Opinion
F075830
03-25-2020
ALEXANDER ESCANDARI, Plaintiff and Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee, etc. et al., Defendants and Respondents.
Mazur & Mazur and Janice R. Mazur for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCV009204)
OPINION
APPEAL from a judgment of the Superior Court of Madera County. Charles A. Wieland, Judge. Mazur & Mazur and Janice R. Mazur for Plaintiff and Appellant. Severson & Werson, Jan T. Chilton and Kerry W. Franich for Defendants and Respondents.
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INTRODUCTION
In 2005, appellant Alexander Escandari obtained a $403,750 mortgage loan secured by a deed of trust on a residence in Madera County (the Property). In 2010, although current on his loan, appellant purportedly entered into an agreement with his lender, People's Choice Home Loan, Inc. (PCHL) to stop making loan payments in order qualify for a loan modification. Subsequently, PCHL assigned its interest in appellant's deed of trust and the underlying loan to U.S. Bank, National Association (USB) in 2011. In 2012, although appellant stopped making payments, USB and its servicer, America's Servicing Company, a division of Wells Fargo, N.A. (collectively, respondents), refused to modify the loan. After a notice of default was recorded, respondents foreclosed on the Property, and USB acquired it through a trustee's sale in July 2012 for $212,415.
Appellant filed a verified complaint on October 2, 2012, alleging 11 causes of action against respondents and PCHL, and then filed a first amended complaint (FAC) as a matter of right after respondents demurred. Respondents subsequently demurred to all claims in the FAC, which the trial court sustained except as to a conversion claim and granted leave to amend. Appellant filed a second amended complaint (SAC) stating 12 causes of action, to which respondents again demurred and filed a motion to strike. The trial court sustained the demurrer without leave to amend as to 11 causes of action; the court also granted the motion to strike the SAC's prayer for attorney fees. The court overruled the demurrer as to appellant's claim for conversion, and the case proceeded on that single cause of action.
PCHL was a named defendant in the FAC and the SAC, but there is no indication PCHL participated in the underlying litigation, and it is not a party to this appeal.
In January 2016, respondents filed a motion for summary judgment as to the conversion claim that the trial court granted in January 2017, and a judgment was entered in respondents' favor in April 2017. Appellant now appeals the trial court's order sustaining respondents' demurrer, the order striking the request for attorney fees, and the entry of summary judgment for respondents. For the reasons set forth below, we affirm in full.
FACTUAL AND PROCEDURAL BACKGROUND
The parties have been litigating claims related to the foreclosure of appellant's residential property since October 2012. The initial legal proceeding was appellant's civil case filed against respondents and PCHL, which resulted in this appeal. During the pendency of this case, the parties also litigated at least three unlawful detainer (UD) actions filed by USB against appellant between October 2012 and December 2017. These UD actions are relevant to the parties' disputes on appeal and, thus, are discussed below.
I. Allegations Underlying Appellant's Case Against Respondents
In October 2005, appellant obtained a mortgage with an adjustable interest rate from PCHL for purchase of the Property in Madera County. At some unspecified point in 2010, appellant had a conversation with an individual named Jon Lewis, an alleged agent of PCHL and respondents. It is not alleged who initiated that conversation, but Lewis purportedly promised appellant that if appellant, who was then current on his mortgage payments, missed payments, PCHL and respondents would modify his mortgage loan to a lower interest rate and monthly payment.
Throughout 2010 and 2011, PCHL and respondents allegedly implemented a systemic plan to wrongfully foreclose on the Property, ignored appellant's written and telephonic communications, and did not respond to requests for a loan modification. In March 2011, PCHL assigned its interest under the deed of trust to USB, which was recorded on August 2, 2011.
A notice of default on appellant's mortgage obligations was recorded on August 2, 2011, and a notice of trustee's sale was recorded on November 2, 2011, setting a trustee's sale for November 23, 2011. The trustee's sale was held in July 2012, and a deed upon sale was recorded on August 9, 2012, showing the Property was conveyed to USB for $212,415.
II. Chronological Factual and Procedural Background
A. July 2012 through January 2013
After the July 2012 trustee's sale, respondents hired a property management company (Premier Asset Services (PAS)) to oversee the Property. Upon inspection, PAS discovered appellant's personal property inside the residence and garage located on the Property.
On August 3, 2012, PAS personnel sent a certified letter to appellant with an 18-day personal property notice; the notice was also posted at the Property. After repeated attempts to contact appellant and discuss the removal of his personal property and upon indications appellant intended to remain in physical possession of the Property, USB initiated a UD action on October 31, 2012, against appellant to obtain possession of the Property.
Meanwhile, on October 2, 2012, appellant filed suit against USB, PCHL, and America's Servicing Company alleging, among other things, these entities were in breach of an oral contract with appellant to modify the loan on the Property and that the July 2012 trustee's sale had not been properly noticed.
A default judgment in the UD action filed in October 2012 was granted in favor of USB on January 23, 2013, after appellant failed to appear. A writ of possession for the Property was issued on January 23, 2013.
B. February 2013
Pursuant to the writ of possession, the Property was rekeyed by PAS with the assistance of a Madera County Sheriff's deputy on February 12, 2013. On February 17, 2013, PSA agent Scott Runtzel received a call from the Madera County Sheriff's department indicating a neighbor to the Property had contacted the sheriff's department and reported activity at the residence, including that a door to the residence was open. The sheriff's department directed Runtzel to inspect the property to determine whether anything was missing. Upon his inspection the following day, Runtzel noted several items of personal property items appeared to be missing from the Property.
PAS personnel visited the Property on February 19, 2013, and confirmed someone had gotten into the home through a window and had taken various items of personal property. Extra measures were reportedly taken to secure the home by placing wood in the back windows as well as the sliding glass door, the back door to the garage was boarded up, and the door from the garage to the house was secured with a lock. The notes recite an 18-day notice to reclaim personal property was taped to the exterior of the front door as well as to the interior of the front window. PAS notes reflect two additional copies were sent to appellant's address by certified and first class mail.
C. March 2013
On March 7, 2013, appellant filed a verified FAC adding a claim that respondents "took the following properties from [appellant's] possession and converted them for their own use: hunting knives, an ax, numerous guns, and antique goods." Respondents filed a demurrer, which the court sustained as to all claims except the conversion claim. Appellant was permitted to amend his complaint.
On March 26, 2013, PAS notes reflect a voicemail message was left for appellant asking to discuss his personal property, but no response was received.
D. May through December 2013
PAS scheduled an auction of appellant's personal property for June 2, 2013. However, when the auctioneer arrived at the Property on May 27, 2013, PAS notes indicate she discovered multiple vehicles at the Property as well as an open door to the residence. She called the sheriff's department to investigate. A sheriff's deputy was dispatched to the Property and reported he spoke with appellant who told the deputy that he was still the homeowner, it remained his house, and he indicated someone had gone in and stolen his belongings. On May 29, 2013, PAS personnel went to the Property, and PAS notes indicate "someone ha[d] removed the notices posted by the sheriff and placed notices stating that the property is currently in a pending lawsuit and if there are any trespassors on the property they will be included in the lawsuit. These notices include an attorney's name and contact information." PAS subsequently postponed the personal property auction.
On June 12, 2013, appellant filed a SAC, which is the operative complaint, setting forth 12 causes of action: (1) breach of oral contract; (2) quasi-contract; (3) promissory estoppel; (4) fraud; (5) violation of the Unfair Competition Law (UCL) (Bus. & Prof. Code § 17200); (6) negligent training and supervision; (7) conversion; (8) intentional infliction of emotional distress; (9) slander of title; (10) quiet title; (11) declaratory relief; and (12) injunctive relief. The conversion claim was amended to include a list of 33 items of personal property that respondents had allegedly "converted" for their own use, including, among other items, a "[d]rawer-full" of coins, towels, sheets, cigars, cameras, ski boots, and large collections of colognes and alcoholic drinks.
In August and September 2013, PAS notes indicate it was obtaining bids to pack and store appellant's personal property remaining at the Property. On September 9, 2013, a hearing was held on respondents' demurrer to appellant's SAC. The court dismissed all causes of action without leave to amend, except appellant's conversion claim.
In December 2013, a realtor working with PAS visited the Property and internal PAS notes reflect it appeared secure, but "there were lots of no trespassing signs on the windows and front doors from the occupants stating that it is being lived in and no one is allowed inside."
E. January through July 2014
On January 6, 2014, the default judgment in the original October 2012 UD action filed by USB was vacated upon motion by appellant, apparently due to insufficient service of process. Once the judgment was vacated, appellant filed a demurrer that the court sustained, and the UD action was dismissed. Respondents then filed another UD action, to which appellant again filed a demurrer in April 2014. Appellant argued respondents could not state a claim for unlawful detainer because appellant was not "'holding over'" in possession of the Property. Appellant asserted he had been subject to a lock-out in 2013, and he had not been in possession of the Property since that time.
In May 2014, a hearing on appellant's demurrer to the second UD action was held. Based on appellant's representation that he was not in possession of the Property and had not been in possession since he was locked out in February 2013, the UD action was dismissed.
On July 24, 2014, a sheriff's deputy was dispatched to the Property regarding the realtor's report that someone had stolen the exterior lock box from the front door of the Property, which contained a key to the front door. The realtor reported the previous homeowner, appellant, was evicted in 2013, but appellant had left a handwritten note on the front door stating the Property was occupied as of June 21, 2014.
