California Court of Appeals, Second District, Second Division
RAYMOND A. SCHEP, Plaintiff and Appellant,
CAPITAL ONE, N.A., Defendant and Respondent.
Filed Date 7/18/17
from a judgment of the Superior Court of Los Angeles County
No. BC533555 Maureen Duffy-Lewis, Judge. Affirmed.
E. Omoko for Plaintiff and Appellant.
Amir Eley, Hunter R. Eley and Amy I. Borland for Defendant
MODIFYING OPINION AND DENYING REHEARING
ordered that the opinion filed herein on June 26, 2017, be
modified as follows:
the last paragraph on page 5 the words “and
anticipate” are to be inserted between the words
“contemplate” and “that, ” so that
the sentence reads:
2924 is part of the article dealing with “Mortgages in
General, ” and two other sections within that article-
sections 2924.12 and 2924.19-specifically contemplate and
anticipate that a trustee's deed upon sale will be
recorded as the capstone of the process of nonjudicial
line 1 of page 6, the following sentence is to be inserted
after the sentence ending with “(b).)” and before
the sentence beginning with “Our Legislature's
these statutes do not expressly mandate that a
trustee's deed upon sale be recorded is of no consequence
because recording of that deed will occur as a practical
matter in every case and, more to the point, the recording of
that deed is one of the “procedures set forth in th[e]
page 6, at the end of the first paragraph (line 13), add the
more, that purpose is fulfilled only if the privilege applies
with equal force to both the trustee who actually records the
trustee's deed upon sale as well as the principal who
directs that recording. The statute itself speaks in terms of
the “[p]erformance of the procedures” (§
2924, subd. (d)(2); Kachlon, at p. 333), not
who performs them. (See § 2924, subd.
(a)(1)-(6) [authorizing filing of foreclosure notices by a
“trustee, mortgagee, or beneficiary, or any of their
authorized agents”]; but see Kachlon, at pp.
344-345 [not extending privilege to beneficiary that
“present[ed]... written instructions,  declar[ed]...
default, and  demand[ed]... sale” because those acts
were not “procedures set forth in the statutory
scheme”].) Because Capital One could not be liable for
slander of title based on the recording of the trustee's
deed upon sale unless T.D. Service was acting as its
agent (Alpers v. Brown (1882) 60 Cal. 447, 451
[“The act of the agent is the act of the
principal”]; Mesler v. Bragg Management Co.
(1985) 39 Cal.3d 290, 302 [“The principal is held
vicariously liable... because justice requires that the
enterprise be responsible for the risks of conducting its
business”]), and because plaintiff so alleges, the
privilege attaching to T.D. Service's performance of
procedures attaches to Capital One's as well.
is no change in the judgment.
petition for rehearing is denied.
trustee's acts in recording a notice of default, a notice
of sale, and a trustee's deed upon sale in the course of
a nonjudicial foreclosure privileged under Civil Code section
47? We conclude that they are and that a
plaintiff does not state a cause of action for slander of
title based on the recording of those documents. Accordingly,
we affirm the trial ...