Williams v. New Penn Financial CA1/2 ( 2022 )

Filed 12/21/22 Williams v. New Penn Financial 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SANDRA WILLIAMS,
Plaintiff and Appellant,
A164511
v.
NEW PENN FINANCIAL, (Solano County
LLC et al., Super. Ct. No. FCS052042)
Defendants and
Respondents.
In 2006, appellant Sandra Williams entered into a loan secured by a
deed of trust on her home, and at the same time obtained a home equity loan
of credit (HELOC) secured by a separate deed of trust. In 2016 Williams
refinanced the primary loan with New Penn Financial, LLC (New Penn). The
HELOC remained. Williams made payments on the HELOC until February
or March of 2018, at which time, in her words, she “just felt like that home
line of credit was just bogus and I was going to let it go.” And she stopped
making payments. The servicer of the HELOC sent a notice of default,
several months later a notice of trustee’s sale, and Williams’s home was sold
at foreclosure.
Williams sued, ultimately asserting four causes of action against New
Penn: negligence, intentional misrepresentation, negligent
1
misrepresentation, and violation of the Unfair Competition law. New Penn
moved for summary judgment, which the court granted, and Williams
appeals, asserting four arguments, one procedural and three substantive, the
substantive arguments essentially contending that there were “disputed
material facts.” We affirm.
BACKGROUND
The Facts
In 2006, Williams entered into a loan with Countrywide Home Loans in
the amount of $372,001, secured by a deed of trust on her home in Vallejo. At
that same time, Williams also obtained a HELOC with a credit limit of
$30,000, also secured by Williams’s home by a separate deed of trust. The
HELOC deed of trust expressly provided that “Trustor [Williams] irrevocably
grants, transfers and assigns to Trustee, in trust and with power of sale, all
of the real property in the City or Town of Vallejo, County of Solano,” going
on to identify her property by its street address.
In August 2016, Williams refinanced the Countrywide loan with New
Penn. The amount of the refinance loan was $375,850. The HELOC
remained.
In November 2017, Mortgage Electronic Registration Systems, Inc.
filed an Assignment of Deed of Trust affecting the HELOC, assigning the
deed of trust to the Bank of New York Mellon (Mellon) as successor trustee.
In early 2018, Bank of America, N.A. (BANA), as attorney in fact for Mellon,
recorded a substitution of trustee substituting MTC Financial Inc. (MTC) as
trustee. And BANA was the loan servicing company for the HELOC.
Williams made payments on the HELOC until February or March of
2018, at which time, in her words, she “just felt like that home line of credit
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was just bogus and I was going to let it go.” And she stopped making
payments.
Following Williams’s decision, in April 2018, MTC recorded a “Notice of
Default and Election to Sell Under Deed of Trust.” Among other things, the
notice of default provided in capitalized bold-face as follows: “IMPORTANT
NOTICE. IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE
YOU ARE BEHIND IN YOU PAYMENTS, IT MAY BE SOLD WITHOUT
ANY COURT ACTION.” Williams received this notice.
On June 18, some two months after the notice of default was recorded,
Williams called New Penn’s customer service center, and talked with
customer service representative Taniqua Jackson. During the call, Williams
admitted she had stopped making payments on her HELOC, saying that she
“just felt like that home line of credit was just bogus and [she] was going to
let it go.” Williams also told Jackson that BANA, the loan servicer, was
calling repeatedly and threatening to foreclose on her property. Williams
also said that she had been told by her loan broker (and others) to the
contrary, that BANA would not be able to foreclose on her property.
Williams then asked Jackson whether BANA would foreclose on her
property, stating that she, “just want[ed] to verify” that what her loan broker
had told her was correct. Jackson replied that she did not know the answer,
but would try to see if someone from New Penn’s second lien department
could speak to her about the issue. Jackson went off the line, later to return,
to tell Williams that another representative said she had not seen a junior
lienholder foreclose while the first lien was current, but that she did not
know how BANA works in such circumstances.
Following this, Williams admitted to Jackson that she owed about
$23,000 on the HELOC when she stopped paying. Then, after stating she did
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not want to “wrap” the HELOC debt into the New Penn loan, Williams stated
that she was going to continue to try to negotiate with BANA, but she wanted
to “make sure that I’m not placing my house in jeopardy.” Jackson responded
as follows:
“TANIQUA JACKSON: Your home. Yes, ma’am. Yes, ma’am. So just
keep in mind, she did tell me that she has never seen it happen. More than
likely—
“SANDRA WILLIAMS: And I haven’t either.
