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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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) 

---- 

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 sustained demurrers to his third 

amended complaint without leave to amend. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND 

 The following statement of facts takes as true “the properly pleaded factual 

allegations, facts that reasonably can be inferred from those expressly pleaded, and 

matters of which judicial notice has been taken” (Fremont Indemnity Co. v. Fremont 
2 

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 Drive 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 trustee, 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 Mortgage Outlet recorded an assignment of all beneficial 

interest under the deed of trust and the promissory note to Option One Mortgage 

Corporation (Option One). That assignment was signed by a “manager” for The 

Mortgage Outlet. 

 In March 2009, defendant American Home Mortgage Servicing, 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 Home Loan Trust 2006-OPT3, Asset-Backed 

Certificates, Series 2006-OPT3. 

 In April 2009, American Home, as the attorney-in-fact for Deutsche Bank, 

recorded a substitution of AHMSI Default Services, Inc. as trustee in place of Fidelity 

National Title. 

 

1 Some of the recorded documents referenced 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 the trial court granted. This document was 

omitted from the clerk’s transcript on appeal, but American Home and 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 contact information in the notice 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 recorded, 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 trust and the note to Sand Canyon Corporation, formerly known as 

Option One. In turn, Sand Canyon assigned all beneficial interest 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 commenced this action by filing a complaint against a 

number of defendants, including OneWest Bank, American Home, MERS, and 

ServiceLink,3 seeking to quiet title to the property based generally on the contention that 

the parties attempting to foreclose on the property had no legally recognized interest in 

the property and that no one had a secured interest 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. Nevertheless, 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, Inc., 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 demurred, as did IndyMac and 

ServiceLink. The trial court concluded the complaint was unintelligible and gave 

Saunders “one more chance to try and state 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, the trial court entered its ruling sustaining all of the demurrers 

without leave to amend. On August 5, 2011, the court entered an order of dismissal in 

favor of American Home, MERS, IndyMac, and ServiceLink. On August 22, 2011, 

Saunders filed his notice of appeal.6

 

4 Saunders designated these documents for inclusion in the clerk’s transcript but the 

superior court failed to include them. American Home and IndyMac have requested that 

we take judicial notice of the documents, and we grant those requests. 

5 Saunders designated his opposition to ServiceLink’s demurrer for inclusion in the 

clerk’s transcript, and it is included, but Saunders did not designate ServiceLink’s 

demurrer for inclusion in the clerk’s transcript, 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 leave to amend, which is not appealable (Beazell 

v. Schrader (1962) 205 Cal.App.2d 673, 674). Nevertheless, because “[t]he notice of 

appeal must be liberally construed” (Cal. Rules 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 2923.57

 In his fourth cause of action,8 Saunders alleged the notice of default was void 

because it did not include the due diligence declaration required by section 2923.5. The 

trial court concluded that this allegation did “not state a cause of action under California 

law.” 

 Subdivision (b) of section 2923.5 provides 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 contact was required because the individual did not 

meet the definition of ‘borrower’ pursuant to subdivision (c) of Section 2920.5.” The 

notice of default here included the following statement: “The undersigned mortgagee, 

beneficiary or authorized agent for the mortgagee or beneficiary pursuant to California 

Civil Code § 2923.5(b) declares that the mortgagee, 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 required by California Civil code 2923.5.” 

 

7 Undesignated section references are to the Civil Code. 

8 Because Saunders’s first cause of action (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. Because 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 concession that the trial court properly sustained the demurrers to 

those causes of action. Because Saunders’s fifteenth cause of action (breach of contract) 

was asserted only against The Mortgage Outlet, and The Mortgage 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 asserts that “[t]he trial court erred in not requiring the 

defendant to be the Lender capable of complying 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 appellant must . . . affirmatively demonstrate 

error on the record before the court. ‘ “ ‘A judgment or order of the lower court is 

presumed correct. All intendments and presumptions 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.’ [Citations.]” [Citations omitted.]’ ” (In re Marriage of 

Falcone & Fyke (2008) 164 Cal.App.4th 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 insufficient to satisfy the requirements of subdivision (b) of section 

2923.5, we conclude that Saunders has failed to carry his burden of showing that the trial 

court erred in sustaining the demurrers 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, mortgagee, beneficiary, or any of their 

authorized agents; there was “no clear beneficiary from the face of the” notice; there was 

“no Statement saying they would satisfy the obligations ‘secured 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 action 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 their 
7 

authorized agents shall first file 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 various 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 complaint stated a cause of action for violation of that statute. 