F. January through September 2016
In January 2016, respondents filed a motion for summary judgment as to appellant's sole surviving claim for conversion. At some point in February 2016 after the motion for summary judgment had been filed, appellant filed a motion to compel responses to requests for admissions and other discovery. A hearing was held on March 8, 2016, but respondents did not appear. The court ordered responses to appellant's requests for production and interrogatories within 30 days, sanctioned respondents $2,000, and ordered appellant's requests for admissions to be deemed admitted for all purposes. Then, on March 25, 2016, appellant filed an opposition to respondents' motion for summary judgment, relying in part on respondents' deemed admissions.
On April 1, 2016, respondents filed a reply brief regarding the motion for summary judgment indicating they had filed an ex parte application for relief from the March 2016 discovery order, which was set for hearing on April 7, 2016. Respondents argued they had not received any of appellant's discovery requests. The trial court ultimately vacated its March discovery order.
Subsequently, on September 23, 2016, USB filed another UD action against appellant (Madera Superior Court case No. MCV072920). Appellant filed an answer, and discovery proceeded.
Further references to case numbers are to Madera Superior Court case numbers.
G. January through June 2017
Respondents' January 2016 motion for summary judgment was heard on January 12, 2017, after appellant was granted a continuance of the motion to conduct additional discovery. The court sustained respondents' objections to multiple portions of appellant's declaration, which was the only evidence offered in support of appellant's opposition to the motion for summary judgment. The court then granted the motion for summary judgment in open court, an order thereon was filed, and judgment was entered in respondents' favor on April 12, 2017. Appellant filed a notice of appeal on June 6, 2017, seeking review of the trial court's grant of summary judgment, the court's September 2013 order sustaining respondents' demurrer without leave to amend as to the other causes of action, and the order striking the request for attorney fees.
Appellant had included the requests for admission deemed admitted by the March 2016 court order, but that order was vacated.
H. November 2017
On November 1, 2017, in the UD action, case No. MCV072920, USB filed a motion for summary judgment. Appellant did not file an opposition, and the motion was granted. In December 2017, judgment was entered in favor of USB and a writ of possession to the Property was issued.
III. Respondents' Request for Judicial Notice
In August 2018, respondents filed a request for judicial notice in this appeal of various documents filed in the third UD action, case No. MCV072920. Respondents seek to collaterally estop appellant from relitigating the issue of whether the July 2012 trustee's sale was properly conducted pursuant to Civil Code section 2924—an issue respondents claim was already decided in the UD action that became final after judgment was issued in December 2017.
DISCUSSION
I. Respondents' Request for Judicial Notice is Granted
Respondents seek judicial notice of five documents: (1) USB's verified complaint for UD filed on September 23, 2016, case No. MCV072920; (2) appellant's answer to USB's verified complaint for UD filed in Madera Superior Court on January 12, 2017, in case No. MCV072920; (3) USB's notice of motion and motion for summary judgment filed on November 1, 2017, in case No. MCV072920, including supporting documentation filed therewith; (4) judgment issued by Madera Superior Court on December 18, 2017, in case No. MCV072920; and (5) writ of possession for the judgment entered on December 18, 2017, which was issued January 5, 2018, in case No. MCV072920.
In October 2018, appellant filed an opposition to the request for judicial notice, arguing the UD action is not final. He executed and filed a supporting declaration that on September 5, 2018, he filed a motion to set aside the December 18, 2017, UD judgment on the ground of extrinsic fraud in that he was unaware a motion for summary judgment had been filed in that case. Appellant's motion to set aside was heard on Monday, October 15, 2018, by the trial court in the UD action. His motion was denied, but as of the date of his declaration, no formal order had been signed and dated, but he intended to appeal the denial whenever the order was entered.
None of the documents for which respondents seek judicial notice were considered by the trial court because the UD action did not conclude until after judgment was issued in this case. While appellant argues there can be no collateral estoppel based on the UD judgment because it is not final, he does not argue the documents are not subject to judicial notice nor does he challenge their authenticity.
As a general rule, "'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.'" (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) However, appellate courts have the same power to take judicial notice as the trial courts and may take judicial notice of matters not contained in the record on appeal if those matters are the proper subject of judicial notice and are relevant to the issues. (Evid. Code, § 459, subd. (a); see Ward Mfg. Co. v. Miley (1955) 131 Cal.App.2d 603, 608-609.) To determine whether to preclude relitigation on the basis of collateral estoppel, judicial notice may be taken of a prior judgment and other court records. (Rodgers v. Sargent Controls & Aerospace (2006) 136 Cal.App.4th 82, 90.)
As appellant does not challenge the authenticity of the documents and these are court records that are subject to judicial notice, we grant respondents' request for judicial notice of the five identified documents filed in the UD action, case No. MCV072920. II. Collateral Estoppel Precludes Challenges Under Civil Code Section 2924
All further statutory references are to the Civil Code unless otherwise noted.
Respondents argue appellant is precluded by the December 18, 2017, UD judgment from relitigating the issue of whether the Property was sold in accordance with section 2924.
Issue preclusion, also known as collateral estoppel, "precludes relitigation of issues argued and decided in prior proceedings." (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) Issue preclusion "applies (1) after final adjudication (2) of an identical issue (3) actually litigated and necessarily decided in the first suit and (4) asserted against one who was a party in the first suit or one in privity with that party." (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825.) The party asserting collateral estoppel has the burden of proving its application. (Pacific Lumber Co. v. State Water Resources Control Bd. (2006) 37 Cal.4th 921, 943.)
A. Unlawful Detainer Judgment Entitled to Preclusive Effect
Typically, a UD action under Code of Civil Procedure section 1161a has limited collateral estoppel effect because it is a summary proceeding focused on deciding only a party's right to immediate possession of the property. (Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 973.) However, one who purchases property at a trustee's sale may bring an action for UD under Code of Civil Procedure section 1161a, subdivision (b)(3). In such an action, the plaintiff is required to establish the property was acquired at a regularly conducted sale pursuant to Civil Code section 2924, and that title under the sale was "duly perfected" (Code Civ. Proc., § 1161a, subd. (b)(3)). To this limited extent, title is litigated in a UD action, and it may be afforded res judicata effect. (Vella v. Hudgins (1977) 20 Cal.3d 251, 255.) As such, "courts have held that subsequent fraud or quiet title suits founded upon allegations of irregularity in a trustee's sale are barred by the prior unlawful detainer judgment." (Id. at p. 256.)
Appellant does not dispute the UD judgment determined the July 2012 trustee's sale complied with the requirements of section 2924 and that this identical issue is raised here, nor does he challenge whether the issue was actually litigated and necessarily decided in the UD action or that he was a party to that action. A review of the documents filed in the UD action confirms these requirements are satisfied.
In alleging claims under the UCL, negligence, intentional infliction of emotional distress, and quiet title, appellant asserts respondents failed to comply with section 2924 in conducting the July 2012 trustee's sale. This identical issue was decided, and necessarily so, in the UD action. USB's verified UD complaint alleged it was the successful bidder at the trustee's sale held pursuant to the laws of the State of California. In November 2017, USB filed a motion for summary judgment asserting there was no material dispute as to the three requirements for UD and provided evidence that USB purchased the Property at a trustee's sale in compliance with section 2924 and that title was duly perfected in USB. Appellant filed no opposition to the motion and, on December 18, 2017, the trial court granted USB's motion, concluding, among other things, that the July 30, 2012, trustee's sale was held in accordance with section 2924.
While appellant did not oppose the summary judgment motion filed in the UD action, the issue was still actually litigated. "An issue is actually litigated '[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined ....'" (People v. Sims (1982) 32 Cal.3d 468, 484, superseded by statute on another ground as stated in Gikas v. Zolin (1993) 6 Cal.4th 841, 851.) The issue was raised by the pleadings and expressly addressed in the motion for summary judgment, the motion was submitted to the court for determination, and the trial court expressly concluded the July 2012 trustee's sale of the Property was conducted in compliance with section 2924—as is required for a UD judgment. (Code Civ. Proc., § 1161a, subd. (b)(3).)
The only collateral estoppel requirement appellant challenges is finality. He claims the December 18, 2017, judgment is not final because he is in the process of appealing it. A "'"final judgment" includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.'" (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1564.) In California, a judgment is not final for issue-preclusion purposes until the appeal period has expired—a judgment that is pending on appeal is not final. (Sandoval v. Superior Court (1983) 140 Cal.App.3d 932, 936-937.)
Although appellant was waiting in October 2018 for the issuance and filing of the court's order denying his motion, and he indicated he would appeal that denial, no appeal of that action is pending before this court, and all appeal deadlines have expired.
A notice of appeal from a judgment must usually be filed on or before the earliest of (1) 60 days after the trial court's mailing of notice of entry of judgment; (2) 60 days after a party's service of the notice of entry of judgment; or (3) 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1)-(3).) This appeal period may be extended under rule 8.108, subdivision (c)(3), which provides that if, during the normal time for appeal from the judgment, any party serves and files a valid motion to vacate the judgment, the time to appeal is extended for all parties until the earliest of (1) 30 days after the court clerk or party serves an order denying the motion or a notice of entry of that order; (2) 90 days after the first notice of intention to move—or motion—is filed; or (3) 180 days after entry of judgment. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 3:62.) "The outside time limit for filing a notice of appeal remains 180 days after entry of judgment in all cases; authorized extensions of the filing period will not stretch the appeal deadline beyond this limit." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 109.) Appellant's motion to set aside the judgment was filed on September 5, 2018, and appellant attests it was denied in open court on October 15, 2018, which is more than 15 months ago. No appeal is pending before this court, and all possible appeal deadlines have expired. The December 18, 2017, judgment is final.
All further references to rules are to the California Rules of Court.
