Filed 4/14/20 Hernandez v. Bank of America, N.A. CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

RAUL HERNANDEZ,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A.,

Defendant and Respondent.

B297986

(Los Angeles County

Super. Ct. No. BC707554)

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael L. Stern, Judge. Affirmed.

Law Office of Sassoon Sales and Sassoon Sales for Plaintiff and Appellant.

McGuireWoods, Leslie M. Werlin and Piper A. Waldron, for Defendant and Respondent.

______________________________

Plaintiff and appellant Raul Hernandez (Hernandez) appeals from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer to Hernandez’s complaint filed by defendant and respondent Bank of America, N.A. (Bank of America).

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to the complaint, in 2009, Hernandez obtained a home mortgage loan from Bank of America regarding a home in Van Nuys. In 2015, Hernandez obtained a homeowner’s equity line of credit (HELOC) against said home. In 2016, “at a time when the mortgage payments on the original mortgage loan were up to date, [Hernandez] sought a loan modification from Bank of America. This request for loan modification included the HELOC as well.” “During these modification negotiations, [Hernandez] failed to make the necessary payments on the HELOC because the amount owed at the time of approximately $36,000 was being included in the negotiations with Bank of America regarding modification of the first mortgage loan and the HELOC jointly.” Although not alleged, it seems that Bank of America then commenced foreclosure proceedings against Hernandez for his failure to make the payments on the HELOC.

Hernandez further alleged that Bank of America told him “that the foreclosure proceedings were in error and not to be concerned about them because the situation would be rectified in the loan modification. Therefore, [Hernandez] did not take steps to bring the HELOC current and avoid foreclosure.”

Bank of America subsequently foreclosed on the HELOC and took title to Hernandez’s home.

Based upon these allegations, Hernandez alleged four causes of action: breach of statutory duties, conversion, slander of title, and fraud.

Bank of America demurred to the complaint. Regarding the first cause of action for breach of statutory duties, Bank of America argued that the complaint failed to allege what statute it purportedly breached. Regarding the fraud cause of action, Bank of America asserted that it was not pled with the requisite specificity.

The appellant’s appendix does not indicate whether Hernandez opposed Bank of America’s demurrer.

On January 18, 2019, the trial court sustained Bank of America’s demurrer without leave to amend. A judgment of dismissal was entered, and this timely appeal ensued.

DISCUSSION

I. Standard of review

“Our Supreme Court has set forth the standard of review for ruling on a demurrer dismissal as follows: ‘On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed “if any one of the several grounds of demurrer is well taken. [Citations.]” [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. [Citation.]’ [Citations.]” (Payne v. National Collection Systems, Inc. (2001) 91 Cal.App.4th 1037, 1043–1044.)

II. Analysis

The trial court properly sustained Bank of America’s demurrer without leave to amend.

In the first cause of action, Hernandez alleges breach of statutory duties. But, he does not allege which statutes Bank of America allegedly violated. For this reason alone, the trial court properly sustained Bank of America’s demurrer. (Code Civ. Proc., § 430.10, subds. (e)-(f).)

On appeal, Hernandez does not seem to dispute the trial court’s order sustaining the demurrer. Rather, he appears only to challenge that portion of the trial court’s order denying him leave to amend. He writes: “Admittedly, the complaint herein does not specify in detail the violations of [the federal Home Affordable Modification Program (HAMP)] but its import is clear—that Bank of America foreclosed during modification communications in violation of HAMP. Accordingly, [Hernandez] requests leave from this court to amend his complaint and allege with specificity the violations of HAMP that occurred in his loan modification communications.”

The problem for Hernandez is that he has not shown that he can pursue a claim for violation of HAMP. What are the elements of such a claim? Aside from his failure to identify the elements of this purported cause of action, he has not shown that he can allege any elements of alleged statutory violations with specificity. (See, e.g., Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [noting the general rule that statutory causes of action must be pleaded with particularity].) And, can Hernandez even pursue a private right of action under HAMP? (See, e.g., Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282, fn. 17.) In light of these unanswered questions, there are no grounds to disturb the trial court’s order.

For that reason, Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 55 (Lueras), does not compel a different result. In Lueras, the appellate court granted the plaintiff leave to amend because there was a reasonable possibility that the pleading defects could be cured to state a viable cause of action. (Id. at p. 69.) As set forth above, that is not the case here.

Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299 also does not aid Hernandez on appeal. In that case, the plaintiff alleged claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful foreclosure. (Id. at p. 304.) He did not allege a claim for statutory violations and/or seek damages for alleged HAMP violations. Hernandez’s theory is therefore different; he seeks damages for alleged statutory violations. And that claim fails for the reasons noted above. Importantly, there is no suggestion in Hernandez’s appellate brief that he intends to pursue alternate causes of action.

In the fourth cause of action, Hernandez alleges fraud. “The elements of fraud are a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting damage. [Citation.] Fraud causes of action must be pled with specificity in order to give notice to the defendant and to furnish him or her with definite charges. [Citation.] In drafting the complaint, “‘(a) [g]eneral pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect.” [Citations.]’ [Citation.]” (Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381.)

“The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, 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.)

Here, the complaint fails to meet these pleading requirements. The complaint does not allege any of the elements of fraud, let alone with any specificity. Who told Hernandez that the foreclosure proceedings were in error? Did that person have the authority to make a representation on Bank of America’s behalf? When was that representation made? Was it oral or in writing? Because these questions are unanswered by the complaint, the trial court rightly sustained the demurrer.

Leave to amend was properly denied as well. There is no indication in the appellant’s appendix or in his opening appellate brief that Hernandez can amend his complaint to include these requisite pleading details. (Rosen v. St. Joseph Hospital of Orange County (2011) 193 Cal.App.4th 453, 458 [“‘Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend’”].)

DISPOSITION

The judgment is affirmed. Bank of America is entitled to costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

LUI

_______________________________, J.

HOFFSTADT