Filed 12/13/13 Rubio v. JPMorgan Chase Bank CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

MARIA T. RUBIO, 

Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A., etc.,

Defendant and Respondent.

B243639

(Los Angeles County

Super. Ct. No. PC050207)

APPEAL from a judgment of the Superior Court of Los Angeles County, 

Stephen Pfahler, Judge. Affirmed.

Law Office of Louisa Moritz and Louisa Moritz for Plaintiff and Appellant.

AlvaradoSmith, John M. Sorich, S. Christopher Yoo and Taline M. Gulesserian 

for Defendant and Respondent.

_____________________
2

INTRODUCTION

Plaintiff and appellant Maria T. Rubio appeals a judgment of dismissal entered 

after the superior court sustained the general demurrer of defendant and respondent 

JPMorgan Chase Bank, N.A. (Chase) to Rubio’s operative second amended complaint 

(complaint) without leave to amend. The complaint purports to set forth negligent 

misrepresentation and promissory estoppel causes of action based on Chase’s alleged 

wrongful nonjudicial foreclosure of Rubio’s real property in Sylmar. We conclude the 

superior court correctly sustained the demurrer and that Rubio did not meet her burden of 

showing there is a reasonable possibility that the defects in the complaint can be cured by 

amendment. Accordingly, we affirm the judgment.

RUBIO’S FACTUAL ALLEGATIONS1

In June 2006, Rubio and her husband Fernando Gamez Meza obtained a $560,000 

loan from Washington Mutual Bank, FA (WaMu). As collateral for the loan, they 

offered their Sylmar property. Rubio and Meza executed a promissory note and a deed of 

trust. The trustee of the deed of trust was California Reconveyance Company.

Rubio contends that Chase became WaMu’s successor in interest.2 According to 

Chase, WaMu was placed into receivership by the Office of Thrift Supervision. Chase 

further contends it purchased WaMu’s interests in the promissory note and deed of trust 

 

1 We assume the factual allegations in the complaint are true. Additionally, 

pursuant to Evidence Code sections 452 and 459 and Code of Civil Procedure section 

430.30, subdivision (a), we take judicial notice of facts contained in the documents 

attached to Chase’s request for judicial notice in support of its demurrer. These 

documents pertain to Rubio’s property and were recorded in the Los Angeles County 

Recorder’s Office. We may take judicial notice of “the fact of a document’s recordation, 

the date the document was recorded and executed, the parties to the transaction reflected 

in a recorded document, and the document’s legally operative language, assuming there is 

no genuine dispute regarding the document’s authenticity.” (Fontenot v. Wells Fargo 

Bank, N.A. (2011) 198 Cal.App.4th 256, 265.) Rubio does not dispute the authenticity of 

the documents attached to Chase’s request for judicial notice.

2 The complaint alleges that “Chase Home Finance, LLC” was the successor to 

WaMu. JPMorgan Chase Bank, N.A. filed responsive pleadings as a party erroneously 

sued as Chase Home Finance, LLC.
3

from the receiver pursuant to a purchase and assumption agreement. There is nothing in 

the record, however, regarding such an agreement.

On February 10, 2009, two documents were recorded relating to Rubio’s Sylmar 

property. The first was an assignment of deed of trust. This document stated that the 

deed of trust and promissory note were assigned to LaSalle Bank NA as trustee for 

WaMu Mortgage Pass-Through Certificates Series 2006-AR9 Trust. The assignment was 

executed by Chase, as successor in interest to WaMu.3

The second recorded document was a notice of default and election to sell under 

deed of trust (notice of default). The notice of default was executed by California 

Reconveyance Company, as trustee of the deed of trust. It stated that Rubio and her 

husband defaulted on their obligations under the promissory note and that the balance due 

under the note was $14,543.72 as of February 6, 2009.

In May 2009 and July 2010, California Reconveyance Company recorded notices 

of trustee’s sale. The trustee sales scheduled by these notices, however, did not take 

place.

