Filed 9/18/19 Mitchell v. Regional Trustee Services Corp. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

BERNARD MITCHELL,

Plaintiff and Appellant,

v.

REGIONAL TRUSTEE SERVICES CORPORATION et al.,

Defendants and Respondents.

A150263, A150419, A150730, A153747

(Alameda County

Super. Ct. Nos. HG12639675, HG12658439, RG14718395)

In this consolidated appeal, Bernard Mitchell appeals from several judgments in favor of respondent Deutsche Bank National Trust Company (Deutsche Bank). The cases arise out of the foreclosure sale of property formerly owned by Mitchell. After the foreclosure, a deluge of litigation ensued, including an unlawful detainer action filed by Deutsche Bank against Mitchell, two federal court actions and three state court actions filed by Mitchell against Deutsche Bank and others, and a cross-action by Deutsche Bank against Mitchell for trespass and tenancy at sufferance.

On appeal, Mitchell contends the trial court erred in sustaining the demurrer of Deutsche Bank and respondent CIT Bank, N.A. f/k/a OneWest Bank, N.A., f/k/a OneWest Bank, FSB (OneWest) to several causes of action in Mitchell’s first amended complaint based on the res judicata effect of the unlawful detainer judgment. Mitchell further contends he should have been given leave to amend in order to allege a new theory of liability that respondents relied on a void note and deed of trust to foreclose on the property. Mitchell also raises several challenges to the judgment on the cross-complaint, including that the cross-complaint failed to sufficiently allege whether the trespass was permanent or continuing, that the jury awarded excessive damages, that Deutsche Bank’s assertion of a new theory of liability at trial denied Mitchell due process, and that insufficient evidence supported the judgment. We find no merit in these contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2007, Mitchell entered into a loan agreement and executed a deed of trust in favor of IndyMac Bank, FSB (IndyMac), encumbering his house in San Leandro (the subject property). Mitchell alleges he made payments on the loan until an IndyMac employee advised him to default so that he could be considered for a loan modification. After going into default, Mitchell submitted a loan modification application in May 2009.

In August 2009, Mitchell accepted IndyMac’s offer of a loan modification. However, despite making payments pursuant to the loan modification agreement, Mitchell received a notice of default from Regional Service Corporation (RSC). In November 2009, a notice of trustee’s sale was recorded, scheduling the sale for December 3, 2009.

In December 2009, OneWest sent Mitchell a letter stating that it was servicing his loan “on behalf of the securitization trust RAST 2007-A8, Deutsche Bank National Trust Company, as Trustee/Master Servicer.” Mitchell alleges he was never given documentation verifying that OneWest was assigned the note prior to RSC initiating foreclosure.

The trustee’s sale was eventually held in August 2010. Deutsche Bank, as trustee, acquired the subject property.

The First Federal Action

In September 2010, Mitchell sued respondents in federal court for violations of the Fair Debt Collections Act (15 U.S.C., § 1692 et seq.) and other claims. The district court eventually granted respondents’ motion to dismiss Mitchell’s federal claim, declined to exercise supplemental jurisdiction over his state law claims, and entered judgment against Mitchell. Mitchell’s appeal from the remand order was dismissed for lack of jurisdiction.

The Unlawful Detainer Action

In October 2010, Deutsche Bank served Mitchell with a three-day notice to vacate the subject property. In December 2010, Deutsche Bank filed an unlawful detainer action against Mitchell.

Deutsche Bank moved for summary judgment. In opposition, Mitchell argued that Deutsche Bank had not complied with the deed of trust or Civil Code section 2924 et seq. in proceeding with and noticing the 2010 foreclosure sale, and that the sale had been postponed without the statutorily required notice. The trial court granted the motion, and judgment was entered in Deutsche Bank’s favor in 2012. Mitchell’s appeal from the unlawful detainer judgment was dismissed as untimely, and his petitions for rehearing and application for certification to transfer to the Court of Appeal were denied.

Mitchell’s State Court Actions and Deutsche Bank’s Cross-Action

In July 2012, Mitchell filed a lawsuit in state court against respondents and RSC. After respondents removed the case to federal court, Mitchell and Raye Mitchell, his sister and attorney, filed a separate state court action against Deutsche Bank seeking to set aside the 2012 unlawful detainer judgment.

