Filed 6/3/13 Zulli v. Litton Loan Servicing CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SIX

BRIAN ZULLI,

 Plaintiff and Appellant,

v.

LITTON LOAN SERVICING LP et al.,

 Defendants and Respondents.

2d Civil No. B242310

(Super. Ct. No. 56-2010-00383828-CUOR-SIM)

(Ventura County)

Brian Zulli appeals the order dismissing his complaint against respondents 

Litton Loan Servicing LP (Litton), and Wells Fargo Bank NA (Wells Fargo),1 following 

the sustaining of a demurrer without leave to amend. Appellant contends he sufficiently 

pled causes of action against respondents for fraud and unfair competition (Bus. & Prof. 

Code, § 17200), based on their involvement in the nonjudicial foreclosure on his nowdeceased mother's residence. We affirm.2

 

1 Wells Fargo is sued in its capacity as trustee for Citigroup Mortgage Loan Trust, 

Inc., Asset-Backed Pass-Through Certificates, Series 2006-SHLI. 

2 At oral argument, appellant asked us to enter a default judgment in his favor 

because "the wrong defendants" were in court. Appellant also challenged respondents' 

assertion that he is appealing from an order of dismissal in their favor. According to 

appellant, "there is no such order." These assertions are belied by the record. The notice 

of appeal plainly indicates that the appeal is from the trial court's May 22, 2012, order 

"dismissing all defendants." That order clearly identifies respondents as the parties who 

demurred to the complaint, and further states that the demurrer was sustained without 

leave to amend and that respondents "are dismissed from this action with prejudice." The 
2

FACTS AND PROCEDURAL HISTORY

The relevant facts are largely derived from our recent decision affirming the 

dismissal of appellant's complaint against codefendant Mortgage Electronic Registration 

Systems, Inc. (MERS), following the sustaining of a demurrer without leave to amend. 

(Zulli v. Mortgage Electronic Registration Systems, Inc. (Feb. 5, 2013, B237041 [nonpub. 

opn.].) In February 2006, appellant's mother Sylvia Zulli obtained a $1,250,000 loan 

from Quick Loan Funding, Inc. (Quick Loan) for the purchase of a residence in Moorpark 

(the property). In exchange for the loan, Sylvia3 executed a promissory note secured by 

a deed of trust naming MERS as beneficiary. In January 2009, all beneficial interest 

under the deed of trust was assigned to Wells Fargo. Litton, acting as Wells Fargo's 

attorney in fact, substituted the Wolf Law Firm as trustee under the deed of trust. 

Notices of default and trustee's sale were recorded after Sylvia failed to 

make several payments on the loan. Sylvia filed a complaint against MERS, Quick Loan, 

Wells Fargo, Litton and others alleging, among other things, that the January 2009 

assignment of deed of trust and substitution of trustee were invalid. Sylvia died in May 

2010. On October 28, 2010, the trial court dismissed Sylvia's complaint against MERS, 

Quick Loan, Wells Fargo and Litton after sustaining a demurrer without leave to amend. 

Appellant was subsequently granted leave to continue the action as Sylvia's personal 

representative and successor in interest (Code Civ. Proc., § 377.31). His appeal from the 

judgment in favor of respondents was dismissed as untimely. 

Appellant then filed the instant action in his own capacity. MERS was 

dismissed from the complaint after the court sustained its demurrer to the first amended 

 

notice of appeal also identifies respondents as the parties, and appellant's record 

designation includes the hearings on respondents' demurrer. The record designation also 

identifies respondents' trial attorneys (who are also acting as appellate counsel) as 

counsel of record. Moreover, appellant's briefs identify respondents as the parties to the 

appeal and requests that the order of dismissal in their favor be reversed. Because there 

is no merit to appellant's claims that "the wrong defendants" appeared or that he is not 

appealing from the order dismissing respondents from the action, his request for a default 

judgment is denied.

3 We refer to appellant's mother by her first name for the sake of clarity and 

convenience and intend no disrespect. 
3

complaint, and we affirmed. (Zulli v. Mortgage Electronic Registration Systems, Inc., 

supra.) In the meantime, the court sustained respondents' demurrer to the third amended 

complaint without leave to amend and entered an order of dismissal in their favor. 