“TANIQUA JACKSON: Yeah. She said most of the time as long as
you’re current with your first lien, that she has never seen where they were
able to take it because of the second lien. But then she did tell me, you know,
kind of just keep correspondence with them or whatever. Because she don’t
know how their company works. . . .”
Jackson made no further comments about any HELOC foreclosure
procedure, and the call ended.
On July 6, 2018, MTC recorded a Notice of Trustee’s Sale, setting forth
an estimated unpaid balance of $28,241.11. The first page of the notice
stated in bold-faced text: “YOU ARE IN DEFAULT UNDER A DEED OF
TRUST DATED July 13, 2006. UNLESS YOU TAKE ACTION TO
PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
IF YOU NEED AN EXPLANATION OF THE NATURE OF THE
PROCEEDINGS AGAINST YOU, YOU SHOULD CONTACT A
LAWYER.”
On August 15, the date noticed for the trustee’s sale, Williams’s
property was sold to a third party, Breckenridge Property Fund 2016
(Breckenridge). New Penn had no involvement with the HELOC loan
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foreclosure, and it did not receive any of the proceeds or otherwise benefit
from the foreclosure sale.
On August 16, the day after the foreclosure sale, Williams again called
New Penn’s customer service center and spoke with customer representative
Amanda Perez. Williams explained her claimed situation relating to the
HELOC, including that she could not refinance her home loan and HELOC
together in a single loan because of the value of her home, so she made
payments on both for two years. Williams then said, “after two years, I still
owed $28,000. It’s just ridiculous. [¶] So after trying to negotiate with those
folks, I decided I was not going to pay it anymore. And I started writing
letters, trying to figure out if there was a way we could negotiate something
lower.” Williams then referenced the August 15 sale and said: “Well, I forgot
all about it. Because I’m thinking to myself, that’s impossible. Because my
primary lender is not them, my primary lender is New Penn Financial. So
when all of this first started back in March, I called New Penn. I explained
what I was doing. And, of course, they didn’t say one way or the other what I
should do. But I said would it put my first or primary lender—you all—in
any kind of position where I would lose my home. And the loan officer said
no. You know, no, because you keep paying us.”1
Perez then conferred with an unidentified New Penn employee, who
confirmed that Williams was not in default on her refinanced loan. And
according to Perez, the second employee stated, “I was checking with my
supervisor. She is saying even though the second mortgage went to
foreclosure, the first one is still not in default. So nothing should be
1Williams also claimed in her declaration that she spoke with a New
Penn representative in March 2018. There is no record of any such call
taking place.
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happening with that (indiscernible).” Perez told Williams that she, Perez, did
not think BANA could take the property, because New Penn’s 2018 refinance
loan was the first lien, rather than the 2006 HELOC.
During the same call, Williams also admitted that she had spoken with
a lawyer about the issue, telling Perez: “And before I called you guys, I
actually called in a lawyer, a real estate lawyer. So I think I’m going to go
another couple steps. But I still just wanted to make sure from you guys that
what I’ve been told is still the truth, that there’s nothing going on with my
first and primary lender.” Later, Williams admitted, “Because this lawyer, or
whoever these people are that I was talking to earlier, they said oh no, they
can go and take over your first. Really? They would be willing to
(indiscernible) for $30,000? Are you kidding me? I said does that make
sense? And he said, well—” The call concluded shortly thereafter.
The Proceedings Below
On December 17, 2018, representing herself, Williams filed a complaint
naming three defendants: New Penn, BANA, and Breckenridge, the third-
party buyer of the property. The complaint alleged 12 causes of action, styled
as follows: “Violation of California Civil Code [section] 2924; Violation of
California Civil Code [section] 2924[, subdivision] (j); Estoppel; Negligence;
Fraudulent Misrepresentation; Negligent Misrepresentation; Declaratory
Relief; Wrongful Foreclosure; Quiet Title; Slander of Title; Cancellation of
Instruments; and Violation of Business and Professions Code [section] 17200,
et al.”2
2On April 2, 2019, judgment was entered for BANA, following its
demurrer being sustained without leave to amend. And on April 11, 2019,
Williams dismissed Breckenridge with prejudice. BANA and Breckenridge
are not involved in this appeal.
