ROBERT HERRERA et al.

, Plaintiffs and Appellants,

 
 
NOT TO BE PUBLISHED
MURRAY, J.
SUMMARY
Plaintiffs Robert and Gail Herrera lost their house in South Lake Tahoe to a nonjudicial foreclosure sale.
They brought suit to set aside that sale. They challenge whether the parties that conducted the sale,
defendants Deutsche Bank National Trust Company (the Bank) and California Reconveyance Company
(CRC), were in fact the beneficiary and trustee, respectively, under a deed of trust secured by their
property, and thus had authority to conduct the sale. Plaintiffs also contend that they are entitled to be
repaid for the expenses they incurred in repairing and insuring the property and paying back taxes if
defendants are successful in establishing their interest in the property.
Defendants moved for summary judgment. In support of their motion, they requested that the trial
court take judicial notice of recorded documents, including an Assignment of Deed of Trust and a
Substitution of Trustee. Defendants asserted that these documents established the authority of the
Bank and CRC to conduct the foreclosure sale. Defendants also provided a declaration by a custodian of
records for CRC, in which the custodian did not expressly declare that the Bank was the beneficiary and
CRC the trustee. Instead, she merely declared that an Assignment of Deed of Trust and a Substitution
of Trustee had been recorded and these recorded documents indicated the Bank had been assigned the
deed of trust and that CRC had been substituted as trustee.
Plaintiffs appeal from a judgment after the trial court granted defendants' motion for summary
judgment. They contend defendants failed to carry their burden in moving for summary judgment and
the trial court erred in taking judicial notice of and accepting as true the contents of certain recorded
documents. We agree and reverse the judgment in part. For the reasons discussed herein, we affirm the
judgment as to the fourth cause of action, plaintiffs' claim of unjust enrichment.
FACTUAL AND PROCEDURAL BACKGROUND
In June of 2008, plaintiffs purchased the property at 739 Alameda Avenue, South Lake Tahoe (the
Property) at a foreclosure sale. On February 27, 2009, CRC recorded a "Notice of Default and Election to
Sell [the Property] Under Deed of Trust." On May 29, 2009, CRC recorded a Notice of Trustee's Sale. On
July 6, 2009, CRC recorded a Trustee's Deed upon Sale, showing the Property had been conveyed to the
Bank, as foreclosing beneficiary. Plaintiffs brought suit against the Bank, CRC and others to set aside the
sale, cancel the trustee's deed, quiet title to the Property, and for unjust enrichment.
In the first cause of action, plaintiffs sought to set aside the trustee's sale. Plaintiffs alleged they
purchased "this run-down, filthy, distressed property" at a foreclosure sale, rehabilitated and repaired
the Property and paid over $4,000 in back property taxes. They had no idea there might be a deed of
trust from 2003, as it did not appear in the title search. About a year later, after plaintiffs had completed
repair work on the Property, the Bank, "some mega-too-big-to-fail recipient of billions of tax payer
dollars" asserted an ownership interest in the Property. The Bank claimed to be the owner of the
Property by virtue of a trustee's deed recorded "by an entity purporting to be the trustee."
In seeking to set aside the trustee's sale, plaintiffs alleged that during the year they were the owners of
the Property, they never received any notices of assignment of trustee's deeds or notices of deficiency,
nor did they receive any notices of trustee's sale or trustee's deeds. They alleged, on information and
belief, that "CRC may be, or have been the Trustee, on a purported Trustee's sale of the subject
property, to an entity which may have transferred whatever interest may have been acquired in the
trustee's sale to Defendant Deutsch[e]." Plaintiffs alleged CRC was not the trustee and had no authority
to conduct a trustee's sale, and believed no such sale had taken place. They further alleged any
promissory note supporting the 2003 deed of trust was "time barred by the statute" and the maker, if
any, "was lulled into believing that no action would be taken to enforce the 2003 [deed of trust] because
no collection actions were taken within a reasonable time and no legally required notices of deficiency
were sent or recorded."
In the second cause of action, plaintiffs sought to cancel the trustee's deed. Plaintiffs alleged the original
promissory note and deed of trust no longer existed and the Bank's deed was invalid "as it is based
solely upon purported copies which have no force and effect."
