Grant v. Clear Recon Corp. CA4/3

Filed 9/11/20 Grant v. Clear Recon Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

GAVIN GRANT,

Plaintiff and Appellant, G057851

v. (Super. Ct. No. 30-2017-00898495)

CLEAR RECON CORP., OPINION

Defendant and Respondent.

Appeal from a judgment of the Superior Court of Orange County, Robert J.
Moss, Judge. Affirmed.
Gavin Grant, in pro. per., for Plaintiff and Appellant.
Aldridge Pite, Fred T. Winters for Defendant and Respondent.

* * *
 Plaintiff Gavin Grant filed this action against defendants Bank of America,
N.A. (Bank of America) and Clear Recon Corporation (Clear Recon) after they initiated
nonjudicial foreclosure proceedings on his residence. The court sustained Clear Recon’s
demurrer to Grant’s second amended complaint without leave to amend and entered a
judgment of dismissal as to Clear Recon.
On appeal, Grant contends the court erred by sustaining the demurrer
because he pleaded sufficient facts to state causes of action against Clear Recon for
1
violations of Civil Code sections 2923.55 and 2924.17, cancellation of documents,
breach of implied covenant of good faith and fair dealing, negligence, and a violation of
Business and Professions Code section 17200. We disagree and further conclude the
court did not abuse its discretion by denying Grant another opportunity to amend his
complaint. We also reject Grant’s arguments that the court lacked impartiality and
violated his rights to due process and a jury trial by sustaining Clear Recon’s demurrer
and dismissing the case as to it. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

The factual allegations in Grant’s second amended complaint mainly focus
on the actions of Bank of America. As this appeal concerns the judgment of dismissal as
to Clear Recon after the court sustained its demurrer, we focus on Grant’s factual
allegations relating to Clear Recon but briefly summarize the allegations concerning
Bank of America for context.
In 2007, Grant refinanced his home mortgage and obtained a $998,000 loan
from Bank of America, which was secured by a deed of trust. The deed of trust named
Bank of America as the lender and beneficiary and PRLAP, Inc. as the trustee. The loan
1
All further statutory references are to the Civil Code unless otherwise
stated.

2
provided for interest only payments for 10 years (from Dec. 2007 to Dec. 2017) and an
adjustable interest rate after December 2012. Although these loan terms were set out in a
document signed by Grant, he was unaware of them.
Grant made loan payments for a few years but did not understand how they
were being applied and why his loan balance was not decreasing. He contacted Bank of
America “to resolve discrepancies and cure the defects.” Bank of America did not
respond to his request for an accounting, ignored his dispute over the loan balance, and
refused his requests to review the original promissory note and deed of trust.
In December 2015, a substitution of trustee was recorded, naming Clear
Recon as the trustee. That same day, Clear Recon recorded a notice of default indicating
Grant failed to make installment payments beginning in December 2009 and owed
$390,560.60 in interest. Attached to the notice of default was a declaration signed by a
Bank of America employee, stating the declarant had reviewed Bank of America’s
business records and those records reflected that the bank had “[c]ontacted the borrower
to assess the borrower’s financial situation and to explore options for the borrower to
avoid foreclosure in accordance with California Civil Code § 2923.55(b)(2).” However,
this declaration was false because Bank of America had not contacted Grant to assess his
financial situation or explore his options to avoid foreclosure at that time. He also
alleged the default amount was incorrectly stated in the notice of default because Bank of
America had not properly applied his payments to the loan.
After receiving the notice of default, Grant applied for a loan modification
with Bank of America. He was approved for a trial modification but did not accept it
because Bank of American “used an exaggerated income . . . to determine his eligibility.”
Because of this, Grant was not adequately reviewed for other loan modifications or
foreclosure alternatives.
Clear Recon recorded a notice of trustee’s sale in March 2016.

