Demurrer (Judge George V. Spanos)


CASE NAME: PAPANGGO VS BANK OF NEW YORK MELLON

HEARING ON DEMURRER TO 1st Amended COMPLAINT of PAPANGGO FILED

BY THE BANK OF NEW YORK MELLON, RECONTRUST COMPANY, N.A.,

* TENTATIVE RULING: *

Defendants The Bank of New York Mellon fka the Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-HY2 Mortgage Pass-Through Certificate, Series 2007-HY2 (erroneously sued as ?The Bank of New York Mellon as Trustee for the Certificateholders of CWALT, Inc.,CWALT, Inc., Home Equity Loan Asset Backed Certificates, Series 2007-HY2?); Bank of America, N.A.; ReconTrust Company, N.A. (erroneously sued as ReconTrust Company, Inc.); and MERS‘ general demurrer to each cause of action within the Verified First Amended Complaint is sustained without leave to amend.? (Cal. Code Civ. Proc., section 430.10, subd. (e). See also, Cal. Code Civ. Proc., section 425.10, subd.?(a)(1).) Leave to amend is denied, as Plaintiff has not met her burden of showing in what manner she can amend her Complaint and how that amendment will change the legal effect of her pleading.? (McMartin v. Children?s Institute International (1989) 212 Cal.App.3d 1393, 1408.)

In reviewing the sufficiency of a pleading, the Court gives the Complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded, but does not assume the truth of contentions, deductions or conclusions of law. (Aubry v. Tri?City Hospital Dist. (1992) 2 Cal.4th 962, 966?967.) Despite being afforded an opportunity to amend her Complaint, Plaintiff still fails to state a valid cause of action against moving parties.

First cause of action for promissory estoppel. This cause of action is pleaded against Defendants Bank of America, N.A. and Bank of New York Mellon, only.

The required elements for promissory estoppel are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) his reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Thomson v. Internat. Alliance of Stage Employees (1965) 232 Cal.App.2d 446, 454.) Plaintiff has not met this pleading burden. In particular, Plaintiff has not alleged a promise clear and unambiguous in its terms. [VFAC pars. 33-39.]

Third party beneficiary status is a matter of contract interpretation, therefore, the plaintiff must plead a contract which was made expressly for his benefit and one in which it clearly appears that he was a beneficiary. (California Emergency Physicians Medical Group v. PacifiCare of California (2003) 111 Cal.App.4th 1127, 1138.) As this Court ruled in the demurer to the original Verified Complaint, Plaintiff is neither a party to, nor an intended third party beneficiary of the HAMP or SPA. Therefore, she lacks standing to assert a claim based on an alleged breach of such an agreement. (See, Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.) The fact that the contract, if carried out to its terms, would inure to the third party’s benefit, is insufficient to entitle her to demand enforcement. (Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1064.) Thus, Plaintiff?s allegation at paragraph 38, that she is ?a third party beneficiary? of SPA is completely without merit. [VFAC, par. 38, p. 9:3-4.]

 

Second cause of action for intentional misrepresentation. This cause of action is pleaded against Defendants Bank of America, N.A. and Bank of New York Mellon, only.

The elements of intentional misrepresentation, or actual fraud, are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.? (Anderson v. Deloitte & Touche (1997) 56 Cal.App.4th 1468, 1474; Civ Code, sections 1709, 1710.)

Unlike other causes of action, the elements of a fraud cause of action must be pled with specificity. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.)? This means that general pleading of the legal conclusion of fraud is insufficient; and that every element of the cause of action for fraud must be alleged in full, factually and specifically, and the policy of liberal construction of pleading will not usually be invoked to sustain a pleading that is defective in any material respect. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.)

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.) Moreover, to assert a fraud claim against a corporation, the plaintiff must 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 Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Plaintiff has not met this pleading burden. Rather, as in her original Verified Complaint, Plaintiff appears to base this claim on her allegation that she was wrongly denied a loan modification. [VFAC pars. 40-45.] However, in California, lenders and servicers have no statutory duty to modify a borrower’s loan. (See, Lueras v. BAC Home Loans Servicing, LP, (2013) 221 Cal.App.4th 49, 68 [There is no right to a loan modification.])

Third cause of action for breach of express agreement. This cause of action is pleaded against ?All Defendants.?

A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. (Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830.) Plaintiff has not met her pleading burden. To the extent that this cause of action is premised upon Plaintiff?s status as a third party beneficiary of HAMP and SPA, it fails for the reasons stated in the first cause of action, above. [VFAC 50-51.]

Fourth cause of action for slander of title. This cause of action is pleaded against ?All Defendants.?

The elements of a cause of action for slander of title are: (1) publication; (2) falsity; (3) absence of privilege; and (4) disparagement of another’s land which is relied upon by a third party and which results in a pecuniary loss.? (Appel v. Burman (1984) 159 Cal. App. 3d 1209, 1214.)

The publication of notices in non-judicial foreclosure procedures fall within the common-interest privilege of Civil Code, section 47(c)(1). (See, Civ Code, section 2924(d); Kachlon v. Markowitz (2008) 168 Cal. App. 4th 316, 333 [The qualified common interest privilege provides a significant level of protection to beneficiaries and trustees, leaving them open to liability only if they act with malice.]) Plaintiff?s conclusory allegation at paragraph 74, that Defendants ?acted with malice?, is unsupported by any facts. [VFAC, par 74.] (See, Whaley v. Jansen (1962) 208 Cal.App.2d 222, 229 [Conclusions or deductions from the facts alleged do not constitute a cause of action.])

Further, Plaintiff has not alleged ?facts showing that [she] suffered prejudice as a result of any lack of authority of the parties participating in the foreclosure process.?? (Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85.) (See also, Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 [Prejudice is not presumed from ?mere irregularities? in the process.])

Finally, ??Because of the exhaustive nature of this scheme, California appellate courts have refused to read any additional requirements into the non-judicial foreclosure statute.?? [Citations.]?? (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154.)

Fifth cause of action for violation of Bus & Prof Code, section 17200, et seq. This cause of action is pleaded against ?All Defendants.?

Plaintiff has failed to state a cause of action under Business & Professions Code, section 17200, because she has not sufficiently alleged a predicate act.? To state a cause of action for Unfair Competition under Business & Professions Code, section 17200, a Plaintiff must first allege facts stating defendant engaged in conduct that is unlawful, unfair or fraudulent. (Comm. on Children?s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 210.) Further, Plaintiff does not state facts showing an economic injury since it appears that the foreclosure sale has not taken place. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322; Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1617.)

Defendants? Request for Judicial Notice is granted.

Exs A-H. Pursuant to Evid. Code sections 452(c) and (h), courts have taken judicial notice not only of the existence and recordation of recorded documents but also of a variety of matters that can be deduced from the documents. (Fontenot v Wells Fargo Bank (2011) 198 Cal.App.4th 256, 265.)

Ex. I. Evid. Code, section 452(d) court records.

 

The action is dismissed as to these Defendants with Judgment for Defendants.

Defendants to prepare the Order.