Filed 9/15/20 Camargo v. Bank of America CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

PEDRO GONZALEZ CAMARGO,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A.,

Defendant and Respondent.

B294466

(Los Angeles County

Super. Ct. No. BC646076)

APPEAL from a judgment of the Superior Court of Los Angeles County. David Sotelo, Judge. Affirmed.

Frank A. Weiser for Plaintiff and Appellant.

McGuirewoods and Leslie M. Werlin for Defendant and Respondent.

_____________________________

Appellant Pedro Gonzalez Camargo obtained a loan from respondent Bank of America, N.A. (BofA) secured by a deed of trust encumbering his property. Camargo fell behind on his loan payments, and BofA initiated foreclosure proceedings. Camargo then filed a complaint against BofA, alleging it had engaged in “dual tracking.” The trial court sustained the demurrer without leave to amend and entered judgment in favor of BofA. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

According to Camargo’s operative first amended complaint (FAC), he borrowed $150,000 from BofA to purchase property in 2006. At the same time, he executed a deed of trust in favor of BofA securing the property under the loan agreement. In 2014, he began experiencing severe financial and health problems, and fell behind on the loan. Two years later, BofA placed the property in foreclosure and recorded a notice of default. Camargo subsequently contacted BofA and requested a loan modification. BofA refused the request and refused to stay the foreclosure pending a final decision on his modification application.

The FAC asserted causes of action for: (1) violation of Business and Professions Code section 17200 (UCL); (2) violation of “AB 278/SB900”; (3) wrongful foreclosure; (4) fraud; and (5) declaratory and injunctive relief. Each cause of action was premised on the allegation that BofA had engaged in “dual tracking,” which generally refers to the practice of a bank foreclosing on a loan while negotiating with the borrower to avoid foreclosure. In relief, Camargo sought damages of not less than $10 million, an injunction preventing the sale of the property, and rescission of any sale that may occur.

BofA demurred on the basis that the FAC was “globally defective” because it failed to allege conduct that would constitute dual tracking. Among other things, BofA argued there was no dual tracking because Camargo failed to allege he submitted a complete loan modification application before the notice of default was recorded.

In his opposition, Camargo did not address BofA’s arguments. Instead, he simply quoted and summarized authority generally related to the practice of dual tracking, and then concluded the FAC “sufficiently pleads that plaintiff has lost a loan modification resulting in the foreclosure of his home” due to “dual tacking.” Camargo requested leave to amend the FAC to address his fraud and equitable relief causes of action, and to include a “separate” cause of action for wrongful foreclosure. He did not specify what amendments he would make; nor did he explain how the new wrongful foreclosure cause of action would differ from the one in the FAC.

The trial court sustained the demurrer without leave to amend on the basis that Camargo failed to allege BofA engaged in dual tracking. The court entered judgment in favor of BofA, and Camargo appealed.

DISCUSSION

We review the sustaining of a demurrer de novo. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83.) We must assume the truth of well-pleaded facts and facts that can be reasonably inferred from those expressly pleaded. (Ibid.) “To show entitlement to reversal the [appellant] must show that the complaint alleged facts sufficient to establish every element of each cause of action.” (Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 122.)

Although our review of a trial court’s demurrer ruling is de novo, an appellant cannot simply “tender the complaint and hope we can discern a cause of action. It is [the appellant’s] burden to show either that the demurrer was sustained erroneously or that the trial court’s denial of leave to amend was an abuse of discretion.” (Keyes v. Bowen (2010) 189 Cal.App.4th 647, 655.) The appellant must do this by “presenting legal authority on each point made and factual analysis, supported by appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited.” (Ibid.) “In addition, citing cases without any discussion of their application to the present case results in forfeiture.” (Martine v. Heavenly Valley Limited Partnership (2018) 27 Cal.App.5th 715, 728.)

In his opening brief on appeal, Camargo does not meaningfully address the issues raised in the demurrer or the substance of the trial court’s order. Instead, like his opposition below, he simply quotes and summarizes authority somewhat related to his claims, and then concludes, without providing any analysis, that his FAC pleaded sufficient facts. He makes no effort, whatsoever, to explain how the FAC alleged facts sufficient to establish every element of each cause of action. His failure to do so results in forfeiture, and we may reject his appeal on that basis alone. (Keyes v. Bowen, supra, 189 Cal.App.4th at p. 655; Martine v. Heavenly Valley Limited Partnership, supra, 27 Cal.App.5th at p. 728.)

Even if we were to overlook the forfeiture, we would reject Camargo’s appeal on the merits. Each of his claims arose out of, and was dependent on, the allegation that BofA engaged in dual tracking. The Legislature prohibited the practice of dual tracking when it enacted Assembly Bill No. 278 (Reg. Sess. 2011–2012) and Senate Bill No. 900 (Reg. Sess. 2011–2012). Those bills added subdivision (c) to section 2923.6 of the Civil Code (section 2923.6(c)), which provided: “If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.” (Former § 2923.6(c).) An application is considered “complete” when the “borrower has supplied the mortgage servicer with all documents required by the mortgage servicer within the reasonable timeframes specified by the mortgage servicer.” (Former § 2923.6, subd. (h).)

Here, the FAC did not adequately allege that BofA engaged in dual tracking under section 2923.6(c). The only restricted foreclosure activity identified in the FAC was the recording of the notice of default, which Camargo alleged occurred before he requested a loan modification. The dual tracking restrictions found in section 2923.6(c), however, are not triggered until the borrower submits a complete loan modification application. Because BofA recorded the notice of default before Camargo requested a loan modification, let alone submitted a “complete application,” it did not violate section 2923.6(c). Camargo’s failure to sufficiently allege that BofA engaged in dual tracking was fatal to each of his claims. The trial court, therefore, properly sustained the demurrer.

We also reject Camargo’s cursory claim that the trial court erred in failing to grant leave to amend. “When the court sustains a demurrer 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.” [Citations.]’ [Citation.]” (Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th 299, 304.) Here, Camargo makes no attempt to explain how he could amend the FAC to resolve the issues identified above. Accordingly, he has not met his burden of establishing error. (See Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1163 [appellant “ ‘bears the burden of establishing that it could have amended the complaint to cure the defect’ ”].)

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal.

BIGELOW, P. J.

We Concur:

STRATTON, J.

WILEY, J.