1 Filed 7/30/13 Saunders v. American Home Mortgage Servicing CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Placer)

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STEVEN SAUNDERS, Plaintiff and Appellant,

v. AMERICAN HOME MORTGAGE SERVICING, INC., et al., Defendants and Respondents. C069145 (Super. Ct. No. TCV0001608)

In this action, plaintiff Steven Saunders sought to stop a nonjudicial foreclosure sale of property he owns in Truckee based on the general premise that the entities seeking to foreclose had no right to do so. The trial court sust ained demurrers to his third amended complaint without leav e to amend. We affirm. FACTUAL AND PROCEDUR AL BACKGROUND The following statement of facts takes as true “the properly pleaded factual allegations, facts that reasonably can be in ferred from those expressly pleaded, and matters of which judicial notice has been taken” ( Fremont Indemnity Co. v. Fremont2 General Corp. (2007) 148 Cal.App.4th 97, 111) but ignores all “contentions, deductions or conclusions of law” in the complaint ( Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967). Saunders owns property on Palisades Driv e in Truckee (the property). In January 2006, he executed a promissory note in the amount of $486,000 to The Mortgage Outlet. The note was secured by a deed of trust on the property. 1 The deed of trust listed The Mortgage Outlet as the lender, Fidelity National Title as trus tee, and defendant Mortgage Electronic Registration System (MERS) as the beneficiary and nominee for the lender and the lender’s successors and assigns. In August 2007, The Mortga ge Outlet recorded an assignment of all beneficial interest under the deed of trust and the promissory no te to Option One Mortgage Corporation (Option One). That assignm ent was signed by a “manager” for The Mortgage Outlet. In March 2009, defendant American Home Mortgage Se rvicing, Inc. (American Home), as successor-in-interest to Option One, recorded an assignment of the deed of trust and the note to Deutsche Bank National Trust Company (Deutsche Bank) as trustee for the Certificateholders of Soundview Ho me Loan Trust 2006-OPT3, Asset-Backed Certificates, Series 2006-OPT3. In April 2009, American Home, as th e attorney-in-fact for Deutsche Bank, recorded a substitution of AHMS I Default Services, Inc. as trustee in place of Fidelity National Title.

1 Some of the recorded documents refere nced below were the subject of a request for judicial notice filed by American Home and MERS in support of their demurrer to Saunders’s third amended complaint, which th e trial court granted. This document was omitted from the clerk’s transcript on appeal, but American Home a nd MERS have asked us to take judicial notice of it. We grant that request.3 In April 2010, American Home, MERS , IndyMac Mortgage Services (IndyMac), 2
and ServiceLink caused a notice of default to be recorded against the property. The notice asserted that past due payments plus permitted costs and expenses were $19,231.81 as of April 14, 2010. The contac t information in the not ice was for Deutsche Bank care of American Home. In May 2010, American Home , as the attorney-in-fact for Deutsche Bank, caused a substitution of trustee signed in March 2010 to be record ed, changing the trustee to Power Default Services, Inc. Later in May, an assignment dated in March was recorded in which MERS, acting as nominee for The Mortgage Outlet, assigned all beneficial interest in the deed of trus t and the note to Sand Canyon Cor poration, formerly known as Option One. In turn, Sa nd Canyon assigned all beneficial in terest in the deed of trust and the note to Deutsche Bank as trustee for the Certificateholders of Soundview Home Loan Trust 2006-OPT3, Asset-Backed Certificates , Series 2006-OPT3, a securitized trust. In June 2010, Saunders co mmenced this action by f iling a complaint against a number of defendants, including OneWes t Bank, American Home, MERS, and ServiceLink, 3 seeking to quiet title to the property based generally on the contention that the parties attempting to forecl ose on the property had no lega lly recognized interest in the property and that no one had a secured in terest in the property because there was no operable deed of trust. American Home and MERS demurred to the complaint. The resolution of that demurrer, and the possible existence of demurrers by other defendants, is unclear on the record before us. Nevert heless, Saunders subsequently filed a second

2 IndyMac is a division of OneWest Bank, FSB. At various times papers have been filed in this action in the name of IndyMac and at other times in the name of OneWest Bank. We will treat them as one and the same.

3 Saunders sued ServiceLink as Fidelity National Financial, In c., doing business as ServiceLink. ServiceLink apparently appeared in the action as ServiceLink, a division of Chicago Title Insurance Company.4 amended complaint, to which American Home and MERS de murred, as did IndyMac and ServiceLink. The trial c ourt concluded the complaint was unintelligible and gave Saunders “one more chance to try and stat e a cause of action against these demurring defendants.” In April 2011, Saunders filed his third amended complaint. American Home and MERS filed a general demurrer and a special demurrer on the ground of uncertainty, as did IndyMac. 4 ServiceLink also filed a demurrer. 5 On July 25, 2011, th e trial court entered its ruling su staining all of the demurrers without leave to amend. On August 5, 2011, the court ente red an order of dismissal in favor of American Home, ME RS, IndyMac, and ServiceLin k. On August 22, 2011, Saunders filed his notice of appeal. 6

4 Saunders designated these documents for in clusion in the clerk’s transcript but the superior court failed to include them. Amer ican Home and IndyMac have requested that we take judicial notice of the docu ments, and we grant those requests.

