Filed 8/30/18 Ellis v. The Bank of New York Mellon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

DEBORAH ELLIS,

Plaintiff and Appellant,

v.

THE BANK OF NEW YORK MELLON et al.,

Defendants and Respondents.

E067351

(Super.Ct.No. RIC1604524)

O P I N I O N

APPEAL from the Superior Court of Riverside County. Sunshine S. Sykes, Judge. Affirmed in part and dismissed in part.

Deborah Ellis, in pro. per., for Plaintiff and Appellant.

Wright, Finlay & Zak and James J. Ramos for Defendant and Respondent The Bank of New York Mellon.

The Wolf Firm and Jason A. Savlov for Defendant and Respondent The Wolf Firm.

I. INTRODUCTION

Plaintiff and appellant, Deborah Ellis, brings this lawsuit for wrongful foreclosure and related claims against the bank that foreclosed on her home. Ellis also sues the trustee who conducted the foreclosure sale under the deed of trust encumbering her home. The bank at issue is The Bank of New York Mellon (Bank of New York), and the trustee is The Wolf Firm, A Law Corporation (Wolf). The trial court sustained both defendants’ demurrers to the first amended complaint (FAC) without leave to amend, and it entered separate judgments in favor of each defendant.

We conclude the court properly sustained Bank of New York’s demurrer without leave to amend and affirm the judgment in its favor. As to Wolf, we conclude Ellis failed to perfect an appeal from the judgment in Wolf’s favor, but even if she had, the court properly sustained Wolf’s demurrer. We dismiss the appeal as to Wolf.

II. FACTS AND PROCEDURE

A. Ellis’s Allegations in the FAC

Ellis’s FAC alleges as follows. In February 2005, Ellis obtained a residential mortgage loan from Countrywide Bank NA (Countrywide) for a home in Riverside, California. She executed a promissory note in the amount of $232,000, secured by a deed of trust on the home. The deed of trust named Ellis as the borrower, Countrywide as the lender, ReconTrust Company, N.A. (ReconTrust) as the trustee, and Mortgage Electronic Registration Systems, Inc. (MERS) as the beneficiary and nominee for Countrywide and Countrywide’s successors and assigns. Countrywide recorded the deed of trust in March 2005.

In March 2010, MERS assigned all beneficial interest in the deed of trust and note to Bank of New York, as trustee for the certificate holders of CWABS, Inc., Asset-Backed Certificates, Series 2005-3 Trust (the 2005-3 Trust). A pooling and servicing agreement governed the 2005-3 Trust. The pooling and servicing agreement provided that New York law governed the 2005-3 Trust, and the closing date for the trust was March 30, 2005. ReconTrust recorded the assignment of the deed of trust in April 2010. Someone identified as “T. Sevillano, Assistant Secretary,” executed the assignment on behalf of MERS. Sevillano was a ReconTrust employee and was not acting for MERS.

Also in March 2010, ReconTrust recorded a notice of default and election to sell under the deed of trust. The notice stated Ellis had been in default since October 2009.

In September 2013, Bank of America, N.A., as attorney-in-fact for Bank of New York, again assigned all beneficial interest in the deed of trust and note to Bank of New York, as trustee of the 2005-3 Trust. ReconTrust recorded this second assignment that same month.

In April 2014, Bank of America, N.A., as attorney-in-fact for Bank of New York, executed a substitution of trustee naming Wolf the new trustee under the deed of trust. This substitution of trustee was recorded in May 2014.

On October 1, 2015, Ellis rescinded the “unconsummated” loan, as permitted by the federal Truth in Lending Act (TILA). She mailed a notice of rescission to the “purported lenders.”

In November 2015, Bank of New York directed Wolf to conduct a foreclosure sale of Ellis’s home. Bank of New York took ownership of the home through a “‘credit bid.’”

According to the FAC, the original note and deed of trust were invalid and unenforceable to begin with. The Countrywide loan constituted a “‘table-funded’” transaction in that the funds came from a source other than Countrywide, in violation of the California Finance Lenders Law. This failure to identify the true creditor rendered the note and deed of trust invalid. Additionally, Elllis’s rescission of the transaction under TILA meant there was no valid deed of trust authorizing foreclosure.