Upon remand of the removed federal suit back to state court, Mitchell filed a first amended complaint (FAC) alleging 18 causes of action, including fraud, wrongful foreclosure, quiet title, and related claims. In March 2013, Deutsche Bank filed a cross-complaint against Mitchell for tenancy at sufferance and trespass. The cases were eventually consolidated for all purposes.

In 2013, the trial court sustained respondents’ demurrer to several causes of action in the FAC without leave to amend. The court ruled, in relevant part, that the first, fourth, fifth through eighth, tenth, eleventh, and thirteenth through fifteenth causes of action were barred by collateral estoppel due to the judgment in the unlawful detainer action.

In March 2016, Mitchell’s remaining claims and Deutsche Bank’s cross-complaint came on for trial. At the outset, the trial court granted Deutsche Bank’s motion in limine no. 1, precluding any evidence challenging the 2010 foreclosure sale or the validity of the underlying loan. After the court made several more in limine rulings against Mitchell, he elected to voluntarily dismiss his remaining claims.

Deutsche Bank presented four witnesses at trial, including real estate agent Shawna Jorat. Mitchell presented no evidence. The jury returned special verdicts unanimously in favor of Deutsche Bank’s claims for trespass and tenancy at sufferance and awarded $102,900 in damages on each claim. In October 2016, the trial court entered judgment in favor of Deutsche Bank in the amount of $102,900, plus allowable costs.

Mitchell filed several post-trial motions for judgment notwithstanding the verdict, a new trial, and vacatur of the judgment, which the trial court denied. After Mitchell filed notices of appeal from the October 2016 judgment and post-trial orders (case Nos. A150263, 150419), the court entered an amended judgment that included a cost award to Deutsche Bank. Mitchell filed a notice of appeal from the cost order as well (case No. A150730).

The Game Chanjers Case

Meanwhile, in March 2014, Mitchell, Raye, and several entities including Game Chanjers LLC (Game Chanjers) and The New Reality Foundation, Inc. (New Reality Foundation) filed another state court action against Deutsche Bank and other defendants. The plaintiffs alleged, in relevant part, that they were owners and tenants in possession of the subject property, and that the unlawful detainer judgment was void for lack of compliance with the federal Protecting Tenants at Foreclosure Act of 2009 (PTFA) (Pub.L. No. 111-22, div. A, tit. VII, §§ 702–704 (May 20, 2009) 123 Stat. 1660). The trial court sustained demurrers to some of the causes of action without leave to amend and to others with leave to amend. Because the plaintiffs failed to amend within the time given, the case was dismissed. The plaintiffs appealed (case No. A153747).

The Second Federal Action

In yet another action related to the subject property, Mitchell filed a complaint in federal court in August 2015 seeking to enforce his rescission rights under the federal Truth In Lending Act (TILA) (15 U.S.C. § 1601 et seq.). The crux of the 2015 federal action was Mitchell’s theory that the note and deed of trust relied upon by Deutsche Bank in foreclosing on the subject property were void because Mitchell had previously exercised his right under TILA to rescind the loan. Mitchell alleged that on May 5, 2007, he obtained a $648,000 loan (“Loan 125”) from IndyMac secured by a deed of trust on the subject property. The next day, Mitchell exercised his right under TILA to rescind Loan 125 by giving IndyMac a written notice of rescission, and IndyMac confirmed receipt of the notice. A few months later, in July 2007, IndyMac provided Mitchell with a new, unsecured loan (“Loan 100”), but Mitchell never agreed and was never notified that the note for Loan 125 was merged into and became the note for Loan 100. Mitchell alleged that Deutsche Bank, as assignee of Loan 125, refused to honor his rescission of the loan documents and then foreclosed on the subject property in reliance on void instruments.

