Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BC346937, Judith C. Chirlin, Judge.
Huron Law Group and Jeffrey Huron for Plaintiff and Appellant.
Anglin, Flewelling, Rasmussen, Campbell & Trytten, Robin C. Campbell and Mark T. Flewelling for Defendant and Respondent Wachovia Bank National Association.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, SEST Consulting, Inc., appeals from a judgment dismissing eight causes of action filed against defendant, Wachovia Bank National Association (“the bank”). The lawsuit arose when an escrow was canceled in which plaintiff was to purchase a piece of real property. We affirm because plaintiff failed to state a cause of action against the bank arising from the processing of an application to assume a loan that was secured by a trust deed.
II. BACKGROUND
A. The Second Amended Complaint
In reviewing an order after a demurrer is sustained without leave to amend, all well-pleaded factual allegations must be assumed as true. (Naegele v. R. J. Reynolds Tobacco Co. (2002) 28 Cal.4th 856, 864-865; Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 946.) The operative pleading is the second amended complaint, which contains claims against: the bank; the seller of the property which was a party to the escrow, 1015 Grandview Limited Partnership (the partnership); as well as a number of other defendants. The bank is the only defendant who is a party to this appeal.
On February 3, 2006, plaintiff filed the original complaint, which did not name the bank as a defendant. On March 17, 2006, plaintiff filed the first amended complaint naming the bank as one of several defendants. On May 25, 2006, the bank demurred to the first amended complaint. The bank’s demurrers to the first amended complaint were sustained with leave to amend. The trial court ruled that plaintiff’s first amended complaint had failed to allege sufficient facts to establish the bank owed a duty of care to plaintiff.
The second amended complaint alleged that plaintiff and the partnership entered into a sale agreement on March 17, 2005. The partnership subsequently filed a declaratory relief action seeking a determination it was not obligated to sell the property. Plaintiff cross-complained against the partnership and recorded a lis pendens on the property. On October 14, 2005, plaintiff and the partnership dismissed their claims against one another and entered into a new agreement (“the second purchase agreement”) to sell the property. The second purchase agreement provides, “‘[I]n no event’” shall the closing occur later than January 31, 2006.
The second amended complaint further alleged that the property was encumbered by a first trust deed in favor of defendant, Lehman Brothers Holdings, Inc. (“Lehman”). Paragraph 8.2 of the trust deed states Lehman must approve any sale of the property by the partnership. Paragraph 8.3(B) of the trust deed provides that Lehman’s consent to a sale of the property “‘shall not be withheld’” provided it receives 60 days prior written notice the property would be sold. Other conditions existed including a requirement that the prospective purchaser assume the partnership loan obligations. The bank was alleged to be “the master servicer” of the loan that was made to the seller.
According to the escrow instructions, plaintiff would finance its purchase by applying to assume the partnership’s loan or to proceed by defeasance. Plaintiff and the partnership were required to place certain specific items into escrow two days prior to the closing date including: the grant deed; the assignment and assumption covering tenant leases; the remainder of the purchase price; and the bank’s approval of plaintiff’s assumption of the loan.
On October 26, 2005, plaintiff submitted an application to assume the loan to the bank. Plaintiff provided financial and other documents requested in the application. Plaintiff paid a $7,500 application processing fee to the bank. As late as November 22, 2005, the partnership failed to provide all the documents needed for the bank to process the assumption application. On January 12, 2006, the bank recommended approval of plaintiff’s assumption of the loan. Final approval was required by two “special servicers”; CW Capital and LNR Partners, Inc. When the escrow did not close by the January 31, 2006 closing date, the partnership cancelled the escrow. Plaintiff then sued the partnership and several other defendants.
