Bell-Sparrow v. Wells Fargo Bank, N.A.



















Filed 4/10/13 Bell-Sparrow v. Wells Fargo Bank, N.A. CA1/2

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




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ARLENE BELL-SPARROW, Plaintiff and Appellant, v. WELLS FARGO BANK, N.A., Defendant and Respondent.

A134659 (Alameda County Super. Ct. No. HG11575269)

Plaintiff
Arlene Bell-Sparrow (plaintiff or Ms. Bell-Sparrow) appeals from the judgment
of dismissal entered following the sustaining of a general demurrer to her
second amended complaint. We conclude
that the trial court, having given plaintiff generous opportunity to correct
deficiencies that were pointed out to her in detail, did not err in denying
plaintiff leave to file a fourth pleading.
In light of this conclusion, we affirm the href="http://www.mcmillanlaw.com/">judgment of dismissal.

>BACKGROUND

Some
preliminary points must be established.
First, the root of this dispute is a loan obligation plaintiff
originally assumed with a financial institution that is no longer in existence
and which also went through a couple of mergers. The obligation eventually ended up with
defendant Wells Fargo Bank, N.A. For
purposes of simplicity, and to avoid cluttering up the narrative with these
not-really-relevant events, we shall generally proceed as though Wells Fargo
was the original lender. Second,
although there is a Mr. Sparrow, and while he did make various appearances
in this litigation, he departed just prior to entry of the judgment and is not
a party to this appeal. The references
to him will therefore reduced to only those necessary for avoiding
misconception and for resolving Ms. Bell-Sparrow’s appeal. Third, the following will not recount
numerous procedural events that have no bearing on this appeal. Finally, this opinion will have extensive
excerpts from the trial court’s comprehensive—and thoughtful—orders, to which
minor, nonsubstantive changes (i.e., substituting Wells Fargo for Bank) have
been made.

In
April 2007, the Sparrows refinanced their residence in Union City with a
$604,000 loan from Wells Fargo. The loan
was secured with a deed of trust on the property.

In
2009, the Sparrows filed separate bankruptcy
petitions. Each of the petitions
recited that the property was worth $445,000 (by Mr. Sparrow) or $480,000 (by
plaintiff), but that $645,000 was owed Wells Fargo. On schedule D of each
petition, the box for whether this claim was “disputed” was not checked. Each of the petitions was executed under
penalty of perjury. Both Mr. Sparrow and
plaintiff received discharges in bankruptcy near the end of 2009, although the discharges
warned that “a creditor may have the right to enforce a valid lien, such as a
mortgage or security interest, against the discharged debtor’s property after
the bankruptcy, if that lien was not avoided or eliminated in the bankruptcy
case.”

On
April 21, 2011, Wells Fargo recorded a notice of default on the obligation, on
the ground that plaintiff was more than $65,000 in arrears. Plaintiff—who at all times has represented
herself—responded with her initial verified complaint against Wells Fargo on
May 11, 2011. The complaint is 80 pages
long, with more than 50 pages of attached exhibits. There are 12 causes of action, styled as
follows: (1) declaratory relief;
(2) fraud; (3) tortious violation of statute [i.e., Civil Code
§ 2923.6]; (4) quiet title; (5) reformation; (6) violation of
Business and Professions Code § 17200; (7) violation of Civil Code
section 2923.6; (8) violation of Civil Code section 1788.17; (9)
violation of Civil Code section 1572; (10) injunctive relief; (11)
violation of Civil Code section 2923.52; (12) violation of Civil Code
section 2923.53.

Wells
Fargo filed a general demurrer alleging numerous defects in plaintiff’s
complaint. The demurrer included what is
a fair assessment of plaintiff’s complaint:

“The
Complaint contains two ‘Claims for Relief’ and ten ‘Causes Of Action.’ (These are referred to herein as the ‘1st’
through ‘12th’ Causes of Action.) The
80-page Complaint is confusing—it refers to unfurnished exhibits and
intersperses allegations with excerpts from news articles, legislative
findings, argument, statutes, and the result of a ‘forensic audit.’ However, boiled down to essentials, the
Complaint appears to be based on the following claims:

“[Wells
Fargo] induced Plaintiffs to accept a loan they could not afford by
representing that Plaintiffs qualified for the loan and that the loan was
‘within Plaintiffs’ financial needs and limitations.’ [¶] [Wells Fargo] did not disclose the
‘true cost of the loan,’ that payments would exceed Plaintiffs’ income, and other
terms. [¶] Plaintiffs could not
make the payments. [¶] Wells Fargo
refused to modify Plaintiffs’ loan.
[¶] [Wells Fargo] initiated foreclosure in violation of the
foreclosure laws and the Rosenthal Fair Debt Collection Practices Act.”

In
addition to alleging that plaintiff’s causes of action were either time-barred
or failed to state a claim, Wells Fargo argued that “All of plaintiff’s claims
against Wells Fargo are preempted under the Federal Home Owner’s Loan Act [12
U.S.C. § 1461 et seq.],” and “Plaintiffs are judicially and equitably
estopped from asserting their claims against [Wells Fargo].”

The
trial court ruled as follows:

“The
demurrer to the First Cause of Action for Declaratory Relief, in both of the
versions alleged in the Complaint, is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs have not alleged facts that show
an actual controversy. Plaintiffs have
not alleged that they are willing or have the ability to tender an amount
sufficient to cure the default.
Defendants are not required to have possession of the original
note. (Pantoja v. Countrywide Loans, Inc. (N.D.Cal. 2009) 640 F.Supp.2d
1177, 1186.) The allegation that the
deed of trust and note were separated is incomprehensible, and does not state a
viable claim for relief as a matter of
law. (See Pantoja, supra, 640
F.Supp.2d at 1188‑1190; Gomes v.
Countrywide Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154‑1156.)

“The
demurrer to the Second Cause of Action for Fraud, in both of the versions
alleged in the Complaint, is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs have not alleged facts with
particularity that support a claim for fraud.
Plaintiffs alleges some facts that are not actionable, such as failure
to determine whether Plaintiffs could repay.
Plaintiffs allege some facts that are irrelevant to fraud, such as the
class action settlement and the forensic loan audit. The allegations concerning representations
made to Plaintiffs lack specificity, as do the allegations that Plaintiffs reasonably
relied on Defendants’ representations.