The third cause of action was to quiet title to the Property. Plaintiffs alleged defendants had no original,
verifiable promissory note or deed of trust and had no standing to foreclose. They further alleged all
rights, title and interest asserted by defendants "were sublimated into a non-functional `security'
instrument that gives no one entity rights in individual notes and deeds of trust." No defendant had an
interest in the Property, but they had placed a cloud upon plaintiffs' title.
In the fourth cause of action, entitled unjust enrichment, plaintiffs alleged they had paid back taxes,
insured the Property, and repaired deferred maintenance. If defendants were successful in claiming an
interest in the Property, plaintiffs wanted to be repaid for their expenditures.
The Bank and CRC moved for summary judgment or summary adjudication on each cause of action,
contending there was no triable issue of fact as to any of plaintiffs' claims. They claimed the undisputed
evidence showed that the loan was in default, the Bank was the beneficiary under the deed of trust and
CRC was the trustee. The default was not cured and CRC properly noticed the trustee's sale. Notice of
the sale was sent to plaintiffs and California law did not require the original promissory note to
foreclose. The Bank and CRC further contended that to quiet title, plaintiffs must allege tender, or an
offer of tender, of the amount owed. They also contended there was no evidence of unjust enrichment.
In support of their motion, defendants requested that the court take judicial notice of certain
documents pursuant to Evidence Code sections 451, subdivision (f) and 452, subdivisions (d), (g) and (h).
These documents were:
(1) the Trustee's Deed upon Sale recorded August 13, 2008, under which plaintiffs took title to the
Property;
(2) a Grant Deed recorded December 13, 2002, showing the transfer of the Property to Sheryl Kotz;
(3) the Deed of Trust recorded April 30, 2003, with Sheryl Kotz as trustor and Long Beach Mortgage
Company as trustee and beneficiary (the 2003 deed of trust);
(4) an Assignment of Deed of Trust recorded February 27, 2009, assigning all interest under the 2003
deed of trust to the Bank by JPMorgan Chase Bank, as successor in interest to Washington Mutual Bank,
successor in interest to Long Beach Mortgage Company;
(5) a Substitution of Trustee recorded February 27, 2009, under which the Bank substituted CRC as
trustee under the 2003 deed of trust;
(6) a "Notice of Default and Election to Sell [the Property] Under Deed of Trust" recorded February 27,
2009;
(7) a Notice of Trustee's Sale under the 2003 deed of trust recorded May 29, 2009; and
(8) a Trustee's Deed upon Sale recorded July 6, 2009, under which the Bank, as foreclosing beneficiary,
was the grantee of the Property.
To support their motion, defendants also provided the declaration of Deborah Brignac. Brignac was a
vice-president of CRC and a custodian of records for CRC. She was one of the custodians of records for
the loan that was the subject of plaintiffs' complaint. She declared that the CRC loan records were made
in the ordinary course of business by persons with a duty to make such records and were made about
the time of the events reflected in the records. In April of 2003, "Shelia" [sic] Kotz2 obtained a $340,000
loan from Long Beach Mortgage Company, and the loan was secured by a deed of trust on the Property.
The 2003 deed of trust provided for a power of sale if the borrower defaulted and failed to cure the
default. It also provided that successor trustees could be appointed.
Brignac further declared that as of February 26, 2009, $10,970.50 was "owed" on the note. 3 An
assignment of the 2003 deed of trust was recorded February 27, 2009, indicating the transfer of all
interest in the 2003 deed of trust to the Bank. A Substitution of Trustee was recorded the same date.
According to Brignac's declaration, the Bank's substitution "substitutes the original trustee, Long Beach
Mortgage Company for [CRC]."
Brignac further declared that a Notice of Default and Election to Sell under Deed of Trust was recorded
on February 27, 2009, and copies were sent to plaintiffs on March 4, 2009, as shown in the affidavits of
mailing attached to her declaration. A Notice of Trustee's Sale was recorded on May 29, 2009. Copies of
this notice were mailed to plaintiffs, as shown in the attached affidavits of mailing. 4 The loan was not
reinstated. The Property was sold at a trustee's sale on June 25, 2009. At the time of sale, the total
unpaid debt was $336,328.10. At no time before the trustee's sale did plaintiffs tender the unpaid debt.
The Bank and CRC filed a separate statement of undisputed facts setting forth the facts as stated in
Brignac's declaration.
In response, plaintiffs admitted the description of the Property and that they purchased it on June 24,
2008, at a foreclosure sale; they disputed all of the remaining facts. They asserted that the Brignac
declaration was without foundation and contained hearsay and that all of the recorded documents
contained hearsay.