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On March 22, 2019, still representing herself, Williams filed a first
amended complaint, removing the first Civil Code section 2924 cause of
action.
On April 26, the Mellen Law Firm substituted in as attorney for
Williams.
As pertinent here, New Penn filed a demurrer. In response, now
represented by counsel, Williams represented she was abandoning seven of
the causes of action, and was pursuing only four, those for: negligence,
fraudulent misrepresentation, negligent misrepresentation, and violation of
the Unfair Competition Law, Business and Professions Code section 17200 et
seq.
Again, New Penn demurred, and Williams moved to file a second
amended complaint. The trial court overruled the demurrer, but also denied
Williams’s motion to file a second amended complaint.
On December 6, New Penn answered the first amended complaint, and
the case was at issue as to Williams’s four causes of action.
On September 9, 2021, New Penn moved for summary judgment, or, in
the alternative, summary adjudication. Based on the declarations and
evidence, including the transcripts of the two calls Williams relied on to
support her allegations, New Penn argued that none of the four causes of
action had merit.
Williams opposed the motion, included within which opposition was her
declaration containing assertions that contradicted the language contained in
the transcripts, which declaration also added to the allegations in the first
amended complaint.
Following New Penn’s reply, the motion came on for hearing on
December 7, prior to which the trial court issued a tentative ruling granting
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the motion. The tentative ruling does not appear in the record on appeal.
But it is referenced in the reporter’s transcript on appeal and was addressed
by counsel at the hearing.
Among other things, at the hearing the court noted that Williams’s
opposition presented no evidence she would have been able to cure the
default, a fact Williams’s attorney conceded. Instead, counsel argued that
Williams was actively working on the default and seeking to negotiate with
BANA, and that she could have continued those efforts if the home had not
been sold. Responding, the trial court noted “these assertions do not
demonstrate that the misrepresentations that you allege [were] a substantial
factor in losing the property . . . . Those representations actually support an
inference to the contrary.” Finally, the court noted that Williams could not
rely on any statement by any New Penn representative on the August 16 call,
because by that time the trustee sale had already occurred.
At the close of the hearing, the trial court adopted the tentative ruling
as the order of the court, and ruled that the motion for summary judgment
was granted. The court then signed and returned the order submitted by
New Penn, which order was filed on December 9. On January 28, 2022,
Williams filed a notice of appeal, which checked that the appeal was from a
“judgment after an order granting a summary judgment motion.”
There is no judgment in the record, only the order, which is not
appealable. (Hill v. City of Long Beach (1995) 33 Cal.App.4th 1684, 1695.)
However, as recently confirmed, “in the interest of judicial economy, we may
construe the order sustaining the demurrer without leave to amend as a final
appealable judgment. [Citation.]” (Cardenas v. Horizon Senior Living, Inc.
(2022) 78 Cal.App.5th 1065, 1069; see generally Vibert v. Berger (1966)
8
64 Cal.2d 65, 67−68; Los Altos Golf & Country Club v. County of Santa Clara
(2008) 165 Cal.App.4th 198, 202.)
That we do, and thus turn to the substance of the appeal.
DISCUSSION
Summary Judgment and the Standard of Review
“A party may move for summary judgment in an action or proceeding if
it is contended that the action has no merit . . . .” (Code Civ. Proc., § 437c,
subd. (a)(1) (Section 437c).) And summary judgment will be granted “if all
the papers submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.”
(Section 437c, subd. (c).)
A defendant “moving for summary judgment bears the burden of
persuasion that there is no triable issue of material fact and that [the
defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar).) And to prevail, a
defendant must show that one or more elements of the challenged cause of
action cannot be established or that there is a complete defense to it.
(Aguilar, supra, 25 Cal.4th at p. 849; Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 476−477.)
Our review is under well-settled principles: “On appeal ‘[w]e review a
grant of summary judgment de novo; we must decide independently whether
the facts not subject to triable dispute warrant judgment for the moving
party as a matter of law. [Citations.]’ (Intel Corp. v. Hamidi (2003)
30 Cal.4th 1342, 1348.) Put another way, we exercise our independent
judgment, and decide whether undisputed facts have been established that
negate plaintiff’s claims. (Romano v. Rockwell Internat., Inc., [(1996)]
14 Cal.4th [479,] 487.) As we put it in Fisherman’s Wharf Bay Cruise Corp. v.
9
Superior Court (2003) 114 Cal.App.4th 309, 320: ‘[W]e exercise an
independent review to determine if the defendant moving for summary
judgment met its burden of establishing a complete defense or of negating
each of the plaintiff's theories and establishing that the action was without
merit.’ (Accord, Certain Underwriters at Lloyd’s of London v. Superior Court
(2001) 24 Cal.4th 945, 972.)
