Filed 3/13/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARINA IVANOFF,

Plaintiff and Appellant,

v.

BANK OF AMERICA, N.A.,

Defendant and Respondent.

 B271035

 (Los Angeles County

 Super. Ct. No. BC591972)

APPEAL from an order of the Superior Court of 

Los Angeles County, Holly E. Kendig, Judge. Affirmed. 

Marina Ivanoff, in pro. per., for Plaintiff and Appellant. 

Bryan Cave, Douglas E. Winter, Andrea M. Hicks, and 

Richard Steelman, Jr., for Defendant and Respondent.

_____________________
2

Marina Ivanoff appeals the order dismissing with prejudice 

her complaint against the Bank of America after the trial court 

sustained without leave to amend the Bank‟s demurrer to 

Ivanoff‟s complaint for violations of the federal Truth In Lending 

Act (TILA) (15 U.S.C. § 1601 et seq.) and California‟s unfair 

competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.), 

fraudulent omission/concealment and injunctive relief. Ivanoff 

argues the trial court improperly applied the doctrines of 

res judicata (claim preclusion) and collateral estoppel (issue 

preclusion) based on her prior unsuccessful lawsuit against the 

Bank for breach of contract and contends she stated valid causes 

of action on the theories alleged in her complaint. Ivanoff also 

asserts the court erred in denying her an opportunity to amend 

her complaint. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Ivanoff’s Initial Lawsuit for Breach of Contract

Ivanoff originally sued Bank of America, N.A., successor to 

BAC Home Loans Servicing LP and Countrywide Bank, FSB, as 

well as ReconTrust Company, N.A., and Mortgage Electronic 

Registration Systems, Inc. (MERS), in July 2013, asserting 

causes of action for breach of contract, temporary restraining 

order and preliminary injunction, violation of the UCL, specific 

performance and equitable rescission. 

In her complaint Ivanoff alleged she was the owner of a 

condominium in West Los Angeles, which she had purchased in 

2004 with a loan secured by a deed of trust in favor of 

Washington Mutual Bank. Ivanoff refinanced her loan in 2006-

2007 with Countrywide; the refinancing closed in December 2007. 

Contrary to representations made to her by Countrywide 

representatives, a penalty and fees were added to the loan 
3

balance, increasing the amount she borrowed from $636,000 to 

$711,000. Those additional undisclosed amounts, included in 

breach of the parties‟ agreement, made the loan unaffordable;

and Ivanoff defaulted.

In October 2010 Ivanoff sought a modification of the loan 

with the Bank, which had acquired Countrywide. Ivanoff alleged 

the Bank agreed to modify the loan, following successful 

completion of a trial loan modification agreement, with a new 

principal balance of $847.989.90, a new interest rate of 2 percent, 

an effective date of February 1, 2011 and a maturity date of 

January 1, 2051. Monthly loan payments were to be $2,567.93. 

However, according to Ivanoff, the Bank breached their loan 

modification agreement by adding an additional sum for required

“escrow option insurance,” which increased the monthly payment 

to $3,328.65. 

The defendants demurred on numerous grounds. The trial 

court sustained the demurrer, in part, because Ivanoff had not 

alleged whether the agreements at issue were oral, written or 

implied, had not attached copies of any of the agreements and 

had not alleged the material terms of the agreements with the 

requisite detail. The court also found that certain of her claims, 

as pleaded, were barred by the statute of limitations or the 

statute of frauds.

Given leave to amend, Ivanoff filed a first amended 

complaint that was virtually identical to the original complaint 

and that, once again, did not attach any of the alleged 

agreements or describe their terms in any greater detail. The 

trial court sustained the defendants‟ demurrer to the first 

amended complaint without leave to amend, observing, “the 

opposition fails to address about eighty percent of the issues 
4

raised (e.g., Statute of Limitations and Statute of Frauds), and 

fails to cite any governing law on point (e.g., tender, contract and 

injunction).” The court then explained that “„[c]ontentions are 

waived when a party fails to support them with reasoned 

argument and citations to authority.‟”

The Court of Appeal affirmed. (Ivanoff v. Bank of America

(May 13, 2015, B256462 [nonpub. opn.].) The court stated 

Ivanoff‟s brief was “blatantly deficient,” containing no citation to 

the record and essentially no factual or legal analysis. The court 

then ruled, “Since Ivanoff has not demonstrated that the trial 

court erred, we are in no position to reverse its order.” (Ibid.) In 

addition, because Ivanoff had made no attempt to demonstrate 

how she could amend her complaint to plead a viable claim, the 

Court of Appeal concluded leave to amend was not warranted.