In their opposition to the motion for summary judgment, plaintiffs began with a diatribe against the
"Foreclosure Industry," asserting the industry operated "as if the Evidence Code, the law of contracts,
assignments, deeds of trust and foreclosure are merely optional." They contended defendants failed to
meet their burden of proof for summary judgment because their request for judicial notice and Brignac's
declaration were inadmissible hearsay. They further contended the notice of default and the notice of
trustee's sale failed to meet statutory requirements of California law. Finally, they asserted defendants
lacked standing to foreclose because they had not produced even a copy of the promissory note.
Plaintiffs moved to strike the declaration of Brignac as lacking foundation and containing hearsay. They
also opposed the request for judicial notice. They argued the recorded documents were all hearsay.
Citing only the Federal Rules of Evidence and federal case law grounded on the federal rules, plaintiffs
argued a court cannot take judicial notice of disputed facts contained in a hearsay document. Plaintiffs
disputed "virtually everything" in the recorded documents, arguing one can record anything, regardless
of its accuracy or correctness.
The trial court overruled plaintiffs' hearsay objections, denied plaintiffs' motion to strike the Brignac
declaration, granted defendants' request for judicial notice, and granted defendants' motion for
summary judgment, finding no triable issue of material fact. Judgment was entered in favor of the Bank
and CRC.
DISCUSSION
I. Law of Summary Judgment and Standard of Review
A defendant "may move for summary judgment in any action or proceeding if it is contended that the
action has no merit." (Code Civ. Proc., § 437c, subd. (a).) "A defendant . . . has met his or her burden of
showing that a cause of action has no merit if that party has shown that one or more elements of the
cause of action, even if not separately pleaded, cannot be established, or that there is a complete
defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or
a defense thereto." (Id., subd. (p)(2).) "The motion for summary judgment shall be granted if all the
papers submitted show that there is no triable issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." (Id., subd. (c).)
"When the defendant moves for summary judgment, in those circumstances in which the plaintiff would
have the burden of proof by a preponderance of the evidence, the defendant must present evidence
that would preclude a reasonable trier of fact from finding that it was more likely than not that the
material fact was true [citation], or the defendant must establish that an element of the claim cannot be
established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain,
needed evidence.'" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) A defendant
moving for summary judgment must "present evidence, and not simply point out that the plaintiff does
not possess, and cannot reasonably obtain, needed evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25
Cal.4th 826, 854, fn. omitted.)
We review a grant of summary judgment de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60.) "In
undertaking our independent review of the evidence submitted, we apply the same three-step analysis
as the trial court. [Citation.] First, we identify the issues framed by the pleadings. Next, we determine
whether the moving party has established facts justifying judgment in its favor. Finally, if the moving
party has carried its initial burden, we decide whether the opposing party has demonstrated the
existence of a triable, material fact issue. [Citation.]" (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1431-
1432 (Bono).)
II. First, Second and Third Causes of Action
While plaintiffs' complaint is hardly a model of clarity, it seeks to undo the foreclosure sale. The first
three causes of action — to set aside the sale, cancel the trustee's deed and quiet title — claim, among
other things, that the Bank and CRC had no authority to conduct the foreclosure sale. On this point,
plaintiffs allege the Bank claims to be the owner of the Property by virtue of a trustee's deed recorded
"by an entity purporting to be the trustee." They further allege CRC was not the trustee and had no
authority to conduct the sale; the sale did not take place or was improperly held. The first three causes
of action of plaintiffs' complaint are based on the allegations that the Bank had no interest in the
Property and CRC was not the trustee and had no authority to conduct a trustee's sale. Thus, initial
issues framed by the pleadings are whether the Bank was the beneficiary under the 2003 deed of trust
and whether CRC was the trustee under that deed of trust. The fourth cause of action for unjust
enrichment raises different issues and will be discussed separately in part III. of the Discussion, post.
Defendants moved for summary judgment on the basis that plaintiffs' allegations were not supported by
the undisputed facts. They asserted CRC was the trustee pursuant to the Substitution of Trustee
recorded by the Bank as beneficiary under the 2003 deed of trust.
To establish that CRC was the trustee and thus had authority to conduct the trustee's sale, defendants
requested that the trial court take judicial notice of the recorded Assignment of Deed of Trust, which
showed the Bank was the beneficiary. Defendants also requested that the trial court take judicial notice
of the recorded Substitution of Trustee, which showed the Bank, as beneficiary, had substituted CRC as
trustee.
