Filed 3/8/23 Matthews v. ResMAE Mortgage Corp. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

ETHEL MATTHEWS,

Plaintiff and Appellant,

v.

RESMAE MORTGAGE 

CORPORATION et al.,

Defendants and Respondents.

 B312712

 (Los Angeles County

 Super. Ct. No. 19STCV35033)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Monica Bachner, Judge. Affirmed.

Ethel Matthews, in pro. per. for Plaintiff and Appellant.

Kutak Rock, Steven M. Dailey and Jennifer L. Andrews for 

Defendants and Respondents Select Portfolio Servicing, Inc., 

Mortgage Electronic Registration Systems, Inc., and U.S. Bank 

N.A.

Early Sullivan Wright Gizer & McRae, William A. Wright 

and Diane M. Luczon for Defendant and Respondent Stewart 

Title Guaranty Company.
2

McCarthy & Holthus and Melissa Robbins Coutts for 

Respondent Quality Loan Service Corporation.

_____________________________

This is an appeal from a Superior Court of Los Angeles

County judgment following an order sustaining, without leave to 

amend, the demurrers of Defendants and Respondents Select 

Portfolio Servicing, Inc. (SPS), Mortgage Electronic Registration 

Systems, Inc. (MERS), and U.S. Bank N.A., as Trustee, on Behalf 

of the Holders of the J.P. Morgan Mortgage Acquisition Trust 

2006-HE3 Asset Backed Pass-Through Certificates, Series 2006-

HE3 (U.S. Bank), Stewart Title Guaranty Company (STGC), and 

Stewart Title of California, Inc. (STCA), to the Second Amended 

Complaint (SAC) of Appellant Ethel Matthews (Appellant). In 

the same proceeding, the trial court also granted a Motion for 

Judgment on the Pleadings by Respondent Quality Loan Service 

Corporation (QLS) on Appellant’s SAC. We affirm.

BACKGROUND

I. Factual Background

On June 19, 2006, Appellant purchased the real property

located at 100 East Newby Avenue #1, San Gabriel, CA 91776 

(Property) and obtained a $675,000 loan from ResMAE Mortgage 

Corporation (ResMAE) that was secured by the Property. The 

Deed of Trust was recorded on June 19, 2006. MERS was the 

beneficiary of the Deed of Trust as nominee for ResMAE, its 

successors and assigns, and the trustee was STCA. In connection

with the purchase, Appellant also obtained an owner’s policy of

title insurance issued by STGC and countersigned by STCA. 
3

Appellant alleged that prior to loan origination there were 

misrepresentations made to her about the purchase price and the 

status of the Property as being classified as a “condominium,” 

and she felt pressured to enter into the loan transaction. 

Appellant claimed her HUD-1 Settlement Statement had a 

“falsified loan amount” and she complained she “never received a 

copy of any final or recorded loan documents at the end of 

escrow.” Appellant further claimed her title insurance policy was 

not the proper one and contained “false statements.” 

Appellant alleged she received notices dated September 11, 

2006 and November 22, 2006 stating the servicing rights were 

being transferred from ResMAE and Delaware Savings Bank to 

JPMorgan Chase Bank (Chase). Appellant alleged that the 

original lender ResMAE filed for bankruptcy and liquidated its 

assets in February 2007. Appellant alleged that because neither

ResMAE nor Delaware Savings Bank existed in 2006, the

servicing transfers were “ineffective and invalid.” 

On January 4, 2008, a Notice of Default and Election to Sell 

Under Deed of Trust was recorded. On February 29, 2008, a 

Substitution of Trustee, executed by MERS, was recorded, 

appointing First American, f/k/a First American Loanstar 

Trustee Services as substitute trustee. A Notice of Trustee’s Sale 

was recorded on April 8, 2008. On March 3, 2008, an Assignment 

of Deed of Trust was recorded reflecting MERS assigned the Deed 

of Trust to “U.S. Bank National Association, as Trustee for 

JPMAC 2006-H3, J.P. Morgan Chase Bank, National 

Association.”

