Filed 8/2/22 1197 West 39th Street v. Seterus CA2/7

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

1197 WEST 39TH STREET, LLC,

Plaintiff and Appellant,

v.

SETERUS, INC. et al.,

Defendants and Appellants.

 B299994

 (Los Angeles County

 Super. Ct. No. BC620025)

APPEALS from a judgment and postjudgment order of the 

Superior Court of Los Angeles County, Rupert A. Byrdsong, 

Judge. Judgment reversed. Postjudgment order denying 

attorney fees affirmed.

Leonard, Dicker & Schreiber, Richard C. Leonard and 

Kevin S. Dicker for Plaintiff and Appellant.

The Ryan Firm, Timothy M. Ryan, Andrew J. Mase and 

Tadeusz McMahon for Defendants and Appellants Seterus, Inc. 

and Federal National Mortgage Association.

______________________________
2

Plaintiff 1197 West 39th Street, LLC (the Company)

purchased from the trustee of Stanley Simmons’s bankruptcy 

estate property encumbered by a deed of trust securing a loan to 

Simmons. The Company sued Federal National Mortgage 

Association (Fannie Mae)—the deed of trust’s successor 

beneficiary—and Fannie Mae’s loan servicer, Seterus, Inc. 

(collectively the Fannie Mae parties), for declaratory relief to 

determine the amount required to pay off the loan. It also sued 

Fannie Mae for damages for an alleged refusal to provide certain 

information in violation of Civil Code section 2943.

1

After a bench trial the trial court entered judgment in favor 

of the Company. On the declaratory relief cause of action, the 

court determined the amount due to be $185,107.69. On the 

cause of action for a violation of section 2943, the court awarded 

the Company $88,850 in damages jointly and severally against 

the Fannie Mae parties. Although the court found the Company 

to be the prevailing party entitled to its costs of suit, including 

attorney fees if applicable, it denied the Company’s motion for 

attorney fees.

The Fannie Mae parties appeal the judgment on a variety 

of grounds, including the bankruptcy court had exclusive 

jurisdiction over the Company’s action; the cause of action for 

violation of Civil Code section 2943 was preempted by federal 

law; and the Company failed to establish the elements required 

by Code of Civil Procedure section 1060 for declaratory relief.2 

1 Undesignated statutory references are to the Civil Code 

except in section 4 of the Discussion.

2 The Fannie Mae parties, contending the Company failed to 

establish the existence of an actual controversy necessary to 

succeed on its declaratory relief cause of action, argued in the 
3

The Company appeals the trial court’s postjudgment order 

denying attorney fees.3 We reverse the judgment and affirm the 

postjudgment order denying attorney fees. 

FACTUAL AND PROCEDURAL BACKGROUND

1. The Complaint and First Amended Complaint

On May 11, 2016 the Company filed this action for 

declaratory relief against the Fannie Mae parties to determine 

the amount due on the secured loan that had been made to 

Simmons. On July 13, 2016 the Fannie Mae parties demurred to 

the complaint asserting that the Company, because it was not the 

borrower and had neither personal liability under the loan nor a 

contractual relationship with the Fannie Mae parties, lacked 

standing to pursue the matter and also that they were prohibited 

by law, including federal privacy laws, from sharing information 

with the Company absent authorization from Simmons, the 

borrower. The demurrer was noticed for hearing on February 17, 

2017. On September 2, 2016 the Company filed a first amended 

complaint that added a second cause of action against only 

Fannie Mae for violation of section 2943.

In its first amended complaint the Company alleged its 

lawsuit involved a deed of trust recorded on August 4, 2005 

against property located at 1197 West 39th Street in Los Angeles 

trial court, and asserted at least inferentially on appeal, that the 

Company lacked standing to seek a determination of the 

outstanding amount due on the loan to Simmons, which was 

secured by the deed of trust. At our request, the parties 

submitted supplemental briefing on the issue of standing. 

3 On March 11, 2020 we granted the Company’s unopposed 

motion to consolidate the two appeals.
4

that secured a loan to Simmons in the original sum of $285,000 

at an interest rate of 5.625 percent. The deed of trust and 

underlying loan changed hands several times but were eventually 

assigned to Fannie Mae, which hired Seterus to service the loan. 

Simmons filed for bankruptcy, and ownership of the property 

passed to his bankruptcy estate. On November 23, 2015 the 

Company purchased the property from the bankruptcy trustee 

subject to the deed of trust. On or about December 2, 2015 the 

Company began contacting the Fannie Mae parties to learn the 

outstanding loan amount. 

The Fannie Mae parties provided a demand dated 

January 8, 2016, addressed to Simmons and attached as an 

exhibit to the first amended complaint, which stated the amount

required to reinstate the loan to a current status was $32,539.81 

if received between January 8, 2016 and February 5, 2016. The 

demand indicated that reinstatement amount was comprised of 

$24,693.90 in past due principal and interest payments; 

$7,449.39 in tax and insurance payments; actual charges through 

February 5, 2016 (including one $411.92 entry with a due date in

May 2015 for “PSLGLPOSTINGCOST”); estimated charges 

through February 5, 2016; and a subtraction (-$209.52) for 

“Suspense Funds.” The January 8, 2016 demand stated the 

unpaid principal balance was $212,101.76. 

The first amended complaint noted the January 8, 2016 

demand did not further divide the $24,693.90 amount between 

principal and interest, and the $7,449.39 amount between tax 

and insurance. The Company alleged it had paid all property 

taxes due from the date it took title and it had also purchased 

insurance and an umbrella policy of $5 million. It questioned the 

charges on the demand as unsupported and contended the May 
5

2015 charge of more than $400 for posting costs violated an 

automatic stay issued by the bankruptcy court. 

The Company alleged it wired $32,539.81 to Seterus on 

February 4, 2016, and on February 26, 2016 sent another $5,000, 

which Seterus accepted. Since February 26, 2016 Seterus either 

refused to cash the Company’s checks or, when the Company paid 

electronically, returned money to the Company’s account. 

Although the Company submitted payments totaling $180,000 

between April 1 and April 14, 2016, all of the payments were 

returned or not cashed. The Company sent a replacement check 

in the amount of $180,000.

On March 30, 2016 Seterus sent a new demand, addressed 

to Steven Schuman of Leonard, Dicker & Schreiber LLP and also 

attached as an exhibit to the first amended complaint, that set 

forth a payoff amount rather than a reinstatement amount. The 

demand explained that “the amount required to pay your loan in 

full is $213,429.17,” a “payoff figure” that was “good through 

April 22, 2016,” with funds received after April 22, 2016

“requir[ing] an additional $32.18 interest per day.” The Company 

alleged the March 30, 2016 demand contained unsupported 

amounts that it disputed were owed. It also alleged the Fannie 

Mae parties refused to provide any back-up or explanation for the 

charges in either of the demands. It further contended interest 

should stop running on the amounts tendered by the Company 

from the dates of each payment even though the Fannie Mae 

parties had refused to accept and/or returned the funds. The 

Company sought a declaration of the amount due on the loan. It 

alleged entitlement to attorney fees pursuant to a paragraph of 

the deed of trust and section 1717.
6

The second cause of action alleged section 2943 required 

Fannie Mae to provide certain information to the Company 

within 21 days of demand—including the balance owed on the 

obligation; the amount of the monthly payment; the amount of 

the impound or escrow account; the nature and amount of any 

expense that Fannie Mae claimed had become a lien on the 

property; and the total amount due—but Fannie Mae failed and 

refused to provide the information in a timely manner, or at all. 

Despite the Company’s continuing requests for an accounting 

after filing of its action, the Fannie Mae parties’ counsel refused 

to provide further information. The first amended complaint 

attached exhibits described as “some of the relevant 

correspondence.” On July 21, 2016 Seterus returned the sum of 

$178,026.92 to the Company without an explanation. The 

Company further alleged, for its second cause of action, it had 

been damaged as a result of the rise in interest rates pending 

resolution of the matter because it was unable to refinance the 

property. It sought compensatory damages and a statutory 

penalty.

2. The Fannie Mae Parties’ Demurrer to the First Amended 

Complaint

The Fannie Mae parties demurred to the first amended 

complaint contending, among a host of other arguments, the 

Company failed to allege facts sufficient to establish an actual 

controversy because it lacked standing to pursue its action: As 

asserted by the Fannie Mae parties, a lender had no duty to 

accept a new owner of the collateral property as a borrower, as 

shown by title 12 United States Code section 1701j-3’s 
7

authorization of “due-on-sale clause[s]”4; section 13 of the deed of 

the trust in the case at bar provided in part, “[A]ny Successor in 

Interest of Borrower who assumes Borrower’s obligations under 

this Security Instrument in writing, and is approved by Lender, 

shall obtain all of Borrower’s rights and benefits under this 

Security Instrument. Borrower shall not be released from 

Borrower’s obligations and liability under this Security 

Instrument unless Lender agrees to such release in writing”; the 

Company was not a party to, or named as an intended beneficiary 

of, the loan secured by the deed of trust and had not assumed 

personal liability for the loan, which only reflected a contractual 

relationship between Simmons and the Fannie Mae parties; and 

federal district courts have held that a nonborrower lacks 

standing to challenge a deed of trust solely based on an 

ownership interest in the collateral property. For the cause of 

action for violation of Civil Code section 2943, the Fannie Mae 

parties argued the first amended complaint failed to allege facts 

sufficient to show when a written demand for information 

required under that statute was made to Seterus or Fannie Mae. 