“The
demurrer to the Third Cause of Action for Tortious Violation of Civil Code
section 2923.6 and the Seventh Cause of Action for Violation of Civil Code
section 2923.6 is SUSTAINED WITHOUT LEAVE TO AMEND. Section 2923.6 does not create a private
right of action in favor of borrowers and does not create a duty owed by
lenders to provide a loan modification to borrowers.

“The
demurrer to the Fourth Cause of Action for Reformation is SUSTAINED WITH LEAVE
TO AMEND. Defendants Wells Fargo did not
have a duty to ensure that Plaintiffs were able to repay the loan.

“The
demurrer to the Fifth Cause of Action to Quiet Title and Set Aside Foreclosure
is SUSTAINED WITH LEAVE TO AMEND.
Defendant Wells Fargo did not have a duty to ensure that the loan was in
Plaintiffs’ best interests, or that they would be able to repay.

“The
demurrer to the Sixth Cause of Action for Violation of Business &
Professions Code section 17200 is SUSTAINED WITH LEAVE TO AMEND. The claim incorporates 68-pages of
pleading. Plaintiffs have not alleged
what unlawful, unfair, or fraudulent act by Defendant Wells Fargo is the basis
for this claim. Plaintiffs do not allege
facts supporting a claim for restitution.

“The
demurrer to the Eighth Cause of Action Violation of the Fair Debt Collection
Practices Act is SUSTAINED WITHOUT LEAVE TO AMEND. Civil Code section 1788.17, also known as the
Rosenthal Act, does not apply to attempts by lenders to initiate foreclosure
proceedings on loans secured by real property.

“The
demurrer to the Ninth Cause of Action for Violation of Civil Code
section 1572 is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs have not alleged fraud with
particularity. Defendants did not have a
duty to determine Plaintiffs’ ability to repay.

“The
demurrer to the Tenth Cause of Action for Injunctive Relief is SUSTAINED WITH
LEAVE TO AMEND. The claim is dependent
upon the existence of an underlying claim for relief, which is lacking.

“The
Court does not find it necessary at this time to rule on Defendants’ arguments
based on (1) the statute of limitations or (2) judicial estoppel resulting from
the prior bankruptcy proceeding filed by Plaintiff Ronald W. Sparrow. The Court does not agree with Defendants that
Plaintiffs’ claims are barred by the Homeowners Loan Act. [Citations.]”

On
August 25, 2011, plaintiff filed a 40-page first amended complaint with causes
of action for (1) declaratory relief; (2) fraud; (3) reformation; (4) to quiet
title and set aside foreclosure; (5) violation of Business & Professions
Code section 17200; (6) violation of Civil Code section 1572, negligent
misrepresentation; and (7) injunctive relief.

Wells
Fargo again demurred. The grounds
varied, but in large part asserted that the deficiencies noted in the court’s
ruling had not been cured. Wells Fargo
reiterated that all of the causes of action were “barred by judicial and
equitable estoppel as a result of discharge orders issued in plaintiffs’
bankruptcy proceedings.”

The
trial court ruled on this demurrer as follows (with minor editorial changes):

“The
demurrer to the First Cause of Action is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs have not alleged facts that show
that Defendants violated Civil Code section 2923.5. Plaintiffs admit that Defendants contacted
them in letters and phone calls to discuss loan modification and a short
sale. On its face, such conduct appears
to be an effort to explore options to foreclosure and to assess Plaintiffs’
financial condition. The Court takes
judicial notice that the Notice of Default included the declaration required by
Civil Code section 2923.5(g) stating that Defendant Wells Fargo had tried with
due diligence to contact Plaintiffs.
Civil Code sections 2923.52 and 2923.53 have been repealed, and Plaintiffs
do not allege how these provisions support their claim for a loan
modification. Plaintiffs fail to allege
facts supporting a right to any particular loan modification. Civil Code section 2923.6 does not create a
private right of action in favor of borrowers.
The allegation that the deed of trust and note were separated does not
state a viable claim for relief as a matter of law. (Pantoja
v. Countrywide Loans, Inc. (N.D.Cal. 2009) 640 F.Supp.2d 1177, 1186; >Gomes v. Countrywide Loans, Inc. (2011)
192 Cal.App.4th 1149, 1154-1156.)
Plaintiffs admit that a substitution of trustee naming defendant Golden
West Savings Association Servicing Company as trustee has been filed. Plaintiffs have not adequately alleged
tender, which is a requirement for equitable relief. Plaintiffs’ claims for violation of Civil
Code sections 1624 and 2932.5 are conclusory.
Commercial Code section 3302 is not applicable to foreclosure
proceedings. Plaintiffs’ claims of
irregularity during the loan initiation appear to be time-barred.

“Plaintiffs’
claims for monetary damage . . . are barred by the doctrine of
judicial estoppel. The Court takes
judicial notice that Plaintiffs failed to disclose their claims for damage
against Defendants at the time of their bankruptcy filings in 2009. The facts alleged show that the doctrine of
judicial estoppel is fully applicable here, since Plaintiffs successfully took
a position in the prior judicial proceeding that is directly contrary to their
position in this action. Plaintiffs’
contention that Wells Fargo Bank, Wachovia Bank, and World Savings could have
protested the bankruptcy is based on the status of those entities as creditors
of Plaintiffs. Defendants’ judicial
estoppel argument is directed at Plaintiffs’ claims for affirmative
damages. There was no basis for
Defendants to protest, because Plaintiffs did not disclose that they had claims
for monetary damages against Defendants.

“The
demurrer to the Second Cause of Action for Fraud is SUSTAINED WITH LEAVE TO
AMEND. In addition to the problems with
the First Cause of Action identified above, Plaintiffs have not alleged the
facts supporting their fraud claims with particularity, and have not alleged
reasonable reliance. The claim for fraud
appears on its face to be barred by the 3-yrear limitation period for fraud,
and Plaintiffs have not alleged facts, with particularity, showing delayed
discovery.