2. The Current TILA/Fraud Lawsuit

On August 20, 2015, four weeks after the Supreme Court 

denied Ivanoff‟s petition for review in the initial lawsuit, Ivanoff 

again sued the Bank, ReconTrust and MERS, as well as two of 

the Bank‟s employees, in a complaint for violation of TILA, the 

UCL, fraudulent omission/concealment and injunctive relief. The 

general allegations of the complaint were identical to those in the 

prior lawsuit relating to the December 2007 refinancing and 

February 1, 2011 loan modification agreements. (As in her prior 

lawsuit, Ivanoff did not attach copies of the refinancing or loan 

modification agreements.) 

Rather than alleging breach of contract, however, Ivanoff‟s 

new lawsuit alleged the Bank violated TILA by failing to make 

required disclosures with respect to the “escrow option 

insurance,” which was surreptitiously added to Ivanoff‟s monthly 

loan payment obligation. Ivanoff additionally alleged the Bank‟s 
5

violation of TILA was an unlawful business practice within the 

meaning of the UCL and the failure of its employees to disclose 

the loan modification agreement would include an additional 

monthly sum of $760.72 for “escrow option insurance” constituted 

fraudulent concealment. Had she known the true facts, Ivanoff 

alleged, she would have considered other financing options. 

Ivanoff also sought injunctive relief preventing a sale at 

foreclosure of her condominium.

The Bank demurred, contending Ivanoff‟s complaint was 

barred as a matter of law by the doctrines of claim preclusion and 

issue preclusion. The Bank argued Ivanoff was asserting the 

same primary right in both actions (claim preclusion) and the 

issues alleged had been actually litigated and decided against 

Ivanoff on the merits (issue preclusion). The Bank also argued in 

support of its demurrer that the claims for violation of TILA and 

fraud were time-barred; Ivanoff lacked standing to assert a UCL 

claim because she failed to allege she had lost money or property 

as a result of the Bank‟s actions; and the claim for an injunction 

against foreclosure was improper because injunctive relief is a 

remedy, not a cause of action. In her opposition to the demurrer 

Ivanoff emphasized she had not pleaded either violation of TILA 

or fraud in her prior lawsuit.

The trial court sustained the demurrer without leave to 

amend. The court ruled Ivanoff‟s claims were barred by 

res judicata, explaining “[t]he „primary right‟ of Plaintiff in both 

actions—the right to be free from increased loan payments that 

were not agreed to—is the same, which means the present 

proceeding is on the same „cause of action‟ as the prior 

proceeding.” The court also ruled the claims were barred by 

collateral estoppel because her four causes of action “all involve 
6

the same underlying issue—the validity of the increased loan 

payments that Plaintiff allegedly did not agree to.” That issue, 

the trial court found, had already been litigated, decided and 

finalized in the prior litigation. Finally, the trial court agreed 

with the Bank that Ivanoff‟s claims independently fail: The TILA 

and fraud claims were barred by the governing statutes of 

limitation (one year and three years, respectively); Ivanoff lacked 

standing to bring a UCL claim; and the cause of action for 

injunctive relief was not a valid cause of action.

The order sustaining the demurrer and judgment of 

dismissal was filed March 3, 2016. Notice of entry was served on 

March 10, 2016. Ivanoff filed a timely notice of appeal. 

DISCUSSION

1. Standard of Review

A demurrer tests the legal sufficiency of the factual 

allegations in a complaint. We independently review the superior 

court‟s ruling on a demurrer and determine de novo whether the 

complaint alleges facts sufficient to state a cause of action or 

discloses a complete defense. (Loeffler v. Target Corp. (2014) 

58 Cal.4th 1081, 1100; Committee for Green Foothills v. Santa 

Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42.) We 

assume the truth of the properly pleaded factual allegations, 

facts that reasonably can be inferred from those expressly 

pleaded and matters of which judicial notice has been taken. 

(Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. 