Matters that may be judicially noticed can support a motion for summary judgment. (Code Civ. Proc., §
437c, subd. (b)(1).) However, plaintiffs contend the trial court erred in taking judicial notice of the
disputed facts contained within the recorded documents. We agree.
"`Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the
court, of the existence of a matter of law or fact that is relevant to an issue in the action without
requiring formal proof of the matter.'" (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort
(2001) 91 Cal.App.4th 875, 882.)
"Judicial notice may not be taken of any matter unless authorized or required by law." (Evid. Code, §
450.) "Matters that are subject to judicial notice are listed in Evidence Code sections 451 and 452. A
matter ordinarily is subject to judicial notice only if the matter is reasonably beyond dispute. [Citation.]"
(Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.)
"Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting
a particular interpretation of its meaning." (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369,
374.) While courts take judicial notice of public records, they do not take notice of the truth of matters
stated therein. (Love v. Wolf (1964) 226 Cal.App.2d 378, 403.) "When judicial notice is taken of a
document, . . . the truthfulness and proper interpretation of the document are disputable." (StorMedia,
Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9 (StorMedia).)
This court considered the scope of judicial review of a recorded document in Poseidon Development,
Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106 (Poseidon). "[T]he fact a court may take
judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of
factual matters stated therein. [Citation.] For example, the First Substitution recites that Shanley `is the
present holder of beneficial interest under said Deed of Trust.' By taking judicial notice of the First
Substitution, the court does not take judicial notice of this fact, because it is hearsay and it cannot be
considered not reasonably subject to dispute." (Id. at p. 1117.)
The same situation is present here. The Substitution of Trustee recites that the Bank "is the present
beneficiary under" the 2003 deed of trust. As in Poseidon, this fact is hearsay and disputed; the trial
court could not take judicial notice of it. Nor does taking judicial notice of the Assignment of Deed of
Trust establish that the Bank is the beneficiary under the 2003 deed of trust. The assignment recites that
JPMorgan Chase Bank, "successor in interest to WASHINGTON MUTUAL BANK, SUCCESSOR IN INTEREST
TO LONG BEACH MORTGAGE COMPANY" assigns all beneficial interest under the 2003 deed of trust to
the Bank. The recitation that JPMorgan Chase Bank is the successor in interest to Long Beach Mortgage
Company, through Washington Mutual, is hearsay. Defendants offered no evidence to establish that
JPMorgan Chase Bank had the beneficial interest under the 2003 deed of trust to assign to the Bank. The
truthfulness of the contents of the Assignment of Deed of Trust remains subject to dispute (StorMedia,
supra, 20 Cal.4th at p. 457, fn. 9), and plaintiffs dispute the truthfulness of the contents of all of the
recorded documents.
Judicial notice of the recorded documents did not establish that the Bank was the beneficiary or that
CRC was the trustee under the 2003 deed of trust. Defendants failed to establish "facts justifying
judgment in [their] favor" (Bono, supra, 103 Cal.App.4th at p. 1432), through their request for judicial
notice.
Defendants also relied on Brignac's declaration, which declared that the 2003 deed of trust permitted
the beneficiary to appoint successor trustees. Brignac, however, did not simply declare the identity of
the beneficiary and the new trustee under the 2003 deed of trust. Instead, she declared that an
Assignment of Deed of Trust and a Substitution of Trustee were recorded on February 27, 2009. These
facts add nothing to the judicially noticed documents; they establish only that the documents were
recorded.
Brignac further declared that "[t]he Assignment of Deed of Trust indicates that JPMorgan Bank [sic],
successor in interest to Washington Mutual Bank, successor in interest to Long Beach Mortgage
Company, transfers all beneficial interest in connection with the [deed of trust] to Deutsche Bank
National Trust Company as Trustee for Long Beach Mortgage Loan Trust 2003-4." (Italics added.) This
declaration is insufficient to show the Bank is the beneficiary under the 2003 deed of trust. A supporting
declaration must be made on personal knowledge and "show affirmatively that the affiant is competent
to testify to the matters stated." (Code Civ. Proc., § 437c, subd. (d).) Brignac's declaration does not
affirmatively show that she can competently testify the Bank is the beneficiary under the 2003 deed of
trust. At most, her declaration shows she can testify as to what the Assignment of Deed of Trust
"indicates." But the factual contents of the assignment are hearsay and defendants offered no exception
to the hearsay rule prior to oral argument to make these factual matters admissible.
