Filed 7/30/14 Choi v. JPMorgan Chase Bank CA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

DONG CHOI, 

 Plaintiff and Appellant, 

 v. 

JPMORGAN CHASE BANK, N.A. et al., 

 Defendants and Respondents. 

 G048327 

 (Super. Ct. No. 30-2012-00585606) 

 O P I N I O N 

 Appeal from judgments of the Superior Court of Orange County, Derek W. 

Hunt, Judge. Affirmed. 

 Dong Choi, in pro per., for Plaintiff and Appellant. 

 AlvaradoSmith, Theodore E. Bacon, and Mikel A. Glavinovich for 

Defendant and Respondent JPMorgan Chase Bank, N.A. 

 Ruzicka & Wallace, Frank J. Coughlin and Richard Sontag for Defendants 

and Respondents, Earl Wallace, Richard Sontag, Dess Richardson and Kevin Mello. 
2

 Dong Choi appeals from the trial court’s judgments dismissing his first 

amended complaint after sustaining without leave to amend the demurrers filed by 

defendants JPMorgan Chase Bank, N.A. (JPMorgan), and a law firm, Ruzicka & 

Wallace, LLP, and several of the firm’s attorneys, including Earl Wallace, Richard 

Sontag, Dess Richardson, and Kevin Mello (collectively, the Attorney Defendants). Choi 

argues his complaint properly stated a claim for wrongful foreclosure to cancel a trustee’s 

deed that issued after a nonjudical foreclosure sale when Young Yoon, Choi’s 

predecessor in interest, defaulted on a home loan. Yoon gave Choi a quitclaim deed to 

the property several years after the foreclosure, and Choi filed suit to undo the 

foreclosure. Choi also contends the litigation privilege embodied in Civil Code 

section 47(b) does not shield the Attorney Defendants’ conduct. As we explain, these 

contentions are without merit and we therefore affirm the judgment. 

I 

FACTUAL AND PROCEDURAL BACKGROUND 

 Yoon bought her home at 5451 Cajon Avenue in Buena Park (the property) 

in 2001, and refinanced the property in 2007, borrowing $348,000 from Washington 

Mutual Bank (WaMu) on April 19, 2007, secured by a note in which she promised to 

repay the loan (Note) and a deed of trust. Yoon failed to make her loan payments the 

first year and by May 9, 2008, WaMu through an agent, Quality Loan Service Corp. 

(Quality), initiated foreclosure proceedings on the property, which included a Notice of 

Default and Election to Sell Under Deed of Trust filed with the Orange County recorder’s 

office. Yoon did not cure her default and by August 2008, her unpaid loan obligation had 

increased with capitalized interest and late charges to $371,000. The trustee filed a notice 

the property would be sold under the Deed of Trust’s power of sale provision, and at the 

trustee’s nonjudicial sale on September 3, 2008, WaMu purchased the property. WaMu 

recorded a Trustee’s Deed Upon Sale on September 9, 2008. By the end of the month, on 

September 25, 2008, the Office of the Thrift Supervision closed WaMu and named the 
3

Federal Deposit Insurance Corporation (FDIC) as receiver. JPMorgan acquired WaMu’s 

assets the same day under a purchase and asssumption agreement it entered with the 

FDIC. 

 In November 2008, WaMu’s former law firm, Pite Duncan LLP, filed on 

behalf of WaMu and any successors in interest, including JPMorgan, an unlawful 

detainer action (the First Unlawful Detainer Action) against Yoon and any unnamed 

persons occupying the property. In January 2009, Yoon filed bankruptcy (the First 

Bankruptcy Case), which the bankruptcy court dismissed in March 4, 2009. On March 

10, 2009, Yoon responded by filing in superior court a lawsuit (the First Lawsuit) for 

“wrongful foreclosure” against WaMu and Quality. 

 The next week, on March 16, 2009, Yoon filed for bankrupt tcy again (the 

Second Bankruptcy Case). In late April 2009, Yoon also filed in the federal district court 

a lawsuit (the Second Lawsuit) for wrongful foreclosure against WaMu and JPMorgan. 

The federal district court dismissed the Second Lawsuit with prejudice in July 2009. The 

bankruptcy court also dismissed the Second Bankruptcy Case that month. 

 In August 2009, Yoon filed in superior court another lawsuit (the Third 

Lawsuit) against WaMu, JP Morgan, and the FDIC for wrongful foreclosure that was 

ultimately dismissed. On August 17, 2009, in the First Unlawful Detainer Action, the 

court entered judgment after trial in favor of WaMu, its successors and assigns and 

against Yoon and all unnamed occupants for possession of the property. 