Further, according to the FAC, MERS did not validly transfer a beneficial interest in the deed of trust and note to Bank of New York, which therefore had no power to initiate a foreclosure sale. The first assignment was void because Sevillano, a ReconTrust employee, was not acting for MERS. And, MERS was attempting to act for the “defunct” Countrywide. Countrywide ceased operations in 2008, and there was thus no principal-agent relationship between Countrywide and MERS.

Finally, the FAC asserts both the first and second assignments of the deed of trust were void because the 2005-3 Trust was closed and unable to accept new assets as of 2005, years before the assignments to Bank of New York. As a result, Bank of New York had no right, title, or interest in the note and deed of trust.

The FAC alleges four causes of action based on the foregoing allegations and legal conclusions. First, Ellis seeks declaratory relief consisting of: (1) a declaration that Bank of New York and Wolf had no interest in the note, deed of trust, or her home, and they could not therefore foreclose on her home; and (2) a declaration that the note and deed of trust were cancelled as a matter of law when she mailed the notice of rescission. Second, she seeks damages for wrongful foreclosure and an order that her eviction from the home was illegal and a void act. Third, she seeks to quiet title to the home against the claims of Bank of New York and Wolf. And fourth, she seeks cancellation of the first and second assignments of the deed of trust to Bank of New York, cancellation of the substitution of trustee designating Wolf the new trustee, and cancellation of the notice of trustee’s sale that Wolf recorded during the foreclosure process.

B. The Demurrers

Both Bank of New York and Wolf filed demurrers to the FAC and requests for judicial notice attaching the various recorded documents referenced in the FAC. The court issued tentative rulings sustaining the demurrers without leave to amend, and after Ellis did not appear at the hearing, and no party requested oral argument, the court adopted the tentative rulings as its final rulings. As to Bank of New York, the court reasoned that Ellis did not state facts sufficient to show the assignment of the deed of trust was void, rather than merely voidable. As to Wolf, the court held it was entitled to immunity under Civil Code section 2924 because, as trustee under the deed of trust, it was simply following the instructions of the beneficiary (Bank of New York). The court entered judgments of dismissal in favor of Bank of New York and Wolf.

III. STANDARD OF REVIEW

We review a complaint independently to determine whether it alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) “‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Further, we may consider exhibits attached to the operative or superseded complaints. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)

In disputes over real property, such as this one, a court may take judicial notice of recorded real property records and may deduce a variety of matters from these documents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (Fontenot), disapproved on another ground by Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) The court “may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Fontenot, supra, at p. 265; accord, Yvanova, supra, at p. 924, fn. 1 [the trial court properly took judicial notice of the existence and “facial contents” of the recorded deed of trust, assignment of deed of trust, substitution of trustee, and other recorded documents].)

IV. DISCUSSION

A. The Appeal from the Judgment in Favor of Bank of New York

Ellis seeks to unravel the foreclosure, cancel the instruments that gave Bank of New York authority to foreclose, and quiet title against Bank of New York’s claim to her home. The FAC advances several theories that we divide into two parts—those attacking the original loan transaction, and those attacking the assignment of the deed of trust to Bank of New York. None of Ellis’s allegations are sufficient to invalidate the foreclosure, and we therefore conclude the court properly sustained defendants’ demurrers without leave to amend.

1. The FAC Fails to Allege Facts Showing the Original Loan Transaction Was Invalid

The FAC alleges the Countrywide loan was a table-funded transaction, meaning Countrywide was not the true source of the funds, and Ellis rescinded the loan under the TILA in October 2015. Neither set of allegations voids the note or deed of trust.