At oral argument, defendants contended that the recorded documents were actually business records
and admissible under the business record exception. We note that Brignac did not provide any
information in her declaration establishing that the sources of the information and the manner and time
of preparation were such as to indicate trustworthiness. (Evid. Code, § 1271, subd. (d).) 5 Information
concerning this foundational element was conspicuously lacking. 6 Yet, this information was critical in
light of the evidentiary gap establishing the purported assignments from Long Beach Mortgage
Company to Washington Mutual Bank to JPMorgan Chase Bank. The records used to generate the
information in the Assignment of Deed of Trust, if they exist, were undoubtedly records not prepared by
CRC, but records prepared by Long Beach Mortgage Company, Washington Mutual and JPMorgan
Chase. Defendants have not shown how Brignac could have provided information about the source of
that information or how those documents were prepared. (See Cooley v. Superior Court (2006) 140
Cal.App.4th 1039 [district attorney unable to attest to attributes of subpoenaed records in his possession
relevant to their authenticity and trustworthiness]; Evid. Code, § 1561.) Moreover, the timing of those
purported assignments relative to the recording of those events on the Assignment of Deed of Trust
cannot be found in the Brignac declaration or anywhere else in the record.
We also note that Brignac did not identify either the February 27, 2009 Assignment of Deed of Trust, or
another key document, the February 27, 2009 Substitution of Trustee, as business records in her
declaration. Rather, she referenced both documents in her declaration by stating that "[a] recorded
copy" was attached as an exhibit. In light of the request for judicial notice, we take this statement to
mean that the exhibits represented copies of records on file at the county recorder's office. 7 On a
motion for summary judgment, the affidavits or declarations of the moving party are strictly construed
against the moving party. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35 (Mann ).) Of course, had the
documents reflecting the assignments and the substitution been offered as business records, there
would have been no need to request that the court take judicial notice of them. Accordingly, we reject
defendants' newly advanced theory.
Brignac's declaration is lacking in yet another way. It is confusing as to the effect of the Substitution of
Trustee. She declares, "The Substitution by Deutsche Bank National Trust Company as Trustee for Long
Beach Mortgage Loan Trust 2003-4 substitutes the original trustee, Long Beach Mortgage Company for
California Reconveyance Company." Brignac's declaration (and defendants' statement of undisputed
facts) can be read to state that the Bank substituted Long Beach Mortgage Company for CRC as trustee,
rather than that CRC was substituted for Long Beach Mortgage Company. We must strictly construe this
statement against the moving party. (Mann, supra, 38 Cal.3d at p. 35.) Even if we were to construe
Brignac's declaration to state that the Bank substituted CRC as trustee under the 2003 deed of trust, it
would be insufficient to establish CRC is the trustee. A declaration that the Substitution of Trustee by the
Bank made CRC trustee would require admissible evidence that the Bank was the beneficiary under the
2003 deed of trust and thus had the authority to substitute the trustee. As explained ante, defendants
failed to provide admissible evidence that the Bank was the beneficiary under the 2003 deed of trust.
At oral argument, defendants asserted that plaintiffs' hearsay objections to their separate statement of
facts did not comply with the California Rules of Court. (See Cal. Rules of Court, rule 3.1354(b).) From
this, defendants impliedly suggest those objections should be ignored by this court. Whether the
objections complied with the rules of court is of no moment at this juncture. The trial court ruled on
those objections in its order granting summary judgment, stating "Plaintiffs' hearsay objections are
overruled." The wording of the court's order (drafted by defendants) suggests the ruling was made on
substantive evidentiary grounds, not procedural grounds, and there is no evidence in the record to the
contrary.
Because defendants failed to present facts to establish that the Bank was beneficiary and CRC was
trustee under the 2003 deed of trust, and therefore had authority to conduct the foreclosure sale,
triable issues of material fact remain as to the first three causes of action. The trial court erred in
granting summary judgment and it would be error to grant summary adjudication as to any of those
causes of action.
III. Fourth Cause of Action
Defendants moved for summary judgment or, alternatively, for summary adjudication as to each cause
of action. Accordingly, we consider whether summary adjudication was proper as to the fourth cause of
action.
