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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

v. 

WELLS FARGO BANK, N.A., 

 Defendant and Respondent. 

 A141416 

 (Contra Costa County 

 Super. Ct. No. MSC1300953) 

 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. 
2

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. 
3

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 JordonMendoza 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 
4

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’ . . . .”].) 
5

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. 
6

 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 PassThrough 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. 
7

 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).) 
8

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 
9

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.) 
10

 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 
11

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. 
12

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 
13

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].) 
14

 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. 
15

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.” 
16

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. 
17

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. 
18

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. 
19

 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 
20

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; 
21

(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
22

(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. 
23

 _________________________ 

 DONDERO, J. 

We concur: 

_________________________ 

HUMES,. P.J. 

_________________________ 

BANKE, J.