2017-00223865-CU-OR

Ndile George Njenge vs. Bank of America

Nature of Proceeding: Hearing on Demurrer to the 1st Amended Complaint

Filed By: Spann, Joel C.

Defendant Bank of America, N.A.’s (“BANA”) demurrer to self-represented Plaintiff Ndile George Njenge’s first amended complaint (“FAC”) is sustained without leave to amend.

The Court did not consider Plaintiff’s “reply” to BANA’s reply. There is no provision in the Code for such a filing.

BANA’s request for judicial notice is granted. (See Poseidon Devel., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also Stratford 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., supra, 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.”)

In this foreclosure action Plaintiff alleges causes of action against BANA for wrongful foreclosure, breach of oral contract, breach of written contract, promissory estoppel, negligent misrepresentation, violation of Business & Professions Code § 17200, and declaratory relief. The original complaint was filed on December 14, 2017.

Plaintiff alleges that he entered into a trial payment plan (“TPP”) with BANA in 2009. Plaintiff alleges that he attempted to make his final payment under the TPP at a BANA branch in 2009 and was informed shortly thereafter that BANA would not provide a permanent loan modification. (FAC ¶¶ 19, 20.) Plaintiff alleges that in 2013 BANA offered him a second TPP but that prior to submitting his first payment, he contacted BANA to inform it that he did not want to accept the second TPP. (Id. ¶ 22.) Plaintiff alleges that BANA sold the loan to Fay Servicing in 2015. (Id. ¶ 23.)

Statute of Limitations

BANA’s demurrer on the basis that the causes of action are barred by the applicable statute of limitations is sustained without leave to amend.

Plaintiff’s claims against BANA are all premised on the 2009 TPP. The instant lawsuit was not filed until 2017. As set forth above, Plaintiff alleges causes of action against BANA for wrongful foreclosure, breach of oral contract, breach of written contract, promissory estoppel, negligent misrepresentation, violation of Business & Professions Code § 17200, and declaratory relief. The statutes of limitations governing these causes of action range from two to four years. (CCP § 337(1) [four years for written

contract], CCP § 338(d) [three years for negligent misrepresentation], CCP § 339(1) [two years for contracts claims not based on writing], CCP § 343 [four year catch-all], Bus. & Prof. Code § 17208 [four years]. Here, BANA allegedly failed to comply with a TPP in 2009. The complaint was filed in December 2017 and the causes of action against BANA are barred by the statute of limitations.

Plaintiff argues that since damages are an element of his causes of action, they could not accrue until he suffered damages. According to Plaintiff, damages were not sustained until March 2018 when the property was finally sold. The Court disagrees. Plaintiff is correct that where “damages are an element of a cause of action, the cause of action does not accrue until the damages have been sustained” and that “when the wrongful act does not result in immediate damage, ‘the cause of action does not accrue prior to the maturation of perceptible harm.’” (Thomson v. Canyon (2011) 198 Cal.App.4th 594, 604.) The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put them on inquiry or if they have the opportunity to obtain knowledge from sources open to their investigation. ( Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807-808.) In those actions where courts have applied the discovery rule, the injury or the act causing the injury, or both, have been difficult for the plaintiff to detect. (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 831.) As noted in Mosesian v. County of Fresno, (1972)

28 Cal. App. 3d 493, 500, “A cause of action normally accrues when under the substantive law the wrongful act is done and the liability or obligation arises, that is, when action may be brought…” As the Supreme Court instructed in Powers Farms v. Consolidated Irr. Dist. (1941) 19 Cal.2d 123, 129, “Where the time and extent of injury are uncertain, a statutory period of limitation begins to run when the fact that damage is occurring becomes apparent and discoverable, even though the extent of the damage may still be unknown.” [emphasis added]

Indeed, “Application of the accrual rule becomes rather complex when, as here, a plaintiff is aware of both an injury and its wrongful cause but is uncertain as to how serious the resulting damages will be or whether additional injuries will later become manifest. Must the plaintiff sue even if doing so will require the jury to speculate regarding prospective damages? Or can the plaintiff delay suit until a more accurate assessment of damages becomes possible? Generally, we have answered those questions in favor of prompt litigation, even when the extent of damages remains speculative. Thus, we have held that “the infliction of appreciable and actual harm, however uncertain in amount, will commence the statutory period.” (Pooshs v. Philip Morris USA, Inc, (2011) 51 Cal. 4th 788, 797, citing to Davies v. Krasna, (1975) 14 Cal. 3d 502, 514.) Where an injury, even if slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy, the statute attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. (Spellis v. Lawn (1988) 200 Cal. App. 3d 1075.) Difficulty in proving damages does not postpone the period of limitations. (Davies v. Krasna (1975) 14 Cal. 3d 502; San Francisco Unified School District v. W.R. Grace & Co. (1995) 37 Cal. App. 4th 1318.)

In the instant action, however, the FAC is clear that BANA allegedly refused to grant him a permanent modification of the loan in 2009 after completion of the TPP. This is an allegation of perceptible harm as Plaintiff was allegedly not provided the modification at that time. He was harmed by BANA’s conduct at that moment, not

years later when the property was ultimately sold.

The Court notes that Plaintiff also alleged that BANA offered him a second TPP in 2013 yet he alleged that he declined to accept that second TPP. While Plaintiff does not appear to base any of his claims against BANA on the second TPP, and does not make any argument regarding the second TPP in the opposition, the Court would note that it could not form the basis of any cause of action as he alleged he did not accept the offer and therefore could not have relied upon it.

Plaintiff also appears to argue that BANA somehow was involved with the subject loan even though he plainly alleged that BANA sold the loan to Fay in 2015. He argues that BANA acquired Countrywide Home Loans in 2011 and that MERS was the nominee beneficiary for Countrywide until the property was sold. The Court fails to see how this impacts the statute of limitations argument. Moreover, Plaintiff’s own allegations make clear that BANA sold the loan in 2015. (FAC ¶ 23.) In addition, the judicially noticeable documents reflect that BANA had no involvement in the foreclosure activities. (BANA’s RJN Exhs. 2, 3.)

There are no allegations of delayed discovery nor could there be given Plaintiff’s allegations that he was informed by BANA that he would not be given a permanent modification in 2009. (FAC ¶ 20.)

The complaint against BANA filed in 2017 approximately eight years after BANA alleged failed to comply with the TPP in 2009 is untimely on its face.

BANA’s demurrer to the FAC on the basis that it is barred by the statute of limitations is sustained.

Given the above, the Court need not address BANA’s alternate arguments as to why the individual claims are insufficiently pled.

The demurrer is sustained without leave to amend. While this is the first challenge to the complaint, the Court does not see any reasonable possibility that leave to amend could cure the statute of limitations defect nor does Plaintiff make any showing that he could do so.

Defendant shall submit an order and judgment of dismissal pursuant to CRC Rule 3.1312.