They also contended the March 30, 2016 demand to Schuman

provided information complying with the statute. 

In its opposition the Company argued it did not claim to be 

the borrower and neither wanted to assume, nor claimed to have 

4 A “due-on-sale clause” is defined for purposes of title 12 

United States Code section 1701j-3 as “a contract provision which 

authorizes a lender, at its option, to declare due and payable 

sums secured by the lender’s security instrument if all or any 

part of the property, or an interest therein, securing the real 

property loan is sold or transferred without the lender’s prior 

written consent.” 
8

assumed, the loan. It argued it had standing to assert its 

declaratory relief cause of action as owner of the property and 

disagreed declaratory relief was available only for claims between 

parties to a contract. It also contended its first amended 

complaint provided dates and details regarding its attempts to 

obtain information. As for the March 30, 2016 payoff demand 

statement, the Company argued it was entitled to an accurate 

payoff demand statement under section 2943 but the Fannie Mae 

parties did not provide accurate information. 

The trial court overruled the demurrer to the declaratory 

relief cause of action. The court determined the Company, as 

owner of the property, had standing to seek a declaration as to 

the amount owed on the lien.

The court, however, sustained the demurrer to the cause of 

action for violation of section 2943 with leave to amend. After 

setting forth relevant provisions of that section—including the 

statutory requirement a “beneficiary, or his or her authorized 

agent,” deliver a beneficiary statement or a payoff demand 

statement within 21 days of a written demand by an “[e]ntitled 

person,” defined to include the trustor’s or mortgagor’s successor 

in interest in the mortgaged or trust property—the trial court, 

stating statutory causes of action must be pleaded with 

particularity, determined the Company’s claim was unclear and 

did not allege when any written demand was made for which the 

Fannie Mae parties had allegedly failed timely to respond. The 

court also granted the motion to strike attorney fee allegations 

with leave to amend, on the ground the Company was not a party 

to the loan or deed of trust and did not allege it had assumed, or 

substituted in as a party to, either agreement. 
9

3. The Operative Second Amended Complaint and the 

Fannie Mae Parties’ Demurrer to the Second Amended 

Complaint and Motion To Strike

On February 28, 2017 the Company filed the operative 

second amended complaint. With two exceptions, the allegations 

for the first cause of action for declaratory relief remained the 

same, or substantially the same.5

As for the second cause of action for violation of 

section 2943, which the Company continued to assert only 

against Fannie Mae, the second amended complaint added new 

allegations describing emails to the Fannie Mae parties in May 

and June 2016 requesting an accounting and other loan 

information. The emails were from Schuman, whom the 

Company identified as its counsel. The second cause of action 

also contained a new allegation that the Fannie Mae parties’ 

actions and omissions also constituted “a violation of 12 U.S.C. 

§ 2601, entitled Real Estate Settlement Procedures [Act] 

(RESPA), the relevant terms of which are largely incorporated by 

reference into the Deed of Trust.”6

The Fannie Mae parties demurred to the second amended 

complaint on several grounds. They again argued, with respect 

5 The two exceptions were: (1) the addition of an allegation 

that the monthly amounts comprising the $7,449.39 in tax and 

insurance payments set forth in the January 8, 2016 demand 

were impounds and not amounts the Fannie Mae parties had 

paid to someone else; and (2) the deletion of the paragraph 

regarding entitlement to attorney fees under section 1717 and 

the deed of trust.

6 With regard to the prayer for relief for attorney fees, 

although the first amended complaint stated entitlement to “costs 
10

to the declaratory relief cause of action, the Company’s lack of 

standing. The Fannie Mae parties also moved to strike the 

references to a violation of RESPA and entitlement to attorney 

fees. In support of their motion to strike the RESPA reference,

the Fannie Mae parties argued they had removed the action to 

federal court based on the Company’s allegation they had 

violated RESPA but the Company filed a motion to remand in 

which it admitted it was not relying on that allegation as the 

basis for any form of relief. The Company’s motion to remand, 

which was attached as an exhibit to the Fannie Mae parties’ 

motion to strike, stated the Company “seeks no enforcement of 

RESPA”; there was “no claim for damages under RESPA”; “[t]he 

fact that the Deed of Trust happens to incorporate by reference 

certain terms of RESPA does not mean that any issue arising 

under the Deed of Trust must be—or can be—handled in Federal 

Court”; “[a]ll of [the Company’s] claims fall under the Deed of 

Trust and Civil Code § 2943”; and, because the case did not 

involve a question of federal law, the matter should be remanded 

to the state court.

The Company filed an opposition to the Fannie Mae 

parties’ demurrer and motion to strike. The Company asserted

the Fannie Mae parties’ challenges to the declaratory relief cause 

of action were already rejected when the trial court overruled 

their demurrer to the first amended complaint. In opposing the 

motion to strike the RESPA allegation, the Company, attaching a 

copy of the district court’s April 10, 2017 order remanding the 

action, pointed out that court had determined a fleeting reference 

of suit, including attorneys’ fees,” the second amended complaint 

added the language “if applicable.” 
11

to RESPA buried in a cause of action under section 2943 was 

insufficient to confer federal question jurisdiction; federal law, 

specifically RESPA, did not create the cause of action; and the 

Company’s right to relief did not depend on a resolution of the 

RESPA allegation. The Company acknowledged its “claims arise 

under the deed of trust, not RESPA, as the Federal Court has 

already decided,” but argued there was no reason to strike any 

reference to RESPA from the second amended complaint. 

On March 5, 2018 the trial court overruled the Fannie Mae 

parties’ demurrer to the second amended complaint, but, 

granting their motion to strike without leave to amend, struck 

the allegation relating to RESPA, as well as the allegation of 

entitlement to attorney fees in the prayer for relief. 

4. The Fannie Mae Parties’ Motion for Summary Judgment

or, in the Alternative, Summary Adjudication

On April 19, 2018 the Fannie Mae parties moved for 

summary judgment, or in the alternative, summary adjudication 

on both causes of action. The notice of motion identified 

two issues for summary judgment or adjudication: (1) The second 

cause of action for a violation of section 2943 was without merit 

because “the undisputed facts show that Plaintiff received a 

payoff statement dated March 30, 2016, and a beneficiary 

statement in July 2016 in response to its singular request for said 

statement”; and (2) the first cause of action for declaratory relief 

was without merit because “the undisputed facts show that all 

charges, fees, and payments made by Plaintiff are accurately 

accounted for, and no actual controversy exists as to the amount 

required to satisfy the deed of trust.” 

On July 17, 2018 the trial court issued an order denying 

the motion. Although the order stated “the refusal to accept 
12

partial payment does not provide a basis for declaratory relief”

and “the Reinstatement charge of $411.92,” “the accounting for 

the $5,000 payment from February 26, 2016,” and “the escrow 

account balance” similarly do “not provide a basis for declaratory 

relief or set forth an inaccuracy in the statement,” the court 

denied the motion for summary adjudication as to the first cause 

of action due to a material factual dispute regarding the 

requirement to pay for property insurance. Because of material 

fact disputes as to whether the Fannie Mae parties timely 

provided accurate payoff and beneficiary statements, the court 

denied the motion for summary adjudication as to the second 

cause of action. 

5. The Trial

The bench trial commenced on February 7, 2019. The only 

witness who testified in person was Schuman, who, along with 

another attorney, also appeared as the Company’s counsel. The 

court admitted many of the Company’s exhibits into evidence. 

On February 8, 2019 the Fannie Mae parties sought to 

have Rene Burden, a Seterus employee, testify. The Company 

objected on the ground another witness, Janisse Hall, had been 

produced for deposition as Fannie Mae’s person most 

knowledgeable about the loan but Fannie Mae refused to have 

Hall appear at trial. (The Fannie Mae parties’ counsel had 

explained Hall, as an out of state witness, could not be compelled 

to attend the trial.) Counsel for the Fannie Mae parties told the 

court Burden was on the witness list, the deposition that had 

taken place was for Fannie Mae’s person most knowledgeable,

and the Company had voluntarily withdrawn its request to 

depose Seterus’s person most knowledgeable. The Fannie Mae 

parties’ counsel, as an offer of proof, stated Burden would testify 
13

about Seterus’s practices as a loan servicer and its accounting for 

Fannie Mae. He explained Fannie Mae, although an owner of the 

loan, was an investor who did not perform accounting for its own 

loans; rather, it used servicers like Seterus for the sole purpose of 

“keeping the books.” 

The court replied, “No, not going to do that.” The court 

stated, “We don’t play fast and loose with, ‘Well, you didn’t ask 

for the right name, didn’t ask for the right label.’” Although the 

court stated the “obvious cure” was to provide the Company an 

opportunity to depose Burden, the court explained, the “problem 

is, we’re here in the middle of trial.” After further argument from 

the parties’ counsel, the court asked the Fannie Mae parties’ 

attorney to identify the business records about which the Fannie 

Mae parties sought testimony. Among the records identified by 

the Fannie Mae parties’ attorney was trial exhibit 217, which was 

comprised of account records that had been produced to the 

Company. The Company’s attorney objected to the admissibility 

of trial exhibit 217 for lack of foundation, and the Fannie Mae 

parties’ attorney explained Burden could testify in depth about 

the account history and its creation.

The court told the Fannie Mae parties’ counsel, “I don’t 

want the defense to be prejudiced in terms of putting on the case. 