The second amended complaint specifically alleges: “24. After [the bank] recommended approval of [plaintiff’s] Application, CW Capital and LNR had nineteen (19) days to approve the transaction prior to the Closing Date. . . . [¶] 25. In addition, during this time, [the bank’s] counsel made clear that [the bank] would not allow the closing to occur until [the partnership] (a) reviewed and approved the loan assumption agreements and (b) provided [the bank] with the necessary current certified rent roll, current certified operating statement for property, and organizational documents for [the partnership] and Real Estate Dynamics, Inc. – documents that [the bank’s] counsel had requested from [the partnership] on January 18, 2006. [¶] 26. As of the Closing Date, [the partnership] had neither reviewed nor approved the loan assumption documents, nor had it provided to [the bank] the other documents that [the bank] purportedly required before it could give its final approval to [plaintiff’s] assumption of the Loan. . . . [¶] 27. [The seller] failed to timely deliver into escrow an executed assignment and assumption covering tenant leases, failed to comment or approve the loan assumption documents, and failed to provide a required current certified opening statement for the Property and organizational documents. Thus, even if [plaintiff] had received the unknown and undisclosed additional approvals, [the partnership] failed to perform its obligations under the Second Purchase Contract thereby further preventing [plaintiff] from closing the transaction on January 31, 2006. [¶] 28. On January 31, 2006, [the partnership and its general partner, defendant, Aris Anagnos] sent cancellation instructions to the escrow holder. That same day, [plaintiff] notified the escrow holder that it objected to [the partnership’s] attempt to cancel the escrow, that its inability to close escrow on time was due to [the partnership’s] failure to perform its obligations, and that it would close escrow within a reasonable amount of time once [the partnership] performed its obligations. [¶] 29. [Plaintiff] continued to communicate on a daily basis with [the bank] about the status of its loan assumption application. On or about February 13, 2006, CW Capital and LNR both orally approved [plaintiff’s] assumption of the Loan, and [the bank] again represented to [plaintiff] that it was approving the application. [¶] 30. Nevertheless, on February 14, 2006, without prior notice, [the bank] advised [plaintiff] that it had terminated the loan assumption application based on a letter dated February 10, 2006 from Aris Anagnos of GLP indicating that [plaintiff] wished to withdraw its loan assumption application. [Plaintiff] never received a copy of the February 10, 2006 letter nor did [the bank] check with [plaintiff] to see if indeed [plaintiff] did wish to withdraw its loan assumption application before [the bank] terminated such application. By this time, more than 90 days had elapsed since [plaintiff] first submitted its loan assumption application to [the bank]. [¶] 31. When [plaintiff] objected to the termination of its loan assumption application, [the bank] refused to change its position on the grounds that the escrow did not close by January 31, 2006, and [the partnership] had purportedly cancelled the escrow. [¶] 32. After the filing of this action, [plaintiff] discovered that on February 15, 2006, CW Capital and LNR issued a written approval letter . . . confirming its oral approval of [plaintiff’s] Application to assume the Loan. . . . [¶] 39. . . . [Plaintiff] simply could not provide [the bank’s] final approval of its loan assumption application by the Closing Date because [the partnership] failed to satisfy its obligation to provide [the bank] with the information and documents it needed to give final approval of [plaintiff’s] assumption of the Loan. . . .” The second amended complaint further alleged: the partnership subsequently obtained a new buyer which would pay more money; the new buyer would obtain its own financing; and the partnership would not have to pay a $100,000 loan assumption fee.
With respect to the bank, it was further alleged: Lehman represented in writing in the trust deed that it would consent to the sale of the property within 60 days notice of the proposed transaction provided certain conditions were met, including the prospective purchaser’s assumption of the loan; plaintiff was qualified to assume the partnership’s loan; all other conditions required for Lehman to consent to the sale were satisfied; the bank failed to reveal that very few, if any applications to assume loans were approved within 60 days; and the approval of an assumption application normally takes 60 to 90 days. Plaintiff alleged that the bank interfered with its economic and contractual relationship with the partnership by preventing the assumption of the loan. In the second amended complaint, plaintiff sought relief against the bank on the following theories: specific performance (third); declaratory relief (fourth); fraudulent concealment (seventh); negligent misrepresentation (eighth); negligence (ninth); interference with contractual relations (tenth); intentional interference with prospective economic advantage (eleventh); and negligent interference with prospective economic advantage (twelfth).