On April 27, 2008, Appellant filed a Chapter 11 bankruptcy 

petition. In her schedules, Appellant identified the Property and 

the secured loan at issue here and did not disclose she had any 
4

claims against her lender. On March 20, 2009, Chase Home 

Finance, LLC, as servicing agent for MERS, filed a motion for 

relief from the automatic stay with respect to the Property, and 

the court granted relief May 15, 2009. The case was converted to 

Chapter 7 and Appellant was discharged on May 3, 2011. 

Further Notices of Trustee’s Sale were recorded on August 

7, 2009 and September 22, 2010. Appellant alleged Chase made 

promises of a loan modification, but a trial plan was denied. 

On January 10, 2011, a Grant Deed was recorded reflecting 

Appellant transferred the Property to herself and John H. 

Matthews. On December 23, 2011, a Corporate Assignment of 

Deed of Trust was recorded reflecting Assignment of the Deed of 

Trust from MERS to U.S. Bank; however, MERS already 

assigned the Deed of Trust to U.S. Bank. 

On May 2, 2012, a Notice of Rescission of Declaration of 

Default was recorded rescinding the January 4, 2008-recorded 

Notice of Default. On March 29, 2013, another Substitution of 

Trustee was recorded appointing California Reconveyance 

Company as successor trustee. On the same day, a Notice of 

Default was also recorded. That Notice of Default was rescinded 

on August 1, 2016. On December 17, 2013, a Grant Deed to a 

Revocable Trust was recorded reflecting that Appellant and John 

J. Matthews transferred the Property to Ethel Matthews, as

Trustee of the Matthews Living Trust.

Servicing of the loan transferred to SPS in 2013. Appellant 

alleges SPS “confirmed” that there was no loan on her property 

due to a bankruptcy discharge. 

On October 18, 2016, a Corrective Assignment of Deed of 

Trust was recorded to correct the name of the assignee of the 

April 16, 2008 Assignment to Respondent U.S. Bank. 
5

On December 6, 2016, a Substitution of Trustee was recorded 

reflecting substitution of QLS as successor trustee under the 

Deed of Trust. On December 6, 2016, another Notice of Default 

was recorded on the Property reflecting as of December 2, 2016, 

Appellant was in default in the amount of $642,088.30. 

Appellant’s bankruptcy case was reopened in February 

2017 and Appellant filed a Motion for a Permanent Injunction 

claiming that U.S. Bank, MERS, SPS, and others violated the 

automatic stay and discharge injunction through their efforts to 

enforce the Deed of Trust. On June 29, 2017, the court denied 

Appellant’s motion finding no automatic stay violation or 

contempt. The court also found Appellant’s attack on 

Assignment of the Deed of Trust failed under California law. 

The bankruptcy case terminated on July 26, 2017. Notices of 

Trustee’s Sale were then recorded on March 9, 2017 and July 19, 

2017. 

On October 2, 2017, Appellant filed another Chapter 13 

bankruptcy petition. She filed schedules on October 16, 2017. 

On schedule A/B, Appellant did not identify any of the claims 

asserted here, or relating to the Property in any way. The matter 

was dismissed on October 18, 2017 for failure to file schedules, 

statements or a plan. Another Notice of Trustee’s Sale was 

recorded on April 26, 2018. 

On October 3, 2019, a Grant Deed was recorded reflecting 

Appellant, as trustee for the Matthews Living Trust dated 

December 10, 2013, transferred title to herself (95 percent

interest), and Phil Matthews (5 percent interest). Another Notice 

of Trustee’s Sale was recorded on October 31, 2019. 
6

II. Matthews’ Prior Lawsuits

a. The 2007 Action

On November 7, 2007, Appellant filed a prior lawsuit 

entitled Ethel Matthews v. Infra + Arch Development, Inc., et al. 

(Super. Ct., L.A. County, No. GC039852) (2007 Action). In her 

complaint filed in the 2007 Action, Appellant sued STCA, and 

several other defendants, for fraud and other claims pertaining to 

the same 2006 transaction involving the Property. 