“But other principles guide us as well, including that ‘[w]e accept as
true the facts . . . in the evidence of the party opposing summary judgment
and the reasonable inferences that can be drawn from them.’ (Morgan v.
Regents of University of California (2000) 88 Cal.App.4th 52, 67.) And we
must ‘ “view the evidence in the light most favorable to plaintiff[] as the
losing part[y]” and “liberally construe plaintiff[’s] evidentiary submissions
and strictly scrutinize defendant[’s] own evidence, in order to resolve any
evidentiary doubts or ambiguities in plaintiff[’s] favor.” ’ (McDonald v.
Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 96−97.)”
(Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253−254.)
In addition to the above is the well-recognized admonition, set forth, for
example, in Claudio v. Regents of the University of California (2005)
134 Cal.App.4th 224, 230 this way: “On review of a summary judgment, the
appellant has the burden of showing error, even if he did not bear the burden
in the trial court. (Byars v. SCME Mortgage Bankers, Inc. (2003)
109 Cal.App.4th 1134, 1140.) . . . ‘[D]e novo review does not obligate us to cull
the record for the benefit of the appellant in order to attempt to uncover the
requisite triable issues. As with an appeal from any judgment, it is the
appellant’s responsibility to affirmatively demonstrate error and, therefore,
to point out the triable issues the appellant claims are present by citation to
the record and any supporting authority. In other words, review is limited to
10
issues which have been adequately raised and briefed.’ (Lewis v. County of
Sacramento (2001) 93 Cal.App.4th 107, 116.)”
The Summary Judgment Was Proper
As noted, Williams makes four arguments on appeal, the first of which
is that the trial court’s “order granting summary judgment is defective.” The
argument is 10-lines long, and cites to the language in section 437c,
subdivision (g) that in an order granting summary judgment, the court must
“specify the reasons for its determination.”3
The argument is based on a less than candid treatment of the record.
And it fails for several reasons, both and procedural and substantive.
We begin by noting that Williams’s brief ignores several settled
principles of appellate review, the most fundamental of which is that a
judgment is presumed to be correct. (Jameson v. Desta (2018) 5 Cal.5th 594,
608−609.) “All intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be affirmatively
shown” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564), and any
ambiguity in the record is resolved in favor of the appealed judgment or
order. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624,
631.)
Moreover, Williams bears the burden of overcoming the presumption of
correctness and must provide an adequate record demonstrating the alleged
error. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608−609.) And failure to
The actual language provides as follows: “Upon the grant of a motion
3
for summary judgment on the ground that there is no triable issue of
material fact, the court shall, by written or oral order, specify the reasons for
its determination.” The statute also provides that the order must specifically
refer to the evidence proffered in support of and, if applicable, in opposition to
the motion that indicates no triable issue exists.
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provide a proper record requires that the issue be resolved against her.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295–1296; Oliveira v. Kiesler (2012)
206 Cal.App.4th 1349, 1362 [judgment affirmed where appellant failed to
present adequate record]; Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 187 [argument on appeal forfeited where appellant
limited clerk’s transcript to selected excerpts, and failed to include reporter’s
transcript and exhibits].)
As noted above—and as the reporter’s transcript confirms—the trial
court issued a tentative ruling granting the motion for summary judgment.
Williams failed to include that tentative ruling in the record on appeal,
although the trial court adopted that tentative ruling as the order of the
court. We have obtained that tentative ruling, and on our own motion
augment the record to include it.