B. The Demurrers
The bank demurred to the second amended complaint. The bank also moved to strike portions of the second amended complaint. The bank argued: the demurrer to the first amended complaint was sustained with leave to amend; the demurrers should be sustained without leave to amend because the second amended complaint suffered from the same infirmities as the first amended complaint; and plaintiff had made inconsistent allegations in the two amended complaints. The bank asserted that the negligence-based claims failed because plaintiff failed to allege sufficient facts to show the existence of a duty of care. It was also asserted that: plaintiff had admitted that the bank recommended approval of the loan assumption on January 12, 2006; this was 19 days before the projected closing date; and this was 51 days after November 22, 2005, when the bank received the applicable documents from the partnership.
The bank contended the fraudulent concealment claims were not actionable because: the second amended complaint contradicts the allegation that the bank failed to meet the 60-day deadline; the trust deed does not state that an assumption application will be approved in 60 days; there is no fiduciary duty giving rise to a concealment claim; plaintiff did not allege that the bank’s employees had actual knowledge of any concealment or plaintiff possessed an intent to defraud; and there is no causal connection between the purported misrepresentations and plaintiff’s alleged injury.
The bank argued there were insufficient facts alleged to support the interference claims because: allegations in the second amended complaint showed it was actually the partnership’s conduct that prevented the bank from issuing a final approval; the bank’s conduct was privileged; plaintiff failed to plead facts to support the element of intent; and plaintiff failed to plead an independently wrongful act. Finally, the bank demurred to the specific performance and declaratory relief claims because it was not a party to either contract and plaintiff was not entitled to a declaration of rights concerning a past wrong.
C. Opposition to the Demurrers
Plaintiff opposed the bank’s demurrers to the second amended complaint. Plaintiff argued the negligence cause of action sufficiently alleged liability based on the breach of a duty of care. Plaintiff contended that the duty was owed because: the bank was required to process the application in light of Lehman’s guarantee that it would give its consent within 60 days; the bank promised to procure the consent in time to close escrow; and plaintiff paid $7,500 in application fees to the bank.
Plaintiff asserted that the fraud based causes of action were sufficient because the second amended complaint alleged that the bank fraudulently represented it was working diligently on the application and that approval would be granted in time to close escrow. According to plaintiff, the bank had a duty to disclose or not conceal the true fact that few, if any, assumption applications are actually approved within 60 days. Plaintiff asserted that the interference claims sufficiently alleged independent causation against the bank notwithstanding the partnership’s conduct. For example, it was alleged the bank delayed and failed to procure approval of the application inducing the partnership to cancel escrow and disrupted plaintiff’s contractual or economic relationship. Plaintiff further argued that the second amended complaint sufficiently alleged fraudulent conduct which is an independent act from the interference claim itself. Plaintiff contended the specific performance claim adequately alleged the bank was required to recommend and Lehman was obligated to consent to the sale of the property. Plaintiff argued the declaratory relief claim was sufficient because the law permits redundant or cumulative remedies and it is seeking a declaration of its own rights with regard to the partnership’s pending contract to sell the property to another buyer.
D. The Reply to the Opposition
In reply, the bank argued that the case was controlled by Hellbaum v. Lytton Savings and Loan (1969) 274 Cal.App.2d 456, 459-460, which held that a lender was not subject to tort liability for negligence in processing a buyer’s application to assume a loan. The bank conceded that Hellbaum had been overruled on a different point in Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 953. But the bank asserted Hellbaum remained controlling precedent for the issues raised by the second amended complaint. Furthermore, the bank argued that Hellbaum was consistent with Nymark v. Heart Federal Saving and Loan Assn. (1991) 231 Cal.App.3d 1089, 1095-1096, which held a lending institution owes no duty of care to a non-customer.
