Judge: Erick L. Larsh, Case: 2019-01092584, Date: 2023-08-24 Tentative Ruling

Defendants, Select Portfolio Servicing, Inc. and US Bank, NA as trustee, et al.’s (“Loan Defendants”) motion for summary judgment is granted.

Preliminarily, Loan Defendants have exceeded the page limit for a motion for summary judgment/adjudication. Rules of Court, Rule 3.1113. Here, the memorandum begins on Page 10 and ends on Page. 30, which is 21 pages. Thus, the Court disregards Page. 30.

On 5/19/20, the court sustained Loan Defendants’ demurrer as to the 1st and 4th causes of action with leave to amend and granted Loan Defendants’ motion to strike as to punitive and emotional damages with 15 days leave to amend. Plaintiff did not amend the complaint. Thus, the operative complaint is the SAC with the 2nd, 3rd and 5th causes of action. The 1st and 4th causes of action were effectively stricken from the SAC.

2nd COA for Promissory Fraud

The elements of a cause of action for false promise are: (i) Defendant made a promise to plaintiff; (ii) Defendant did not intend to perform this promise when he/she/it made it; (iii) Defendant intended that plaintiff rely on this promise; (iv) Plaintiff reasonably relied on defendant’s promise; (v) Defendant did not perform the promised act; (vi) Plaintiff was harmed; and (vii) Plaintiff’s reliance on defendant's promise was a substantial factor in causing his harm. [Civ. Code 1710; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973; CACI 1902.]

The SAC alleges that on or about August 23, 2016, Plaintiff and U.S. BANK, SPS and Does 1 to 25 and each of them entered into agreement whereby Plaintiff would wire the sum of $150,000.00 to SPS to reinstate the Subject Loan and in return U.S. BANK, SPS and Does 1 to 25 would not

hold a foreclosure sale of the Subject Property. [SAC ¶¶ 16 & 29.]. In reliance on that representation and instead of taking other actions to stop the foreclosure sale, Plaintiff wired to SPS $150,000 as agreed. [SAC ¶ 30.] At the time the representations were made by U.S. Bank and SPS, they knew them to be false and there was no intent to ever stop the foreclosure sale; that the representations were false and Plaintiff relied on those statements to his detriment and has been damaged. [SAC ¶¶ 31-33.]

Loan Defendants present evidence that they did not make any promise to plaintiff. The evidence reflects Plaintiff had four calls with SPS representatives on the date the trustee’s sale was scheduled, August 23, 2016. [SUF 9-18, 23-32.] The first call was with TaTionna Thomas who stated that she “can’t offer any assistance to help keep the home,” had he given SPS “a call about six days before,” that it “would have enough time to get [] out a reinstatement quote,” but Plaintiff did not “have enough time,” the same day of foreclosure and Ms. Thomas stated, “I’m saying that the foreclosure sale cannot be stopped at this point.” [SUF 10, 24.] The second call was with Raquel Madrigal who noted there had been a reinstatement

quote in March 2016. [SUF 12, 26.] Plaintiff said he had $170,000.00 to wire to reinstate the Loan. [SUF 12, 26.] Ms. Madrigal said Plaintiff could send in funds he had, but she “can’t guarantee” that would be sufficient to reinstate the Loan.

[SUF 12, 26.] She said if Plaintiff sent in certified funds that SPS would hold the funds for 20 days, and “then we’ll request a postponement.” Plaintiff expressly agreed at his Deposition that Ms. Madrigal never said that he could send in

$150,000.00 and that would stop the foreclosure. [SUF 13, 27.] Plaintiff’s third call with SPS was with Linda Jeffrey. [SUF 15, 28.] On that call Plaintiff stated that he had just wired $160,000 to SPS, although he testified at his deposition that he wired

$150,000.00. [SUF 15, 28.] Ms. Jeffrey informed him that she did not know if the sale had yet taken place, and she “can’t guarantee that they’re going to accept this amount,” but she would “let cashiering know.” [SUF 15, 28.] On last call with SPS representative Tavaras Person, Plaintiff stated that he had sent funds in and wanted to make “sure everything was taken care of.” [SUF 17, 29.] Tavaras Person said the sale was scheduled for that day, and “I’m not showing anything has been received as of yet.” [SUF 17, 29.] Tavaras Person said Plaintiff would “want to check back in a couple of days to get the account some time to update from the sale and the funds and things of that nature.” [SUF 17, 29.] Plaintiff testified that the certified transcripts of the calls with TaTionna Thomas, Raquel Madrigal, and Linda Jeffrey accurately reflect what was said on the calls. [SUF 11, 14, 16, 25, 28, 30.]

