Rogers v. Wells Fargo Bank CA1/1

Filed 6/10/15 Rogers v. Wells Fargo Bank CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication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

FIRST APPELLATE DISTRICT

DIVISION ONE

LAURA ROGERS,
Plaintiff and Appellant,
A141416
v.
WELLS FARGO BANK, N.A., (Contra Costa County
Super. Ct. No. MSC1300953)
Defendant and Respondent.

Plaintiff Laura Rogers appeals from the judgment of dismissal entered following
the sustaining of a general demurrer to her first amended complaint. Plaintiff sued to
prevent defendant Wells Fargo Bank, N.A. (Wells Fargo) from selling her property at a
nonjudicial foreclosure sale after she defaulted on two loans secured by deeds of trust.
We conclude the trial court correctly determined that each of her causes of action are
legally deficient, and we affirm.
BACKGROUND AND PROCEDURAL HISTORY
I. Violations of Rules of Court
We first address the many flaws in plaintiff’s briefing of her appeal. The Rules of
Court require litigants to “[s]upport any reference to a matter in the record by a citation to
the volume and page number of the record where the matter appears.” (Cal. Rules of
Court, rule 8.204(a)(1)(C), italics added.)1 Thus, stating facts without providing any
record cite, or citing to only a document rather than to a page, violates this rule. (See,

1
All further rule citations are to the California Rules of Court.
e.g., Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166 [“plaintiffs
repeatedly cite to 170 pages of their motion to vacate without directing us to specific
pages”]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 990 [“Sections of
the statement of facts in the appellant’s opening brief include no record citations at all.”].)
When a litigant repeatedly provides no page citations to the record, the rule violation is
“egregious[],” significantly burdening the opposing party and the court. (Evans v.
Centerstone Development Co., at pp. 166–167.)
In this appeal, plaintiff submitted an opening brief totaling 52 pages that fails to
include any meaningful page-specific citations to the record.2 Instead, the brief provides
“citations” such as “Complaint, ¶107, ” or makes statements such as “[f]acts supporting
Appellant’s claims are set forth in the above-cited documents, i.e., the Complaint, FAC,
and oppositions to Wells Fargo’s first and second demurrers (above, which are
incorporated herein by reference)”—asking this court to wade through nearly 300 pages
without guidance. In short, plaintiff’s briefing egregiously violates the Rules of Court
and provides little help in analyzing the merits of her challenges to the judgment.
These violations appear to be part of a pattern. At oral argument in a prior case in
this court, Sato v. Bank of America (Mar. 2, 2015, A138944) [nonpub. opn.] (Sato)),
Andrew R. Martin—who signed the opening appellate brief here and presumably drafted
it—attempted to excuse identical rule violations by claiming that Sato was his “first
appellate case.” In our unpublished opinion, we made the following observation: “To say
counsel was being less than candid with the court is an understatement—this was an
outright mistruth. A quick search, by State Bar number, of the dockets of the First
District Court of Appeal, alone, showed 17 matters initiated between April 2009 and
October 2014, some completed[,] some still active, in which Martin was at least one
counsel of record. Thus, he has at least five-plus years of experience with appeals.
Moreover, Martin has been on briefs submitted to this court in these other cases which

2
In the “Procedural History” section, the opening brief merely provides citations to the
entire text of the major documents involved in this case, such as the complaints, the
demurrers, and the oppositions to the demurrers.

2
not only suffer from similar defects, they predate the February 2014 opening brief in this
case. For instance, the only record citation in the October 2013 opening brief in Jordon-
Mendoza v. JPMorgan Chase Bank N.A. (A138304, app. pending) is in a footnote on
page three, and it is to the entire complaint; nary a page cite is given. Even a ‘first time’
appellate lawyer is expected to read and comply with the Rules of Court. Martin’s
transgressions, as an experienced appellate lawyer, are inexcusable.” (Sato, pp. *2–*3,
fns. omitted.)
The consequences of these rule violations can be severe. “[I]t is counsel’s duty to
point out portions of the record that support the position taken on appeal,” and “[t]he
appellate court is not required to search the record on its own seeking error.” (Del Real v.
City of Riverside (2002) 95 Cal.App.4th 761, 768. Accordingly, “any point raised that
lacks citation may, in this court’s discretion, be deemed waived” or disregarded. (Ibid.;
see also Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1267 [“To
further complicate review, plaintiffs make numerous factual assertions in their briefs
without record citation” but “[w]e are entitled to disregard such unsupported factual
assertions”]; Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 60
(Lueras) [rule applies in demurrer context]; Hernandez v. Vitamin Shoppe Industries Inc.
(2009) 174 Cal.App.4th 1441, 1453 (Hernandez) [“ ‘ “ ‘an appellate court may disregard
any factual contention not supported by a proper citation to the record,’ ” ’ ” italics
omitted]; Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 788 [“No
record citation is given for this assertion, therefore we disregard it.”].)
Plaintiff’s 11-page “Introduction and Statement of Facts” section makes no
reference to the clerk’s transcript at all. For example, she states that the pooling and
servicing agreement involved here “required each transaction to be a ‘true sale’ supported
by a delivery and acceptance certificate from the receiving party, an endorsement of the
Note and an assignment of the [deed of trust].” This assertion, like all the factual
assertions in this portion of her brief, is unsupported by any citation to the record on
appeal. The best she offers is a few citations to paragraphs of her complaint, again
without any citation to where those paragraphs appear in the record. This does not