City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We liberally 

construe the pleading with a view to substantial justice between 

the parties (Code Civ. Proc., § 452; Gilkyson v. Disney 

Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1340; see 

Schifando, at p. 1081 [complaint must be read in context and 
7

given a reasonable interpretation]); but, “[u]nder the doctrine of 

truthful pleading, the courts „will not close their eyes to 

situations where a complaint contains allegations of fact 

inconsistent with attached documents, or allegations contrary to 

facts which are judicially noticed.‟” (Hoffman v. Smithwoods RV 

Park, LLC (2009) 179 Cal.App.4th 390, 400; see Brakke v. 

Economic Concepts, Inc. (2013) 213 Cal.App.4th 761, 767 [“[w]hile 

the „allegations [of a complaint] must be accepted as true for 

purposes of demurer,‟ the „facts appearing in exhibits attached to 

the complaint will also be accepted as true and, if contrary to the 

allegations in the pleading, will be given precedence‟”]; 

SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 

68, 83 [“[i]f the allegations in the complaint conflict with the 

exhibits, we rely on and accept as true the contents of the 

exhibits”].) 

Although a general demurrer does not ordinarily reach 

affirmative defenses, it “will lie where the complaint „has 

included allegations that clearly disclose some defense or bar to 

recovery.‟” (Casterson v. Superior Court (2002) 101 Cal.App.4th 

177, 183; accord, Nolte v. Cedars-Sinai Medical Center (2015) 

236 Cal.App.4th 1401, 1406; Favila v. Katten Muchin Rosenman 

LLP (2010) 188 Cal.App.4th 189, 224.) “Thus, a demurrer based 

on an affirmative defense will be sustained only where the face of 

the complaint discloses that the action is necessarily barred by 

the defense.” (Casterson, at p. 183; accord, Favila, at p. 224; see 

Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 

1191 [application of a statute of limitations based on facts alleged 

in a complaint is a legal question subject to de novo review].)

“„Where the complaint is defective, “[i]n the furtherance of 

justice great liberality should be exercised in permitting a 
8

plaintiff to amend his [or her] complaint.”‟” (Aubry v. Tri-City 

Hospital Dist. (1992) 2 Cal.4th 962, 970-971.) We determine 

whether the plaintiff has shown “in what manner he [or she] can 

amend [the] complaint and how that amendment will change the 

legal effect of [the] pleading.” (Goodman v. Kennedy (1976) 

18 Cal.3d 335, 349.) “[L]eave to amend should not be granted 

where . . . amendment would be futile.” (Vaillette v. Fireman’s 

Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685; see generally 

Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 

365, 373-374.)

2. The Bank’s Demurrer Was Properly Sustained Without 

Leave To Amend

a. Violation of TILA

i. The TILA claim is not subject to claim preclusion 

or issue preclusion

The doctrine of res judicata has two aspects—claim 

preclusion and issue preclusion. (DKN Holdings LLC. v. Faerber 

(2015) 61 Cal.4th 813, 824 (DKN Holdings); Boeken v. Philip 

Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) “Claim preclusion

„prevents relitigation of the same cause of action in a second suit 

between the same parties or parties in privity with them.‟ 

[Citation.] Claim preclusion arises if a second suit involves 

(1) the same cause of action (2) between the same parties [or 

those in privity with them] (3) after a final judgment on the 

merits in the first suit. [Citations.] If claim preclusion is 

established, it operates to bar relitigation of the claim 

altogether.” (DKN Holdings, at p. 824; accord, Mycogen Corp. v. 

Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen); Johnson v. 

GlaxoSmithKline, Inc. (2008) 166 Cal.App.4th 1497, 1507.) The 

bar applies if the cause of action could have been brought, 
9

whether or not it was actually asserted or decided in the first 

lawsuit. (Busick v. Workermen’s Comp. Appeals Bd. (1972) 

7 Cal.3d 967, 974; Zevnik v. Superior Court (2008) 

159 Cal.App.4th 76, 82.) The doctrine promotes judicial economy 

and avoids piecemeal litigation by preventing a plaintiff from 

“„“splitting a single cause of action or relitigat[ing] the same 

cause of action on a different legal theory or for different relief.”‟” 

(Mycogen, at p. 897.)

The second aspect of res judicata, issue preclusion, 

historically referred to as collateral estoppel, “prohibits the 

relitigation of issues argued and decided in a previous case even 

if the second suit raises a different cause of action. [Citation.] 

