Filed 1/22/20 Rodriguez v. Wells Fargo Bank, N.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ISMAEL RODRIGUEZ,

Plaintiff and Appellant,

v.

WELLS FARGO BANK, N.A.,

Defendant and Respondent.

D074612

(Super. Ct. No. 37-2018-00012528-
CU-MC-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.

Ismael Rodriguez, in pro. per., for Plaintiff and Appellant.

Sheppard, Mullin, Richter & Hampton, Edward D. Vogel, Karin Dougan Vogel, and John C. Dineen, for Defendant and Respondent.

Ismael Rodriguez sued Wells Fargo Bank, N.A. for breach of contract, fraud, and wrongful foreclosure, among other causes of action, after Wells Fargo caused his home to be sold in a trustee’s sale under California’s nonjudicial foreclosure statutes. Wells Fargo demurred to Rodriguez’s complaint, and the trial court sustained the demurrer without leave to amend because the complaint failed to state any claim on which relief could be granted.

Rodriguez appeals. He contends the court erred by sustaining the demurrer, and he raises various new allegations in an effort to show that he could validly amend the complaint. We conclude the court did not err by sustaining Wells Fargo’s demurrer and Rodriguez’s new allegations are insufficient to state a claim. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Rodriguez purchased a condominium in Chula Vista, California in 2005. He financed the purchase with a loan from World Savings Bank, F.S.B. Wells Fargo is World Savings Bank’s successor-in-interest. Rodriguez’s loan was secured by a deed of trust on the property. The trustee named in the deed was Golden West Savings Association Service Company (Golden West). In 2008, an agent for Golden West recorded a notice of trustee’s sale, which alleged that Rodriguez was in default on his repayment of the loan. In 2013, Cal-Western Reconveyance Corporation (Cal-Western; identified as either the trustee or an agent of the trustee or beneficiary) recorded a notice of default alleging that Rodriguez was again in default on the loan. In 2016 and 2017, NBS Default Services, LLC (NBS; identified as the trustee) recorded notices of trustee’s sale, alleging that Rodriguez continued in default. On February 8, 2018, the trustee’s sale was completed.

Approximately a month later, Rodriguez filed this action against Wells Fargo, NBS, and several other defendants. In his complaint, he alleged causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, intentional misrepresentation, promissory fraud, wrongful foreclosure, violation of the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200 et seq.), intentional infliction of emotional distress, quiet title, declaratory relief, and injunctive relief. The gist of Rodriguez’s complaint was that the defendants violated California law, the provisions of the deed of trust, various public commitments, and an automatic bankruptcy stay by initiating nonjudicial foreclosure proceedings and holding the trustee’s sale. Because Rodriguez’s contentions on appeal bear little resemblance to the specific allegations in his complaint, we will discuss those allegations only where necessary below.

Wells Fargo demurred to the complaint on the ground that Rodriguez did not allege facts sufficient to state any cause of action. After briefing and argument, the trial court sustained the demurrer without leave to amend.

The trial court found that Rodriguez’s claim for breach of contract failed because he did not allege what provision of the deed of trust Wells Fargo had allegedly violated and because he did not allege he fully performed his obligations under the deed of trust (or was excused from performing). As to the breach of the implied covenant, the court found that Rodriguez had not sufficiently alleged any breach. As to the causes of action for intentional misrepresentation and promissory fraud, the court found that Rodriguez had not alleged the fraud with sufficient particularity, including what representations were made, who made them, or how Rodriguez justifiably relied on them. The court noted that Rodriguez’s opposition argued, for the first time, that Wells Fargo’s predecessor promised him a fixed rate loan but actually provided an adjustable rate loan. The court found that the deed of trust plainly disclosed that the loan had an adjustable rate, so Rodriguez would have been aware of the alleged fraud at that time. Any cause of action based on the promise of a fixed rate would be barred by the applicable statute of limitations. As to the claim for wrongful foreclosure, the court found that Rodriguez had not sufficiently alleged any violation of California law. As to the claim for intentional infliction of emotional distress, the court found that the fact of foreclosure was not sufficiently extreme or outrageous conduct to support the cause of action. Because Rodriguez had not alleged any underlying fraudulent, unlawful, or unfair conduct that caused him harm, he could not state a claim for violation of the UCL. And, as to the remaining claims, the court found that they were derivative and therefore failed to state a claim for reasons already discussed.