3
comply with the requirements of rule 8.204(a)(2)(C). (See State of California ex rel.
Standard Elevator Co., Inc. v. West Bay Builders, Inc. (2011) 197 Cal.App.4th 963, 968
[failure to provide a statement of facts as required by rule 8.204(a)(2)(C)]; Lopez v.
C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435–436, fn. 2 [party that
provides inadequate statement of facts “cannot be heard to complain” that appellate court
overlooked any material facts on review of summary judgment].)
The opening brief’s argument sections are equally devoid of any references to the
appellate record to support her factual assertions. Additionally, while she includes a table
of contents and a table of authorities, her tables do not contain the page numbers showing
where the titles and authorities appear in her brief.
When a party’s brief fails to comply with the requirements of rule 8.204, the
appellate court may decline to file it, return it for corrections, strike it with leave to file a
new brief, or “[d]isregard the noncompliance.” (Rule 8.204(e)(2)(A–C).) Plaintiff’s
current attorney, who submitted her reply brief, acknowledged the defects in the opening
brief and stated that he would submit an application to file a corrected brief.3 He
submitted his application too late, after the matter was set for argument. We have
discretion pursuant to rule 8.204(e)(2)(B) to strike plaintiff’s brief and order her to file an
amended version that attempts to correct her errors. However, based on our review of her
briefs and the record, we do not think doing so would change any of our conclusions
about the merits of her appeal.
Given that not a single factual assertion in plaintiff’s opening brief is supported in
a manner that complies with the Rules of Court, we disregard these assertions and base

3
To the extent plaintiff attempts to correct these deficiencies within her reply brief, we
need not consider arguments that she could have properly raised, but failed to do, in her
opening brief. (See American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446,
1453 [“[p]oints raised for the first time in a reply brief will ordinarily not be considered,
because such consideration would deprive the respondent of an opportunity to counter the
argument”]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8
[“ ‘[T]he rule is that points raised in the reply brief for the first time will not be
considered, unless good reason is shown for failure to present them before’ . . . .”].)

4
our understanding of the parties’ dispute on the portions of the record correctly cited by
Wells Fargo. In large part, this has not hampered our review of the merits of the
judgment. However, as we discuss, the failure to provide proper record citations in
connection with some issues has resulted in waiver of those issues on appeal. Further,
Martin is again put on notice that we will consider imposing sanctions should he file any
appellate brief in the future in this court bereft of proper citations to the record.
For these reasons, we conclude plaintiff does not meet her burden, as the
appellant, of establishing that the trial court affirmatively erred in these rulings from
which she properly appealed. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
Further, we have performed our duty to independently examine the pleading to determine
whether the facts alleged in plaintiff’s first amended complaint state a cause of action
under any possible legal theory. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
967.) We conclude that they do not.
II. Alleged Facts
The operative pleading, plaintiff’s 47-page verified first amended complaint
(FAC), alleges the following causes of action: (1) declaratory relief, (2) breach of implied
covenant of good faith and fair dealing, (3) deceit—promise made without intent to
perform, (4) deceit—intentional misrepresentation, (5) fraud and deceit—suppression of
material fact, (6) fraud and deceit—negligent misrepresentation, (7) promissory estoppel,
and (8) violation of Business & Professions Code section 17200 et seq.
In 2004, plaintiff, a Marin County resident, purchased improved real property in
Walnut Creek (the Property).4

4
Plaintiff and/or her husband own or owned properties at (1) 209 2nd Street, Isleton,
(2) 701 Price Street, Pismo Beach, (3) 2602 E. Olivera Road, Concord, (4) 2261 Huron
Drive, Concord, and (5) 5112 Concord Boulevard, Concord. Her husband, William,
individually owns two additional properties: 1240 North Gate Road, Walnut Creek, and
2813 Reagan Court, Antioch. Plaintiff and her husband are also residents of Marin
County. With such an accumulation of real property, plaintiff could be characterized as a
“sophisticated” real estate investor aware fully of the ramifications of financing such
deals.

5
 In April 2007, plaintiff refinanced the property with a $1,982,500 loan from
American Brokers Conduit (ABC). She signed a promissory note and a deed of trust
encumbering the property. The deed of trust named Mortgage Electronic Registration
Systems, Inc. (MERS) as beneficiary solely as nominee for the lender ABC, and its
successors and assigns.
Shortly thereafter, plaintiff also obtained a $457,500 loan from Citizens
Community Bank, secured by a second deed of trust on the Property.
In July 2009, plaintiff and her husband filed a Chapter 11 petition in bankruptcy.
The verified petition stated that Wells Fargo held the $1,982,500 lien on the Walnut
Creek property. Plaintiff and her husband voluntarily dismissed their bankruptcy case in
July 2010.
In October 2010, Default Resolution Network, acting as the beneficiary’s agent,
recorded a notice of default under the first deed of trust on the Property. A month later,
MERS recorded an assignment of its interest in that first deed of trust to HSBC Bank
USA, N.A., as trustee for Wells Fargo Asset Securities Corporation, Mortgage Pass-
Through Certificates, Series 2007-11.5
Fidelity National Title Co. (Fidelity) recorded an initial notice of trustee’s sale in
January 2011. A substitution of trustee was recorded on April 11, 2013, naming Fidelity
as the new trustee. That same day, Fidelity recorded a second notice of trustee’s sale. No
trustee’s sale has yet been held.
III. Procedural History
On May 2, 2013, plaintiff filed her initial complaint. The document is 56 pages
long, alleging 14 causes of action against Wells Fargo and Fidelity.
On May 20, 2013, plaintiff filed a motion for a preliminary injunction seeking to
enjoin Wells Fargo from foreclosing on the Property.