The bank asserted that there was no merit to the assertion it breached a duty of care by not approving the assumption of the loan in the 60-day time period. This was because the second amended complaint admitted the bank had recommended approval of the assumption of the loan on January 12, 2006. The bank also cited as grounds for sustaining the demurrers: plaintiff’s admission that the trust deed refers to Lehman’s approval; the trust deed makes no reference to any approval by the bank; and the operative complaint alleged the seller delayed providing documents to the bank which caused plaintiff’s inability to close the escrow in a timely manner.
E. The Judgment
The trial court sustained the demurrers to the second amended complaint without leave to amend. The trial court ruled the motion to strike was moot. Plaintiff filed this timely appeal from the judgment dismissing the second amended complaint as to the bank.
III. DISCUSSION
A. Standard of Review
The Supreme Court has defined our task as follows, “‘Our only task in reviewing a ruling on a demurrer is to determine whether the [operative] complaint states a cause of action.’” (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We assume the truth of the allegations in the second amended complaint which have been properly pleaded and give the complaint a reasonable interpretation by reading it as a whole and with all its parts in their context. (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People ex rel. Lungren v. Superior Court, supra, 14 Cal.4th at p. 300.) Our Supreme Court has held: “On appeal from a judgment of dismissal entered after a demurrer has been sustained without leave to amend, unless failure to grant leave to amend was an abuse of discretion, the appellate court must affirm the judgment if it is correct on any theory. [Citations.] If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 742; Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)
B. The Duty of Care
The bank denies it owed or breached a duty of care to plaintiff in processing the loan assumption documents under the circumstances alleged in the second amended complaint. As a general rule, “‘[T]he existence of a legal duty of care in a given factual situation presents a question of law which is to be determined by the courts alone.’ [Citation.]” (Century Surety Co. v. Crosby Ins., Inc. (2004) 124 Cal.App.4th 116, 127, quoting Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1682.) The second amended complaint contained several causes of action, each of which required plaintiff to establish the bank owed a duty of care to plaintiff. The claims in the second amended complaint for which a duty of care is required are: the seventh cause of action for fraudulent concealment for failing to disclose material facts to plaintiff (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 745; Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6 Cal.App.4th 603, 613); the eighth cause of action for negligent misrepresentation (Friedman v. Merck & Co. (2003) 107 Cal.App.4th 454, 477 [duty to communicate accurate information]; Nymark v. Heart Fed. Savings & Loan Assn., supra, 231 Cal.App.3d at p. 1095); [negligent misrepresentation about assumption of loan process]); the ninth cause of action for negligence (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 57 [duty to use due care is the threshold element of a negligence claim]; Hahn v. Mirda, supra, 147 Cal.App.4th at p. 745); and the twelfth cause of action for negligent interference with prospective advantage (J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803 [duty of care must be proved to establish negligent interference with economic relationship]; Stolz v. Wong Communications Ltd. (1994) 25 Cal.App.4th 1811, 1825 [tort of negligent interference with an economic relationship arises only when plaintiff establishes that defendant had a duty of care]; see also LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 348-349.) As it will be noted, under established California law, the bank owed plaintiff no duty of care under the circumstances of this case thereby requiring the demurrers be sustained without leave to amend to these causes of action.