The district court dismissed the suit as barred by res judicata based on the 2012 unlawful detainer judgment. (Mitchell v. Deutsche Bank Nat’l Trust Co. (N.D.Cal., Jan. 22, 2016) 2016 U.S.Dist. Lexis 7848, *5–10.) The court additionally held the suit was untimely under the applicable statute of limitations. (Id. at *10–11, fn. 3.) The Ninth Circuit affirmed the judgment on statute of limitations grounds. (Mitchell v. Deutsche Bank Nat’l Trust Co. (9th Cir. 2018) 714 Fed.Appx. 739, 740–741.)

The Instant Appeal

We consolidated the appeals from the judgments and post-judgment orders in Mitchell’s state cases and Deutsche Bank’s cross-action (case Nos. A150263, A150419, A150730) and the Game Chanjers case (case No. A153747) for briefing, oral argument, and decision.

DISCUSSION

A. Res Judicata/Collateral Estoppel
B.
Mitchell contends the trial court in the remanded state court action erred in concluding that the first, fourth, fifth through eighth, tenth, eleventh, and thirteenth through fifteenth causes of action in the FAC were barred by collateral estoppel due to the unlawful detainer judgment.

Preliminarily, we note the trial court sustained respondents’ demurrer to the first, fourth, fifth, sixth, and thirteenth causes of action on additional grounds besides collateral estoppel, and Mitchell has not attempted to demonstrate the court’s error in doing so. By failing to provide any argument showing error on these additional grounds, Mitchell has waived any challenges thereto. (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277 (Hernandez).) Thus, even if the collateral estoppel ruling was erroneous, the decision sustaining the demurrer as to the first, fourth, fifth, sixth, and thirteenth causes of action still stands.

We now turn to the seventh, eighth, tenth, eleventh, fourteenth, and fifteenth causes of action, which were dismissed solely on collateral estoppel grounds. “Collateral estoppel, or issue preclusion, ‘precludes relitigation of issues argued and decided in prior proceedings.’ ” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) Collateral estoppel has five requirements: (1) the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding; (2) this issue must have been actually litigated in the former proceeding; (3) it must have been necessarily decided in the former proceeding; (4) the decision in the former proceeding must be final and on the merits; and (5) the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.)

Because an unlawful detainer action is a summary proceeding ordinarily limited to resolution of the question of possession, any judgment arising therefrom generally has “limited res judicata effect and will not prevent one who is dispossessed from bringing a subsequent action to resolve questions of title.” (Vella v. Hudgins (1977) 20 Cal.3d 251, 255 (Vella).) There is, however, a “qualified exception” to this rule based on Code of Civil Procedure section 1161a, subdivision (b), which provides that an unlawful detainer action may be filed “[w]here the property has been sold in accordance with Section 2924 of the Civil Code, under a power of sale contained in a deed of trust executed by such person, or a person under whom such person claims, and the title under the sale has been duly perfected.” (Vella, supra, at p. 255.) Because title may be litigated in an unlawful detainer “to this limited extent” (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159), an unlawful detainer judgment bars subsequent fraud or quiet title suits founded upon allegations of irregularities in the trustee’s sale. (Vella, supra, at p. 256.) Conversely, claims based on “activities not directly connected with the conduct of the sale” are not barred by res judicata or collateral estoppel. (Ibid.)

In the unlawful detainer action, Mitchell opposed Deutsche Bank’s summary judgment motion by arguing, in relevant part, that the 2010 foreclosure sale was void as a matter of law because Deutsche Bank failed to strictly comply with Civil Code sections 2920 through 2924 and the requirements of the deed of trust. Mitchell also argued there were material issues of fact as to whether Deutsche Bank was the authorized trustee with the power to litigate the unlawful detainer, and whether the foreclosure sale was postponed “according to statutory requirements” because there was purportedly no announcement of the postponement or notice given to Mitchell or his counsel of the foreclosure sale. In granting summary judgment, the court found that Deutsche Bank had purchased the subject property “at [a] duly noticed and validly conducted Trustee’s Sale” and submitted evidence “which established the foreclosure sale [was] in compliance with [Civil Code section] 2924 and perfection of title,” and that Mitchell had proffered no evidence to raise a triable issue of fact.

