Cambilargiu v. PennyMac Corp. CA4/1 (2014) · DecisionDepot
Cambilargiu v. PennyMac Corp. CA4/1
California Court of Appeal Feb 25, 2014 No. D063537Unpublished
Filed 2/25/14 Cambilargiu v. PennyMac Corp. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
PRINCE SONG CAMBILARGIU et al., D063537
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2012-00057005- CU-BC-NC) PENNYMAC CORP. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Jacqueline M. Stern, Judge. Affirmed.
Won Kyung Choi-Librizzi, Eric Michelson and Prince Song Cambilargiu, in pro.
per., for Plaintiffs and Appellants.
Reed Smith, Lorenzo E. Gasparetti, Zareh A. Jaltorossian and Ilana R. Herscovitz
for Defendants and Respondents PennyMac Corp.
Pite Duncan, Peter J. Salmon and Christopher L. Peterson for Defendants and
Respondents CitiMortgage, Inc.
Won Kyung Choi-Librizzi, Eric Michelson, and Prince Song Cambilargiu
(together, Plaintiffs) appeal, in propria persona, from a judgment dismissing their lawsuit
after the court sustained Citimortgage, Inc.'s (Citi) and PennyMac Corp.'s (PennyMac)
(together, Defendants) demurrers to their complaint. Plaintiffs contend the trial court
erred by: (1) failing to take judicial notice of the definition of the term "funds" and a
recorded Substitution of Trustee and Full Reconveyance; (2) finding that they failed to
respectively, permit a court, in its discretion, to take judicial notice of '[o]fficial acts . . .
of any state of the United States' and '[f]acts and propositions that are not reasonably
subject to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.' [¶] Pursuant to these provisions, courts
have taken judicial notice of the existence and recordation of real property records,
including deeds of trust, when the authenticity of the documents is not challenged."
(Fontenot, supra, 198 Cal.App.4th at p. 264, italics added.)
Here, PennyMac disputed the authenticity of the Substitution of Trustee and Full
Reconveyance. Accordingly, the trial court did not err in declining to take judicial notice
of that document.
III. Tender
A. Standard of Review
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title
Ins. Co. v. Comerica Bank-California (1994) 27 Cal.App.4th 800, 807.) "A trial court
abuses its discretion in sustaining a demurrer without leave to amend, if there is a
reasonable possibility that a defect in the complaint can be cured by amendment or if the
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pleading can be liberally construed to state a cause of action. [Citations.] When the trial
court sustains a demurrer with leave to amend and the plaintiff elects not to do so, the
presumption is that he has stated as strong a case as he can; and in determining whether
or not the trial court abused its discretion, we must resolve all ambiguities and
uncertainties raised by the demurrer against the plaintiff. [Citations.] When a plaintiff
elects not to amend a complaint after a demurrer has been sustained with leave to amend,
if the complaint is objectionable on any ground raised by the demurrer, the judgment of
dismissal must be affirmed." (Hooper v. Deukmejian (1981) 122 Cal.App.3d 987, 994.)
B. Analysis
Plaintiffs argue the trial court erred in finding that they failed to properly allege
tender of the amounts owing on their underlying debt. Specifically, they contend the
"Cash Draft Receipt[s]" attached to their complaint constitute a valid tender. We
disagree.
Generally, a borrower must tender the full amount of the debt to maintain an
action to cancel a completed trustee's sale. (Karlsen v. American Sav. & Loan Assn.
(1971) 15 Cal.App.3d 112, 117 (Karlsen).) " '[N]othing short of the full amount due the
creditor is sufficient to constitute a valid tender, and the debtor must at his peril offer the
full amount.' [Citations.] The doctrine of tender has been correctly summarized in this
fashion: 'The rules which govern tenders are strict and are strictly applied, and where the
rules are prescribed by statute or rules of court, the tender must be in such form as to
comply therewith. The tenderer must do and offer everything that is necessary on his part
to complete the transaction, and must fairly make known his purpose without ambiguity,
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and the act of tender must be such that it needs only acceptance by the one to whom it is
made to complete the transaction.' " (Gaffney v. Downey Sav. & Loan Ass'n. (1988) 200
Cal.App.3d 1154, 1165 (Gaffney).) The tendered funds must be "unconditionally
available to the creditor." (Id. at p. 1167.) An offer of performance is of no effect if the
person making it is not able to perform. (Civ. Code, § 1495; Karlsen, supra, 15
Cal.App.3d at p. 118; Waller v. Brooks (1968) 267 Cal.App.2d 389, 394-395 [a "mere
indication of a willingness to perform in the future is not the equivalent of a valid,
subsisting tender"].) Further, a document that is "worthless on its face" is not sufficient
to constitute a valid tender. (McElroy v. Chase Manhattan Mortg. Corp. (2005) 134
Cal.App.4th 388, 392-393.)
As an initial matter, we note that Plaintiffs only challenged the trial court's ruling
on their quiet title and TILA causes of action. They assert no arguments concerning their
fraud, section 6068 and estoppel causes of action. "An appellant must provide an
argument and legal authority to support his contentions. 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.) Accordingly, we limit our discussion to the quiet title and TILA
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causes of action, both of which sought to set aside the trustee's sale and are therefore
subject to the tender requirement.
Contrary to Plaintiffs' arguments, the "Cash Draft Receipt[s]" attached to their
complaint do not constitute a viable tender sufficient to invalidate the foreclosure sale. It
appears that Plaintiffs went to great lengths to draw up documents that satisfied the
requirements of Commercial Code section 3104 for "negotiable instruments." However,
we cannot conclude the "Cash Draft Receipt[s]" constitute a tender of the amounts owing
on the underlying loans for the subject property.
First, in order for Plaintiffs to make a valid tender, the tendered funds must be
"unconditionally available to the creditor." (Gaffney, supra, 200 Cal.App.3d at p. 1167.)
Here, the "Cash Drafts" state that "Payment shall be applied at Issue Date." However,
they also state that they "mature[] and may be presented [i]n: . . . 2062." Second, the
documents are not drawn on a bank and do not identify where the payee can obtain the
funds purporting to be tendered. These irregularities render the "Cash [Draft] Receipts"
ambiguous. Thus, Plaintiffs have not done everything that is necessary on their part to
complete the transaction and have not fairly made known their purpose without
ambiguity. (Id. at p. 1165.)
In our view, Plaintiffs' "Cash Draft Receipt[s]" are nothing more than worthless
paper. At best, they are an offer of future performance as to payment. Either way,
Plaintiffs did not allege a valid tender. Thus, the trial court properly sustained
Defendants' demurrers as to Plaintiffs' TILA and quiet title causes of action.
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In view of our conclusion that Plaintiffs' TILA cause of action fails due to their
failure to properly allege tender, we need not address whether the TILA claim is barred
by the statute of limitations.
DISPOSITION
The judgment is affirmed. Citi and PennyMac are entitled to their costs on appeal.
McINTYRE, J.
WE CONCUR:
NARES, Acting P. J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the dismissal of the plaintiffs' complaint, holding that the plaintiffs failed to properly allege a valid tender of the amounts owed on their mortgage loan, which is a prerequisite for their quiet title and TILA claims.
Issues
Did the trial court err in declining to take judicial notice of the definition of 'funds' and a disputed Substitution of Trustee and Full Reconveyance?
Did the plaintiffs properly allege tender of the amounts owing on their underlying debt to support their quiet title and TILA claims?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The rules which govern tenders are strict and are strictly applied”
“the trial court did not err in declining to take judicial notice of that document.”