“The
demurrer to the Third Cause of Action for Reformation and Fourth Cause of
Action to Quiet Title and Set Aside Foreclosure is SUSTAINED WITHOUT LEAVE TO
AMEND. The Court has already ruled that
Plaintiffs’ theory based on inseparability of the promissory note and deed of
trust does not state a viable claim.
Plaintiffs are not allowed to challenge the right of the foreclosing
beneficiary. (Gomes v. Countrywide Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154,
1156.)

“The
demurrer to the Fifth Cause of Action for Violation of Business &
Professions Code section 17200 is SUSTAINED WITH LEAVE TO AMEND. Plaintiffs have not alleged a predicate act
that supports a claim for restitution or injunctive relief. Even if Plaintiffs had stated a claim under
Civil Code section 2923.5, it would not support restitution. The claim for injunctive relief is subsumed
within the First Cause of Action for declaratory relief, and Plaintiffs do not
show that injunctive relief is appropriate, given their failure and apparent
inability to tender. Plaintiffs have not
stated a predicate act based on harassing phone calls, because they do not
allege any damage and do not claim that the calls are continuing. Plaintiffs have not stated a claim for fraud
under RESPA [the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601et
seq.], because the Act does not require production of the original mortgage
note.

“The
demurrer to the Sixth Cause of Action for Negligent Misrepresentation is
SUSTAINED WITH LEAVE TO AMEND.
Plaintiffs have not alleged fraud with particularity. Negligent misrepresentation requires an
affirmative representation of fact.
Plaintiffs do not allege reliance on an affirmative representation of
fact and resulting damage. The
allegation of failure to disclose that the Pick-A-Payment option was negative
amortization is based on failure to disclose, not an affirmative representation
and Plaintiffs fall well short of alleging facts that would support a claim
based on failure to disclose this fact.
In any event, as discussed above, Plaintiffs are stopped to seek
monetary damages.”

Plaintiff’s
50-page second amended complaint was filed on November 23, 2011. Her causes of action were now reduced to (1)
declaratory relief; (2) fraud; (3) violation of Business and Professions
Code § 17200; (4) violation of Civil Code section 1572, negligent
misrepresentation; and (5) injunctive relief.

Wells
Fargo demurred to all but the fourth of these claims on the ground that “the
claim is barred by judicial estoppel.”
As to the fourth cause of action, Wells Fargo asserted it was vulnerable
because plaintiffs “have not alleged a viable underlying claim” and “cannot
allege a tender of the amounts owing on the loan.”

The
court’s final ruling was as follows:

“The
demurrer to the First Cause of Action for Declaratory Relief . . . is
SUSTAINED WITHOUT LEAVE TO AMEND.
Plaintiff seeks a declaration that she is entitled to a loan
modification, but has not alleged facts showing that Wells Fargo made an
enforceable promise to a loan modification.
Plaintiff seeks to enjoin foreclosure but does not allege facts showing
that she can tender an amount sufficient to reinstate the loan and make
reasonable monthly payments. Plaintiff
cannot rely on promises to consider a loan modification that were provided by
Wells Fargo in the Mandrigues class
action law suit because Plaintiff opted out of that lawsuit, and to the extent
Plaintiff seeks to enforce the ruling in that case, she must seek relief from
the Mandrigues court. Finally, the underlying claims on which the
First Cause of Action are based are time‑barred, and Plaintiff has been
unable to allege facts supporting tolling of the limitation periods based on
delayed discovery.

“The
demurrer to the Second Cause of Action for Fraud is SUSTAINED WITHOUT LEAVE TO
AMEND. Plaintiff has still not alleged
fraud with particularity. The face of
the pleadings shows that Plaintiff’s claim for fraud and for violation of the
Truth In Lending Act . . . are time-barred, but Plaintiff does not
allege facts showing why she failed to discover the alleged wrongful conduct at
the time the loan closed or shortly thereafter.
Plaintiff alleges that she first discovered the alleged fraud and
related theories when she received the results of the forensic audit and
received notice of the class action lawsuit, but she does not allege why she
could not reasonably have discovered the alleged problems well before those
dates, and she does not allege any damage except from the negative amortization
feature of the Pick-A-Payment loan.
Plaintiff’s claim for damages is also barred by the doctrine of judicial
estoppel. The Court takes judicial
notice that Plaintiff failed to disclose her claim for damage against Wells
Fargo at the time of her bankruptcy filing in 2009, and that the bankruptcy
court denied her recent request to reopen the bankruptcy proceeding. The facts alleged show that the doctrine of
judicial estoppel is fully applicable here, since Plaintiff successfully took a
position in the prior judicial proceeding that is directly contrary to her
position in this action. Plaintiff
argues that she was not aware of her claims against Wells Fargo at the time of
the bankruptcy proceeding, but judicially noticeable facts show that Plaintiff
was already claiming that she had a claim against her lender at the time the
bankruptcy proceeding closed. Plaintiff
also argues that judicial estoppel
does not apply because title to the property was transferred to A.R.W. Sparrow,
LLC, but that fact is irrelevant, since it is not ownership of the property
that Plaintiff was required to disclose, but her claim for damages. If Plaintiff is suggesting that the claim
belonged to A.R.W. Sparrow, LLC, the claim would not belong to her and she
would lack standing to prosecute that claim.

“The
demurrer to the Third Cause of Action for Violation of Business and Professions
Code section 17200 is SUSTAINED WITHOUT LEAVE TO AMEND. This claim requires an underlying act that
must be enjoined or gives rise to a claim for restitution. Any claim for restitution is barred by
judicial estoppel. Plaintiff has not
alleged facts showing that injunctive relief is appropriate, for the reasons in
the ruling on the First Cause of Action.
Plaintiff’s claims based on TILA [Truth In Lending Act, 15 U.S.C.
§ 1601 et seq.] are time-barred.
Plaintiff’s allegation that Wells Fargo violated the Real Estate
Settlement Act does not state a claim, because Wells Fargo is not required to
produce the original note. Plaintiff has
not stated a claim under the Rosenthal Fair Debt Collection Practices Act
because she does not allege any damage or that the harassing calls are
continuing.