The eighth, eleventh, fourteenth, and fifteenth causes of action sought to relitigate the foregoing issues. The eighth cause of action for breach of oral agreement alleged that respondents breached an agreement to postpone the foreclosure sale and give notice of the new sale date. The eleventh cause of action for breach of the covenant of good faith and fair dealing alleged that Deutsche Bank and its agents falsely promised the foreclosure sale was on hold and both concealed and failed to provide notice of the actual date of the foreclosure sale. The fourteenth cause of action for slander of title alleged that Deutsche Bank’s claim of title to the subject property was false because RSC, purporting to act as respondents’ agent, wrongfully recorded the notice of default, notice of trustee’s sale, and trustee’s deed upon sale. And the fifteenth cause of action to void the foreclosure sale and cancel the substitution of trustee and trustee’s deed alleged that the sale was based on unsigned and forged documents assigning the deed of trust and note to OneWest and substituting Deutsche Bank as trustee. Because these claims were founded upon allegations of wrongdoing directly connected with the conduct of the 2010 foreclosure sale and Deutsche Bank’s perfection of title, they are barred by the prior unlawful detainer judgment. (Vella, supra, 20 Cal.3d at p. 256.)

Mitchell unpersuasively contends this application of collateral estoppel does not comport with fairness and public policy. Whether collateral estoppel is fair and consistent with public policy depends in part upon the character and judicial nature of the forum that first decided the issue later sought to be foreclosed, i.e., its legal formality, its jurisdictional scope, and its procedural safeguards, including the opportunity for judicial review of adverse rulings. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 829, 835.) Here, the prior forum was a court, so Mitchell had a full and fair opportunity to litigate his claims challenging the regularity of the foreclosure proceedings (Vella, supra, 20 Cal.3d at p. 256) and to appeal adverse rulings (Code Civ. Proc., § 904.2, subd. (a)).

We reach a slightly different conclusion on the seventh cause of action for breach of the note/deed of trust and the tenth cause of action for deceit/concealment. Although these causes of action were largely based on allegations of wrongdoing connected with the conduct of the foreclosure sale, they also alleged that Deutsche Bank as owner of the note, and respondents as “foreclosing defendants,” failed to give Mitchell notice of where to send payments and how much to send. The alleged failure to provide payment notices was not directly connected to the conduct of the sale, and nothing in the record indicates that such alleged wrongdoing was actually and necessarily litigated on the merits in the unlawful detainer. Nor does Deutsche Bank cite any authority for the position that a claim against a lender or loan servicer for failing to provide payment notices could have been raised within the limited scope of the unlawful detainer proceeding. (Hong Sang Market, Inc. v. Peng (2018) 20 Cal.App.5th 474, 491.) Because a demurrer does not lie to only a part of a cause of action (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163), the trial court could not properly sustain the demurrer to the seventh and tenth causes of action based only on the portions actually barred by collateral estoppel.

Nevertheless, Mitchell has not adequately demonstrated grounds for reversal. The non-collaterally-estopped portions of the seventh and tenth causes of action mirrored the allegations of the fourth cause of action for violation of Civil Code section 2937, and the trial court separately ruled that Mitchell failed to state a cause of action under that statute because the failure to send payment notices did not prevent Mitchell in any way from curing the default. Mitchell waived any challenge to this ruling by failing to present any argument or authority showing error. (Hernandez, supra, 37 Cal.App.5th at p. 277.) This same rationale applies to the remaining allegations in the seventh and tenth causes of action. To state a claim for breach of contract or fraudulent concealment, the alleged damages must causally result from the contractual breach or suppression of fact. (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 402; Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) The only resulting harms alleged in the seventh and tenth causes of action were that Mitchell was prevented from reinstating the mortgage and/or filing for bankruptcy to prevent the foreclosure, but Mitchell alleges no causal nexus between the lack of payment notices and these harms. Meanwhile, he admits elsewhere in the FAC that he received the notice of default in August 2009, and he does not allege that the notice failed to set forth the amount needed to cure the default (Civ. Code, §§ 2924, subd. (a)(1)(D), 2924c, subd. (b)(1)) or that he paid such amount. Thus, Mitchell’s non-collaterally-estopped claims for breach of note/deed of trust and deceit/concealment fail for the same reasons his claim under Civil Code section 2937 failed, and he has waived any perceived error in this regard.