In that complaint, Appellant alleged, among other things, 

that she was defrauded in the purchase transaction, the 

“purchase numbers” in the transaction had changed, she believed 

she was purchasing a single family residence but was advised 

during escrow that it was a condominium, she was pressured to 

close on the purchase, and that, after the close of escrow, she was 

advised in September 2006 by the tax assessor’s office that the 

Property was “a single family residence.” Appellant subsequently 

dismissed STCA from the 2007 Action on March 10, 2008. 

Appellant thereafter filed a First Amended Complaint 

(FAC) in the 2007 Action on May 30, 2008 (against various 

defendants, but not STCA or STGC) in which she once again 

alleged, among other things, that the lender “overcharged and/or 

did not disclose certain fees” in connection with her loan, that the 

“purchase numbers” in the transaction were changed, and that 

she was misled as to whether the Property was a “detached town

home” or a “single family residence” or a “condominium.” 

b. The 2010 Action

On June 23, 2010, Appellant filed a complaint in the Los 

Angeles Superior Court against her original lender, ResMAE, and 

others, relating to the same secured loan and the same Property 

at issue in this case (Matthews I). Appellant alleged, in part, that 
7

Defendants made various misrepresentations at loan origination. 

Appellant claimed she was fraudulently induced into purchasing 

the Property and obtaining the loan. Appellant filed a FAC on 

July 12, 2011 alleging claims for quiet title and fraud, and she 

added Deed of Trust beneficiary U.S. Bank as a Defendant. She 

alleged, in part, that the loan was not property assigned to U.S. 

Bank, and it thus lacked authority to foreclose. On September 

27, 2011, the court granted U.S. Bank’s Motion to Strike the 

Complaint without leave to amend. 

c. The 2014 Action

On July 3, 2014, Appellant filed another complaint in Los 

Angeles Superior Court relating to the same secured loan and the 

same Property at issue in this case (Matthews II). Beneficiary 

U.S. Bank, SPS, MERS, were named as defendants in Matthews 

II, among others. 

Appellant alleged, in part, that Defendants lacked 

“standing to enforce the power of sale or foreclosure” and the 

“assignments remain ineffective.” She further claimed 

Defendants violated the automatic bankruptcy stay and made 

misrepresentations in the loan modification application process. 

Appellant filed her FAC on September 24, 2014 alleging 10

causes of action, continuing to attack authority to foreclose, 

claiming an automatic stay violation, and improprieties in the 

loan modification negotiation process. On December 19, 2014, 

the court sustained the demurrer of U.S. Bank, SPS, and MERS, 

to the FAC, without leave to amend, and entered judgment with 

prejudice. 
8

III. Procedural History of This Case

Appellant filed her initial complaint on October 1, 2019, 

asserting, among other claims, wrongful foreclosure and quiet 

title to the Property. Appellant sought a temporary restraining 

order to enjoin the foreclosure of the Property and the court 

denied the application. 

Appellant filed a FAC on January 10, 2020. On July 27, 

2020, the court sustained demurrers to the FAC filed by 

defendants SPS, MERS, U.S. Bank as Trustee, and Stewart Title, 

with leave to amend. In its written ruling, the court found each 

of Appellant’s claims failed to state viable causes of action and 

that her claims were barred by res judicata based on prior actions 

Appellant had filed against the defendants. 

Appellant filed a SAC on August 27, 2020, asserting causes 

of action for: (1) Lack of Standing to Foreclose; (2) Fraud;

(3) Slander of Title; (4) Unfair Competition; (5) Quiet Title to 

Real Property; (6) Cancellation of Instruments; and 

(7) Declaratory Relief. 

SPS, MERS, and U.S. Bank as Trustee filed a demurrer to 

the SAC and a Motion to Strike, and Stewart Title and Stewart 

Title of California, Inc. filed a separate demurrer and a Motion to 

Strike. Quality Loan Service filed an answer to the SAC on 

November 3, 2020, followed by a Motion for Judgment on the 

Pleadings.