On September 1, 2010, Rubio filed a Chapter 13 (11 U.S.C. §§ 1301-1330) 

bankruptcy petition. After filing the petition, Rubio allegedly maintained her monthly 

payments due under the promissory note to Chase. “On November 10, 2010 the 

bankruptcy was dismissed because of a technical defect and not because of any failure or 

inability to maintain her payments. The dismissal was made without any bar and [Rubio] 

was free to refile with the Bankruptcy Court without restrictions.”

 

3

The record does not indicate what interest, if any, Chase had in the promissory 

note and deed of trust after the assignment. It appears Chase was the loan servicer. In 

any case, Chase does not dispute that it is a proper defendant in this case.
4

Subsequently, Rubio received a letter from Chase dated November 17, 2010. 

According to Rubio, in the letter Chase “offered to help” Rubio qualify for the federal 

Home Affordable Modification Program (HAMP). In response to the letter, Rubio called 

Chase on November 23, 2010 “and requested the information packet to begin the 

‘evaluation process.’ ”4

On or about November 30, 2010, Chase mailed another letter to Rubio indicating 

that her account would now be handled by Ascension Capital Group (Ascension) and that 

all future communications regarding the account and payments should be directed to 

Ascension. Before Rubio contacted Ascension or received an information packet, 

however, her property was sold at a public auction on December 8, 2010.

On December 16, 2010, California Reconveyance Company, as trustee of the deed 

of trust, recorded a trustee’s deed upon sale. This document indicated that Rancho 

Horizon LLC purchased Rubio’s property at a trustee’s sale on December 8, 2010, for 

$314,000. Although the trustee’s deed upon sale states in its recitals a notice of sale was 

duly recorded, no such notice is in the record. 

ISSUES

There are three main issues on appeal:

1. Whether the superior court erroneously sustained Chase’s demurrer to the 

complaint.

2. Whether the superior court failed to provide the specific ground or grounds 

for its order sustaining the demurrer and, if so, whether the judgment should be reversed 

as a result.

 

4 Rubio attached a copy of the letter to her opposition to Chase’s demurrer. We 

describe the contents of the letter in footnote 6, post. Because the letter was not attached 

to the complaint and is not the subject of a request for judicial notice, we do not consider 

the actual contents of the letter in reaching our conclusion that the complaint does not 

state facts sufficient to constitute a cause of action, but only to corroborate it. (Roman v. 

County of Los Angeles (2000) 85 Cal.App.4th 316, 324, fn. 4.) We do, however, consider 

the contents of the letter in our analysis of whether Rubio can amend her complaint to 

allege a cause of action.
5

3. Whether Rubio met her burden of showing there is a reasonable possibility 

that the defects in her complaint can be cured by amendment.

DISCUSSION

1. The Superior Court Correctly Sustained Chase’s Demurrer

a. Standard of Review

On appeal from a judgment of dismissal following a ruling sustaining a general 

demurrer, we determine de novo whether the complaint alleges facts sufficient to state a 

cause of action. (Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 87 

(Maxton).) We assume the truth of the factual allegations in the complaint, liberally 

construed, as well as facts that can be reasonably inferred from those expressly pleaded. 

(Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012) 

203 Cal.App.4th 913, 919; Maxton, at p. 87.) We do not, however, accept as true 

plaintiff’s contentions, deductions or conclusions of law. (Maxton, at p. 87.)

b. Negligent Misrepresentation

The first cause of action in the complaint is for negligent misrepresentation. The 

elements of negligent misrepresentation are “(1) a misrepresentation of a past or existing 

material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to 

induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and 

justifiable reliance thereon by the party to whom the misrepresentation was directed, and 

(5) damages.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) Negligent 

misrepresentation is a kind of fraud which gives rise to the tort action for deceit. (Agosta 

v. Astor (2004) 120 Cal.App.4th 596, 603.) It has the same elements as intentional 

misrepresentation except the claim does not require scienter or intent to defraud. (Small 

v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.)