5 Saunders designated his opposition to Se rviceLink’s demurrer fo r inclusion in the clerk’s transcript, and it is included, bu t Saunders did not designate ServiceLink’s demurrer for inclusion in the clerk’s transc ript, and that document is not included.

6 Saunders’ notice of appeal states that he is appealing a “[j]udgment of dismissal after an order sustaining a demurrer,” but the notice of appeal erroneously indicates that the date of that judgment was July 25, 2011, when that was the date of the underlying order sustaining the demurrers without leav e to amend, which is not appealable ( Beazell v. Schrader (1962) 205 Cal.App.2d 673, 674). Ne vertheless, because “[t]he notice of appeal must be liberally construed” (Cal. Ru les of Court, rule 8.100(a)(2)), we construe Saunders’s notice as an appeal from the order of dismissal entered August 5, 2011, which is an appealable order ( Diaz v. United California Bank (1977) 71 Cal.App.3d 161, 166).5 DISCUSSION
I Civil Code Section 2923.5 7 In his fourth cause of action, 8 Saunders alleged the notice of default was void because it did not include the due diligence declaration requi red by section 2923.5. The trial court concluded that this allegation did “not state a cau se of action under California law.” Subdivision (b) of section 2923.5 provid es as follows: “A notice of default recorded pursuant to Section 2924 shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contac t was required because th e individual did not meet the definition of ‘borrower’ pursuant to subdivision (c) of Se ction 2920.5.” The notice of default here includ ed the following statement: “T he undersigned mortgagee, beneficiary or authorized agent for the mort gagee or beneficiary pursuant to California Civil Code § 2923.5(b) declares that the mo rtgagee, beneficiary or the mortgagee’s or beneficiary’s authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as requi red by California Civil code 2923.5.”