So if you deem to put Ms. Burden up for a deposition, after the 

deposition we’ll resume the trial.” Asked by the court when he 

wanted to take Burden’s deposition, the Company’s attorney 

responded he did not wish to take her deposition. The court 

stated, “[B]ut I can’t let her testify. Unless you’re not objecting to 

her testifying and whatever happens happens.” The Company’s 

attorney replied, “I move to exclude her. The court’s denied that 
14

and offered me the deposition, so now I’ve got a choice. I either 

have to—right now it’s on me.” The court stated, “It is on you.”7

The court proposed the parties submit the balance of their 

arguments in written briefing for the court to rule on and also 

referred to an earlier discussion about the parties submitting 

closing arguments in writing. It stated, “I’ll receive whatever and 

the parties agree that my statement of decision will be based on 

those briefs and the evidence I’ve received today.” The court 

clarified the evidence received that day included trial exhibit 217, 

which was admitted into evidence. The Company’s counsel 

stated he agreed. The court and parties discussed the 

admissibility of each of the defense’s additional exhibits, more of 

which were admitted into evidence that day. 

6. The Proposed Statement of Decision, the Final Statement 

of Decision, the Fannie Mae Parties’ Objections and the 

Judgment

The parties submitted their posttrial/closing argument 

briefs on February 15, 2019. On April 26, 2019 the trial court 

filed its “Proposed Statement of Decision” representing its 

“Intended Statement of Decision,” which it explained it was 

7 Based on the February 8, 2019 transcript of the court’s 

discussion with the parties, the parties on appeal dispute 

whether the trial court had excluded Burden from testifying. The 

Fannie Mae parties contend the trial court abused its discretion 

in prohibiting Burden from testifying. The Company asserts the 

trial court had denied the Company’s motion to exclude Burden 

and the Fannie Mae parties thus chose not to call Burden to the 

stand. The Company also points out it had brought a motion in 

limine to exclude evidence not produced in discovery, which it 

contends includes Burden’s testimony, and the court never 

formally ruled on that motion. 
15

submitting pursuant to California Rules of Court, 

rule 3.1590(c)(4). The proposed statement of decision indicated

the only witness who testified was Schuman and the defense was 

comprised solely of the cross-examination of that witness. The 

court attached and incorporated by reference its minute orders 

detailing the trial exhibits that had been marked, identified 

and/or admitted in the case. The document also stated, “This 

Intended Statement of Decision is submitted in an effort to 

provide the parties with an understanding of the legal and 

factual basis for the Court’s rulings.” Under the heading 

“Factual Summary,”

8 the court set forth what it described as 

“[t]he material, significant facts.” In a separate section titled 

“Legal Analysis—Plaintiff’s Cause of Action for Accounting under 

Civil Code 2943,”

9 the court stated in part, “Plaintiff bought the 

property for $22,000 cash subject to a lien of $51,000 and 

Defendants’ Deed of Trust. Plaintiff paid $39,512.89 and owes 

another $185,107.69. This evidence was unchallenged.” The 

court found the Company had sustained damages, discussed its 

damages calculation and stated the Company was entitled to 

$87,850. It declined to award any statutory penalties under 

section 2943, subdivision (e)(4).

8 We have omitted all unnecessary capitalization of letters, 

underling and bold-face type in the trial court’s orders, the 

parties’ discovery requests and any other documents quoted.

9 Although the introductory paragraphs of the proposed 

statement of decision referred to the Company’s two causes of 

action as one for an “accounting (declaratory relief)” and another 

for “violation of Civil Code Section 2943,” its legal analysis 

section did not differentiate between the two causes of action.
16

On April 26, 2019 a minute order was entered that stated, 

“The Proposed Statement of Decision will become the final 

Statement of Decision unless objections or proposals are received 

pursuant to California Rules of Court[, rule] 3.1590(c)(1).” On 

May 16, 2019 the trial court filed its “Final Statement of 

Decision,” which was substantially the same as its proposed 

statement of decision, except it stated the Company was entitled 

to $88,850 in damages.

10

On May 20, 2019 the Fannie Mae parties filed objections to 

the April 26, 2019 proposed statement of decision on a variety of 

grounds. On May 23, 2019 the Fannie Mae parties filed renewed 

objections on the same grounds, as well as objections to the 

proposed judgment. 

On June 6, 2019 a minute order was entered stating the 

Fannie Mae parties’ May 20, 2019 objections, which the trial 

court found were “timely filed,”11 were overruled. The trial court 

also overruled their May 23, 2019 renewed objections and 

objections to the proposed judgment. 

The court entered judgment on June 12, 2019. In its 

judgment the court stated, for the first cause of action, it “finds 

and determines that the amount due on the First Deed of Trust is 

$185,107.69.” For the second cause of action, the court stated it 

“finds in favor of [the Company], and against [the Fannie Mae 

parties], and awards damages in the sum of $88,850, jointly and 

10 In its subsequently entered judgment the court explained 

the difference in the amount of damages was due to a 

mathematical error in the April 26, 2019 proposed statement of 

decision. 

11 The proposed statement of decision had been mailed to the 

parties’ counsel on a date later than April 26, 2019. 
17

severally.” (Internal footnote has been omitted.) The court found 

the Company to be the prevailing party and entitled to its costs of 

suit, “including if applicable attorneys’ fees,” against the Fannie 

Mae parties. 

DISCUSSION

1. The Fannie Mae Parties Failed To Establish the 

Bankruptcy Court Had Exclusive Jurisdiction over the 

Action

a. Background facts

At trial Schuman testified he was one of two managers of 

the Company, which was formed in late 2015 for the purpose of 

buying a triplex from Simmons’s bankruptcy estate. The 

Company bought the property pursuant to an asset purchase 

agreement entered into on October 31, 2015 by three parties: the 

Company; the trustee for Simmons’s bankruptcy estate; and 

Peter Lively, a bankruptcy attorney who was Schuman’s friend 

and had told Schuman about the bankruptcy trustee’s attempt to 

sell the property. According to the asset purchase agreement’s 

recitals, on November 26, 2013, Simmons had filed a voluntary 

bankruptcy petition pursuant to chapter 7 of title 11 of the 

United States Code; the property, which the bankruptcy trustee

had acquired by setting aside fraudulent transfers in an 

adversary proceeding, was among the assets of the bankruptcy 

estate; Lively had recorded an abstract of judgment with the 

Los Angeles County Recorder’s Office and had a secured claim 

against the estate in the approximate amount of $51,000; the 

Company wished to purchase the property; and the bankruptcy 

trustee wished to resolve Lively’s claim. 

The asset purchase agreement provided the bankruptcy 

trustee was to pay $15,000 to Lively upon entry of a final order 
18

approving that agreement, with the balance of Lively’s claim to 

be the Company’s responsibility and Lively having no further 

claim against the bankruptcy trustee or the bankruptcy estate. 

Upon entry of that final approval order, the bankruptcy trustee 

was to execute and deliver a quitclaim deed in favor of the 

Company, with the Company purchasing the property on an “as 

is” basis, without any representations or warranties. The 

effectiveness of the asset purchase agreement was subject to the 

approval of the court in which Simmons’s bankruptcy case was 

pending. The bankruptcy court’s order was to specify title was 

being transferred to the Company, “subject only to the existing 

deed of trust recorded on August 4, 2005 as Inst. No. 05-

1860555”—that is, as shown by exhibits admitted at trial, the 

deed of trust of which Fannie Mae was the successor 

beneficiary—Lively’s abstract of judgment and real property 

taxes, if any. The asset purchase agreement provided, “No other 

liens shall attach to the Property.” It further provided, “The 

parties hereto agree that the United States Bankruptcy Court for 

the Central District of California shall have sole and exclusive 

jurisdiction, sitting without a jury, to hear and determine and 

[sic] disputes that arise under or on account of this Agreement.” 

The asset purchase agreement contained signature blocks for the 

bankruptcy trustee, Lively and Schuman as the Company’s 

managing member.

On November 23, 2015 the bankruptcy court issued an 

order authorizing the bankruptcy trustee to sell the property to 

the Company. In conformity with the asset purchase agreement, 

the order provided the property was being sold “as is,” without 

any representations or warranties, and free and clear of all liens 

except for the August 4, 2005 deed of trust, Lively’s abstract of 
19

judgment and any real property taxes. The bankruptcy trustee 

was authorized and empowered to execute and deliver on behalf 

of the estate any and all documents as reasonably may be 

necessary to implement the terms of the proposed sale. The order 

further stated, “The Court shall retain jurisdiction to adjudicate 

any disputes that may arise in connection with the sale of the 

Property.” 

