Filed 9/23/15 Werner v. OneWest Bank Group CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SIX

LLEWELLYN C. WERNER, AS 

TRUSTEE OF THE WERNER LIVING 

TRUST DATED 1/28/99,

 Plaintiff and Appellant,

v.

ONEWEST BANK GROUP, LLC, et al.,

 Defendants and Respondents.

2d Civil No. B260032

(Super. Ct. No. 56-2013-

00444503-CU-CO-VTA)

(Ventura County)

Llewellyn C. Werner, as Trustee of the Werner Living Trust dated 1/28/99, 

appeals from the judgment entered in favor of respondents OneWest Bank Group, LLC,

and Deutsche Bank National Trust Company. The judgment was entered after the trial 

court had sustained respondents' demurrer without leave to amend. Appellant contends 

that the trial court erroneously concluded that he had failed to state causes of action for 

breach of an agreement to postpone a foreclosure sale and for negligently misrepresenting 

that the foreclosure sale would be postponed. We affirm.
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Facts

Our summary of the facts is based on appellant's first amended complaint and 

attached exhibits.

1

 Respondents refer to a second amended complaint, but the record on 

appeal contains no such document. We disregard the section in respondents' brief 

entitled "Statement of the Case." This section summarizes facts contained in documents 

that respondents asked the trial court to judicially notice. The court denied the request for 

judicial notice, and the documents are not included in the record on appeal. 

Appellant purchased two single family residences: one on Ocean Drive in Oxnard 

(the Ocean Drive Property) and the other on Calle Madrid in Rowland Heights (the Calle 

Madrid Property). Loans for the properties were secured by deeds of trust in favor of 

IndyMac Bank. In 2009 respondent OneWest Bank acquired IndyMac Bank's loan 

portfolio. In February 2011 the beneficial interest in the first deed of trust on the Ocean 

Drive Property was assigned to respondent Deutsche Bank. 

Appellant fell behind on the loan payments. On July 10, 2012, appellant and 

Nicholas Deal of IndyMac Mortgage Services, a division of OneWest Bank, orally agreed 

that appellant "would put the Calle Madrid Property up for sale and use the proceeds to 

bring the loan on the Ocean Drive Property current." Appellant wrote a letter to Deal 

confirming the agreement. He asked Deal to "please make sure foreclosure proceedings 

are not commenced on either property as this will complicate our lives." 

On April 18, 2013, Deal sent an email to appellant offering him "a 3 month 

Forbearance Plan while you attempt to sell your home [the Calle Madrid Property]." The 

forbearance plan required appellant to make three payments, each in the amount of 

$1,500. The payments were due on April 23, May 15, and June 15, 2013. Appellant 

accepted the offer. On April 22, 2013, he sent to Deal the signed forbearance agreement

 

1

In violation of rule 8.204(a)(2)(C) of the California Rules of Court, appellant's opening 

brief does not "[p]rovide a summary of the significant facts." (Ibid.) We elect to 

"[d]isregard the noncompliance." (Id., rule 8.204(e)(2)(C).) In view of appellant's 

omission of a summary of the facts, he "cannot be heard to complain that we have 

overlooked any . . . material facts. [Citation.]" (Lopez v. C.G.M. Development Inc.

(2002) 101 Cal.App.4th 430, 436, fn. 2.) 
3

and a check for the first payment. The forbearance agreement is not included in the 

record on appeal. 

In July 2013 appellant agreed to sell the Calle Madrid Property for $567,500. 

Escrow was due to close on or before August 30, 2013. The complaint alleges that on

August 12, 2013, appellant and Deal "reaffirmed" their July 2012 agreement "as follows: 

In consideration of the payment of a monthly fee, Defendant would continue to extend 

the foreclosure sale dates for both Properties, the pending sale of the Calle Madrid 

Property would be allowed to close, the proceeds of the sale of the Calle Madrid Property 

would be conveyed to Defendant to be used first to pay all indebtedness owing to 

Defendant secured by the trust deed on the Calle Madrid Property, and then the balance 

would be applied by Defendant to the arrearages then outstanding on the Ocean Drive 

Property ." 

Emails attached as exhibits to the complaint do not support the complaint's

allegations as to the August 12, 2013 agreement. In the morning on August 12, 2013, 

appellant emailed Deal that he wanted to "pay[] you off in full" and needed to know the 

"payoff amount." In his reply email that afternoon, Deal stated that he had attached "the 

payoff statement, which also includes information about sending the payment." The 

emails mention nothing about the postponement of foreclosure sale dates in consideration 

of appellant's payment of a monthly fee.

On August 27, 2013, the Calle Madrid Property was sold at a trustee's sale. "Deal 

was shocked at what had happened and was extremely apologetic to appellant." "[H]e 

had no information in his records that it was either expected or going to happen." 