5
The FAC alleges that MERS recorded a second assignment of its interest in the same
deed of trust to the same assignee on March 6, 2012.

6
 On June 25, 2013, Wells Fargo filed a demurrer to the complaint on the ground
that each cause of action failed to state facts sufficient to constitute any cause of action
against it.
On September 23, 2013, the trial court sustained the demurrer to all causes of
action, five without leave to amend, the rest with leave to amend.6
On October 10, 2013, plaintiff filed the FAC, restating the nine remaining causes
of action.
On November 22, 2013, Wells Fargo filed a demurrer to the FAC.
On February 10, 2014, the trial court heard and sustained Wells Fargo’s demurrer
without leave to amend as to the entire FAC.
On March 5, 2014, the trial court entered a formal order sustaining the demurrer
without leave to amend.
On March 27, 2014, plaintiff filed a notice of appeal from the order sustaining the
demurrer and from an order denying her motion for preliminary injunction.7
On April 15, 2014, the trial court filed a judgment of dismissal. That same day,
the court filed its order dissolving a temporary restraining order and denying plaintiff’s
renewed motion for a preliminary injunction.

6
Wells Fargo successfully demurred to the original complaint. The FAC omits the
claims for which leave to amend was denied: injunction, intentional infliction of
emotional distress, negligent infliction of emotional distress, negligence, and wrongful
foreclosure.
7
Plaintiff filed her notice of appeal after the trial court sustained the demurrer without
leave to amend but before entry of judgment. Because no appeal lies from an order
sustaining a demurrer, even without leave to amend, but rather from a subsequent
judgment of dismissal, the notice of appeal is premature. (Gu v. BMW of North America,
LLC (2005) 132 Cal.App.4th 195, 202; Bame v. City of Del Mar (2001) 86 Cal.App.4th
1346, 1353, fn. 5.) We liberally construe plaintiff’s notice of appeal as an appeal from
the subsequently entered judgment. (Gu, at p. 202 [“notice of appeal ‘ “ ‘shall be
liberally construed in favor of its sufficiency.’ ” ’ [Citations.] Therefore, where it is
‘reasonably clear that the appellant intended to appeal from the judgment and the
respondent would not be misled or prejudiced,’ the notice of appeal may be interpreted to
apply to an existing judgment”]; Bame, at p. 1353, fn. 5.; see rule 8.100(a)(2).)

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 DISCUSSION
I. Standard of Review
“Because this case comes to us on a demurrer for failure to state a cause of action,
we accept as true the well-pleaded allegations in plaintiff’s . . . amended complaint.
‘ “We treat the demurrer as admitting all material facts properly pleaded, but not
contentions, deductions or conclusions of fact or law. [Citation.] We also consider
matters which may be judicially noticed.” [Citation.] Further, we give the complaint a
reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]’
[Citation.] ‘ “[A] complaint otherwise good on its face is subject to demurrer when facts
judicially noticed render it defective.” [Citation.]’ [Citations.]” (Evans v. City of
Berkeley (2006) 38 Cal.4th 1, 6.) “ ‘However, we . . . may disregard any allegations that
are contrary to the law or to a fact of which judicial notice may be taken.’ ” (Das v. Bank
of America, N.A. (2010) 186 Cal.App.4th 727, 734; Total Call Internat., Inc. v. Peerless
Ins. Co. (2010) 181 Cal.App.4th 161, 166.)
“While the decision to sustain or overrule a demurrer is a legal ruling subject to de
novo review on appeal, the granting of leave to amend involves an exercise of the trial
court’s discretion. [Citations.] When the trial court sustains a demurrer without leave to
amend, we must also consider whether the complaint might state a cause of action if a
defect could reasonably be cured by amendment. If the defect can be cured, then the
judgment of dismissal must be reversed to allow the plaintiff an opportunity to do so.
The plaintiff bears the burden of demonstrating a reasonable possibility to cure any defect
by amendment. [Citations.] A trial court abuses its discretion if it sustains a demurrer
without leave to amend when the plaintiff shows a reasonable possibility to cure any
defect by amendment. [Citations.] If the plaintiff cannot show an abuse of discretion, the
trial court’s order sustaining the demurrer without leave to amend must be affirmed.
[Citation.]” (Trader Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 43–
44.)
The plaintiff’s “burden of demonstrating a reasonable possibility to cure any
defect” is not pro forma. “ ‘To satisfy that burden on appeal, a plaintiff “must show in