As with the prior pleading, Appellant alleged “Defendants 

have not proven authority or any cause to foreclose upon and sell 

[Appellant’s] Property,” as the Assignments were allegedly 

invalid, and she “denies a lien ever existed.” Appellant alleged 

the Assignment was recorded after the closing date of the 

securitized trust. She claimed MERS was not authorized to 
9

assign the Deed of Trust. Appellant further claimed that the 

original lender ResMAE dissolved or filed for bankruptcy, 

rendering Assignment to U.S. Bank void. Respondents 

demurred. 

On March 16, 2021, the court sustained Respondents’ 

demurrers, without leave to amend. In addition to finding that 

Appellant failed to state a claim for her causes of action, the court 

further found that her “causes of action appear to be barred by 

the doctrine of res judicata on the face of the SAC and judicially 

noticed documents.” Specifically, through Matthews II, Appellant 

“ ‘challenged standing to enforce the power of sale or foreclosure 

and the assignments,’ and those claims were finally adjudicated 

in favor of Defendants or their privies.” The court also found the 

SAC was collaterally estopped because Appellant “ ‘did not 

disclose her claims against Defendants in the instant action in 

her bankruptcy schedules’ in her 2017 and 2018 bankruptcy 

actions, despite the fact ‘she was already aware of her claims 

challenging the enforceability of the Deed of Trust.’ ” 

The trial court ruled that Appellant’s causes of action 

against STGC and STCA were time-barred by the applicable 

statutes of limitations. The court found that Appellant knew 

about the circumstances that caused the statutes of limitations to 

start to run in 2006 (when Appellant purchased the Property) or 

in 2007 (when Appellant filed her 2007 Action). 

The court also granted QLS’s Motion for Judgment on the 

Pleadings without leave to amend. The court held that 

Appellant’s tort causes of action were barred by the litigation 

privilege under Civil Code section 2924.

The court entered judgment on April 5, 2021. Appellant 

timely appealed on May 14, 2021.
10

DISCUSSION

I. Standard of Review

“It is well established that a demurrer tests the legal 

sufficiency of the complaint. [Citation.] On appeal from a 

dismissal entered after an order sustaining a demurrer, we 

review the order de novo, exercising our independent judgment 

about whether the petition states a cause of action as a matter of 

law. We give the petition a reasonable interpretation, reading it 

as a whole and viewing its parts in context. [Citations.] We 

deem to be true all material facts that were properly pled. 

[Citation.] We must also accept as true those facts that may be 

implied or inferred from those expressly alleged. [Citation.] We 

may also consider matters that may be judicially noticed, but do 

not accept contentions, deductions or conclusions of fact or law.” 

(City of Morgan Hill v. Bay Area Air Quality Management Dist.

(2004) 118 Cal.App.4th 861, 869–870.)

“If the court sustained the demurrer without leave to 

amend, as here, we must decide whether there is a reasonable 

possibility the plaintiff could cure the defect with an amendment. 

[Citation.] If we find that an amendment could cure the defect, 

we conclude that the trial court abused its discretion and we 

reverse; if not, no abuse of discretion has occurred. [Citation.] 

The plaintiff has the burden of proving that an amendment 

would cure the defect.” (Schifando v. City of Los Angeles (2003) 

31 Cal.4th 1074, 1081.)

“Because a motion for judgment on the pleadings is similar 

to a general demurrer, the standard of review is the same.

[Citation.] We treat the pleadings as admitting all material facts 

properly pleaded, but not contentions, deductions or conclusions 

of fact or law. . . . [¶] . . . We consider evidence outside the 
11

pleadings which the trial court considered without objection. 

[Citation.]” (Baughman v. State of California (1995) 38 

Cal.App.4th 182, 187.)

