1 Filed 6/10/15 Foster v. Old Republic Title CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

IDA FOSTER, Plaintiff and Appellant,

v. OLD REPUBLIC TITLE COMPANY, Defendant and Respondent. A137270
(Solano County Super. Ct. No. FCS039897)

INTRODUCTION More than four years after plaintiff Ida Foster lost her home to foreclosure, she sued the escrow company involv ed in the loan on the property, defe ndant Old Republic Title Company. The trial court sustained Old Republic’s demurrer without leave to amend on the ground that th e complaint was time-barred and also failed to state facts sufficient to allege a cause of action. Foster claims the trial court erred. We affirm the judgment. FACTUAL AND PROCED URAL BACKGROUND Ida Foster owned a home on Snapdragon Place in Benicia, California. On December 22, 2006, she entered in to a transaction to refinanc e the loan on th e property. The lender in that transaction was Novastar Mortgage, and the escrow company was Old Republic Title Company. The refinancing transaction appears to have involved two separate loans: one in the amount of $608, 003, and a second in th e amount of $152,001.2 Foster lost her home on Snapdragon Place to foreclosure in May of 2008. The house was sold at auction on May 1, 2008, an d a Trustee’s Deed Upon Sale was recorded on May 9, 2008. 1 On June 5, 2012, Foster filed a compla int against Old Republic, alleging three
causes of action. Her first cause of action wa s for breach of contract. That cause of
action was based on two documents that she alleged formed the contract on which her
claim was based. The first document is entitle d “General Closing Instructions.” In these instructions, Novastar Mortga ge Company instructs Old Repu blic to, among other things, provide the borrower with a Notice of Right to Cancel if the “transaction is subject to rescission.” Foster alleged that the General Cl osing Instructions required Old Republic to provide such notice before the transaction clos ed. The second docume nt is the first of two pages of a note dated December 22, 2006, in which Foster prom ises to pay $152,001 in principal plus interest to Novastar Mort gage, Inc. What appears to be Foster’s signature and the date “12/22/06” are on the bo ttom of the page. The second page of the note is, however, missing. Foster alleged that Old Re public breached the contract by “failing to provide the borrowers copy and notice right to cancel for the recission [sic ]” before the loan
transaction closed on Decembe r 29, 2006. She further a lleged that the damages she
sustained as a result were as follows: “property illegally fore closed without the documents being in the possession of the borrower before closing and funding the transaction per the agreement.”
Foster’s second cause of action for co mmon counts alleged that Old Republic became indebted to her because “Agreement was not performed as instructed in [the General Closing Instructions] from Novastar Mortgage to Old Republic Title Company.