A cause of action for negligent misrepresentation must be pled with specificity. 

(Aspiras v. Wells Fargo Bank, N.A. (2013) 219 Cal.App.4th 948, 960 (Aspiras).) General 

and conclusory allegations are not enough. (Lazar v. Superior Court (1996) 12 Cal.4th 

631, 645 (Lazar).) The complaint must allege facts which show how, when, where, to 

whom, and by what means the representations were tendered. (Ibid.)
6

“A plaintiff’s burden in asserting a fraud claim against a corporate employer is 

even greater. In such a case, 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.’ ” (Lazar, supra, 

12 Cal.4th at p. 645.)

Here, the complaint alleges that the November 17, 2010, letter misled Rubio into 

“thinking she might qualify for a modification of the loan” and believing the foreclosure 

proceedings “would be held in abeyance” during Chase’s evaluation of her loan. The 

complaint further alleges that “in various telephone conversations [Chase] verbally 

assured [Rubio] that no further foreclosure proceedings would occur.” In reliance on 

Chase’s written and verbal statements, Rubio allegedly did not stop the trustee’s sale by 

filing another bankruptcy petition.

The complaint fails to state a claim for negligent misrepresentation because it does 

not include any allegations regarding an actionable misrepresentation. Generally a

representation cannot be actionable unless it is about “ ‘past or existing facts.’ ” (NeuVisions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309.) 

Although a false promise to perform in the future can be the basis of an intentional

misrepresentation claim, it cannot support a claim for negligent misrepresentation. 

(Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-159.) 

An “offer to help” or a promise to hold foreclosure proceedings in abeyance does not 

concern past or existing facts, and thus cannot be the basis for a negligent 

misrepresentation cause of action.

Further, the complaint’s allegation about “various telephone conversations” falls 

far short of the specificity requirements for this tort. The complaint does not allege when 

these conversations occurred, with whom Rubio allegedly spoke, or the alleged authority 

of that person to bind Chase.
7

The complaint also fails to allege facts showing Rubio justifiably and 

detrimentally relied on any purported misrepresentations of fact by Chase. Although the 

November 17, 2010, letter allegedly states Chase would assist Rubio apply for assistance 

through HAMP, it does not state anything regarding delaying or stopping the foreclosure 

process before Rubio submitted an application.5

Moreover, the complaint does not allege that Rubio could have cured the default 

even if she had filed a bankruptcy petition. It is important to keep in mind that a debtor 

cannot discharge a mortgage debt in bankruptcy and keep her home. (Aceves v. U.S. 

Bank, N.A. (2011) 192 Cal.App.4th 218, 228-229 (Aceves).) “ ‘Rather, a Chapter 13 

bankruptcy offers the debtor an opportunity to cure a mortgage delinquency over time—

in essence it is a statutorily mandated payment plan—but one that requires the debtor to 

pay precisely the amount she would have to pay to the lender outside of bankruptcy.’ ” 

(Id. at p. 229.) The complaint alleges no facts indicating Rubio would or could have paid 

her debt over time under a bankruptcy plan.

The complaint, in short, fails to state sufficient facts to constitute a cause of action 

for negligent misrepresentation. The superior court therefore correctly sustained Chase’s 

demurrer to this cause of action.

c. Promissory Estoppel

The second cause of action in the complaint is for 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; (3) [the] reliance must be 

both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured 

by his reliance.” [Citation.]’ ” (Advanced Choices, Inc. v. State Dept. of Health Services

 

5 HAMP is a federal program which assists eligible borrowers who have defaulted 

on their mortgage payments or who are likely to default by reducing their monthly 

payments to sustainable levels without discharging any of the underlying debt. (Aspiras, 

supra, 219 Cal.App.4th at p. 952, fn. 2; see West v. JPMorgan Chase, N.A. (2013) 