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 In September 2016, Grant attempted to satisfy his loan obligation by giving
Bank of America a “Bankers Promissory Note,” in which he promised to pay Bank of
America $1,500,000.00 in monthly installments of $10,000 until the obligation was
fulfilled. The terms of the Bankers Promissory Note indicated that the holder’s
acceptance of the note and failure to return it within two banking days constituted
acceptance as full settlement and discharge of debt. Bank of America did not return the
note within the allotted time frame and never returned the original. Grant sent multiple
letters to Bank of America stating that his loan was paid in full by their “acceptance” of
the promissory note. But Bank of America refused to “set off” his account.
Defendants moved forward with the nonjudicial foreclosure process, and
Clear Recon recorded another notice of trustee’s sale in November 2016.
In January 2017, Grant filed his complaint in the instant matter, alleging
causes of action against Clear Recon for violations of sections 2923.55 and 2924.17;
cancellation of instruments; violation of Business and Professions Code section 17200;
and wrongful foreclosure. These and additional causes of action were also alleged
against Bank of America.
Clear Recon filed a declaration of nonmonetary status under section 2924l,
representing it was named as a defendant solely in it its capacity as trustee under the deed
of trust. Grant filed an opposition stating his belief that Clear Recon “participated in
wrongful acts or omissions based on its capacity outside of its alleged substituted trustee
duties which are not privileged according to Civil Code § 2924(d).”
In September 2017, Grant filed an action in federal court against Bank of
America and Clear Recon for trespass, breach of contract, theft, and fraudulent claims.
The federal court dismissed the action in October 2017 because it lacked subject matter
jurisdiction.

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 In January 2018, Clear Recon filed an answer to the complaint and a
motion for judgment on the pleadings. The court granted Clear Recon’s motion for
judgment on the pleadings and gave Grant time to file an amended complaint. Grant filed
a first amended complaint in July 2018 and defendants filed separate demurrers to the
amended complaint.2
In November 2018, Grant filed his second amended complaint, the
operative complaint for purposes of this appeal. In it, he asserted eight causes of action
against Bank of America, six of which were also alleged against Clear Recon: (1)
violation of section 2923.55; (2) violation of section 2924.17; (3) cancellation of
instruments; (4) breach of implied covenant of good faith and fair dealing; (5)
negligence; and (8) unfair and unlawful practices (Bus. & Prof. Code, § 17200).
Clear Recon moved to strike the causes of action against it in the second
amended complaint and demurred on the ground the complaint did not allege facts
sufficient to state each cause of action.
On March 22, 2019, the court sustained Clear Recon’s demurrer without
leave to amend and denied the motion to strike as moot. Judgment of dismissal in favor
of Clear Recon was entered and Grant appealed.

DISCUSSION

We begin by discussing Grant’s contention that the court erred by
sustaining Clear Recon’s demurrer as to all six causes of action asserted against it as
resolution of this issue informs our consideration of his remaining claims.

2
The appellate record does not include the first amended complaint or the court’s
ruling on either demurrer.

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THE DEMURRER WAS PROPERLY SUSTAINED
Grant contends that each of the six causes of action asserted against Clear
Recon in the second amended complaint were adequately pleaded, and, therefore, the
court erred in sustaining its demurrer. We disagree.

Standard of Review
We review a trial court’s order sustaining a demurrer de novo and apply the
abuse of discretion standard in reviewing the court’s denial of leave to amend the
complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Alexander v. Exxon Mobil
(2013) 219 Cal.App.4th 1236, 1250-1252.) “In conducting our de novo review, we ‘must
“give[ ] the complaint a reasonable interpretation, and treat[ ] the demurrer as admitting
all material facts properly pleaded.”’” (WA Southwest 2, LLC v. First American Title Ins.
Co. (2015) 240 Cal.App.4th 148, 151.) “[W]e accept the truth of material facts properly
pleaded in the operative complaint, but not contentions, deductions, or conclusions of fact
or law.” (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924.) “The
fact that we examine the complaint de novo does not mean that plaintiffs need only
tender the complaint and hope we can discern a cause of action. It is plaintiffs’ burden to
show either that the demurrer was sustained erroneously or that the trial court’s denial of
leave to amend was an abuse of discretion.” (Keyes v. Bowen (2010) 189 Cal.App.4th
647, 655.) Where the court sustains a demurrer without leave to amend, we decide if
“there is a reasonable possibility the plaintiff could cure the defect with an amendment.
[Citation.] . . . [Citation.] The plaintiff has the burden of proving that an amendment
would cure the defect.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