1 The trial court granted Ol d Republic’s unopposed reques t for judicial notice of the Trustee’s Deed Upon Sale for the Snap dragon Place home, recorded in Solano County on Ma y 9, 2008.3 [M]isleading facts prevented discovery of th e guilty party . . . to cancel Lender request return of $760,000.00.” In her third cause of action, for fra ud, Foster alleged that Old Republic misrepresented a material fact by informing her after she lost her home that “it is not the function of their company to insure the borrowe r’s copy because it is not return to verify receipt by the borrower. . . . The agreement to this transaction was breached and no change of the action was sent to Novastar as requested in this agreem ent. This agreement is executed by Old Republic . . . .” She al so alleged that Old Republic misled her by “saying it is the brokers or the illegal notar y responsibility. Title company claim they issued the borrower’s copy with no record of who picked- up the borrower’s copy.” She further alleged that Old Republic made a promis e without intent to perform in that “[t]he agreement was made to appear that the bo rrower’s documents were issued to borrower before closing by Old Republic. The company states that this was not even verified. The broker and . . . the notary violating the law in notarizing legal documents to enable the transaction and appear that the agreement was properly pr ocess as instructed.” Foster alleged that she relied on Old Re public’s conduct and “acted based on false
information. I was misinformed about the bo rrowers documents. I did not know what I was getting until I received th e loan documents and all th e information was in these
documents. . . . I received this borrower’s co py after the closing and I was told it was too late to cancel the transaction because everythi ng was in order. I exec uted the cancellation with the Title Company, Novastar Mortgage and the broker before the three days had expired[.] The broker refuse to cancel. He instructed me not to cancel when he requested
me to execute the documents w ith the agreement that he prom ised in this loan that was also breached.” As a result of this conduct, Foster alleges that a lien was placed on her home, and then her home was foreclosed on.
The documents Foster attach es in support of her fraud cause of action are letters from Old Republic to her written on July 18 , 2007, December 22, 2009, and July 18, 2011. The first letter indicated that Old Repub lic was providing Foster with copies of the
loan and escrow documents related to the D ecember 22, 2006, loan transaction, including4 the General Closing Instructions. The letter al so indicated that Old Republic sent Foster “a complete copy of your signed loan documents at close of escrow.” The December 22, 2009, letter (only the fi rst page of which is attached to the complaint), follows up on a tele phone conversation between Fo ster and Old Republic in which Foster apparently requested Old Republic ’s assistance in appealing a legal action she brought against her mortgage broker and lender. Old Republic st ates in that letter that it was “merely the escrow holder for your refinance transaction” and not responsible for any failure on the lender’s part to comply with its statutory obligations to Foster. Old Republic explained that generally when there is an “outside signing” as there apparently was in this case, it “provides two copies of documents to whoever picks up the
documents.” Finally, in the July 18, 2011, letter, Old Republic re sponded to Foster’s request for
information about the “borro wer’s copy” of her closing documents from the December 2006 loan. After confirming that Foster told Old Republic that “the closing took place at a Denny’s Restaurant,” Old Republic told Fost er it would have provided two copies of the closing documents “to the person coordina ting the outside signing,” one of which was supposed to be left with Foster. Old Rep ublic also informed Foster that “an escrow holder is not obligated to po lice the affairs of the partie s to the escrow. . . .” Old Republic demurred to Foster’s co mplaint on the ground that each of the causes of action was time-barred under the applicable statute of limitations and also
failed to state facts sufficient to constitute a cause of action. On November 2, 2012, the
trial court issued a tentative ruling sustaining Old Republic’s demurrer without leave to amend. The tentative ruling was uncontested, and the trial court issued a final order sustaining the demurrer without leave to amend on November 29, 2012. The trial court found that each cause of action was barred by the applicable statute of limitations and
also failed to state facts sufficien t to constitute a cause of action. 2 On December 4, 2012,

2 The trial court’s order stated, in pertinent part:5 Foster filed a notice of appeal from the N ovember 2 tentative ruling and then, after a judgment of dismissal was filed on Decembe r 13, 2012, filed an amended notice of appeal from that judgment. DISCUSSION
A. Standard of Review
Our review of the trial court’s order sustaining Old Republic’s demurrer is de novo. ( McCall v. PacifiCare of California, Inc. (2001) 25 Cal.4th 412, 415.) “When a demurrer is sustained, we determine whethe r the complaint states facts sufficient to constitute a cause of action. [Citation.]” ( Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) And if a demurer is sustained because a comp laint fails to comply with the statute of limitations, we review whether the complaint shows “on its fa ce” that the action is timebarred. ( Childs v. State of California (1983) 144 Cal.App.3d 155 , 161.) “ ‘We treat the demurrer as admitting all material facts prope rly pleaded, but not contentions, deductions
or conclusions of fact or la w. [Citation.] We also c onsider matters which may be judicially noticed.’ [Citation.] Furthe r, we give the complaint a reasonable

“ First Cause of Action: Barred by the applicable statute of limitations, four years. Code of Civil Procedure Section 337(1 ). Plaintiff has failed to allege facts, and cannot allege facts, showing she had a contract with Old Republic T itle Company, or that she is a third party beneficiary. [Citations.] “Second Cause of Action: Barred by the applicable statute of limitations, four years, CCP Sec. 337(2). Plaintiff has not a lleged any facts, and cannot allege facts, establishing a cause of action for common counts. Plaintiff has not alleged facts that Old Republic has received money, or anything of valu e belonging to Plain tiff which should be repaid. [Citation.] “ Third Cause of Action: Barred by the applicable stat ute of limitations, three years. CCP Sec. 338(d). In the event any of the fraud claims are based on contract, then the third cause of action is barred by the app licable statute of limitations, four years. CCP Sec. 337(3). Plaintiff has not alleged facts and cannot allege facts establishing a cause of action for fraud and/or deceit. [Citati on.] Deception, even if it exists, without loss is not actionable. [Citation.] An actiona ble representation must be an affirmation of fact, not an opinion. [Citation.] Fraud must be alleged with specificity, pleading facts which show how, when, where, to whom, an d by what means the representations were tendered. [Citations.]”6 interpretation, reading it as a whole and its parts in their context. [Citation.]” ( Blank v. Kirwan, supra , 39 Cal.3d at p. 318