II. The Trial Court Correctly Sustained the Demurrers

and Granted Judgment on the Pleadings

a. Demurrer Filed by SPS, MERS, and U.S. Bank

i. Appellant’s SAC is Barred By Res Judicata

As Respondents point out, Appellant has essentially left 

unchallenged the trial court’s finding that the SAC is barred by 

res judicata. While Appellant is in pro per, she is not excused 

from sufficiently supporting her arguments in briefing. A selfrepresented party on appeal “ ‘is to be treated like any other 

party and is entitled to the same, but no greater consideration 

than other litigants and attorneys. [Citation.]’ [Citation.] Thus, 

as is the case with attorneys, pro. per. litigants must follow 

correct rules of procedure.” (Nwosu v. Uba (2004) 122 

Cal.App.4th 1229, 1247 [deficiencies in pro per appellant’s 

opening brief resulted in waiver of issues on appeal].) On this 

basis alone, we may affirm the trial court. (See Badie v. Bank of 

America (1998) 67 Cal.App.4th 779, 784–785 [when an appellant 

“fails to support [an issue] with reasoned argument and citations 

to authority, we treat the point as waived”].)

Even considering the merits of the trial court’s analysis, we 

conclude that the trial court correctly found that Appellant’s SAC 

is barred by res judicata or claim preclusion. “A clear and 

predictable res judicata doctrine promotes judicial economy. 

Under this doctrine, all claims based on the same cause of action 

must be decided in a single suit; if not brought initially, they may 

not be raised at a later date. ‘ “Res judicata precludes piecemeal 

litigation by splitting a single cause of action or relitigation of the 
12

same cause of action on a different legal theory or for different 

relief.” ’ [Citation.] A predictable doctrine of res judicata benefits 

both the parties and the courts because it ‘seeks to curtail 

multiple litigation causing vexation and expense to the parties

and wasted effort and expense in judicial administration.’ 

[Citation.]” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 

888, 897; see also Mark v. Spencer (2008) 166 Cal.App.4th 219, 

229.)

The elements for claim preclusion are: “ ‘(1) A claim or 

issue raised in the present action is identical to a claim or issue 

litigated in a prior proceeding; (2) the prior proceeding resulted in

a final judgment on the merits; and (3) the party against whom 

the doctrine is being asserted was a party or in privity with a 

party to the prior proceeding. [Citations.]’ ” (People v. 

Barragan (2004) 32 Cal.4th 236, 253.)

“To determine whether two proceedings involve identical 

causes of action for purposes of claim preclusion, California 

courts have ‘consistently applied the “primary rights” theory.’ ” 

(Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797

(Boeken).) Under this theory, “ ‘[A] “cause of action” is comprised 

of a “primary right” of the plaintiff, a corresponding “primary 

duty” of the defendant, and a wrongful act by the defendant 

constituting a breach of that duty. [Citation.]’ ” (Hayes v. County 

of San Diego (2013) 57 Cal.4th 622, 630–631.) “The cause of 

action is the right to obtain redress for a harm suffered, 

regardless of the specific remedy sought or the legal theory 

(common law or statutory) advanced.” (Boeken, supra, at p. 798.)

The case of Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 

Cal.App.5th 907, 914 is instructive. In Gillies the court explained 

a judgment sustaining a demurrer to a wrongful foreclosure 
13

complaint in a prior action is not a “mere suggestion[] which 

allow[s a party] to perpetually file new lawsuits on new theories” 

(id. at p. 915) or based on newly enacted laws. Rather, the 

judgment precludes all actions involving the same “ ‘ “particular 

injury, regardless of the legal theory on which the injury is 

based.” ’ ” (Id. at p. 914.) “Somewhere along the line, litigation 

must cease.” (Ibid.) “It matters not that appellant has a new 

theory of wrongful foreclosure. It is the same primary right 

which appellant has always claimed,” the right to be free from 

foreclosure. (Ibid.)