7 Undesignated section references are to the Civil Code.

8 Because Saunders’s first cause of ac tion (quiet title) depends in part on the viability of his remaining causes of action, we will reserve our discussion of the quiet title cause of action for the end of our opinion. Be cause Saunders offers no argument directed to his second, third, sixteenth , and eighteenth causes of action, we do not address them, taking his silence as a concessi on that the trial court properly sustained the demurrers to those causes of action. Because Saunders’s fi fteenth cause of action (breach of contract) was asserted only against Th e Mortgage Outlet, and The Mo rtgage Outlet was not one of the demurring defendants, we need not address that cause of action (even though the trial court’s ruling purported to encompass it).6 On appeal, Saunders assert s that “[t]he trial court erred in not requiring the defendant to be the Lender capable of comp lying with the requirements of Civil Code 2923.5.” Saunders does not acknowledge or address the statement from the notice of default set forth above and does not otherwise explain how his allegations stated a cause of action given the inclusion of that statement. “[T]o be successful on appeal, an appella nt must . . . affirmatively demonstrate error on the record before the court. ‘ “ ‘A judgment or order of the lower court is presumed correct . All intendments and presumpti ons are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Cita tions.]” [Citations omitted.]’ ” ( In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4t h 814, 822, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In the absence of any real argument as to why the statement contained in the notice of default was insufficien t to satisfy the requirements of subdivision (b) of section 2923.5, we conclude that Saun ders has failed to carry his bur den of showing that the trial court erred in sustaining the demu rrers to this cause of action.
II Section 2924 In his fifth cause of action, Saunders alleged the notice of default was void because it was not signed by the trustee, mo rtgagee, beneficiary, or any of their authorized agents; there was “no clear benefi ciary from the face of the” notice; there was “no Statement saying they woul d satisfy the obligations ‘secu red by the Deed of Trust that is in default’”; and there was no recital of mailing. The trial court concluded these allegations “fail[ed] to state a cause of acti on that is recognized under California [law].” Subdivision (a)(1) of section 2924 provides that before a power of sale in a deed of trust can be exercised, “[t]he trustee, mortgagee, or beneficiary, or any of their7 authorized agents shall first f ile for record, in the office of the recorder of each county wherein the . . . trust property or some part or parcel thereof is situated, a notice of default.” That notice must include vari ous things. (§ 2924, subd. (a)(1)(A)-(D).) On appeal, Saunders asserts “[t]he trial court erred in allowing non-parties to the Deed of Trust to succeed in their demurrer to Civil Code [] 2924,” but he makes no real attempt to show how his complain t stated a cause of action for violation of that statute. In the absence of an y comprehensible argument on point, Saunders has not carried his burden of showing that it was error for the tria l court to sustain the demurrers to his fifth cause of action.
III Section 2924c In his sixth cause of action, Saunders alleged the notice of default was void because it did not “include cont act information for the ‘benefic iary or mortgagee.’” The trial court concluded that th is allegation “fail[ed] to st ate a cause of action under California law.” Subdivision (b)(1) of section 2924c provi des that a notice of default must begin with a statement that includes the name of the beneficiary or mortgagee, along with an address and telephone number for the borrower to contact. The notice of default here provided an address and telephone number for Saunders to contact Deutsche Bank care of American Home. On appeal, Saunders contends “[a] re view of the document should have been sufficient for the Court to se e that [he] was correct and that the required [contact] information is missing.” In su pport of this argument, he directs our attention to the first page of the notice of default. The contact information, however, is on the second page of the notice, which Saunders ignores. Under these circumstances, Saunders has shown no error in the sustaining of the demurre rs to his sixth cause of action.8 IV Section 2932.5 In his seventh cause of action, Saunders alleged that none of the foreclosing defendants had the power to sell the propert y because none of the assignments of the right to the money owed under the promissory note were valid because three of the four assignments were not duly ackno wledged. The trial court c oncluded that this allegation “fail[ed] to state a cause of action under California law.” Section 2932.5 provides that “[w]here a power to sell re al property is given to a mortgagee, or other encumbran cer, in an instrument intende d to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secure d by the instrument. The power of sale may be exercised by the assignee if the assi gnment is duly acknowledged and recorded.” On appeal, Saunders conte nds he adequately alleged “that the four (4) recorded Assignments violated this Civil Code [] 2932.5 .” The flaw in Saunde rs’s argument is that “[i]t has been established since 1908 that this statutory requirement that an assignment of the beneficial interest in a de bt secured by real property must be recorded in order for the assignee to exercise the power of sale applie s only to a mortgage and not to a deed of trust.” ( Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4t h 118, 122.) Because section 2932.5 did not apply here, the trial court correctly sustained the demurrers to Saunders’s seventh cause of action.