The court entered judgment against Rodriguez and in favor of Wells Fargo. Rodriguez appeals.

DISCUSSION

I
Standards of Appellate Briefing and Review

Rodriguez represents himself in this appeal. “Under the law, a party may choose to act as his or her own attorney. [Citation.] ‘[S]uch a party 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, 1246-1247.) Rodriguez has not followed the rules of appellate procedure and his briefing is insufficient to demonstrate any error. We therefore affirm the judgment.

” ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error. [Citations.] When a point is asserted without argument and authority for the proposition, ‘it is deemed to be without foundation and requires no discussion by the reviewing court.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 408 (S.C.).)

“This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).)

Even where an appellant cites general legal principles in support of certain arguments, these principles do not in and of themselves demonstrate error. “Mere suggestions of error without supporting argument or authority other than general abstract principles do not properly present grounds for appellate review. The court is not required to make an independent, unassisted study of the record in search of error. The point is treated as waived and we pass it without further consideration.” (Dept. of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078 (Dept. of Alcoholic Beverage Control).) ” ‘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.’ ” (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

Rodriguez’s briefing does not satisfy these minimum standards. He does not acknowledge the substance of the court’s order sustaining Wells Fargo’s demurrer, and he makes little effort to conform his arguments to the allegations of his complaint. Large portions of his briefing address irrelevant issues, including federal preemption and unlawful detainer. Where Rodriguez does address the issues presented by his appeal, he relies on conclusory factual and legal allegations with little detail or supporting analysis. And, on a more fundamental level, Rodriguez’s briefing is unfocused, disorganized, and in many sections simply incomprehensible.

While we conclude many of Rodriguez’s contentions are forfeited by his failure to adequately brief them, we address his arguments on the merits to the extent possible in the following parts and conclude Rodriguez has failed to carry his burden of showing reversible error.

II
Demurrer Standards

“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long-settled rules. ‘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.’ [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, 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.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

A party may make a showing that he could validly amend his complaint for the first time in the appellate court. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153-1154.) But to make such a showing, the party “must ‘clearly and specifically’ set forth the legal authority for the claims [he] contend[s] [he] can allege, the elements of each of those claims, and the specific factual allegations that would establish each of those elements.” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1504 (Rossberg).)

III
Rodriguez’s Complaint and the Possibility of Amendment

As noted, Rodriguez’s briefing in this appeal is largely untethered from the allegations of his complaint. Because Rodriguez has failed to address the sufficiency of those allegations, or explain why the court erred by sustaining Wells Fargo’s demurrer, he has forfeited any contention that the allegations in the complaint are themselves sufficient to state any claim. (See Myles v. PennyMac Loan Services, LLC (2019) 40 Cal.App.5th 1072, 1076; Rossberg, supra, 219 Cal.App.4th at p. 1504; Benach, supra, 149 Cal.App.4th at p. 852.) Rodriguez’s briefing references a number of alternative factual circumstances to purportedly establish the basis for a valid amendment to his complaint. We address each of those circumstances in turn.

A

The first allegation, raised in the trial court in opposition to Wells Fargo’s demurrer, is that Rodriguez was promised a fixed-rate loan but given an adjustable rate loan. Rodriguez appears to offer this allegation as the basis for either a cause of action for intentional misrepresentation or promissory fraud. ” ‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.] [¶] ‘Promissory fraud’ is a subspecies of the action for fraud and deceit. A promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

“Fraud is required to be pleaded with specificity. ‘The pleading of fraud . . . is also the last remaining habitat of the common law notion that a complaint should be sufficiently specific that the court can weed out nonmeritorious actions on the basis of the pleadings. Thus the pleading should be sufficient ” ‘to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.’ ” ‘ ” (Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347, 362.) “This particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) “The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4th 153, 157.)