B. Issue Preclusion Limited to Compliance with Section 2924
The UD judgment expressly states the July 30, 2012, trustee's sale was held in accordance with section 2924. For all of the reasons discussed above, that issue has been conclusively determined, and appellant is precluded from raising challenges about irregularities or improper notices under section 2924. The UD judgment does not, however, preclude arguments about the validity of the primary obligations under the deed of trust or other substantive defects in respondents' title to the Property. "Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in this summary proceeding for possession, nor are they concluded by the judgment." (Cheney v. Trauzettel (1937) 9 Cal.2d 158, 160.)
III. The Trial Court Properly Sustained Respondents' Demurrer
On September 13, 2013, the trial court sustained respondents' demurrer to 11 of the 12 pleaded causes of action in the SAC without leave to amend. Appellant contends the trial court erred in sustaining the demurrer as to any of these 11 claims and, even if the demurrer was correctly sustained in any respect, appellant argues leave to amend should have been granted. We disagree: the trial court did not err.
A. Standard of Review
On appeal from a judgment dismissing an action after sustaining a general demurrer, appellate courts independently determine whether the complaint states facts sufficient to constitute a cause of action under any legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; see Code Civ. Proc., § 430.10, subd. (e).) "We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law." (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.) "We affirm if any ground offered in support of the demurrer was well taken but find error if the plaintiff has stated a cause of action under any possible legal theory. [Citations.] We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale." (Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 631.)
"[W]hen [a demurrer] is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)
B. Analysis
1. Breach of Oral Contract
Appellant alleges he entered into an oral agreement with respondents for a loan modification that required appellant to stop paying his mortgage; once he was delinquent on his mortgage obligations, respondents had agreed to modify the terms of his mortgage to reduce the interest rate and the monthly payment. Although appellant was current with his payments at the time of the alleged oral agreement, once appellant fulfilled his obligation to stop paying his mortgage, respondents breached the agreement by refusing to modify the loan. Respondents allegedly ignored appellant's inquiries about the loan and ultimately foreclosed on the Property without notifying him. The trial court dismissed this claim as insufficiently pleaded and denied leave to amend, which appellant challenges.
Respondents argue the breach of oral contract claim is insufficiently pleaded because it lacks allegations of the material terms of the agreement such as the interest rate, the principal balance, the term of years, and the new monthly payment amount. Appellant responds the oral contract alleged here is not related to a new loan, it is an agreement to modify the existing loan, and the only necessary terms of their agreement were appellant's promise to default to become eligable for a loan modification and respondents' promise to offer a modified loan.
"A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) [the] plaintiff's performance or excuse for nonperformance, (3) [the] defendant's breach, and (4) the resulting damage to [the] plaintiff." (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1388.) "'In order for acceptance of a proposal to result in the formation of a contract, the proposal "must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain." [Citation.] ... [¶] ... "'The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.'"'" (Bowers v. Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 734.) "If ... a supposed 'contract' does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, there is no contract." (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.)
The contract allegations here lack the material terms and details of the purported agreement. There are no guidelines to determine the essential terms of the modification respondents promised to offer. Appellant alleges respondents had promised to modify the loan to provide a lower interest rate and monthly payment, but there is no specification for how those terms would be calculated. It is not alleged how many months appellant was required to default on his payment obligations before he would qualify for the modification, or when respondents were required to offer a modified loan. Absent such terms or a way to ascertain them, appellant has not alleged the existence of a sufficiently definite and enforceable contract requiring respondents to modify the loan. (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 777 [contract so uncertain and indefinite that material terms cannot be ascertained is void and unenforceable].)
Appellant argues he is nonetheless entitled to an opportunity to amend because like the plaintiffs in Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150 (Daniels), his allegations are consistent with a loan modification under the federal Home Affordable Mortgage Program (HAMP), which itself contains sufficient guidelines for what type of loan modification respondents were required to offer. In Daniels, the appellate court allowed the plaintiffs an opportunity to amend their oral contract claim under HAMP, which the court in Wigod v. Wells Fargo Bank, N.A. (2012) 673 F.3d 547, 556 (Wigod) explained would provide essential terms missing from certain agreements to modify a mortgage loan.
As explained by the Seventh Circuit Court of Appeals in Wigod, HAMP was created under the Emergency Economic Stabilization Act of 2008 (Pub.L. No. 110-343 (Oct. 3, 2008) 122 Stat. 3765) (Act), after the economic collapse of 2008 to facilitate home loan modifications and prevent avoidable foreclosures across the country. (Wigod, supra, 673 F.3d at p. 556.) Under this Act, the Secretary of the United States Treasury negotiated servicer participation agreements with dozens of home loan servicers, wherein the servicers agreed to identify homeowners who were in default or who likely would soon be in default on their mortgage payments and to modify the loans of those eligible under what was known as the HAMP program. (Ibid.) Pursuant to this program, borrowers had to meet the following threshold requirements: (1) loan origination before January 1, 2009; (2) the mortgage loan was secured by the borrower's primary residence; (3) the existing mortgage payments were more than 31 percent of the borrower's monthly income; and (4) for a one-unit home, the unpaid principal balance could be no greater than $729,750. (Ibid.)
Once this threshold, eligibility was established, the servicer calculated a modification using a "'waterfall'" method by applying enumerated changes in a specified order until the borrower's monthly mortgage payment ratio dropped "'as close as possible to 31 percent.'" (Wigod, supra, 673 F.3d at pp. 556-557, fn. omitted, quoting U.S. Dept. of the Treasury, HAMP Supp. Dir. 09-01 (Apr. 6, 2009).) Then, the servicer applied a net present value test (NPV) to ascertain whether the modified mortgage's value to the servicer would be greater than the return on the mortgage if unmodified. (Wigod, supra, at p. 557.) If the modified mortgage value would be lower than the servicer's expected return after foreclosure, the servicer was not obligated to offer a modification. (Ibid.) If the modified mortgage value was better than the expected return after foreclosure, however, the Treasury directives required the servicer to offer the modification. (Ibid.)
After that initial qualification process was complete and the servicer was required to offer a modified loan under HAMP, the modification process itself occurred in two steps. (Wigod, supra, 673 F.3d at p. 557.) First, the servicer implemented a trial period plan (TPP) under the new loan repayment terms formulated by the waterfall method. (Ibid.) This trial period lasted three or more months while the lender was to service the loan in the same manner it would service a loan in forbearance. (Ibid.) Second, if the borrower complied with all of the terms of the TPP agreement, including making all required payments and providing all required documentation, and if all of the borrower's representations remained true and correct, the servicer was required to offer a permanent modification. (Ibid.)
Wigod, finding herself in financial distress, sought a HAMP modification in April 2009. (Wigod, supra, 673 F.3d at p. 558.) Wigod was deemed eligible for a HAMP loan modification and was sent a TPP agreement. (Ibid.) Wigod timely made all payments under the TPP and complied with all other obligations of the TPP, but she was informed by the bank no modified mortgage could be offered to her, that she owed the outstanding balance and late fees under her existing mortgage agreement, and the bank threatened foreclosure if she failed to pay the accumulating delinquency under the original loan terms. (Ibid.)
Wigod stated a breach of contract claim against the lender based on the lender's promise to offer Wigod a permanent loan modification so long as Wigod complied with the terms of the TPP, and her representations about her eligibility remained true and accurate. (Wigod, supra, 673 F.3d at pp. 560-561.) Although she had performed, the lender had failed to provide a permanent modification. (Id. at p. 561.) The lender argued dismissal of the claim was required because, among other reasons, the TPP was unenforceable—it did not specify the exact terms of the permanent loan modification, including the interest rate, principal balance, loan duration, and the total monthly payment. (Id. at p. 564.) The trial court dismissed Wigod's contract claim, and she appealed. (Wigod, supra, 673 F.3d at p. 555.) The Seventh Circuit Court of Appeals rejected the lender's argument the TPP agreement lacked any definite terms. (Id. at pp. 564-566.) The court reasoned the HAMP guidelines provided the standard by which the ultimate terms of the permanent modification were to be set. The HAMP program directives provided the exact mechanisms for determining borrower eligibility and for calculating modification terms—i.e., the waterfall method and the NPV test. (Id. at p. 565.) "[T]he TPP fairly implied that any deviation from [the TPP] in the permanent [modification] offer [was] also [to] be based on ... the established HAMP criteria and formulas." (Ibid.) Thus, because Wigod had fulfilled the TPP's conditions, the lender was obligated to offer "some sort of good-faith permanent modification to Wigod consistent with HAMP guidelines." (Ibid.) The court concluded the terms of the TPP were clear and definite enough given the HAMP criteria and formulas to support the breach of contract theory. (Id. at pp. 565-566.)
In Daniels, the plaintiffs (the Daniels) had an adjustable-rate mortgage that they struggled to pay after the loan adjusted upward. (Daniels, supra, 246 Cal.App.4th at p. 1157.) They tried to obtain a loan modification and were told by their lender they needed to be at least three months delinquent in their payments to qualify. (Ibid.) Based on that representation, the Daniels believed they would be granted a loan modification if they complied with all of the lender's instructions and if they became at least three months delinquent in their monthly mortgage payments. (Id. at p. 1159.) Although the Daniels were current on their mortgage, they missed three payments and contacted the lender again. (Ibid.) They were then told to make reduced payments of $1,000 per month, which they paid believing "'the payments were trial plan payments and that upon completion of the trial plan, [they] would be granted a permanent modification that would provide them with a fixed interest rate.'" (Ibid.) After submitting additional required documentation, the Daniels continued to be denied a loan modification. (Ibid.)