V Section 2934a In his eighth cause of acti on, Saunders alleged that the substitutions of trustee recorded in April 2009 and May 2010 were inva lid because they were not signed by all of the beneficiaries under the deed of trust. The trial court conclude d that Saunders had “failed to state any wrongdoing by the[] demurring Defendants.”9 Subdivision (a)(1) of section 2934a provide s that “[t]he trustee under a trust deed upon real property or an estate for years th erein given to secure an obligation to pay money and conferring no other duties upon the trustee than t hose which are incidental to the exercise of the power of sale therein co nferred, may be substituted by the recording in the county in which th e property is located of a subs titution executed and acknowledged by: (A) all of the beneficiaries under the trust de ed, or their successors in interest . . . .” On appeal, Saunders conte nds he adequately alleged a cause of action for violation of section 2934a by alleging that all of the beneficiaries under the deed of trust did not sign the substitutions of trustee. We disagree . The documents subject to judicial notice showed that in April 2009, American Home, acting as th e attorney-in-fact for Deutsche Bank, recorded a substitution of AHMSI Default Services, Inc ., as trustee in place of Fidelity National Title. Those documents also show that in May 2010, American Home and others caused a substitution of trustee to be recorded ch anging the trustee to Power Default Services, Inc. In his brief, reite rating the allegations from his complaint, Saunders contends De utsche Bank had no power to s ubstitute a trustee and American Home could not act on behalf of Deutsche Ba nk because “ ‘the Attorney in Fact is not recorded as required under the subject Deed of Trust.’ ” Be yond this, however, Saunders offers no argument, no explanation, and no facts. Under these circumstances, we conclude Saunders has failed to carry his burd en on appeal of demonstrating trial court error in the sustaining of the demurre rs to his eighth cause of action.
VI Sections 2939, 2940, and 2941 In his ninth, tenth, and eleventh caus es of action, Saunde rs alleged that no certificate of discharge was recorded in conn ection with each of the assignments of the rights under the deed of trust and the promis sory note. The trial court concluded these allegations were barred by the statute of limit ations and failed to state a cause of action.10 Sections 2939, 2940, and 2941 contai n various requirements relating to the recording of a certificate of discharge when a mortgage has been paid, satisfied, or discharged. On appeal, Saunders conte nds his allegations were adequate to state a cause of action for violation of each statute. He is wrong. Section 2939 applies when a mortgage has been “paid, satisfied, or discharged,” an d section 2941 applies when a mortgage has been “satisfied.” (Section 2940 merely requires that a certificate of discharge be recorded.) Here, the do cuments subject to judicial notic e and the other allegations of Saunders’s complaint make it clear that Sa unders’s debt under the promissory note was neither paid, satisfied, nor discharged. Ra ther, the original lender assigned away its rights to Saunders’s performance (i.e., the payment of the money owed), and subsequent assignments of those rights also occurred. The assignment of the right to receive payments due under a promissory note does not result in the payment, satisfaction, or discharge of the obligation to make those paym ents -- it simply changes who is entitled to performance of the obligation. Because sect ions 2939, 2940, and 2941 do not apply to the assignment of a deed of trust and promi ssory note, the trial court properly sustained the demurrers to Saunders’s ninth, te nth, and eleventh causes of action.
VII Section 1189 In his twelfth cause of action, Saunders alleged that the a ssignment recorded in August 2007, the substitution of trustee re corded in May 2010 , and the assignment recorded in May 2010 were all void beca use the certificate of acknowledgement completed by the notary with respect to each document fa iled to comply with section 1189. In particular, Saunders alleged the August 2007 assignment was void because the notary did not sign the certificate of acknowle dgement under penalty of perjury, and the May 2010 substitution of trustee and assignment were void be cause the notary could not lawfully acknowledge that the persons who si gned the documents acted in a “particular11 representative capacity.” The trial court concl uded that these allegations “fail[ed] to state a cause of action under California law.” Subdivision (a)(1) of section 1189 pres cribes the form for a certificate of acknowledgement taken within this state. Th e certificate must be made under penalty of perjury. (§ 1189, subd. (a)(1).) Subdivisi on (c) of section 1189 provides that “[o]n documents to be filed in another state or ju risdiction of the United States, a California notary public may complete any acknowledgment form as may be required in that other state or jurisdiction on a document, provided the form does not require the notary to determine or certify that the signer holds a par ticular representative capacity or to make other determinations and certificati ons not allowed by California law.” On appeal, Saunders contends in a conclu sory manner that this cause of action was “adequately pled,” but he makes no attempt to show how his complain t stated a cause of action. In particular, Saunders offers no authority for the proposition that when a certificate of acknowledgement is not signed by the notary under pena lty of perjury, the document notarized is void. Similarly, he of fers no authority for the proposition that it is unlawful for a notary to acknowledge that a signer acted in a particular representative capacity 9 or for the proposition that such an unlawful acknowledgement (assuming the unlawfulness) renders the not arized document void. U nder these circumstances, Saunders has failed to carry hi s burden of showing that the tr ial court erred in sustaining the demurrers to his twelfth cause of action.

