Case Name: Patrick J. Dougherty v. James Walker, et al.
Case No.: 2015-1-CV-284222

Demurrer by Defendant PLM Lender Services, Inc. to the First Amended Complaint of Plaintiff Patrick J. Dougherty

Factual and Procedural Background

This is an action for breach of contract and wrongful foreclosure. In the early 1990s, plaintiff Patrick J. Dougherty (“Plaintiff”) allegedly entered into several personal home loans with defendant James Walker (“Walker”) that were secured by real property. (First Amended Complaint [“FAC”], ¶¶ 6-7.) In connection with those loans, Walker routinely waived “timely payment of the monthly fees” and would accept full payment when Plaintiff could pay the loans in one lump sum. (FAC, ¶ 7.)

In September 2006, Walker loaned Plaintiff $1,550,000 to purchase real property located in Los Gatos, California and Plaintiff executed a promissory note in connection with that loan. (FAC, ¶¶ 8-12.) Subsequently, Walker promised to loan Plaintiff $217,000 to make improvements on the property and cover construction costs. (FAC, ¶ 15.) Despite his promise, Walker does not immediately provide Plaintiff with the $217,000. (FAC, ¶ 16.) Plaintiff took several steps in reliance on Walker’s promise (e.g., hiring various construction and engineering companies) and Walker made some disbursements of the funds to cover a portion of the costs incurred. (FAC, ¶¶ 17-18, 23, 26-30.)

On June 8, 2007, Plaintiff executed a deed of trust and a note in the amount of $500,000, consolidating the $217,000 construction loan and the various personal home loans. (FAC, ¶ 36.) Plaintiff agreed to execute the consolidated loan because “he hopes Defendant Walker will be inclined to now honor his Construction Loan obligations.” (FAC, ¶ 37.) However, “Walker repeatedly fail[ed] to disburse the remaining construction loan monies owed to various entities.” (FAC, ¶ 38.) Plaintiff alleges that Walker’s failure to timely disburse funds caused the property development project to come to a halt in 2007. (FAC, ¶¶ 34-35, 39.)

On October 17, 2013, Walker and Plaintiff agreed to consolidate the $1,550,000 and $550,000 loans into one loan “in the amount of $2,500,000, with a 3 month interest-free period, and conditional on the property selling.” (FAC, ¶ 43.) Plaintiff alleges that the interest rate on this consolidated loan was 12 percent. (FAC, ¶¶ 46, 49.) Plaintiff hired a real estate agent to sell the property and a contract for sale was entered into in the amount of $3,200,000. (FAC, ¶¶ 43-44.) However, the sale of the property “did not proceed as planned” and Plaintiff alleges that “Walker aided and abetted and conspired with others to thwart this sale.” (FAC, ¶ 47.)

Thereafter, Walker wrongfully commenced foreclosure proceedings on the property “based … on a usurious interest rate of 12%” and “the false premise [that] the first loan of $1,550,000 required monthly interest payments.” (FAC, ¶¶ 47-50.) However, the foreclosure did not proceed. Plaintiff alleges that Defendant PLM Lender Services, Inc. (“PLM”), the trustee under the deeds of trust, failed to inform him that the foreclosure had terminated, which forced him to file bankruptcy to save his ownership position in the property. (FAC, ¶ 58.)

On December 15, 2015, Plaintiff filed the operative FAC against Walker and PLM (collectively “Defendants”), alleging causes of action for: (1) breach of contract (against Walker); (2) breach of contract (against Walker); (3) breach of implied covenant of good faith and fair dealing (against Walker); (4) fraud (against Walker); (5) fraud (against Walker); (6) violation of Business and Professions Code section 17200 (against Walker); (7) violation of partnership agreement (against Walker); (8) breach of fiduciary duty (against Walker); (9) fraud (against PLM); (10) intentional infliction of emotional distress (against PLM); (11) negligent infliction of emotional distress (against PLM); (12) violation of Business and Professions Code section 17200 (against PLM); (13) wrongful foreclosure (against Defendants); (14) aiding and abetting (against Defendants); (15) slander of title (against Defendants); (16) injunctive relief (against Walker); (17) unjust enrichment (against Walker); (18) promissory estoppel (against Walker); (19) negligence (against Walker); and (20) negligence (against PLM).

Currently before the Court is defendant PLM’s demurrer to the FAC on the ground that it fails to state a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Defense counsel has satisfied their obligation to meet and confer before filing the demurrer pursuant to Code of Civil Procedure section 430.41, subdivision (a). Both sides submit requests for judicial notice. Plaintiff filed written opposition. PLM filed reply papers.

Demurrer to the FAC

PLM argues that the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and twentieth causes of action are subject to demurrer on the ground that they fail to state a claim.