As detailed above, on July 3, 2013, Appellant filed a 

complaint against Respondents US Bank, SPS, MERS, ResMae, 

and other named defendants in Matthews II. As the trial court 

properly found in that case, Appellant’s causes of action, like 

those in the instant action, challenged Respondents’ “standing to 

enforce the power of sale or foreclosure,” and asserted the 

“assignments remain ineffective.” Appellant further claimed 

Respondents violated the automatic bankruptcy stay through 

enforcing the Deed of Trust, and made misrepresentations in the 

loan modification application process. Accordingly, Appellant is 

attempting to seek redress of the same harm or primary right—

that the foreclosure process is improper based on invalid 

underlying Deeds of Trusts and Assignments.

On December 19, 2014, the court in Matthews II sustained 

the demurrer of U.S. Bank, SPS, and MERS to the FAC, without 

leave to amend, and entered judgment, with prejudice. “[F]or 

purposes of applying the doctrine of res judicata . . . , a dismissal 

with prejudice is the equivalent of a final judgment on the 

merits . . . . ‘The statutory term “with prejudice” clearly means 

the plaintiff’s right of action is terminated and may not be 
14

revived. . . . [A] dismissal with prejudice . . . bars any future 

action on the same subject matter.’ ” (Boeken, supra, 48 Cal.4th 

at p. 793.) It is the equivalent of a judgment on the merits.

(Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 

820–821.) As such, the trial court in the instant case properly 

sustained Respondents’ demurrer on the basis of res judicata. 

We therefore need not address the parties’ other contentions, and 

affirm the judgment. 

b. Demurrer by STGC and STCA

As with her arguments against U.S. Bank, SPS, and 

MERS, Appellant fails to offer any cogent legal argument or 

authority as to STGC or STCA. As STGC and STGC point out, 

Appellant’s opening brief hardly mentions STGC or STCA and 

fails to explain how any of the allegations in Appellant’s SAC 

state a valid claim for relief against STGC or STCA. On this 

basis alone, we may affirm the trial court’s order. (See Cahill v. 

San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 

[“ ‘We are not bound to develop appellants’ arguments for them. 

[Citation.] The absence of cogent legal argument or citation to 

authority allows this court to treat the contention as waived.’ ”].)

Nonetheless, we address the merits of the trial court’s 

conclusion that the SAC is time barred against STGC and STCA. 

As the trial court properly found, the only factual allegations 

relating to STGC are STGC’s unspecified role in recording a 

purported backdated unsecure lien, or the recorded Assignment,

dated November 14, 2011. Appellant attached to her SAC an 

assignment of the beneficial interest under the original June 13, 

2006 Deed of Trust, dated November 14, 2011 and recorded 

December 23, 2011.
15

We “interpret discovery in this context to mean not when 

the plaintiff became aware of the specific wrong alleged, but 

when the plaintiff suspected or should have suspected that an 

injury was caused by wrongdoing.” (Kline v. Turner (2001)

87 Cal.App.4th 1369, 1374.) “ ‘Under this rule constructive and 

presumed notice or knowledge are equivalent to knowledge. 

So, when the plaintiff has notice or information of circumstances 

to put a reasonable person on inquiry, or has the opportunity to 

obtain knowledge from sources open to [him or her] . . . the 

statute commences to run.’ ” (Parsons v. Tickner (1995) 31 

Cal.App.4th 1513, 1525; see also Jolly v. Eli Lilly & Co. (1988) 

44 Cal.3d 1103, 1111 (Jolly) [“Once the plaintiff has a suspicion of 

wrongdoing, and therefore an incentive to sue, she must decide 

whether to file suit or sit on her rights.”]) As a general matter, 

“it is the discovery of facts, not their legal significance, that starts 

the statute.” (Jolly, at p. 1113.)