The tentative ruling is 46-lines long, consuming well over a page single-
spaced. It cites to numerous undisputed facts in the record, to several
declarations, and to cases supporting the various findings and conclusions—a
comprehensive ruling indeed. We quote here, without all the citations, the
pertinent parts of that tentative ruling:
“Defendant has demonstrated that plaintiff cannot establish one or
more essential elements of plaintiff’s third cause of action for negligence,
fourth cause of action for ‘fraudulent misrepresentation,’ fifth cause of action
for ‘negligent misrepresentation,’ and 11th cause of action for violation of the
Unfair Competition Law. All of these causes of action rely on an alleged
misrepresentation made by defendant’s representative that Bank of America
could not foreclose on its second deed of trust while plaintiff was current on
her obligations to defendant. [Citation.] But plaintiff has failed to
demonstrate that there is a triable issue regarding the detrimental reliance
12
on the misrepresentation that caused plaintiff’s injury of losing her home at a
foreclosure sale. It is undisputed that plaintiff defaulted on her Bank of
America loan and Bank of America initiated foreclosure proceedings prior to
the alleged misrepresentation by defendant’s representative. [Citation.] It is
undisputed that defendant did not foreclose on the property and defendant
did not receive any funds or otherwise benefit from the foreclosure sale.
[Citation.] It is undisputed that plaintiff had one telephone conversation
with defendant’s representative prior to the trustee’s sale. [Citation.] During
the June 18, 2018 call, defendant did not suggest, encourage, or advise
plaintiff to refrain from curing her default of another lender’s loan and, in
fact, explicitly advised plaintiff to ‘keep correspondence’ with Bank of
America to resolve the issue with the other lender. [Citation.] It cannot be
reasonably inferred from anything in the transcript of the June 18, 2018 call
that defendant intended or expected to induce inaction from the plaintiff by
the misrepresentation or that plaintiff substantially changed her position in
any way as a result of the misrepresentation. [Citation.] Additionally, there
is no triable issue regarding causation because the harm alleged would have
occurred without the alleged misrepresentation. [Citations.] The court notes
that it is also undisputed that plaintiff had been told by an attorney that
Bank of America could foreclose. [Citations.] Since plaintiff’s UCL claim is
predicated on the negligence and fraud allegations, summary judgment is
appropriate for the derivative UCL claim as well. [Citation.]”
That ruling meets the requirements of section 437c, subdivision (g).
(See Barton v. Elexys Internat. (1998) 62 Cal.App.4th 1182, 1194.)
Moreover, Williams’s argument would fail because she made no
objection at the time the trial court announced its intention to adopt the
13
tentative ruling, nor did she seek any clarification before filing her notice of
appeal. Thus, Williams waived any claim of error.
As the leading appellate commentary puts it, citing numerous cases,
“Waiver: Appellants may be held to have waived a claim of error either by
affirmative conduct or by failure to take proper steps in the trial court to
avoid or cure the error. [Citations.] [¶] ‘[F]airness is at the heart of a waiver
claim. Appellate courts are loath to reverse a judgment on grounds that the
opposing party did not have an opportunity to argue and the trial court did
not have an opportunity to consider . . . . Bait and switch on appeal not only
subjects the parties to avoidable expense, but also wreaks havoc on a judicial
system too burdened to retry cases on theories that could have been raised
earlier.’ [Citations.]” (Eisenberg, et al., Cal. Practice Guide: Civil Appeals
and Writs (The Rutter Group, 2022) ¶ 8:249, p. 8-187.)
Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247 involved an error in the
polling of the jury, an error to which the party did not object prior to
discharging the jury. Speaking in the language of forfeiture, a companion to
waiver, the Supreme Court held that error was forfeited by the failure to
object, with this language: “The forfeiture rule generally applies in all civil
and criminal proceedings. [Citation.] The rule is designed to advance
efficiency and deter gamesmanship. As we explained in People v. Simon
(2001) 25 Cal.4th 1082 (Simon): ‘ “ ‘ “The purpose of the general doctrine of
waiver [or forfeiture] is to encourage a defendant to bring errors to the
attention of the trial court, so that they may be corrected or avoided and a
fair trial had . . . .” ’ [Citation.] ‘ “No procedural principle is more familiar to
this Court than that a constitutional right,” or a right of any other sort, “may
be forfeited in criminal as well as civil cases by the failure to make timely
assertion of the right before a tribunal having jurisdiction to determine
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it.” . . .’ [Citation.] [¶] . . . ‘ “ ‘The law casts upon the party the duty of
looking after his legal rights and of calling the judge’s attention to any
infringement of them. If any other rule were to obtain, the party would in
most cases be careful to be silent as to his objections until it would be too late
to obviate them, and the result would be that few judgments would stand the
test of an appeal.’ ” ’ [Citation.]” (Fn. omitted; [citations].)’ [Citation.]”
(Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at pp. 264−265.)