 Two weeks later in early September 2009, Yoon sought bankruptcy 

protection again (the Third Bankruptcy Case), but the bankruptcy court dismissed the 

case. In late September 2009, the superior court dismissed the First Lawsuit (wrongful 

foreclosure) without prejudice. In January 2010, the bankruptcy court dismissed the 

Third Bankruptcy Case. 

 According to defendants, on August 16, 2010, Yoon purported to substitute 

herself as the lender and beneficiary under the Deed of Trust in place of WaMu by 

recording false Uniform Commercial Code financing statements. That same day, 
4

according to defendants, Choi recorded as a purported “authorized representative” of 

WaMu a false Rescission of Trustee’s Deed. 

 In September 2010 and again in September 2011, the Attorney Defendants 

filed and dismissed unlawful detainer actions on behalf of WaMu and JPMorgan, 

respectively, apparently learning in those actions of the favorable outcome in the First 

Unlawful Detainer Action when Choi asserted “‘Res Juticata [sic].’” 

 In May 2011, a receiver’s deed formally transferred title of the property to 

JPMorgan. 

 In October 2011, Yoon executed a quitclaim deed transferring any title she 

still held in the property to Choi. The quitclaim deed did not purport to add Choi to the 

Note securing the property, or otherwise make him a party to the loan agreement 

embodied in that Note. 

 In early May 2012, in the First Unlawful Detainer Action, the court entered 

on JPMorgan’s motion an order nunc pro tunc substituting JPMorgan as the plaintiff, and 

JPMorgan obtained a writ of possession for the property. Choi, however, filed for 

bankruptcy (the Fourth Bankruptcy Case), but in July 2012 the bankruptcy court granted 

JPMorgan relief from the automatic stay and directed as in rem relief that no further 

bankruptcy filings would forestall eviction. 

 Later in July 2012, Yoon and Choi filed this lawsuit against JPMorgan and 

the Attorney Defendants for (1) wrongful foreclosure, (2) slander of title, (3) unfair 

business practices, (4) cancellation of instruments, (5) wrongful eviction, (6) fraud, (7) 

negligence, and (8) declaratory relief. After the trial court sustained a series of 

demurrers, Choi (but not Yoon) filed a first amended complaint (FAC) paring his claims 

to four causes of action: (1) Statutory Violations, citing Code of Civil Procedure sections 

2923.5(a), 2923(b), 2934a(d) and 2924 et. seq., (2) Slander of Title, (3) Unfair Business 

Practices, and (4) Fraud. Choi asserted against the Attorney Defendants only the latter 

two causes of action. 

 Specifically, Choi’s first cause of action alleged JPMorgan (or more 

accurately, its predecessors in interest) and Quality (the trustee that initiated foreclosure) 
5

failed to comply strictly with statutes governing the foreclosure process. In particular, 

Choi asserted Quality lacked authority and did not assume its trustee position properly 

because WaMu, in substituting Quality as the trustee some time after the refinancing 

closed, had already sold its interest in the mortgage to an entity known as WaMu Asset 

Acceptance Corporation, which in turn packaged, securitized, and sold the asset to others. 

In other words, WaMu had no authority to substitute Quality as the trustee, and therefore 

the foreclosure proceedings were fatally flawed. Choi also alleged the foreclosure was 

void because the notice of default and notice of trustee’s sale concerning the property 

identified WaMu instead of its successor or successors in interest as the Deed of Trust’s 

beneficiary. 

 Choi asserted his first cause of action for statutory violations only against 

JPMorgan and Quality, and similarly asserted his second cause of action for slander of 

title only against those defendants and not the Attorney Defendants. Choi’s second cause 

of action alleged that the notice of default, notice of trustee’s sale, the Trustee’s Deed 

Upon Sale, and the recording of these documents constituted slander of title because 

Quality “and Does 1 through 25” acted “purportedly but falsely” as the trustee or agent of 

the trust deed beneficiary. Choi alleged that “[n]one of the Defendants, whether jointly 

or severally, w[as] a trustee, beneficiary or assignee of any beneficiary of any Deed of 

Trust recorded against the Subject Property,” and therefore by “wrongfully caus[ing] the 

recording of the Notice of Default, Substitution of Trustee, Notices of Trustee’s Sales and 

Trustee’s Deed Upon Sale,” they committed slander of title. 

