2010-00082323-CU-FR

George Fogy vs. Chase Home Finance

Nature of Proceeding:       Hearing on Demurrer to Fifth Amended Complaint

Filed By:    Clark, Jacob M.

Defendant JPMorgan Chase NA’s demurrer to Plaintiff George Fogy’s fifth amended
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complaint (“5   AC”) is sustained without leave to amend.

Defendant’s Requests for Judicial Notice are granted. (See Poseidon Devel., Inc. v.
Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also
Startford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land
documents, not contracts, are the subject of judicial notice
on demurrer].) The court, however, does not accept the truth of any facts within the
judicially noticed documents except to the extent such facts are beyond reasonable
dispute. (See Poseidon Devel., 152 Cal.App.4th at 1117-18.) see also Fontenot v.
Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265
(“[A] court may take judicial notice of the fact of a document’s recordation, the date the
document was recorded and executed, the parties to the transaction reflected in the
recorded document, and the document’s legally operative language, assuming there is
no genuine dispute regarding the document’s
authenticity.”)

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In this foreclosure action, the remaining cause of action in the 5   AC is the first cause
of action for promissory estoppel.

Importantly, in sustaining the previous demurrer to the promissory estoppel cause of
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action in the 4   AC, the Court found that Plaintiff’s allegations that an unnamed Chase
employee told him that as long as he made the Trial Plan Agreement Payments he
would be given a loan modification were sham allegations and were disregarded.  The
Court, however, gave leave to amend with respect to the promissory estoppel cause of
action because Plaintiff “alleged oral promises of bank employees not to foreclose
upon the payment of certain sums by plaintiff.”  (March 11, 2014 MO.)  The Court
granted leave to amend only “to allow plaintiff to attempt to plead detrimental reliance
on a theory other than based on a Trial Payment Plan.”  (Id.)  He has failed to cure this
deficiency.

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In the 5   AC, Plaintiff again seeks to assert a promissory estoppel claim based upon a
TPP, despite the ruling finding that the TPP allegations were sham allegations.
Indeed, as the Court noted in the previous ruling, Plaintiff had not adequately
explained the inconsistencies regarding the TPP and his TPP allegations were
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disregarded.  He now attempts to explain those inconsistencies in the 5   AC, for
example the inconsistencies regarding when he first contacted Defendant to discuss a
loan modification, by alleging that “[d]ocuments have since been produced by
Defendant which reveal the actual timeline of the events relevant to this matter” and
that his prior inconsistent allegations regarding the TPP were the product of mistake
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and should be disregarded.  (5   AC ¶¶ 13, 16, 17, 43.)

Defendant is correct that these explanations and the allegations which have previously
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been rejected in the Court’s prior ruling on the demurrer to the 4   AC are sham
allegations.  Indeed, the time to explain the inconsistent allegations has passed.
Plaintiff’s attempt to explain away his inconsistent allegations which the Court already
determined to violate the sham pleading doctrine itself violates the sham pleading
doctrine because the allegations attempting to explain the inconsistent allegations are
essentially an attempt to add new inconsistent allegations to avoid the previous
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defects in the 4   AC.  That is, Plaintiff is adding inconsistent allegations regarding his
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“discovery” of documents to avoid a finding that his allegations in the 4   AC based
upon the TPP were sham allegations.  In any event, the attempted explanation is
entirely insufficient as there is no description regarding the documents he received
which reveal the “actual timeline of event.”  In opposition he attempts to describe the
newly discovered documents as the documents contained in Defendant’s request for
judicial notice in support on the instant demurrer.  But these documents were the same
documents included in Defendant’s request for judicial notice to the fourth amended
complaint, the motion for summary judgment as to the second amended complaint and
the demurrer to the first amended complaint.  The Court therefore disregards the
allegations attempting to explain away the TPP allegations which the Court has
already determined to violate the sham pleading doctrine.  (Deveny v. Entropin, Inc.
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(2006) 139 Cal.App.4   408, 425-426.)  On this basis alone, the demurrer to the 5                             AC
is sustained.

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In any event, the promissory estoppel claim in the 5   AC is still premised upon
payments made pursuant to the TPP, despite that fact that the Court only granted
leave to allege a theory of detrimental reliance on a theory other than that based upon
the TPP.  Indeed, he still alleges that he made three payments requested by
Defendant in the amount of $2,671 to obtain a loan modification and that such
payments were not mortgage payments as they were much higher than the usual
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$1,936.56 monthly mortgage payments.  (5   AC ¶ 19)  In the 4   AC, he alleged that
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these payments were made pursuant to a TPP agreement.  (4   AC ¶ 14.)  The sum
and substance of the promissory estoppel claim is still a theory of detrimental reliance
based upon a TPP.  Indeed, his opposition admits as much as he argues that his
allegations show that he was promised a loan modification and that he “had a good
faith belief that he was approved after he made three successive payments of
$2,671.00 in keeping with the terms of his TPP with Defendant.”  (Oppo. 6:3-5.)
Plaintiff was only given leave to amend to allege a theory of detrimental reliance on a
theory other than that based on a TPP.  He failed to do so and the promissory estoppel
claim based upon making payments pursuant to a TPP have already been determined
to be insufficient by the Court for the reasons stated in the Court’s March 11, 2014,
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ruling on the demurrer to the 4   AC.

Given the fact that the Court has found that Plaintiff’s promissory estoppel claim is
precluded by the sham doctrine and that he failed in any way to amend the 5th AC to
allege a theory of detrimental reliance on a theory other than that based on a TPP, the
Court need not consider the additional argument that the promissory estoppel claim
fails on its merits because Plaintiff failed to allege a clear and unambiguous promises
and/or detrimental reliance.  Indeed, the Court has already determined as much in its
ruling on the demurrer to the 4th AC.

The Court also notes that Plaintiff in opposition raises arguments regarding the Notice
of Default and Notice of Sale violating Civil Code section 2923.5.  This argument was
previously rejected by the Court in ruling on the demurrer to the fourth amended
complaint.

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The demurrer is sustained without leave to amend.  The 5   AC was Plaintiff’s sixth
complaint filed in this action.  There is no reasonable possibility that Plaintiff would be
able to state a cause of action if given further leave to amend.

Defendant’s counsel shall prepare a formal order for the Court’s signature consistent
with the above pursuant to CRC 3.1312 and a judgment of dismissal.