In the absence of any comprehensible argument on point, Saunders has not carried his 

burden of showing that it was error for the trial 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 contact information for the ‘beneficiary or mortgagee.’” The 

trial court concluded that this allegation “fail[ed] to state a cause of action under 

California law.” 

 Subdivision (b)(1) of section 2924c provides 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] review of the document should have been 

sufficient for the Court to see that [he] was correct and that the required [contact] 

information is missing.” In support 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 demurrers 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 property 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 acknowledged. The trial court concluded 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 real property is given to a 

mortgagee, or other encumbrancer, in an instrument intended 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 secured by the instrument. The power of sale 

may be exercised by the assignee if the assignment is duly acknowledged and recorded.” 

 On appeal, Saunders contends he adequately alleged “that the four (4) recorded 

Assignments violated this Civil Code [] 2932.5.” The flaw in Saunders’s argument is that 

“[i]t has been established since 1908 that this statutory requirement that an assignment of 

the beneficial interest in a debt secured by real property must be recorded in order for the 

assignee to exercise the power of sale applies only to a mortgage and not to a deed of 

trust.” (Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 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 action, Saunders alleged that the substitutions of trustee 

recorded in April 2009 and May 2010 were invalid because they were not signed by all of 

the beneficiaries under the deed of trust. The trial court concluded that Saunders had 

“failed to state any wrongdoing by the[] demurring Defendants.” 
9 

 Subdivision (a)(1) of section 2934a provides that “[t]he trustee under a trust deed 

upon real property or an estate for years therein given to secure an obligation to pay 

money and conferring no other duties upon the trustee than those which are incidental to 

the exercise of the power of sale therein conferred, may be substituted by the recording in 

the county in which the property is located of a substitution executed and acknowledged 

by: (A) all of the beneficiaries under the trust deed, or their successors in interest . . . .” 

 On appeal, Saunders contends 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 the 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 changing the trustee to Power 

Default Services, Inc. In his brief, reiterating the allegations from his complaint, 

Saunders contends Deutsche Bank had no power to substitute a trustee and American 

Home could not act on behalf of Deutsche Bank because “ ‘the Attorney in Fact is not 

recorded as required under the subject Deed of Trust.’ ” Beyond this, however, Saunders 

offers no argument, no explanation, and no facts. Under these circumstances, we 

conclude Saunders has failed to carry his burden on appeal of demonstrating trial court 

error in the sustaining of the demurrers to his eighth cause of action. 

VI 

Sections 2939, 2940, and 2941

 In his ninth, tenth, and eleventh causes of action, Saunders alleged that no 

certificate of discharge was recorded in connection with each of the assignments of the 

rights under the deed of trust and the promissory note. The trial court concluded these 

allegations were barred by the statute of limitations and failed to state a cause of action. 
10 

 Sections 2939, 2940, and 2941 contain various requirements relating to the 

recording of a certificate of discharge when a mortgage has been paid, satisfied, or 

discharged. 

 On appeal, Saunders contends 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,” and section 2941 applies when a mortgage has 

been “satisfied.” (Section 2940 merely requires that a certificate of discharge be 

recorded.) Here, the documents subject to judicial notice and the other allegations of 

Saunders’s complaint make it clear that Saunders’s debt under the promissory note was 

neither paid, satisfied, nor discharged. Rather, 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 payments -- it simply changes who is entitled to 

performance of the obligation. Because sections 2939, 2940, and 2941 do not apply to 

the assignment of a deed of trust and promissory note, the trial court properly sustained 

the demurrers to Saunders’s ninth, tenth, and eleventh causes of action. 

