Ruling

Plaintiff Laila Malek Motion for Reconsideration is DENIED.

Reason

First, the court recites below a brief history of the court’s rulings:

On September 9, 2013, Plaintiff filed a Third Amended Complaint, which asserted:

(1) Fraud (Intentional Misrepresentation);

(2) Fraud (Intentional Concealment);

(3) Negligent Misrepresentation; and

(4) Breach of Oral and Written Contract and Implied Covenant of Good Faith and Fair Dealing.

Defendant demurred to the Third Amended Complaint and, on November 21, 2013, the Court SUSTAINED the Demurrer, with final leave to amend, as to the First through Third Causes of Action. The Court SUSTAINED the Demurrer, without leave to amend, as to the Fourth Cause of Action.

In making its ruling the court warned plaintiff as follows:

“Initially the court points out that procedurally plaintiff’s response is untimely. This is significant because this has been the pattern of plaintiff’s counsel Ms. Molloy who has consistently filed late Oppositions to Defendant’s prior Demurrers. Despite clear indications from the court and the plain language in CRC3.1300, yet again Plaintiff’s files late Opposition November 15, 2013. Once again forcing defendants to guess at how the court is to treat this repeated violation of C.C.P. §1005 and Court rules. However, although this court did not consider plaintiff’s late opposition nevertheless at least as to the 1st thru 3rd claims for fraud the court give plaintiff one final opportunity to state actionable fraud.”

The court concluded that as to the Contract claim plaintiff failed to set forth a sustainable cause of action. It was sustained without leave to amend.

As to this ruling the court explained that “Plaintiff has not and will be unable to given the admitted facts. Similarly, while Plaintiff offers Trial Plan Payment, as Exhibit “A” to the TAC, it is not signed or “memorialized” by Wells Fargo, the statute of frauds applies.”

The court also pointed out plaintiff’s allegation:

“The legal doctrines of inter alia equitable estoppel, partial performance, etc. except the agreement from any statute of fraud claims and render the same enforceable. Equitable estoppel is applied here because Defendant acted or made the foregoing representation that led Plaintiff to believe in the enforceability of the contract…” (¶63) is at best a conclusion and at worst argument, evidenced by the fact that plaintiff offers no legal authority to frame this alleged equity as a cogent exception to the express protection afforded by the statute of frauds.”

Now plaintiff brings this motion for reconsideration requesting the court to vacate its ruling that as to the 4th Cause of action that the court changes from without leave to amend to amend. This request is in effect to allow plaintiff to allege different facts rather than new facts to support a liability arising from contract. While plaintiff is permitted to craft reconsideration in this manner: “ [W]e hold that for purposes of Code of Civil Procedure section 1008, subdivision (a), a demurrer is also an ‘application for an order’ and will support an application to reconsider the matter when supported by a proposed pleading containing new allegations not previously included by the pleader.” Rains v. Superior Court (1984) 150 Cal.App.3d 933,943. It is clear to the court that plaintiff’s “different facts” are not materially different and more importantly why they were not alleged in the 3rd amended complaint is not satisfactorily explained by plaintiff, a necessary requirement allowing the court to reconsider.

The Defective Affidavit of Plaintiff

C.C.P. §1008(a) states: “The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

Ms. Molloy (Counsel for Plaintiff) failed to submit a Declaration with her initial motion. Additionally, the Declaration submitted on January 14, 2014, neither does the declaration filed with the reply with the above stated requirement. Why?

While the court may review “different facts as opposed to “new” plaintiff must show “[f]acts of which a party seeking reconsideration was aware at the time of the original ruling are not “new or different facts,” as would support a trial court’s grant of reconsideration…To merit reconsideration, a party must also provide a satisfactory reasons why it was unable to present its ‘new’ evidence at the original hearing.” People v. Safety Nat. Cas. Corp. (2010) 186 Cal.App.4th 959, Id. at 974.