The Daniels eventually sued the lender for breach of contract, among other claims, alleging they had entered into an oral agreement whereby they agreed to make payments of $1,000 monthly and to submit all required documentation and, in return, the lender would offer them a loan modification. (Daniels, supra, 246 Cal.App.4th at p. 1173.) On appeal after dismissal by the trial court, the appellate court held the claim did not adequately allege a sufficiently definite contract. (Id. at p. 1176.) However, the appellate court permitted leave to amend because it was possible the defect could be cured if the promised loan modification was one under HAMP, as discussed in Wigod, a theory never before pointed out to the Daniels. (Id. at p. 1177.) The court noted the Daniels's complaint referenced HAMP and, on appeal they referred to their agreement as a TPP. (Ibid.)
While some of the basic allegations in Daniels bear similarity to appellant's, they are distinguishable in critical respects. The Daniels had been told to pay a modified amount to their lender and submit additional documentation, which they did expecting to receive a permanent modification. While they never alleged HAMP governed their promised loan modification, the Daniels referred to the reduced payment as part of a TPP, and the allegation was consistent with the existence of a TPP agreement under HAMP, which would have supplied any missing terms of the promised modification. Under Wigod, it was possible the Daniels could amend their claim to allege their loan modification agreement was governed by HAMP, and they had reached an agreement to modify the loan under a TPP.
Here, unlike Daniels, appellant has not alleged any facts consistent with the existence of a TPP under HAMP. Appellant never submitted documentation to prove eligibility for a modification or made reduced payments pursuant to a TPP. Instead, he alleges his agreement with respondents required him to "fall behind" on his mortgage payments and nothing more. Amending the claim to allege a modification agreement under HAMP pursuant to a TPP would require appellant to allege facts altogether contrary to his current version of the agreement, including allegations that he had proven his threshold eligibility for a TPP to his lender and the terms of that TPP. Appellant cannot amend his verified complaint to allege a contrary agreement. (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173 [a plaintiff may not discard factual allegations of a prior complaint, or avoid them by contradictory averments in a superseding amended pleading].) Absent an agreement or conduct by the lender and the borrower from which the existence of a TPP could be inferred, appellant cannot allege a breach of oral contract under a theory he had a TPP with respondents, governed by HAMP, which provided the necessary material terms of the modified loan appellant alleges he was promised. The trial court did not err in dismissing this claim without leave to amend.
2. Quasi-Contract Claim
Appellant's second claim seeks restitution on a noncontract basis as an alternative theory of recovery. The SAC alleges appellant was induced into an arrangement where appellant would fall behind on his payments and his mortgage would be modified, but when appellant relied on this promise, his loan was determined to be in default, and the Property was sold in a trustee's sale.
"Under the law of restitution, '[a]n individual is required to make restitution if he or she is unjustly enriched at the expense of another. [Citations.] A person is enriched if the person receives a benefit at another's expense. [Citation.]' [Citation.] However, '[t]he fact that one person benefits another is not, by itself, sufficient to require restitution. The person receiving the benefit is required to make restitution only if the circumstances are such that, as between the two individuals, it is unjust for the person to retain it.' [Citation.]" (McBride v. Boughton (2004) 123 Cal.App.4th 379, 389.) Restitution or unjust enrichment may be sought on a quasi-contract theory where the defendant obtained a benefit from the plaintiff by fraud, duress, conversion, or similar conduct. (Id. at p. 388.) In those cases, the law implies a contract without regard to the parties' intent, to avoid unjust enrichment. (Ibid.)
Appellant argues his quasi-contract claim was sufficiently pleaded because he alleged the lender received the benefit of obtaining the Property after years of payments on his loan. Respondents argue these allegations do not make clear what benefit they actually obtained from foreclosing on the Property or why it was unjust for them to foreclose after appellant defaulted. Respondents also argue the quasi-contract claim cannot exist where there is a valid, express contract covering the same subject matter—i.e., the deed of trust.
The SAC does not allege what benefit was unjustly conferred upon respondents. Appellant alleges respondents manipulated him into defaulting on the mortgage loan to engineer the foreclosure, but it is unclear how failing to pay the mortgage that resulted in a foreclosure was a benefit to respondents. Appellant argues in his brief that foreclosure was not in respondents' financial interests. Appellant points out the unpaid debt on the Property at the time of foreclosure was $477,844.25, but the Property was sold at foreclosure for $212,415, which was a "whopping loss to the Bank," and that respondents would have "benefitted substantially by modifying [appellant's] loan to allow him to continue to pay both princip[al] and interest." No benefit to respondents was adequately alleged.
Moreover, "an action based on an implied-in-fact or quasi-contract cannot lie where there exists between the parties a valid express contract covering the same subject matter." (Lance Camper Manufacturing Corp. v. Republic Indemnity Co. (1996) 44 Cal.App.4th 194, 203.) While a party may allege the express contract is void or was rescinded for some reason and plead a quasi-contract claim in the alternative, there are no sufficient allegations here how the deed of trust on the Property, the express contract the SAC alleges exists between the parties, is void or unenforceable. (Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1388-1389.) The SAC's allegations of an oral modification are inadequate, and there are no other allegations how the deed of trust is void or unenforceable. Thus, the deed of trust is the valid and express contract covering the same subject matter as the appellant's quasi-contract theory of recovery. Appellant cannot recover on a quasi-contract claim where there is an enforceable agreement regarding the Property. (Id. at pp. 1387-1390.)
3. Promissory Estoppel
The elements of promissory estoppel are (1) a promise clear and unambiguous in its terms; (2) reliance by the party whom the promise is made; (3) the reliance was both reasonable and foreseeable; and (4) the party asserting estoppel was injured by his reliance. (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.)
Appellant's promissory estoppel claim is based on the same set of allegations as the prior two claims: appellant was induced to enter into an arrangement whereby if he defaulted on his loan payments, respondents promised to modify his mortgage loan; respondents failed to offer him a modified loan; appellant reasonably relied on respondents' promise because it is a financial institution authorized by the federal government to provide and service residential home loans such that he had no reason to suspect respondents would not honor their promise; appellant was damaged because in reliance on the promise, he defaulted on his loan, no modification was given, and respondents foreclosed on the Property.
Respondents contend appellant failed to allege a clear and unambiguous promise and appellant's reliance on the purported promise to modify the loan was not reasonable or foreseeable. Appellant argues Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 227 (Aceves), recognizes a borrower might reasonably rely on a promise to negotiate in an attempt to reach a mutually agreeable loan modification. And, as the court in Daniels permitted the plaintiffs to amend their promissory estoppel claim, appellant maintains he should be granted leave to amend to clarify his allegation as asserting the "Bank's failure to negotiate a loan modification."
Appellant's promissory estoppel claim fails for the same reason as the oral breach of contract claim: respondents' purported promise to modify the loan is not clear and unambiguous. (Daniels, supra, 246 Cal.App.4th at p. 1179 ["The absence of those essential loan modification terms renders the alleged promises insufficiently clear and unambiguous to support a promissory estoppel."].) Appellant misreads Daniels to the extent he suggests the appellate court there allowed the plaintiffs to amend their promissory estoppel claim to allege their lender made a promise to negotiate a loan modification. In Daniels, the plaintiffs' promissory estoppel claim was based on the lender's promise to offer a loan modification. The court explained, as discussed above, the lender's promise to offer a modified loan was not sufficiently definite, clear and unambiguous to support either the claim for breach of contract or promissory estoppel. (Id. at pp. 1174-1176, 1178-1179.) There were, however, allegations suggesting the promised modification was governed by HAMP, which itself would supply the missing essential terms as held in Wigod and could cure that pleading defect with respect to both the contract claim and the promissory estoppel claim. (Daniels, supra, at pp. 1177-1178.)
The Daniels court went on to address the Daniels' argument that the definiteness of the terms of the modified loan were irrelevant because they were offered no loan modification at all, and that was the breach. (Daniels, supra, 246 Cal.App.4th at p. 1179.) The court rejected this contention, reasoning that a promise to offer any kind of modified loan with any terms was not a promise on which the appellants could have reasonably relied. (Ibid.) While noting a person might reasonably rely on a promise to negotiate (Aceves, supra, 192 Cal.App.4th at p. 227), the court underscored the Daniels had not alleged a promise to negotiate a modified loan, they alleged a promise of a modified loan (Daniels, supra, at p. 1179). Such a promise would necessarily rise or fall on whether the terms of the promised modified loan were sufficiently clear and definite. (Ibid.) As the contract and promissory estoppel claims stood, they were insufficient in that regard. (Ibid.) However, it was possible the appellants could amend their contract and promissory estoppel claims to allege a TPP agreement governed by HAMP, which would supply the missing loan modification terms. (Ibid.)
Here, just like Daniels, the promise of a modified loan was not clear and unambiguous (or sufficiently definite) because none of the essential terms are alleged. Yet, unlike Daniels, there are no underlying facts that appellant was making payments under a TPP or that his loan modification could have been subject to HAMP—for that reason, amendment is not warranted here as it was in Daniels. Appellant's suggestion he could amend his promissory estoppel claim to encompass a promise by respondents to negotiate a loan modification would be inconsistent with his existing allegations of an affirmative promise to modify the loan. (See Continental Ins. Co. v. Lexington Ins. Co. (1997) 55 Cal.App.4th 637, 646 ["'[A] plaintiff may not discard factual allegations of a prior complaint or avoid them by contradictory averments, in a superseding, amended pleading.'"].)
In sum, the promissory estoppel claim does not allege a clear, unambiguous promise to modify the loan. Moreover, the claim is not susceptible to amendment as an agreement to offer a modified loan under HAMP, nor is it permissible to amend to state a different promise by respondents.