8
what manner he can amend his complaint and how that amendment will change the legal
effect of the pleading.” [Citation.] . . . The plaintiff must clearly and specifically set
forth . . . factual allegations that sufficiently state all required elements of that cause of
action. [Citations.] Allegations must be factual and specific, not vague or
conclusionary.’ ” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481,
1491 (Rossberg), quoting Rakestraw v. California Physicians’ Service (2000)
81 Cal.App.4th 39, 43–44.)
II. The Legal and Statutory Framework
We set forth the legal and statutory framework for cases based on a wrongful
foreclosure scenario. “The financing or refinancing of real property in California is
generally accomplished by the use of a deed of trust.” (Jenkins v. JPMorgan Chase
Bank, N.A. (2013) 216 Cal.App.4th 497, 507 (Jenkins).) “A deed of trust . . . conveys
title to real property from the trustor-debtor to a third party trustee to secure the payment
of a debt owed to the beneficiary-creditor under a promissory note. [Citations.] The
customary provisions of a valid deed of trust include a power of sale clause, which
empowers the beneficiary-creditor to [foreclose] on the real property security if the
trustor-debtor fails to pay back the debt owed under the promissory note. [Citations.]”
(Id. at p. 508.)
“[A]lthough the deed of trust technically conveys title to the real property from the
trustor-debtor to the trustee, the extent of the trustee’s interest in the property is limited to
what is necessary to enforce the operative provisions of the deed of trust.” (Jenkins,
supra, 216 Cal.App.4th at p. 508.) Generally, a deed of trust requires the trustee only to
perform one of two “mutually exclusive duties: (1) should the trustor-debtor default on
the debt, the trustee must initiate foreclosure on the property for the benefit of the
beneficiary-creditor or (2) should the trustor-debtor satisfy the secured debt, the trustee
must reconvey title to the real property back to the trustor-debtor, extinguishing the
security device.” (Ibid.) Despite the security interest the deed of trust creates, “the
trustor-debtor retains all incidents of ownership with regard to the real property,
including the rights of possession and sale.” (Ibid.)

9
 When a trustor-debtor defaults “on a debt secured by a deed of trust, the
beneficiary-creditor may elect to judicially or nonjudicially foreclose on the real property
security. [Civil Code] [s]ections 2924 through 2924k set forth a ‘comprehensive
framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale
contained in a deed of trust.’ [Citation.]” (Jenkins, supra, 216 Cal.App.4th at p. 508,
original italics.) “To initiate the nonjudicial foreclosure process, the ‘trustee, mortgagee,
or beneficiary, or any of their authorized agents,’ must record a notice of default and
election to sell. [Citation.]” (Id. at p. 509.) The “mortgagee, trustee, or other person
authorized to take the sale” must then wait three months before proceeding with the sale.
(Civ. Code, § 2924, subd. (a)(3).) “After the three-month period has elapsed, a notice of
sale must be published, posted, recorded and mailed 20 days before the foreclosure sale.”
(Jenkins, at p. 509.) The property must be sold at a public auction to the highest bidder,
but before the sale occurs the statutory scheme provides the trustor-debtor with several
opportunities to cure the default and avoid losing the property. (Ibid.)
“The statutory scheme authorizing nonjudicial foreclosures ‘ “ ‘cover[s] every
aspect of [the] exercise of [a] power of sale contained in a deed of trust.’ [Citation.] . . .
[Citation.]” ’ [Citation.] ‘ “Because of the exhaustive nature of this scheme, California
appellate courts have refused to read any additional requirements into the non-judicial
foreclosure statute.” [Citations.]’ [Citation.]” (Rossberg, supra, 219 Cal.App.4th at
p. 1492.
III. The Demurrer Was Properly Sustained
A. Introduction
Before reviewing the individual causes of action in the original complaint and
FAC on their substantive merits, we make certain observations on the two pleadings. The
caption in each complaint is “Laura Rogers v. Wells Fargo Bank etc.” However, at the
bottom of each page of each complaint is the footer “Cappicilli v. J.P. Morgan Chase
Bank et al.” At the very least, this suggests a “lifting” of pleaded allegations (to what
degree we are unsure) of the claims in each complaint from another source. The possible
pleading of generic allegations in the complaint at issue here may also answer the trial

10
court’s concerns regarding the absence of material facts supporting the causes of action in
each of the filed complaints.8
B. Fraud and Deceit
Plaintiff’s seventh, eighth, ninth, and tenth causes of action all assert varieties of
fraud or deceit. (1 CT 59-69; 3 CT 372-382.) “The elements of fraud are
(1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the
misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting
damages. [Citation.]” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469
(Cansino).) All elements of fraud must be pleaded with particularity, meaning a plaintiff
must plead facts which “ ‘ “show how, when, where, to whom, and by what means the
representations were tendered.” ’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th
631, 645); see also Rutherford Holdings, LLC v. Plaza Del Rey (2014) 223 Cal.App.4th
221, 234 [“every element” must be pleaded].) “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.]” (Cansino, at p. 1469.)
While less specificity 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’ ” (Committee on Children’s Television, Inc. v. General Foods
Corp. (1983) 35 Cal.3d 197, 217), a defendant’s “knowledge about their own
communications” does not “relieve[] [a plaintiff] of [the] obligation to provide any
factual averments at all.” (Goldrich v. Natural Y Surgical Specialties, Inc. (1994)
25 Cal.App.4th 772, 783 (Goldrich).) A plaintiff must still allege “the facts constituting
every element of the fraud . . . , and [a] claim cannot be salvaged by references to the
general policy favoring the liberal construction of pleadings.” (Id. at p. 782, italics

8
This drafting feature is further manifested in the body of each draft where plaintiff
makes reference to Chase Bank’s financial successes even though Wells Fargo is the
named defendant. (Chase is the named financial institution in the case identified in the
footer.) There are other references in the pleadings that seem inconsistent with aspects of
this case.