Under issue preclusion, the prior judgment conclusively resolves 

an issue actually litigated and determined in the first action.” 

(DKN Holdings, supra, 61 Cal.4th at p. 824; accord, Boeken v. 

Philip Morris USA, Inc., supra, 48 Cal.4th at p. 797.) The 

doctrine applies “(1) after final adjudication (2) of an identical 

issue (3) actually litigated and necessarily decided in the first 

suit and (4) asserted against one who was a party in the first suit 

or one in privity with that party.” (DKN Holdings, at p. 825.) 

The doctrine differs from claim preclusion in that it operates as a 

conclusive determination of issues; it does not bar a cause of 

action. (Ibid.) In addition, unlike claim preclusion, issue 

preclusion can be raised by one who is not a party to the prior 

proceeding against one who was a party or his or her privy. 

(Ibid.; Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) 

Moreover, even if the minimal requirements for issue preclusion 

are satisfied, courts will not apply the doctrine if policy 

considerations outweigh the doctrine‟s purpose in a particular 

case. (Lucido, at pp. 342-343.) 
10

The trial court ruled Ivanoff‟s TILA claim was barred by 

both claim preclusion and issue preclusion, reasoning, as to claim 

preclusion, the primary right at issue in that cause of action and 

Ivanoff‟s initial breach of contract lawsuit was the same—“the 

right to be free from increased loan payments that were not 

agreed to”—and, as to issue preclusion, the validity of the 

increased loan payments had been actually litigated and 

necessarily decided in the first lawsuit. Neither ruling is correct.

It is true that when two actions involving the same parties 

seek compensation for the same harm, “„they generally involve 

the same primary right.‟” (Bullock v. Philip Morris USA, Inc. 

(2011) 198 Cal.App.4th 543, 558.) But, not always: “[D]ifferent 

primary rights may be violated by the same wrongful conduct.” 

(Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 

342 [corporation‟s failure to indemnify may violate an employee‟s 

statutory right to indemnity under Corp. Code, § 317 and a 

separate contractual right to indemnity]; accord, Le Parc 

Community Assn. v. Workers’ Comp. Appeals Bd. (2003) 

110 Cal.App.4th 1161, 1172-1173 [uninsured employer‟s 

negligence may violate employee‟s distinct primary rights under 

workers‟ compensation and tort law].) For example, in Agarwal 

v. Johnson (1979) 25 Cal.3d 932, 954-955, disapproved on another 

ground in White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 574, 

footnote 4, the Supreme Court held an employer‟s racially 

discriminatory conduct may violate distinct primary rights under 

federal civil rights law and state tort law regarding defamation 

and intentional infliction of emotional distress.

Here, although Ivanoff‟s contract and TILA claims are 

largely based on the same set of underlying facts, the two actions 

do not involve the same primary rights. “The purpose of the 
11

TILA is to promote the „informed use of credit‟ by consumers.” 

(Anderson Bros. Ford v. Valencia (1981) 452 U.S. 205, 219 

[101 S.Ct. 2266, 68 L.Ed.2d 783].) Thus, “the TILA‟s 

requirements principally focus on disclosures that creditors must 

make when offering credit.” (Lyon v. Chase Bank United States, 

N.A. (9th Cir. 2011) 656 F.3d 877, 887; see 15 U.S.C. § 1601(a) 

[“[i]t is the purpose of this subchapter to assure a meaningful 

disclosure of credit terms so that the consumer will be able to 

compare more readily the various credit terms available to him 

and avoid the uninformed use of credit, and to protect the 

consumer against inaccurate and unfair credit billing and credit 

card practices”].) The primary right at issue in Ivanoff‟s TILA 

cause of action, therefore, was the right to full disclosure of the 

material terms of her home loan refinancing by Countrywide and 

the subsequent loan modification by the Bank—in particular, the 

addition of a $30,000 penalty and fees of $37,000 to the 

outstanding loan balance as part of the December 2007 

refinancing and the addition of an escrow option insurance 

charge of $760.72 to the monthly loan payment as part of the

February 1, 2011 loan modification. That is a federal statutory 

right distinct from the common law right to have enforced only 

those contractual terms to which she had agreed, the claim

presented by her initial lawsuit. Accordingly, the doctrine of 

claim preclusion does not bar Ivanoff‟s TILA claim. (See 

generally Baral v. Schnitt (2016) 1 Cal.5th 376, 395 [“the primary 

right theory is notoriously uncertain in application”].)