4. Fraud
Appellant's fraud claim is based on his conversation with Lewis and the promised loan modification. Respondents argue the allegations lack specificity and detail such as whether Lewis had authority to speak for respondents. They also assert that because the alleged representation lacked the necessary terms, no reasonable person, such as an attorney like appellant, would have relied on it.
a. Specificity
The elements of a cause of action for fraud are (1) a misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another's reliance on the misrepresentation, (4) actual and justifiable reliance, and (5) resulting damage. (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) Each element of fraud is to be pleaded with specificity. (Id. at p. 231.) "The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, ... their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made." (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.) Further, when a plaintiff asserts fraud 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.) Nonetheless, "the requirement of specificity is relaxed when the allegations indicate that 'the defendant must necessarily possess full information concerning the facts of the controversy' [citations] or 'when the facts lie more in the knowledge of the [defendant.]'" (Id. at p. 158.)
The SAC allegations of fraud are bare bones and reveal virtually nothing about the conversation between appellant and Lewis. While the representations Lewis made to appellant allegedly occurred at some point in 2010, no more precise date is pleaded. The SAC does not state who initiated the communication or how it occurred—in person or over the telephone. There is also no allegation concerning Lewis's authority to speak on behalf of either respondent—particularly USB, as the SAC alleges USB did not have an interest in the deed of trust until 2011. There are also no details about what loan modification would be offered, when it would be offered, or how many payments appellant would have to miss to be eligible for the modification.
While appellant asserts the pleading requirements are relaxed in this case because respondents have the fullest information concerning the underlying facts, this is not so. Appellant was a party to the conversation and the representations allegedly made therein—he is in a better position than respondents to know the full extent of Lewis's misrepresentations. Moreover, because appellant does not plead with more specificity the date or the type of communication he had with Lewis, this limits respondents from determining whether they have any information about this purported conversation. This fraud claim lacks the necessary specificity.
b. Justifiable Reliance
Appellant also fails to adequately plead justifiable reliance. Justifiable reliance is found only when the circumstances were such to make it reasonable for the plaintiff to accept the defendant's statements without an independent inquiry or investigation. (OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp. (2007) 157 Cal.App.4th 835, 864.) "The reasonableness of the plaintiff's reliance is judged by reference to the plaintiff's knowledge and experience." (Ibid.) "'Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a question of fact.'" (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, quoting Blankenheim v. E.F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1475.) On the other hand, "[i]f the conduct of the plaintiff in the light of his own intelligence and information was manifestly unreasonable, ..., he will be denied a recovery." (Seeger v. Odell (1941) 18 Cal.2d 409, 415.)
As pleaded, appellant's reliance on Lewis's promise that appellant's loan would be modified was unreasonable as a matter of law. The allegations are limited to the fact that appellant spoke with Lewis at some point in 2010, and that Lewis promised him a modified loan with a lower payment and lower interest rate if appellant fell behind on his mortgage payments for an unspecified amount of time. Based on that sole statement, without executing a single document or qualifying in any respect, and without any information Lewis had authority to make such a promise or what type of loan would be offered and when, appellant decided to fall behind on his payments.
Given appellant's experience and knowledge as an attorney, he should have known such a promise, as pleaded, was subject to some independent confirmation, particularly as the promised modification was indefinite and related to a mortgage for real property, which was governed by a written agreement. (Kahn v. Lischner (1954) 128 Cal.App.2d 480, 489 ["[I]f the conduct of the complaining party in the light of his own intelligence and information, or ready availability of information, was manifestly unreasonable, he will be denied a recovery."].)
c. Amendment is Not Warranted
The burden of proving there is a reasonable possibility a pleading defect can be cured lies with the plaintiff. (Blank, supra, 39 Cal.3d at p. 318.) "To satisfy that burden on appeal, a plaintiff 'must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.' [Citation.] The assertion of an abstract right to amend does not satisfy this burden." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 43.) The plaintiff must clearly and specifically state "the legal basis for amendment, i.e., the elements of the cause of action," as well as the "factual allegations that sufficiently state all required elements of that cause of action." (Ibid.)
Appellant asserts he can allege that Lewis had authority to speak for respondents, but even assuming that is so, he fails to offer any other details to support his claim. He articulates nothing about whether he approached Lewis, what led him to believe Lewis had authority within the organization to make such a promise, the specific nature of that conversation, and what other details were discussed. Even to the extent appellant could allege Lewis had authority to speak on behalf of either respondent, he has not offered any additional facts to establish he could meet the requisite specificity as to any of the other details or that would show his reliance on Lewis's promise was reasonable. The trial court did not err in sustaining the demurrer as to this claim without leave to amend.
5. Negligent Training and Supervision
a. Background
Appellant asserts his claim for negligent training and supervision adequately alleged respondents breached their duty of care by making false representations to him about a loan modification and by failing to comply with the statutory notice requirements surrounding the July 30, 2012, trustee's sale of the Property.
As to any breach of a duty of care owed to appellant, respondents argue a negligence claim against an employer may only be stated where the employee commits a tort. Moreover, the failure to provide proper notice of the July 2012 foreclosure under section 2924 is not tortious conduct, and a negligence claim against respondents as employers is improper as a matter of law. Respondents also maintain the alleged failures to comply with section 2924 are precluded by the UD judgment. Respondents argue the only other act alleged is Lewis's promise of a loan modification, which was not a tortious breach of any duty of care.
Respondents also note appellant cannot succeed on this claim against USB because Lewis purportedly made his false promise in 2010, a year before USB was assigned an interest in the deed of trust; USB could not have been Lewis's employer at the time the promise was allegedly made.
b. Analysis
Appellant's claim of negligent training and supervision is pleaded in a conclusory fashion, and neither a theory of negligent training nor negligent supervision is adequately stated.
An employer "'may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit.'" (Federico v. Superior Court (1997) 59 Cal.App.4th 1207, 1213.) To establish liability, a plaintiff must demonstrate the elements of negligence: duty, breach, proximate causation, and damages. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) Beyond those elements, imposing negligence liability on an employer in hiring, retention and supervision of employees requires the existence of an employment relationship and foreseeability of the injury. (Dent v. Nat. Football League (2018) 902 F.3d 1109, 1122 (Dent) [applying California law & citing Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1142].)
As to whether a duty is owed in this case, respondents note Sheen v. Wells Fargo Bank, N.A. (2019) 38 Cal.App.5th 346, review granted November 13, 2019, S258019, undercuts appellant's negligence claim: the court there held a lender does not owe a borrower a tort duty of care during a loan modification negotiation. There is a split of authority among California appellate courts whether a lender owes to the borrower a duty of care during a loan modification process. (Compare Alvarez v. BAC Home Loans Servicing, L.P. (2014) 228 Cal.App.4th 941, 950 & Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 902 & fn. 17 with Lueras v. BAC Home Loans Servicing L.P. (2013) 221 Cal.App.4th 49, 68 & Sheen v. Wells Fargo Bank, N.A., supra, at pp. 352-359, review granted.) However, we need not decide whether respondents owed appellant a duty of care in this context because, even assuming they did, appellant's claim fails.
As an initial matter, there is no viable claim alleged against USB for negligent training or supervision. Both negligence theories require an allegation of an employment relationship between the employer to be held liable and the employee whose conduct was wrongful. (Dent, supra, 902 F.3d at p. 1122.) The SAC alleges that in 2010 when Lewis provided false statements to appellant, Lewis was an agent and representative of respondents. However, the SAC also alleges USB did not have any interest in the deed of trust on the Property until 2011. These allegations taken together are insufficient to allege Lewis had an employment relationship with USB in 2010 such that USB could be liable for the failure to properly supervise or train him with respect to appellant's mortgage. As to allegations of employee negligence in failing to provide required notices pursuant to section 2924 prior to the July 2012 trustee's sale, the 2017 UD judgment conclusively established the trustee's sale was conducted in accordance with section 2924. Thus, USB (or America's Servicing Company) may not be held liable for the negligence of its employees arising out of the alleged failure to comply with section 2924 as to the July 2012 trustee's sale.
As to America's Servicing Company, the claim fails. There are insufficient facts to plead a claim for negligent supervision. "[T]here can be no liability for negligent supervision 'in the absence of knowledge by the principal that the agent or servant was a person who could not be trusted to act properly without being supervised.'" (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 395, quoting Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 664.) There are no allegations showing America's Servicing Company knew Lewis could not be trusted to act properly without supervision.
As for a negligent-training theory, the claim is also deficient. A claim for negligent training requires showing the employer negligently trained the employee as to the performance of the employee's job duties and, as a result of such negligent instruction, the employee caused injury or damage to the plaintiff in the course of carrying out the employee's job duties. (State Farm Fire & Casualty Co. v. Keenan (1985) 171 Cal.App.3d 1, 23.) Additionally, there must be allegations showing the employee engaged in tortious behavior because the employer is only negligent to the extent of the employee's wrongdoing. (See Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1160 ["If the employee did not drive negligently, and thus is zero percent at fault, then the employer's share of fault is zero percent. That is true even if the employer entrusted its vehicle to an employee whom it knew, or should have known, to be a habitually careless driver with a history of accidents."].) As it pertains to Lewis, the only tortious behavior alleged was vague and indefinite averments of a false representation or promise that is insufficient to constitute fraud, as discussed more fully below. Beyond that, there is no other adequately alleged tortious behavior by Lewis that would translate to an adequately pleaded claim for negligent training against his employer. Finally, there is no basis to conclude this claim can be amended. The trial court did not err in sustaining respondents' demurrer to this claim.
6. UCL
Appellant alleges a violation of the UCL, which he claims was improperly dismissed. We disagree.