214 Cal.App.4th 780, 786-788 [describing the program]; see also Chavez v. Indymac 

Mortgage Services (2013) 219 Cal.App.4th 1052, 1055-1056 [describing a trial period 

plan under HAMP].)
8

(2010) 182 Cal.App.4th 1661, 1672 (Advanced Choices).) This cause of action is 

essentially the same as a breach of contract claim, except that the plaintiff’s reasonable 

and detrimental reliance on a promise is regarded as a substitute for the consideration 

required for an enforceable contract. (US Ecology, Inc. v. State of California (2005) 

129 Cal.App.4th 887, 904.)

Here, the complaint does not state facts indicating Chase made a clear and 

unambiguous promise that can be the basis for a promissory estoppel claim. Chase’s 

alleged written “offer to help” Rubio apply for assistance through HAMP was too vague 

and amorphous of a statement to support a promissory estoppel claim. It was at most an 

invitation to Rubio to apply for a loan modification and nothing more.

Likewise, Chase’s alleged oral assurances that “no further foreclosure proceedings 

would occur” are insufficiently “ ‘ “clear and unambiguous in its terms.” ’ ” (Advanced 

Choices, supra, 182 Cal.App.4th at p. 1672.) It is unclear whether Rubio alleges that 

Chase promised to never foreclose on her home or whether she contends Chase promised 

to postpone foreclosure temporarily. If the alleged postponement was temporary, Rubio 

does not allege how long it would be and what, if anything, would permit Chase from 

proceeding with a foreclosure.

“To be enforceable, a promise must be definite enough that a court can determine 

the scope of the duty and the limits of performance must be sufficiently defined to 

provide a rational basis for the assessment of damages.” (Ladas v. California State Auto. 

Assn. (1993) 19 Cal.App.4th 761, 770.) Chase’s alleged promises do not meet this 

standard.

Additionally, for the reasons explained ante, Rubio did not justifiably and 

detrimentally rely on Chase’s alleged promises. The complaint therefore fails to state 

facts sufficient to constitute a promissory estoppel cause of action.
9

The insufficiency of the complaint in this case is illustrated by contrasting its 

allegations with the allegations of the complaint in Aceves. There, a bank allegedly 

promised to not foreclose on a borrower’s home without first engaging in negotiations 

with her to reinstate and modify its loan on mutually agreeable terms. (Aceves, supra, 

192 Cal.App.4th at p. 226.) At the time, the borrower’s Chapter 13 bankruptcy case was 

pending. In reliance on the bank’s promise, the borrower did not to oppose the bank’s 

motion to lift the bankruptcy stay, which was later granted by the bankruptcy court. 

(Id. at p. 223.) The bank nonetheless caused the borrower’s home to be sold at a 

trustee’s sale without engaging in negotiations with the borrower to modify her loan. 

(Id. at p. 224.) 

In this case, by contrast, Rubio does not allege that Chase asked her to forego any 

particular course of conduct as a prerequisite to negotiations or that Chase ever promised 

to negotiate a loan modification. Further, Rubio did not have a bankruptcy case pending 

when Chase allegedly made its promises, and she does not allege that Chase knew she 

was considering filing a new bankruptcy petition. Thus there was no binding agreement 

between the parties supported by the doctrine of promissory estoppel. This case is 

distinguishable from Aceves.