“The
demurrer to the Fourth Cause of Action for Negligent Misrepresentation is
SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a cause of action. Plaintiff has still not alleged fraud with
particularity. The face of the pleadings
shows that Plaintiff’s claim for fraud and for violation of the TILA are
time-barred, but Plaintiff does not allege facts showing why she failed to
discover the alleged wrongful conduct at the time the loan closed or shortly
thereafter. Plaintiff alleges that she
first discovered the alleged fraud and related theories when she received the
results of the forensic audit and received notice of the class action lawsuit,
but she does not allege why she could not reasonably have discovered the
alleged problems well before those dates.
Plaintiff’s claim for damages is also barred by the doctrine of judicial
estoppel. The Court takes judicial
notice that Plaintiff failed to disclose her claim for damage against Wells
Fargo at the time of her bankruptcy filing in 2009. The facts alleged show that the doctrine of
judicial estoppel is fully applicable here, since Plaintiff successfully took a
position in the prior judicial proceeding that is directly contrary to her position
in this action. Plaintiff argues that
she was not aware of her claims against Wells Fargo at the time of the
bankruptcy proceeding, but judicially noticeable facts show that Plaintiff was
already claiming that she had a claim against her lender at the time the
bankruptcy proceeding closed. Plaintiff
also argues that judicial estoppel does not apply because title to the property
was transferred to A.R.W. Sparrow, LLC, but that fact is irrelevant, since it
is not ownership of the property that Plaintiff was required to disclose, but
her claim for damages. If Plaintiff is
suggesting that the claim belonged to A.R.W. Sparrow, LLC, the claim would not
belong to her and she would lack standing to prosecute that claim.

“The
demurrer to the Fifth Cause of Action for Injunctive Relief is SUSTAINED
WITHOUT LEAVE TO AMEND for failure to state a cause of action. Plaintiff does not allege facts showing that
it would be equitable to enjoin the foreclosure sale. Plaintiff’s underlying claims are
time-barred, and she failed to disclose her claims against Wells Fargo in her
bankruptcy proceeding. Plaintiff’s
allegation that Ronald Sparrow misrepresented his employment status on the loan
application shows that Plaintiff has unclean hands. Plaintiff’s conclusory allegation of ‘tender
of indebtedness’ does not allege what was tendered, to whom, by whom, or when
the tender was made. Plaintiff’s own
allegations show that she claims her payment should have been $3,865, and that
she stopped making mortgage payments in August 2009.”

Following
entry of a formal judgment of dismissal, plaintiff then perfected this timely
appeal.

>REVIEW

Although
plaintiff started out with as many as a dozen causes of action, the ones at
issue here are nowhere as numerous.
Plaintiff contends that she has valid causes of action for (1) fraud,
(2), violation of Business and Professions Code section 17200,
(3) negligent misrepresentation, and (4) quiet title. Although the quiet title cause of action was
not present in the second amended complaint, as Wells Fargo’s demurrer to it in
the first amended complaint was sustained without leave to amend, it may
nevertheless be addressed here even if it was not re-alleged in the second
amended complaint. (See >Committee on Children’s Television, Inc. v.
General Foods Corp. (1983) 35 Cal.3d 197, 208-209.)

Plaintiff
also challenges the trial court’s conclusion that her claims based on the
Truth-In-Lending Act are time-barred, which would impact her fraud and
negligent misrepresentation causes of action.
Finally, plaintiff attacks the trial court’s determination that this is
a proper instance of judicial estoppel.
The four causes of action are all that are here for review.

Although
at numerous points in her opening brief plaintiff insists that there is
“substantial evidence of a reasonable probability” that she will “prevail” on
various causes of action, this is not yet a consideration. The scope of our inquiry on this appeal is
more modest.

“It
is well established that a demurrer tests the legal sufficiency of the
complaint. [Citations.] On appeal from a dismissal entered after an
order sustaining a demurrer, we review the order de novo, exercising our
independent judgment about whether the complaint states a cause of action as a
matter of law. [Citations.] We give the [complaint] a reasonable
interpretation, reading it as a whole and viewing its parts in context. [Citations.]
We deem to be true all material facts that were properly pled. [Citation.]
We must also accept as true those facts that may be implied or inferred
from those expressly alleged.
[Citation.] We may also consider
matters that may be judicially noticed, but do not accept contentions,
deductions or conclusions of fact or law.
[Citation.]” (City of Morgan
Hill v. Bay Area Air Quality Management Dist. (2004) 118 Cal.App.4th
861, 869-870.) Thus, we are not
concerned with plaintiff’s ability to prove what she alleges in her second
amended complaint, only whether that pleading makes out a claim for some
relief, even if an amount less than claimed.
(Caldera Pharmaceuticals, Inc. v.
Regents of University of California (2012) 205 Cal.App.4th 338, 350.)

But
there are other considerations. “A
judgment of dismissal after a demurrer has been sustained without leave to
amend will be affirmed if proper on any of the grounds stated in the demurrer,
whether or not the court acted on that ground”
(Carman v. Alvord (1982) 31
Cal.3d 318, 324.) And the most
fundamental principle of appellate review is that “A judgment or order of a
lower court is presumed correct. 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.)

An
appeal from a final judgment is ordinarily appropriate to review a variety of
orders or rulings made prior to entry of the judgment. However, this does not apply to orders or
rulings that are independently appealable.
(Jennings v. Marralle (1994)
8 Cal.4th 121, 128; In re Matthew C.
(1993) 6 Cal.4th 386, 393.) Therefore,
we do not examine the propriety of the trial court denying plaintiff’s request
for a preliminary injunction, because that ruling could have been
appealed. (Code Civ. Proc.,
§ 904.1, subd. (a)(6).) And as to
her attack on the denial of her peremptory challenge to the trial court, review
of such a ruling may not be obtained by appeal, but only by a petition for an
extraordinary writ of mandate.href="#_ftn1"
name="_ftnref1" title="">[1] (County
of San Diego v. State of California (1997) 15 Cal.4th 68, 110.)