VII 

Section 1189 

 In his twelfth cause of action, Saunders alleged that the assignment recorded in 

August 2007, the substitution of trustee recorded in May 2010, and the assignment 

recorded in May 2010 were all void because the certificate of acknowledgement 

completed by the notary with respect to each document failed to comply with section 

1189. In particular, Saunders alleged the August 2007 assignment was void because the 

notary did not sign the certificate of acknowledgement under penalty of perjury, and the 

May 2010 substitution of trustee and assignment were void because the notary could not 

lawfully acknowledge that the persons who signed the documents acted in a “particular 
11 

representative capacity.” The trial court concluded that these allegations “fail[ed] to state 

a cause of action under California law.” 

 Subdivision (a)(1) of section 1189 prescribes the form for a certificate of 

acknowledgement taken within this state. The certificate must be made under penalty of 

perjury. (§ 1189, subd. (a)(1).) Subdivision (c) of section 1189 provides that “[o]n 

documents to be filed in another state or jurisdiction 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 particular representative capacity or to make 

other determinations and certifications not allowed by California law.” 

 On appeal, Saunders contends in a conclusory manner that this cause of action was 

“adequately pled,” but he makes no attempt to show how his complaint 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 penalty of perjury, the 

document notarized is void. Similarly, he offers no authority for the proposition that it is 

unlawful for a notary to acknowledge that a signer acted in a particular representative 

capacity9 or for the proposition that such an unlawful acknowledgement (assuming the 

unlawfulness) renders the notarized document void. Under these circumstances, 

Saunders has failed to carry his burden of showing that the trial court erred in sustaining 

the demurrers to his twelfth cause of action. 

 

9 To the extent Saunders intends 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 the signer is acting in a particular representative capacity. 

At most, read in isolation that 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 requires the notary to determine or certify that 

the signer holds a particular representative capacity. 
12 

VIII 

Section 1190 

 In his thirteenth cause of action, Saunders alleged that the assignment recorded in 

August 2007, the notice of default recorded in April 2010, the substitution of trustee 

recorded in May 2010, and the two assignments 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 persons 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 acknowledgment of an instrument 

executed on behalf of an incorporated or unincorporated entity by a duly authorized 

person in the form specified in Section 1189 shall be prima facie evidence that the 

instrument is the duly authorized act of the entity named in the instrument 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 president, secretary, and assistant secretary of 

the corporation.” 

 On appeal, Saunders contends in a conclusory manner that this cause of action was 

“adequately pled,” but he makes no attempt to show how his complaint stated a cause of 

action. In particular, Saunders offers no authority for the proposition that a document 

signed on behalf of a corporation by a person whose capacity is either not shown or is 

shown as something other than president, vice president, 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 demurrers to his thirteenth cause of action. 
13 

IX 

Section 1624 

 In his fourteenth cause of action, Saunders alleged that all four assignments were 

void because they did not “assume the indebtedness by the purchaser in the conveyance.” 

The trial court concluded that this allegation “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 secured 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 and subscribed by the party 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 property.” What this means, 

essentially, is that a promissory note by a purchaser 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 conveyance of”) the property. 

 On appeal, Saunders contends in a conclusory manner that this cause of action was 

“adequately pled,” but he makes no attempt to show how his complaint stated a cause of 

action under section 1624, nor can we even imagine 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 specifically provided for in the conveyance of (i.e., the deed to) 

the property simply has no bearing whatsoever on the validity of the assignments at issue 

here. Accordingly, the trial court did not err in sustaining the demurrers to Saunders’s 

fourteenth cause of action. 

X 

Wrongful Foreclosure 

 In his seventeenth cause of action, Saunders alleged that defendants “are in the 

process of conducting a wrongful foreclosure as they have violated several laws for 
14 

maintaining a secured interest in a piece of real property.” The trial court concluded that 

Saunders had “failed to state any facts alleging 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 where 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 Saunders means to contend that his wrongful foreclosure cause of 

action is premised on the statutory violations alleged 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 wrongful 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 purported to allege in his third amended 

complaint was one to quiet title to the property. Saunders alleged 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 secured by the property. The gist of his claim 

appears to be that because the promissory note was sold “into the secondary market to an 

unknown investor” (otherwise identified as “a securitized trust”), defendants had no 

interest in the note and therefore no right or standing to exercise the power of sale under 

the deed of trust. 