2. Rubio Waived Her Argument That the Superior Court Failed to Adequately 

State the Grounds for Sustaining Chase’s Demurrer

Rubio argues the superior court failed to sustain Chase’s demurrer with the 

specificity required by Code of Civil Procedure section 472d. This statute provides: 

“Whenever a demurrer in any action or proceeding is sustained, the court shall include in 

its decision or order a statement of the specific ground or grounds upon which the 

decision or order is based which may be by reference to appropriate pages and paragraphs 

of the demurrer. [¶] The party against whom a demurrer has been sustained may waive 

these requirements.” (Code Civ. Proc., § 472d.)
10

Here, the superior court’s minute order sustaining Chase’s demurrer stated the 

demurrer was sustained “for the reasons stated in the demurrer.” The court did not satisfy 

the requirements of Code of Civil Procedure section 472d because it did not cite to any 

the specific pages or paragraphs of the demurrer. (E. F. Hutton & Co. v. City National 

Bank (1983) 149 Cal.App.3d 60, 64-65 [“ ‘per points and authorities in moving papers’ ” 

was insufficient].) Rubio, however, failed to demand or point out to the court the absence 

of specific grounds in the minute order. She thus waived any argument on appeal based 

on the court’s violation of the statute. (Id. at p. 65, fn. 1.)

3. Rubio Has Not Met Her Burden of Showing There is a Reasonable 

Possibility She Can Cure the Defects in the Complaint

When a general demurrer is sustained, the plaintiff must be given leave to amend 

his or her complaint when there is a reasonable possibility that the defects can be cured 

by amendment. (Maxton, supra, 203 Cal.App.4th at p. 95.) “The burden of proving 

such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 

39 Cal.3d 311, 318.)

“ ‘To satisfy that burden on appeal, a plaintiff “must show in what manner he can 

amend his complaint and how that amendment will change the legal effect of his 

pleading.” [Citation.] The assertion of an abstract right to amend does not satisfy this 

burden.’ [Citation.] The plaintiff must clearly and specifically state ‘the legal basis for 

amendment, i.e., the elements of the cause of action,’ as well as the ‘factual allegations 

that sufficiently state all required elements of that cause of action.’ ” (Maxton, supra, 

203 Cal.App.4th at p. 95.)

Contrary to Chase’s contention, Rubio may assert a new proposed cause of action 

or theory of liability for the first time on appeal. (Grinzi v. San Diego Hospice Corp.

(2004) 120 Cal.App.4th 72, 85.) Rubio has attached to her opening brief a proposed third 

amended complaint (TAC). We conclude, however, that the TAC does not state facts 

sufficient to state a cause of action.
11

The TAC sets forth five causes of action: (1) intentional misrepresentation, 

(2) concealment, (3) false promise, (4) negligent misrepresentation and (5) promissory 

estoppel. The TAC bases all five causes of action on alleged misrepresentations in 

Chase’s letter dated November 17, 2010, which is attached to the pleading.6

The fatal defect in each of the causes of action in the TAC is that Rubio could not 

reasonably rely on the November 17, 2010, letter when she decided not to file a new 

bankruptcy petition. Nowhere in the letter does Chase promise to stop or delay 

foreclosure proceedings. Indeed, the letter does not mention such proceedings. The letter 

also does not state that Chase will in fact agree to modify Rubio’s loan. The letter instead 

simply advises Rubio that she can request an application for a loan modification. 

A reasonable borrower in Rubio’s position would not have concluded that Chase had 

delayed or stopped the foreclosure proceedings based on this letter.

Apart from the TAC, Rubio has not proposed any other causes of action or 

theories of liability. Rubio thus failed to meet her burden of showing there is a 

reasonable possibility that the defects in the complaint can be cured by amendment.

 

6

The letter states: “Chase may be able to help make your mortgage more 

affordable if you are having difficulty making your payments. You could be eligible to 

take advantage of the Home Affordable Modification Program, part of a federal initiative 

to help homeowners.” It further states that if Rubio calls a certain number, Chase will 

send an information packet and forms she needs to sign. The letter then states: “Once we 

receive all of your documentation we’ll determine if you are eligible for the program. If 

you are, we’ll send you a letter with details about your new, affordable mortgage 

payment – and you will start paying the new amount during a trial period. If you make 

those trial payments on time and fulfill all the other program conditions, we will offer 

you a permanent modification to keep your payments low.”
12

DISPOSITION

The judgment is affirmed. Respondent is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.