Trustees in Nonjudicial Foreclosures
As we must analyze whether Grant properly pleaded causes of action
against Clear Recon, a trustee in a nonjudicial foreclosure, we briefly discuss California’s

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nonjudicial foreclosure process and the role of the trustee in this process. “A nonjudicial
foreclosure sale is a ‘quick, inexpensive[,] and efficient remedy against a defaulting
debtor/trustor.’ [Citation.] To preserve this remedy for beneficiaries while protecting the
rights of borrowers, ‘sections 2924 through 2924k provide a comprehensive framework
for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained
in a deed of trust.’ [Citation.] Under a deed of trust, the trustee holds title and has the
authority to sell the property in the event of a default on the mortgage. [Citation.] To
initiate a foreclosure, ‘[t]he trustee, mortgagee, or beneficiary, or any of their authorized
agents’ must first record a notice of default.” (Brown v. Deutsche Bank National Trust
Co. (2016) 247 Cal.App.4th 275, 280.)
“[T]he trustee under a deed of trust is an agent of the beneficiary only in a
limited sense. Such a trustee ‘has neither the powers nor the obligations of a strict
trustee; rather, he serves as a kind of common agent for the trustor and the beneficiary.
[Citations.] His agency is a passive one, for the limited purpose of conducting a sale in
the event of the trustor’s default or reconveying the property upon satisfaction of the
debt. [Citations.]’ [Citations.] ‘“The scope and nature of the trustee’s duties are
exclusively defined by the deed of trust and the governing statutes. No other common
law duties exist.”’” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 819.)

Violation of Section 2923.55
In his first cause of action, Grant alleged Clear Recon and Bank of America
3
violated former section 2923.55. Section 2923.55 was part of the Homeowners Bill of
Rights (HBOR). “The HBOR was effective January 1, 2013, and . . . the legislation

3
References to section 2923.55 throughout this opinion are to the version of
the statute in effect at the time of the alleged statutory violation in 2015. Former section
2923.55 was repealed on January 1, 2018, pursuant to a sunset provision. (Stats. 2013,
ch. 76, § 15; former § 2923.55, subd. (i).) The statute was recodified effective January 1,
2019, with minor alternations not relevant to the issue here. (Stats. 2018, ch. 404, § 6.)

7
sought to ‘modify[ ] the foreclosure process to ensure that borrowers who may qualify for
a foreclosure alternative are considered for, and have a meaningful opportunity to obtain,
available loss mitigation options.’” (Lucioni v. Bank of America, N.A. (2016) 3
Cal.App.5th 150, 157 (Lucioni).) Most of the statutory provisions in the HBOR place
duties upon a lender before a lender can cause a notice of default to be filed. (Id. at p.
158 & fn. 4.)
Section 2923.55, subdivision (a)(1) prohibited “[a] mortgage servicer,
mortgagee, trustee, beneficiary, or authorized agent” from recording a notice of default
under section 2924 until 30 days after the mortgage servicer had satisfied the
requirements of subdivision (b) of section 2923.55. A mortgage servicer was required
under subdivision (b)(2) to “contact the borrower in person or by telephone in order to
assess the borrower’s financial situation and explore options for the borrower to avoid
foreclosure.” During this initial contact, the mortgage servicer was to “advise the
borrower that he or she has the right to request a subsequent meeting and, if requested,
the mortgage servicer shall schedule the meeting to occur within 14 days.” (Ibid.) Either
during the initial or subsequent contact, the mortgage servicer must give the borrower the
United States Department of Housing and Urban Development’s toll-free telephone
number for finding a certified housing counseling agency. (Ibid.) The statute further
required a notice of default recorded under section 2924 to “include a declaration that the
mortgage servicer has contacted the borrower, [or] has tried with due diligence to contact
the borrower as required by this section . . . .” (§ 2923.55, subd. (c).)
If there is “a material violation of section 2923.55,” a homeowner can bring
an action for injunctive relief prior to a foreclosure sale (§ 2924.12, subd. (a)(1); Lucioni,
3 Cal.App.5th at p. 158), and the sale is enjoined until the violation has been “corrected
and remedied.” (§ 2924.12, subd. (a)(2).) After a foreclosure sale, a borrower may
recover “for actual economic damages pursuant to Section 3281, resulting from a