In J’Aire Corp. v. Gregory, supra, 24 Cal.3d at page 803, the Supreme Court explained the duty concept as follows: “A duty of care may arise through statute or by contract. Alternatively, a duty may be premised upon the general character of the activity in which the defendant engaged, the relationship between the parties or even the interdependent nature of human society. [Citation.] Whether a duty is owed is simply a shorthand way of phrasing what is ‘“the essential question -- whether plaintiff’s interests are entitled to legal protection against the defendant’s conduct.”’ [Citations.]” (Accord Artigolio v. Corning Inc. (1998) 18 Cal.4th 604, 614; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) Resolution of the legal question of duty depends upon a judicial weighing of the policy considerations for and against the imposition of potential liability. (Goodman v. Kennedy, supra, 18 Cal.3d at p. 342; Moore v. Anderson Zeigler Disharoon Gallagher & Gray, P.C. (2003) 109 Cal.App.4th 1287, 1295.) Relying on Biakanja v. Irving (1958) 49 Cal.2d 647, 650, J’Aire Corp. identified six factors for determining whether a defendant owed a plaintiff a duty of care: “Those criteria are (1) the extent to which the transaction was intended to affect the plaintiff, (2) the fore see ability of harm to the plaintiff, (3) the degree of certainty that the plaintiff suffered injury, (4) the closeness of the connection between the defendant's conduct and the injury suffered, (5) the moral blame attached to the defendant’s conduct and (6) the policy of preventing future harm.” (J’Aire Corp. v. Gregory, supra, 24 Cal.3d at p. 804.) Stated another way: “‘The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of [six previously identified factors].’” (Goodman v. Kennedy, supra, 18 Cal.3d at p. 343 quoting Biakanja v. Irving, supra, 49 Cal.2d at p. 650; accord Lucas v. Hamm (1961) 56 Cal.2d 583, 589.)
In this case, plaintiff argues that the bank breached a duty of care by: failing to timely approve the loan application; failing to disclose the length of time it normally takes to process such applications; charging a $7,500 loan application fee; failing to approve the loan pursuant to the 60-day consent term contained in the trust deed between the partnership and Lehman; assuring plaintiff that it was working diligently to approve the application; falsely stating the application would be approved in time for plaintiff to perform its escrow obligations; and neglecting to disclose that other parties besides the bank were required to approve the loan. Assuming the truth of all well-pleaded factual allegations against the bank, we cannot conclude that plaintiff alleged sufficient facts to establish a duty of care.
Hellbaum v. Lytton Sav. & Loan Assn., supra, 274 Cal.App.2d at pages 459-460, specifically rejected the claim that a lender had a duty of care to a proposed borrower in processing an application to assume a loan. Hellbaum concluded: “[W]e find no support for appellant’s contention that the lender is subject to tort liability for negligence in the processing of the application for assumption by the proposed buyers. Respondent was under no duty to permit any assumption at all, and was not liable in tort for failure to act upon the application in any particular way.” (Id. at pp. 459-460.) Hellbaum is consistent with the general rule in California, “[A] financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan Assn., supra, 231 Cal.App.3d at p. 1096 [savings and loan association owed no duty of care to borrower in preparing a property appraisal to protect the lender in the usual course and scope of its loan processing procedures]; see also Wagner v. Benson (1980) 101 Cal.App.3d 27, 35.)
In order for liability to exist under these circumstances, the bank must have “actively participated” in the transaction such that the financing took on ramifications beyond the usual money lenders’ domain. (Wagner v. Benson, supra, 101 Cal.App.3d at pp. 34-35 [defendant was not under a duty to disclose information about the risk of investment prior to approving loan to inexperienced investors because the lender did not have extensive control and share of profits but rather participated only in protecting its security interest in the loan collateral].) But if a lender departs from the normal role of lending funds, for example, by exercising extensive control in the transaction or sharing in profits, such “active participation” may be sufficient to impose a duty of care. (Ibid.) However, the bank’s alleged participation in this case is that it reviewed documents for approval of the loan assumption. There are no allegations the bank acted in any capacity beyond the domain of a mere lender. There are no extraordinary or special facts showing the bank stepped out of its capacity in processing the loan application such that a duty of care was required. Therefore, the demurrers to the seventh, eighth, ninth, and twelfth causes of action were correctly sustained on the ground the bank owed no duty of care to plaintiff.