. ) We note that Foster appears before us in propria persona, and her briefs on appeal are largely incomprehensible. Foster’s in propria persona status does not excuse this deficiency because an “in prop ria persona litigant is held to the same restrictive rules of procedure as an attorney.” ( Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) While we have attempted to understand Foste r’s contentions, we are “not required to search the record on [our ] own seeking error.” ( Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
B. Foster’s Causes of Action Are Time-Barred. Foster challenges the trial court’s determ ination that the statute of limitations
barred her three causes of ac tion against Old Republic. We begin with Foster’s breach of contract cause of action, and agree with the trial court that it was barred by the statute of limita tions. A breach of contract cause of action based on a written agreement is governed by a four-year statute of limitations. (Code Civ. Proc., § 337, subd. 1.) Ordinarily, a breach of contract cause of action accrues at the time of the alleged breach. (See Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, ___ [185 Cal.Rptr.3d 935, 944]; 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 520, p. 664 [“ A cause of action for breach of contract ordinarily accrues at the time of breach, and the statute begins to run at th at time regardless whether any damage is apparent or whether the injured party is aware of hi s or her right to sue.”].) Here, Foster alleged that the Genera l Closing Instructions from Novastar Mortgage to Old Republic were part of a co ntract that required Old Republic to give Foster notice of her right to rescind. Fost er further alleged that Old Republic breached the contract by not providing Fost er with a notice of her right to rescind before closing. The alleged breach thus occurred no later than December 29, 2006, which was the closing date of Foster’s loan. This was approxim ately five-and-a-half years before Foster commenced this action on June 5, 2012—well beyond the four-year limitations period for
breach of contract causes of action.7 Foster does not appear to dispute th at Old Republic breached its alleged contractual duties no later than December 29, 2006, but argues that the discovery rule should delay the accrual date of her breach of contract action and bring it within the limitations period. The discovery rule can dela y the accrual date of a breach of contract
cause of action for breaches that are “committe d in secret and, moreover, where the harm flowing from those breaches will not be reas onably discovera ble by plaintiffs until a future time.” ( April Enterprises, Inc. v. KTTV (1983) 147 Cal.A pp.3d 805, 832.) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his cl aim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier di scovery despite reasonable diligence.’ ” ( Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) Foster has not met her burden of showing th at the discovery rule brings her breach
of contract cause of action within the limitations period. Foster alleged that on July 18, 2007—almost five years before she commenced this action—O ld Republic sent Foster a letter stating that Old Republic was providing her with the closing documents relating to
the December 2006 loan. This letter notified Foster about the exis tence of the General Closing Instructions, which Foster alleged inst ructed Old Republic to provide Foster with notice of her right to rescind. Once Fost er was made aware of the General Closing Instructions in July 2007, Old Republic’s alleged obligation an d failure to provide Foster with notice of her right to rescind could no longer be a “secret.” ( April Enterprises, Inc. v. KTTV, supra , 147 Cal.App.3d at p. 832; accord NBCUniversal Media, LLC v. Superior
Court (2014) 225 Cal.App.4th 1222, 1234-1235 [breach of cont ract action alleging that TV network exploited plaintiffs idea fo r television show accrued when network
broadcasted show with a llegedly stolen idea]; Perez-Encinas v. AmerUs Life Ins. Co. (N.D. Cal. 2006) 468 F.Supp.2 d 1127, 1135 [discove ry rule inapplicab le in contract action brought under Californi a law against insurance comp any when terms of annuity policy were “well-known and available in written form to the parties involved”].) Accordingly, Foster’s allegations establish th at her breach of contract cause of action8 could not have accrued later than July 2007, which is still well outside of the four-year limitations period. Even an overly-gen erous application of the discovery rule does not save Foster’s
breach of contract cause of action. If we were to move the accrual date to May 9, 2008, when Foster lost her home to foreclosure, Fo ster’s breach of contract cause of action