8
material violation of Section 2923.55” if “the violation was not corrected and remedied
prior to the recordation of the trustee’s deed upon sale.” (§ 2924.12, subd. (b).)
In his second amended complaint, Grant alleged Clear Recon and Bank of
America violated section 2923.55 by failing to contact him “to assess [his] financial
situation and explore options to avoid foreclosure; to advise [him] of his right to request a
meeting with Defendant within 14 days; and to provide [him] the toll free number made
available by the Department of Housing and Urban Development (‘HUD’) for housing
counseling.” He further alleged the declaration by a Bank of America employee attached
to the notice of default, which stated Bank of America had “[c]ontacted the borrower to
assess [his] financial situation and to explore options for the borrower to avoid
foreclosure in accordance with California Civil Code § 2923.55(b)(2),” was false because
Bank of America had not contacted him at that time. His claim contained further
allegations that both defendants violated section 2923.55 because they “feigned working
with [him], and then went ahead and illegally initiated foreclosure proceedings” and
“purposefully delayed communication and refused any loss mitigation options to [him].”
Inconsistent with his allegation that he was refused any loss mitigation options, Grant
alleged, “Defendants did not negotiate a loan modification in good faith” and defendants
“implemented their scheme of delay and foreclosure” when they determined he was
eligible for relief. Grant also made conclusory allegations that the notice of default was
“wholly improper and invalid” and that both defendants “are guilty of malice, fraud[,]
reckless behavior” “and oppression.” He sought injunctive relief as well as statutory and
punitive damages.
Grant’s allegations fail to state a cause of action against Clear Recon for a
violation of section 2923.55. The statute imposed obligations on the “mortgage servicer”
to contact the borrower to discuss the borrower’s options for avoiding foreclosure
(§ 2923.55, subd. (b)(2)) and for the mortgage servicer to submit a declaration stating that
it had contacted the borrower (id., subd. (c)). The statute did not impose a duty upon the

9
trustee to confirm that a declaration provided by the mortgage servicer was accurate nor
did it require the trustee otherwise to verify the mortgage servicer had satisfied the
requirements of section 2923.55 before the trustee files a notice of default. Here, Bank of
America was the mortgage servicer and it provided a declaration dated October 19, 2015,
stating it had complied with the requirements of section 2923.55, subdivision (b)(2).
Consistent with the statute, Clear Recon then recorded the notice of default on December
14, 2015, with Bank of America’s declaration attached. Thus, Grant failed to plead facts
sufficient to demonstrate a violation of section 2923.55 by Clear Recon.
Even assuming Grant could bring a claim against Clear Recon for Bank of
America’s violation of section 2923.55, he could obtain neither damages nor injunctive
relief for the violation because it had been remedied already. Section 2923.55 confers “a
right to be contacted to ‘assess’ and ‘explore’ alternatives to foreclosure prior to a notice
of default.” (Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 225 [discussing
§ 2923.5, the predecessor to § 2923.55].) Grant alleged Bank of America did not contact
him to assess his financial situation and explore his options for foreclosure prior to Clear
Recon recording the notice of default, but he also alleged that after receiving the notice of
default, he applied for a loan modification with Bank of America and was approved,
albeit with terms he found unacceptable. By reviewing Grant’s application and offering
him a loan modification, Bank of America remedied any violation of section 2923.55,
subdivision (b)(2). (See Schmidt v. Citibank, N.A. (2018) 28 Cal.App.5th 1109, 1121
[concluding the loan servicer “complied with the requirements of former section 2923.55,
subdivision (b)(2) by fully reviewing and processing the [homeowner’s] loan
modification application before recording the notice of default”].)
Because Grant brought this action preforeclosure, the only remedy
available to him for a material violation of section 2923.55 was a postponement of the
foreclosure sale until the violation of the statute was remedied. (§ 2924.12, subd. (a).)
Because Bank of America had remedied the alleged violation of section 2923.55, Grant

10
had received his remedy already and he was not entitled to further relief. We conclude
the court properly sustained the demurrer as to Grant’s first cause of action.