With this mandate the court turns to what explanation plaintiff offers:

“[T]here was a temporary modification, which Plaintiff complied with, and…[this] modification was binding even if Defendant did not sign or provide Plaintiff with a signed copy.” (Motion: 5:8-11);

“[T]he temporary modification would be made permanent and…all [Plaintiff] needed to do was to continue making payments on the temporary loan modification until the permanent modification came through and was finalized.” (Motion: 5:13-16);

“[T]o qualify for her loan modification, Defendant had requested Plaintiff’s bank statements, a list of expenses, and that Plaintiff attend finance counseling…Plaintiff complied with all of Defendant’s requests in reliance that Defendant would modify her home loan.” (Motion: 5:18-21); and

“[Plaintiff] then received a temporary loan modification and was promised by Defendant that she would receive a permanent modification if all her payments were made in time. Plaintiff…made all her payments on time with a cashier check or money order with the correct amount and…after each payment, she checked to assure that they were indeed received.” (Motion: 5:21-25).

Now comparing these “new” facts to Plaintiff’s Third Amended Complaint which alleged that: (1) “in exchange for Plaintiff’s payments, Defendant promised to complete the paperwork for the final loan modification.” (¶63 of TAC); (2) Plaintiff made the required payments and fully performed. (¶63 of TAC); and (3) Defendant indicated it received all required paperwork to complete a permanent modification. (¶63 of TAC). Except for style these allegation are substantially similar to the “new allegations” More importantly how do these “new” facts alter the legal effect of the prior to now the latter. They do not because apart from being decided prior to her opposition to the third amended complaint Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, Chavez was published on September 13, 2013 it is factually distinguishable from the instant case. The Court in Chavez stated:

In deciding this issue, however, we must look at the Trial Period Plan and the Modification Agreement together. As we discussed, Defendants’ conduct of sending Chavez the Modification Agreement, even though they had not sent her a signed copy of the Trial Period Plan suggests Defendants concluded that Chavez qualified for a permanent loan modification. Chavez then detrimentally changed her position by completing and signing the Modification Agreement. The Modification Agreement provided that Chavez agreed that unpaid and deferred interest, fees, escrow advances and other costs would be added to the outstanding principal balance and would accrue interest and that interest would accrue on the unpaid interest “which would not happen without this Agreement.” Thus, Chavez incurred additional costs and fees in excess of the amounts she had been obligated to pay under her original loan agreement or the Trial Period Plan. This detrimental change in position is sufficient to allege that Defendants should be estopped from asserting the statute of frauds. Chavez, at 1061.

Here, nowhere in the “new allegations” or the old “allegations” is plaintiff alleging that Defendant sent Plaintiff a permanent loan modification or acted in any other way to demonstrate intent to be bound by the Trial Period Plan. Relying on Chavez, is misplaced. Plaintiff is merely seeking to recast her temporary promise to one without explaining how it morphs’s to permanency. Assuming by some magic the allegations are construed as permanent this does not alter the fact that plaintiff offers no explanation why these “new” facts were not part of her prior complaints? Instead she merely asserts that because I put them in the 4th Cause of action they are “new”. The court rejects plaintiff’s hubris and logic that simply because I say so it must be so. No plaintiff to qualify for reconsideration must “satisfactorily explain” why plaintiff by the 3rd amended complaint for example did not know “the true time of the sale” ¶ 30. Or that, “Wells Fargo repeatedly advised her it would cancel the sale”¶30. The sale was June of 2010. Moreover plaintiff’s declaration is silent on how plaintiff did not know she could

assert rights after the saleӦ36.

In sum plaintiff is merely asking for another bite of the apple without first explaining why in the prior 3 bites she could not have offered these “new or different facts”. In addition, plaintiff has wholly failed to justify that Chavez is new law. It was decided at the time of plaintiff’s opposition yet plaintiff failed to incorporate it in her written papers likely because they were habitually late.

Finally, plaintiff has failed to demonstrate how these factual allegations substantially differ from facts included in the Third Amended Complaint. They are not new or legally different.