PLM’s Request for Judicial Notice

PLM’s request for judicial notice is GRANTED. (See Evid. Code § 452, subds. (d), (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [courts may take judicial notice of the existence and recordation of real property records].)

Plaintiff’s Request for Judicial Notice

Plaintiff’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d); see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files].)

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Common Interest Privilege

With respect to the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and twentieth causes of action, PLM argues, under its trustee status, that such claims are barred by the Common Interest Privilege. To the extent that the privilege applies, PLM asserts that Plaintiff fails to allege any facts supporting malice to overcome the privilege.

Civil Code section 2924, subdivision (d) provides in pertinent part: “All of the following shall constitute privileged communications pursuant to Section 47: [¶] (1) The mailing, publication, and delivery of notices as required by this section. [¶] (2) Performance of the procedures set forth in this article.” The privilege afforded under Civil Code section 2924 is the qualified common interest privilege of Civil Code section 47, subdivision (c), and applies to “the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures…” (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333.) One of the statutory procedures to be performed by the trustee is the sale of the property. (Civ. Code, § 2924h.) The common interest privilege does not apply if the defendant acted with actual malice, i.e., motivated by hatred or ill will, or in reckless disregard of the plaintiff’s rights. (Kachlon v. Markowitz, supra, 168 Cal.App.4th at p. 336.) The privilege applies to all torts except malicious prosecution. (Ibid.)
Here, Plaintiff’s claims against PLM are not based on the mailing, publication, or delivery of any nonjudicial foreclosure notices. Instead, Plaintiff alleges that PLM represented, by letter, that foreclosure would proceed and later failed to inform him that the foreclosures sale had been terminated. (See FAC, ¶¶ 54, 58.) As the opposition points out, the letter sent to Plaintiff’s counsel is not a statutorily required notice. Nor does PLM’s alleged failure to inform Plaintiff constitute a “communication” under the privilege. Moreover, PLM has not cited any legal authority demonstrating that either the trustee’s representation or subsequent failure to inform Plaintiff about the status of the foreclosure sale is subject to the common interest privilege. (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [stating that the trial court has no “obligation to comb the record and the law for factual or legal support that a party has failed to identify or provide”].)

Accordingly, the demurrer to the ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and twentieth causes of action on the ground that the claims are barred by the common interest privilege is OVERRULED.

Ninth Cause of Action: Fraud

Plaintiff’s ninth cause of action for fraud sets forth the following counts: (1) intentional misrepresentation; (2) negligent misrepresentation; (3) concealment; and (4) promise without intention of performing. The Court will address each count on demurrer.

Intentional Misrepresentation

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.)

“Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 [citation and quotation marks omitted].)

PLM correctly argues that the count for intentional misrepresentation has not been pled with the required specificity to state a cause of action. Plaintiff, relying on paragraphs 47-52 in the FAC, alleges that PLM made material misrepresentations with its public notices of sale and letter to Plaintiff’s attorney stating that the foreclosure sale would proceed. (See FAC, ¶ 101.) However, paragraphs 47-52 of the FAC do not allege any misrepresentations of fact by defendant PLM. Instead, those paragraphs address foreclosure actions taken by defendant Walker and a letter written by Plaintiff’s attorney to Ms. Elizabeth Godbey, Vice President of defendant PLM. Even if the Court were to accept these allegations, there are no facts showing knowledge of falsity, intent to induce reliance, or damages to support the count for intentional misrepresentation. Thus, this count does not provide a basis for relief.

Negligent Misrepresentation

“The elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.” (Wells Fargo Bank, N.A. v. FSI, Financial Solutions, Inc. (2011) 196 Cal.App.4th 1559, 1573.)

With respect to negligent misrepresentation, Plaintiff alleges that PLM negligently made material misrepresentations of fact with its public notices of sale and letter to Plaintiff’s attorney stating that the foreclosure sale would proceed. (See FAC, ¶ 104.) Plaintiff asserts that such facts are set forth in paragraphs 47-52 of the FAC which is not the case for the reasons stated above. Furthermore, Plaintiff fails to allege that PLM made any misrepresentations without a reasonable ground for believing them to be true which resulted in damages. Therefore, this count does not provide a basis for relief.

Concealment

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Hambrick v. Healthcare Partners Medical Group, Inc. (2015) 238 Cal.App.4th 124, 162.)

With respect to concealment, Plaintiff alleges that PLM concealed and failed to disclose facts it was duty bound to disclose. (See FAC, ¶ 107.) Plaintiff claims that PLM was aware that the foreclosure was improper, illegal, seriously flawed and stopped, and concealed these facts from Plaintiff. (Ibid.) Plaintiff asserts that such facts are set forth in paragraphs 47-52 of the FAC which is not the case for the reasons stated above. Plaintiff also fails to provide facts or legal authority demonstrating that PLM had a legal duty to disclose whether the foreclosure sale had been stopped. (See LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336 [appellate court identifies circumstances where concealment may constitute actual fraud].) Even if a legal duty existed, there are no facts showing that PLM intended to defraud Plaintiff or that he was unaware of the fact and would not have acted had he known of the concealed facts. Thus, this count does not provide a basis for relief.

