) 

As discussed above, a nonjudicial foreclosure by an association predicated on 

delinquent assessment fees is unique in that the CID owner is entitled to a post-sale right 

of redemption. (See Civ. Code, § 1367.4, subd. (c)(4); § 729.035.) Under these 

redemption rights, the property owner is entitled to receive notice of the applicable 

redemption period and then pay the redemption price or contest the redemption price 

through a judicial proceeding. (See §§ 729.050 -729.080.) Therefore, unlike most forms 
28

of nonjudicial foreclosure, CID owners are provided an opportunity to avoid the loss of 

their property either by tendering the amount of the debt prior to the sale or paying the 

applicable redemption price – which consists of the purchase price and various other 

costs – after the sale. 

Defendants assume, without discussion, that the tender requirement applies where, 

as here, the debtor is seeking to set aside a nonjudicial foreclosure subject to a statutory, 

post-sale right of redemption. Although we have found no authority analyzing the issue, 

we conclude that a debtor is properly excused from complying with the tender 

requirement where the nonjudicial foreclosure is subject to a statutory right of redemption 

and the trustee has failed to provide the notice required under section 729.050.

Applying the tender rule under such circumstances would be inconsistent with the 

statutory scheme. CID owners who were denied their statutory right to be notified of the 

redemption process could only challenge the denial of that right by offering to tender the 

amount of the secured debt. In other words, CID owners could only challenge an 

association‟s failure to provide notice of the redemption process by offering to forego the 

redemption process. Such an outcome would be neither logical nor equitable.

Defendants argue that even if plaintiffs were not required to tender the amount of 

the secured debt as a condition of bringing their suit, they were nonetheless required to 

tender the redemption price, thereby ensuring that they could have redeemed the property 

had section 729.050 been properly followed. Defendants‟ argument overlooks the fact 

that, under the statutory framework governing redemption, if the debtor and the purchaser 

disagree on the proper redemption price, the debtor may seek a judicial determination of 

the appropriate price. (See § 729.070.) Under defendants‟ theory, however, CID owners 

would have to affirm the purchaser‟s claimed redemption price through an offer of 

tender – thereby effectively waiving their right to seek a judicial determination of the 

redemption price – as a condition of challenging an association‟s failure to comply with 

section 729.050. Given that the tender rule is inapplicable where the debtor‟s action 

attacks the validity of the underlying debt, the rule should not be applied in a manner that 
29

would require a CID owner who never received notice of his redemption rights to forego 

any challenge to the redemption price. 

Because defendants failed to make a prima facie showing that plaintiffs cannot 

establish any of the three elements necessary to set aside the foreclosure, it is not entitled 

to summary adjudication on plaintiffs second, third, sixth or seventh causes of action. 

C. Plaintiffs Have Forfeited Any Claim of Error Regarding Additional Causes 

of Action Pleaded in the Second Amended Complaint

In addition to their four claims seeking to set aside the foreclosure, plaintiffs‟ 

second amended complaint asserts thirteen tort and statutory-based claims arising from 

various acts that defendants allegedly committed during the foreclosure process. The 

trial court dismissed all thirteen of these additional claims at various points in the 

proceedings. The court sustained a demurrer without leave to amend on two of the 

claims – violation of the Fair Debt Collection Practices Act and RICO – prior to the 

hearing on the motion for summary adjudication. The trial court‟s order granting 

defendants‟ motion for summary adjudication dismissed five of the claims – fraud, 

breach of fiduciary duty, intentional infliction of emotional distress and unfair business 

practices – on the basis that each claim was predicated on “actions . . . subject to 

immunities set forth in [Civil Code sections] 47 and 2924(b).” The summary 

adjudication order also dismissed plaintiffs‟ four interference claims, concluding that 

they were “time barred.” Finally, the court dismissed the remaining three claims for 

violation of the Unruh Act, accounting and forcible detainer pursuant to an order granting 

defendants‟ motion for judgment on the pleadings.

Although a large majority of plaintiffs‟ 60-page brief argues that we should 

reinstate their foreclosure claims because there is evidence defendants committed various 

procedural irregularities, the final five pages of the brief asserts that their “claims for 

wrongful closure are not based on a communicative act” and are therefore not precluded 

under the “litigation privilege.” (See Civ. Code, § 47, subd. (b).) In the course of this 

discussion, plaintiffs allude to various other claims in their complaint. Specifically, 
30

plaintiffs assert that Civil Code “[s]ection 47(b)(2), does not bar Plaintiffs‟ cause of 

action for intentional interference with contractual relations because it is based upon an 

alleged tortious course of conduct. While the isolated act of filing a notice of lien was 

communicative, it was only one act in the overall course of conduct alleged in 

Appellant‟s eight through twentieth causes of action.” This five-page section of the brief 

does not include a single citation to the record. 