Violation of Section 2924.17
In his second cause of action, Grant alleged both defendants failed to
comply with section 2924.17, subdivisions (a) or (b). Section 2924.17 was also enacted
as part of the HBOR. (Stats. 2012, ch. 87, § 20.) Subdivision (a) states that “[a]
declaration recorded . . . pursuant to Section 2923.55, a notice of default, notice of sale,
assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a
mortgage servicer in connection with a foreclosure subject to the requirements of Section
2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding
shall be accurate and complete and supported by competent and reliable evidence.”
Subdivision (b) of the statute provides that “[b]efore recording or filing any of the
documents described in subdivision (a), a mortgage servicer shall ensure that it has
reviewed competent and reliable evidence to substantiate the borrower’s default and the
right to foreclose, including the borrower’s loan status and loan information.”
“Section 2924.17 creates a procedural right directed at the requirements
for” the declaration the mortgage servicer is required to provide under section 2923.55 at
the time the notice of default is recorded. (Lucioni, supra, 3 Cal.App.5th at p. 162.)
“Sections 2924.17 and 2923.55 . . . place a burden on the foreclosing party to file a
declaration with the notice of default, and provide requirements for the lender’s diligence
prior to filing that declaration. Those provisions do not create a burden on the
foreclosing party to prove anything in court, other than that the declaration required by
section 2923.55, subdivision (c) was filed, and that necessary steps were taken before
filing it.” (Id. at p. 163.)
In this cause of action, Grant alleged defendants “caused to be recorded a
Notice of Default and Notice of Trustee sale that were not based on reliable competent

11
evidence.” His claim was based on allegations that the default amount stated in the
notice of default and the unpaid balance in the notice of the trustee sale were not
accurate. Grant alleged he had disputed his loan balance with Bank of America for
several years but the bank continued to request the same amount. All of Grant’s
allegations in this claim concern Bank of America, the mortgage servicer. Missing from
Grant’s claim are any facts or authority indicating that the requirements of section
2924.17 apply to Clear Recon as trustee. As the mortgage servicer, Bank of America had
an obligation under section 2924.17, subdivision (a) to ensure its declaration was accurate
“and supported by competent and reliable evidence” and under subdivision (b) to ensure
“it ha[d] reviewed competent and reliable evidence to substantiate the borrower’s default
and [their] right to foreclose.” Clear Recon’s only duty under section 2924.17 was to
include Bank of America’s section 2923.55 declaration with the notice of default, which
it did. We conclude Grant did not plead sufficient facts demonstrating a violation of
section 2924.17 by Clear Recon and the court properly sustained Clear Recon’s demurrer
as to this cause of action.

Cancellation of Instruments
In his third cause of action, Grant alleged the trust deed, notice of default,
and notices of trustee’s sale were void and requested they be rescinded and/or cancelled.
His claim is based on section 3412, which provides, “A written instrument, in respect to
which there is a reasonable apprehension that if left outstanding it may cause serious
injury to a person against whom it is void or voidable, may, upon his application, be so
adjudged, and ordered to be delivered up or canceled.”
Grant alleged the deed of trust was void because he had tendered settlement
with the Bankers Promissory Note in 2016. As to the notice of default, he alleged it was
based on a false declaration and was not in compliance with the Civil Code. He also
alleged the notice of default and notices of trustee’s sale “were not based on reliable