Subsequently, Schuman was given a quitclaim deed dated 

November 24, 2015 that provided the bankruptcy trustee 

quitclaimed to the Company all of the bankruptcy estate’s right, 

title and interest in the property. The quitclaim deed’s cover 

page showed it was recorded December 2, 2015. Schuman 

testified he never filed a complaint in the Bankruptcy Court for 

the Central District of California to determine the amount of a 

lien, nor did he submit any filing in the bankruptcy court to 

determine the amount of Fannie Mae’s lien. 

b. The bankruptcy court did not have exclusive 

jurisdiction over the Company’s claims

The Fannie Mae parties contend on appeal, as they did in 

their February 15, 2019 closing brief in the trial court, the trial 

court lacked jurisdiction over the Company’s claims because, 

pursuant to the provisions of the asset purchase agreement and 

the bankruptcy court’s subsequent order, the bankruptcy court 

had exclusive jurisdiction over those claims. Specifically, the 

Fannie Mae parties argue the Company by its action seeks a 

determination of the amount due on Fannie Mae’s lien, which, 

they assert, is a “dispute[] that [arose] under or on account of” the 

asset purchase agreement and thus within the scope of that 

agreement’s exclusive bankruptcy court jurisdiction provision, as 

well as a “dispute[] that [has] arise[n] in connection with the sale 
20

of the Property” and thus within the scope of the bankruptcy 

court’s November 23, 2015 order retaining jurisdiction. This 

argument fails as a matter of law.12

“[T]here is . . . a ‘presumption of concurrent jurisdiction’ 

between federal courts and state courts.” (Kingston Constructors, 

Inc. v. Washington Metropolitan Area Transit Authority (1997) 

14 Cal.4th 939, 948.) Although “‘[we] begin[] with the 

presumption that state courts enjoy concurrent jurisdiction’” 

(Cianci v. Superior Court (1985) 40 Cal.3d 903, 910), “‘Congress

. . . may confine jurisdiction to the federal courts either explicitly 

or implicitly. Thus, the presumption of concurrent jurisdiction 

can be rebutted by an explicit statutory directive, by 

unmistakable implication from legislative history, or by a clear 

12 “‘It is . . . solely a judicial function to interpret a written 

instrument unless the interpretation turns upon the credibility of 

extrinsic evidence.’ [Citation.] When there is no extrinsic 

evidence or ‘no conflict’ in such extrinsic evidence as has been 

introduced, ‘we must make an independent determination of the 

meaning’ of a legal instrument.” (Faus v. City of Los Angeles

(1967) 67 Cal.2d 350, 360; see Garcia v. Truck Ins. Exchange

(1984) 36 Cal.3d 426, 439 [interpretation of a written contract is 

“solely a judicial function . . . unless the interpretation turns 

upon the credibility of extrinsic evidence, even when conflicting

inferences may be drawn from uncontroverted evidence”]; 

Gilkyson v. Disney Enterprises, Inc. (2021) 66 Cal.App.5th 900, 

915 [“[a]bsent any conflict in extrinsic evidence, we review de 

novo issues regarding the proper interpretation of a contract”].) 

The Fannie Mae parties, in asserting in the trial court their 

argument the bankruptcy court had exclusive jurisdiction, did not 

rely on any disputed extrinsic evidence for the interpretation of 

the asset purchase agreement or the bankruptcy court’s 

November 23, 2015 order. 
21

incompatibility between state-court jurisdiction and federal 

interests.’ [Citation.] Put otherwise, ‘the presumption is that 

jurisdiction is concurrent, and some strong showing of need for 

exclusive jurisdiction is required to overcome that presumption.’” 

(Ibid.; accord, Mims v. Arrow Financial Services, LLC (2012) 

565 U.S. 368, 378.)

Here, the Fannie Mae parties do not rely on a statutory 

basis to assert the bankruptcy court has exclusive jurisdiction

over the Company’s claims. Indeed, they argue title 28 United 

States Code section 1334(b)—which states, except as provided in 

a subsection not relevant to this appeal, “notwithstanding any 

Act of Congress that confers exclusive jurisdiction on a court or 

courts other than the district courts, the district courts shall have 

original but not exclusive jurisdiction of all civil proceedings 

arising under title 11, or arising in or related to cases under 

title 11”—should not control because the Company’s claims in 

this action fall within the scope of the asset purchase agreement’s 

and November 23, 2015 bankruptcy court order’s provisions 

pertaining to jurisdiction. 

As the Company explains, however, the purpose of the 

asset purchase agreement, as set forth in its recitals, was to 

effectuate the Company’s desire to purchase the property and the 

bankruptcy trustee’s desire to resolve Lively’s claim, with no 

mention of resolution of any claim over the amount of Fannie 

Mae’s lien. The Fannie Mae parties are not parties, the Company 

argues, to the asset purchase agreement; and, notwithstanding a 

reference to “the existing deed of trust recorded on August 4, 

2005 as Inst. No. 05-1860555,” the Fannie Mae parties 

themselves are not even mentioned in the agreement. 
22

One who is not a party to or an intended third party 

beneficiary of a contract ordinarily lacks standing to enforce the 

contract’s terms. (Berclain America Latina, S.A. de C.V. v. Baan 

Company N.V. (1999) 74 Cal.App.4th 401, 405; Eastern Aviation 

Group, Inc. v. Airborne Express, Inc. (1992) 6 Cal.App.4th 1448, 

1452; see § 1559 [intended third party beneficiary has standing to 

enforce contract].) While there are exceptions to this general 

principle—for example, a nonsignatory may be able to enforce a 

contractual forum selection clause against a signatory if the 

nonsignatory was “closely related” to the contractual 

relationship, that is, the nonsignatory shared a “defined and 

intertwining business relationship with a contracting party” (see, 

e.g., Bancomer, S.A. v. Superior Court (1996) 44 Cal.App.4th 

1450, 1458-1462)—nothing in the asset purchase agreement 

indicates the Fannie Mae parties had standing to enforce that 

agreement. Indeed, the Fannie Mae parties never attempted to 

establish they were parties, signatories or intended third party 

beneficiaries of the asset purchase agreement, nor did they assert 

or attempt to show they shared a defined and intertwining 

business relationship with a contracting party or otherwise had 

standing to enforce the asset purchase agreement’s terms. 

As for the bankruptcy court’s November 23, 2015 order

authorizing the sale of the property, which also provides the court

retains jurisdiction to adjudicate any disputes that may arise in 

connection with the sale, the Fannie Mae parties never argued 

they were parties to any proceeding over which the bankruptcy 

court had “retained” jurisdiction. In sum, the trial court properly 

exercised jurisdiction over the Company’s lawsuit. (See Ventura 

v. ABM Industries Inc. (2012) 212 Cal.App.4th 258, 265 [“[t]he 

trial court has jurisdiction ‘unless and until’ the defendant proves 
23

otherwise”]; People v. Crusilla (1999) 77 Cal.App.4th 141, 146 [“it 

is well established that in state courts a claim that jurisdiction 

lies elsewhere (i.e., in the federal government) over an offense 

that is committed within the boundaries of the state, and that is 

defined by state law, is a defensive matter, and the defendant is 

required to allege and prove in the trial court ‘“any facts which he 

now claims might have had the effect of vesting exclusive 

jurisdiction in the federal courts”’”].)

2. The Company’s Cause of Action for Violation of 

Section 2943 Is Preempted and Must Be Dismissed

The Fannie Mae parties contend federal law—specifically, 

the Home Owners’ Loan Act (12 U.S.C. § 1461 et seq.) (HOLA) 

and regulations promulgated pursuant to HOLA by the Office of 

Thrift Supervision (OTS)—preempts the Company’s second cause 

of action for violation of Civil Code section 2943.13 We agree: The 

undisputed facts and facts not reasonably subject to dispute 

establish preemption under HOLA.14 

13 As with the Fannie Mae parties’ bankruptcy jurisdiction 

contention, neither the statement of decision, which purported to 

provide the basis for the court’s rulings, nor anything else in the 

record indicates the court ruled on the preemption argument,

even though the Fannie Mae parties had set forth that argument 

in their closing brief and objected to the proposed statement of 

decision for omitting the issue. Even if the trial court had ruled 

there was no preemption, we would reverse.

14 Federal preemption presents “a pure question of law” 

subject to de novo review. (Farm Raised Salmon Cases (2008) 

42 Cal.4th 1077, 1089, fn. 10; accord, Herpel v. County of 

Riverside (2020) 45 Cal.App.5th 96, 100; see Spielholz v. Superior 

Court (2001) 86 Cal.App.4th 1366, 1371 [“[p]reemption is a legal 

issue involving statutory construction and the ascertainment of 
24

As discussed, the Company alleged Fannie Mae, as holder 

of the deed of trust securing the loan to Simmons, was required 

under section 2943 to provide certain information and disclosures 

regarding the loan, such as the amount needed to pay off the 

loan, within 21 days of the Company’s demand, but Fannie Mae 

failed to respond timely or at all. The deed of trust, an exhibit 

admitted at trial, is dated July 29, 2005; identifies the lender as 

“IndyMac Bank, F.S.B., a federally chartered savings bank”; 

provides, “Lender is a Federal Savings Bank organized and 

existing under the laws of the United States of America”; defines 

“Loan” as “the debt evidenced by the Note,” plus other amounts 

such as interest and any late charges; and defines “Note” as “the 

promissory note signed by Borrower and dated July 29, 2005.” 

Similarly, the promissory note, also an admitted trial exhibit, is

dated July 29, 2005 and identifies the lender as “IndyMac Bank, 

F.S.B., a federally chartered savings bank.” The Company did 

not dispute IndyMac Bank was the original lender and was at the 

time a federally chartered savings bank. IndyMac Bank’s 

uncontested federal savings bank status necessarily means the 

Company’s section 2943 cause of action against Fannie Mae was 

preempted.

legislative intent, which we also review de novo”].) “However, 

‘when conflicting inferences may be drawn from undisputed facts, 

the reviewing court must accept the inference drawn by the trier 

of fact so long as it is reasonable.’” (Herpel, at p. 100.) Here, 

although the trial court made no ruling on the Fannie Mae 

parties’ preemption argument, and notwithstanding the Fannie 

Mae parties disputed they violated section 2943, the parties in 

the trial court and on appeal did not, for purposes of the 

preemption issue, identify any material underlying facts or 

inferences that are disputed.
25

“Whether state law is preempted by federal law depends on 

whether Congress intended that federal law supersede state law.” 