Two final notes are in order concerning the duty of care issue. To begin with, plaintiff argues that Hellbaum v. Lytton Sav. & Loan Assn., supra, 274 Cal.App.2d at pages 459-460 has been disapproved by our Supreme Court in Wellenkamp v. Bank of America, supra, 21 Cal.3d at page 953. However, Wellenkamp only disapproved the discussion in Hellbaum concerning due on sale clauses. Wellenkamp did not disapprove the analysis in Hellbaum concerning the duty of care owed by a lender to a borrower. Moreover, Hellbaum v. Lytton Sav. & Loan Assn., supra, 274 Cal.App.2d at pages 459-460 is consistent with other decisions which have applied a limited duty of care by a lender to a borrower including Nymark v. Heart Fed. Savings & Loan Assn., supra, 231 Cal.App.3d at pages 1096-1097 and Wagner v. Benson, supra, 101 Cal.App.3d at pages 34-35.
Finally, this case is materially different from Connor v. Great Western Savings & Loan Assn. (1968) 69 Cal.2d 850, 864. In Connor, the lender’s role in a real estate development was materially different from that present in the typical lending relationship. Our Supreme Court concluded that the lender, Great Western Savings & Loan, was responsible for its own negligence. (Id. at pp. 864-865.) As can be noted though, the facts in Connor are materially different from those on the present case: “Even though Great Western is not vicariously liable as a joint venturer for the negligence of Conejo, there remains the question of its liability for its own negligence. Great Western voluntarily undertook business relationships with South Gate and Conejo to develop the Weathersfield tract and to develop a market for the tract houses in which prospective buyers would be directed to Great Western for their financing. In undertaking these relationships, Great Western became much more than a lender content to lend money at interest on the security of real property. It became an active participant in a home construction enterprise. It had the right to exercise extensive control of the enterprise. Its financing, which made the enterprise possible, took on ramifications beyond the domain of the usual money lender. It received not only interest on its construction loans, but also substantial fees for making them, a 20 percent capital gain for ‘warehousing’ the land, and protection from loss of profits in the event individual home buyers sought permanent financing elsewhere.” (Id. at p. 864.)
C. Fraudulent Concealment
Plaintiff contends the bank is liable for fraudulent concealment. The Courts of Appeal have held: “[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, plaintiff must have sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp, supra, 6 Cal.App.4th at pp. 612-613; accord Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 131.) As noted, to state a fraudulent concealment claim, the bank must have been under a duty to disclose some fact to plaintiff. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 745; Marketing West, Inc. v. Sanyo Fisher (USA) Corp., supra, 6 Cal.App.4th at p. 613.)
However, the Courts of Appeal have explained: “Even where no duty to disclose would otherwise exist, ‘where one does speak he must speak the whole truth to the end that he does not conceal any facts which materially qualify those stated. [Citation.] One who is asked for or volunteers information must be truthful, and the telling of a half-truth calculated to deceive is fraud.’ [Citations.]” (Vega v. Jones, Day, Reavis & Pogue (2004) 121 Cal.App.4th 282, 292; Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 86.) No fiduciary relationship exists between a lender and a borrower: “The relationship between a lending institution and its borrower-client is not fiduciary in nature. [Citation.] A commercial lender is entitled to pursue its own economic interests in a loan transaction. [Citation.]” (Nymark v. Heart Fed. Savings & Loan Assn., supra, 231 Cal.App.3d at p. 1093 fn. 1; accord Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 981-982.) Where no fiduciary or confidential relationship exists, our Supreme Court has explained: “[A] cause of action for non-disclosure of material facts may arise in at least three instances: (1) the defendant makes representations but does not disclose facts which materially qualify the facts disclosed, or which render his disclosure likely to mislead; (2) the facts are known or accessible only to defendant, and defendant knows they are not known to or reasonably discoverable by the plaintiff; (3) the defendant actively conceals discovery from the plaintiff.” (Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 294, fns. omitted; accord Linear Technology Corp. v. Applied Materials, Inc., supra, 152 Cal.App.4th at p. 132.)