As
previously mentioned, plaintiff is continuing to represent herself. “A lay person . . . who exercises
the privilege of trying his own case must expect and receive the same treatment
as if represented by an attorney—no different, no better, no worse.” (Taylor
v. Bell (1971) 21 Cal.App.3d 1002, 1009.)
She is therefore “ ‘ “restricted to the same rules of evidence
and procedure as is required of those qualified to practice law before our
courts.” ’ ” (>City of Los Angeles v. Glair (2007) 153
Cal.App.4th 813, 819.) “[A]s is the case
with attorneys, pro. per. litigants must follow correct rules of
procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) This requires her to establish that the
judgment cannot be sustained on any of the grounds of Wells Fargo’s demurrer or
the trial court’s orders. Plaintiff’s
selective arguments fail to address all of the possible grounds that may
support the trial court’s judgment.

“ ‘Instead
of a fair and sincere effort to show the trial court was wrong, appellant’s
brief is a mere challenge to respondents to prove that the court was
right. And it is an attempt to place
upon the court the burden of discovering without assistance from appellant any
weakness in the arguments of the respondent.
An appellant is not permitted to evade or shift his responsibility in
this manner.’ [Citations.]
. . . [I]t is no more than a rehash of arguments about the strength
of the evidence, which is not open on appeal.”
(Paterno v. State of California
(1999) 74 Cal.App.4th 68, 102; accord Sutter
Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, 505.) An appellant cannot simply reiterate
arguments that lost in the trial court without attempting to demonstrate error
and prejudice. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.)

Unfortunately,
that is largely what plaintiff does in her briefs. Most of her briefs are simply reproductions
of material produced in the trial court.
Although there is no rule requiring an appellant to rework arguments
that failed in the trial court—indeed, in this case failed repeatedly—it does
seem common sense that a new approach might be in order. Repeatedly accusing the trial court of
“detour[ing] from the issue” does not assist matters.

>The Cause of Action for Fraud

“ ‘ “The
elements of fraud . . . are (a) misrepresentation (false
representation, concealment, or nondisclosure); (b) knowledge of falsity
. . . ; (c) intent to defraud, i.e., to induce reliance; (d)
justifiable reliance; and (e) resulting damage.” ’ ” (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173, quoting >Lazar v. Superior Court (1996)
12 Cal.4th 631, 638.) “ ‘In
California, fraud must be pled specifically; general and conclusory allegations
do not suffice. [Citations.] “Thus, ‘ “the policy of liberal
construction of the pleadings . . . will not ordinarily be invoked to
sustain a pleading defective in any material respect.” ’ [Citation.] This particularity requirement necessitates
pleading facts which ‘show how, when,
where, to whom, and by what means the representations were tendered.’
” ’ ” (Small v. Fritz Companies, Inc., supra,
at p. 184, quoting Lazar v. Superior
Court, supra, p. 645.) “The requirement of specificity in a fraud
action against a corporation requires the plaintiff to allege the names of the
persons who made the allegedly fraudulent misrepresentations, their authority
to speak, to whom they spoke, what they said or wrote, and when it was said or
written.” (Tarman v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153,
157.)

From
the beginning, in each of its three orders, the trial court reminded
plaintiff of the principle that fraud
must be alleged with detailed particularity.
The relevant portions of plaintiff’s second amended complaint (pp. 3,
16-26) show why the trial court did not give plaintiff a third opportunity to
meet this requirement.

“In
early January 2005, Plaintiff responded to solicitation by World Saving to
engage its services to procure a home loan in connection with his [>sic] interest in a property located at
33089 Calistoga Street, Union City, CA 94587.
A second refinance occurred on or round June 2007. Wachovia made material misrepresentations and
omitted material facts from its sale pitch.
Among other things, Plaintiff was not told that taking out a 100% loan
with a three year pre-payment penalty would prevent him from refinancing his
loan during that period unless there was a substantial increase in the market
value of the property. To the contrary,
World Saving representative told Plaintiff(s) they could refinance the property
at a lower fixed rate within two years to keep the mortgage low and
affordable.”

“Defendant
[sic] act of fraud was that they
‘failure to disclose negative amortization mortgage note called the
Pick-A-Payment. Defendant is attempting
to treat all of Plaintiff’s separately-alleged violations as solely a ‘failure
to disclose negative amortization.
Undoubtedly, the cumulative effect of Defendants’ conflicting
disclosures and glaring omissions is that Plaintiff entered into her loan
without being told and without knowing that it was certain to result in
negative amortization.”

“Wachovia
made material misrepresentations and omitted material facts that they failed to
disclose that the pick-a-payment mortgage loan was a negative amortization
package.”

“Defendants’
TILA Violation Relating to Negative Amortization—Inaccurate statements about
the likelihood of Negative Amortization is an initial matter, Defendants’ firs
TILA violation arises because they made inaccurate, incomplete and conflicting
statements regarding negative amortization, not because there was a complete
absence of disclosure. Because
Defendants chose the words they use to make these disclosures, they are
responsible for making sure the language they used to disclose was both
meaningful and truthful.”

“Defendants
through deception and their reliance were justified as they believed that
Defendant, and each of them, working for them and in their best interest. Defendant verbally promised a modification
and subsequently Rejected said offer after Plaintiff fully complied with
Defendant World Saving’s requests for financial information. In 2005 when Plaintiff(s) refinanced the
mortgage with World Saving they were given a Pick-a-Payment loan, when
Plaintiff(s) asked about the increase in payment, Defendant assured them that
they could refinance the loan and therefore keep the loan affordable. The deceit and fraud in Defendant action was
that they did not disclosed that the loan was a negative amortization loan, in
essence Plaintiff(s) would never be able to afford the loan and the principal
will never decrease.”

Contrary
to what we said at the beginning of this opinion, the situation regarding the
fraud cause of action is an instance where it is very pertinent to emphasize
the differing identifies of the parties involved. It appears from plaintiff’s allegations that
the original refinance occurred in 2005.
Although the month the actual refinancing occurred is not specified, the
other party to the refinancing was World Savings Bank. The second refinance, although somewhat more
specific as to date (“on or round June 2007”), clearly involved Wachovia
Mortgage. Thus, Wells Fargo is being
asked to stand liable for representations and omissions made by the employees
of two other institutions that were, at the relevant periods, completely
unrelated to Wells Fargo. It is
particularly appropriate in these circumstances to enforce the heightened
specificity requirement for a fraud cause of action.

