Filed 10/7/19 Velez v. JPMorgan Chase Bank CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

—-

EDMUNDO VELEZ,

Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A.,

Defendant and Respondent.

C084147

(Super. Ct. No. 34-2013-00149821-CU-OR-GDS)

Edmundo Velez sued JPMorgan Chase Bank, N.A. (Chase) for fraud and negligent misrepresentation in connection with his loan modification application. The trial court granted Chase’s motion for summary judgment, mainly because there was no evidence to support the misrepresentations alleged in Velez’s second amended complaint.

Velez now contends (1) there are disputed issues of material fact, (2) Chase failed to establish there was no evidence of misrepresentations, (3) there was evidence of reasonable reliance on misrepresentations, and (4) there was evidence of actionable damages. We conclude (1) there are no remaining triable, material issues of fact, (2) there is no evidence to support the allegations of misrepresentation in the second amended complaint, (3) there is no evidence of reasonable reliance on the pleaded misrepresentations, and (4) we need not consider whether there was evidence of actionable damages because other elements of the fraud and negligent misrepresentation causes of action are absent.

STANDARD OF REVIEW

“On review of a summary judgment, we ‘examine the record de novo and independently determine whether [the] decision is correct. [Citation.]’ [Citation.] In undertaking our independent review of the evidence submitted, we apply ‘ “the same three-step process required of the trial court: First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claims and justify a judgment in movant’s favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]” ’ [Citation.]” (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 392.)

The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues, while the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) Thus, the allegations of the complaint frame the material issues against which the evidence concerning the motion for summary judgment is judged. (Ibid.)

BACKGROUND

In the operative second amended complaint, Velez alleged three causes of action: (1) violation of the California Homeowner Bill of Rights, (2) negligent misrepresentation, and (3) fraud.

In a section titled “GENERAL ALLEGATIONS,” Velez alleged the following:

He submitted several complete loan modification applications to Chase, but those applications were either misplaced or lost. Velez went to a Chase branch and, with the help of a Chase representative, submitted another loan modification application. The “Chase representative with the authority to speak on Chase’s behalf represented to [Velez] that the application was complete and that he would hear back within the next thirty days as to whether he would be approved for a loan modification.” Meanwhile, Chase recorded a notice of trustee’s sale regarding Velez’s residence. Chase requested further documentation on the loan modification application, which Velez provided. After Velez filed this action, Chase cancelled the pending trustee’s sale.

In the first cause of action for violation of the California Homeowner Bill of Rights, Velez alleged that Chase impermissibly filed a notice of trustee’s sale while the loan was being reviewed for modification. In response to Chase’s motion for judgment on the pleadings on this cause of action, Velez voluntarily dismissed the cause of action for violation of the California Homeowner Bill of Rights. No issue concerning the first cause of action is presented on appeal.

In the second cause of action for negligent misrepresentation, Velez asserted the following allegations: Chase employee Michael Woody told Velez that some documents concerning Velez’s loan modification application were either lost or misplaced. Another Chase employee, Christine Kitka-Westmoveland told Velez (1) his loan modification application was complete, (2) he would hear back from Chase within 30 days, (3) Chase would not move forward with foreclosure while the loan modification application was being reviewed, and (4) Velez qualified for a loan modification based on the information he provided. The representations of Wood and Kitka-Westmoveland were false, and Chase knew or should have known of their falsity. Velez reasonably relied on the representations because Woody and Kitka-Westmoveland held themselves out as having authority to speak on Chase’s behalf. And Velez suffered damages from the misrepresentations because he spent hours and resources reapplying for a loan modification and eventually lost the opportunity to apply for a loan modification.

In the third cause of action for fraud, Velez alleged the following: Kitka-Westmoveland told Velez (1) he submitted a complete loan modification application, (2) he was not under risk of foreclosure while his loan was being reviewed for modification, and (3) he qualified for loan modification based on the information he provided. Kitka-Westmoveland knew her representations were false, and Chase intended for Velez to rely on Kitka-Westmoveland’s representations so that he would not act to stop the foreclosure proceedings. Velez reasonably relied on Kitka-Westmoveland’s representations because Chase had sole authority to stop foreclosure proceedings and Chase was prohibited under the California Homeowner Bill of Rights from proceeding with foreclosure while Velez’s loan was being reviewed for modification. Velez suffered damages from the fraud because he spent time and resources on multiple attempts to obtain modification of his loan and, as a result of the stress, suffered a heart-related injury. Velez also lost the opportunity to obtain an affordable loan and save his home.