"The purpose of the UCL 'is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. [Citation.]'" (Drum v. San Fernando Valley Bar Assn. (2010) 182 Cal.App.4th 247, 252.) The statute "'"establishes three varieties of unfair competition-acts or practices which are [(1)] unlawful, or [(2)] unfair, or [(3)] fraudulent."'" (Id. at p. 253.) Since the UCL is written in the disjunctive, a business act or practice may be alleged to be all or any of the three varieties. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180.)
Appellant's claim is very generically pleaded and fails to delineate what conduct violates which prong of the UCL. For example, the SAC alleges respondents "engaged in acts and practices which include, but are not limited to: self-dealing; conducting foreclosure auctions without providing notices, publications and/or public postings as required by California law; misrepresenting to borrower regarding the Trustee's sale; failing to properly notify borrower of the imminent foreclosure and sale of such parties' property; and purchasing real property at a foreclosure sale conducted in violation of California law." The SAC then states these acts "violate the policy or spirit of such laws, including ... §§1709, 1710, 1711, 2923.5 and 2924." The SAC also restates the allegations about Lewis's misrepresentation to appellant in 2010 promising a loan modification, and that respondents failed to comply with all statutory requirements in recording a notice of default and providing notices of the 2012 trustee's sale. Beyond that the claim is pleaded in a conclusory fashion, it is deficient in several other respects.
Section 1709 provides that "[o]ne who willfully deceives another with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers." Section 1710 defines deceit. Section 1711 provides that "[o]ne who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit." Section 2923.5 provides what must be done before a notice of default may be recorded. Section 2924 provides the requirements for noticing and conducting a trustee's sale pursuant to a deed of trust.
First, to the extent any of appellant's UCL claim is predicated on respondents' purported failure to comply with section 2924 in conducting the July 2012 trustee's sale, that issue has been conclusively determined by the 2017 UD judgment and may not be relitigated here. Also, to the extent there is a conclusory allegation that respondents failed to comply with the requirements of section 2923.5 in recording a notice of default against the Property, that assertion is merely a legal conclusion that need not be accepted as true, and a UCL claim cannot arise out of that singular assertion without any factual detail. (Ellis v. County of Calaveras (2016) 245 Cal.App.4th 64, 70 [in reviewing dismissal after demurrer, appellate court need not accept allegations containing "legal conclusions" or "adjectival descriptions"].)
The version of section 2923.5 applicable in 2012 provided only one remedy: preforeclosure postponement of the sale. (See Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 223 ["The available, existing remedy [for violation of section 2923.5] is ... to postpone the sale until there has been compliance with section 2923.5"].) That version of the statute did not create a right to a loan modification, nor did it have any effect on a completed sale. (Id. at pp. 225, 235; see Lueras v. BAC Home Loans Servicing L.P., supra, 221 Cal.App.4th at p. 77.) The trustee's sale here took place before suit was filed, thus there is no remedy available under the applicable version of section 2923.5, and no claim pursuant to that section is viable. Further, as noted by respondents' counsel at oral argument, there is no indication the amendment to section 2923.5, effective January 1, 2013, applies retroactively. (Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828, 841 ["a statute will not be applied retroactively unless it is very clear from extrinsic sources that the Legislature ... must have intended a retroactive application"].)
Second, to the extent appellant asserts Lewis's promise of a loan modification constitutes fraud or deceit under sections 1709 and 1710, which are merely extensions of the common-law claim for fraud (Mirkin v. Wasserman (1993) 5 Cal.4th 1082, 1091-1092), those allegations do not support a claim under the UCL's fraud prong. While UCL claims under its fraud prong do not have the same stringent pleading requirements as a common-law fraud claim (In re Tobacco II Cases (2009) 46 Cal.4th 298, 312), there must be allegations sufficient to show that members of the public are likely to be deceived (Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1274). If, as a matter of law, the public is not likely to be deceived or mislead by the fraudulent practice, the claim is not cognizable and is subject to demurrer. (Day v. AT & T Corp. (1998) 63 Cal.App.4th 325, 333.)
The SAC makes no allegation Lewis's conduct would likely deceive members of the public. Moreover, as pleaded, the claim so lacks detail it compels only one conclusion: Lewis's alleged deceptive or fraudulent conduct is not likely, as a matter of law, to deceive members of the public. Appellant's claim is that he had one conversation with someone named Lewis who represented respondents in some unknown capacity. Lewis told appellant to fall behind on his mortgage payments for an unspecified period of time and, with no further paperwork, application, credit report, document execution, or negotiation, a modified loan of an unspecific nature would be provided to appellant at an unstated time in the future. That is simply not the type of promise or deceptive conduct that is likely to mislead or deceive members of the public. A UCL claim based on this conduct fails under the fraudulent prong.
Third, to the extent appellant is attempting to set forth a claim under the UCL's "unfair" prong, the claim likewise fails. There are various tests that courts have applied to determine whether a business practice is unfair under the UCL. Some courts evaluate aspects of the injury caused to determine whether the practice was unfair. (Camacho v. Automobile Club of Southern California (2006) 142 Cal.App.4th 1394, 1403-1405.) Another court has required unfair conduct to be "tethered to specific constitutional, statutory, or regulatory provisions." (Bardin v. DaimlerChrysler Corp., supra, 136 Cal.App.4th at pp. 1260-1261.) Courts have also considered whether the practice is "immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers ... weigh[ing] the utility of the defendant's conduct against the gravity of the harm to the alleged victim." (Id. at p. 1260.) The SAC is devoid of allegations specifying what practice was unfair and how, under any of these tests, it was unfair.
Finally, appellant has conceded his UCL claim is derivative of his other claims, but argues those claims are sufficiently pleaded and, even if they are not, he should be permitted to amend. As discussed above and below, none of appellant's other claims are viable. To the extent appellant's UCL claim is wholly derivative of his other claims, the UCL claim itself is not viable. (Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147 [where a UCL claim is wholly derivative of other nonviable causes of action, the UCL claim also fails].)
Appellant fails to provide any further details about his UCL claim (or the claims from which the UCL claim is derived) warranting amendment. For all of these reasons, we conclude the trial court did not err in sustaining without leave to amend respondents' demurrer to appellant's UCL claim.
7. Slander of Title
The parties dispute whether the trial court correctly sustained respondents' demurrer to appellant's slander of title claim. Appellant notes the SAC alleges respondents "issued and recorded" documents related to a foreclosure sale of a property for which they had "no right, title, or interest" and that their "conduct in publishing these documents" resulted in damages to appellant. Appellant argues these allegations are sufficient to state a claim for slander of title, and the trial court abused its discretion in sustaining respondents' demurrer and in disallowing an opportunity to amend. We disagree.
Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof "'some special pecuniary loss or damage.'" (Fearon v. Fodera (1915) 169 Cal. 370, 379-380.) The elements of the tort are (1) a publication, (2) without privilege or justification, (3) falsity, and (4) direct pecuniary loss. (Truck Ins. Exchange v. Bennett (1997) 53 Cal.App.4th 75, 84; Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263-264 & fn. 2.) If the publication is reasonably understood to cast doubt upon the existence or extent of another's interest in land, it is disparaging to the latter's title. (Hill v. Allan (1968) 259 Cal.App.2d 470, 489.) The core objective of the cause of action is protection from injury to the salability of property (Howard v. Schaniel, supra, at p. 264), which is ordinarily indicated by the loss of a particular sale, impaired marketability or depreciation in value (Hill v. Allan, supra, at p. 489; Davis v. Wood (1943) 61 Cal.App.2d 788, 797-798).
Appellant has not (and cannot) alleged the falsity of the published notice of default, notice of trustee's sale, or the trustee's deed upon sale related to the July 2012 trustee's sale of the Property. Although the SAC alleges that "at the time of the purported foreclosure sale, [respondents] had no right, title, or interest in the Property," that conclusion is not factually supported. The central tenet of appellant's complaint is that the foreclosure was unlawful because it violated the parties' agreement to modify the loan, yet none of appellant's claims regarding that agreement or promise are viable. As such, that theory of the falsity of the recorded documents is insufficient for purposes of this slander of title claim. Further, the SAC alleges appellant stopped paying his mortgage; thus, the notice of default cannot be deemed false on the theory appellant was current on his mortgage payments at the time it was recorded. There is simply no factual basis in the SAC to support a claim the recorded documents were false because respondents had no right, title, or interest in the Property. There is no indication of another theory or basis on which appellant could allege the falsity of the recorded documents. As such, the trial court did not err either in sustaining the demurrer to the slander of title claim or in refusing to permit amendment.
We decline to address respondents' argument that the recordation of the notice of default, notice of election to sell at trustee's sale, and the notice of trustee's sale in this case are privileged communications under section 2924—even if the recorded notices are not privileged communications, the claim still fails. We note, however, while section 2924, subdivision (d), states the mailing, publication, and delivery of notices under section 2924 are "privileged communications pursuant to Section 47," there is a split of authority whether that refers to the absolute privilege in section 47, subdivision (b), or the qualified privilege in section 47, subdivision (c). (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1337.) This distinction is relevant when there are allegations the publications were made with malice, as there are here. (Ibid.)
8. Quiet Title
Respondents maintain appellant's quiet title action fails because appellant has not tendered the amount due on the loan. Appellant argues he is entitled to an opportunity to amend so that he may tender the indebtedness.
A quiet title action requires pleading (1) a description of the real property, including a legal description and a street address; (2) the title of the plaintiff as to which a determination is sought and the basis of the title; (3) the adverse claims to the title of the plaintiff against which a determination is sought; (4) a date when the determination is sought; and (5) a prayer for determination of the title of the plaintiff against the adverse claim. (Code Civ. Proc., § 761.020, subds. (a)-(e).)