The
key to plaintiff’s cause of action is the “failure to disclose [the] negative
amortization mortgage note called the Pick-A-Payment.” But plaintiff does not identify whether it
was a World Savings or Wachovia employee responsible for this failure,
although, from the allegation “Wachovia made material misrepresentations and
omitted material facts that they failed to disclose that the pick-a-payment
mortgage loan was a negative amortization package,” it appears to be the
latter. On the other hand, the
allegation “In 2005 when Plaintiff(s) refinanced the mortgage with Word Saving
they were given a Pick-a-Payment loan” points at the other lender And the allegation “the cumulative effect of
Defendants’ conflicting disclosures and glaring omissions is that Plaintiff
entered into her loan without being told and without knowing that it was
certain to result in negative amortization” appears to point to at least two
lenders.

The
issue of which, or both, of Wells Fargo’s predecessors in interest actually
made the misrepresentations or omissions is thus far from clear. This confusion only compounds the need for
precise allegations as to the circumstances attending the claimed
misrepresentations or omissions. (>Small v. Fritz Companies, Inc., >supra, 30 Cal.4th 167, 184; >Lazar v. Superior Court, >supra, 12 Cal.4th 631, 645; >Tarman v. State Farm Mut. Auto. Ins. Co.,
supra, 2 Cal.App.4th 153, 157.) Plaintiff did not attach to her second
amended complaint any documents from either of the refinancings, which hardly
clarifies matters to plaintiff’s advantage.
(See Boschma v. Home Loan Center, Inc. (2011) 198 Cal.App.4th
230, 248 [“with regard to the alleged fraudulent omissions . . . the
enhanced pleading burden of a fraud claim is met by the attachment of the
relevant . . . documents”].)
This is particularly true with respect to the Truth-In-Lending
disclosure statement which the lender was required to provide, and which
plaintiff was required to sign, prior to completion of the refinancing. (See 12 U.S.C. § 2603; 12 C.F.R. §§ 226.17,
226.19.)href="#_ftn2" name="_ftnref2" title="">[2]

With
the trial court having already twice told plaintiff that greater specificity
was required, and given her two opportunities to provide more precise
allegations, we cannot conclude the trial court erred in not giving
plaintiff yet another opportunity to
make good the deficiency. This
conclusion is only reinforced by our determination post, that the allegations in plaintiff’s fraud cause of action
that are based on the federal Truth‑In‑Lending Act (TILA) are
time-barred.

>The Cause of Action For Negligent
Misrepresentation

“The elements of negligent
misrepresentation are (1) the misrepresentation of a past or existing material
fact, (2) without reasonable ground for believing it to be true, (3) with
intent to induce another’s reliance on the fact misrepresented, (4) justifiable
reliance on the misrepresentation, and (5) resulting damage. [Citation.]
In contrast to fraud, negligent misrepresentation does not require
knowledge of falsity. A defendant who
makes false statements ‘ “honestly believing that they are true, but
without reasonable ground for such belief, . . . may be liable for
negligent misrepresentation . . . .” [Citations.]’
[Citation.] However, a positive
assertion is required; an omission or an implied assertion or representation is
not sufficient. [Citations.]” (Apollo
Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226,
243.) The rules for pleading
fraud are also applicable to negligent misrepresentation. (Charnay
v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14; Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4th 513,
519.)

Virtually
the entirety of plaintiff’s fraud cause of action is incorporated by reference
into her cause of action for negligent misrepresentation, although much of the
material is re-alleged under the heading “Alleging Fraud With
Particularity.” TILA‑based
allegations permeate the cause of action for negligent misrepresentation just
as prominently as they do the fraud cause of action. Much of the cause of action for negligent
misrepresentation is based on omissions and Wells Fargo’s noncompliance with
its “duty to disclose.”

Plaintiff’s
cause of action for negligent misrepresentation is even more vulnerable than
the one for fraud. Not only are the
TILA-based allegations to be excluded from consideration because they are
time-barred, so are all misrepresentations by omission are not to be
considered. What is left are purely
express representations that are not founded on the federal law. What we concluded concerning the lack of
specificity—and plaintiff’s missed opportunities to correct them with respect
to her fraud cause of action—is just as applicable to her cause of action for
negligent misrepresentation.

>The Cause of Action For Unfair Competition

California’s Unfair Competition Law
(UCL) defines unfair competition as “any unlawful, unfair, or fraudulent
business act or practice . . . .” (Bus. & Prof. Code, § 17200) Although the statutory language is directed
at commercial enterprises, it also protects the public from fraud and unlawful
conduct. (Progressive West Ins. Co. v. Superior Court (2005) 135 Cal.App.4th
263, 283.) But “[w]hile the scope of conduct
covered by the UCL is broad, its remedies are limited. [Citation.] A UCL action is equitable in nature; damages
cannot be recovered. [Citation.] Civil penalties may be assessed in public
unfair competition actions, but the law contains no criminal provisions. [Citation.]
We have stated that under the UCL, ‘[p]revailing plaintiffs are
generally limited to injunctive relief and restitution.’ ” (Korea
Supply Company v. Lockheed Martin Corporation (2003) 29 Cal.4th 1134,
1144.)

This cause of action in plaintiff’s second amended complaint
begins with three pages of allegations summarizing Boschma v. Home Loan Center, Inc., supra, 198 Cal.App.4th 230, where a Court of Appeal concluded
that borrowers who had obtained adjustable rate mortgages with a negative
amortization feature could state a claim for fraudulent omissions under the
UCL. (Id. at pp. 234-235.)href="#_ftn3"
name="_ftnref3" title="">[3] Plaintiff then alleged that “the violations”
of the UCL and the TILA discovered in the forensic audit amounted to
“fraudulent concealment” and “non-disclosure” of the negative amortization
feature of the Pick-A-Payment refinancing.
Plaintiff then detailed—just as she did in the fraud and negligent
misrepresentation causes of action—all of the particulars of the lender’s
noncompliance with the TILA. “As a
result of the foregoing unlawful conduct,” and the notice of default, plaintiff
“suffered monetary and property loss,” specifically, “diminished access to
credit, fees, and costs, including, without limitation, and costs with respect
to the wrongful ‘Notice of Default to Sale’ and loss of some or all of the
benefits appurtenant to the ownership and possession of real property. [¶] As a result of Defendants’ unfair
competition, and unfair business practices Plaintiffs are entitle to
restitution for all sums received by Defendants . . . including,
without limitation, the excessive fees . . . and premiums received up
selling the mortgages at an inflated value.”

