Nikolic v. Forte



















Filed 4/17/13 Nikolic v. Forte CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>

ZVONIMIR NIKOLIC, Plaintiff and Appellant, v. MARTIN FORTE et al., Defendants and Respondents.

B240453 (Los Angeles County Super. Ct. No. VC059700)

APPEAL from a judgment of the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Margaret M.
Bernal, Judge. Affirmed.



Law Offices of Timothy L.
McCandless and Timothy L. McCandless for Plaintiff and Appellant.



Lane J. Thomas for Defendants and
Respondents.









* * * * * *

After his
residence was sold at a non-judicial foreclosure sale, plaintiff and appellant
Zvonimir Nikolic filed a complaint alleging multiple causes of action against
defendants and respondents Martin Forte; Nonine Freitas and Erika Reynolds in
their capacity as individuals and as successor trustees of the Forte Trust; and
other defendants. He generally alleged
that Forte, Freitas and Reynolds failed to acknowledge an oral agreement
between their father and him concerning the interest rate on a promissory note
and thereafter impeded his ability to make timely payments on the note. The trial court sustained their demurrer
without leave to amend.

We
affirm. Appellant failed to allege
sufficient facts to support any of his causes of action. Given that this was appellant’s third attempt
to state a viable claim, the trial court properly exercised its discretion in
denying leave to amend.



FACTUAL AND PROCEDURAL BACKGROUND

“On appeal from a
judgment of dismissal following a demurrer
sustained name="citeas((Cite_as:_206_Cal.App.4th_1036,_*">without leave to amend, we
assume the truth of all well-pleaded facts, as well as those that are judicially noticeable,
but not contentions, deductions or conclusions of fact or law. [Citations.]”
(Van De Kamps Coalition v. Board
of Trustees of Los Angeles>
Community College Dist.
(2012) 206 Cal.App.4th 1036, 1040.)

>The
Foreclosure.

In November
1994, appellant purchased a residence at 13544 La
Forge Street in Whittier
(the property) from Jefferson Forte (decedent) and his wife Renate Forte as
trustees of the Forte Trust (trust). In
connection with the purchase, appellant executed a $138,000 promissory note
(note) in favor of the trust. According to the escrow statement, appellant
was to make monthly payments on the note to the trust in the amount of
$1,175.86. Appellant, who was
friendly with the decedent and his wife, often personally delivered the monthly
payments to them and then stayed to visit.

In 2005,
the decedent “orally amended” the note and reduced the interest rate from eight
and one-quarter percent to six and one-quarter percent annually. A 2004 payment schedule bore the notation
“next year 7.5% interest.” Appellant,
however, did not change the amount of his monthly payments in order to pay down
the principal on the note.

The
decedent died in November 2009 and his wife died in December 2009. They were survived by their daughters Freitas
and Reynolds, and son Forte. Appellant
made his November 2009 payment in a check made out to decedent and his December
2009 payment in a check made out to his wife.
Forte asked appellant’s permission to cash the first check, but
appellant thought it might not be possible since the check was made out to the
decedent. Forte then cancelled several
scheduled meetings with appellant to collect the November and December 2009
payments. Appellant then followed
Forte’s instructions to mail the payment checks to Reynolds, but the post
office returned them. Thereafter, Forte
and Freitas cancelled a scheduled trip to pick up the payments.

In March
2010, Freitas and Reynolds, as successor trustees of the trust, recorded a
notice of default and election to sell (notice of default), which indicated
that appellant had defaulted on the note and the amount currently
owing—including late charges, delinquent taxes and insurance premiums, attorney
fees and costs—was $17,116.37. According
to appellant, the notice of default overstated the amount owing, and he had the
ability to tender the lawful amount owing to Freitas and Reynolds.

Over one
year later, in April 2011, the property was sold at a trustee’s sale to
Strategic Acquisitions. The trustee’s
deed upon sale was recorded in May 2011.

>The
Pleadings.

In July
2011, appellant filed a verified complaint against the trust, its trustees and
other defendants, alleging causes of action for breach of contract, quiet
title, fraud and unjust enrichment. He
generally alleged that after the decedent’s death, “Forte and Frietas [>sic] undertook actions clearly
calculated to prevent Plaintiff from making the agreed-upon payments in
satisfaction of his mortgage agreement,” which had the effect of forcing
appellant into foreclosure and enabling Forte and Freitas to obtain the
property for an amount less than its fair market value. In addition, appellant alleged that he filed
for Chapter 13 bankruptcy in September 2010, but the proceedings were dismissed
in December 2010 when he could not produce proof of three payments on the
property. He further alleged that he
filed a second Chapter 13 bankruptcy petition in February 2011, which was
also dismissed. Forte demurred to the
complaint, and appellant dismissed it without prejudice before the demurrer
hearing.