Promise Without Intent to Perform

“The elements of promissory fraud (i.e., of fraud or deceit based on a promise made without any intention of performing it) are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promise to enter into a transaction; (4) reasonable reliance by the promise; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise.” (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1453.)

With respect to promissory fraud, Plaintiff alleges that PLM intentionally and/or negligently made a promise that defendant Walker had the legal right to foreclose on the property and that it was proceeding to foreclosure sale. (See FAC, ¶ 110.) Plaintiff asserts that such facts are set forth in paragraphs 47-52 of the FAC which is not the case for the reasons stated above. Also, as the moving papers point out, there are no facts to show that PLM made any promise to Plaintiff. Even if there was such a promise, Plaintiff fails to allege facts demonstrating any intent to deceive or induce the promise, nonperformance by the party making the promise, and damages. Therefore, this count does not provide a basis for relief.

In opposition, Plaintiff argues that its fraud cause of action may be construed as a claim for promissory estoppel. (See OPP at p. 8:9-12.) The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416.) As stated above, this claim fails as Plaintiff does not allege that PLM made any clear and unambiguous promise to him. Even if there was such a promise, Plaintiff fails to allege that he suffered damages in reliance on that promise.

Accordingly, the demurrer to the ninth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

Tenth Cause of Action: Intentional Infliction of Emotional Distress

With respect to the tenth cause of action [intentional infliction of emotional distress (“IIED”)], PLM contends that its alleged failure to inform Plaintiff about termination of the foreclosure sale does not constitute outrageous conduct to support the IIED claim. Plaintiff disputes this argument and asserts that failing to inform him about termination of the foreclosure sale constitutes outrageous conduct.

To state a claim for IIED, a plaintiff must allege: (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 1035, 1050.)
“Extreme and outrageous conduct is that which goes beyond all possible bounds of decency so as to be regarded as atrocious and utterly intolerable in a civilized community. [Citation.] Insults, indignities, annoyances, petty oppressions or other trivialities will not suffice. The conduct must be such that it would cause an average member of the community to immediately react in outrage. [Citation.]” (Gomon v. TRW, Inc. (1994) 28 Cal.App.4th 1161, 1172.)

In Mehta v. Wells Fargo Bank, N.A. (S.D. Cal. 2010) 737 F.Supp.2d 1185 (“Mehta”), for example, the district court found that it was not outrageous for a bank to lawfully foreclose on a plaintiff’s property, even though one of the bank’s employees allegedly told plaintiff that the foreclosure sale would not occur. Similarly, in Davenport v. Litton Loan Servicing, LP, (N.D. Cal. 2010) 725 F.Supp.2d 862, 884 (“Davenport”), the district court found that while “home foreclosure is a terrible event and likely to be fraught with unique emotions and angst,” a foreclosing party does not act outrageously if it asserts its right to foreclosure in good faith. (See also Ross v. Creel Printing & Publ’g Co., Inc. (2002) 100 Cal.App.4th 736, 754, fn. 4 [“The assertion of an economic interest in good faith is privileged, even if it causes emotional distress.”].)

Unlike Mehta and Davenport, Plaintiff alleges that PLM caused him to suffer severe distress by failing to inform him that the foreclosure sale had been terminated. (See FAC, ¶ 58.) However, such conduct does not appear to be outrageous as Plaintiff has not alleged facts indicating that PLM intended to cause him emotional distress. It should be noted that California courts have found that a bank’s conduct related to foreclosure can become outrageous if the foreclosure is not legally justified and the bank acts dishonestly or exhibits bad faith. (See Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 204-205 [when a lender exhibits either bad faith or gross negligence in its interactions with a plaintiff, and the plaintiff alleges facts showing that defendant had no right to foreclose, the “outrageous” standard can be met].) Absent from this case are any facts showing that PLM acted dishonestly or in bad faith or was otherwise not legally justified in its actions. Therefore, the Court finds that PLM’s conduct was not sufficiently extreme and outrageous to support an IIED claim.

Even if there was extreme and outrageous conduct, PLM argues that Plaintiff may not recover emotional distress damages arising solely from property loss. (See Erlich v. Menezes (1999) 21 Cal.4th 543, 554 [“No California case has allowed recovery for emotional distress arising solely out of property damage.”].) This argument has merit and Plaintiff fails to dispute this contention in opposition.