11
omitted.) “Even in a case involving numerous oft-repeated misrepresentations, the
plaintiff must, at a minimum, set out a representative selection of the alleged
misrepresentations sufficient to permit the trial court to ascertain whether the statements
were material and otherwise actionable,” providing information about “what was said or
by whom” and “in what manner.” (Id. at. p. 783.)
We have reviewed the fraud cause of action alleged in both the original complaint
and the FAC. There is no evidence plaintiff and her counsel attempted to comply with
the heightened level of pleading required for fraud or deceit in the complaint, even after
leave was given to file an amended pleading. Even with the legal obligations on pleading
fraud or deceit underscored by the trial court after the hearing on the original complaint,
plaintiff simply filed anew what was previously rejected as insufficient.
We also observe plaintiff, as indicated earlier, is not an unsophisticated buyer of
real property and presumably would be especially attentive to the details a borrower
needs to know when transacting loans with banks.
While a plaintiff charging a bank with fraud might be excused for not knowing
and pleading the name of a bank employee who drafted a letter or who participated on a
particular teleconference (those names might well be known to the bank), the plaintiff
must still specify the letter or give the date and time of the teleconference, and specify the
statements at issue. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780,
794 (West).)
Plaintiff alleged Wells Fargo made several misrepresentations between January
2011 and the filing of her complaint, including that “there would be no foreclosure of the
property if she made [three] trial payments and submitted financial information for a loan
modification review.” Plaintiff also alleged Wells Fargo concealed material facts about
her loan and the modification process. However, she identified none of the alleged
misrepresentations or concealments with specificity. Even if we were to overlook the
lack of names of those making the alleged statements or omissions, there were minimal
allegations as to the timing of the statement and no allegations as to how any claimed
misrepresentations were made. Specifically, she fails to state whether the alleged

12
misstatements were oral or in writing. Nor does she include any information that could
potentially lead to the identification of the person or persons who made the alleged
modification agreement. She also repeatedly fails to provide timeframes as to when the
allegedly fraudulent statements were made.
As a result, plaintiff not only failed to adequately allege the claimed acts of fraud,
she also failed to adequately allege reliance and resulting damages. (See West, supra,
214 Cal.App.4th at p. 794; Goldrich, supra, 25 Cal.App.4th at p. 783; see also Rossberg,
supra, 219 Cal.App.4th at p. 1500 [conclusory allegations of harm from being dissuaded
from replacement loan or selling house does not satisfy fraud elements of reliance and
damages].) Accordingly, the fraud-based causes of action were properly dismissed.
C. Negligence and Negligent Infliction of Emotional Distress
As an initial matter, the trial court correctly dismissed plaintiff’s separate cause of
action for negligent infliction of emotional distress (fourth cause of action) because there
is no such independent cause of action. (Potter v. Firestone Tire & Rubber Co. (1993)
6 Cal.4th 965, 984 [“there is no independent tort of negligent infliction of emotional
distress”].) Rather, a plaintiff may seek emotional distress damages in connection with a
negligence claim. (See Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1520.)
Accordingly, we consider the purported negligent infliction claim in tandem with
plaintiff’s negligence claim (12th cause of action).
“To state a cause of action for negligence, a plaintiff must allege (1) the defendant
owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach
proximately caused the plaintiff’s damages or injuries.” (Lueras, supra, 221 Cal.App.4th
at p. 62.) A bank has no “common law duty of care to offer, consider, or approve a loan
modification, or to offer . . . alternatives to foreclosure.” (Id. at p. 68; see also Ragland v.
U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 206 [“No fiduciary duty exists
between a borrower and lender in an arm’s length transaction.”]) Because her opening
brief fails to cite to any specific allegations in the complaint that set forth the element of
duty, we consider any contentions related to negligence to be waived. (See Hernandez,
supra, 174 Cal.App.4th at p. 1453 [lack of specific citations to record waives claim].)

13
 Banks are, however, subject to claims premised on negligent misrepresentations.
(Lueras, supra, 221 Cal.App.4th at pp. 68–69 [“misrepresentations about the status of an
application for a loan modification or about the date, time, or status of a foreclosure sale”
could state a claim]; see Alvarez v. BAC Home Loans Servicing, L.P. (2014)
228 Cal.App.4th 941, 947; Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th
872, 898, 906 [“where specific representations were made by a Chase representative as to
the likelihood of a loan modification” summary judgment in favor of Chase was in
error].)
Nevertheless, to the extent plaintiff’s negligence claim was premised on alleged
“negligent misrepresentations” made during the course of the loan modification process,
the claim was still defective. Negligent misrepresentation is a species of fraud or deceit.
Given that, such a claim must be pleaded with heightened specificity. (Small v. Fritz
Companies, Inc. (2003) 30 Cal.4th 167, 184 [shareholder’s action for negligent
misrepresentation must be pleaded with particularity]; Chapman v. Skype Inc. (2013)
220 Cal.App.4th 217, 230–231 [both negligent and intentional misrepresentation claims
require particularized pleading].) As discussed in connection with her fraud and deceit
claims, plaintiff failed to plead the elements of such a claim with the requisite specificity.
Accordingly, the negligence-based claims were also properly dismissed.
When a party alleges negligence as a cause of action in a loan modification
context, she cannot claim the bank owed her a duty to approve the desired modification.
“A loan modification is the renegotiation of loan terms, which falls squarely within the
scope of a lending institution’s conventional role as a lender of money.” (Lueras, supra,
221 Cal.App.4th at p. 67.) The modification will be controlled by the papers and
regulations underlying the transaction. (Ibid.) “The Biakanja[9] factors do not support
imposition of a common law duty to offer or approve a loan modification. If the
modification was necessary due to the borrower’s inability to repay the loan, the