Similarly, even if the conclusory statement of grounds 

recited by the court when it sustained the Bank‟s demurrer to the 

first amended complaint in the initial lawsuit is properly

considered a decision on the merits of Ivanoff‟s contract claim, the 
12

adequacy of the disclosure of credit terms in the refinancing and 

loan modification agreements was neither actually litigated nor 

finally determined in that action. The doctrine of issue 

preclusion does not bar Ivanoff‟s TILA claim either.

ii. The TILA claim is time-barred

Although the trial court erred in concluding Ivanoff‟s TILA 

cause of action was barred by the doctrines of claim and issue 

preclusion, we agree Ivanoff‟s claim was untimely under TILA‟s

governing limitations provisions, the court‟s alternative ground 

for sustaining the demurrer to the TILA cause of action.

1

Ivanoff‟s right to recover damages for the Bank‟s alleged 

violation of TILA is set forth in title 15 of the United States Code

section 1640(a)(1). Pursuant to title 15 of the United States Code 

section 1640(e), most TILA actions must be filed “within one year 

 

1

Ivanoff‟s appellate brief does not address this alternate 

basis for the trial court‟s ruling sustaining the demurrer to the 

TILA cause of action. Ordinarily, courts treat an appellant‟s 

failure to raise an issue in her briefs as forfeiting that challenge. 

(See, e.g., Tiernan v. Trustees of Cal. State University & Colleges

(1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on appeal 

deemed forfeited or waived]; Wall Street Network, Ltd. v. New 

York Times Co. (2008) 164 Cal.App.4th 1171, 1177-1178

[“[g]enerally, appellants forfeit or abandon contentions of error 

regarding the dismissal of a cause of action by failing to raise or 

address the contentions in their briefs on appeal”]; Paulus v. Bob 

Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [“[c]ourts will 

ordinarily treat the appellant‟s failure to raise an issue in his or 

her opening brief as a waiver of that challenge”].) However, in 

light of Ivanoff‟s self-represented status and our responsibility to 

independently review the trial court‟s order sustaining the 

demurrer to her complaint, we address the merits of the 

limitations rulings. 
13

from the date of the occurrence of the violation.” However, claims 

alleging violations of title 15 of the United States Code 

section 1639, which requires specific disclosures and sets certain

restrictions on loans secured by a mortgage, may be brought 

within three years of the date of violation. The violations here 

allegedly occurred in 2007 and 2010 (see, e.g., Philibotte v. 

Nisource Corporate Services Co. (1st Cir. 2015) 793 F.3d 159, 163 

[date of occurrence for disclosure violations is the date the 

transaction was consummated]; King v. California (9th Cir. 1986) 

784 F.2d 910, 915 [same]) and were allegedly first discovered by 

Ivanoff, according to her verified complaint, when she had her 

loan “forensically examined” in May 2011. (See King, at p. 915 

[“the doctrine of equitable tolling may, in the appropriate 

circumstances, suspend the limitations period until the borrower 

discovers or had reasonable opportunity to discover the fraud or 

nondisclosures that form the basis of the TILA action”].) 

The refinancing transaction concluded in December 2007. 

The loan modification closed with an effective date of February 1, 

2011. Ivanoff‟s current lawsuit was not filed until August 20, 

2015. Accordingly, whether measured by title 15 of the United 

States Code section 1640(e)‟s one-year or three-year limitations 

period, and even if equitable tolling was appropriate until May 

2011 under the circumstances alleged, Ivanoff‟s TILA claim is 

time-barred.

b. Violation of the UCL

i. Ivanoff adequately alleged injury in fact and has 

standing to pursue a UCL claim

Unfair competition under the UCL means “any unlawful, 

unfair or fraudulent business act or practice and unfair, 

deceptive, untrue or misleading advertising . . . .” Written in the 
14

disjunctive, Business and Professions Code section 17200 

establishes “three varieties of unfair competition—acts or 

practices which are unlawful, unfair, or fraudulent.” (Cel-Tech 

Communications, Inc. v. Los Angeles Cellular Telephone Co.