Appellant timely appealed.

DISCUSSION

Appellant contends the court erred in sustaining respondents' demurrer to 

the third amended complaint without leave to amend. He claims he sufficiently stated 

causes of action for fraud and a violation of Business and Professions Code section 

17200, by alleging that (1) respondents colluded with MERS and others "to conceal the 

identity of the true lender;" (2) the Litton employees who signed the January 2009 

assignment and deed of trust "impostered [sic] themsel[ves]" as employees of MERS and 

Wells Fargo; (3) Sylvia was "mislead [sic] into signing" the loan documents and was 

never provided a letter of transfer; (4) respondents failed to contact Sylvia as required 

under Civil Code section 2923.5; (5) Litton lacked authority to foreclose on property; and 

(6) there is no chain of title to Wells Fargo.

When the trial court dismisses a case after sustaining a demurrer without 

leave to amend, we ordinarily "review the complaint de novo to determine whether it 

contains facts sufficient to state a cause of action under any legal theory" and, if the 

complaint is lacking, "we then consider whether the court abused its discretion in denying 

leave to amend the complaint." (In re Estate of Dito (2011) 198 Cal.App.4th 791, 800.) 

Here, however, major defects in appellant's preparation of the record and his briefing on 

appeal hinder our review. To prevail on appeal an appellant must, as a threshold matter, 

present an adequate record for review. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 

1362.) Lower court judgments are presumed correct. Without a record of what actually 

occurred before the trial court, an appellate court cannot say whether the trial court erred. 

(Ibid.)

Appellants also have the burden of establishing error through reasoned 

arguments, not conclusory assertions. (Moulton Niguel Water Dist. v. Colombo (2003) 

111 Cal.App.4th 1210, 1215.) We need not consider points unsupported by legal analysis 
4

or authority. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785.) Nor need 

we consider points supported by citation to general legal principles or legal authority 

without any application of those principles or authorities to the case at hand. (Landry v. 

Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699.) An appellant must also 

show not only how the trial court erred, but how the error was prejudicial. (Century Sur. 

Co. v. Polisso (2006) 139 Cal.App.4th 922, 963; see also Kyne v. Eustice (1963) 215 

Cal.App.2d 627, 635–636 [requiring affirmative showing of prejudice from appellant to 

reverse order sustaining demurrer].)

Appellant has failed to meet any of these burdens. The clerk's transcript he 

designated does not include any of the briefing on the demurrers. He has also failed to 

present us with a copy of the reporter's transcript of the hearing on the demurrer. He 

merely included the minute order of the court's ruling, which states the demurrer was 

sustained without leave to amend "for the reasons stated at length, on the court reported 

record, after hearing arguments . . . ."4 Moreover, appellant's arguments are conclusory 

and virtually devoid of analysis, reasoned or otherwise. He has made no meaningful 

effort to show his complaint actually stated any valid cause of action, nor has he made an 

argument as to how he complied with the various requirements for specificity the rules 

and trial court imposed on him. Nor has he even suggested how he might cure the defects 

in his complaint if given a chance to amend. (See Brenner v. City of El Cajon (2003) 113 

 

4 Appellant designated a reporter's transcript, but failed to pay the costs for its 

preparation (Cal. Rules of Court, rule 8.140). After notice of default was sent, appellant 

requested relief from default and attached an October 12, 2012, letter indicating that his 

application requesting payment from the Transcript Reimbursement Fund (TRF) had 

been denied because appellant did not include a copy of an approved fee waiver. The 

letter also stated that although no funds were currently available, appellant could 

resubmit an application and it would be held until previously allocated funding for that 

year became available or until January 1, 2013, when additional money was due to be 

deposited into the fund. In his request for relief from default, appellant represented that 

he had "already resubmitted the proper forms requested along with [his] fee waiver" and 

sought additional time either for his application to be processed or "to allow [him] to pay 

the monies to the Court Reporter directly . . . ." Based on these representations, we 

denied appellant's request for relief from default but allowed the appeal to proceed. 