Were all that not enough, we note that the California Constitution
permits reversal of a judgment only if an error results in a miscarriage of
justice (Cal. Const., art. VI, § 13), which Williams has not shown here.
Similarly, California Code of Civil Procedure section 475 mandates that a
court must “disregard any error, improper ruling, . . . or defect, in the
pleadings or proceedings which, . . . does not affect the substantial rights of
the parties,” and further provides that “[n]o judgment, . . . shall be reversed
or affected by reason of any error, ruling, instruction, or defect, unless it shall
appear from the record that such error, ruling, instruction, or defect was
prejudicial, . . .” and caused appellants “substantial injury,” and “that a
different result would have been probable” in the absence of such error.
(Ibid.) No such circumstances are present here.
Williams’s second, third, and fourth arguments are that the trial court
erred because there were “disputed material facts.” The second argument is
essentially generic, setting forth some boilerplate principles of summary
judgment law. The third argument addresses the two misrepresentation
claims. And the fourth the UCL claim.
By way of brief background, New Penn presented the transcripts of the
only two calls that occurred between New Penn representatives and
Williams, the June 2018 call with Jackson and the August call with Perez.
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New Penn also provided the documentation related to the HELOC loan, the
purchase money loan, and the refinance loan, including the notice of default,
the notice of sale, and the deed of trust. Finally, New Penn presented
Williams’s admissions regarding the HELOC and the foreclosure proceedings.
This evidence was sufficient to show that none of Williams’s causes of action
had merit.
Negligence
Williams makes no argument in her brief that her negligence cause of
action has merit or that it was improperly summarily adjudicated in favor of
New Penn. It is fundamental that an appellant must present legal argument
and authority on each point raised (Lee v. Kim (2019) 41 Cal.App.5th 705,
721), and if an appellant fails to support a point with reasoned argument and
citations to authority, we can treat the point as waived. (Christoff v. Union
Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125; In re A.C. (2017)
13 Cal.App.5th 661, 672 [forfeiture].)
Beyond that, any claim for negligence would fail on the merits, on two
separate bases. The first is that a financial institution owes no duty of care
to a borrower when the institution’s involvement in the transaction does not
exceed the scope of its conventional role as a mere lender of money.
(Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089,
1098; Wagner v. Benson (1980) 101 Cal.App.3d 27, 35 [“Liability to a
borrower for negligence arises only when the lender ‘actively participates’ in
the financed enterprise ‘beyond the domain of the usual money lender,’ ”
quoting Connor v. Great Western Sav. & Loan Assn. (1968) 69 Cal.2d 850,
864].) The second is based on the California Supreme Court’s recent holding
in Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 915, that the
“economic loss doctrine” bars recovery in negligence for pure economic losses.
16
Misrepresentation
As to Williams’s causes of action for fraud and negligent
misrepresentation, she asserts that the court erred in granting summary
judgment “because there were disputed material facts,” going on to
specifically argue that “appellant alleged, and the evidence demonstrates,
actionable misstatements of past or present facts,” and “a triable issue of fact
exists regarding whether appellant’s reliance was reasonable.” Williams is
wrong.
The elements of fraud are (1) misrepresentation (false representation,
concealment, or nondisclosure); (2) knowledge of falsity (or “scienter”);
(3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and
(5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638;
Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974; CACI
No. 1900.) Negligent misrepresentation does not require scienter or intent to
defraud, but does require the remaining elements. (Bily v. Arthur Young &
Co. (1992) 3 Cal.4th 370, 407−408; CACI No. 1903.)
Williams’s claims fail, as she could not prove several of the required
elements, beginning with the first—misrepresentation.
The rule is that to be actionable, a misrepresentation must be of an
existing fact, not an opinion or prediction of future events. (Cansino v. Bank
of America (2014) 224 Cal.App.4th 1462, 1469; Brakke v. Economic Concepts,
Inc. (2013) 213 Cal.App.4th 761, 769.) As Witkin states the rule,
“Representation About Future Event. The representation must ordinarily be
about past or existing facts; predictions about future events, or statements
about future action by some third party, are deemed opinions, and not
actionable fraud. (Henry v. Continental Bldg. & Loan Assn. (1909) 156 C[al].
667, 680; [citation]; see Borba v. Thomas (1977) 70 Cal.App.3d 144, 152
17
[future action by third party].)” (5 Witkin, Summary of Cal. Law (11th ed.
2017) Torts, § 892, p. 1221.)
