Filed 7/22/13 Van Horst v. JP Morgan Chase Bank 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

EZIO AUGUSTO VAN HORST, et al.,

 Plaintiffs and Appellants,

v.

JP MORGAN CHASE BANK, N.A., et al.,

 Defendants and Respondents.

2d Civil No. B241982

(Super. Ct. No. 56-2009-

00360919-CU-OR-SIM)

(Ventura County)

Ezio and Vergie Van Horst appeal from the judgment entered after the trial 

court sustained, without leave to amend, a demurrer to their fourth amended complaint. 

Appellants filed this action against the beneficiary and trustee of the deed of trust 

securing their home loan, alleging respondents breached a contract to modify the terms of 

the loan. Alternatively, appellants alleged, respondents' refusal to modify the loan 

created a cause of action for promissory estoppel. The trial court found no "reasonable 

probability" appellants could amend their complaint to state a cause of action on either 

theory because they had not identified the terms of any executed contract and because 

they had previously asked the court to take judicial notice of a letter in which appellants 

acknowledged that respondents had not promised to renegotiate or modify the loan. 

Appellants now contend the trial court erred in concluding they had not alleged a cause of 

action for promissory estoppel, in relying on the letter and in using "reasonable 
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probability" rather than "reasonable possibility" as the standard for determining whether 

to grant leave to amend. We affirm.

Facts

Appellants financed the purchase of their house in Simi Valley with a loan 

secured by a deed of trust on the property. Respondents are the beneficiary and trustee of 

the deed of trust. As relevant here, appellants' fourth amended complaint alleges that 

they filed for bankruptcy protection in August 2009. In September 2009, appellants filed 

an adversarial complaint against respondents in the bankruptcy action. Appellants allege 

that counsel for respondents assured them respondents would renegotiate the terms of 

their loan if appellants dismissed the adversarial complaint. They did so, but the loan has 

still not been renegotiated and respondents are threatening to initiate a foreclosure 

proceeding.

In opposing respondents' demurrer to their second amended complaint, 

appellants requested that the trial court take judicial notice of correspondence between 

the parties. One of the letters included in the request for judicial notice was written by 

appellant Ezio Van Horst and was sent to an attorney representing respondent Chase 

Home Finance LLC. It states: "Based on our conversation you stated to me that if I 

voluntarily dismiss the Adversary Complaint that you and/or attorney Chris Yoo would 

send me the Loan Modification documents to begin and/or to pursue negotiations of a 

loan modification/workout of our secured property 25 Humboldt St., Simi Valley, CA 

93065 with your client Chase again. [¶] I understand that there is no guarantee that a 

loan modification will be granted that it is dependent on your client Chase to review the 

information provided and to accept or grant a Loan Modification/Workout. However 

what assurances do I have that we will be provided the necessary time to actually try and 

work on a Loan Modification/Workout with your client Chase before any foreclosure sale 

is scheduled?" 

Appellants' fourth amended complaint attempts to allege a cause of action 

for promissory estoppel, based on respondents' breach of a promise to renegotiate or 

modify the terms of the loan. Relying on the letter quoted above, the trial court sustained 
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respondents' demurrer to the promissory estoppel claim without leave to amend. It 

reasoned the letter "reflects that [appellants] knew that there was no guarantee that the 

loan would be worked out." 

Standard of Review

A demurrer tests the legal sufficiency of the complaint and should be 

sustained if the facts alleged in the complaint fail to state a cause of action as a matter of 

law. (Balikov v. Southern California Gas Co. (2001) 94 Cal.App.4th 816, 819.) On 

appeal, we review de novo the trial court's order sustaining the demurrer. We assume the 

truth of all material facts properly pleaded, as well as facts that may reasonably be 

inferred or implied from those expressly alleged. We also consider any facts that have 

properly been the subject of judicial notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 

1, 5; Yun Hee So v. Sook Ja Shin (2013) 212 Cal.App.4th 652, 662.) We disregard any 

contentions, deduction or conclusion of fact or law that have been alleged in the 

complaint. (People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 

957.) We also "give the complaint a reasonable interpretation, and read it in context." 

(Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

"Two separate standards are employed to review the ruling on a demurrer

that has been sustained without leave to amend. (G.L. Mezzetta, Inc. v. City of American 

Canyon (2000) 78 Cal.App.4th 1087, 1091.) First, we review the complaint de novo to 

determine whether it alleges sufficient facts to state a cause of action. We then apply an 

abuse of discretion standard to determine whether there is a reasonable possibility that the 

complaint could be cured by amendment. (Zelig v. County of Los Angeles (2002) 27 

Cal.4th 1112, 1126.) If the complaint could be cured by amendment, 'the trial court has 

abused its discretion and we reverse; if not, there has been no abuse of discretion and we 

affirm. [ Citations.] The burden of proving such reasonable possibility is squarely on the 

plaintiff. [Citation.]' (First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 

1662.)" (Heritage Oaks Partners v. First American Title Ins. Co. (2007) 155 

Cal.App.4th 339, 344.) 
4.