For these reasons, we conclude the trial court properly sustained Deutsche Bank’s demurrer to the first, fourth, fifth through eighth, tenth, eleventh, and thirteenth through fifteenth causes of action.

C. Leave to Amend
D.
Mitchell contends the trial court erred in denying leave to amend because he can state viable claims on the second and eighteenth causes of action (void judgment, violation of the UCL) as well as additional causes of action for conversion and wrongful foreclosure, by alleging that he successfully rescinded Loan 125, and that Deutsche Bank wrongfully relied on the rescinded note and deed of trust to conduct the foreclosure sale.

We review a trial court’s decision to sustain a demurrer without leave to amend for abuse of discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Generally, leave to amend is liberally granted (Scott v. City of Indian Wells (1972) 6 Cal.3d 541, 549), and a plaintiff may propose new facts or theories on appeal to show the complaint can be amended to state a cause of action. (Connerly v. State of California (2014) 229 Cal.App.4th 457, 460.) However, the court’s power to permit amendments is not unlimited, and a plaintiff may not introduce by amendment “ ‘ “a wholly different cause of action” ’ ” or “a wholly different legal liability or obligation from that originally stated.” (Klopstock v. Superior Court (1941) 17 Cal.2d 13, 20 (Klopstock).)

We find no abuse of discretion. The proposed amendments do not arise out of Deutsche Bank’s obligations under the loan agreement and deed of trust, its legal duty to provide notices, or its concealment of the foreclosure sale date, as alleged in the FAC. Rather, they arise out of Mitchell’s rescission of Loan 125 and Deutsche Bank’s use of the deed of trust on the rescinded loan to foreclose on the subject property—which constitute wholly different legal liabilities and obligations from those originally stated. (Klopstock, supra, 17 Cal.2d at p. 20.) Mitchell recognized this distinction in his federal TILA complaint, which asserted the same theory of liability as the proposed amendments, stating, “this case is not a wrongful foreclosure case or an attack on the validity of the notice requirements under California non-judicial statutes. . . . [¶] This case addresses a very simple issue of enforcement of a loan rescission right vested on May 6, 2007 under the Truth in Lending Act[.]” Because the proposed amendments went beyond the permissible scope of amendment, leave to amend was properly denied.

E. Trespass Damages
F.
Mitchell argues that the judgment on Deutsche Bank’s cross-complaint is void and that he was denied constitutional notice because the cross-complaint did not allege what type of trespass (permanent or continuing) was at issue. Mitchell further contends that even if a continuing trespass was sufficiently alleged, Deutsche Bank was not legally entitled to damages incurred after the filing of the cross-complaint in March 2013 because a continuing trespass is assessed for present and past damages only, and any claim for post-filing damages was time-barred.

We find no pleading deficiency in the cross-complaint. A permanent trespass involves a permanent injury in which damages are assessed “once for all,” while a continuing trespass can be discontinued at any time. (Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868–869 (Baker).) Here, Deutsche Bank alleged that the cross-defendants “continued to occupy” the property and that Deutsche Bank was entitled to damages until it “recovers possession.” Reasonably construed, the cross-complaint alleged a continuing trespass.

We next turn to Mitchell’s contention that the trespass damages award was excessive because it included amounts incurred after the filing of the cross-complaint. As mentioned, Deutsche Bank issued a notice to vacate the subject property in October 2010 and filed its cross-complaint for trespass and tenancy at sufferance in March 2013. Deutsche Bank finally obtained possession of the subject property in July 2014, when the sheriff executed a writ of possession. At trial, Deutsche Bank asked the jury to award monthly rental value damages for the 45 months between October 2010 and July 2014.