To the extent appellant's quiet title action, which incorporates all of the prior allegations of the SAC, is premised on allegations that respondents failed to provide proper notices pursuant to the requirements of section 2924, that issue has been conclusively determined by the 2017 UD judgment. As such, any alleged failure to comply with section 2924 cannot form the basis of appellant's alleged right to title. (Vella v. Hudgins, supra, 20 Cal.3d at p. 256 [subsequent claims founded upon allegations of irregularity in the trustee's sale are barred by prior UD judgment].)
To the extent appellant bases his right to title on the allegations the trustee's sale was improper because respondents had agreed to modify the loan obligations under the deed of trust, the SAC alleges no enforceable modification agreement. These allegations, therefore, do not form a sufficient factual basis for appellant's claim to title. In sum, appellant has alleged no factual basis to title to the Property, which is required. (Code Civ. Proc., § 761.020, subd. (b).)
To the extent appellant argues he should be permitted to amend so he can tender the indebtedness under the deed of trust, that would not cure the failure to plead adequate facts to support the basis of appellant's asserted right to title.
9. Intentional Infliction of Emotional Distress
The SAC alleges respondents intentionally inflicted emotional distress on appellant by implementing a scheme to deprive appellant of his rights to the Property, fraudulently inducing appellant to default on his loan obligations in return for a modification of the mortgage obligations, and by converting appellant's personal property. The trial court sustained respondents' demurrer to this claim, which appellant challenges.
To state a claim for intentional infliction of emotional distress, a plaintiff must allege "(1) outrageous conduct, (2) an intent to cause or a reckless disregard of the possibility of causing emotional distress, (3) severe or extreme emotional distress, and (4) actual and proximate cause of the emotional distress by the outrageous conduct." (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1468.) To be considered outrageous, conduct must "be so extreme as to exceed all bounds of that usually tolerated in a civilized community." (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) The defendant must have engaged in the conduct with the intent to inflict injury or had knowledge injury would result from the conduct. (Id. at p. 210.) Whether conduct is outrageous is usually a question of fact. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045.)
Respondents argue the trial court properly sustained their demurrer because the act of foreclosing, absent other circumstances, is not the type of extreme conduct that supports a claim for emotional distress. We agree. Appellant's claims asserting the trustee's sale was not lawful because of a modification agreement and that respondents fraudulently induced appellant into defaulting on his mortgage are not viable. For the reasons discussed below, the trial court also properly entered judgment in favor of respondents as to appellant's conversion claim. Absent viable allegations of fraud or conversion, the claim for intentional infliction of emotional distress is limited to the distress caused by the foreclosure. By itself, respondents' act of foreclosure of the Property does not rise to the level of outrageous conduct. (See Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 334 ["It is simply not tortious for a commercial lender to lend money, take collateral, or to foreclose on collateral when a debt is not paid."].) There is also no basis to conclude amendment will cure this defect. The trial court did not err in sustaining respondents' demurrer to this claim.
10. Declaratory and Injunctive Relief
Appellant seeks declaratory relief regarding title to the Property and an order setting aside the July 2012 trustee's sale. The claim for declaratory relief incorporates all prior allegations regarding appellant's claims of a modified loan agreement and irregularities in the trustee's sale, including failures to comply with statutory notice requirements.
Code of Civil Procedure section 1060 authorizes "[a]ny person ... who desires a declaration of his or her rights or duties with respect to another ... in cases of actual controversy relating to the legal rights and duties of the respective parties, [to] bring an original action ... for a declaration of his or her rights and duties ...."
"'The fundamental basis of declaratory relief is the existence of an actual, present controversy over a proper subject.'" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) For a party to pursue an action for declaratory relief, the "'actual, present controversy must be pleaded specifically ....'" (Id. at p. 80.) As such, a claim must provide specific facts, as opposed to conclusions of law, which show a "controversy of concrete actuality ...." (Jessin v. County of Shasta (1969) 274 Cal.App.2d 737, 743.)
It is fatal to appellant's declaratory relief claim that all other claims have been found lacking. Where a court concludes the plaintiff does not state sufficient facts to support a claim, and therefore sustains a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is wholly derivative of that claim. (Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [where facts did not support statutory claims, declaratory relief claim wholly derivative of statutory violations was likewise unsupported].) Here, appellant's request for declaratory relief is wholly derivative of his underlying claims. For all of the reasons the underlying allegations fail to state cognizable causes of action, they also fail to establish a present and actual controversy between the parties. The trial court properly sustained the demurrer as to appellant's declaratory relief claim.
As for the injunctive relief claim, "a request for injunctive relief is not a cause of action." (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 984.) Because we have affirmed the trial court's dismissal of appellant's other causes of action, he cannot seek injunctive relief as a stand-alone claim against respondents. (See id. at p. 985.) Moreover, all the alleged conduct pertains to wrongs which have been completed, and there is no showing the alleged violations will recur. "Injunctive relief has no application to wrongs which have been completed [citation], absent a showing that past violations will probably recur." (People v. Toomey (1984) 157 Cal.App.3d 1, 20.) The trial court properly sustained respondents' demurrer as to appellant's claim for injunctive relief.
IV. Respondents' Motion to Strike was Properly Granted
In conjunction with their demurrer, respondents also filed a motion to strike the SAC's prayer for attorney fees, among other things not relevant here, which the trial court granted. On appeal, appellant claims the request for attorney fees was not properly stricken because appellant believes the deed of trust has an attorney fees provision from which fees could be awarded under Code of Civil Procedure section 1033.5, subdivision (a)(10).
In some circumstances, recoverable litigation costs include attorney fees incurred during litigation. Code of Civil Procedure section 1033.5, subdivision (a)(10), provides that attorney fees are "'allowable as costs under [Code of Civil Procedure] Section 1032'" when they are "'authorized by'" contract. (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) Appellant does not point to any specific provision in the deed of trust that provides for attorney fees. Moreover, the trial court properly sustained respondents' demurrer to all claims from which attorney fees could possibly stem. The trial court's decision to strike the prayer for attorney fees was not error.
V. Trial Court Did Not Err in Granting Summary Judgment
In January 2017, the trial court granted respondents' motion for summary judgment of appellant's remaining conversion claim. The motion had been filed in January 2016 but was continued to allow appellant additional time for discovery. The only evidence offered in support of appellant's opposition to the motion for summary judgment was his own declaration, to which respondents objected in large part, and those objections were sustained by the trial court. After a hearing on the motion, the trial court concluded there were insufficient facts to create a triable issue of fact as to the conversion claim and granted judgment in favor of respondents. Appellant argues the court erred.
In support of his opposition, appellant had also attached discovery requests for admissions deemed admitted by the court in March 2016, but the court later vacated that discovery order and, thus, those discovery requests had no evidentiary value.
A. Triable Issue of Material Fact
A party asserting an action has no merit or there is no defense to the action may move for summary judgment. (Code Civ. Proc., § 437c, subd. (a)(1).) The court shall grant a motion for summary judgment "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).) In determining whether a triable issue of material fact exists, the court must consider all evidence laid out in the moving papers and all inferences reasonably deducible from the evidence. (Ibid.) A triable issue of material fact exists if "the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 (Aguilar).)
B. Standard of Review
Appellate courts determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) In performing this independent review, appellate courts apply the same three-step analysis as the trial court. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1602.) First, the court identifies the issues framed by the pleadings. (Ibid.) Second, the court determines whether the moving party has established facts justifying judgment in its favor. (Ibid.) Third, if the moving party has carried its initial burden, the court then decides whether the opposing party has demonstrated the existence of a triable issue of material fact. (Ibid.)
C. Analysis
The SAC alleges respondents converted 33 items of appellant's personal property after respondents foreclosed on the Property and evicted appellant from it.
Conversion is the wrongful exercise of dominion over the property of another. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1240.) The elements of a conversion claim are (1) the plaintiff's ownership or right to possession of the property; (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) damages. (Ibid.) To establish conversion, the plaintiff must generally prove an actual and substantial interference with his or her ownership or right to possession the property. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 550-551.) To prove substantial interference, the plaintiff must show an intention or purpose to convert the goods and to exercise ownership over them, or to keep the owner from taking possession of the property. (Id. at p. 550.)
1. The Conversion Claim as Framed by the Pleadings
The parties' dispute about appellant's conversion claim centers on whether respondents wrongfully interfered with appellant's personal property. As a threshold matter, certain theories of wrongful interference by respondents alleged in the SAC are precluded. First, to the extent the SAC alleges respondents wrongfully interfered with appellant's personal property by locking him out of the house through an unlawful eviction, that theory is foreclosed. As discussed above, the trial court correctly dismissed appellant's claims relating to a modified mortgage contract—there is no viable claim the foreclosure and subsequent eviction were wrongful because they stemmed from a breach of a modified contract between respondents and appellant.
Additionally, the 2017 UD judgment conclusively determined the July 2012 trustee's sale of the Property was lawfully conducted in accordance with section 2924, and appellant is estopped from asserting that failure to comply with section 2924 forms the basis of respondents' interference with his personal property. Finally, at the time respondents locked appellant out of the Property, respondents had obtained a valid writ of possession entitling them to possession of the Property. The fact the judgment in that UD action was later vacated did not undercut the validity of respondents' execution on the writ of possession in January 2013. (See Munoz v. MacMillan (2011) 195 Cal.App.4th 648, 653-654 [landlord evicting tenant pursuant to writ of possession not liable for damages under principles governing forcible entry and detainer actions even if writ of possession subsequently deemed invalid].) There exists no cognizable theory of conversion based on an improper foreclosure or an unlawful eviction.