Plaintiff
then alleged that “several courts have acknowledged . . . WELLS FARGO
. . . is not the owner of the underlying note and therefore could not
transfer the note, the beneficial interest in the deed of trust, or foreclose
upon the property secured by the deed.” She concluded by asserting that the TILA
violations were not time-barred, and “Judicial estoppel does not apply.” In the prayer for this cause of action,
plaintiff sought “an Order enjoining Defendants from continuing to
. . . violate the statutes alleged,” costs, reasonable attorney’s
fees, and “such other and further relief as the court may deem proper.”href="#_ftn4" name="_ftnref4" title="">[4]

As
will be shown, the trial court correctly determined that plaintiff’s claims
based on TILA violations are time-barred.
The UCL cannot be used to plead around the TILA’s statute of
limitations. (Jordan v. Paul Financial, LLC (N.D.Cal. 2010) 745 F.Supp.2d
1084, 1098-1099; Champlaie v. BAC Home
Loans Servicing, LP (E.D.Cal. 2009) 706 F.Supp.2d 1029, 1045.) Plaintiff’s personal damages—and that presumes she has
monetary damages—are not to be considered here (Korea Supply
Company v. Lockheed Martin Corporation, supra, 29
Cal.4th 1134, 1144). However, none of
the causes of action she is contesting on this appeal establishes that she did,
which would be even more true if plaintiff is correct in her insistence that
ownership of the property was transferred to an LLC.

Plaintiff
included no allegation that the purportedly misleading and fraudulent practices
she experienced in 2005 and 2007 are still being used by Wells Fargo, which is
a prerequisite for the injunctive relief she sought. (Pfizer
Inc v. Superior Court (2010) 182 Cal.App.4th 622, 631, fn. 5; >Madrid v. Perot Systems Corporation
(2005) 130 Cal.App.4th 440, 464-465.)
Like the fraud count, the absence of the loan documents works against
plaintiff. (See Boschma v. Home Loan Center, Inc., supra, 198 Cal.App.4th 230, 253 [“Plaintiffs’ [UCL]
allegations also focus on the same material omissions/misleading disclosures in
the loan documents”].) Finally, as will
also be shown, plaintiff’s theory of the inseparability of the
promissory note and deed of trust is erroneous.

For each
and all of these reasons, we conclude the trial court did not err in sustaining
a general demurrer to this cause of action without granting further leave to
amend.

>The Truth In Lending Act

This
federal statute imposes a number of disclosures which a lender must provide to
a consumer refinancing a residence.
(E.g., 15 U.S.C. §§ 1638a, 1639, 1639b, 1639c.) Wells Fargo’s alleged violations of these
obligations permeated plaintiff’s fraud, unfair competition, and negligent
misrepresentation causes of action. The
TILA allows civil damages for violations of its provisions, but action must be
commenced “within one year from the date of the occurrence of the
violation.” (15 U.S.C.
§§ 1640, subds. (a), (e).)

Ordinarily,
application of this statute would put plaintiff out of court because the
one-year period would commence at the time plaintiff executed the loan
documents, that is, no later than June 2007.
(Cervantes v. Countrywide Home
Loans, Inc. (9th Cir. 2011) 656 F.3d 1034, 1045-1046.) Plaintiff sought to avoid this result by
invoking the doctrine of equitable tolling.
However, “ ‘if on the face of the complaint the action appears
barred by the statute of limitations, plaintiff has an obligation to anticipate
the defense and plead facts to negative the bar.’ ” (Union
Carbide Corporation v. Superior Court (1984) 36 Cal.3d 15, 25.) This means that the plaintiff must put forth
allegations that establish the existence “of the elements necessary for
application of the doctrine of equitable tolling.” (Aubry
v. Goldhor (1988) 201 Cal.App.3d 399, 407.)
“ ‘Absent such allegations, the complaint is subject to demurrer
. . . .’ ” (>Gentry v. EBay,
Inc. (2006) 99 Cal.App.4th 816, 824.)

Plaintiff
continues to advance the same argument the trial court repeatedly rejected—that
she did not have actual knowledge of the falsity of the misrepresentations and
omissions attending the refinancing until she learned of the “forensic audit”
in August 2010, less than a year before this action was commenced in May 2011.href="#_ftn5" name="_ftnref5" title="">[5] But here plaintiff mistakenly assumes that
equitable tolling continues until actual knowledge of the misrepresentation is
obtained. But equitable tolling is not
dependent upon a plaintiff’s subjective knowledge. It is pegged to “inquiry notice,” a type of
constructive notice that charges the plaintiff with the knowledge that a
reasonable investigation would have produced.
(See Fox v. Ethicon Endo-Surgery,
Inc. (2005) 35 Cal.4th 797, 807-808.)

The
“forensic audit” is not a government document, or some industry-wide analysis,
but a personalized “Forensic Mortgage Violation Assessment Screening Post‑Close
Audit” prepared by the Neighborhood Assistance Corporation of America that was
“prepared . . . on behalf of Arlene Bell-Sparrow,” with “Date
Audited” being “05/19/2010.” Clearly, at
some point plaintiff had suspicions about the propriety of her refinancing, which
led her to commission this audit. But
what she was required to provide, what she was repeatedly reminded by the trial
court to furnish, was an explanation of why she had not acted sooner. (Union
Carbide Corporation v. Superior Court, supra,
36 Cal.3d 15, 25; Aubry v. Goldhor, >supra, 201 Cal.App.3d 399,
407.) Because that explanation was not
forthcoming, there was no error in sustaining Wells Fargo’s third demurrer
attacking those portions of plaintiff’s causes of action that were based on
alleged violations of the TILA. (>Gentry v. EBay,
Inc., supra, 99 Cal.App.4th 816,
824.)