Deutsche Bank relies on Renz v. 33rd Dist. Agricultural Assn. (1995) 39 Cal.App.4th 61 (Renz) for the position that damages incurred between the commencement and conclusion of a continuing trespass action are recoverable in that action. Notably however, Renz came to this conclusion in spite of language in Baker, supra, 39 Cal.3d 862, indicating that recovery in a continuing nuisance or trespass suit is limited to injuries “suffered prior to the commencement” of the action, and that “ ‘[p]rospective damages are unavailable,’ ” which Renz concluded was non-binding dicta. (Renz, supra, at p. 65, citing Baker, at p. 869.) In a case subsequent to Renz, the California Supreme Court quoted the relevant language from Baker with approval (Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087, 1103), but the case did not mention Rentz or involve post-filing damages. Federal courts disagree on the correctness of Renz’s holding. (Compare California v. Kinder Morgan Energy Partners, L.P. (S.D.Cal., Mar. 24, 2016) 2016 U.S.Dist. Lexis 40551, at *25–27, with Orange County Water Dist. v. Unocal Corp. (C.D.Cal., Nov. 3, 2016) 2016 U.S.Dist. Lexis 193938, at *31–35.)

At any rate, we need not reach the merits of this issue, for any perceived error was harmless. The jury awarded Deutsche Bank the same amount of damages ($102,900) on its other claim for tenancy at sufferance, and Deutsche Bank ultimately recovered a single award of $102,900. Mitchell does not challenge the tenancy at sufferance award on appeal, and we find that it properly included amounts incurred after the March 2013 filing of the cross-complaint. A tenancy at sufferance arises when a person goes into possession of land lawfully and thereafter occupies without any title at all, and the tenant at sufferance is liable for the value of the use and occupation of the premises during the time of holding over. (Stephens v. Perry (1982) 134 Cal.App.3d 748, 757, fn. 4.) Because the time of holding over continued until July 2014, Deutsche Bank was properly awarded tenancy at sufferance damages that accrued between March 2013 and July 2014. Accordingly, Mitchell cannot show a reasonable probability of obtaining a more favorable result absent the claimed error of excessive trespass damages. (People v. Watson (1956) 46 Cal.2d 818, 836.)

G. New Theory of Liability
H.
Mitchell contends he was denied due process and a fair trial because Deutsche Bank introduced a new theory of liability at trial that was not pleaded in the cross-complaint. This purportedly new theory was that Mitchell was liable for intentionally causing third parties to commit trespass on the subject property. Mitchell argues he was “ambushed” by “the late transformation of the theory of liability,” as it was presented for the first time in closing argument.

We find these arguments unpersuasive. Under applicable law, a defendant may be liable in trespass for “causing the entry of some other person” onto the plaintiff’s property. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) This principle is set forth in CACI No. 2000, which was used to instruct the jury in this case, as well as in the special verdict forms discussed by the parties and the trial court before the presentation of evidence. Mitchell could not have been unfairly surprised that Deutsche Bank’s case rested on this recognized theory of trespass liability.

Furthermore, the record discloses no deprivation of the opportunity to defend against this theory of liability. It appears the only evidence at trial regarding third parties pertained to Raye and, indirectly, two entities she has affiliated herself with—New Reality Foundation and Center for Positive Power. Mitchell provides no reason why he could not have simply testified that he did not cause these third parties to enter onto the subject property, nor does he contend he required additional discovery to uncover other witnesses or evidence on the subject.

Finally, even if Deutsche Bank’s theory of liability was not reasonably clear until it gave its closing argument, Mitchell could have moved to reopen the evidence so as to present a defense. (People v. Memro (1995) 11 Cal.4th 786, 869.) His failure to do so waived any claim of error. (Ibid.)

I. Sufficiency of the Evidence
J.
Mitchell argues Deutsche Bank failed to present competent evidence establishing that he occupied the subject property and/or intentionally caused third parties to occupy the premises as his agents or in any other capacity after being given notice to vacate.

In evaluating a sufficiency-of-the-evidence challenge to a verdict, our review “begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

At trial, Shawna Jorat testified she was a licensed real estate agent hired by OneWest to visit the subject property and assess its condition and occupancy. Jorat first visited the property a few days after the foreclosure sale. Met by Raye, Jorat said she was there to see Mitchell or the owner of the property. Raye claimed to be the attorney for the owner and told Jorat there was a misunderstanding because loan payments had been made. Jorat further testified that Raye said “they were not going to be going anywhere.”

