NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

DUNNING, J.*

INTRODUCTION

In an effort to postpone a residential property foreclosure, Sharon Simantov (plaintiff) sued JPMorgan Chase Bank, N.A. (Chase) and California Reconveyance Company (CRC) (collectively, defendants), for violations of the Perata Mortgage Relief Act (Civ. Code, § 2923.5 (section 2923.5)) and Business and Professions Code section 17200, as well as for breach of the implied covenant of good faith and fair dealing. The latter two causes of action were dismissed without leave to amend on demurrer. Defendants' motion for summary judgment as to the cause of action based on section 2923.5 was subsequently granted. We affirm.1

FACTUAL AND PROCEDURAL BACKGROUND

Preliminarily, we note Simantov's opposition to defendants' motion for summary judgment included only his brief declaration under penalty of perjury, a separate statement of undisputed facts based on his declaration, and the declaration of his attorney. The opposition did not include the required separate statement "that responds to each of the material facts contended by the moving party to be undisputed." (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e)(2), (f)(2).)2 Accordingly, Simantov is deemed to have admitted all the material facts in defendants' separate statement. (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1186, fn. 4.) The undisputed facts include the following:

Simantov made no payments on the Chase loan after early 2011. CRC recorded a notice of default on July 1, 2011. The notice of default was not recorded until Chase complied with the requisites of section 2923.5.3 Despite the notice of default, defendants did not proceed with foreclosure.

Plaintiff initiated this action on July 16, 2013, and defendants demurred. The first amended complaint followed on November 14, 2013, and defendants again demurred. The parties agree the trial court overruled the demurrer as to Simantov's section 2923.5 cause of action and sustained it without leave to amend as to the two other causes of action.4

On May 1, 2014, the parties signed a joint stipulation, which the trial court accepted, to stay the action for 60 days so the parties could "explore the possibility of a loan modification as an alternative to foreclosure and further litigation." The stipulation expressly included plaintiff's agreement that there was no "guarantee that [he] will be found eligible for or will be offered a loan modification" as well as his waiver of "any and all claims under Section 2923.5 of the California Civil Code." On the next page, plaintiff's stipulation confirmed "he will waive any claim under California Civil Code Section 2923.5, regardless of whether he is ultimately found eligible for and/or offered a loan modification."

Simantov did submit an application for a loan modification during this period. The process took much longer than 60 days. Fairly early into it, however, Simantov advised he was living in Israel, the property had been occupied by a tenant under a five-year lease running from May 2010 to May 2015, and he intended to continue renting the property for at least five more years. The application for a loan modification was ultimately unsuccessful for the surprising reason that Simantov no longer owned the property.

With this significant revelation, formal discovery, requests for admission, and defendants' motion for summary judgment followed. Defendants' August 10, 2016 summary judgment motion launched a broad-spectrum attack on plaintiff's lawsuit, which at that point included only the single cause of action for violation of section 2923.5.

Defendants asserted they complied with section 2923.5, subdivision (g)'s due diligence requirements, so the notice of default was procedurally and legally effective; Simantov had no standing to allege noncompliance with section 2923.5 because he was no longer a "borrower" within the meaning of the Civil Code section 2920.5, subdivision (c)(1) or an owner occupant; the only remedy for a violation of section 2923.5 was to postpone the foreclosure, and Simantov had already achieved that, rendering the action now moot; if defendants violated section 2923.5, Simantov was not prejudiced. Defendants cited, but did not rely on, Simantov's express waiver in 2014 of the right to proceed with his cause of action under section 2923.5 in exchange for the stay to explore loan modification options.

Defendants' separate statement and supporting evidence included Simantov's verified complaint in a related case against the current record owner of the property, Mega Holding, Group, LLC, and its principal, Danny Siag, as well as a declaration Simantov prepared in that matter. (Simantov v. Mega Holding, Group, LLC. (Super. Ct. L.A. Co. 2015, No. LC101516) Simantov contended Mega Holding, Group, LLC, fraudulently obtained title to the property via a quitclaim deed executed on Simantov's behalf by his brother, Alon Simantov, who was acting as his attorney in fact.5 As already noted, Simantov did not file the required response to defendants' separate statement of undisputed material facts.

The trial court granted the motion, concluding "for the reasons set forth in the Motion, that there are no triable issues of material fact regarding" plaintiff's section 2923.5 claim. Judgment was entered November 4, 2016. Plaintiff timely appealed.

DISCUSSION

I. Summary Judgment

Summary judgment is proper when the moving party establishes "either (1) one or more elements of the [plaintiff's] cause of action cannot be established, or (2) a complete affirmative defense to the cause of action exists. (Code Civ. Proc., § 437c, subds. (o)(1), (2), (p)(2).) . . . Once the [moving party] has met its initial burden, the burden shifts to the [opposing party] to produce evidence showing a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) [¶] On appeal from summary judgment, we review the record de novo and must independently determine whether triable issues of material fact exist. [Citations.] We resolve any evidentiary doubts or ambiguities in favor of the party opposing summary judgment." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 370-371.) On appeal, we concern ourselves with the trial court's ruling, not its rationale. (Shephard v. Loyola Marymount Univ. (2002) 102 Cal.App.4th 837, 842.)

In support of the motion for summary judgment, Chase presented evidence that it fully complied with the version of section 2923.5, subdivision (g) in effect in 2011. Chase's proof shifted the burden to Simantov to produce evidence raising a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).) Simantov failed to do so. As a matter of law, defendants were entitled to judgment in their favor.6

Having concluded Chase complied with section 2923.5, we do not reach Simantov's other contentions concerning summary judgment.

II. Demurrer

Simantov's companion causes of action for violation of Business and Professions Code section 17200 and breach of the covenant of good faith and fair dealing (based on the deed of trust) similarly fail. As pleaded, both these causes of action depended on Chase having violated section 2923.5. With our finding that Chase did not violate section 2923.5, these causes of action cannot be revived. (Thompson v. Halvonik (1995) 36 Cal.App.4th 657, 664 [when a grant of summary judgment demonstrates the plaintiff cannot establish an element of a cause of action, any error by the trial court in sustaining a demurrer to a related cause of action containing same element as the summarily adjudicated claim is harmless].)

Simantov has the burden in this court to demonstrate he can amend the complaint to state a cause of action against Chase. Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39 explains what a plaintiff must do: "[P]laintiff may make this showing for the first time on appeal. [Citations.] [¶] To satisfy his burden, . . . plaintiff must clearly and specifically set forth the `applicable substantive law' [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. . . . [¶] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend." (Id. at pp. 43-44.)

DISPOSITION

The judgment is affirmed as to both defendants. Chase is awarded its costs on appeal.

KRIEGLER, Acting P. J., BAKER, J., concurs.