The fraudulent concealment claim alleged: Lehman represented in the trust deed that it would consent to the seller’s sale of the property within 60 days notice provided certain conditions were met including a prospective buyer’s assumption of the loan; plaintiff was qualified to assume the loan; all other conditions required to consent to the sale were met; the bank orally assured plaintiff that the processing was proceeding diligently; bank staff stated the application would be approved in time for plaintiff to perform its escrow obligations prior to the closing date; the bank and Lehman failed to disclose that very few, if any, applications to assume loans were approved within 60 days; most applications are approved between 60 to 90 days; and the bank and Lehman did not approve plaintiff’s assumption of the loan until well over 100 days from the date the application was submitted and 15 days after the escrow closing date.
The bank’s alleged misconduct is based on a misrepresentation as to the length of time it would take to process the assumption application based on past practices. Plaintiff alleged that the bank had a duty to disclose the truth about the actual length of time it took to process such applications. We accept for purposes of our discussion, without deciding, that the trust deed must be interpreted to require that Lehman approve the loan within 60 days under certain conditions. However, even under that analysis, the second amended complaint does not allege sufficient facts to show: the bank made a material representation about the length of time of the application process; plaintiff justifiably relied on any representation as to the loan process; or the bank’s conduct resulted in any damages to plaintiff. This is because the second amended complaint also alleged: on January 12, 2006, the bank recommended that plaintiff be permitted to assume the loan; on January 19, 2006, plaintiff learned that final approval of the loan application had to be made by CW Capital and LNR Partners, Inc., who were special servicers of the loan; and the partnership delayed the process of obtaining the final approvals after the bank recommended approval. Thus, the allegation that the bank should have disclosed the actual length of time it had taken for Lehman to obtain final approval in the past is immaterial under the circumstances of this case. Furthermore, the second amended complaint shows that the past practices were immaterial to this case because the bank actually recommended approval within the 60-day period. For similar reasons, the allegations establish that plaintiff could neither have justifiably nor detrimentally relied upon the bank’s representation as to the approval process being completed when the partnership was actively sabotaging the process. In any event, the theory that the bank should be held liable because other entities had final approval and other parties and in particular, the partnership, refused to review or sign the documents needed to finalize the transaction, has no merit. There is no viable fraudulent concealment claim alleged against the bank.
D. Negligent Misrepresentation
In addition, plaintiff has failed to allege sufficient facts to establish a cause of action for negligent misrepresentation. Negligent misrepresentation is a species of the tort of deceit, which requires misrepresentation, justifiable reliance, and damage. (Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239, fn. 4; Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 407; Melican v. Regents of Universality of California (2007) 151 Cal.App.4th 168, 181-182.) The elements of a claim for negligent misrepresentation are the same as for fraud except there is no requirement of intent to induce reliance. Plaintiff was required to allege that a statement was made without any reasonable ground for believing it to be true. (Bily v. Arthur Young & Co., supra, 3 Cal.4th at pp. 407-408; County of Kern v. Sparks (2007) 149 Cal.App.4th 11, 20.)
Plaintiff’s theory of liability for negligent misrepresentation is that the bank misrepresented it was diligently working on the application and loan approval would be granted prior to the close of escrow. In fact, according to plaintiff, the bank failed to disclose or concealed the fact that few, if any, assumption applications were actually approved within 60 days. To begin with, the inability to allege a duty of care owed by the bank to plaintiff is fatal to the cause of action for negligent misrepresentation. (Friedman v. Merck & Co., supra, 107 Cal.App.4th at p. 477 [a plaintiff is required to allege facts that defendant owed a duty to communicate accurate information]; Nymark v. Heart Fed. Savings & Loan Assn., supra, 231 Cal.App.3d at p. 1095 [negligent misrepresentation about assumption of loan process].) Moreover, the alleged misrepresentation that it was working diligently on the application or made representations about the timely completion of the process within 60 days is immaterial. The second amended complaint admitted the bank recommended approval at least 19 days before the escrow was scheduled to close. This was also done allegedly after the partnership caused excessive delays in producing necessary documents and was 51 days after the parties entered into the escrow. Furthermore, the second amended complaint alleged that the final approval was to be made by Lehman, CW Capital, and LNR and not by the bank.