9
Biakanja v. Irving (1958) 49 Cal.2d 647.

14
borrower’s harm, suffered from denial of a loan modification, would not be closely
connected to the lender’s conduct.” (Ibid.)
In light of the absence of facts necessary to state a cause of action for negligence
in the complaint, the information presumably available to plaintiff, and her failure to
allege specific facts in those causes of action where amendment was permitted, we will
not overrule the demurrer to the negligence cause of action here. We also note the
generic features of this pleading referenced above.
D. Declaratory Relief, Quiet Title, and Wrongful Foreclosure
Plaintiff’s declaratory relief claim (first cause of action) asked the trial court to
stop the foreclosure process because she believed Wells Fargo lacked standing to
foreclose under California’s nonjudicial foreclosure statutes.10 The court disagreed and
sustained the demurrer to that cause of action, as well as her claims for quiet title (fifth
cause of action). Wells Fargo’s first demurrer to her claim for wrongful foreclosure (13th
cause of action) was sustained without leave to amend because no foreclosure sale had
occurred.
A defaulting borrower has no right, on a mere hope or hunch, to test in court
whether an entity conducting a nonjudicial foreclosure in fact has authority to foreclose.
(Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154 (Gomes)
[“Nothing in the statutory provisions establishing the nonjudicial foreclosure process
suggests that such a judicial proceeding is permitted or contemplated.”]; Jenkins, supra,
216 Cal.App.4th at p. 513 [allowing a “preemptive” action “would result in the
impermissible interjection of the courts into a nonjudicial scheme enacted by the
California Legislature”].)
When loan and default are conceded, such hypothetical disputes between those
transferring or securitizing the loan do not create an actual controversy between the

10
Code of Civil Procedure section 1060 authorizes a declaratory action by “[a]ny person
. . . who desires a declaration of his or her rights or duties with respect to another, or in
respect to, in, over or upon property” when there is an “actual controversy relating to the
legal rights and duties of the respective parties.”

15
owing borrower and the foreclosing entity. Thus, a borrower cannot halt the nonjudicial
foreclosure process with boilerplate allegations and condemnatory rhetoric about the evils
of the banks’ creation of securitized loan investment vehicles, and thereby put the burden
on the foreclosing entity to establish in court its right to proceed with a nonjudicial
foreclosure. (Jenkins, supra, 216 Cal.App.4th at pp. 512, 515.) A “preemptive” cause of
action “ ‘would fundamentally undermine the nonjudicial nature of the process and
introduce the possibility of lawsuits filed solely for the purpose of delaying valid
foreclosures.’ ” (Id. at p. 513, quoting Gomes, supra, 192 Cal.App.4th at p. 1155–
1156.)11
Both parties appear to agree that a borrower may pursue preemptive declaratory
relief if the borrower can identify “a specific factual basis for alleging that the foreclosure
was not initiated by the correct party.” (Gomes, supra, 192 Cal.App.4th at p. 1156, italics
omitted [distinguishing three federal trial court cases and finding borrower’s suit
speculative]; but see Jenkins, supra, 216 Cal.App.4th at pp. 512–513 [indicating
preemptive wrongful foreclosure cases are categorically banned and, thus, suggesting
doubt as to whether there is any viable “Gomes exception”].)
The only case the plaintiff cites as applying a “Gomes exception” is Glaski v.
Bank of America (2013) 218 Cal.App.4th 1079 (Glaski). To begin with, Glaski is

11
Plaintiff argues that the California Homeowners Bill of Rights (HBOR), in particular
Civil Code section 2924, subdivision (a)(6), “legislatively overrules Gomes by requiring
a foreclosing entity to show current ownership of a beneficial interest in the note or
current authorization from that entity.” Wells Fargo disputes this contention. But even
assuming plaintiff is correct, the HBOR and the amendment to that Civil Code section
became effective on January 1, 2013, over 2 years after the default under plaintiffs deed
of trust was recorded in October 2010. (See Alvarez v. BAC Home Loans Servicing, L.P.
(2014) 228 Cal.App.4th 941, 950.) “[U]nless there is an ‘express retroactivity provision,
a statute will not be applied retroactively unless it is very clear from extrinsic sources that
the Legislature . . . must have intended a retroactive application.’ ” (Myers v. Philip
Morris Companies, Inc. (2002) 28 Cal.4th 828, 841.) The HBOR does not state that it
has retroactive effect (Rockridge Trust v. Wells Fargo, N.A. (N.D. Cal. 2013) 985
F.Supp.2d 1110, 1152), and plaintiff has not identified any extrinsic sources indicating
the Legislature intended that it have one.