9 To the extent Saunders in tends to rely on subdivision (c) of section 1189 for his proposition of unlawfulness, that statute does not , by itself, provide that it is unlawful for a notary to acknowledge that th e signer is acting in a particul ar representative capacity. At most, read in isolation th at subdivision provides that on a document to be filed in another state or jurisdiction of the United States, a California notary public may not complete an acknowledgment form that require s the notary to determine or certify that the signer holds a particular representative capacity.12 VIII Section 1190 In his thirteenth cause of action, Saunde rs alleged that the assignment recorded in August 2007, the notice of de fault recorded in April 2010, the substitution of trustee recorded in May 2010, and the two assignmen ts recorded in May 2010 were all void because they were not signed by a “ ‘duly authorized person.’ ” In particular, Saunders complained that the August 2007 assignment was signed by a manager and the remaining documents were signed by pers ons whose capacities were not stated on the documents. The trial court concluded that these allegations “fail[ed] to state a cause of action under California law.” Section 1190 provides that “[t]he certificate of acknow ledgment of an instrument executed on behalf of an in corporated or unincorporated entity by a duly authorized person in the form specified in Section 11 89 shall be prima facie evidence that the instrument is the duly authorized act of the entity named in the inst rument and shall be conclusive evidence thereof in favor of any good faith purchaser, lessee, or encumbrancer. ‘Duly authorized person,’ with respect to a domestic or foreign corporation, includes the president, vice presid ent, secretary, and assistant secretary of the corporation.” On appeal, Saunders contends in a conclu sory manner that this cause of action was “adequately pled,” but he makes no attempt to show how his complain t stated a cause of action. In particular, Saunders offers no authority for the proposition that a document signed on behalf of a corpora tion by a person whose capacity is either not shown or is shown as something other than president, vice pr esident, secretary, or assistant secretary, is void. Under these circumstances, Saunders has failed to carry his burden of showing that the trial court erred in sustaining the de murrers to his thirteenth cause of action.13 IX Section 1624 In his fourteenth cause of action, Saunde rs alleged that all four assignments were void because they did not “assume the indebte dness by the purchaser in the conveyance.” The trial court concluded that this allegati on “fail[ed] to state a cause of action under California law.” Subdivision (a)(6) of section 1624 (the statute of frauds) provides that “[a]n agreement by a purchaser of real property to pay an indebtedness se cured by a mortgage or deed of trust upon the property purchased” is invalid unless that agreement, “or some note or memorandum thereof, [is] in writing a nd subscribed by the part y to be charged or by the party’s agent,” “unless assumption of the indebtedness by the purchaser is specifically provided for in the conveyance of the proper ty.” What this means, essentially, is that a promissory note by a purcha ser of real property that is secured by a deed of trust on the property must be in writing, unless the promise to pay is included in the deed to (i.e., “the co nveyance of”) the property. On appeal, Saunders contends in a conclu sory manner that this cause of action was “adequately pled,” but he makes no attempt to show how his complain t stated a cause of action under section 1624, nor can we even im agine how it might do so . The provision in the statute of frauds that the assumption of indebtedness by a purchaser of real property satisfies the statute if it is sp ecifically provided fo r in the conveyance of (i.e., the deed to) the property simply has no bear ing whatsoever on the validity of the assignments at issue here. Accordingly, the trial court did not e rr in sustaining the demurrers to Saunders’s fourteenth cause of action.
X Wrongful Foreclosure In his seventeenth cause of action, Saun ders alleged that defendants “are in the process of conducting a wrongf ul foreclosure as they have violated several laws for14 maintaining a secured interest in a piece of re al property.” The trial court concluded that Saunders had “failed to state any facts a lleging wrongdoing by any specific Defendant and [the cause of action] fails for uncertainty.” On appeal, Saunders cites the rule “that a trustee or mortgagee may be liable to the trustor or mortgagor for damages sustained wh ere there has been an illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust” ( Munger v. Moore (1970) 11 Cal.App.3d 1, 7) and then asserts without further explanation or argument that “[t]he above requirements are alleged in the 43 page [third amended complaint].” This is simply not sufficient to carry Saunders’s burden on appeal. To the extent Saunde rs means to contend that his wrongful foreclosure cause of action is premised on the statutory violations a lleged in the previous causes of action that we have discussed already, the failure of those previous causes of action (discussed above) necessarily dooms his derivative wr ongful foreclosure cause of action. Accordingly, Saunders has shown no error in the trial court sustaining the demurrers to his seventeenth cause of action.
XI Quiet Title The first cause of action Saunders purpo rted to allege in his third amended complaint was one to quiet title to the property. Saunders al leged that defendants were wrongfully claiming an interest in the property because he was not in default to them and they had not paid for the note that was secure d by the property. The gist of his claim appears to be that because the promissory note was sold “int o the secondary market to an unknown investor” (otherwise identified as “a securitized trust”), defendants had no interest in the note and theref ore no right or standing to exercise the power of sale under the deed of trust. In demurring to the third amended compla int, IndyMac argued that Saunders could not quiet title to the property “without allegi ng [that he is] able to tender the entire15 indebtedness owing on the loan.” American Home and MERS argued more broadly that Saunders’s entire complaint, which challe nged defendants’ a ttempt to conduct a nonjudicial foreclosure sale, wa s barred because he did not alle ge that he tendered, or had the ability to tender, the amounts owed under th e loan. American Home and MERS also argued that all of Saunders’s claims we re time-barred because the action was not commenced until nearly four and a half years after the loan cl osed. With respect to the quiet title cause of action in particular, American Home and ME RS contended that Saunders had not alleged any wrongful conduct by either of them, the notice of default was properly recorded, and Am erican Home was authorized to conduct the foreclosure sale as attorney-in-fact for th e beneficiary, Deutsche Bank. In sustaining the demurrer as to the quiet title cause of action, the trial court concluded that “an offer of tender of the en tire indebtedness” was required, “failure to tender is fatal,” and the cause of action was barred by the three-year statute of limitations. A A Quiet Title Action Is Subject To Demurrer On appeal, Saunders first argues that a quiet title cause of action that alleges the plaintiff’s ownership of the property and the defendant’s assertion of an adverse claim is not subject to demurrer. In support of this argument, he quotes from Leeper v. Beltrami (1959) 53 Cal.2d 195, but he ta kes the language of that case out of context. As we will explain, properly read, Leeper does not support Saunders’s argument.
In Leeper , the plaintiffs sought to cancel or se t aside a deed they claimed they had conveyed out of duress. ( Leeper v. Beltrami , supra , 53 Cal.2d at p. 211.) The question arose as to “whether, because th e ultimate relief sought is re covery of real property, the five-year provisions of [Code of Civil Pr ocedure] section 318 are automatically applicable, or should the plainti ffs be held to the ordinary ru les applicable to rescission?” ( Id. at p. 213.) In addressing that point, th e California Supreme Court noted that “[t]he authorities on this subject are in confusion” and “[t] his confusion apparen tly arises out of16 the failure of the cases to cons ider adequately the basic rights of the plaintiff arising out of defendant’s wrongful conduct, and the fa ilure to consider th e substantive rules applicable to these basic rights.” ( Id. at pp. 212-213.) The court went on to explain as follows: 10 “There are many cases holding that quiet title actions are of an independent nature completely divorced from the f acts that give rise to the plai ntiff’s right to have his title quieted. Thus it has been held that a complaint couched in general terms alleging plaintiff’s ownership and defend ant’s assertion of an adverse claim is not demurrable. [Citations.] It has also been held that if a complaint is in two counts, one in general terms for quiet title, and the other specifyi ng the defendant’s wrongdoing which is the basis of the quiet title action, the complain t is not demurrable even though the specific count is faulty. [Citations.] These cases seem to hold that suits to recover real property, where the relief sought is quiet title, must be viewed independen tly from the grounds upon which the relief is sought, and that the five-year statute is applicable. “On the other hand, the more modern ru le places more emphasis on the basic rights involved. Thus it has b een held that, where the complaint is in two counts, one to quiet title, and one to cancel a deed, if th e count to quiet title depends upon the cancellation count, the complaint must stand or fall on the cancellation count. [Citation.] And there are many cases holding that, where the legal title is in th e defendant, and the plaintiff seeks to quiet title on the ground defendant’s title was secured from plaintiff by fraud, the plaintiff must plead and prove fact s constituting the fraud. [Citations.] It has been held that this ru le requiring allegations of fraud in su ch actions is an exception to the general rule that a cause of action to quiet title may be stated in general terms. [Citations.]