(Lopez v. World Savings & Loan Assn. (2003) 105 Cal.App.4th 

729, 736 (Lopez); accord, Peatros v. Bank of America (2000) 

22 Cal.4th 147, 157 [“[w]hether federal law preempts state law is 

fundamentally a question whether Congress has intended such a 

result”].) “‘[F]ederal regulations have no less pre-emptive effect 

than federal statutes.’” (Lopez, at p. 736; accord, Jevne v. 

Superior Court (2005) 35 Cal.4th 935, 950.)

“Between 1933 and 1989, federal savings and loan 

associations (also referred to as thrift institutions or thrifts) were 

regulated under . . . HOLA by the Federal Home Loan Bank 

Board [the Board],” which “was given ‘plenary authority to issue 

regulations governing’ thrift institutions and superseding state 

law.” (Akopyan v. Wells Fargo Home Mortgage, Inc. (2013) 

215 Cal.App.4th 120, 138 (Akopyan); see Fidelity Federal Sav. &

Loan Assn. v. de la Cuesta (1982) 458 U.S. 141, 160, 162 [under 

HOLA, “Congress gave the Board plenary authority to issue 

regulations governing federal savings and loans”; HOLA’s 

“statutory language suggests that Congress expressly 

contemplated, and approved, the Board’s promulgation of 

regulations superseding state law”].) The OTS replaced the 

Board in 1989 and “was given the same plenary power to regulate 

federal savings associations.” (Akopyan, at p. 138.)15 

15 As also explained in Akopyan, supra, 215 Cal.App.4th at 

page 140, “[t]o allow federal thrifts ‘greater flexibility in their 

lending and investment operations,’ the OTS . . . directed the 

thrifts to comply with the uniform interagency real estate lending 

standards set forth at 12 Code of Federal Regulations 

parts 560.100 and 560.101,” which “required that a savings 

association ‘establish loan administration procedures for its real 
26

The OTS in 1996 adopted 12 Code of Federal Regulations 

part 560.2, in which, at paragraph (a), the OTS made clear it 

“occupie[d] the entire field of lending regulation for federal 

savings associations.” (61 Fed.Reg. 50951-50952, 50965-50966

(Sept. 30, 1996); 12 C.F.R. § 560.2(a).) “Federal savings 

association” under HOLA includes a federally chartered savings 

bank. (12 U.S.C. § 1462(3) [“[t]he term ‘Federal savings 

association’ means a Federal savings association or a Federal 

savings bank chartered under section 1464 of this title”]; see 

Appling v. Wachovia Mortg., FSB (N.D.Cal. 2010) 745 F.Supp.2d 

961, 970-971 [“Federal savings associations, including federal 

savings banks, are subject to HOLA and regulated by the Office 

of Thrift Supervision”].) In keeping with its “inten[t] to give 

federal savings associations maximum flexibility to exercise their 

lending powers in accordance with a uniform federal scheme of 

regulation,” the OTS allowed federal savings associations to

“extend credit as authorized under federal law, including this 

part, without regard to state laws purporting to regulate or 

otherwise affect their credit activities,” subject to certain 

exceptions. (12 C.F.R. § 560.2(a).) In paragraph (b) the OTS 

provided a non-exhaustive list of examples illustrating “the types 

of state laws preempted by paragraph (a),” such as, at 

subparagraph (9), “[d]isclosure and advertising, including laws 

estate portfolio,’ addressing such matters as . . . payment 

processing; . . . loan payoffs; . . . and servicing and participation 

agreements. (Appen. to 12 C.F.R. § 560.101.) The reference to 

servicing agreements, a feature of third party loan servicing 

arrangements, suggests that such arrangements fell within the 

scope of the interagency real estate lending standards that 

federal thrifts were directed to follow.” (Fn. omitted.) 
27

requiring specific statements, information, or other content to be 

included in . . . billing statements . . . or other credit-related 

documents” and, at subparagraph (10), “[p]rocessing, origination, 

servicing, sale or purchase of, or investment or participation in, 

mortgages.” (12 C.F.R. § 560.2(b)(9) & (10).) “Paragraph (c) 

saved from preemption certain state laws, such as contract law, 

‘to the extent that they only incidentally affect the lending 

operations of Federal savings associations or are otherwise 

consistent with the purposes of paragraph (a).’” (Akopyan, supra, 

215 Cal.App.4th at p. 139; see 12 C.F.R. § 560.2(c).) 

The OTS supplied the following guidance on how to 

construe its regulation: “In this regard, OTS wishes to make 

clear that the purpose of paragraph (c) is to preserve the 

traditional infrastructure of basic state laws that undergird 

commercial transactions, not to open the door to state regulation 

of lending by federal savings associations. When analyzing the 

status of state laws under § 560.2, the first step will be to 

determine whether the type of law in question is listed in 

paragraph (b). If so, the analysis will end there; the law is 

preempted. If the law is not covered by paragraph (b), the next 

question is whether the law affects lending. If it does, then, in 

accordance with paragraph (a), the presumption arises that the 

law is preempted. This presumption can be reversed only if the 

law can clearly be shown to fit within the confines of 

paragraph (c). For these purposes, paragraph (c) is intended to 

be interpreted narrowly. Any doubt should be resolved in favor of 

preemption.” (61 Fed.Reg. 50951, 50966-50967 (Sept. 30, 1996); 

see McShannock v. JP Morgan Chase Bank NA (9th Circ. 2020) 

976 F.3d 881, 890 (McShannock); Silvas v. E*Trade Mortg. Corp.

(9th Cir. 2008) 514 F.3d 1001, 1005.) “In applying this 
28

framework, we are ‘not limited to assessing whether the state law 

on its face comes within paragraph (b) of the regulation.’ 

[Citation.] ‘Instead, we ask whether the state law, “as applied, is 

a type of state law contemplated in the list under 

paragraph (b) . . . . If it is, the preemption analysis ends.”’” 

(McShannock, at p. 890.)

Here, the Company’s cause of action alleging Fannie Mae 

failed to provide, or timely to provide, certain information and 

other disclosures about the loan, including the balance owed, in 

violation of Civil Code section 2943 is preempted because it relies 

on an application of that statute falling within the scope of 

12 Code of Federal Regulations part 560.2(b)(9) (disclosure)

and/or (10) (processing or servicing of a mortgage). (See, e.g.,

Lopez, supra, 105 Cal.App.4th at pp. 732, 735, 739, 742 [“[w]e 

hold that Civil Code section 2943 is within the scope of those 

provisions that 12 C.F.R. part 560.2 is intended to preempt”; 

concluding that plaintiff’s causes of action challenging the 

practice of a federal savings association of charging a $10 fee for 

the fax transmission of a payoff demand statement in violation of 

Civil Code section 2943 were preempted by HOLA and the OTS’s 

regulations in part because “[p]aragraph (b) . . . includ[es] 

‘(5) Loan-related fees, including without limitation, . . . servicing 

fees’” and “[p]roviding the payoff demand statement is a service 

. . . and is a necessary step in paying off the loan”]; Becker v. 

Wells Fargo Bank, N.A., Inc. (E.D.Cal. Mar. 21, 2011, No. 2:10-cv02799 LKK KJN PS) 2011 U.S.Dist. Lexis 29687, pp. *45-47

[plaintiff’s claims that defendants violated Civil Code 

section 2943 “by improperly responding or failing to respond to 

his written demands for information about his loan debts” were

preempted by HOLA because “[c]ourts analyzing Section 2943 
29

and HOLA preemption in similar cases have found preemption 

and dismissed the claim”; quoting as an example a federal district 

court case from the Southern District of California that concluded 

a claim for alleged failures to respond to a demand letter was 

preempted because Civil Code section 2943 “‘imposes a 

requirement related to disclosure, 12 C.F.R. § 560.2(b)(9), or the 

processing or servicing of mortgages,’” [12 C.F.R.] 

§ 560.2(b)(10)’”]; see also Becker v. Wells Fargo Bank, N.A., Inc.