16
distinguishable on its facts, including because it is a postforeclosure case in which the
defaulting borrower sought to set aside a trustee’s sale. Moreover, in that case, the
borrower’s loan had been securitized by being placed into a trust formed under New York
law, and the appellate court concluded the borrower had standing to challenge an
assignment of the note on the basis the defendants failed to assign it before the trust’s
closing date, creating a defect in the chain of title. (Id. at p. 1096.) Glaski hinged
specifically on New York law, which the court read as voiding the assignment. (Ibid.)
This, in contrast, is a preemptive lawsuit. Further, no comparable California or other
state statute has been identified as creating a defect in the chain of title.12
Plaintiff alleged only that the assignment of MERS’ interest in her deed of trust to
HSBC Bank, as trustee, was not recorded until after the securitized trust’s closing date.
She affirmatively alleged that her loan was sold into the trust on or before its closing
date.13 As the trial court correctly held, “[t]he fact that this timely sale [of plaintiff’s loan

12
Glaski has also been seriously criticized not only as being inconsistent with California's
developing foreclosure jurisprudence, but also as incorrectly applying New York law.
(See, e.g., Sandri v. Capital One, N.A. (Bankr.N.D.Cal. 2013) 501 B.R. 369, 374–375
[explaining how Glaski unpersuasively departs from California jurisprudence]; Rajamin
v. Deutsche Bank Nat. Trust Co. (2d Cir. 2014) 757 F.3d 79, 90 [rejecting Glaski as
inconsistent with other courts’ interpretations of New York statute]; see also Siliga v.
Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85 [borrower
has no standing to challenge assignment of deed of trust]; Jenkins, supra,
216 Cal.App.4th 497, 515 [same]; Fontenot v. Wells Fargo Bank, N.A. (2011)
198 Cal.App.4th 256, 272 [same].) Whether a defaulting borrower has “standing” under
Glaski is presently before the California Supreme Court. (Yvanova v. New Century
Mortgage Corp. (review granted Aug. 27, 2014, S218973) [granting review on following
question: “In an action for wrongful foreclosure on a deed of trust securing a home loan,
does the borrower have standing to challenge an assignment of the note and deed of trust
on the basis of defects allegedly rendering the assignment void?”]) In any case, we need
not, and do not, weigh in on the Glaski “standing” issue since the case is readily
distinguishable and, as we discuss, the record shows no defects in authorization.
13
In her reply brief, she contradicts her own pleading, alleging that “the transfer did not
. . . occur until November 4, 2010, years after the closing date of the Trust, regardless of
the allegations in the FAC.” This assertion comes woefully late and, in any event, is not
well taken.

17
into the trust] was not immediately documented with a recorded notice of assignment is
not material.”
It is established under California law that a debt secured by a deed of trust can be
assigned without recordation of any document. (Fontenot v. Wells Fargo Bank, N.A.,
supra, 198 Cal.App.4th at p. 272.) Recordation is not required for the assignment of a
beneficial interest in a deed of trust to be effective. (Haynes v. EMC Mortgage Corp.
(2012) 205 Cal.App.4th 329, 332–336.)
We therefore need not, and do not, resolve whether plaintiff suffered “prejudice”
as a result of any lack of authority of the parties participating in the foreclosure process.
(Compare Siliga v. Mortgage Electronic Registration Systems, Inc. (2013)
219 Cal.App.4th 75, 79, 85 [concluding, in preemptive foreclosure case, that “[a]bsent
any prejudice, the [borrowers] have no standing to complain about any alleged lack of
authority or defective assignment”] with Mena v. JP Morgan Chase Bank, N.A.
(N.D.Cal., Sept. 7, 2012, No. 12-1257 PSG) 2012 U.S.Dist. Lexis 128585 p. *25 [threat
of foreclosure by wrong party would constitute prejudice].) We also need not consider
plaintiff’s failure to tender her debt.
For these reasons, plaintiff’s declaratory relief claim was properly dismissed. Her
related claims for quiet title and wrongful foreclosure are premised on the same supposed
“securitization” issues raised in connection with their insufficient declaratory relief claim.
Accordingly, for the reasons we have discussed, these claims were also properly
dismissed.
E. Intentional Infliction of Emotional Distress
Plaintiff also alleged Wells Fargo intentionally inflicted emotional distress (third
cause of action) by attempting to “steal” her home through the “demand [of] mortgage
payments” without legal right. However, as we have discussed, she has failed to state
any preemptive claim for unlawful foreclosure and, as will be discussed, she has failed to
demonstrate any error in the sustaining of the demurrer to her promissory estoppel claim.
Accordingly, her conclusory assertion that Wells Fargo intentionally acted to “steal” her
house does not, and cannot, support an intentional infliction claim.