Appellant has yet to provide a transcript or any update on the status of his TRF 

application. He has also failed to notify us of any efforts he has made to directly pay the 

$51 it would cost to prepare a transcript of the hearing on the demurrer.
5

Cal.App.4th 434, 444 [failure to provide a proposed amendment or advance on appeal 

any allegation that might cure the defects of an amended complaint supports the trial 

court's order denying leave to amend].) In light of these deficiencies, appellant has failed 

to demonstrate error and the judgment must be affirmed.

Even if the deficiencies were corrected, it is apparent from the record that 

appellant's claims are barred by the doctrines of res judicata, collateral estoppel, and law 

of the case. Res judicata, or claim preclusion, "'prevents relitigation of the same cause of 

action in a second suit between the same parties or parties in privity with them.' 

[Citations.]" (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty 

& Surety Co. of America (2005) 133 Cal.App.4th 1319, 1326.) "Res judicata bars 'not 

only the reopening of the original controversy, but also subsequent litigation of all issues 

which were or could have been raised in the original suit. [Citations.]'" (Torrey Pines 

Bank v. Superior Court (1989) 216 Cal.App.3d 813, 821.) Collateral estoppel, or issue 

preclusion, precludes a party from relitigating issues already argued and decided in prior 

proceedings. (Alpha Mechanical, supra, at pp. 1326-1327.) Under the law of the case 

doctrine, all principles and rules of law necessary to an appellate court's decision are 

binding in a subsequent appeal in the same case. (People v. Barragan (2004) 32 Cal.4th 

236, 246.)

All of appellant's claims against respondents are based on the same set of 

operative facts as the claims raised in Sylvia's prior action. Respondents were dismissed 

from the prior action following the sustaining of a demurrer without leave to amend, and 

the ruling was final when the respondents' demurrer was sustained in the instant action. 

Because the claims in the instant action are entirely derivative of the claims that either 

were or could have been raised in the prior action and are based on the same facts, they 

are barred by res judicata and collateral estoppel.

The claims are also precluded by the law of the case doctrine. In affirming 

the order sustaining MERS's demurrer to the first amended complaint, we recognized that 

appellant's failure to allege tender of the amounts due and owing under the loan upon 

which Sylvia defaulted was fatal to his claims, all of which ultimately sought to set aside 
6

an allegedly wrongful foreclosure. (Shuster v. BAC Homes Loans Servicing, LP (2012) 

211 Cal.App.4th 505, 512.) We also cited recent authority establishing that allegations of 

a fraudulent or invalid assignment of deed of trust or substitution of trustee are 

insufficient to overcome the sustaining of a demurrer absent a showing of prejudice. 

(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 [assignment]; 

Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1508 

[substitution].) Appellant has once again simply ignored this authority. Because there 

were no allegations that respondents' purportedly unlawful actions prevented Sylvia from 

making payments on the loan, judgment in favor of MERS was deemed proper. This 

ruling also effectively disposes of appellant's claims against respondents.5

The judgment is affirmed. Respondents shall recover their costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P. J.

YEGAN, J.

 

5 We also note that appellant's claim Sylvia was "misled" into signing the loan 

documents is the sort of conclusory allegation that is insufficient to state a cause of action 

for fraud. (Ulta Salon, Cosmetics & Fragrance, Inc. v. Travelers Property Casualty Co. 

of America (2011) 197 Cal.App.4th 424, 431.) His attempt to state a claim under 

Business and Professions Code section 17200 similarly fails for lack of specificity. 

(Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The claim that 

respondents failed to comply with Civil Code section 2923.5 was not raised below and is 

thus forfeited. In any event, the only remedy for a violation of the statute is a delay of the 

foreclosure sale pending compliance with the statute. (Stebley v. Litton Loan Servicing, 

LLP (2011) 202 Cal.App.4th 522, 525–526.) The statute has no application where, as 

here, the sale has already taken place. (Ibid.)
7

Barbara Lane, Judge

Superior Court County of Ventura

______________________________

Brian Zulli, in pro. per., for Appellant.

Houser & Allison, Eric D. Houser, Steve W. Pornbida for Respondents.