(a) The Table-funding Argument

The Ninth Circuit Court of Appeals has described table funding in this way: “‘Table-funding’ is defined as a ‘settlement at which a loan is funded by a contemporaneous advance of loan funds and an assignment of the loan to the person advancing the funds.’ [Citation.] In a table-funded loan, the originator closes the loan in its own name, but is acting as an intermediary for the true lender, which assumes the financial risk of the transaction.” (Easter v. American West Financial (9th Cir. 2004) 381 F.3d 948, 955.) Table-funded loans are distinct from “bona fide secondary market transactions, in which closed loans are purchased by investors.” (Brewer v. Indymac Bank (E.D. Cal. 2009) 609 F.Supp.2d 1104, 1116.)

Even if we accept as true that Countrywide engaged in table funding—as opposed to selling Ellis’s loan to investors on the secondary market—Ellis provides no legal authority for voiding the deed of trust on this basis. She refers generally to the California Finance Lenders Law without any further citation. The California Finance Lenders Law is a lengthy subchapter in the California Code of Regulations. (Cal. Code Regs., tit. 10, §§ 1404-1618.) We see nothing in that subchapter that would allow a borrower to void a trust deed based on table funding. Furthermore, other courts considering the same table-funding argument have concluded no authority exists for voiding the loan contract or deed of trust based on this practice. (E.g., Grieves v. MTC Financial, Inc. (N.D. Cal. July 25, 2017, 17-CV-01981-LHK) 2017 WL 3142179 [p. *12, fn. 1]; Palmer v. MTC Financial, Inc. (E.D. Cal. May 26, 2017, 1:17-cv-00043-DAD-SKO) 2017 WL 2311680 [pp. *4-*5]; Marquez v. Select Portfolio Servicing, Inc. (N.D. Cal. Mar. 16, 2017, 16-cv-03012-EMC) 2017 WL 1019820 [p. *3] [collecting cases that also reject the table-funding argument].)

(b) The TILA Rescission Argument

TILA permits borrowers in certain types of consumer credit transactions to rescind the transaction unconditionally within three business days of the transaction’s consummation. (15 U.S.C. § 1635(a); Jesinoski v. Countrywide Home Loans, Inc. (2015) ___ U.S. ___ [135 S.Ct. 790, 792].) After those three days, the borrower has a conditional right to rescind when the lender has failed to satisfy TILA’s disclosure requirements. (15 U.S.C. § 1635(f); Jesinoski v. Countrywide Home Loans, Inc., supra, at p. 792.) The conditional right to rescind expires “three years after the date of consummation of the transaction or upon the sale of the property, whichever occurs first . . . .” (15 U.S.C. § 1635(f).) A transaction is “consummated” for purposes of TILA when the consumer “becomes contractually obligated” on the credit transaction. (12 C.F.R. § 226.2(a)(13).)

Here, Ellis’s rescission was untimely and therefore ineffective. She entered into the transaction with Countrywide in 2005 and mailed the notice of rescission 10 years later—long after the three-year period for rescinding the loan had expired. Apparently to avoid the untimely rescission, she alleges in a conclusory manner that the loan was not consummated. Because the rescission period starts running only upon consummation, she suggests that the period never started running, much less expired.

This conclusion that the transaction went unconsummated is insupportable. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318 [the court is not required to accept “‘contentions, deductions or conclusions of fact or law.’”].) The FAC states that, in 2005, Ellis “entered into a residential mortgage loan transaction” with Countrywide consisting of the note and deed of trust. She does not dispute the authenticity of her signature on the 2005 deed of trust, in which she promised to make regular payments on the $232,000 debt evidenced by the note. And, we may infer that the loan was funded from her allegations that the “true source” of the funding was some party other than Countrywide. These facts unquestionably show Ellis became contractually obligated on the loan and the transaction was consummated.