The first amended complaint alleged that New Penn misrepresented to
Williams that all BANA could do was place a lien on her property, and that
BANA was without authority to conduct a foreclosure sale. And in claimed
support, the first amended complaint references misrepresentations that
allegedly occurred in 2018, one supposedly in “March,” and one on August 16.
As shown by the transcripts, Williams’s two communications contain far
different language from that alleged in the first amended complaint.
As detailed above, in the June 18 call New Penn customer
representative Jackson told Williams that she did not know the answer to her
question, and then, after placing Williams on hold and speaking to another
customer representative, relayed to Williams that “[s]he said basically she
has never heard of that. As long as you’re current on your first, they can’t
take your home. She said, but if she were you, you know, she don’t kind of
know how that company works or whatever. But she said she’s never seen
it.” Jackson then reiterated, “So, just keep in mind, she did tell me that she
has never seen it happen . . . . She said most of the time as long as you’re
current with your first lien, that she has never seen where they were able to
take it because of the second lien. But then she did tell me, you know, kind of
just keep correspondence with them or whatever. Because she don’t know
how their company works. . . .”
The statements made by New Penn’s customer representative Jackson
were a restatement of a colleague’s comments, which were nothing but a
halting and qualified prediction of how BANA might act in the future. Such
statements cannot be actionable misrepresentation.
18
Here, there is no evidence that Jackson (or anyone at New Penn) held
themselves out to be specifically qualified on the subject of foreclosure on a
HELOC. To the contrary, Jackson admitted she was unfamiliar with the
topic Williams raised, and her colleague’s views were expressly couched in a
lack of understanding as to how BANA may choose to operate under the
circumstances—not to mention, included a warning to keep in communication
with BANA for that very reason.
Williams also fails to show a triable issue of material fact as to another
required element of misrepresentation—reasonable reliance.
The gravamen of Williams’s claim is that she relied on the statements
made by the customer representatives to her detriment, “as she failed to
retain legal counsel in a timely manner, which would have resolved the
matter earlier and resulted in saving . . . [Williams] from losing the subject
property at a trustee’s sale; and, she continued to make monthly mortgage
payments to [New Penn] despite the sale having taken place and her
imminent eviction from the subject property.” Similarly, Williams’s
declaration in opposition to New Penn’s motion asserted, however
conclusorily: “But for the representations made to me, I could have taken
alternative action to address the ongoing foreclosures. . . , and I was unaware
that the information provided to me was incorrect and unreliable at the time
that it was provided.” This is insufficient.
Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935 (Wachovia), a case
relied on by the trial court in the tentative ruling, is illustrative. There,
Wachovia was foreclosing on property owned by Jones and, according to
Jones, during a telephone call with him promised it would move the noticed
foreclosure sale date to June 18, 2009 (id. at pp. 940−941), but in fact re-
noticed a new sale date for June 8. (Ibid.) Jones claims he relied on the oral
19
statement that the date was moved to the 18th, not the 8th, and as a result
the property was sold before he arranged for the funds necessary to bring the
loan current.
Wachovia moved for summary judgment, and in opposition Jones
testified in his declaration that he was prepared to borrow funds from a third
party, Marlin, to pay the entire amount of the loan if, at the final hour,
Wachovia refused to postpone the June 18 sale. (Wachovia, supra,
230 Cal.App.4th at p. 942.) Similarly, Marlin testified he had told Jones he
would do whatever was necessary to save his home from foreclosure, and
represented further that he had the ability to pay off Jones’s loan in full, and
would have done so had Jones asked him. (Ibid.)
Despite the testimony from Jones and Marlin, the court agreed with
Wachovia because Jones failed to show a substantial change in position based
on the stated postponement. (Wachovia, supra, 230 Cal.App.4th at p. 948.)
The court held that the false statement of Wachovia was not actionable
because there was no reasonable reliance as a matter of law. (Id. at
pp. 947−948.)
Indeed, the showing in this case is far less than the showing in
Wachovia. Williams was in breach of her HELOC for months before
contacting New Penn. She took no affirmative action to cure her default on
the HELOC or repay or refinance that loan. New Penn in no way encouraged
Williams’s chosen course of action. Instead, Williams told New Penn’s
customer representative that she, “just felt like that home line of credit was
just bogus and [she] was going to let it go.” This is the course of action that
Williams chose, months before contacting New Penn, and continued to pursue
even after receiving the default notice. Williams’s circumstances were the
result of her own planned decision made well before she contacted New Penn
20
to ask questions about what possible impact her self-inflicted default would
have on her refinance loan, and upon her home.