For the purposes of this appeal, we need not assess whether the litigation privilege 

applies to plaintiffs‟ claims seeking to set aside the foreclosure sale. The trial court‟s 

order granting the motion for summary adjudication demonstrates that it dismissed those 

particular claims based on its finding that that plaintiffs had not complied with the tender 

rule and had not been prejudiced by any “procedural irregularity,” not because the claims 

were precluded under the litigation privilege. For the reasons discussed above, we have 

reversed the trial court‟s dismissal of those claims. 

As to the remaining causes of action set forth in the second amended complaint, 

plaintiffs have forfeited any claim of error. “[I]t is appellant‟s burden to affirmatively 

show error. [Citation.] To demonstrate error, appellant must present meaningful legal 

analysis supported by citations to authority and citations to facts in the record that support 

the claim of error. [Citations.]” (In re S.C. (2006) 138 Cal.App.4th 396, 408 (S.C.).) 

“Mere suggestions of error without supporting argument or authority other than general 

abstract principles do not properly present grounds for appellate review.” (Department of 

Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 

Cal.App.4th 1066, 1078.) “Hence, conclusory claims of error will fail.” (S.C., supra,

138 Cal.App.4th at p. 408.)

Plaintiffs‟ conclusory assertions that the litigation privilege does not apply to their 

“cause of action for intentional interference with contractual relations” or their “eight 

through twentieth causes of action”15 does not constitute “adequate factual or legal 

analysis.” (Placer County Local Agency Formation Com. v. Nevada County Local 

 

15 Although plaintiffs‟ brief reference their “eight through twentieth causes of 

action,” the second amended complaint only contains eighteen claims. 
31

Agency Formation Com. (2006) 135 Cal.App.4th 793, 814.) The record demonstrates 

that most of these claims were not dismissed pursuant to the litigation privilege. The trial 

court dismissed the plaintiffs‟ thirteenth through sixteenth claims, which allege 

interference with contract relations and prospective economic advantage, based on the 

statute of limitations. The tenth and eleventh claims for violation of the Fair Debt 

Practices Act and RICO were dismissed pursuant to an order sustaining a demurrer that is 

not in the record and was not appealed by plaintiffs. The plaintiffs‟ twelfth and 

seventeenth claims for forcible detainer and an accounting were dismissed pursuant to an 

order granting defendants‟ motion for judgment on the pleadings. Plaintiffs, however, 

provide no independent legal analysis of that motion or the resulting order. 

Plaintiffs‟ discussion of the litigation privilege consists of little more than a 

summary of general abstract principles that is devoid of a single citation to the record. 

(See generally Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199 [“An 

appellate court cannot be expected to search through a voluminous record to discover 

evidence on a point raised by appellant when his brief makes no reference to the pages 

where the evidence on the point can be found in the record”].) Although plaintiffs‟ brief 

summarizes various holdings pertaining to different aspects of the litigation privilege, it 

fails to adequately explain how those holdings relate to the non-foreclosure claims 

asserted in the complaint.

In sum, to the extent plaintiffs were requesting that we reverse the trial court‟s 

dismissal of any claims beyond those seeking to set aside the foreclosure sale, they failed 

“to provide meaningful legal analysis and record citations for [their] complaints.” (S.C., 

supra, 138 Cal.App.4th at p. 408.)16 These claims have therefore been abandoned. 

(Reyes, supra, 65 Cal.App.4th at p. 466, fn. 6)

 

16 The final paragraph of plaintiffs‟ brief asserts that “Respondents were awarded 

attorneys‟ fees as prevailing parties” and requests that the “award of costs and attorney‟s 

fees . . . be vacated.” This portion of the brief does not contain any citation to legal 

authority or the record. Moreover, the plaintiffs failed to include a copy of the order 

awarding fees and costs in the appellate record. Without such materials, we have no basis 
32

DISPOSITION

The trial court‟s judgment is reversed and the case is remanded for further 

proceedings. The trial court‟s order granting defendants‟ motion for summary judgment, 

or, in the alternative, summary adjudication is reversed to the extent it dismisses 

plaintiffs‟ second, third, sixth and seventh claims. The trial court‟s order granting 

defendants‟ motion for judgment on the pleadings is affirmed. Each party shall its own 

costs.

ZELON, J.

We concur:

PERLUSS, P. J.

JACKSON, J.

 

to review the order. (Buckhart v. San Francisco Residential Rent Etc., Bd. (1988) 197 

Cal.App.3d 1032, 1036 [“The appellant must affirmatively demonstrate error by an 

adequate record”].)