2. The FAC Fails to Allege Facts Showing the Assignment to Bank of New York Was Void

Only the entity holding the beneficial interest under the deed of trust—whether that is the original lender, its assignee, or the agent of either—may direct the trustee to commence and complete the nonjudicial foreclosure process. (Yvanova, supra, 62 Cal.4th at p. 935.) Ellis’s attack on Bank of New York starts from the premise that the bank never held the beneficial interest under the deed of trust. She relies primarily on our Supreme Court’s decision in Yvanova, where the court concluded: “If a purported assignment necessary to the chain by which the foreclosing entity claims that power is absolutely void, meaning of no legal force or effect whatsoever [citations], the foreclosing entity has acted without legal authority by pursuing a trustee’s sale, and such an unauthorized sale constitutes a wrongful foreclosure.” (Ibid.) But Yvanova was careful to distinguish between void and voidable transactions. (Id. at pp. 929-930.) Voidable transactions are not absolutely without legal effect. (Id. at p. 930.) They may be voided at the parties’ option—or the parties have the power to ratify voidable transactions. (Ibid.)

Ellis argues the assignment of the deed of trust to Bank of New York was void for several reasons, none of which persuade us. At best, her allegations show the assignment was voidable at the option of the aggrieved parties, but as we shall explain, she is not one of those parties.

(a) The Challenge to MERS’s Authority

The FAC alleges Countrywide ceased operations in 2008. As such, Ellis argues, there could not have been a principal-agent relationship between Countrywide and MERS in 2010, when MERS assigned the deed of trust to Bank of New York. She suggests that MERS, acting for “a defunct beneficiary,” had no power to assign anything.

MERS was not acting for the beneficiary but was, in fact, the beneficiary under the deed of trust. More importantly, the document designated MERS as the nominee for Countrywide and Countrywide’s successors and assigns. A nominee is simply “a person or entity designated to act for another in a limited role—in effect, an agent.” (Fontenot, supra, 198 Cal.App.4th at p. 270.) Accordingly, even if Countrywide was “defunct” by 2010, under the deed of trust, MERS still had authority to act for Countrywide’s successor or assignee. The allegation that Countrywide had ceased operations does not show MERS lacked this authority, and it certainly does not mean the assignment was void.

(b) The Challenge to the Timeliness of the Assignment

The FAC alleges the 2005-3 Trust—governed by New York law—closed on March 30, 2005. Ellis contends the assignment to Bank of New York, as trustee of the 2005-3 Trust, was void because the transaction occurred after this closing date. New York state and federal courts have rejected this same argument, as have California courts applying New York law. (See, e.g., Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 812-813 [setting forth the New York decisions and explaining their rationale].) Under New York law, only the beneficiaries of a private trust may enforce the terms of the trust. (Rajamin v. Deutsche Bank Nat. Trust Co. (2d Cir. 2014) 757 F.3d 79, 88.) Nonbeneficiaries of the trust lack standing to challenge the trustee’s actions. (Ibid.) And, when the trustee acts without authorization, the trust beneficiaries generally have the right to ratify those acts. (Ibid.) Thus, the trustee’s unauthorized acts are voidable at the option of the beneficiaries, but they are not absolutely void. (Id. at p. 89.)

It follows from these principles that when the trustee of a securitized asset trust accepts an assignment of assets “after the publicized closing date,” that act is voidable by the beneficiaries, not void. (Mendoza v. JPMorgan Chase Bank, N.A., supra, 6 Cal.App.5th at p. 813.) Ellis has not alleged that she is a beneficiary of the 2005-3 Trust, and, accordingly, she lacks standing to challenge the voidable assignment of her deed of trust. (Yvanova, supra, 62 Cal.4th at p. 936.)

(c) The Challenge to Sevillano’s Authority to Act for MERS

The FAC alleges Sevillano—who executed the assignment on behalf of MERS—was a ReconTrust employee and was not acting for MERS. But we are not required to accept as true the bare contention that Sevillano was not acting for MERS. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) On its face, the deed of trust shows Sevillano acting for MERS. (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282 [when facts appearing in exhibits contradict the allegations of the complaint, the exhibits take precedence].)