>The Cause of Action To Quiet Title

The
gist of this cause of action, as alleged by plaintiff in her href="http://www.mcmillanlaw.com/">first amended complaint, appears to be
that Wells Fargo had no superior title to foreclose because while plaintiff’s
original deed of trust with the originating lender had been transferred to
Wells Fargo, there was no evidence that the promissory note was also
transferred. The trial court sustained
the demurrer without leave to amend on the ground that it “has already ruled
that Plaintiffs’ theory based on inseparability of the promissory note and deed
of trust does not state a viable claim.
Plaintiffs are not allowed to challenge the right of the foreclosing
beneficiary. (Gomes v. Countrywide Loans, Inc. (2011) 192 Cal.App.4th 1149,
1154, 1156.)” This conclusion was
correct.

The
plaintiff in Gomes borrowed money
from KB Home Mortgage, and executed a promissory note secured by a deed of
trust. The deed identified KB Home as
the lender, and Mortgage Electronic Registration Systems (MERS) as the holder
of legal title, and entitled to act on behalf of the lender, as well the
lender’s successors and assigns. Gomes
defaulted and was sent a notice of default and election to sell by
ReconTrust—which identified itself as an agent for MERS—accompanied by a
declaration from the loan servicer, Countrywide Loans. Gomes initiated suit to establish that “MERS
lacks the authority to initiate the foreclosure process because it was not
authorized to do so by the owner of the Note,” which had apparently been sold
by “KB Home . . . on the secondary mortgage market.” (Gomes
v. Countrywide Loans, Inc., supra,
192 Cal.App.4th 1149, 1151-1152.)
The pages of Gomes cited by
the trial court (with a little more included by us) read:

“California’s nonjudicial foreclosure scheme is set forth in
Civil Code sections 2924 through 2924k, which ‘provide a comprehensive
framework for the regulation of a nonjudicial foreclosure sale pursuant to a
power of sale contained in a deed of trust.’
[Citation.] ‘These provisions
cover every aspect of exercise of the power of sale contained in a deed of
trust.’ [Citation.] ‘The purposes of this comprehensive scheme
are threefold: (1) to provide the creditor/beneficiary with a quick,
inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to
protect the debtor/trustor from wrongful loss of the property; and (3) to
ensure that a properly conducted sale is final between the parties and
conclusive as to a bona fide purchaser.’
[Citation.] ‘Because of the
exhaustive nature of this scheme, California appellate name="SDU_824">courts
have refused to read any additional requirements into the nonjudicial
foreclosure statute.’ [Citation.]name=FN5>

name="sp_999_4"> “By asserting a
right to bring a court action to determine whether the owner of the Note has
authorized its nominee to initiate the foreclosure process, Gomes is attempting
to interject the courts into this comprehensive nonjudicial scheme. As Defendants correctly point out, Gomes has
identified no legal authority for such
a lawsuit. Nothing in the statutory
provisions establishing the nonjudicial foreclosure process suggests that such
a judicial proceeding is permitted or contemplated.” (Gomes
v. Countrywide Loans, Inc., supra,
192 Cal.App.4th 1149, 1154, fns. omitted.)

“Gomes appears to acknowledge that California’s nonjudicial
foreclosure law does not provide for the filing of a lawsuit to determine
whether MERS has been authorized by the holder of the Note to initiate a
foreclosure. He argues, however, that we
should nevertheless interpret the statute to provide for such a right because
‘the Legislature may not have contemplated or had time to fully respond to the
present situation.’ That argument should
be addressed in the first instance to the Legislature, not the courts. Because California’s nonjudicial foreclosure statute
is unambiguously silent on any right to bring the type of action identified by
Gomes, there is no basis for the courts to create such a right. We therefore conclude that the trial court
properly sustained Defendants’ demurrer to . . . Gomes’s complaint.” (Gomes
v. Countrywide Loans, Inc., supra,
192 Cal.App.4th 1149, 1156, fns. omitted.)

This reasoning is sound, and has been
followed by other courts. (See >Debrunner v. Deutsche Bank National
Trust Co. (2012) 204 Cal.App.4th 433, 440-442; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 268;
Jensen v. Quality Loan Service Corp.
(E.D.Cal. 2010) 702 F.Supp.2d 1183, 1189; Osei
v. Countrywide Home Loans (E.D.Cal. 2010) 692 F.Supp.2d 1240,
1250-1251.) It was correctly accepted by
the trial court as controlling.

The federal district court decision
cited by the trial court is even clearer:
“Under California law, there is no requirement for the production of an
original promissory note prior to the initiation of a nonjudicial
foreclosure. [Citations.] Therefore, the absence of an original
promissory note in a nonjudicial foreclosure does not render the foreclosure
invalid.” (Pantoja v. Countrywide Home Loans, Inc., supra, 640 F.Supp.2d 1177, 1186.)
And, like Gomes, this decision
is one of many. (See, e.g., >Ngoc Nguyen v. Wells Fargo Bank, N.A.
(N.D.Cal. 2010) 749 F.Supp.2d 1022, 1035; Jensen
v. Quality Loan Service Corporation, supra, 702 F.Supp.2d 1183, 1189; >Saldate v. Wilshire Credit Corporation
(E.D.Ca. 2010) 686 F.Supp.2d 1051, 1068; Hafiz
v. Greenpoint Mortgage Funding, Inc. (N.D.Cal. 2009) 652 F.Supp.2d 1039,
1043.)

Plaintiff is not able to convince us
otherwise with decisions from other states and this boilerplate statement from >Munger v. Moore (1970) 11 Cal.App.3d 1,
7: “[A] trustee or mortgagee may be
liable to the trustor or mortgagor for damages sustained where there has been
an illegal, fraudulent or willfully oppressive sale of property under a power
of sale contained in a mortgage or deed of trust.” This statement assumes the existence of what
is missing here, namely “an illegal . . . sale of property.”href="#_ftn6" name="_ftnref6" title="">[6]

In light of the foregoing, the judgment
may be affirmed without examining the question of whether judicial estoppel was
correctly invoked against plaintiff.

>DISPOSITION

The
judgment is affirmed.



Richman,
J.





We concur:





Kline, P.J.





Haerle, J.