Case Number: EC059574 Hearing Date: May 02, 2014 Dept: NCE

¿Request for Judicial Notice by defendant Union Bank is granted in part. The court takes judicial
notice only of the plaintiff’s statements made under penalty of perjury in his bankruptcy filings
and the order of discharge issued by the court. To the extent not expressly granted, the request is
denied. Evidence Code section 452(d).

Demurrer of defendant Union Bank, N.A. to Second Amended Complaint is sustained without
leave to amend for the reasons stated in the moving papers and in the court’s previous ruling of
February 14, 2014 granting moving party judgment on the pleadings.

Briefly, all causes of action against this moving party fail because Union Bank is under no
obligation to purchase insurance of any particular type and amount for the benefit of plaintiff
pursuant to the Deed of Trust. {See Original Complaint, Ex. A (Deed of Trust), para. 5 (“Lender
is under no obligation to purchase any particular type or amount of coverage. Therefore, such
coverage shall cover the Lender, but might or might not protect the Borrower, Borrower’s equity
in the Property, or the contents of the Property, against any risk, hazard or liability and might
provide greater or lesser coverage than was previously in effect.”).) The claims also fail by
virtue of the application of the doctrine of judicial estoppel. It appears from the Request for
Judicial Notice that plaintiff took the position in his bankruptcy that he had not suffered any
losses in the previous year and had no claims (such as this one being asserted in this lawsuit), that
he was successful in asserting that position as he obtained a bankruptcy discharge and that his
first position was not taken as a result of ignorance, fraud or mistake. See Hamilton v.
Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602.

The first cause of action for declaratory relief fails because due to the language of the deed of
trust, there is no actual controversy here.

The claim for breach of an implied covenant of good faith and fair dealing fails because the
implied covenant is limited to assuring compliance with the express terms of the contract and
cannot be used to create obligations beyond those incorporated in the specific terms of their
agreement. Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350. There is no
requirement in the parties’ contract here for the bank to buy insurance to protect plaintiff and
therefore, the law will not imply a covenant to do so because that would create an obligation not
created by the express terms of the parties’ contract and would, in fact, directly contradict its
language that the bank is under no obligation to obtain insurance for plaintiff’s benefit.

The fifth cause of action for violation of Business & Professions Code section 17200 fails to
allege any unlawful, unfair or fraudulent business practice, but rather only conduct expressly
permitted by the Deed of Trust.

The sixth cause of action for money had and received and the seventh cause of action for unjust
enrichment fail because the language of the express contract forecloses the claims here.

Motion of defendant American Modern Insurance Company for judgment on the pleadings is
granted without leave to amend for the reasons stated in the moving papers, including judicial
estoppel. Plaintiff was given leave to attempt to fix this deficiency in his complaint in connection
with the prior motion for judgment on the pleadings by Union Bank and has been unable to do
so. Moreover, he fails to offer in his opposition facts in his possession that would cure this
defect. Accordingly, the motion is granted without leave to amend.