would still be time-barred since she did not f ile her complaint until over four years later on June 5, 2012. The trial court also correctly found th at Foster’s common count cause of action was time-barred. “A common count is proper whenever the plainti ff claims a sum of money due, either as an indebtedness in a sum certain, or for the reasonable value of services, goods, etc., furnished.” (4 Witkin, Cal. Procedure (5th ed. 2008) Pleadings, § 554, p. 682; see also Interstate Group Administrators, In c. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 706 [“The common count is a general pleading which seeks recovery of money without sp ecifying the nature of the claim.”].) The statute of
limitations for a common count action based on a written agreement is four years. (Code Civ. Proc., § 337, subd. 2.) Foster’s comp laint is not clear about how Old Republic
became indebted to Foster or what servi ces Foster furnished to Old Republic. Nevertheless, we do not see how any common co unt action could have accrued later than May 9, 2008, the date that Fo ster lost her home to foreclosure. This accrual date is outside of the four-year limitations period. The trial court also correctly found th at Foster’s fraud cause of action was timebarred. The statute of limitations for a fraud cause of action is three years (Code Civ. Proc., § 338, subd. (d)) and four years if ba sed on a written contract. (Code Civ. Proc., § 337, subd. 3.) An action based on fraud accr ues on the date that a plaintiff discovers the facts constituting the fraud. (Code Civ. Proc., §§ 337, subd. 3; 338, subd. (d).) “[T]hat date is the date the co mplaining party learns, or at le ast is put on notice, that a representation was false.” ( Brandon G. v. Gray (2003) 111 Cal.App.4th 29, 35.) Foster’s fraud cause of action, like her othe r causes of action, appears to be based on Old Republic’s alleged failure to provide Foster with no tice of her right to rescind9 before closing. Foster was at least on notice of Old Republic’s alleged failure to provide this notice in July 20 07, when Old Republic sent Foster a letter informing her about the General Closing Instructions. And Foster was certainly on notice of Old Republic’s alleged fraud no later than May 9, 2008, the day she lost her home to foreclosure. Even if we assume this later accrual date, and assume that the four-year statute of limitations for fraud applies, Foster’s fraud cause of action is time-barred.
To the extent that Foster’s fraud cause of action is based on representations Old Republic made in its December 2009 and July 2011 letters to Foster, the trial court correctly determined that Foster failed to a llege sufficient facts to support her cause of
action. “An action for fraud or deceit . . . demands proof of damages caused by misrepresentations or concealment of in formation. [Citations.] ‘Fraudulent representations which work no damage canno t give rise to an action at law.’ ” ( Williams
v. Wraxall (1995) 33 Cal.App.4th 120, 132, fn. om itted.) Here, Foster appears to have alleged that Old Republic falsely represente d in its December 2009 and July 2011 letters that it provided Foster with the General Closing Instructions before closing, and also that it was not responsible for ensuri ng that Foster received the General Closing Instructions. However, the only damage alleged by Foster re lates to the loss of he r home in May 2008, which occurred before Old Republic made th e allegedly false representations in the December 2009 and July 2011 letters. Those letters coul d not have been the cause of Foster’s alleged harm and cannot serve as a basis for her fraud cause of action. In summary, we conclude that each of Fo ster’s causes of action is time-barred.
We also conclude that Foster has failed to allege sufficient facts to sustain a fraud cause
of action to the extent it was based on letters she received from Old Republic after she lost her home. In light of this holding, we need not address whether the trial court also properly concluded that Foster failed to allege sufficient f acts to support her breach of
contract and common count causes of action against Old Republic.
C. The Trial Court Properly Sustained the Demurrer Without Leave to Amend.
The trial court sustained Foster’s demurer without leave to ame nd. We agree that
leave to amend should not ha ve been given because Foster did not meet her burden of10 showing a “reasonable possibility that [her complaint] can be cured by amendment.” ( Blank v. Kirwan , supra , 39 Cal.3d at p. 318.) Foster has not indicated to the trial court or to us that she could allege facts that would cure the defects in her complaint. DISPOSITION The judgment of dismissal in favor of Old Republic is affirmed.11 _ ____________ ____________ Miller, J.

We concur:

_____________ ____________ Kline, P.J.

_____________ ____________ Richman, J.