 Choi’s third cause of action alleged all the defendants committed unfair 

business practices in violation of Business and Professions Code section 17200. Choi 

asserted “Defendants engage in deceptive business practices with respect to mortgage 

loan servicing, assignments of notes and deeds of trust, foreclosure of residential 

properties and related matters . . . .” Specifically, Choi asserted defendants’ wrongful 

business activities included, among many other examples, “Instituting improper or 

premature foreclosure proceedings to generate unwarranted fees,” “Executing and 

recording false and misleading documents,” “Executing and recording documents without 
6

legal authority to do so,” “Failing to disclose the principal for which documents were 

being executed and recorded in violation of California Civil Code Section 1095,” and 

“Acting as beneficiaries and trustees without the legal authority to do so.” 

 Choi alleged that these “acts and practices have caused substantial harm to 

California consumers,” and as a specific example, Choi asserted “as [a] direct and 

proximate result of the aforementioned acts, Defendants have prospered and benefited 

from Plaintiff, Yoon by collecting mortgage payments and fees for foreclosure related 

services, and have been unjustly enriched from their act of foreclosing on Plaintiff’s 

home when they had agreed . . . to do so in compliance with applicable laws.” Choi 

relied on Yoon’s alleged injury though the trial court had dismissed her as a plaintiff 

because Choi, who is not an attorney, was not authorized to represent her and file the 

FAC on her behalf. (An attorney appeared briefly for Yoon earlier in the proceedings, 

but not after the trial court sustained the defendants’ demurrers to the initial complaint.) 

The trial court observed after having dismissed Yoon that “I don’t think you [Choi] are 

the appropriate plaintiff in the case for these points that you are making, and . . . the 

appropriate plaintiff has not — has been misjoined [by Choi’s inability to represent her] 

and dismissed from the case.” The trial court questioned whether any “facts have been 

asserted that would make the plaintiff Mr. Choi a consumer of [defendants’] services” for 

purposes of his unfair business practices claim. 

 Choi’s fourth and final cause of action alleged fraud against all the 

defendants. Choi alleged JPMorgan was the “real party in interest for the subject Note 

[for the] subject Property up until June 2012” and that the designation of other entities as 

the beneficiary or the substitute trustee in the Notice of Default, Substitution of Trustee, 

Notice of Trustee’s Sale, Trustee’s Deed, the Receiver’s Deed, and the three unlawful 

detainer actions constituted fraud. According to Choi, “As a proximate result of 

Defendant JPMorgan and Does 1 through 25[’s] fraudulent misrepresentations, Plaintiff 

lost property on Sep[tember] 3rd 2008 [the Trustee’s Sale], . . . received" eviction notices 

in 2009 and 2012, and "suffered great financial damages and emotional distress." Choi 

alleged the Attorney Defendants committed fraud when they filed the unlawful detainer 
7

actions because: (1) "they knew that they are [sic: were?] not representing 

WAMU/JPMorgan" but nevertheless filed the second unlawful detainer action; (2) they 

wrongfully filed the third unlawful detainer action on JPMorgan’s behalf based on an 

assertedly void Receiver’s Deed; and (3) they wrongfully filed a fraudulent motion in the 

first unlawful detainer action to have JPMorgan replace WaMu as the plaintiff. 

 Choi sought in the FAC’s prayer for relief an order cancelling the Trustee’s 

Deed, an order cancelling the Receiver’s Deed, an order setting aside the unlawful 

detainer judgment, restitution, and compensatory and punitive damages. 

 On January 10, 2013, the trial court sustained without leave to amend the 

Attorney Defendants’ demurrers to Choi’s FAC. On January 23, 2013, the trial court 

similarly sustained without leave to amend JPMorgan’s demurrer. The trial court 

entered judgment against Choi, and he now appeals.

1

II 

DISCUSSION 

 “When the trial court sustains a demurrer, we review the complaint de novo 

to determine whether it alleges facts stating a cause of action on any possible legal 

theory.” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490 

(Rossberg).) “The plaintiff has the burden of showing that the facts pleaded are sufficient 

to establish every element of the cause of action and overcoming all of the legal grounds 

on which the trial court sustained the demurrer, and if the defendant negates any essential 

element, we will affirm the order sustaining the demurrer as to the cause of action. 

[Citation.]” (Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 

1031.) The plaintiff also bears the burden “to establish that the complaint could be 

amended to cure any pleading defect.” (Barroso v. Ocwen Loan Servicing, LLC (2012) 

208 Cal.App.4th 1001, 1008.) “To meet this burden, a plaintiff must . . . on appeal[] 

 1

 We deny as irrelevant the Attorney Defendants’ request for judicial notice 

of events subsequent to the trial court’s ruling, including a lockout by the Orange County 

Sheriff’s Department placing JPMorgan in possession of the property in September 2013. 