Rodriguez alleges, “Plaintiff was not given the promised fixed loan that he was promised but was deceived and given a [p]redatory adjustable loan. The Lender concealed the more expensive loan and approved him as an exception to their underwriting policies.” This general allegation falls far short of the required specificity to state a claim for fraud. Rodriguez does not allege who made the promise of a fixed rate loan, their authority to speak, what they said or wrote, when the promise was made, to whom, and by what means. He has not shown a reasonable possibility he could amend his complaint to state a valid claim.

Given our conclusion, we need not consider whether Rodriguez’s claim would also be barred by the statute of limitations, as the trial court found. (See generally Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-808.)

B

The second allegation, raised for the first time in Rodriguez’s appellate briefing, concerns the improper substitution of the trustee for his property. In Rodriguez’s view, the trustee named in the notice of trustee’s sale (DBS) did not have the authority to conduct the sale. Rodriguez appears to argue that this scenario would support a cause of action for wrongful foreclosure.

“A beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure. [Citations.] A foreclosure initiated by one with no authority to do so is wrongful for purposes of such an action.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 929.) “Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104 (Lona).)

Rodriguez’s conclusory allegation that DBS did not have the authority to conduct the trustee’s sale is insufficient to show a reasonable possibility he could amend his complaint to state a cause of action for wrongful foreclosure. ” ‘[A] nonjudicial foreclosure sale is presumed to have been conducted regularly, and the burden of proof rests with the party attempting to rebut this presumption.’ ” (Herrera v. Federal National Mortgage Assn. (2012) 205 Cal.App.4th 1495, 1505; accord, Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 48 (Kalnoki).) As one court held, in the analogous context of an improper beneficiary, “properly alleging a cause of action under this theory requires more than simply stating that the defendant who invoked the power of sale was not the true beneficiary under the deed of trust. Rather, a plaintiff asserting this theory must allege facts that show the defendant who invoked the power of sale was not the true beneficiary.” (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1094 (Glaski).) The same holds true for the allegedly improper trustee here. Rodriguez was required to allege facts showing that DBS did not have the power to conduct the trustee’s sale. His conclusory assertion that DBS did not have the power is insufficient. (See Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 809-810 (Mendoza) [“Plaintiff maintains that her allegation that the assignment is void is sufficient to survive a demurrer, particularly in light of the Supreme Court’s holding in Yvanova. Not so. We are required to assume the truth of plaintiff’s factual allegations, not her legal conclusions.”]; Flores v. EMC Mortgage Co. (E.D.Cal. 2014) 997 F.Supp.2d 1088, 1104, fn. 5 (Flores) [“Plaintiffs’ opposition papers make numerous references to invalid assignment of [the] loan documents. However, neither the opposition papers nor complaint sufficiently identify such assignments to validate plaintiffs’ assertion of invalid assignments.”].)

Rodriguez points out that DBS is a different entity than Golden West, the initial trustee. But this fact, in and of itself, is not an indication that DBS did not have the authority to conduct the trustee’s sale. ” ‘By statute the Legislature has permitted the beneficiary of a deed of trust to substitute, at any time, a new trustee for the existing trustee.’ ” (Kalnoki, supra, 8 Cal.App.5th at p. 39.)

Rodriguez also asserts, “No evidence was ruled on in court to show the trustee had authority to conduct the sale nor was it duly appointed nor were any of the filed foreclosure documents shown to be done by a duly appointed trustee.” Rodriguez’s assertion misunderstands the procedural posture of this appeal. It was not Wells Fargo’s burden to produce evidence showing that the trustee had authority. It is Rodriguez’s burden to make specific factual allegations that would support his conclusion that the trustee did not have authority. He has not done so.