Discussion

The elements of a cause of action for promissory estoppel are: "(1) a 

promise, (2) the promisor should reasonably expect the promise to induce action or 

forbearance on the part of the promisee or a third person, (3) the promise induces action 

or forbearance by the promisee or a third person (which we refer to as detrimental 

reliance), and (4) injustice can be avoided only by enforcement of the promise." (West v. 

JP Morgan Chase Bank, NA (2013) 214 Cal.App.4th 780, 803.) The doctrine does not 

apply " ' in the absence of a showing that a promise had been made upon which the 

complaining party relied to his prejudice . . . .' [Citation.] The promise must, in addition, 

be 'clear and unambiguous in its terms.' " (Garcia v. World Savings, FSB (2010) 183 

Cal.App.4th 1031, 1044.)

Appellants' fourth amended complaint alleges that employees of 

respondents promised appellants that respondent would modify their loan if they 

dismissed the adversarial complaint in their bankruptcy action. Appellants allege that 

they dismissed their adversarial complaint in reliance on that promise. Respondents 

breached the promise because they have refused to modify the loan. 

Contrary to these allegations, appellants' letter to respondent's counsel 

states that, if appellants dismissed their adversarial complaint, respondents would send 

them loan modification documents "to begin and/or to pursue negotiations of a loan 

modification/workout[.]" The letter further states that appellants "understand that there is 

no guarantee that a loan modification will be granted that it is dependent on your client 

Chase to review the information provided and to accept or grant a Loan Modification/ 

Workout." The trial court relied on this letter in sustaining respondents' demurrer without 

leave to amend, reasoning that appellants' letter "reflects that [appellants] knew that there 

was no guarantee that the loan would be worked out." 

Appellants contend the trial court erred because the complaint could be 

amended to allege that respondents breached a promise to negotiate with appellants in 

good faith to modify their loan. But appellants' fourth amended complaint does not 

allege the breach of a promise to negotiate in good faith. It alleges the breach of a 
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promise to modify a loan. Appellants' letter demonstrates that, contrary to this allegation, 

appellants knew the loan modification had not been promised or approved. As the trial 

court correctly concluded, the admission in appellants' letter prevents them from alleging 

a cause of action for promissory estoppel because it shows both that respondents did not 

make a clear promise to approve a loan modification and that appellants did not dismiss 

their adversarial complaint in reliance on any promise. 

Appellants contend the trial court erred in taking judicial notice of the letter 

and in relying on it to sustain the demurrer. Any error in this regard was, of course, 

invited by appellants because they made the request for judicial notice themselves. 

(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) "If the appellant offers inadmissible 

matter in evidence, he or she cannot complaint of its admission." (9 Witkin, Cal. 

Procedure (5th ed. 2008) Appeal, § 390 , p. 448.)

The trial court also correctly denied appellants leave to amend their 

complaint. Appellants propose to amend their complaint to allege breach of a promise to 

negotiate in good faith for a loan modification. That allegation, however, directly 

contradicts the allegations in their previous complaints that respondent promised a loan 

modification. California's pleading rules, while liberal, do not permit amendments that 

"omit harmful allegations, without explanation, from previous complaints to avoid 

attacks raised in demurrers or motions for summary judgment." (Deveny v. Entropin, 

Inc.(2006) 139 Cal.App.4th 408, 425.) Factual statements made in a pleading "are not 

merely evidence of the matter stated, but operate as 'a conclusive concession of the truth 

of [that] matter,' thereby 'removing it from the issues.' . . . In other words, a pleaded fact 

is conclusively deemed true as against the pleader." (Dang v. Smith (2010) 190 

Cal.App.4th 646, 657, quoting 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 97, p. 

799, emphasis omitted.) Thus, a pleading may not be amended so as to contradict factual 

allegations made in prior pleadings. "Because the original allegation is conclusively 

deemed true, the pleader is not permitted to assert its logical opposite." (Dang v. Smith, 

supra, 190 Cal.App.4th at p. 658, emphasis omitted.) 
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Here, appellants pleaded the existence of a promise to modify their loan. 

They now seek to amend the pleading to allege a promise to negotiate in good faith for a 

loan modification. Because that allegation would directly contradict their previous 

allegations, the trial court correctly denied leave to amend.

In its minute order, the trial court sated it found "no reasonable probability" 

appellants could amend their pleading to state a cause of action. Appellants contend the 

trial court erred because the proper standard is a "reasonable possibility" the defect could 

be cured by amendment. For the reasons stated above, however, appellants were not 

prejudiced by any error in this regard because their proposed amendment directly 

contradicts their prior pleadings. 

Conclusion

The judgment is affirmed. Costs to respondents. 

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
7.

Barbara A Lane, Judge

Superior Court County of Ventura

______________________________

Ezio A. Van Horst and Virgie E Van Horst, in pro per, Appellants.

S. Christopher Yoo and Marvin B. Adviento, for Respondents.