 
8

enumerate the facts and demonstrate how those facts establish a cause of action.” (Cantu 

v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 890.) 

 Choi makes no mention by a separate heading nor does he otherwise 

challenge in his appellate briefing the trial court’s ruling sustaining defendants’ 

demurrers to his slander of title and fraud causes of action. (See Opdyk v. California 

Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 [lack of analysis or heading 

forfeits argument]; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not 

have a life of their own: If they are not raised or supported by argument or citation to 

authority, [they are] waived”].) In light of Choi’s forfeiture, we must presume the trial 

court’s ruling on these points was correct because the fundamental appellate requirement 

that “error must be affirmatively shown” (Denham v. Superior Court (1970) 2 Cal.3d 

557, 564) applies even where our review is de novo. (Reyes v. Kosha (1998) 

65 Cal.App.4th 451, 466, fn. 6 [review limited to issues raised and adequately supported 

in appellant’s brief]; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [same].) 

We therefore do not address the slander of title and fraud causes of action eliminated 

from Choi’s FAC by the sustained demurrers. 

 Choi also fails to address any of the specific statutory provisions he cited in 

his FAC as the basis for his first cause of action alleging “Statutory Violations.” (Code 

Civ. Proc., §§ 2923.5, subds. (a), (b); 2934a, subd. (d); 2924.) Instead, relying on Civil 

Code section 3412, he argues that “alleging void instruments states a cause of action.” 

Specifically, he argues the Trustee’s Deed Upon Sale and “other foreclosure documents” 

should be canceled under section 3412, which provides that “[a] written instrument” may 

be “ordered to be delivered up or canceled” when “there is a reasonable apprehension that 

if left outstanding it may cause serious injury to a person against whom it is void or 

voidable . . . .” As the trial court explained below, however, cancellation “is not a cause 

of action” but rather a remedy available to plaintiffs prevailing at trial “if that remedy is 

appropriate.” 

 The gravamen of Choi’s appeal does not rest in any particular statutory 

provision or in any of the four causes of action he enumerated in his FAC (i.e., “Statutory 
9

Violations,” slander of title, unfair business practices, fraud), but rather in his general 

claim of “wrongful foreclosure.” Choi relies on Munger v. Moore (1970) 11 Cal.App.3d 

1, 7-8 (Munger), as the basis for wrongful foreclosure as a cause of action, citing its 

holding that while conversion is a tort that applies only to personal property, not real 

property, nevertheless “a trustee or mortgagee may be liable to the trustor or mortgagor

for damages sustained when 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.” (Choi’s 

italics, boldface added.) 

 Choi contends the trustee’s sale was illegal because the substitution of 

trustee form and notice of sale initiating the foreclosure proceedings identified WaMu as 

the beneficiary entitled to enforce the terms of the Deed of Trust, but according to Choi’s 

FAC, WaMu sold its security interest in the Note to another party (WAMU Asset 

Acceptance Corp.) almost immediately after Yoon’s refinancing. According to Choi, that 

party in turn packaged, pooled, and securitized the loan in a process that led to the 

national financial crisis. In essence, Choi argues the foreclosure against Yoon’s property 

was void because the wrong party initiated it. WaMu, having sold its interest in the 

property immediately upon the refinancing, could not appoint the substitute trustee 

(Quality) that commenced the foreclosure proceedings. 

 As Choi insightfully recognizes, foreclosure under the power of sale provision in a 

deed of trust is essentially a private action enforcing the terms of the parties’ agreement. 

We summarized in Rossberg the core mechanics of foreclosure, in which “‘a valid deed 

of trust include[s] a power of sale clause, which empowers the beneficiary-creditor to 

[foreclose] on the real property security if the trustor-debtor fails to pay back the debt 

owed under the promissory note. [Citations.]’ [Citation.]” (Rossberg, supra, 

219 Cal.App.4th at p. 1491.) 

 But here, Choi was not a party to the underlying promissory note or deed of 

trust, nor does he suggest he was a third party beneficiary entitled to insist on strict 

compliance with the power of sale provision. A third party beneficiary “may enforce a 

contract made expressly for his or her benefit” (Sessions Payroll Management, Inc. v. 
10

Noble Construction Co. (2000) 84 Cal.App.4th 671, 680), but Choi did not allege Yoon 

and WaMu entered their loan refinancing agreement for Choi’s express benefit. A party 

not named in the contract may also qualify as a third party beneficiary where the 

agreement reflects that intent (ibid.), but Choi points to nothing in the refinancing 

procedure that discloses such an intent. 