10 The italics in the following quotation are added to show exactly the part of the case that Saunders quotes in his opening brief.17 “Thus the modern te ndency is to look beyond the relief sou ght, and to view the matter from the basic cause of action giving ri se to the plaintiff’s right to relief. This approach is a sensible one.” ( Leeper v. Beltrami , supra , 53 Cal.2d at pp. 213-214.) In quoting from Leeper , Saunders fails to quote most of the pertinent portion of the opinion. As the court succi nctly explained later in the opi nion, “[q]uieting title is the relief granted once a court determines that titl e belongs in plaintiff” but “the plaintiff must show he has a substantive right to relief before he can be granted any relief at all.” ( Leeper v. Beltrami , supra , 53 Cal.2d at p. 216.) Thus, a plaintiff cannot avoid a demurrer to a cause of action seeking to qu iet title if the cause of action fails to adequately allege a substantive basis for the c ourt to grant that relief. For this reason, Saunders cannot avoid the demurrers to his firs t cause of action just because that cause of action seeks to quiet title to the property.
B Tender Was Not Required Saunders next contends that the trial c ourt erred in sustaining the demurrer based on his failure to tender the amounts owed on the loan. He contends that tender is required only where the plaintiff seeks to set aside a voidable forecl osure sale that has already happened, not where (as here, in his view) the plaintiff seeks to stop, before it has occurred, a foreclosure sale that will be void if it goes forward. Support for Saunders’s argument can be found in Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868. There, the c ourt explained that “in the context of overcoming a voidable sale, the debtor must tender any amounts due under the deed of trust. [Citations.] This requirement is base d on the theory that one who is relying upon equity in overcoming a voidable sale must show that he is able to perform his obligations under the contract so that equity will not ha ve been employed for an idle purpose.” ( Id. at pp. 877-878, italics omitted.) On the other hand, where th e debtor is not relying on equity to set aside a merely voidable deed, bu t instead relies on the face of the record to18 show that the deed is void, the debtor is not required to tender any of the amounts due under the note. ( Ibid. ) It is true, as defendants assert, th at “a mortgagor cannot quiet his title against the mortgagee without paying the debt secured.” ( Shimpones v. Stickney (1934) 219 Cal. 637, 649, italics added.) To some extent, howe ver, the gist of Saunders’s claim here is that the defendants who record ed the notice of default agai nst his property and who seek to foreclose on the property are not the holders of the promisso ry note and therefore are