In deposition testimony, Velez said he did not remember speaking to Michael Woody or Christine Kitka-Westmoveland. He admitted the Chase employees did not lie to him about whether his loan modification application was complete, and he acknowledged that the branch employees he spoke to did not have authority to approve or deny his application.

Chase filed a motion for summary judgment, which the trial court granted. Concerning the second cause of action for negligent misrepresentation, the trial court concluded there was no misrepresentation because Velez said he did not believe any Chase employee lied to him. Concerning the third cause of action for fraud, the trial court concluded there was no misrepresentation because Velez admitted he did not know whether the Chase employees’ statements about the completeness of his loan modification application were wrong. The trial court also concluded there were no actionable damages because Velez continues to occupy the home despite being in default and the time spent applying for loan modification was de minimis.

After granting the motion for summary judgment, the trial court dismissed the action.

DISCUSSION

I

Velez contends the trial court improperly granted summary judgment because there remained triable issues of material fact.

“The elements of fraud are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages. [Citation.] The elements of negligent misrepresentation are the same except for the second element, which for negligent misrepresentation is the defendant made the representation without reasonable ground for believing it to be true. [Citations.]” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792.) Thus, both fraud and negligent misrepresentation causes of action require a false representation of past or existing fact.

According to Velez, a trial court must find that no fact enumerated in the moving party’s statement of undisputed facts is triable before it can grant summary judgment, and because Velez produced evidence to dispute some of the facts enumerated in Chase’s separate statement of undisputed facts, the trial court could not grant summary judgment. We disagree. The trial court may grant summary judgment if any element of the cause of action is negated by an undisputed fact. In such instances, the remaining facts are immaterial. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 84.)

In support of its motion for summary judgment, Chase produced evidence that Velez did not remember talking to the two Chase employees who allegedly made the misrepresentations to him. Velez produced no evidence that he spoke to Woody or Kitka-Westmoveland. By establishing the absence of evidence to support Velez’s claim that Woody and Kitka-Westmoveland made any representation at all to Velez, let alone a misrepresentation, Chase established the absence of an element of both the negligent misrepresentation and fraud causes of action.

In addition to the absence of the alleged misrepresentation, Velez admitted in his deposition testimony the Chase employees did not lie to him about whether his loan modification application was complete. Chase was therefore entitled to summary judgment.

II

Velez also argues the evidence established misrepresentations made by “Ms. Franco,” a Chase employee. But Velez did not allege any statements or misrepresentations made by Ms. Franco in the second amended complaint.

“Fraud allegations ‘ “involve a serious attack on character” ’ and therefore are pleaded with specificity. [Citation.] General and conclusory allegations are insufficient. [Citation.] The particularity requirement demands that a plaintiff plead facts which ‘ “ ‘show how, when, where, to whom, and by what means the representations were tendered.’ ” ’ [Citation.] Further, when a plaintiff asserts fraud against a corporation, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’ [Citation.] Less specificity in pleading fraud is required ‘when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy . . . .” ’ [Citation.]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469; see also Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166 [specificity requirement applies to both fraud and negligent misrepresentation causes of action].)

In the second and third causes of action of his second amended complaint, Velez alleged that misrepresentations were made by Woody and Kitka-Westmoveland — that is, specific people. He did not allege misrepresentations were made by a Chase employee he could not identify or would identify later. Nevertheless, Velez argues in a footnote that the name of the particular Chase employee is immaterial. For this proposition, he relies on West v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th 780. However, that case is unhelpful to him. In that case, the pleadings blamed unnamed bank employees for misrepresentations. (Id. at pp. 793-794.) Here, the names of specific employees were alleged, but the evidence did not support the allegations. And Velez made no attempt to amend his second amended complaint to allege facts supported by evidence. (See Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 182.)

Because the complaint frames the issues for summary judgment, fraud allegations must be pleaded with specificity, and Velez did not plead any misrepresentation by Ms. Franco, Velez’s appellate argument regarding Ms. Franco lacks merit.

III

Velez further contends there was evidence of reasonable reliance on misrepresentations. But because the evidence failed to establish any misrepresentation pleaded in the second amended complaint, there is no misrepresentation upon which a reasonable reliance argument can be made.

IV

In addition, Velez claims the trial court erred by concluding he did not suffer actionable damages. Because Velez failed to establish any of the alleged misrepresentations, an essential element to both the fraud and negligent misrepresentation causes of action, we need not consider whether there was evidence of actionable damages and also need not consider Velez’s related contention that the trial court erred by overruling his objection to evidence concerning damages.

DISPOSITION

The judgment is affirmed. Chase is awarded its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

/S/

MAURO, J.

We concur:

/S/

BLEASE, Acting P. J.

/S/

RENNER, J.