As the trial court found, Appellant was aware of the 

underlying November 14, 2011 transaction, at the latest, in 2014 

given that her complaint in Matthews II, filed in July 2014,

contained the Assignment and Appellant alleged she discovered 

the Assignment in July 2014. Further, Appellant was aware of 

the circumstances that caused the statute of limitations to run 

since at least 2007 when she commenced an action against STGC 

and STCA. As such, the trial court was correct to hold that 

Appellant’s SAC is time-barred on the face of the pleading.1

1 The statute of limitations for fraud is three years. 

(Code Civ. Proc., § 338, subd. (d).) The statute of limitations for 

Business and Professions section 17200 is four years. (Bus. & 

Prof. Code, § 17208 [“Any action to enforce any cause of action

pursuant to this chapter shall be commenced within four years
16

c. Motion for Judgment on the Pleadings by QLS

As QLS points out, although Appellant’s SAC raised seven 

causes of action, her opening brief focuses on lack of standing to 

foreclose and slander of title. For the reasons discussed below, as

to both of these causes of action, and Plaintiff’s remaining tort 

claims, the trial court correctly concluded that Appellant could 

not state any claim against QLS because QLS, as trustee of the 

Deed of Trust, is subject to statutory privileges. 

A nonjudicial foreclosure sale is a creature of statute. 

(Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 334

(Kachlon) [“The Civil Code contains a comprehensive statutory 

scheme regulating nonjudicial foreclosure.”]) The trustee’s role in 

preparing for and conducting the sale is set forth in detail in Civil 

Code section 2924 et. seq. “The trustee in nonjudicial foreclosure

is not a true trustee with fiduciary duties, but rather a common 

agent for the trustor and beneficiary.” [Citation.] The scope and 

nature of the trustee’s duties are exclusively defined by the deed 

of trust and the governing statutes. No other common law duties 

exist. [Citations.]” (Kachlon, supra, at p. 335.) In short, the

trustee does not contract with the purchaser for the sale of the 

after the cause of action accrued”].) The statute of limitations for

quiet title and the cancellation of instruments, both of which are 

premised on allegations of fraud, are also three years. (Code Civ. 

Proc., § 338, subd. (d); see also Walters v. Boosinger (2016) 2 

Cal.App.5th 421, 428 [on a quiet title claim, “ ‘courts refer to the 

underlying theory of relief to determine the applicable period of 

limitations’ ”].) The statute of limitations for “lack of standing to 

foreclose,” which we construe as a wrongful foreclosure claim

premised on fraud, is three years. (Code Civ. Proc., § 338, subd. 

(d).)
17

foreclosed property, but performs ministerial acts which, when 

properly executed, result in the transfer of title to the purchaser.

In enacting the comprehensive statutory scheme, the 

Legislature chose to vest trustees performing the statutory 

foreclosure procedures with a qualified privilege precluding them 

from liability for actions undertaken within the scope of their 

statutory duties. To that end, Civil Code section 2924, 

subdivision (b) provides: “In performing acts required by this 

article, the trustee shall incur no liability for any good faith error 

resulting from reliance on information provided in good faith by

the beneficiary regarding the nature and the amount of the 

default under the secured obligation, deed of trust, or mortgage.” 

(Italics added.) Thus, when a trustee such as QLS records a 

Notice of Default or Notice of Trustee’s Sale at the direction of 

the beneficiary, the trustee incurs no tort liability for doing so.

The recording of a notice of sale and notice of default are 

also privileged. Civil Code section 2924, subdivision (d)(1), 

provides that “[t]he mailing, publication, and delivery of notices

as required” by section 2924 “constitute privileged 

communications pursuant to Section 47.” Section 2924 mandates 

the recording of both a notice of default and a notice of sale.

(Civ. Code, § 2924, subds. (a)(1) & (a)(3).)

Appellant’s SAC does not allege that QLS had any role with 

regard to her loan or property aside from issuing foreclosure 

notices in its capacity as trustee of the Deed of Trust. Her first 

cause of action for “lack of standing to foreclose” does not mention 

QLS by name, and instead generally contends that “Defendants” 

did not have the power to foreclose. Her second cause of action 

for fraud takes issue with the content of foreclosure notices 

issued by QLS. Her third cause of action for slander of title again 
18

attempts to state a claim against QLS solely for its recording of a 

Notice of Default and Notice of Trustee’s Sale. 