The fourth cause of action is entitled "Unjust Enrichment." Plaintiffs allege that, in the event the Bank is
successful in asserting its claim to the Property, defendants should pay plaintiffs all monies they
expended on the Property for back taxes, insurance and deferred maintenance. In their motion for
summary judgment or summary adjudication, defendants contend there can be no claim of unjust
enrichment because the Bank had a right to protect its security interest in the Property and it is
"inconceivable" CRC was unjustly enriched once plaintiffs defaulted on their obligation.
"There is no cause of action for unjust enrichment. Rather, unjust enrichment is a basis for obtaining
restitution based on quasi-contract or imposition of a constructive trust. (1 Witkin, Summary of Cal. Law
(10th ed. 2005) Contracts, §§ 1015, 1016, pp. 1104-1105.)" (McKell v. Washington Mutual, Inc. (2006)
142 Cal.App.4th 1457, 1490.) Plaintiffs fail to plead a basis for restitution; they allege only that they
spent money on the Property and they would like the money back if they lose the Property.
The fourth cause of action pleads no recognizable legal claim and thus is subject to summary
adjudication. "The procedure for resolving a summary judgment motion presupposes that the pleadings
are adequate to put in issue a cause of action or defense thereto. [Citation.] However a pleading may be
defective in failing to allege an element of a cause of action or in failing to intelligibly identify a defense
thereto. In such a case, the moving party need not address a missing element or, obviously, respond to
assertions which are unintelligible or make out no recognizable legal claim. The summary judgment
proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment
motion into a motion for judgment on the pleadings. In these circumstances it has been said that a
defendant's `motion for summary judgment necessarily includes a test of the sufficiency of the
complaint and as such is in legal effect a motion for judgment on the pleadings.' [Citation.]" (FPI
Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.)
Since plaintiffs failed to properly plead a right to restitution on the basis of unjust enrichment, the trial
court did not err in granting summary adjudication as to the fourth cause of action.
DISPOSITION
The judgment is reversed with directions to vacate the order granting summary judgment and to enter a
new order denying summary judgment, and granting defendants summary adjudication of the fourth
cause of action only. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)
(3).)
We concur:
RAYE, P. J.
NICHOLSON, J.

Footnotes

1. The name of defendant Deutsche Bank National Trust Company was misspelled "Deutsch" by plaintiffs
in the complaint and other filings. We use the correct spelling in our opinion.
Back to Reference
2. The recorded documents attached to Brignac's declaration indicate that the first name of Ms. Kotz is
"Sheryl," not "Shelia."
Back to Reference
3. Because Brignac later stated in her declaration that the total unpaid debt and costs amounted to
$336,328.10, we assume Brignac intended to state that payments were $10,970.50 in arrears, not that
$10,970.50 was "owed."
Back to Reference
4. The affidavits of mailing attached to Brignac's declaration showed the Notice of Default and the
Notice of Trustee's Sale were mailed to plaintiffs at a post office box and at the address of the subject
property by both first-class and certified mail.
Back to Reference
5. Brignac stated the following in her declaration concerning the foundational elements for the business
records exception:
"1. I am a Vice President of California Reconveyance Company (`CRC'). I am also a custodian of records
for CRC and am one of the custodians of records for the loan which is the subject of plaintiffs' Complaint
in this case. These records include computer records and written correspondence. I make this
declaration based on my review of these records, as well as plaintiffs' Complaint. If called as a witness in
this case, I am competent to testify of my own personal knowledge, to the best of my recollection, as to
the matters set forth in this Declaration. [¶] 2. The CRC loan records were made in the ordinary course
of business by individuals who had a business duty to make such entries and records, and were made at
or about the time of the events reflected in the records."
No further attempt was made to establish the foundational elements for the business record exception.
Back to Reference
6. Indeed, contrary to defendants' assertion in the respondents' brief that "Ms. Brignac attested to the
validity of the documents attached as exhibits to her declaration . . . — documents which she declared
under penalty of perjury were true and correct copies," there is no statement by Brignac anywhere in
her declaration that the documents were true and correct copies.
Back to Reference
7. The only description she provided in her declaration concerning the business records upon which she
relied was that "[t]hese records include computer records and correspondence." (See fn. 4, ante.) This
statement is ambiguous in that it could mean only computer records and correspondence were relied
upon or that the records she reviewed included, but were not limited to, computer records and
correspondence. In any event, she did not identify the recorded documents as business records.
Back to Reference
 
 
 HERRERA v. DEUTSCHE...  

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