(1999) 20 Cal.4th 163, 180; accord, Kasky v. Nike, Inc. (2002) 

27 Cal.4th 939, 949.) “Violation of federal statutes, including 

those governing the financial industry, may serve as the 

predicate for a UCL cause of action.” (Rose v. Bank of America, 

N.A. (2013) 57 Cal.4th 390, 394.) Ivanoff‟s complaint alleged the 

Bank‟s violation of TILA constituted an unlawful business 

practice, an appropriate basis for her UCL claim. The trial 

court‟s ruling the UCL cause of action was barred by claim and 

issue preclusion suffers from the same defects as its ruling with 

respect to the TILA claim itself.

The trial court alternatively ruled that Ivanoff lacked 

standing to pursue the UCL claim, an argument also advanced on 

appeal by the Bank, which contends Ivanoff cannot show any loss 

of money or property as a result of its allegedly unlawful business 

practices. This ruling, too, was error.

“Historically, the UCL authorized any person acting for the 

interests of the general public to sue for relief notwithstanding 

any lack of injury or damages. [Citation.] At the November 2, 

2004, General Election, the voters approved Proposition 64, 

which amended the UCL to provide that a private person has 

standing to bring a UCL action only if he or she „has suffered 

injury in fact and has lost money or property as a result of the 

unfair competition.‟” (Hale v. Sharp Healthcare (2010) 

183 Cal.App.4th 1373, 1382.) “„In approving Proposition 64, the 

voters found and declared that the amendments were necessary 

to prevent abusive UCL actions by attorneys whose clients had 
15

not been “injured in fact” or used the defendant‟s product or 

service, and to ensure “that only the California Attorney General 

and local public officials [are] authorized to file and prosecute 

actions on behalf of the general public.”‟” (Troyk v. Farmers 

Group, Inc. (2009) 171 Cal.App.4th 1305, 1345; see Kwikset Corp.

v. Superior Court (2011) 51 Cal.4th 310, 320 (Kwikset) [“[w]hile 

the substantive reach of [the UCL] remains expansive, the 

electorate has materially curtailed the universe of those who may 

enforce their provisions”].) 

To satisfy Proposition 64 a plaintiff “must now establish a 

loss or deprivation of money or property sufficient to qualify as 

injury in fact, i.e., economic injury, and (2) show that that 

economic injury was the result of, i.e. caused by, the unfair 

practice or false advertising that is the gravamen of the claim.” 

(Kwikset, supra, 51 Cal.4th at p. 322.) “Injury in fact” as used in 

Proposition 64 has the same meaning as under federal law: 

“„[A]n invasion of a legally protected interest which is (a) concrete 

and particularized, [citations]; and (b) “actual or imminent, not 

„conjectural‟ or „hypothetical,‟” [citations].‟” (Kwikset, at p. 322.) 

Proposition 64, however, imposes the additional requirement that 

the plaintiff have lost money or property. (Ibid.) Indeed, loss of 

money or property—that is, “economic injury”—“is itself a classic 

form of injury in fact.” (Id. at p. 323; see id. at p. 325, fn. 8 

[“proof of lost money or property will generally satisfy the 

element of injury in fact”].) Economic injury may be shown in 

many ways including a plaintiff “surrender[ing] in a transaction 

more, or acquir[ing] in a transaction less, than he or she 

otherwise would have”; “hav[ing] a present or future property 

interest diminished”; and “be[ing] required to enter into a 
16

transaction, costing money or property, that would otherwise 

have been unnecessary.” (Id. at p. 323.) 

Although Proposition 64‟s standing requirement is more 

restrictive than the federal law requirement because the injury 

must be economic, “the quantum of lost money or property 

necessary to show standing is only so much as would suffice to 

establish injury in fact . . . . [F]ederal courts have reiterated that 

injury in fact is not a substantial or insurmountable hurdle; as 

then Judge Alito put it: „Injury-in-fact is not Mount Everest.‟ 

[Citation.] Rather, it suffices for federal standing purposes to 

„“allege[] some specific, „identifiable trifle‟ of injury.”‟” (Kwikset, 

supra, 51 Cal.4th at p. 324.) “„“The basic idea that comes out in 

numerous cases is that an identifiable trifle is enough for 

standing to fight out a question of principle; the trifle is the basis 

for standing and the principle supplies the motivation.”‟” (Id. at 

p. 325, fn. 7.)