Jorat continued to visit the subject property and document its condition weekly or every other week from August 2010 to the beginning of 2013. During that time, the lawn and shrubbery were well-maintained, the property had functioning gas and electricity, and the property’s appearance did not significantly change. Jorat often saw a white or off-white Lexus vehicle parked in the driveway, and on two occasions, the garage door was open and she observed a Porsche parked inside the garage with personal property arranged in such a way as to make space for the vehicle. Jorat further testified that she once saw a man rolling a garbage can out for trash collection, and in late summer or early fall of 2011, she was confronted by Raye, who brandished a PVC pipe and yelled “stay away from my property, don’t take pictures.”

In addition to Jorat’s testimony, Deutsche Bank submitted trial exhibits containing photographs of the subject project taken by Jorat and Mitchell’s interrogatory responses served in the instant action in which Mitchell stated that he had resided at the subject project and had not released his possessory interest in it.

From this evidence, the jury could have found that Mitchell continued to occupy the subject property and also allowed his sister to occupy it for many years after being given notice to vacate. As recounted by Jorat, Raye purported to speak on behalf of herself and her client, Mitchell, and her statement that “they” were not “going anywhere” reasonably implied that both she and her brother were still occupying the property and were refusing to leave. Meanwhile, the evidence of personal property and multiple vehicles parked in the driveway and garage, the continued maintenance of the property, and the indications of waste pickup and utilities usage further supported the finding that Mitchell and Raye’s occupancy continued for many years. We conclude substantial evidence supported the special verdicts.

K. Remaining Arguments
L.
Mitchell’s remaining arguments are similarly unpersuasive. He contends that despite the trial court’s in limine order excluding evidence challenging the validity of the debt, Deutsche Bank opened the door to this issue when one of its witnesses testified that Mitchell defaulted on his loan obligation. Assuming the issue was not waived, we find no abuse of discretion in the trial court’s decision to allow the testimony. Such testimony simply provided foundational facts establishing Mitchell’s previous ownership and Deutsche Bank’s successor ownership of the subject property, which were necessary for Deutsche Bank to prove its claims for trespass and tenancy at sufferance.

Mitchell further contends that Deutsche Bank’s counsel improperly asked the jury to award a “deficiency judgment” when she told the jury that Deutsche Bank suffered “a $200,000 loss” from Mitchell’s default. Mitchell, however, failed to preserve this argument for appeal by timely objecting and moving for a mistrial or curative admonition. (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 295.) In any event, no impropriety appears. Our review of Deutsche Bank’s closing argument in its entirety discloses that counsel did not expressly or impliedly ask the jury to award a deficiency judgment. Rather, she asked the jury to award damages based on Mitchell’s occupancy of the subject property for 45 months at $2,500 a month based on Jorat’s testimony regarding the fair market rental value for the subject property.

Finally, Mitchell argues that public policy favors a trial on the merits of his TILA-rescission theory. Although he cites a case standing for the proposition that the law disfavors a party’s attempt to take advantage of the mistake, surprise, inadvertence, or neglect of his or her adversary to avoid a trial on the merits (A&B Metal Products v. MacArthur Properties, Inc. (1970) 11 Cal.App.3d 642, 648), he neglects to show that his failure to present the TILA rescission theory stemmed from any such mistake, inadvertence, surprise, or excusable neglect.

M. Game Chanjers Appeal
N.
Mitchell states in his opening brief that the appeal from the judgment in the Game Chanjers case “has been abandoned.” Although Mitchell has not formally dismissed the appeal, he raises no claims of error in the Game Chanjers judgment. Thus, we dismiss the appeal (case No. A153747) as abandoned. (In re Sade C. (1996) 13 Cal.4th 952, 994.)

DISPOSITION

The appeal in case No. A153747 is dismissed. The remaining judgments in this consolidated appeal are affirmed. Deutsche Bank shall recover its costs on appeal.

 

_________________________

Fujisaki, J.

WE CONCUR:

_________________________

Siggins, P. J.

_________________________

Petrou, J.

A150263, A150419, A150730, A153747