Plaintiff’s own testimony about his AT&T wireless statement shows there were no other calls with SPS than the calls with Raquel Madrigal, Linda Jeffrey, and Tavaras Person (the first call with TaTionna Thomas originated from his neighbor’s cell phone). [SUF 18, 32.] Plaintiff expressly agreed there was not a second call with Raquel Madrigal. [SUF 18, 32.]

Because there was no promise to postpone or cancel the foreclosure sale, even if Plaintiff wired $150,000 to SPS, the remaining elements (ii)-(vii) also fail as they all are premised on the existence of a promise. Thus, Loan Defendants have met their initial burden of proof and the burden now shifts to Plaintiff to establish there is a triable issue of fact. Because Plaintiff did not oppose the motion, he has failed to raise any triable issue.

As a result, there are no triable issues of fact with respect to Plaintiff’s 2nd cause of action.

3rd COA for Negligent Misrepresentation

The elements of a cause of action for negligent misrepresentation are: (i) A false statement of material fact that the Defendant honestly believes to be true, but made without reasonable grounds for such belief; (ii) made with the intent to induce reliance; (iii) plaintiff’s reasonable reliance on the statement; and (iv) damages. Century Surety Co. v. Crosby Ins. (2004) 124 Cal.App.4th 116, 129. Negligent misrepresentation must be alleged with the same particularity required to plead fraud. Small v. Fritz Cos Inc. (2003) 30 Cal.4th 167, 184. The pleading must allege how, when, where, to whom and by what means the representations were tendered. Id. at 184.

The elements of a negligent misrepresentation cause of action are the same as the ones for fraud except for the requirement of scienter. Bains v. Moores (2009)172 Cal. App. 4th 445, 454. In a claim for negligent misrepresentation, the plaintiff need not allege that the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true. Id.

Again, the SAC alleges that on or about August 23, 2016, Plaintiff and U.S. BANK, SPS and Does 1 to 25 and each of them entered into agreement whereby Plaintiff would wire the sum of $150,000.00 to SPS to reinstate the Subject Loan and in return U.S. BANK, SPS and Does 1 to 25 would not

hold a foreclosure sale of the Subject Property. [SAC ¶¶ 16 & 38.] While Defendants believed the statements to be true, they had no grounds for such a belief. [SAC ¶ 38.] Plaintiff relied on the representations; the representations were false; Defendants should have known the statements were false; the misrepresentations were made to induce Plaintiff’s reliance; Plaintiff was ignorant of the falsity and did act and was damaged. [SAC ¶¶ 39-44.]

As with the second cause of action that there was no promise, Loan Defendants have established that there was no false statement of material fact as Loan Defendants never made any representation to Plaintiff that the foreclosure sale would be stopped if Plaintiff wired $150,000. [SUF 9-18, 56-68.] Because there was no false statement, the remaining elements of negligent misrepresentation fail as they are premised on the existence of a false statement. Thus, Loan Defendants have met their initial burden of proof and the burden now shifts to Plaintiff to establish there is a triable issue of fact. Because Plaintiff did not oppose the motion, he has failed to raise any triable issue.

As a result, there are no triable issues of fact with respect to Plaintiff’s 3rd cause of action.

5th COA for Violation of B&P 17200

The fifth cause of action incorporates all prior paragraphs (¶ 55) and alleges that Loan Defendants engaged in certain listed deceptive business practices. (¶ 56.)

Because all of Plaintiff’s other claims fail, the UCL claims fail as well. (See Wolski v. Fremont Investment and Loan (2005) 127 Cal.App.4th 347, 357 [a cause of action for violation of Bus. and Prof. Code § 17200 fails where it is predicated on a violation of law that also fails]; Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619 [same]; Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 182 [“A bar against an action may not be circumvented by recasting the action as one under Business and Professions Code section 17200.”].)

Based on the foregoing, the court grants Loan Defendants’ motion for summary judgment.