Each of the above actions fall within the scope of QLS’s 

statutory privilege. Civil Code section 47 creates two privileges: 

(1) an absolute privilege, commonly called the litigation privilege, 

that applies irrespective of the speaker’s motive; and (2) a 

qualified privilege that “applies only to communications made 

without malice.” (Hagberg v. California Federal Bank (2004) 32 

Cal.4th 350, 360, superseded by statute on other grounds.) Civil 

Code section 2924, subdivision (d), refers only to “Section 47” 

without specifying which of the two privileges applies. The 

courts have split on this question. (Compare Kachlon, supra, 168 

Cal.App.4th at pp. 335–341 [Civ. Code, § 2924 incorporates § 47’s 

qualified privilege] with Garretson v. Post (2007) 156 Cal.App.4th 

1508, 1517 [§ 2924 incorporates § 47’s absolute privilege].) We 

need not take a position on this issue because the publication of 

documents at issue in this case is privileged even under section 

47’s narrower qualified privilege.

For the purposes of section 47’s qualified privilege, “malice” 

means that the defendant (1) “ ‘was motivated by hatred or ill 

will towards the plaintiff,’ ” or (2) “ ‘lacked reasonable grounds for 

[its] belief in the truth of the publication and therefore acted in 

reckless disregard of the plaintiff’s rights.’ ” (Sanborn v. 

Chronicle Publishing Co. (1976) 18 Cal.3d 406, 413; Taus v. 

Loftus (2007) 40 Cal.4th 683, 721; Civ. Code, § 48a, subd. (d)(4) 

[defining “actual malice” as “hatred or ill will toward the 

plaintiff”].)

The purpose of this privilege is to bar any tort action based 

on a protected communication when the publication was made 

without malice. (Kachlon, supra, 168 Cal.App.4th at p. 336.) 
19

Malice requires that the publication be motivated by hatred or ill 

will toward the plaintiff or lack of reasonable belief in the truth of 

the publication. (Ibid.)

As the trial court found, Appellant’s SAC contains no facts 

to suggest that QLS recorded the Notices of Default and Sale out 

of hatred toward Appellant or that QLS had reason to believe 

that Appellant’s loan was not in default. Appellant’s conclusory 

allegation that QLS acted with malice when it “colluded” or

“conspired” with SPS to foreclose on the property falls short of 

this standard. 

In her opening brief, Appellant again states in a conclusory 

fashion that Defendants acted with malice, but she fails to allege 

facts supporting that contention as to QLS. Appellant’s

conclusory assertions lacking any factual support cannot support 

a cause of action that would survive a motion for judgment on the 

pleadings or demurrer. (See Curcini v. County of Alameda (2008)

164 Cal.App.4th 629, 650 [conclusory allegations of malice are 

insufficient to survive demurrer].) Accordingly, we affirm the 

judgment granting QLS’s Motion for Judgment on the Pleadings.

DISPOSITION

The court has read and considered the motion for judicial

notice. It is ordered that the motion is granted, and the court 

takes judicial notice of the following documents: (1) The 

complaint filed on November 7, 2007, entitled Ethel Matthews v. 

Infra + Arch Development, Inc., et al. (Super. Ct, L.A. County No. 

GC039852) (2007 Action). (2) The request for dismissal filed and 

entered on March 10, 2008 in the 2007 Action. (3) The FAC filed 

on May 30, 2008 in the 2007 Action. (4) The complaint filed on 

June 23, 2010, entitled Ethel Matthews v. ResMAE Mortgage 

Corporation, et al. (Super. Ct., L.A. County, No. GC045473). 
20

(5) The complaint filed on July 3, 2014, entitled Ethel Matthews 

v. JPMorgan Chase Bank, et al. (Super. Ct., L.A. County,

No. EC062589).

The judgment sustaining the demurrers and granting 

judgment on the pleadings is affirmed. Costs are awarded to 

Respondents.

HARUTUNIAN, J.*

We Concur:

STRATTON, P. J.

WILEY, J.

* Judge of the San Diego Superior Court, assigned by the 

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

Constitution.