 And as the trial court explained, the quitclaim deed Yoon gave Choi after

the foreclosure sale did not authorize him to reopen the foreclosure. The trial court 

observed that “the mere recording of a quitclaim deed would be insufficient to give 

Mr. Choi anything else other than [Yoon’s remaining legal] title to the property,” if any. 

In other words, whether or not Yoon still held any valid legal title to convey to Choi after 

the foreclosure sale, her quitclaim deed to Choi did not make Choi a “trustor or 

mortgagor” under Munger. He did not somehow retroactively entrust or mortgage an 

interest in the property; to the contrary, he never alleged he assumed the mortgage or 

undertook any obligation to pay the Note. Thus, he had no grounds to oppose the 

foreclosure. Accordingly, the trial court concluded, “I don’t think you are the appropriate 

plaintiff in the case for these points that you are making . . . .” The trial court did not err. 

 Moreover, even assuming Choi was a proper party to challenge the 

foreclosure, we observe that his allegations in the complaint belie his claim that WaMu 

initiated the foreclosure improperly because it no longer held any interest in the property. 

Choi’s complaint acknowledges that the pooling and servicing agreement under which 

Yoon’s refinance loan was packaged and securitized retained WaMu as “the servicer for 

the Trust.” Nothing in Choi’s allegations in the FAC suggest that WaMu in servicing the 

trust on behalf of the loan’s new owner (or new securitized owners) could not act as the 

owner’s agent and properly substitute Quality as the new trustee who eventually initiated 

the foreclosure proceedings. 

 On appeal, Choi contends the Deed of Trust “require[d] the Lender, and not 

its agents, to substitute a new trustee.” Choi argues that because the Deed of Trust 

provides the “Lender” may replace the existing trustee authorized to initiate foreclosure, 

“‘Lender’ must denote the [initial] lender or its successors without encompassing [the] 
11

lender’s agents, nominees, or other representatives.” (Choi’s italics.) Choi rests his 

interpretation on the designation of WaMu in the Deed of Trust as the Lender and the use 

of “the singular ‘is’ throughout (as plural may connote agents).” 

 We are not persuaded. Choi asserts his interpretation of the Deed of Trust 

“must be accepted as correct in testing the sufficiency of the complaint,” but we interpret 

the provisions of a written contract de novo. (People v. International Fidelity Ins. Co.

(2010) 185 Cal.App.4th 1391, 1395.) Nothing in the Deed of Trust precluded the use of 

an agent by the lender or its successors in interest. Indeed, as a corporate entity, WaMu 

could only act through agents. Choi’s contrary position is without merit. 

 Choi’s unfair business practices claim also fails. As best we can discern, it 

is based on his wrongful foreclosure claim, and therefore falls with that claim. Choi 

argues generally that “[t]he ‘unfair’ prong of section 17200 intentionally provides courts 

with broad discretion to prohibit new schemes to defraud. [Citation.] An unlawful 

business practice or act is ‘unfair’ when it ‘offends established public policy or when the 

practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to 

consumers.” Choi argues vaguely that his “FAC is replete with wrongdoing allegations 

against all defendants,” and in his reply brief, he rebuts the Attorney Defendants’ 

invocation of the litigation privilege because “they are being sued for their conduct” and 

for their “collusion,” not for their words. (Choi’s italics.) 

 But Civil Code section 47(b)’s litigation privilege applies by its terms to 

attorney conduct that includes filing lawsuits and advising clients. Choi does not allege 

the Attorney Defendants engaged in any conduct besides filing the Second and Third 

Unlawful Detainer actions or similar legal maneuvers. The litigation privilege expressly 

embraces such conduct. Similarly, there is nothing fundamentally unfair about limiting 

what amounts to a breach of contract claim in Choi’s trustee substitution challenge to the 

parties that signed the contract, their successors, or intended third party beneficiaries. 

Choi does not qualify under any of these categories for his foreclosure challenge, and 

therefore the trial court properly sustained the demurrers. 
12

III 

DISPOSITION 

 The judgment is affirmed. Defendants are entitled to their costs on appeal. 

 

 ARONSON, J. 

WE CONCUR: 

RYLAARSDAM, ACTING P. J. 

BEDSWORTH, J.