C

Rodriguez raises a third allegation, mentioned in his complaint but discussed more fully in his appellate briefing, regarding Wells Fargo’s failure to offer a loan modification, to notify him in writing that a loan modification had been denied, and to respect a 30-day appeal period before conducting the trustee’s sale. To the extent discernable, the factual basis for these assertions is inadequate. In his complaint, Rodriguez offered only the bare conclusion that “Defendants failed to offer Plaintiff a loan modification or workout plan” in violation of California law. In his briefing, Rodriguez states, “[Rodriguez] was not on a fixed rate and soon the adjustable loan outgrew his income to an unaffordable amount. After one year he fell behind [on] his payments and was denied a modification based on his income. [¶] When [Rodriguez] had a substantial increase of income he qualified for a new Modification Application on February 7, 2018. On February 7, 2018 and February 8, 2018, [Rodriguez] was verbally told that the lender still had not made a decision on his pending loan modification.” Rodriguez claims he “was not properly noticed because he never received written notice of the last modification denial timely in 30 days advance of the trustee’s sale[] for his appeal of the denial to expire.”

Rodriguez appears to contend that these allegations state a claim for improper dual tracking under Civil Code section 2923.6, part of California’s Homeowner Bill of Rights (HBOR). Rodriguez fails to account for the changes in the law applicable to his allegations. “California’s Homeowner Bill of Rights is in a sense two laws in one. One set of provisions applied between 2013 and January 1, 2018, at which point an automatic sunset provision kicked in. The pre-2018 laws were repealed and a new, second set of provisions took their place. One aspect of HBOR affected by this repeal-and-replace scheme was the ban on ‘dual tracking,’ where a financial institution simultaneously considers a borrower’s loan modification application (track one) while advancing the foreclosure process (track two).” (Haynish v. Bank of America, N.A. (N.D.Cal. May 31, 2018, No. 17-CV-01011-HRL) 2018 WL 2445516, at *3, fn. omitted (Haynish).)

The post-2018 changes replaced the dual tracking prohibition in section 2923.6 with a separate, less protective prohibition in section 2924.11. (Stats. 2012, ch. 87, §§ 7 8.) The post-2018 changes have since been themselves repealed and replaced (see Stats. 2018, ch. 404, § 7), but the repeal was not yet effective when the alleged violations occurred and when the trial court ruled on Wells Fargo’s demurrer.

The 2018 version of section 2924.11 still afforded borrowers certain protections when they pursue a loan modification or another foreclosure prevention alternative. It retained the prohibition on dual tracking in most circumstances: “If a borrower submits a complete application for a foreclosure prevention alternative offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, trustee, mortgagee, beneficiary, or authorized agent shall not record a notice of sale or conduct a trustee’s sale while the complete foreclosure prevention alternative application is pending, and until the borrower has been provided with a written determination by the mortgage servicer regarding that borrower’s eligibility for the requested foreclosure prevention alternative.” (Former § 2924.11, subd. (a).) “For purposes of this section, an application will be deemed ‘complete’ when a borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.” (Former § 2924.11, subd. (f).) A borrower had a private right of action for actual economic damages resulting from a material violation of this section. (See former § 2924.12, subd. (b).) Notably, the 2018 version of section 2924.11 did not retain the right to appeal or the 30-day grace period following a mortgage servicer’s denial of a loan modification application. (See former § 2923.6, subds. (d)-(e); Haynish, supra, 2018 WL 2445516, at *5.)

Rodriguez’s s allegations are insufficient to show a reasonable possibility he could amend his complaint to state a cause of action for a material violation of former section 2924.11’s dual tracking prohibition. He asserts that he “qualified” for a new loan modification the day before the trustee’s sale, but he does not allege that he submitted a complete application to the mortgage servicer for a loan modification. This omission is fatal to his claim. (See Taitano v. Wells Fargo Bank, N.A. (N.D.Cal. Nov. 5, 2018, No. 18-CV-03924-NC) 2018 WL 5849005, at *4.) He also asserts that Wells Fargo did not allow the 30-day appeal period to expire before conducting the trustee’s sale. But, as noted, the 2018 version of the HBOR did not require this grace period. (See former § 2924.11; Haynish, supra, 2018 WL 2445516, at *5; cf. former § 2923.6, subds. (d)-(e).)

