Case Number: KC066666 Hearing Date: May 27, 2014 Dept: J

Re: Gladwin Gill v. Capital One, N.A., et al. (KC066666)

DEMURRER TO COMPLAINT

Moving Party: Defendant Capital One, N.A.

Respondent: No timely opposition filed

POS: Moving OK

Plaintiff commenced this action on 2/18/14, asserting causes of action for:

1. Breach of Contract
2. Intentional Infliction of Emotional Distress
3. Accounting
4. Injunctive Relief
5. Unfair Business Practices

The Case Management Conference is set for 6/16/2014.

Plaintiff alleges that in 2005, he obtained a one million-dollar loan from Bank of America (“Loan”), secured by a deed of trust for the real property located at 20600 East Via Verde Street, Covina CA 91724 (“Property”), but he defaulted prior to August 2009; that he entered into a loan modification agreement with Bank of America in August 2009, whereby his monthly payments and interest rate would be lowered for five years; that the Loan was assigned to Defendant Capital One in November 2011; that Capital One refused to honor the loan modification; and that Capital one improperly refused his monthly payments and wrongfully initiated a nonjudicial foreclosure.

Defendant Capital One, N.A. demurs to the first, second, third, fourth, and fifth (misnumbered as “sixth”)cause of action of Plaintiff’s Verified Complaint on grounds that they fail to state facts sufficient to constitute a cause of action under CCP Section 430.10(e) and that the entire Verified Complaint is uncertain under CCP Section 430.10(f).

FIRST CAUSE OF ACTION FOR BREACH OF CONTRACT:

The elements of a cause of action for breach of contract are: (1) the existence of a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff. Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1367 (2010). Here, Plaintiff does not allege that a contract exists between Capital One and himself. He alleges that the document attached as Exhibit B is a copy of the contract, but that exhibit consists of two documents, neither of which is a contract between Plaintiff and Capital One. The first document is a letter from Bank of America to Plaintiff offering a loan modification, and the second is a loan modification “agreement” which requires the borrower to sign it before a notary and return it (neither requirement was apparently done). Finally, Plaintiff has not sufficiently alleged damages. The demurrer is sustained.

SECOND CAUSE OF ACTION FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:

The elements of IIED are: “(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Hughes v. Pair (2009) 46 Cal.4th To satisfy the element of “extreme and outrageous conduct,” a plaintiff must allege facts showing that the defendant’s conduct was “so extreme as to exceed all bounds of that usually tolerated in a civilized community.” Ricard v. Pacific Indemnity Co., 132 Cal.App.3d 886, 895 (1982). Here, Plaintiff does not allege actionable “extreme and outrageous” conduct. Debt collection, foreclosure, and similar claims are insufficient to support an IIED claim. The demurrer is sustained.

THIRD CAUSE OF ACTION FOR ACCOUNTING:

To plead for an accounting, plaintiff must allege: (1) a relationship between the parties exists which requires an accounting in equity, which often is a fiduciary relationship; (2) “that some balance is due the plaintiff that can only be ascertained by an accounting”; and (3) a loss of a sum of money that cannot be ascertained and determined absent an accounting. Kritzer v. Lancaster, 96 Cal.App.2d 1, 6-7 (1950). Here, Plaintiff has not alleged sufficient facts to constitute a relationship between the parties that requires an accounting. The parties are borrower/creditor, not fiduciaries. Further, Plaintiff has not alleged “that some balance is due to him.” Kritzer, supra. The demurrer is sustained.

FOURTH CAUSE OF ACTION FOR INJUNCTIVE RELIEF:

On 3/12/14, this Court granted a preliminary injunction restraining Defendants from proceeding with the non-judicial foreclosure of Plaintiff’s home provided the monthly payments on the loan are maintained. Therefore, the demurrer to the fourth cause of action for injunction is overruled.

FIFTH (“SIXTH”) CAUSE OF ACTION FOR UNFAIR BUSINESS PRACTICES:

The Unfair Business Practices Act includes “any unlawful, unfair or fraudulent business act or practice.” B&P Section 17200. With the exception of specific government officials, standing to bring an maintain a Business and Professions Code Section 17200 claim is limited to “person[s] who ha[ve] suffered injury in fact and ha[ve] lost money or property as a result of the unfair competition.” B&P Code Section 17204. Plaintiff has not demonstrated that Defendant has engaged in a business practice that is unlawful, unfair, or fraudulent. The demurrer is sustained.

The court will hear from counsel for Plaintiff as to whether leave to amend is requested, and as to which cause(s) of action.