That Sevillano might have also been a ReconTrust employee does not necessarily mean he or she had no authority to act for MERS. “MERS is a private corporation that administers a national registry of real estate debt interest transactions.” (Fontenot, supra, 198 Cal.App.4th at p. 267.) The mortgage banking industry designed MERS “to facilitate the securitization of real property debt instruments.” (Ibid.) “Many of the companies that participate in the mortgage industry—by originating loans, buying or investing in the beneficial interest in loans, or servicing loans—are members of MERS and pay a fee to use the tracking system.” (Cervantes v. Countrywide Home Loans, Inc. (9th Cir. 2011) 656 F.3d 1034, 1039.) “MERS relies on its members to have someone on their own staff become a MERS officer with the authority to sign documents on behalf of MERS. [Citation.] As a result, most of the actions taken in MERS’s own name are carried out by staff at the companies that sell and buy the beneficial interest in the loans.” (Id. at p. 1040.)

Hence, by design, the people designated as MERS officers with authority to sign for MERS will often be employees of some other company in the mortgage industry. Sevillano’s status as a ReconTrust employee does not preclude him or her from acting for MERS, and it certainly does not show the assignment he or she executed was void.

Separately, even if Sevillano lacked authority to sign for MERS, this would only make the assignment “‘voidable, not void, at the injured party’s option.’” (Mendoza v. JPMorgan Chase Bank, N.A., supra, 6 Cal.App.5th at p. 819.) The injured party in this instance would be MERS, not the borrower (ibid.), and if Sevillano truly lacked authority for MERS, MERS could still ratify her actions (Yvanova, supra, 62 Cal.4th at pp. 930, 936). Ellis has no standing to challenge the validity of the signature for MERS. (Mendoza v. JPMorgan Chase Bank, N.A., supra, at pp. 819-820; accord, Yvanova, supra, at p. 936 [“A borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable could thus be said to assert an interest belonging solely to the parties to the assignment rather than to herself.”].)

3. The Court Did Not Err in Denying Leave to Amend

When the trial court sustains a demurrer without leave to amend, we ask whether there is a reasonable possibility the plaintiff can cure the defect by amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) If so, “the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Ibid.) While the plaintiff’s “‘showing can be made for the first time to the reviewing court [citation], it must be made.’” (Galbiso v. Orosi Public Utility Dist. (2010) 182 Cal.App.4th 652, 674; accord, Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1041-1042.)

Ellis’s briefing in the trial court failed to expressly argue the court should grant her leave to amend. After the court issued its tentative ruling, she did not appear for the hearing, and she thus did not argue for leave to amend at the hearing. On appeal, she does not make an express argument for leave to amend. Instead, she simply asserts new facts not alleged in the complaint. To the extent she intends these assertions to show a reasonable possibility of curing her defective complaint, we conclude she fails to carry her burden.

First, Ellis states the assignment to Bank of New York was void because “the trust corpus did not actually purchase the asset.” She does not elaborate on this assertion, but her briefing below gives some clue as to what she means. Her opposition to the demurrers argued Bank of New York “did not demonstrate ownership of the debt” because there was no showing that the note was physically delivered to the bank, or that the bank had a written assignment of the note. This is incorrect. The assignment specifically stated it was assigning all beneficial interest in the deed of trust “together with the note or notes therein described or referred to.” (Capitalization omitted.) Moreover, the lack of a separate written assignment of the note in the public record does not mean Bank of New York did not own the note. “[A]ssignments of debt, as opposed to assignments of the security interest incident to the debt, are commonly not recorded.” (Fontenot, supra, 198 Cal.App.4th at p. 272.) MERS or Countrywide could have easily assigned the note to Bank of New York in an unrecorded document not disclosed to Ellis. (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1506, disapproved on another ground by Yvanova, supra, 62 Cal.4th at p. 939, fn. 13.) This new assertion does not demonstrate a viable theory of recovery.

Second, Ellis states that, assuming the 2005-3 Trust “acquired the asset,” “there was no default to the Certificate Holders, who would be the true Noteholders entitled to foreclose.” Again, she does not elaborate on this assertion that there was no default to the certificate holders. She seems to be drawing a distinction between a default to Bank of New York and a default to the certificate holders. But Bank of New York acted as trustee for the certificate holders of the 2005-3 Trust, and she is suing Bank of New York in that capacity. Ellis cites no authority and makes no reasoned argument that a default in her payments to the trustee was insufficient to constitute a default to the trust beneficiaries.