not entitled to any amounts owed on the debt secured by the proper ty. To that extent, this is not simply a case where the plaintiff alle ges some mere irregularity in a foreclosure sale conducted by the party that was otherw ise entitled to conduct that sale. Rather, Saunders alleges that defendants are not entitled to conduct a foreclosure sale of his property in the first place. Over 100 years ago, our Supreme Court offered the following language, which is helpful here: “It has often been held that an action to set aside a sale by trustees or on foreclosure for irregularities of any kind should ordina rily be accompanied by an offer to redeem by paying the sum due. [Citations.] Th e plaintiff is held to compliance with the old maxim that he who seeks equity must do e quity. [Citations] On the other hand, there are not a few cases holding that where a part y has the right to avoid a sale, he is not bound to tender any payment in redemption. [Citations.] Whatever may be the correct rule, viewing the question generally, it is cert ainly not the law that an offer to pay the debt must be made, where it would be ineq uitable to exact such offer of the party complaining of the sale.” ( Humboldt Sav. Bank v. McCleverty (1911) 161 Cal. 285, 290- 291.) Here, it would be inequitable to require Saunders to tender payment of any amounts owed under the promisso ry note in order to stop a foreclosure sale by entities that have no right to the amounts owed under the note and no right to sell his property to19 collect those amounts. To that extent, the lack of tender does not support the trial court’s ruling sustaining defendants’ demurrers. C The Action Is Not Time-Barred In arguing that all of the causes of acti on against them were time-barred, American Home and MERS asserted that Saunders’s “alle gations focus on the or igination of a loan which closed in January, 2006 ” and “since [his] claim to qu iet title is an action based on allegations of fraud or mistake, the three (3) ye ar statute of limitations . . . applies.” They also argued that all of Saunders’s causes of action for statutory viol ations were similarly barred by the three-year statute. On appeal, Saunders argues that the tria l court erred in sustaining the demurrers based on the statute of limitations because he should not be held to “have discovered [at the outset] the MERS fraud and banking industry fraud that . . . hit the entire planet in 2006.” He contends he is entitled to th e benefit of the delayed discovery rule. In response, American Home and MERS note that “[a]t least in part, the Quiet Title cause of action is founded upon [Sau nders’s] theory that MERS was ‘fraudulently’ named in the original deed of trust.” They further argue that there are no allegations that justify reliance on the delayed di scovery rule and that rule was not raised in the trial court and Saunders’s argument on th is point is not supported by citations to the record. Despite Saunders’s failure to argue otherw ise, we do not percei ve that his request to quiet title to his property was based on an allegation of fraud relating to MERS being named in the deed of trust as nominee on beha lf of the original le nder, its successors and assigns. Rather, it was based on the asserti on that due to the va rious conveyances and assignments of the beneficial interests in the deed of trust property and the note, defendants had no right to any money due under the note and th erefore no right to sell the property under the deed of trust. Thus, th e assertion by American Home and MERS that Saunders’s “allegations focus on the originati on of a loan which closed in January,20 2006” was not really true. The focus of th e allegations was on the various conveyances and assignments that occurred after the loan closed. Under these circumstances, we conclude Saunders’s complaint was not time-barred.
D Authority To Foreclose As we have noted, in demurring to the qui et title cause of action, American Home and MERS contended Sau nders had not stated a cause of action because Saunders had not alleged any wrongful conduct by either of them, the notice of default was properly recorded, and American Home was authoriz ed to conduct the foreclosure sale as attorney-in-fact for the beneficiary, Deutsche Bank. In particular, they pointed out that a notice of default may be recorded by the “ ‘the trustee, mortgagee, or beneficiary, or any of their authorized agents,’ ” and they noted that the notice of default here was recorded by T.D. Service Company as authorized agent for the beneficiary, Deutsche Bank. They also explained that to the ex tent American Home initiated th e foreclosure process, it was authorized to do so as an agent for the beneficiary under the deed of trust. In Saunders’s argument challenging the sust aining of the demurrers to his quiet title cause of action, nowhere do we find any re sponse to the foregoing assertions. To the extent Saunders intended to re ly on the validity of his other causes of action (discussed above) to support his attempt to quiet title to the property, on the theory that because of the various statutory violations alleged else where in the complain t the entities who were seeking to foreclose on the property had no ri ght to do so, we have concluded already that Saunders has failed to show any error in th e sustaining of the demurrers to his other causes of action. As a result, Saunders has fa iled to show that his complaint pleads any basis for concluding that the entities seeking to foreclose lack the right to do so. Absent such pleading, Saunde rs has shown no basis for qu ieting title to the property. Accordingly, the trial court did not err in sustaining the demurrers to Saunders’s first cause of action.21 XII Leave To Amend Saunders asserts at various places in his brief that the trial court should have given him leave to amend his complain t again, but he fails to offe r any specifics as to how he could have cured the defici encies in his complaint. This omission is fatal. “The plaintiff bears the burden of prov ing there is a reasonable possibility of amendment. . . . [¶] To satisfy that burde n on appeal, a plaintiff ‘must show in what manner he can amend his compla int and how that amendment w ill change the legal effect of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy this burden. [Citation.] The plaintiff mu st clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citation.] Allegations must be factual a nd specific, not vague or conclusionary. [Citation.] [¶] The burden of showing th at a reasonable possi bility exists that amendment can cure the defects remains with the plaintiff; ne ither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of ame ndment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer with out leave to amend.” ( Rakestraw v. California Physicians’ Service (2000) 81 Cal.Ap p.4th 39, 43-44.) Under the foregoing rules, Saunders has fa iled to show any abuse of discretion in the trial court’s denial of further leave to amend.
XIII Sanctions IndyMac has filed a motion to dismiss th e appeal as frivolous and for sanctions against Saunders’s attorney, Kathryn Reyno lds, contending “no reasonable attorney22 would have prosecuted this a ppeal against [IndyMac] because . . . [IndyMac] had nothing to do with the non-judicial foreclosure procee dings that are the subject of this lawsuit and appeal” and because Reynolds “h as prosecuted this appeal with an improper motive: her personal disagreement with the Placer County Superior Court for what she perceived as an erroneous ruling.” 11 “[A]n appeal may be found frivolous and sanctions imposed when (1) the appeal was prosecuted for an improper motive -- to hara ss the respondent or delay the effect of an adverse judgment; or (2) the appeal in disputably has no merit, i.e., when any reasonable attorney would agree that the appeal is totally an d completely without merit.” ( Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310.) IndyMac’s assertion that no reasonable atto rney would have pros ecuted this appeal turns primarily on a statement that appeared in Saunders ’s opposition to IndyMac’s demurrer to the third amended complaint. There, Reynolds asserted that “[t]he only reason Defendants ONE WEST BANK or IN DYMAC SERVICES were named was the NOTICE OF DEFAULT came in an envelope with Defendants ONE WEST BANK or INDYMAC SERVICES name on it. ” According to IndyMac, “[a]n alleged name on an envelope is too flimsy a basis to associate OneWest with these non-judicial foreclosure