Deal told appellant that the Ocean Drive Property was scheduled to be sold at a 

trustee's sale on October 1, 2013. To prevent the sale, in September 2013 appellant 

signed a forbearance agreement with OneWest Bank . 

Appellant's Complaint: Causes of Action

The complaint consisted of four causes of action. The first alleged that, by 

foreclosing on the Calle Madrid Property, OneWest Bank had breached its contract with 

appellant. The second cause of action alleged that OneWest Bank had negligently 
4

misrepresented that it would postpone foreclosure on the Calle Madrid Property. The 

third cause of action was for declaratory relief. The fourth cause of action sought to 

enjoin respondents from proceeding with a trustee's sale of the Ocean Drive Property. 

Trial Court's Ruling on Demurrer

The trial court ruled that the April 2013 forbearance agreement and the August 12, 

2013 "reaffirmance" of the July 2012 agreement were unenforceable because they came

within the statute of frauds and did not satisfy its requirements. Furthermore, the April 

2013 forbearance agreement required appellant to make three payments. Appellant 

alleged that he had made the first payment, but he did not allege that he had made the 

second and third payments. "Even if he had made the required payments, the 

[forbearance agreement's] three-month postponement [of foreclosure] would have expired 

before the August 27, 2013, trustee's sale." 

The court observed that the August 12, 2013 "reaffirmance" of the July 2012 

agreement was not supported by the emails attached to the complaint. The emails 

"merely show that [on August 12, 2013, OneWest Bank] was providing [appellant] the 

payoff amount and make no mention of postponing a foreclosure sale." In addition, 

appellant did not allege that he had made the payments required under this agreement.

As to the cause of action for negligent misrepresentation, the trial court concluded 

that appellant had "not alleged facts that would support a finding that [OneWest Bank]

owed him a duty of care. [Citation.] Moreover, [appellant] has not alleged justifiable 

reliance or damage resulting from his reliance." 

Standard of Review

"Because the function of a demurrer is to test the sufficiency of a pleading as a 

matter of law, we apply the de novo standard of review in an appeal following the 

sustaining of a demurrer . . . ." (California Logistics, Inc. v. State (2008) 161 

Cal.App.4th 242, 247.) "[W]e assume the truth of all facts properly pleaded in the 

complaint and its exhibits or attachments, as well as those facts that may fairly be implied 

or inferred from the express allegations. [Citation.] 'We do not, however, assume the 

truth of contentions, deductions, or conclusions of fact or law.' [Citation.]" (Cobb v. 
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O'Connell (2005) 134 Cal.App.4th 91, 95.) " 'If the facts appearing in [an] attached 

exhibit contradict those expressly pleaded, those in the exhibit are given precedence. 

[Citation.]' [Citation.]" (Duncan v. McCaffrey Grp., Inc. (2011) 200 Cal.App.4th 346, 

360, disapproved on another ground in Riverisland Cold Storage, Inc. v. Fresno-Madera 

Prod. Credit Ass'n (2013) 55 Cal.4th 1169, 1176, 1179, 1182.) 

"It is error for the trial court to sustain a demurrer if the plaintiff has stated a cause 

of action under any possible legal theory . . . ." (California Logistics, Inc. v. State, supra, 

161 Cal.App.4th at p. 247.) On appeal, "[t]he plaintiff has the burden of showing that the 

facts pleaded are sufficient to establish every element of the cause of action and 

overcoming all of the legal grounds on which the trial court sustained the demurrer, and if 

the defendant negates any essential element, we will affirm the order sustaining the 

demurrer as to the cause of action. [Citation.]" (Martin v. Bridgeport Cmmunity. Ass'n, 

Inc. (2009) 173 Cal.App.4th 1024, 1031.) 

Cause of Action for Breach of Contract

In his opening brief, appellant does not discuss the April 2013 forbearance 

agreement. He argues that the trial court erroneously concluded that he had failed to 

allege facts sufficient to state a cause of action for breach of the subsequent August 12, 

2013 agreement. This agreement allegedly provided: "In consideration of the payment of 

a monthly fee, Defendant would continue to extend the foreclosure sale dates for both

Properties" so that appellant would be able to sell the Calle Madrid Property and use part 

of the proceeds to pay the indebtedness secured by the deed of trust on that property and 

apply the "balance . . . to the arrearages . . . outstanding on the Ocean Drive Property." 

Appellant did not pay the monthly fee. In his opening brief he contends that 

payment "was excused by the anticipatory breach by Defendant Bank when the Calle 

Madrid Property was foreclosed upon" 15 days after the August 12, 2013 agreement. 

Appellant states that he "could not have paid a monthly fee as a practical matter, nor had 

the time for payment of a monthly fee yet arisen." 