Third, and finally, Ellis states she “attempted on more than one occasion to cure the debt with her tender of which respondents rejected . . . with respondent always asserting . . . she was going to be approved for loan modification and payment was not required.” At the same time, she argues tender was not required because Bank of New York was not the “true” owner of the loan. In the trial court, she also argued tender was not required, but she did not say that she had actually attempted tender, as she does now. Ellis’s concern with tender seems to stem from her wrongful foreclosure cause of action. The elements of that claim are: “(1) the defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff tendered the amount of the secured indebtedness or was excused from tendering.” (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.)

Her new allegations of tender go to the third element, but it does not matter if she has sufficiently alleged tender. The first element is still problematic for her. A plaintiff may satisfy the first element by showing the trustee or the beneficiary failed to comply with procedural requirements for notice and conduct of the trustee’s sale; the trustee lacked the power to foreclose; the borrower was not in default, no breach had occurred, or the lender had waived any breach; or the deed of trust was void. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104-105.) As we have discussed, her allegations show the assignment to Bank of New York was merely voidable, not void, and they do not otherwise show Bank of New York lacked authority to foreclose. Thus, regardless of whether she has sufficiently alleged tender, her allegations do not support a wrongful foreclosure cause of action. She has not shown an entitlement to leave to amend.

B. The Appeal from the Judgment in Favor of Wolf

Ellis’s notice of appeal states she is appealing from the judgment entered on October 28, 2016. The court filed separate judgments in favor of each defendant on October 24, 2016. While Bank of New York filed its notice of entry of judgment on October 28, 2016, Wolf filed its notice of entry of judgment on November 9, 2016. Wolf contends Ellis failed to perfect an appeal against it. Ellis concedes Wolf is “correct,” but argues Wolf was nevertheless “perfectly aware that the appeal was to [it] as well as” Bank of New York. We agree that Ellis did not perfect an appeal from the judgment for Wolf.

“The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed.” (Cal. Rules of Court, rule 8.100(a)(2).) “[N]otices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.” (Luz v. Lopes (1960) 55 Cal.2d 54, 59.) But when “‘several judgments and/or orders occurring close in time are separately appealable . . . , each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.’” (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) “The policy of liberally construing a notice of appeal in favor of its sufficiency [citation] does not apply if the notice is so specific it cannot be read as reaching a judgment or order not mentioned at all.” (Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.)

Here, we may construe the notice of appeal as applying to the judgment in favor of Bank of New York, since October 28 is the date on which that defendant filed its notice of entry of judgment. But Ellis does not explain how that date put Wolf on notice that she was also appealing the separate judgment in favor of Wolf. It is not reasonably clear that she was trying to appeal both judgments.

In any event, even if Ellis had perfected the appeal against Wolf, the trial court properly sustained Wolf’s demurrer. The trustee’s actions are privileged when performing its duties under California’s nonjudicial foreclosure scheme. (Civ. Code, §§ 47, subd. (c), 2924, subd. (d); Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336-1337; Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 340 [the Legislature “intended to give trustees some measure of protection from tort liability arising out of the performance of their statutory duties.”].) The courts have split on whether this privilege is absolute or qualified. (Schep v. Capital One, N.A., supra, at p. 1337.) The qualified privilege applies in the absence of malice by the trustee. (Ibid.) 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 [recorded documents] and therefore acted in reckless disregard of the plaintiff’s rights.”’” (Ibid.)

Assuming, without deciding, that Wolf’s actions were subject to the narrower qualified privilege, the FAC does not allege Wolf acted maliciously. It alleges only that Wolf acted at Bank of New York’s direction to record the required documents and conduct the foreclosure sale. These actions were privileged and did not give rise to liability for Wolf, and Ellis has not advanced any possible amendments to cure this defect.

V. DISPOSITION

The judgment in favor of Bank of New York is affirmed. The appeal from the judgment in favor of Wolf is dismissed. Respondents shall recover costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

CODRINGTON

Acting P. J.

SLOUGH

J.