11 American Home and MERS requested sanc tions in their respondents’ brief but did not file a separate motion for sanctions and di d not file a declaration in support of their request. That is insufficient to put the issue of sanctions in favor of American Home and MERS properly before us. Ru le 8.276(a) of the California Rules of Court provides that this court may impose sanctions “[o]n motion of a party or its own motion.” Rule 8.54(a) provides that “a party wanting to make a moti on in a reviewing court must serve and file a written motion stating the grounds and th e relief requested and identifying any documents on which the motion is based,” an d the “motion must be accompanied by a memorandum.” Rule 8.276(b)(1) further provid es that “[a] party’s motion under [rule 8.276](a) must include a decl aration supporting the amount of any monetary sanction sought and must be served and filed before any order dismissing the appeal but no later than 10 days after the appellant’s reply brief is due.” American Home and MERS satisfied none of these requirements. Accord ingly, we do not consider their request for sanctions further.23 proceedings, particularly where the entirety of the public record, which counsel obviously consulted in detail, c onfirms the contrary.” In our view, the precise evidentiary basis for Reynolds’s decision to name OneWest and IndyMac as defendants in this action cannot be determined reliably from an isolated statement in an unsw orn opposition to a demurrer su ch that that statement may reasonably serve as the basis for finding that the action against those defendants (and the resulting appeal) was totally and completely without merit. We do not mean to say conclusively that Reynolds had a sufficient basis for pursuing this action against OneWest and IndyMac. We only conclude th at on the record pres ented to us, IndyMac has not sufficiently shown that she did not. As for IndyMac’s claim that Reynolds pros ecuted this appeal for an improper motive, IndyMac premises that claim in part on its assertion that the appeal totally lacked merit -- an assertion we have discussed alre ady. Beyond that, IndyMac points to various statements Reynolds made in Saunders’s opening brief that are openly disrespectful and disdainful of the trial court and its ruling. While we certainly do not condone those statements (see below), we do not perceive that they evidence an improper purpose for Reynolds’s pursuit of this appeal. Althou gh she certainly expressed her disagreement with the trial court inappropriately at various points in the opening brief, it still appears that her appeal on behalf of Saunders was mo tivated by an honest belief that the court’s ruling was error. That is not an improper mo tive and cannot serve as the basis for an award of sanctions on appeal. For the foregoing reasons, we deny IndyMac’s motion to dismiss and for sanctions.
XIV Request To Strike Opening Br ief And Contempt Of Court In its brief, IndyMac asked that we st rike Saunders’s ope ning brief and hold Reynolds in contempt of court because of va rious statements in Sa unders’s opening brief24 that “impugn[] the integrity of the Placer County Superior Court and the Commissioner assigned to [t]his case.” 12 “There can be no doubt of the power of an appellate court to strike from its files a brief or other document containing disres pectful, scandalous, or abusive language directed against the courts, officials, or litig ants, or to take such other action as the circumstances may require.” ( Carpenter v. Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 314.) While we agree that various statements in Saunders’s opening brief are disrespectful and disdainful of the trial court (see below), we nonetheless decline to strike the brief. As we have shown already, the brief contains no argument sufficient to justify reversal of the judgment of dismissa l, and therefore IndyMac suffers no prejudice from our denial of this request. As for IndyMac’s request that we hold Re ynolds in contempt, IndyMac points to only two cases as authority for this relief, and both of those cases involved a situation where the attorney made contempt uous statements about a court to that court . ( In re White (2004) 121 Cal.App. 4th 1453, 1477-1479; In re Buckley (1973) 10 Cal.3d 237, 246-250.) IndyMac offers no authority that di rectly supports a findi ng of contempt where

12 Among others, Saunders’s opening brief contains the following statements: “The trial court has no patients [ sic ] to properly review this case, and no understanding that a foreclosure requires the Note Holder to not only declare the default, but to collect the debt. There is no law that allows the trial court to be acting as a lap dog for the big banks. The Ruling on the demur [ sic ] is lazy and shows no legal analysis and a misreading of fact.” “The trial court again in its haste to rule for a top bank against the public wrongfully sustained this cause of action . . . . [¶] This is lazy and insulting to the Appellant spending time and money, and th e public forced to use this court.”
“The deeds of trust have been breached, and the [C]ivil [C]ode sections dedicated to maintaining the county records, are ignor ed by the courts in the Tahoe area, who blindly are handing over pr operties, ignoring the law.”25 an attorney makes contemptuous statements about a court to a different court . In light of this absence of authority, we decline to hold Rey nolds in contempt. At the same time, however, we want to make clear that disr espectful statements like those put forth by Reynolds have no place in any appellate document. DISPOSITION The judgment is affirmed. Defendants sh all recover their costs on appeal. (Cal. Rules of Court, rule 8.276(a).)

ROBIE , Acting P. J.

We concur:

MAURO , J.

DUARTE , J.