Applying these principles in Sarun v. Dignity Health (2014) 

232 Cal.App.4th 1159, this court held “the existence of an 

enforceable obligation, without more, ordinarily constitutes 

actual injury or injury in fact,” even if the creditor has not begun 

any collection activity. (Id. at p. 1167; cf. Adams v. Paul (1995) 

11 Cal.4th 583, 591, fn. 5 [“actual injury . . . may well precede 

quantifiable financial costs”].) Whether or not Ivanoff‟s 

allegation that she “stands to lose her home” adequately pleaded 

injury in fact under the UCL, Ivanoff also alleged, as a result of 

the Bank‟s unlawful business practices, she paid money to the 

Bank and received billings for increased monthly loan payments 

in excess of what she should have owed (or was told she would 

owe). No more is required to allege injury in fact.
17

ii. The UCL claim is time-barred

“Any action to enforce any cause of action pursuant to [the 

UCL] shall be commenced within four years after the cause of 

action accrued.” (Bus. & Prof. Code, § 17208; see Aryeh v. Canon 

Business Solutions, Inc., supra, 55 Cal.4th at p. 1192.)2 

Application of the UCL limitations provision “is governed by 

common law accrual rules to the same extent as any other 

statute.” (Aryeh, at p. 1196.) Thus, absent special circumstances, 

the last element accrual rule is fully applicable in UCL cases. 

(See, e.g., Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110

[“[u]nder the discovery rule, the statute of limitations begins to 

run when the plaintiff suspects or should suspect that her injury 

was caused by wrongdoing, that someone has done something 

wrong to her”].)

In her verified first amended complaint in the initial 

contract lawsuit against the Bank, Ivanoff alleged her loan was 

 

2

The Bank did not demur to the UCL cause of action on 

statute of limitations grounds. Although an issue not raised in 

the trial court is typically forfeited, we can reach a ground for 

demurrer not raised below if it presents a pure question of law 

and the parties have been given an opportunity to address it. 

(See Woods v. Fox Broadcasting Sub., Inc. (2005) 129 Cal.App.4th 

344, 357; Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 

17, 22.) Indeed, we must affirm an order of dismissal when there 

are no grounds for relief and the demurrer is meritorious as a 

matter of law. (Trinkle v. California State Lottery (1999) 

71 Cal.App.4th 1198, 1201 [appellate court must affirm if the 

trial court‟s decision to sustain the demurrer was correct on any 

theory].) We invited supplemental letter briefs from the parties 

addressing whether Ivanoff‟s UCL cause of action was timely 

filed. The Bank responded; Ivanoff did not.
18

forensically examined in May 2011 (that is, after both the 

refinancing and the loan modification). That allegation was 

repeated in Ivanoff‟s verified complaint in the instant action. 

However, in the pending action Ivanoff also alleged she “did not 

discover the falsity/material omissions until several years later 

including May 2012.” That inconsistent and unexplained 

allegation is properly ignored. (Larson v. UHS of Rancho 

Springs, Inc. (2014) 230 Cal.App.4th 336, 344 [the principle of 

“„“truthful pleading”‟” requires us to disregard “facts that 

contradict the facts or positions that the plaintiff pleaded in 

earlier actions” or in a pleading in the same action, italics 

omitted]; accord, Cantu v. Resolution Trust Corp. (1992) 

4 Cal.App.4th 857, 877-878; see Hendy v. Losse (1991) 54 Cal.3d 

723, 742 [“„“Where a verified complaint contains allegations 

destructive of a cause of action, the defect cannot be cured in 

subsequently filed pleadings by simply omitting such allegations 

without explanation. In such a case the original defect infects the 

subsequent pleading so as to render it vulnerable to demurrer”‟”;

citations omitted].)3 

 

3

“„When the plaintiff pleads inconsistently in separate 

actions, the plaintiff‟s complaint is nothing more than a sham 

that seeks to avoid the effect of a demurrer.‟” (Larson v. UHS of 

Rancho Springs, Inc., supra, 230 Cal.App.4th at p. 344.) “„The 

sham pleading doctrine is not “„intended to prevent honest 

complainants from correcting erroneous allegations . . . or to 

prevent correction of ambiguous facts.‟” [Citation.] Instead, it is 

intended to enable courts “„to prevent an abuse of process.‟” 