(E.D.Cal. Sept. 19, 2012, No. 2:10-cv-02799 LKK KJN PS) 2012 

U.S.Dist. Lexis 134986, p. *14 [“district courts within this circuit 

have rejected plaintiff’s argument that instruments and ‘notes’ 

are not ‘mortgages’ and are therefore outside the scope of

12 C.F.R. § 560.2(b)(10)”].)

To be sure, “[u]nder the Dodd-Frank Wall Street Reform 

and Consumer Protection Act (Dodd-Frank Act) (Pub.L. No. 111-

203 (July 21, 2010) 124 Stat. 1376), . . . 12 Code of Federal 

Regulations . . . part 560.2 was superseded”; “the OTS was 

merged into the Office of the Comptroller of the Currency (OCC), 

which regulates national banks”; and “[f]ield preemption under 

. . . HOLA was eliminated.” (Akopyan, supra, 215 Cal.App.4th at 

pp. 136, 139, fns. 8, 10; see 76 Fed.Reg. 48950, 48952 (Aug. 9, 

2011) [the “OTS regulations at 12 CFR parts 545, 550, 557 and 

560 include certain ‘occupation of the field’ statements on Federal 

preemption”; “these occupation of the field statements in the OTS 

regulations have been removed from the Republished 

Regulations”].) However, the Dodd-Frank Act’s amendments to 

HOLA preemption are prospective and do not affect loans 

originated under contracts entered into on or before July 21, 

2010, as is the case here. (See, e.g., Akopyan, at p. 136, fn. 8 [the 

Dodd-Frank Act’s “amendments to HOLA and [National Bank 
30

Act] preemption are prospective”]; Meyer v. One West Bank, 

F.S.B. (C.D.Cal. 2015) 91 F.Supp.3d 1177, 1180-1181 [“The DoddFrank Act is not, however, retroactive. Contracts formed before 

the Act’s effective date [that is, on or before the July 21, 2010 

date of enactment16] are, therefore, subject to the preemption 

rules applicable at the time of formation”]; Brown v. Wells Fargo 

Bank, N.A. (D.D.C. 2012) 869 F.Supp.2d 51, 56, fn. 5

[“[r]egulations, like statutes, cannot be applied retroactively 

absent express direction from Congress”; “§ 560.2 governs in this 

case because it was the regulation in effect when the parties 

entered into the Pick-a-Pay mortgage loan transaction”]; 17 see 

also Bowen v. Georgetown University Hosp. (1988) 488 U.S. 204, 

208 [“congressional enactments and administrative rules will not 

be construed to have retroactive effect unless their language 

requires this result”]; 12 U.S.C. § 5553 [“This title . . . shall not be 

construed to alter or affect the applicability of any regulation, 

order, guidance, or interpretation prescribed, issued, and 

16 The effective date of the Dodd-Frank Act was generally one 

day after “the date of enactment.” (Dodd-Frank Act (Pub.L. 

No. 111-203, § 4 (July 21, 2010) 124 Stat. 1376, 1390.) The DoddFrank Act was enacted on July 21, 2010. (E.g., Charter Township 

of Clinton Police & Fire Retirement System v. Martin (2013) 

219 Cal.App.4th 924, 929, fn. 4; McShannock, supra, 976 F.3d at 

p. 885, fn. 3.) 

17 Although Brown v. Wells Fargo Bank, N.A., supra, 

869 F.Supp.2d at page 56, footnote 5, states the Dodd-Frank Act 

was passed on July 21, 2011, that statement apparently reflects a 

typographical error: Brown cites Poindexter v. Wachovia Morg. 

Corp. (D.D.C. 2012) 851 F.Supp.2d 121, but Poindexter makes 

clear the Dodd-Frank Act was enacted on July 21, 2010. 

(Poindexter, at p. 128, fn. 11.)
31

established by the Comptroller of the Currency or the Director of 

the Office of Thrift Supervision regarding the applicability of 

State law under Federal banking law to any contract entered into 

on or before the date of enactment of this Act [enacted July 21, 

2010], by . . . Federal savings associations”]; Dodd-Frank Act 

(Pub.L. No. 111-203, § 1043 (July 21, 2010) 124 Stat. 1376, 2014

[setting forth the language codified under title 12 United States 

Code section 5553].)

18

18 The Department of the Treasury in 2017 promulgated a 

rule removing the OTS’s regulations, effective October 11, 2018. 

(See 82 Fed.Reg. 47083-47084 (Oct. 11, 2017); McShannock, 

supra, 976 F.3d at p. 885, fn. 3.) That action, which the 

Department of the Treasury explained was taken because the 

Dodd-Frank Act had abolished the OTS and transferred its 

rulemaking authority and operative rules to other agencies that 

had since issued superseding regulations (82 Fed.Reg. 47083 

(Oct. 11, 2017), does not alter our conclusion HOLA preempts the 

Company’s cause of action for violation of Civil Code section 2943. 

As discussed, the Dodd-Frank Act’s amendments to HOLA 

preemption are prospective and do not affect loans originated 

pursuant to contracts entered into on or before July 21, 2010. 

Moreover, the Department of the Treasury stated it issued the 

rule without providing the public with notice and an opportunity 

to comment as generally required under the Administrative 

Procedure Act (5 U.S.C. § 553) because the rule “does not make 

any substantive changes to the regulations currently applicable 

to savings associations and savings and loan associations and 

does not substantively affect these regulated entities or the 

public. It simply removes obsolete provisions that are likely to be 

a source of confusion.” (82 Fed.Reg. 47083-47084 (Oct. 11, 2017).) 

It also characterized the rule as “not a significant regulatory 

action” and stated “there is no Federal mandate imposed by this 

rulemaking.” (Ibid.) Even after October 11, 2018 courts have 

continued to rely on 12 Code of Federal Regulations part 560.2, 
32

Without seriously disputing its section 2943 cause of action 

may have been preempted if asserted against IndyMac Bank, the 

Company contends its cause of action against Fannie Mae, which 

is not a federal savings association, was not preempted because 

the loan had been assigned to Fannie Mae and the challenged 

conduct violating a state statute occurred after that assignment. 

We agree with the Fannie Mae parties that, because a federal 

savings association originated the loan, HOLA preemption 

applies even though Fannie Mae is not a thrift and regardless of 

when the challenged conduct occurred. Simply put, HOLA 

preemption “runs with the loan.”

19 (Faught v. Wells Fargo Bank, 

the OTS’s preemption regulation, to conclude state laws have 

been preempted by HOLA when the OTS’s regulation was 

effective at the time the loan was obtained. (See Asare-Antwi v. 

Wells Fargo Bank, N.A. (9th Circ. 2021) 855 Fed.Appx. 370, 372, 

fn. 2; McShannock, at p. 885, fn. 3.)

19 Appling v. Wachovia Mortgage, FSB, supra, 745 F.Supp.2d 

961, a case on which the Company relies for its argument, 

actually supports a preemption conclusion. (Appling, at p. 971 

[“although Wells Fargo itself is not subject to HOLA and OTS 

regulations, this action is nonetheless governed by HOLA 

because Plaintiff’s loan originated with a federal savings bank 

and was therefore subject to the requirements set forth in HOLA 

and OTS regulations”].) Moreover, in 2020 the Ninth Circuit in 

McShannock—after explaining, “Federal district courts that have 

addressed the question have taken three different positions: 

(1) HOLA preemption applies to all conduct connected to a loan 

originating with a federal savings association; (2) HOLA 

preemption necessarily does not apply to national banks; and 

(3) whether HOLA preemption applies depends on whether the 

claims arise from the conduct of the federal savings association or 
33

N.A. (E.D.Cal. Feb. 26, 2018, No. 2:17-cv-01706-MCE-KJN) 2018 

U.S.Dist. Lexis 31742, p. *13; see, e.g., McShannock, supra,

976 F.3d at p. 889 [“there is little doubt that Congress intended 

HOLA to cover the sale of mortgages belonging to federal savings 

associations”], p. 895 [“[w]e hold that HOLA field preemption 

principles apply to Appellees’ claims against Chase, a national 

bank, even though its conduct giving rise to the complaint 

occurred after it acquired the loans in question from WaMu, a 

federal savings association”]; OTS Opn. Letter No. P-2003-5 

(July 22, 2003) 2003 OTS Lexis 6, pp. *2, *13 & fn. 18 [concluding 

“the borrower’s ability to assert claims and defenses against 

[purchasers or assignees of loans originated by federal savings 

associations] is limited by federal preemption”; state law “might 

interfere with the ability of federal savings associations to sell 

mortgages that they originate under a uniform federal system”]; 

see also Fidelity Federal Sav. & Loan Assn. v. de la Cuesta, 

supra, 458 U.S. at p. 155, fn. 10 [“[t]he marketability of a 

mortgage in the secondary market is critical to a savings and 

loan, for it thereby can sell mortgages to obtain funds to make 

additional home loans”]; Akopyan, supra, 215 Cal.App.4th at 

pp. 142-143 [relying in part on “[t]he federal thrifts’ participation 

in the secondary market as buyers, sellers, or investors” and that 

“their participation has been subject to federal regulation” to 

“conclude that the OTS intended to occupy the field of lending 

regulation as to both federal thrifts and their loans”], 148 [“the 

rationale for applying preemption to the assignees of federal 

of the national bank”—proceeded to adopt the first approach. 

(McShannock, supra, 976 F.3d at pp. 887-889.)
34

thrifts is to allow the thrifts themselves greater freedom from 

state interference”].)

Finally, in an argument it did not make in the trial court, 

the Company asserts its cause of action for violation of 

section 2943 is not preempted because the Fannie Mae parties 

had unsuccessfully attempted to remove the case to federal court 

on the ground the second amended complaint referred to a 

violation of RESPA. It quotes language from the district court’s 

order remanding the action for lack of subject matter jurisdiction

that “a fleeting reference to RESPA buried in a cause of action 

under § 2943 is insufficient to confer federal question 

jurisdiction,” and the court’s conclusion that “plaintiff could not 

have originally brought this action in federal court, in that 

plaintiff does not competently allege facts supplying federal 

question jurisdiction, and therefore removal was improper.” The 

Company, however, fails adequately to explain, with citation to 

legal authority, why the district court’s remand order precludes 

the Fannie Mae parties’ preemption defense to the Company’s 

claim for a violation of section 2943. (See, e.g., Orange County 

Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 

14 Cal.App.5th 343, 383 [“‘“[t]he absence of cogent legal 

argument or citation to authority allows this court to treat the 

contention as waived”’”]; Rojas v. Platinum Auto Group, Inc.