Liberally construing the remaining operative allegations, the SAC maintains respondents wrongfully interfered with appellant's personal property stored at the Property by taking it, discarding it, or otherwise refusing to return it to appellant after respondents took possession of the Property. The SAC, filed in June 2013, alleges that "[d]uring the year past, [appellant] had stored in his home ... the goods and necessities necessary for his enjoyment and habitability at his home. [¶] .... [Respondents] took personal properties from [appellant's] possession and converted them for their own use."
2. Respondents' Initial Burden Was Met
The moving party bears the initial burden of showing there is no genuine dispute of material fact and that it is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 845.) To meet this burden, a defendant moving for summary judgment may either negate an element of the cause of action or demonstrate a complete defense to the plaintiff's claim. (Id. at p. 849.) Only if the moving party meets its initial burden does the burden shift to the nonmoving party to show a triable issue exists. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.)
In support of their motion, respondents submitted evidence through the declaration of Shae Smith that, to the extent they interfered with appellant's personal property through the foreclosure and eviction process, any interference was not wrongful. Moreover, to the extent there was some other wrongful interference with appellant's personal property, it was not caused by any act of respondents. In support of these arguments, respondents proffered evidence they correctly and properly obtained the Property through a trustee's sale in July 2012, that appellant remained in possession of the Property despite respondents' legal title to the Property, and that an UD judgment and a writ of possession were issued as to the Property in January 2013. Thus, respondents' possession of the Property through foreclosure and subsequent eviction of appellant did not constitute a wrongful interference with appellant's personal property located at the Property.
Smith is an employee of Wells Fargo.
Further, as to personal property that was purportedly removed from the Property by respondents and taken for their own uses, respondents offered evidence they were not in possession of the Property until February 2013 when it was re-keyed pursuant to the writ of possession—they had no access to appellant's personal property until that time. They offered evidence showing after they took possession of the Property, there was a break-in through a window and personal property items were removed by someone never identified. They also offered evidence appellant himself had accessed the Property. Given the evidence that others had taken items of personal property and that others had access to the Property, respondents argued appellant could not establish respondents wrongfully interfered with appellant's personal property.
Appellant argues Shae Smith's declaration creates inferences that preclude respondents from meeting their initial burden of negating an element of appellant's conversion claim and itself evidences a material factual dispute that precludes summary judgment. Specifically, appellant notes Smith stated USB (through its agent, Wells Fargo (dba America's Servicing Company)) had possession of the Property as of February 12, 2013, when it was re-keyed. On February 18, 2013, a neighbor reported a door to the Property was open, and when PAS personnel inspected the Property, many items were reportedly missing. On May 27, 2013, an auctioneer contracted by respondents reported that people were at the Property, and that no one but USB and PAS had a key to the house. Appellant maintains he did not retake possession of the Property until June 21, 2014. According to appellant, the undisputed evidence from Smith's declaration is that personal property items were removed at the time respondents were in sole possession of the Property and appellant had no access. Appellant argues this creates a reasonable inference that someone associated with respondents removed appellant's personal property. Moreover, while Smith stated that during the time Wells Fargo had possession of the Property, neither it nor its employees or agents under its authority removed or converted appellant's personal property, appellant argues Smith has no personal knowledge of all the acts of every Wells Fargo agent or employee at the Property.
Appellant's arguments are unpersuasive. Respondents were not required to negate the possibility they interfered with appellant's personal property to meet their threshold burden. A defendant moving for summary judgment "need not himself conclusively negate any such element [of the plaintiff's case]—for example, himself prove not X ... '[g]iven the difficulty of proving a negative, ... a test' requiring conclusive negation 'is often impossibly high.'" (Aguilar, 25 Cal.4th at pp. 853-854.) As the moving party, respondents could—and did—meet their burden by producing evidence showing appellant does not possess, and cannot reasonably obtain, needed evidence to prove by a preponderance that respondents wrongfully interfered with appellant's personal property. (Id. at p. 854.)
Respondents proffered documentary evidence from PAS, police reports, and Smith's declaration showing that after respondents re-keyed the Property and took possession of it, there was a break-in through a window in the house, and a PAS agent noted several items inside the house and garage appeared to be missing at that time. There was also evidence offered that appellant himself had access to the Property. This was evidence that respondents' legal right to possession of the Property, and their acts of taking possession pursuant to the writ of possession, did not result in exclusive access to the Property. Moreover, by offering evidence of a break-in during which items were taken from the Property, there was evidence an unidentified third party, rather than respondents, wrongfully interfered with appellant's personal property. Moreover, Smith attested no one from Wells Fargo (acting as USB's agent) or its agents took or disposed of any of appellant's personal property, and this statement was not objected to by appellant before the trial court. (Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268 [objections not made in the trial court are waived on appeal].) This evidence was sufficient to shift the burden to appellant because, if left uncontroverted, appellant would be unable to prove it was respondents and/or their agents who took or wrongfully disposed of appellant's personal property.
PAS notes and a May 2013 peace officer report indicate appellant was found on the Property with the door open, and appellant told the sheriff's deputy it was still his home. In December 2013, signs were found posted at the house stating it was occupied. Also notable, the verified SAC was filed in June 2013 and alleged conversion of various items, including a "[d]rawer-full" of coins had been taken by respondents. Based on this record, the only way appellant could allege a "[d]rawer-full" of coins was missing in June 2013 is if he had been inside the Property at that time. In this regard, appellant's argument and declaration stating "Wells Fargo had exclusive possession of the Property after it wrongfully obtained possession of the Property" is dubious. However the word "possession" is parsed, access to the Property and residence and garage thereon was not exclusive to respondents.
3. Appellant's Burden to Show a Material Factual Dispute
Once the defendant meets its initial burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts. (Aguilar, supra, 25 Cal.4th at p. 850.) "'In deciding whether a plaintiff has met h[is] burden of proof, we consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full consideration to the negative and affirmative inferences to be drawn from all of the evidence, including that which has been produced by the defendant.' [Citation.] 'An issue of fact can only be created by a conflict of evidence. It is not created by "speculation, conjecture, imagination or guess work." [Citation.] Further, an issue of fact is not raised by "cryptic, broadly phrased, and conclusory assertions" [citation], or mere possibilities [citation].'" (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 889.)
Appellant relies on Smith's declaration indicating respondents and their agents had exclusive possession of the Property from February 2013 until approximately June 2014. Appellant argues this fact creates a reasonable inference that it was respondents who wrongfully interfered with appellant's personal property, creating a triable disputed issue of fact. Not so.
While a court may not "weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Aguilar, supra, 25 Cal.4th at p. 856.) "Responsive evidence that 'gives rise to no more than mere speculation' is not sufficient to establish a triable issue of material fact." (Carlsen v. Koivumaki, supra, 227 Cal.App.4th at pp. 889-890.)
First, even if there were no evidence another individual accessed the Property at the time respondents held the right to possession and had the only set of keys to the locks on the doors, respondents' mere possession of the Property between February 2013 and June 2014 does not create a reasonable inference that respondents, rather than someone else, wrongfully interfered with appellant's personal property. This is so because there is no evidence establishing that personal property became missing while respondents were in possession. There is no declaration from appellant providing any factual details about when he last observed the purportedly missing items of personal property inside the residence or garage on the Property, when he discovered the items were missing, when he requested the return of that personal property from respondents or their agents, or when respondents and their agents refused to return that personal property to him.
While the trial court sustained all of respondents' objections to appellant's supporting declaration and that ruling has not been challenged on appeal, even if appellant's declaration were admissible in every respect, it offers no facts supporting an inference that appellant's personal property became missing at the time respondents had possession of the Property. Even the allegations of the complaint are silent about when the items were last seen or when they were noticed to be missing. Other than appellant's conclusory statement in his declaration that respondents "converted" 33 items of his personal property and "refuse[d] to return them," there is no evidence supporting this conclusory statement. Without facts tending to show what items were located at the Property when respondents were in possession of the Property and when appellant discovered they were missing or asked for their return and was refused by respondents, there is an absence of any factual basis from which it could be inferred respondents took or wrongfully interfered with any items of personal property while they were in possession of the Property.
Second, even if there were evidence showing appellant's personal property disappeared from the Property at the time respondents had possession, it would still be unreasonable to infer respondents took or disposed of that property because there is affirmative evidence other individuals were accessing the Property at that time. Evidence was offered that personal items were taken from the Property in February 2013 by an unknown third party who broke into the residence through a window. In addition to that theft, evidence attached to Smith's declaration establishes a sheriff's deputy encountered appellant himself on the Property in May 2013, and a PAS auditor noted a door to the residence was open at that time. Given other individuals accessing the property, appellant's assumption respondents wrongfully interfered with his property at that time is merely speculation without any evidentiary predicate. Although a party may rely on reasonable inferences drawn from direct and circumstantial evidence to satisfy its burden on summary judgment, inferences may not be drawn from thin air. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483.) In sum, neither Smith's declaration nor the evidence attached thereto create a reasonable inference that respondents wrongfully interfered with appellant's personal property.
On this record, a reasonable trier of fact could not conclude respondents wrongfully interfered with appellant's personal property. There is a dearth of any evidence to show, through inference or otherwise, that respondents wrongfully converted any of appellant's personal property. (See Krause v. Apodaca (1960) 186 Cal.App.2d 413, 418 [inferences must be drawn from evidence and not based on mere speculation as to probabilities without evidence].) The trial court did not err in granting summary judgment to respondents on appellant's conversion claim.
DISPOSITION
The order granting respondents' motion for summary judgment and the order sustaining respondents' demurrer without leave to amend are affirmed. The judgment is affirmed. Costs on appeal are awarded to respondents. (Cal. Rules of Court, rule 8.278, subd. (a)(3).)
MEEHAN, J. WE CONCUR: POOCHIGIAN, Acting P.J. DETJEN, J.