Williams’s conclusion that, if not for New Penn’s alleged
representations, “clearly [Williams] would have taken necessary action to
prevent the subject property . . . from being sold at a trustee sale,” is
unsupported by the evidence. Lest there be any doubt on this, we again
quote this admission by Williams on the August 16 call: “So when all of this
first started back in March, I called New Penn. I explained what I was doing.
And, of course, [New Penn] didn’t say one way or the other what I should do.”
Williams also admitted she received multiple warnings from BANA that the
lender intended to foreclose, but chose to disbelieve and ignore those
warnings. In short, at no point did anyone from New Penn ever encourage
Williams to remain in default.
Finally, Williams cannot have relied on any statement made by a New
Penn representative on the August 16 call, which was the day after the
foreclosure sale occurred.
The UCL
Williams’s final argument is that “the trial court erred in granting
summary judgment and/or adjudication as to appellant’s California Unfair
Competition Law, . . . claims because there were disputed material facts.”
As to Williams’s UCL claim, she contends that she has standing under
the UCL because she lost her home as a direct result of reliance on New
Penn’s statements. As demonstrated above, the statements made were not
actionable misstatements of fact, and the UCL claim thus lacks merit
because there is no evidence of wrongful conduct by New Penn. It fails for
other reasons as well.
21
Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497(Jenkins), disapproved of on other grounds by Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, is persuasive. Like Williams here,
plaintiff Jenkins attempted to assert a UCL violation, claiming her economic
injury was the impending foreclosure of her home. (Jenkins, supra,
216 Cal.App.4th at p. 522.) The court rejected the argument, holding that
although the loss of a home is an economic injury, that alleged loss was not
linked to any pre-default conduct. And the court concluded that causation
was lacking because post-default actions are not the cause of a foreclosure
sale as a matter of law, saying this: “Importantly, Jenkins admits in both her
SAC and opening brief that she defaulted on her loan. It is also indisputable
Jenkins’s default triggered the lawful enforcement of the power of sale clause
in the deed of trust, and it was the triggering of the power of sale clause that
subjected Jenkins’s home to nonjudicial foreclosure. Moreover, Jenkins’s
SAC and opening brief acknowledge her default occurred prior to the six
unlawful or unfair acts she alleges as the basis of her UCL action. As
Jenkins’s home was subject to nonjudicial foreclosure because of Jenkins’s
default on her loan, which occurred before Defendants’ alleged wrongful acts,
Jenkins cannot assert the impending foreclosure of her home (i.e., her alleged
economic injury) was caused by Defendants’ wrongful actions. Thus, even if
we assume Jenkins’s third cause of action alleges facts indicating Defendants’
actions violated at least one of the UCL’s three unfair competition prongs
(unlawful, unfair, or fraudulent), Jenkins’s SAC cannot show any of the
alleged violations have a causal link to her economic injury.” (Jenkins, at
p. 523.)
Here, Williams concedes she defaulted on her loan, and she did not
contact New Penn until after the notice of default had issued. And Williams
22
has never disputed the validity of the power of sale clause in the deed of
trust. Her entire claim focuses only upon alleged post-default conduct by
New Penn. And thus her UCL cause of action fails for this reason, for lack of
standing as well as for lack of any unlawful conduct.
Finally, we note that while the scope of conduct covered by the UCL is
potentially quite broad, its remedies are limited. (Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144.) No damages can be
recovered (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266),
and “prevailing plaintiffs are generally limited to injunctive relief and
restitution.” (Cel-Tech Communications, Inc. v. Los Angeles Cellular
Telephone Co. (1999) 20 Cal.4th 163, 179.) Here, the undisputed facts show
that New Penn took no part in the foreclosure sale, and obtained no money or
other benefit from it. As such, there is no restitution available for Williams
to recover.
DISPOSITION
The judgment (order) is affirmed. New Penn shall recover its costs on
appeal.
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_________________________
Richman, Acting P.J.
We concur:
_________________________
Miller, J.
_________________________
Van Aken, J. *
Williams v. New Penn Financial (A164511)
*Judge of the San Francisco Superior Court, Judge Christine Van
Aken, sitting as assigned by the Chief Justice pursuant to article VI, section
6 of the California Constitution.
24