12
competent evidence” but he did not explain what evidence was unreliable or incompetent
(presumably he was referring to Bank of America’s declaration). He further alleged the
notice of trustee’s sale recorded in November 2016 was void because he had tendered
settlement prior to its recording. Grant alleged that at the time the documents,
presumably the notices of default and trustee’s sale, “were created and published by the
Defendants, both Defendants knew the documents were false and created and published
them with the malicious intent to injure” him and to obtain the property.
Grant has not pleaded facts showing the deed of trust was invalid, that he
acted promptly in seeking to cancel it, or that this claim applies to Clear Recon, which
was substituted as trustee eight years after he signed the deed of trust. Nor has he
explained how his tender of the Bank Promissory Note invalidates the deed of trust. As
to the notices of default and trustee’s sale, Grant has not alleged “serious injury” as
required by section 3412. He alleges that if these documents are left outstanding, he
“may be required to pay double for the Subject Property or to defend a lawsuit based on
it, and by refusing to pay double for the Subject Property, Plaintiff may be further
damaged in his credit.” It is not clear what he means with his allegation that he will have
“to pay double” for the property if these notices are not rescinded. Presumably, he is
referring to having to pay his loan obligation under the trust deed and pay the Bankers
Promissory Note that he sent Bank of America. But Grant admits in his second amended
complaint that Bank of America has refused to accept this unsecured note as satisfaction
for his loan obligation and has made no efforts to recover any payments under his
Bankers Promissory Note. Grant’s payment obligations under the deed of trust remain
unchanged, and he does not deny that he is in default. Any risk of serious injury to
Grant’s credit is from the fact he defaulted on his loan, not any alleged deficiencies in the
notices of default or trustee’s sale recorded by Clear Recon. (Cf. Saterbak v. JPMorgan
Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818-819 [plaintiff failed to state a cause
of action under § 3412 because she did not show how the alleged invalid assignment of

13
her deed of trust could cause her serious injury].) Because Grant failed to properly allege
a claim for cancellation of his deed of trust or the notices of default and trustee’s sale, the
trial court properly sustained the demurrer on this cause of action.

Breach of Implied Covenant of Good Faith and Fair Dealing
In his fourth cause of action, Grant alleges both Bank of America and Clear
Recon “breached the implied covenant of good faith and fair dealing with the loan
contract.” “The prerequisite for any action for breach of the implied covenant of good
faith and fair dealing is the existence of a contractual relationship between the parties,
since the covenant is an implied term in the contract.” (Smith v. City and County of San
Francisco (1990) 225 Cal.App.3d 38, 49.)
Grant’s claim for breach of the implied covenant of good faith and fair
dealing is predicated on three theories, all of which concern conduct only by Bank of
America: (1) Bank of America miscalculated his income when approving him for a trial
loan modification, preventing him from being reviewed for other loan modification or
foreclosure alternatives; (2) Bank of America failed to respond to his “numerous
requests” regarding “payment discrepancies”; and (3) Bank of America “failed to set off”
his account after he tendered the Bankers Promissory Note. Grant attempts to bring Clear
Recon into this cause of action by alleging: “Each of the defendants . . . are believed to,
and are alleged to have been acting in concert with, as employee, agent, co-conspirator or
member of a joint venture of, each of the other Defendants, and are therefore alleged to
be jointly and severally liable for the claims . . . .” He also makes a conclusory allegation
that both defendants “are guilty of malice, fraud, and oppression” and their actions were
“malicious and done willfully in conscious disregard of [his] rights and safety . . . .” But
he fails to allege a contractual relationship between himself and Clear Recon. In the
absence of this, he “cannot state a cause of action for breach of the implied covenant.”

14
(Smith v. City and County of San Francisco, supra, 225 Cal.App.3d at p. 49.) Thus, the
court properly sustained the demurrer on this claim.

Negligence
In his fifth cause of action, Grant alleged a negligence claim against Bank
of America and Clear Recon. “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.
[Citation.] Whether a duty of care exists is a question of law to be determined on a case-
by-case basis.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49,
62.)
In his second amended complaint, Grant alleged Bank of America owed
him a duty of care in servicing his mortgage and in reviewing his loan for modification
assistance, that Bank of America breached this duty, and this breach was the proximate
cause of his damages. However, he did not allege facts establishing that Clear Recon
owed him a duty of care or breached any such duty. As a result, the second amended
complaint fails to state a cause of action for negligence as to Clear Recon.