E. The Remaining Claims
1. Intentional interference with contract and advantage
The elements of the causes of action for intentional interference with contractual relations (tenth) and prospective advantage (eleventh) are: a valid contract or prospective relationship; the defendant’s knowledge of the contract; the defendant’s intentional acts designed to disrupt that relationship; actual disruption of the contract or prospective advantage; and damage. (Reeves v. Hanlon (2004) 33 Cal.4th 1140, 1152; Korea Supply Company v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1156-1157; Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at p. 55; Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 514; Youst v. Longo (1987) 43 Cal.3d 64, 71, fn. 6; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585-586.) Our Supreme Court has held: “[A] plaintiff seeking to recover for an alleged interference with prospective contractual or economic relations must plead and prove as part of its case-in-chief that the defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in conduct that was wrongful by some legal measure other than the fact of interference itself.” (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393; see also Westside Center Associates v. Safeway Stores 23, Inc. (1996) 42 Cal.App.4th 507, 521, fn. 16.) It is sufficient if the plaintiff pleads, “[T]he defendant’s knowledge that the interference was certain or substantially certain to occur as a result of his or her action.” (Reeves v. Hanlon, supra, 33 Cal.4th at p. 1148; Quelimane Co. v. Stewart Title Guaranty Co., supra, 19 Cal.4th at p. 56.)
Plaintiff’s theory is the bank substantially delayed processing the loan application. These delays interfered with plaintiff’s ability to purchase the property. The bank has correctly argued these allegations were insufficient to state a cause of action for intentional interference with contract or economic advantage. This is because the second amended complaint alleged: the partnership did not give the bank the necessary documents to obtain loan approval until after November 22, 2005; the bank, in fact, recommended approval of assumption of the loan on January 12, 2006, which was approximately 51 days after the loan documents were submitted to it; the bank recommended approval of the loan 19 days before the escrow was scheduled to close which was on January 31, 2006; Lehman and CW Capital and LNR were the parties required to give final approval; and the partnership delayed submitting documents for the final approval.
Moreover, the second amended complaint alleged plaintiff had the option of electing defeasance. Thus, plaintiff could have performed the purchase agreement if it had sought alternative financing. The second amended complaint simply does not allege any wrongful conduct on the part of the bank in the disruption of the purchase agreement. For similar reasons, the second amended complaint does not allege sufficient facts to establish that the bank actually disrupted the contract or economic advantage.
2. Specific Performance and Declaratory Relief
In the opening brief, plaintiff argued the bank was a proper party to the specific performance claim and the second amended complaint sufficiently alleged a right to declaratory relief. However, in the reply brief, plaintiff argued the claims have been rendered moot by the dismissal with prejudice of defendants, GLP and Mr. Anagnos. We, therefore, do not address whether the claims were sufficiently pled as they are now moot. (Doe v. Saenz (2006) 140 Cal.App.4th 960, 999; Davis v. Newmar Corp. (2006) 136 Cal.App.4th 275, 279.)
F. Leave to Amend
Plaintiff argued in the opening brief that the trial court abused its discretion in denying leave to amend. In the reply brief, plaintiff asserts that the bank’s failure to address the abuse of discretion issue in the respondent’s brief requires that the judgment be reversed. We disagree. Plaintiff has the burden of showing that the trial court abused its discretion in denying leave to amend. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Goodman v. Kennedy, supra, 18 Cal.3d at p. 349.) Plaintiff has not shown there was a reasonable possibility that the defects in the second amended complaint could be cured by amendment; thus, the trial court did not abuse its discretion in denying leave to amend. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 810; Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.)
IV. DISPOSITION
The judgment is affirmed. Defendant, Wachovia Bank National Association, is awarded is costs on appeal from plaintiff, SEST Consulting, Inc.
We concur: ARMSTRONG, J., KRIEGLER, J.