 In demurring to the third amended complaint, IndyMac argued that Saunders could 

not quiet title to the property “without alleging [that he is] able to tender the entire 
15 

indebtedness owing on the loan.” American Home and MERS argued more broadly that 

Saunders’s entire complaint, which challenged defendants’ attempt to conduct a 

nonjudicial foreclosure sale, was barred because he did not allege that he tendered, or had 

the ability to tender, the amounts owed under the loan. American Home and MERS also 

argued that all of Saunders’s claims were time-barred because the action was not 

commenced until nearly four and a half years after the loan closed. With respect to the 

quiet title cause of action in particular, American Home and MERS contended that 

Saunders had not alleged any wrongful conduct by either of them, the notice of default 

was properly recorded, and American Home was authorized to conduct the foreclosure 

sale as attorney-in-fact for the 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 entire 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 takes 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 set 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 the ultimate relief sought is recovery of real property, the 

five-year provisions of [Code of Civil Procedure] section 318 are automatically 

applicable, or should the plaintiffs be held to the ordinary rules applicable to rescission?” 

(Id. at p. 213.) In addressing that point, the California Supreme Court noted that “[t]he 

authorities on this subject are in confusion” and “[t]his confusion apparently arises out of 
16 

the failure of the cases to consider adequately the basic rights of the plaintiff arising out 

of defendant’s wrongful conduct, and the failure to consider the 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 facts that give rise to the plaintiff’s right to have his title 

quieted. Thus it has been held that a complaint couched in general terms alleging 

plaintiff’s ownership and defendant’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 specifying the defendant’s wrongdoing which is the 

basis of the quiet title action, the complaint 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 independently from the grounds 

upon which the relief is sought, and that the five-year statute is applicable. 

 “On the other hand, the more modern rule places more emphasis on the basic 

rights involved. Thus it has been held that, where the complaint is in two counts, one to 

quiet title, and one to cancel a deed, if the 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 the 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 facts constituting the fraud. [Citations.] It has 

been held that this rule requiring allegations of fraud in such 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 tendency is to look beyond the relief sought, and to view the 

matter from the basic cause of action giving rise 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 succinctly explained later in the opinion, “[q]uieting title is the 

relief granted once a court determines that title 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 quiet title if the cause of action fails to 

adequately allege a substantive basis for the court to grant that relief. For this reason, 

Saunders cannot avoid the demurrers to his first 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 court 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 foreclosure 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 court 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 based 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 have been employed for an idle purpose.” (Id.

at pp. 877-878, italics omitted.) On the other hand, where the debtor is not relying on 

equity to set aside a merely voidable deed, but instead relies on the face of the record to 
18 

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, that “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, however, the gist of Saunders’s claim here is 

that the defendants who recorded the notice of default against his property and who seek 

to foreclose on the property are not the holders of the promissory note and therefore are 

not entitled to any amounts owed on the debt secured by the property. To that extent, this 

is not simply a case where the plaintiff alleges some mere irregularity in a foreclosure 

sale conducted by the party that was otherwise 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 ordinarily be accompanied by an offer to 

redeem by paying the sum due. [Citations.] The plaintiff is held to compliance with the 

old maxim that he who seeks equity must do equity. [Citations] On the other hand, there 

are not a few cases holding that where a party 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 certainly not the law that an offer to pay the 

debt must be made, where it would be inequitable 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 promissory 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 to 
19 

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 action against them were time-barred, American 

Home and MERS asserted that Saunders’s “allegations focus on the origination of a loan 

which closed in January, 2006” and “since [his] claim to quiet title is an action based on 

allegations of fraud or mistake, the three (3) year statute of limitations . . . applies.” They 

also argued that all of Saunders’s causes of action for statutory violations were similarly 

barred by the three-year statute. 

 On appeal, Saunders argues that the trial 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 the 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 [Saunders’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 discovery rule and that rule was not raised in the trial court 

and Saunders’s argument on this point is not supported by citations to the record. 