Business and Professions Code Section 17200
In his eighth cause of action, Grant alleged both defendants engaged in
unfair, unlawful, and fraudulent business practices in violation of Business and
Professions Code section 17200 et seq. by: (1) not performing an accounting of his
account after he requested it; (2) not producing an “actual verified claim”; (3) failing to
review his loan modification in good faith; (4) violating sections 2924.17 and 2923.55;
and (5) not following the terms and conditions of the Bankers Promissory Note he
tendered to settle his loan He conclusory alleged “[a] civil conspiracy and joint venture
exists between [the] Defendants” and they are both liable. Grant, however, failed to

15
allege any facts showing that Clear Recon, as the trustee, was required to perform an
accounting of his account, produce a “verified claim,” review his loan modification, or
follow the terms and conditions of the Bankers Promissory Note he gave Bank of
America. This leaves only his allegation that Clear Recon engaged in an unlawful
business practice by violating sections 2924.17 and 2923.55. As discussed ante, he failed
to show a violation of these by Clear Recon. Thus, the court properly sustained the
demurrer as to Grant’s unlawful business practice claim against Clear Recon.

DENYING GRANT LEAVE TO AMEND
Grant contends the court abused its discretion by not granting him leave to
amend his second amended complaint. To demonstrate an abuse of the court’s discretion,
Grant must show there is a reasonable possibility that an amendment will cure the
complaint’s defects. (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 444.) In
his pleadings in the trial court and in his briefs in this court, Grant has maintained that he
properly stated all of the elements of the causes of action in the second amended
complaint and he has not explained how he could amend this complaint to overcome its
deficiencies. Because Grant has failed to demonstrate a reasonable possibility that a
further amendment will cure the defects, we conclude the court did not abuse its
discretion in denying him leave to amend. (See Heritage Pacific Financial, LLC v.
Monroy (2013) 215 Cal.App.4th 972, 994 [court did not abuse discretion in denying leave
to amend where plaintiff failed to demonstrate it could cure the defect].)

OTHER CLAIMS
Grant raises several additional issues in his opening brief, all of which fit
under the umbrella of his main contention that the court erred in sustaining the demurrer
and entering a judgment of dismissal as to Clear Recon. Grant contends the court was
not impartial in its ruling on the demurrer and violated his rights to due process and a jury

16
trial by sustaining the demurrer. He also contends that by violating his rights to a jury
trial and due process, the judgment of dismissal is void. We reject these claims, having
conducted a de novo review and concluded the court properly sustained Clear Recon’s
demurrer without leave to amend.
Again asserting the court denied him due process, Grant contends the court
violated section 453 of title 28 of the United States Code, which is the oath of allegiance
to the United States Constitution taken by federal judges. Even assuming this oath
applies to judicial officers of the Superior Court of the State of California, we see no
violation of the oath or Grant’s right to due process.
We also reject Grant’s contention that the court erred by conducting an
evidentiary hearing. Grant does not assert that the trial court conducted an evidentiary
hearing in this case but that a different court conducted an evidentiary hearing in a
separate case he filed against Bank of America and Clear Recon (Orange Co. Super. Ct.
case No. 30-2018-00993609) and that the court’s ruling on the demurrer in this action
was influenced by the other court’s ruling. The record does not support Grant’s claim as
there is no indication in the appellate record that the court was influenced by the
4
proceedings in the other case when it sustained Clear Recon’s demurrer.
It is difficult to decipher Grant’s argument entitled “the trial court erred
when it went against statements of counsel in brief or in oral argument are not facts
before the court.” (Bold and capitalization omitted.) It appears he is asserting the court

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Grant similarly contends the court in this case erroneously granted, over his
objection, Bank of America’s supplemental request for judicial notice of his second
amended complaint in his other case and the court’s ruling sustaining Bank of America’s
demurrer to those causes of action. He asserts the trial court erred by considering these
documents when ruling on Clear Recon’s demurrer in this case. Grant’s contention fails
because the appellate record does not include the trial court’s ruling on Bank of
America’s request for judicial notice, and even assuming the court granted the request for
judicial notice, there is no indication the court was influenced by these documents in
sustaining Clear Recon’s demurrer in this matter.

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cannot rely on statements by Clear Recon’s counsel in its brief or argument in court to
dismiss his claims. But he does not explain what statements he is referring to nor does he
cite to anything in the trial court’s ruling suggesting that it relied on statements by Clear
Recon’s counsel in sustaining the demurrer. By failing to support this contention with
reasoned argument and citations to the record, he has forfeited it. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784-785.)

DISPOSITION

The judgment is affirmed. Respondent shall recover its costs on appeal.

IKOLA, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.

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