(2013) 212 Cal.App.4th 997, 1002, fn. 5 [“[w]e . . . disregard 

[respondent’s] assertion as unsupported by citation to legal 

authority and cogent argument”].)

20

20 The Fannie Mae parties also contend the trial court erred 

in awarding damages jointly and severally against both Fannie 

Mae and Seterus on the second cause of action because, as they 

had argued in their objections to the trial court’s then-proposed 
35

3. The Company Lacked Standing To Assert Its Cause of 

Action for Declaratory Relief 

Code of Civil Procedure section 1060 provides in part, “Any 

person interested under a written instrument, excluding a will or 

a trust, or under a contract, or who desires a declaration of his or 

her rights or duties with respect to another, or in respect to, in, 

over or upon property, . . . may, in cases of actual controversy 

relating to the legal rights and duties of the respective parties, 

bring an original action or cross-complaint in the superior court 

for a declaration of his or her rights and duties in the premises, 

including a determination of any question of construction or 

validity arising under the instrument or contract.” “‘While 

section 1060’s language “appears to allow for an extremely broad 

scope of an action for declaratory relief” [citation], “an actual 

controversy that is currently active is required for such relief to 

be issued and both standing and ripeness are appropriate criteria 

in that determination. [Citation.]” [Citation.] “One cannot 

analyze requested declaratory relief without evaluating the 

nature of the rights and duties that the plaintiff is asserting, 

which must follow some recognized or cognizable legal theories 

that are related to subjects and requests for relief that are 

properly before the court.”’” (Lee v. Silveira (2016) 6 Cal.App.5th 

527, 546.)

judgment, the operative second amended complaint expressly 

alleged that cause of action was not directed against Seterus. 

The Company concedes the judgment reflects an apparent clerical 

error. No correction is necessary, however, because the judgment 

in favor of the Company on the second cause of action must be 

reversed in its entirety.
36

Here, the Company consistently maintained in the trial 

court, including in successfully moving to remand the action and 

opposing the Fannie Mae parties’ demurrer to the second 

amended complaint, that the Company’s claims all arose under 

the deed of trust and section 2943 and that it had standing to 

assert those claims as owner of the property.21 However, 

although a successor in title, the Company was not a party to, 

and had assumed no obligations under, the loan to Simmons or 

the deed of trust that secured the loan. (The deed of trust 

required a lender-approved, written assumption for Simmons’s 

successor in interest to obtain his rights and benefits under the 

deed of trust.) Accordingly, the Company had no rights or duties 

under either instrument and, given the nature of the Company’s 

contentions and setting aside for the moment any standing 

arising from section 2943, lacked standing to seek a declaration 

of the outstanding balance due on that loan.22 (See, e.g., Otay 

Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 

565-566 [lack of contractual privity between property owner and 

prior owner’s liability insurer defeated claim for declaratory relief 

regarding potential coverage under insurance policy of 

21 The Company did not argue (and the deed of trust did not 

indicate) the Company was an intended third party beneficiary

and, as such, had standing. Nor did the Company contend it had 

a defined intertwined business relationship with a contracting 

party. 

22 “Lack of standing may be raised at any time in the 

proceeding, including at trial or in an appeal. [Citations.] We 

may decide a standing issue even if the trial court did not rule on 

the issue.” (Blumhorst v. Jewish Family Services of Los Angeles

(2005) 126 Cal.App.4th 993, 1000.)
37

contamination problems at property; “Code of Civil Procedure 

section 1060 has never been interpreted as no longer requiring 

appropriate standing to seek declaratory relief, or as allowing the 

issuance of any advisory orders about whether there should be 

potential insurance coverage for a policyholder’s potential tort 

liability”]; Shetty v. ARLP Securitization Trust Series 2014-2

(C.D.Cal., Oct. 28, 2016, No. CV 16-05467-BRO) 2016 U.S.Dist. 

Lexis 195822, pp. *15-18 [property owner lacked standing to 

pursue causes of action, including for declaratory judgment, 

“arising from the underlying mortgage” because “only a borrower

(or his assignee) may bring a claim as to the underlying 

mortgage”]; see also Cornelison v. Kornbluth (1975) 15 Cal.3d 

590, 596-597 [“Upon the transfer of real property covered by a 

mortgage or deed of trust as security for an indebtedness, the 

property remains subject to the secured indebtedness but the 

grantee is not personally liable for the indebtedness or to perform 

any of the obligations of the mortgage or trust deed unless his 

agreement to pay the indebtedness, or some note or 

memorandum thereof, is in writing and subscribed by him or his 

agent or his assumption of the indebtedness is specifically 

provided for in the conveyance”]; Gantman v. United Pacific Ins. 

Co. (1991) 232 Cal.App.3d 1560, 1566 [“‘[s]omeone who is not a 

party to [a] contract has no standing to enforce the contract’”].)23

To be sure, because the property it acquired was burdened 

with the deed of trust, as a practical matter the Company, as the 

23 As the Fannie Mae parties pointed out, the Company 

asserted the provisions of the deed of trust were contractual in 

nature. Indeed, it sought attorney fees under the provisions of 

the deed of trust and section 1717, which provides in part for fees 

in “any action on a contract.” 
38

successor in title, had an interest in an accurate determination of 

the amount due to redeem the property from the lien—a topic it 

certainly could have pursued with the bankruptcy trustee. But 

for purposes of its action for declaratory relief against the Fannie 

Mae parties, the Company’s indirect interest in the borrower’s 

obligations is insufficient to confer standing with regard to the 

underlying contractual dispute. Absent contractual privity—that 

is, a right to enforce the terms of the note or the deed of trust—

the Company was not entitled to the declaratory relief it sought. 

(See D. Cummins Corp. v. United States Fidelity & Guaranty Co. 

(2016) 246 Cal.App.4th 1484, 1491 [in absence of contractual 

privity, company’s “practical interest” in another’s legal rights 

under insurance policies, “no matter how enthusiastic it may be,” 

does not constitute “‘a legally cognizable theory of declaratory 

relief’”]; Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 

594, 615-616 [secured borrower who was incidental beneficiary of 

consent judgment lacked standing to enforce judgment and 

therefore had no right to declaratory relief concerning judgment’s 

effect on his loan].) 

Although the Company might, in theory, have had standing 

to assert a declaratory relief cause of action to determine the 

parties’ rights and duties under section 2943,24 including a 

determination of the amount necessary to pay off the loan, 

because the Company’s claim for violation of section 2943 was 

preempted, the requirements of that statute could not form the 

24 “The prerequisites for standing to assert statutorily based 

causes of action are determined from the statutory language, as 

well as the underlying legislative intent and the purpose of the 

statute.” (Boorstein v. CBS Interactive, Inc. (2013) 

222 Cal.App.4th 456, 466.)
39

basis for an actual controversy. (See Lee v. Silveira, supra, 

6 Cal.App.5th at p. 546; cf. Ball v. FleetBoston Financial Corp. 

(2008) 164 Cal.App.4th 794, 800 [“Where a trial court has 

concluded the plaintiff did not state sufficient facts to support a 

statutory claim and therefore sustained a demurrer as to that 

claim, a demurrer is also properly sustained as to a claim for 

declaratory relief which is ‘wholly derivative’ of the statutory 

claim”].) Accordingly, the declaratory judgment regarding the 

amount due is reversed.

4. The Order Denying Attorney Fees Is Affirmed

After the trial court entered its judgment finding the 

Company was the prevailing party entitled to costs of suit, 

including attorney fees if applicable, the Company moved for 

attorney fees on August 12, 2019, contending it had prevailed in 

an action based on a deed of trust containing an attorney fees 

clause and was entitled to attorney fees under Civil Code 

section 1717.25 It also argued it was entitled to attorney fees 

under Code of Civil Procedure section 2033.420 (section 2033.420) 

on the ground Fannie Mae inappropriately denied several 

requests for admission. The trial court denied the motion. 

25 Civil Code section 1717, subdivision (a), provides in part, 

“In any action on a contract, where the contract specifically 

provides that attorney’s fees and costs, which are incurred to 

enforce that contract, shall be awarded either to one of the 

parties or to the prevailing party, then the party who is 

determined to be the party prevailing on the contract, whether he 

or she is the party specified in the contract or not, shall be 

entitled to reasonable attorney’s fees in addition to other costs.”
40

a. Denial of attorney fees under Civil Code section 1717

Civil Code section 1717 provides for attorney fees to be 

awarded to the prevailing party under specified circumstances. 