[Citation.]‟ [Citations.] Plaintiffs therefore may avoid the effect 

of the sham pleading doctrine by alleging an explanation for the 

conflicts between the pleadings.‟” (Ibid.)
19

Moreover, Ivanoff has nowhere attempted to explain why 

the discrepancies between the sums she believed would be due 

following the 2007 refinancing and the February 1, 2011 loan 

modification and the amounts demanded by the Bank did not 

provide inquiry notice, if not actual notice, of the Bank‟s alleged 

unlawful business practices. (See Fox v. Ethicon Endo-Surgery, 

Inc. (2005) 35 Cal.4th 797, 815 [“[a] plaintiff seeking to utilize the 

discovery rule must plead facts to show his or her inability to 

have discovered the necessary information earlier despite 

reasonable diligence”]; see also Union Carbide Corp. v. Superior 

Court (1984) 36 Cal.3d 15, 25 [“„[I]f on the face of the complaint 

the action appears barred by the statute of limitations, plaintiff 

has an obligation to anticipate the [statute of limitations] defense 

and plead facts to negative the bar.‟”].) Whether measured by the 

dates of payment notices following the December 2007 

refinancing or the February 2011 loan modification, or even the 

May 2011 date Ivanoff has twice identified, her UCL cause of 

action filed in August 2015 was time-barred. 

c. Fraudulent omission/concealment

Ivanoff‟s fraudulent concealment claim, like her TILA and 

UCL claims, is based on the alleged nondisclosure of material 

terms of the loan refinancing (the addition of a $30,000 penalty 

and fees of $37,000 to the outstanding loan balance) and loan 

modification (the addition of an escrow option insurance charge 

to the monthly loan payment ). A fraud cause of action, whether 

based on intentional misrepresentation or concealment, is

governed by the three-year limitations period set forth in Code of 

Civil Procedure section 338, subdivision (d). However, that 

provision also specifies, “The cause of action in that case is not 

deemed to have accrued until the discovery, by the aggrieved 
20

party, of the facts constituting the fraud . . . .” (See Alfaro v. 

Community Housing Improvement System & Planning Assn., Inc.

(2009) 171 Cal.App.4th 1356, 1391; see also Cleveland v. Internet 

Specialties West, Inc. (2009) 171 Cal.App.4th 24, 31 [“the statute 

of limitations in a cause of action for fraud „commences to run 

after one has knowledge of the facts sufficient to make a 

reasonably prudent person suspicious of fraud, thus putting him 

on inquiry . . .‟”].) Whether measured by the receipt of payment 

notices that demanded a larger sum than she had anticipated, 

the May 2011 forensic examination of her loan, or even the 

purported May 2012 discovery of the Bank‟s “falsity/material 

omissions,” Ivanoff‟s cause of action for fraud, not filed until 

August 20, 2015, is barred by section 338, subdivision (d)‟s threeyear limitations period.

d. Injunctive relief

“Injunctive relief is a remedy, not a cause of action. 

[Citations.] A cause of action must exist before a court may grant 

a request for injunctive relief.” (Allen v. City of Sacramento

(2015) 234 Cal.App.4th 41, 65; accord, City of South Pasadena v. 

Department of Transportation (1994) 29 Cal.App.4th 1280, 1293 

[“„A permanent injunction is merely a remedy for a proven cause 

of action. It may not be issued if the underlying cause of action is 

not established.‟”]; see Roberts v. Los Angeles County Bar Assn. 

(2003) 105 Cal.App.4th 604, 618; McDowell v. Watson (1997) 

59 Cal.App.4th 1155, 1159.) Because none of Ivanoff‟s other 

causes of action may be maintained, her request for injunctive 

relief necessarily fails as well.

e. Leave to amend

Although Ivanoff correctly states the trial court abuses its 

discretion if it sustains a demurrer without leave to amend if the 
21

pleading defect can be cured, she does not identify any additional 

facts she can allege to refute the conclusion her claims are timebarred as a matter of law. (See Schifando v. City of Los Angeles, 

supra, 31 Cal.4th at p. 1081 [“plaintiff has the burden of proving 

that an amendment would cure the defect”].) Accordingly, the 

Bank‟s demurrer was properly sustained without leave to amend.

DISPOSITION

The order dismissing the action is affirmed. The parties 

are to bear their own costs on appeal.

PERLUSS, P. J.

We concur: 

SEGAL, J.

SMALL, J. *

 

* Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.