Respondents argue that, "[s]ince Appellant admittedly has no written evidence to 

confirm the existence of this alleged agreement, the statute of frauds bars Appellant's 
6

breach of contract claim." "A contract coming within the statute of frauds is invalid 

unless it is memorialized by a writing subscribed by the party to be charged or by the 

party's agent. [Citation.]" (Secrest v. Security Nat. Mortgage Loan Trust 2002-2 (2008) 

167 Cal.App.4th 544, 552.) The statute of frauds applies to the August 12, 2013 

agreement "to extend the foreclosure sale dates for both Properties" in consideration of 

appellant's payment of a monthly fee. (See Id., at p. 553 [forbearance agreement that

"altered the lender's ability to exercise a right to foreclose under the note and deed of trust 

due to the borrower's default" was subject to the statute of frauds].)

Appellant asserts that "the statute of frauds is satisfied" by emails relating to the 

August 12, 2013 agreement. We disagree. The emails mention nothing about postponing 

foreclosure in consideration of appellant's payment of a monthly fee. In the morning on 

August 12, 2013, appellant emailed Deal: "As promised, I am paying you off in full; 

please call me asap this morning . . . [s]o that I can secure a payoff amount and discuss 

the close." In his reply email, Deal stated that he had attached "the payoff statement, 

which also includes information about sending the payment." The following day, Deal 

emailed appellant that he was attaching an "updated payoff statement" that "waive[s] 

$900 in fees." 

Appellant maintains that he has "alleged sufficient facts to show that promissory 

estoppel precludes Defendant Bank from invoking the statute of frauds as a defense." " 

'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." [Citation.]' [Citation.]" (Jones v. Wachovia Bank (2014) 230 

Cal.App.4th 935, 945.) 

Appellant failed to state facts sufficient to satisfy the first element: " ' "a promise 

clear and unambiguous in its terms . . . ." ' " (Jones v. Wachovia Bank, supra, 230 

Cal.App.4th at p. 945.) Appellant did not allege the amount of the "monthly fee" 

required to postpone foreclosure or when the fee was due. Nor did he allege the duration 

of the postponement. In contrast, emails attached to the complaint show that the earlier 
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April 2013 forbearance agreement provided a three-month postponement in consideration

of appellant's payment of $1,500 on April 23, May 15, and June 15, 2013. 

Furthermore, appellant did not allege facts sufficient to show that he had relied 

specifically on the August 12, 2013 agreement and that he had been injured by this

reliance. Appellant claims that he "was clearly injured by his reliance: he lost the Calle 

Madrid Property in foreclosure and was unable to use the proceeds of the pending sale to 

cure the default on the Ocean Drive Property as agreed with Mr. Deal." But the result 

would have been the same if the August 12, 2013 agreement had not existed. In the 

absence of this agreement, the Calle Madrid Property would still have been sold at the 

trustee's sale on August 27, 2013.

Cause of Action for Negligent Misrepresentation

Appellant asserts that the cause of action for negligent misrepresentation is based 

on Deal's misrepresentations in the August 12, 2013 agreement. Deal "negligently 

misrepresented to [appellant] that the Bank would allow the pending sale of the Calle 

Madrid Property to close, the proceeds of which would be applied to the arrearages on the 

Ocean Drive Property loan . . . ." " '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." ' [Citation.]" (Wells Fargo Bank, N.A. v. FSI, Fiancial. Solutions, Inc. (2011) 

196 Cal.App.4th 1559, 1573.)

As discussed in the preceding part of this opinion, appellant did not allege facts 

sufficient to show that he had relied specifically on Deal's misrepresentation in the 

August 12, 2013 agreement and that he had been injured by this reliance. The cause of 

action for negligent misrepresentation alleges that OneWest Bank knew that its 

"representations would be relied upon by [appellant] in [his] decision to sell the Calle 

Madrid Property . . . ." But the complaint alleges that appellant accepted an offer to 

purchase that property on July 12, 2013, a full month before the August 12, 2013 

agreement. 
8

No Abuse of Discretion in Not Granting Leave to Amend

"[I]t is an abuse of discretion for the [trial] court to sustain a demurrer without 

leave to amend if the plaintiff has shown there is a reasonable possibility a defect can be 

cured by amendment. [Citation.]" (California Logistics, Inc. v. State, supra, 161 

Cal.App.4th at p. 247.) The burden is on appellant to show an abuse of discretion.

(Stanson v. Brown (1975) 49 Cal.App.3d 812, 814.) "[P]laintiff must show in what 

manner the complaint could be amended and how the amendment would change the legal 

effect of the complaint, i.e., state a cause of action. [Citations.]" (Buller v. Sutter Health

(2008) 160 Cal.App.4th 981, 992.) Appellant has failed to make the required showing.

Disposition

The judgment is affirmed. Respondents shall recover their costs on appeal. 

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
9

Tari Cody, Judge

Superior Court County of Ventura

______________________________

Marxhall G. Mintz; Mintz Law Group, for Appellant. 

Jonathan M. Zak, Marvin B. Adviento;Wright, Finlay & Zak, for 

Respondents.