18
 Furthermore, plaintiff alleged no specific conduct during the ongoing “loan
agreement” dispute “that could be considered ‘outrageous.’ ” (Wilson v. Hynek (2012)
207 Cal.App.4th 999, 1009.) For instance, “[t]here are no allegations that in conducting
the foreclosure proceedings any of the defendants threatened, insulted, abused or
humiliated [her].” (Ibid.) Accordingly, the intentional infliction claim was also properly
dismissed.
F. Unfair Competition Law
The 14th cause of action was for violation of California’s Unfair Competition Law
(UCL) (Bus. & Prof. Code, § 17200 et seq.). Plaintiff has once again failed to identify or
adequately cite to any allegations made in support of her UCL claim. Accordingly, she
has waived any issue on appeal in connection with this claim. (Hernandez, supra,
174 Cal.App.4th at p. 1453 [lack of specific citations to record waives claim]; see also
Rossberg, supra, 219 Cal.App.4th at p. 1502 [“the Rossbergs fail to cite any authority to
explain what constitutes an unfair business practice or act under the UCL” even though
they “bore the burden to show how the alleged facts are sufficient to establish every
element of this cause of action”].)
As Wells Fargo correctly asserts, the UCL claim was derivative of plaintiff’s
other, failed causes of action. (See Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th
1176, 1185 [“When a statutory claim fails, a derivative UCL claim also fails.”]; Cansino,
supra, 224 Cal.App.4th at p. 1474 [when fraud claims fail for lack of specificity, UCL
claim based on fraud also fails].) Accordingly, the dismissal of plaintiff’s UCL claim
must stand.
G. Breach of Implied Covenant of Good Faith and Fair Dealing
Plaintiff’s sixth cause of action alleged that Wells Fargo breached the implied
covenant of good faith and fair dealing by failing “to properly review [her] loan for
modification as promised.”
“Every contract imposes on each party a duty of good faith and fair dealing in
contract performance and enforcement such that neither party may do anything to deprive
the other party of the benefits of the contract. [Citations.] ‘ “This covenant not only

19
imposes upon each contracting party the duty to refrain from doing anything which
would render performance of the contract impossible by any act of his own, but also the
duty to do everything that the contract presupposes that he will do to accomplish its
purpose.” ’ [Citation.] [¶] ‘The covenant of good faith finds particular application in
situations where one party is invested with a discretionary power affecting the rights of
another. Such power must be exercised in good faith.’ [Citation.]” (Lueras, supra,
221 Cal.App.4th 49 at p. 76.)
Because “ ‘the scope of conduct prohibited by the covenant of good faith is
circumscribed by the purposes and express terms of the contract’ [citation]” (Jenkins,
supra, 216 Cal.App.4th at p. 524), it is impossible to assess whether a party has breached
the implied covenant of good faith and fair dealing with respect to a contract where the
party alleging breach fails to allege the terms of the underlying contract. While the
parties obviously had a contractual relationship with respect to the original loan, plaintiff
fails to allege the existence of a contract to negotiate a modification of the already
existing loan agreement.
Specifically, plaintiff fails to allege that a written contract to this effect exists and
fails to identify the specific terms of any such contract. Her factual allegations as to what
various employees at Wells Fargo told her at different times do not establish the existence
of such a contract. In other words, apart from her conclusory allegation that there was a
contract between the parties to work toward a modification, there are no other allegations
identifying the parties who may have entered into such a contract, the alleged date on
which the contract was entered into, or what the terms of this alleged contract were.
Given the absence of any allegations regarding the terms of the contracts on which
plaintiff relies, the FAC fails to state a claim for breach of the implied covenant of good
faith and fair dealing based on the purported agreement to modify her loan. The trial
court thus properly sustained Wells Fargo’s demurrer to the sixth cause of action.
H. Promissory Estoppel
“ ‘ “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;

20
(3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the
estoppel must be injured by his reliance.’ ” ’ [Citation.]” (Aceves v. U.S. Bank N.A.
(2011) 192 Cal.App.4th 218, 225.)
Although plaintiff also purports to challenge the trial court’s sustaining of the
demurrer on the promissory estoppel claim (11th cause of action), she has again neither
analyzed the elements of such claim nor cited any record evidence supporting any
element of such a claim. As a result, she has waived appellate review, and we therefore
affirm the ruling in favor of Wells Fargo. (See Moulton Niguel Water Dist. v. Colombo
(2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to
support them with reasoned argument . . . .”]; Carson v. Mercury Ins. Co. (2012)
210 Cal.App.4th 409, 430 [“Our scope of review is limited to issues that have been
adequately raised and are supported by analysis.”], citing Badie v. Bank of America
(1998) 67 Cal.App.4th 779, 784–785 [“When an appellant fails to raise a point, or asserts
it but fails to support it with reasoned argument and citations to authority, we treat the
point as waived.”].)
I. Unpursued Injunctive Relief
Plaintiff has not even attempted to pursue her claims for injunctive relief on
appeal. Accordingly, we deem these claims abandoned and do not examine the merits of
their dismissal. (See Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 984, fn. 1
[“failure to discuss cause of action on appeal from trial court’s order sustaining demurrer
constitutes abandonment of that cause of action on appeal”].)
IV. Denial of Leave to File Second Amended Complaint
Having concluded the demurrers were properly sustained or the issues have been
waived on appeal, we next consider whether the trial court properly exercised its
discretion in denying leave to amend.
Plaintiff has proposed no further amendments that would cure the defects in her
pleadings we have discussed. Accordingly, the trial court’s sustaining of the demurrers
without leave to amend was not an abuse of discretion. (Zelig v. County of Los Angeles

21
(2002) 27 Cal.4th 1112, 1126 [burden on the plaintiff to show “ ‘reasonable possibility’ ”
of amending].)
In short, we find no reason to reverse any portion of the trial court’s sustaining of
Wells Fargo’s demurrer without leave to amend. In light of our conclusions, we do not
address the remainder of the arguments made by the parties.
DISPOSITION
The judgment is affirmed.

22
 _________________________
DONDERO, J.

We concur:

_________________________
HUMES,. P.J.

_________________________
BANKE, J.

23