Consequently, the demurrer to the tenth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

Eleventh Cause of Action: Negligent Infliction of Emotional Distress

“Negligent infliction of emotional distress is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) Similar to the IIED claim, PLM argues that Plaintiff may not recover emotional distress damages arising solely from property loss. (See Erlich v. Menezes, supra, 21 Cal.4th at p. 554 [“No California case has allowed recovery for emotional distress arising solely out of property damage.”].) As stated above, this argument has merit and Plaintiff fails to dispute this contention in opposition.

Accordingly, the demurrer to the eleventh cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

Twelfth Cause of Action: Violation of Business and Professions Code Section 17200

The demurrer to the twelfth cause of action [violation of Business and Professions Code Section 17200] is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. The UCL claim is based on PLM’s alleged misconduct in the prior causes of action. (See FAC, ¶ 118.) Since Plaintiff’s other claims fail to state a cause of action, the UCL claim also fails. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a UCL claim stands or falls with the antecedent substantive causes of action].)

Thirteenth Cause of Action: Wrongful Foreclosure

“The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184-1185.)

Here, there is no basis for a wrongful foreclosure claim as Plaintiff alleges that the foreclosure was terminated and thus there was no sale of the property. (See FAC, ¶ 58.) Therefore, Plaintiff cannot demonstrate any prejudice or harm from a completed sale. Given these allegations, the Court finds no grounds for any further amendment.

Accordingly, the demurrer to the thirteenth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim. (See Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436 [“Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.”].)

Fourteenth Cause of Action: Aiding and Abetting

“Liability may…be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (Casey v. U.S. Bank Nat. Assn. (2005) 127 Cal.App.4th 1138, 1144.)

Here, Plaintiff alleges that Defendants acted with substantial knowledge and in furtherance of the other’s actions in relation to the foreclosure sale. (See FAC, ¶ 125.) However, Plaintiff fails to allege whether PLM knew that Walker’s conduct constituted a breach of duty. Furthermore, there are no allegations that PLM gave substantial assistance or encouragement to Walker in proceeding with the foreclosure. Thus, Plaintiff does not state a valid claim for aiding and abetting.

Therefore, the demurrer to the fourteenth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

Fifteenth Cause of Action: Slander of Title

Slander of title occurs when there is an unprivileged publication of a false statement which disparages title to the property and causes pecuniary loss. (Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 929.) Elements of slander of title are: (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.)

Here, Plaintiff alleges that PLM made false statements about the loan amounts that were due in support of the slander of title claim. (See FAC, ¶ 127.) However, the only communication by PLM alleged in the FAC is the letter sent to Plaintiff’s counsel on August 26, 2014. (See FAC, ¶¶ 53-54; Exhibit 2.) It is not clear from the FAC as to how this letter is false or otherwise disparaging to Plaintiff’s property. Even if the Court construed the letter to be false or disparaging to the property, Plaintiff fails to allege facts demonstrating any pecuniary loss to support a claim for slander of title.

Therefore, the demurrer to the fifteenth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.

Twentieth Cause of Action: Negligence

“The elements of a cause of action for negligence are (1) a legal duty to use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause between the breach and (4) the plaintiff’s injury.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339 [citation omitted].) “The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to establishing a claim for negligence.” (Nymark v. Heart Fed. Sav. & Loan Assn. (1991) 231 Cal.App.3d 1089, 1095.) “[A]bsent a duty, the defendant’s care, or lack of care, is irrelevant.” (Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472, 481.) “The existence of a legal duty to use reasonable care in a particular factual situation is question of law for the court to decide.” (Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 278 [citation omitted].)

Here, Plaintiff alleges that PLM owed him a duty to administer the foreclosure action and timely advise him, as the borrower, when a foreclosure is stopped. (See FAC, ¶ 144.) However, “[t]he trustee under a deed of trust ‘is not a true trustee, and owes no fiduciary obligations; [it] merely acts as a common agent for the trustor and beneficiary of the deed of trust. [The trustee’s] only duties are: (1) upon default to undertake the steps necessary to foreclose the deed of trust; or (2) upon satisfaction of the secured debt to reconvey the deed of trust.’ [Citation.] Consistent with this view, California courts have refused to impose duties on the trustee other than those imposed by statute or specified in the deed of trust.” (Heritage Oaks Partners v. First American Title Ins. Co. (2007) 155 Cal.App.4th 339, 345.) Plaintiff’s opposition fails to provide any arguments or legal authority demonstrating that a legal duty would exist under the facts of this case to support negligence.

Even if there was such a duty, as PLM argues, Plaintiff fails to allege facts to support any damages resulting from PLM’s negligence. Nor does Plaintiff even address the damages argument in opposition to the motion.

Consequently, the demurrer to the twentieth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.