In light of our reversal of the judgment in favor of the Company,

the Company was not entitled to fees under the deed of trust and 

Civil Code section 1717. 

b. Attorney fees under Code of Civil Procedure 

section 2033.420

Section 2033.420, subdivision (a), provides, “If a party fails 

to admit the genuineness of any document or the truth of any 

matter when requested to do so under this chapter, and if the 

party requesting that admission thereafter proves the 

genuineness of that document or the truth of that matter, the 

party requesting the admission may move the court for an order 

requiring the party to whom the request was directed to pay the 

reasonable expenses incurred in making that proof, including 

reasonable attorney’s fees.”26 Subdivision (b) provides, “The court 

shall make this order unless it finds any of the following: [¶] 

(1) An objection to the request was sustained or a response to it 

was waived under [Code of Civil Procedure] Section 2033.290. [¶] 

(2) The admission sought was of no substantial importance. [¶] 

26 Recovery of attorney fees under section 2033.420 does not 

require the attorney fees claimant to be a prevailing party. (See 

Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 500, 

509, fn. 5 [“[b]ecause a nonprevailing party may also recover 

expenses pursuant to [the predecessor to section 2033.420], it is 

important to recognize that the fact in question need not have 

been one which would have altered determination of the ultimate 

issues”]; see generally § 2033.420, subd. (a) [no mention of a 

prevailing party requirement].)
41

(3) The party failing to make the admission had reasonable 

ground to believe that that party would prevail on the matter. [¶] 

(4) There was other good reason for the failure to admit.”27

“‘The determination of whether “there were no good reasons 

for the denial,” whether the requested admission was “of 

substantial importance,” and the amount of expenses to be 

awarded, if any, are all within the sound discretion of the trial 

court.’” (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 753; 

see Brooks v. American Broadcasting Co. (1986) 179 Cal.App.3d 

500, 508 [“[o]n appeal, the trial court’s decision [whether to 

award expenses for failure to admit requests for admission] will 

not be reversed unless the appellant demonstrates that the lower 

court abused its discretion”].)

In its motion for fees under section 2033.420 the Company 

argued Fannie Mae had inappropriately failed to admit 

nine requests for admission that it proved at trial, entitling it to 

$231,950 in attorney fees, which it explained constituted 

27 “‘An issue is of “substantial importance” if it has “at least 

some direct relationship to one of the central issues in the case, 

i.e., an issue which, if not proven, would have altered the results 

in the case.”’” (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 

752, fn. 20.) An award of expenses under the statute “is designed 

to reimburse reasonable expenses incurred by a party in proving 

the truth of a requested admission where the admission sought 

was ‘of substantial importance’ [citations] such that trial would 

have been expedited or shortened if the request had been 

admitted.” (Brooks v. American Broadcasting Co., supra, 

179 Cal.App.3d at p. 509; accord, City of Glendale v. Marcus 

Cable Associates, LLC (2015) 235 Cal.App.4th 344, 353; see Grace 

v. Mansourian (2015) 240 Cal.App.4th 523, 530 [“[t]he purpose of 

requests for admissions is to expedite trial”].)
42

“essentially all the fees incurred in the case.”28 (The Company 

now identifies only six requests for admission as a basis for 

reversal.) The Fannie Mae parties opposed the Company’s 

motion for fees under section 2033.420, arguing the Company had 

not established the truth or the substantial importance of the 

matters denied; Fannie Mae had a reasonable basis to deny the 

requests; and the Company’s motion was defective for failing to 

break down the specific amounts incurred in proving the truth of 

the matters denied (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 

724, 736-737 [“the statute authorizes only those expenses 

‘incurred in making that proof,’ i.e., proving the matters denied 

by the opposing party”]). The Fannie Mae parties also contended 

the requested amount of fees was unreasonable, including 

because the Company improperly sought fees incurred prior to 

the August 9, 2016 date of Fannie Mae’s responses and fees 

unrelated to proving the truth of the matters sought to be 

admitted.

At the October 7, 2019 hearing on the Company’s motion, 

the court requested supplemental briefing, explaining it required 

greater specificity as to how the Company proved the truth of the 

matters claimed to have been unreasonably denied, and 

continued the hearing to December 2, 2019. After the parties 

28 In its motion the Company did not differentiate the 

attorney fees incurred in the case and those incurred in proving 

the truth of the matters Fannie Mae had denied. The Company 

did, however, explain it was seeking an additional $5,025.42 in 

costs under section 2033.420 to which the Company would not 

otherwise be entitled under other statutory provisions as a 

prevailing party, for a total award under section 2033.420 of 

$236,975.42. 
43

filed supplemental briefs29 and the continued hearing, the court

denied the motion.30 The minute order with the court’s ruling

does not explain the denial of attorney fees under Code of Civil 

Procedure section 2033.420 despite explaining the denial of Civil 

Code section 1717 fees. 

Contending the trial court failed to rule on this aspect of its 

fees motion, the Company argues the court abused its discretion 

in failing to grant the fees requested and urges us to remand the 

matter with directions to award reasonable fees and costs. 

The court unquestionably decided the Company’s motion 

for fees under section 2033.420—the request was denied—even 

though it did not articulate in a written ruling its reasons for the 

denial. It was not required to do so. (See, e.g., Maria P. v. Riles

(1987) 43 Cal.3d 1281, 1294 [“[c]ases decided under [Code of Civil 

Procedure] section 632 generally have held that a statement of 

decision is not required upon decision of a motion”]; In re 

Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 981 [“[a] 

trial court is not required to issue a statement of decision for an 

attorney fee award”].) And that ruling was well within the 

court’s discretion.31

29 In its supplemental brief in the trial court the Company 

stated it was reducing the amount of fees sought under 

section 2033.420 to $215,542.11 because it no longer sought fees 

incurred prior to Fannie Mae’s denials. The Company, however, 

otherwise continued to argue it was entitled to all fees incurred 

since the time of Fannie Mae’s August 9, 2016 denials. 

30 The record contains no reporter’s transcript of the 

December 2, 2019 proceedings or an agreed or settled statement. 

31 Because the record, including the December 2, 2019 minute 

order, is silent as to the reason(s) for the court’s denial of 

section 2033.420 fees, we infer all findings necessary to support 
44

For Request for Admission (RFA) No. 3 (“[t]here is a 

dispute between Plaintiff and Fannie Mae regarding the amount 

required to satisfy the lien”): Fannie Mae had reasonable ground 

to deny the request. As the Fannie Mae parties explained in the 

trial court, Fannie Mae believed the Company’s allegations were 

insufficient to create an “actual controversy” for purposes of the 

declaratory relief cause of action, which sought the amount 

needed to release the lien.

32 That belief was not only reasonable, 

but also, as we hold, correct as a matter of law.

33 

the court’s order. (See, e.g., Denham v. Superior Court (1970) 

2 Cal.3d 557, 564 [“‘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’”]; Ritter & Ritter, Inc. 

Pension & Profit Plan v. The Churchill Condominium Assn.

(2008) 166 Cal.App.4th 103, 128.) 

32 To the extent the Company, by “dispute,” was not referring 

to an “actual controversy,” the Company failed to establish the 

substantial importance of the admission, only arguing on appeal 

in a conclusory fashion with respect to all six RFAs that

admissions would have obviated the need for a trial. As the 

Fannie Mae parties argued in the trial court, the parties would 

have still needed to proceed with trial to determine the amount 

owed on the loan even if Fannie Mae had admitted the amount 

was in dispute. 

33 Moreover, Fannie Mae’s denial was reasonable given its 

response preceded the filing of the Company’s first amended 

complaint: Fannie Mae’s response explained the Company’s 

“operative complaint does not state what amount [the Company] 

believes is required to satisfy the lien.” (The allegation in the 

first and second amended complaints that the Company did not 

agree it owed the amounts stated in the Fannie Mae parties’ 

March 30, 2016 demand was not included in the original 
45

For RFA No. 9 (“[o]f the $24,693.90 total interest and 

principal due on or before February 5, 2016, $20,878.77 was 

interest and the balance of $3,815.13 was principal”); RFA No. 11 

(“Fannie Mae did not make any of the ‘tax and insurance 

payments’ identified in Exhibit 2, i.e., any of those charges that 

total $7,449.39”); RFA No. 12 (“[t]he ‘tax and insurance 

payments’ identified in Exhibit 2 are impounds, not payment[s] 

made by or on behalf of Fannie Mae to third parties”; and RFA 

No. 18 (“Fannie Mae did not incur the PSLGLPOSTINGCOST of 

$411 that is shown on Exhibit 2”): Fannie Mae was justified in 

denying these requests. As discussed, the Fannie Mae parties

moved for summary adjudication on the issue whether the 

undisputed facts showed they accurately accounted for all 

charges, fees and payments. The sole basis for the court’s denial 

of the motion was a material factual dispute as to the 

requirement to pay for property insurance—an issue not covered 

by these requests for admission. Thus, there was reasonable 

ground for Fannie Mae to believe it would prevail on these issues.

For RFA No. 24 (“[a]s of May 9, 2016, Fannie Mae refused 

to accept any payments by Plaintiff on the grounds that Plaintiff 

is allegedly ‘a third party with no interest in the property’”): 

Fannie Mae also had reasonable ground to believe it would 

prevail on this matter. Regardless of the parties’ dispute over the 

Fannie Mae parties’ ability to reject partial payments from the 

Company, the Company’s own evidence showed Fannie Mae had,

complaint.) In support of the fees motion the Company did not 

identify any request that Fannie Mae update its response. (See 

Burch v. Gombos (2000) 82 Cal.App.4th 352, 359 [“[n]othing in 

the text of the statute creates any ongoing duty to update 

responses”].)
46

sometime on or before May 9, 2016, been willing to accept 

payment for the payoff amount in the March 30, 2016 demand

statement.

In sum, the trial court did not abuse its discretion in 

denying the Company’s motion for fees under section 2033.420.

DISPOSITION

The judgment is reversed. The trial court’s postjudgment 

order denying the Company’s motion for attorney fees is affirmed. 

The Fannie Mae parties are to recover their costs on appeal. 

PERLUSS, P. J.

We concur:

SEGAL, J.

WISE, J.*

* Judge of the Alameda County Superior Court, assigned by 

the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.