Moreover, according to Rodriguez’s own allegations, he had previously applied for a loan modification and was rejected. This circumstance forecloses any dual tracking claim under the 2018 version of section 2924.11. (Haynish, supra, 2018 WL 2445516, at **5-6.) The 2018 version of the HBOR did not retain the provision mandating consideration of a subsequent loan modification application when the borrower can show a material change in financial circumstances under former section 2923.6, subdivision (g). “The repeal of that provision does not suggest a loosening of pleading requirements for plaintiffs; it instead suggests that under the current law, a servicer is not obligated to review a modification application from a borrower who was previously denied, even if the borrower experienced a material change in circumstances since the last denial. In other words, once a servicer denies a loan modification application, the borrower is out of luck, at least in the sense that no dual tracking claim will lie if the borrower then submits another modification application and the servicer pushes ahead with foreclosure.” (Haynish, supra, 2018 WL 2445516, at *5.)

In sum, to the extent we can discern Rodriguez’s contentions, he has not shown he could amend his complaint to state a cause of action related to his alleged loan modification. His conclusory allegations are alternately insufficient or not cognizable under the applicable version of California law. Rodriguez has not shown the court erred by sustaining Wells Fargo’s demurrer without leave to amend.

D

Rodriguez makes a number of other assertions in his briefing that are either irrelevant, unfounded, or both. Because he has failed to support those assertions with reasoned argument and legal authority, they are forfeited and we need not address them. (S.C., supra, 138 Cal.App.4th at p. 408; Dept. of Alcoholic Beverage Control, supra, 100 Cal.App.4th at p. 1078.) We nonetheless discuss a few points that stand out.

Rodriguez states that his UCL claim is based on his fraud and dual tracking allegations. Because Rodriguez has failed to show he could amend his complaint to allege viable claims under those theories, his attempt to amend his UCL claim necessarily fails as well. (AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923, 950.) The same holds true for his purported causes of action for declaratory and injunctive relief. (Ratcliff Architects v. Vanir Construction Management, Inc. (2001) 88 Cal.App.4th 595, 607 [declaratory relief]; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 984-985 [injunctive relief].)

Rodriguez asserts, “The alleged foreclosure was never noticed to the original homeowner—plaintiff/appellant. The legally required conditions precedent to have authorization for a legal foreclosure were never met.” This assertion is followed by a string citation to 17 paragraphs of his complaint. Such vague and general assertions are insufficient to state a claim or demonstrate error on appeal. To the extent Rodriguez makes specific assertions about the foreclosure process, we have already addressed them.

Rodriguez references a potential claim for breach of fiduciary duty against Wells Fargo. He has not shown that Wells Fargo owed any fiduciary duty to him. (Nymark v. Heart Federal Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1093, fn. 1 [“The relationship between a lending institution and its borrower-client is not fiduciary in nature.”].) Rodriguez also makes unfocused allegations of unauthorized signatures and fraudulent documents. These conclusory allegations are too general (and confusing) to show that Rodriguez could validly amend his complaint. (Rossberg, supra, 219 Cal.App.4th at p. 1504.) Rodriguez references emotional distress, but he has not shown he could allege a cause of action based on the conduct of the foreclosure. (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 745; Quinteros v. Aurora Loan Services (E.D.Cal. 2010) 740 F.Supp.2d 1163, 1172.) Finally, Rodriguez’s reply brief contains a long discussion of a separate unlawful detainer action apparently filed by Wells Fargo. This discussion is irrelevant and inapplicable to this appeal, which does not involve unlawful detainer at all.

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

BENKE, Acting P. J.

O’ROURKE, J.