 Despite Saunders’s failure to argue otherwise, we do not perceive 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 behalf of the original lender, its successors and 

assigns. Rather, it was based on the assertion that due to the various 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 therefore no right to sell the 

property under the deed of trust. Thus, the assertion by American Home and MERS that 

Saunders’s “allegations focus on the origination of a loan which closed in January, 
20 

2006” was not really true. The focus of the 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 quiet title cause of action, American Home 

and MERS contended Saunders 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 authorized 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 extent American Home initiated the 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 sustaining of the demurrers to his quiet 

title cause of action, nowhere do we find any response to the foregoing assertions. To the 

extent Saunders intended to rely 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 elsewhere in the complaint the entities who were 

seeking to foreclose on the property had no right to do so, we have concluded already that 

Saunders has failed to show any error in the sustaining of the demurrers to his other 

causes of action. As a result, Saunders has failed 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, Saunders has shown no basis for quieting 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 complaint again, but he fails to offer any specifics as to how he 

could have cured the deficiencies in his complaint. This omission is fatal. 

 “The plaintiff bears the burden of proving there is a reasonable possibility of 

amendment. . . . [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what 

manner he can amend his complaint and how that amendment will change the legal effect 

of his pleading.’ [Citation.] The assertion of an abstract right to amend does not satisfy 

this burden. [Citation.] The plaintiff must 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 and specific, not vague or conclusionary. 

[Citation.] [¶] The burden of showing that a reasonable possibility exists that 

amendment can cure the defects remains with the plaintiff; neither the trial court nor this 

court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to 

support the possibility of amendment 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 without leave to amend.” (Rakestraw v. California Physicians’ 

Service (2000) 81 Cal.App.4th 39, 43-44.) 

 Under the foregoing rules, Saunders has failed 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 the appeal as frivolous and for sanctions 

against Saunders’s attorney, Kathryn Reynolds, contending “no reasonable attorney 
22 

would have prosecuted this appeal against [IndyMac] because . . . [IndyMac] had nothing 

to do with the non-judicial foreclosure proceedings that are the subject of this lawsuit and 

appeal” and because Reynolds “has 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 harass the respondent or delay the effect of 

an adverse judgment; or (2) the appeal indisputably has no merit, i.e., when any 

reasonable attorney would agree that the appeal is totally and completely without merit.” 

(Bach v. County of Butte (1989) 215 Cal.App.3d 294, 310.) 

 IndyMac’s assertion that no reasonable attorney would have prosecuted 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 INDYMAC 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 sanctions in their respondents’ brief but did 

not file a separate motion for sanctions and did 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. Rule 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 motion in a reviewing court must serve and file 

a written motion stating the grounds and the relief requested and identifying any 

documents on which the motion is based,” and the “motion must be accompanied by a 

memorandum.” Rule 8.276(b)(1) further provides that “[a] party’s motion under [rule 

8.276](a) must include a declaration 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. Accordingly, 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, confirms 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 unsworn opposition to a demurrer such 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 that on the record presented to us, IndyMac 

has not sufficiently shown that she did not. 

 As for IndyMac’s claim that Reynolds prosecuted 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 already. 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. Although 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 motivated by an honest belief that the court’s 

ruling was error. That is not an improper motive 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 Brief And Contempt Of Court

 In its brief, IndyMac asked that we strike Saunders’s opening brief and hold 

Reynolds in contempt of court because of various statements in Saunders’s opening brief 
24 

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 disrespectful, scandalous, or abusive language 

directed against the courts, officials, or litigants, 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 dismissal, and therefore IndyMac suffers no prejudice 

from our denial of this request. 

 As for IndyMac’s request that we hold Reynolds 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 contemptuous 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 directly supports a finding 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 the 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 ignored by the courts in the Tahoe area, who 

blindly are handing over properties, 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 Reynolds in contempt. At the same time, 

however, we want to make clear that disrespectful statements like those put forth by 

Reynolds have no place in any appellate document. 

DISPOSITION 

 The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. 

Rules of Court, rule 8.276(a).) 

 ROBIE , Acting P. J. 

We concur: 

 MAURO , J. 

 DUARTE , J.