Appellant
commenced the instant action in October 2011, filing a complaint which alleged
causes of action for promissory estoppel, quiet title, accounting, fraudulent
inducement, fraud, breach of oral contract, constructive fraud, violation of
Civil Code section 2924j, unjust enrichment and injunctive relief. Appellant again alleged that Forte, Freitas
and Forte’s children prevented him from making mortgage payments in order to
force the property into foreclosure. He
added allegations that the notice of default contained an incorrect amount.

Forte and
Freitas demurred on the ground that appellant failed to allege facts sufficient
to state any viable cause of action. In
December 2011, prior to the demurrer hearing, appellant filed the operative
first amended complaint which alleged causes of action for breach of contract,
promissory estoppel, tortious breach of Civil Code section 2924j and wrongful
foreclosure, and sought relief in the form of a preliminary and permanent
injunction, quiet title, an accounting and declaratory relief. Appellant again alleged that Forte and
Freitas “failed to properly receive and credit Plaintiff’s payments as against
the subject property in order to force the non-judicial sale of the property,”
and that the notice of default overstated the amount due.

This time,
Forte, Freitas and Reynolds demurred on the ground appellant failed to allege
facts sufficient to state a cause of action.
Appellant opposed the demurrer, asserting that the facts as pled were
sufficient. At the March 12, 2012
hearing, appellant argued that, at a minimum, he should be granted leave to
amend. At the conclusion of the hearing,
the trial court adopted its tentative ruling and sustained the demurrer without
leave to amend. Addressing each cause of
action separately, the trial court ruled that the cause of action for breach of
oral contract failed because appellant failed to allege the terms of any
contract with certainty. Appellant’s
cause of action for promissory estoppel failed to allege either a clear promise
or any detriment. His tortious breach of
statute and cancellation of instrument claims
did not apply to the moving parties. The
trial court further ruled that appellant could not maintain a cause of action
to quiet title because he did not have legal title to the property; he did not
allege any equitable basis for an accounting; and his failure to allege that he
tendered the full amount due was fatal to his wrongful foreclosure claim. Finally, declaratory relief was not proper
because appellant alleged only past wrongs.

The trial
court entered an order sustaining the demurrer without leave to amend. Appellant appealed before the trial court
entered an order of dismissal. “When a demurrer is sustained
as to all causes of action, without leave to amend, the only step
left to finally dispose of the action is the formality of an order or judgment
of dismissal. In those situations, we
may deem the order sustaining the demurrer to incorporate a judgment of
dismissal, and review the order.
[Citation.]” (>Thaler v. Household Finance Corp. (2000)
80 Cal.App.4th 1093, 1098.) We elect to
do so here.href="#_ftn1" name="_ftnref1"
title="">^[1]



DISCUSSION

Appellant
contends the trial court erred in sustaining the demurrer without leave to
amend. He asserts that he alleged
sufficient facts to support each cause of action. We disagree.



I. Standard of
Review.

We review de novo a
trial court’s sustaining of a demurrer, exercising our
independent judgment as to whether the complaint alleges sufficient facts to
state a cause of action. (>Zelig v. County of Los Angeles (2002) 27
Cal.4th 1112, 1126.) We assume the truth
of properly pleaded allegations in the complaint and give the complaint a
reasonable interpretation, reading it as a whole and with all its parts in
their context. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
966–967.) “We do not, however, assume
the truth of the legal contentions, deductions or conclusions; questions of
law, such as the interpretation of a statute, are reviewed de novo.” (Caliber
Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 373.) We may also disregard allegations which are
contrary to law or to a fact of which judicial notice may be taken. (Wolfe
v. State Farm Fire & Casualty Ins. Co. (1996) 46 Cal.App.4th 554,
559–560.)

We
apply the abuse of discretion standard in reviewing a trial court’s denial of
leave to amend. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) It is the appellant’s burden to show either
that the trial court erred in sustaining the demurrer or abused its discretion
in denying leave to amend. (>Kong v. City of Hawaiian Gardens
Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1038.)



II. The Trial Court Properly Sustained the
Demurrer Without Leave to Amend.

The trial
court sustained the demurrer in its entirety, ruling that appellant failed to
allege facts sufficient to state a cause of action and that the complaint was
uncertain. (See Code Civ. Proc., §
430.10, subds. (e) & (f).) In
reaching this conclusion, the trial court addressed each cause of action
separately, and we will do the same.

>A. Breach of Oral Contract.

In his
first cause of action for breach of oral contract against Freitas and Reynolds,
appellant alleged that the decedent, in his capacity as trustee of the trust,
orally agreed to lower the interest rate on the note by two percentage
points. After that modification,
appellant continued to make the same monthly payments on the note. Appellant alleged that Freitas and Reynolds,
as successor trustees, “breached the terms of the oral contract entered into
with their father as Trustee, and failed and/or refused to lawfully adjust the
total amount due and owing to reflect that Plaintiff had tendered timely
payments and that said invalid sums were demanded by Defendants through the
trustee ILS.”

A
promissory note is a contract in writing subject to the provisions of Civil
Code section 1698. (Nicholson v. Smith (1950) 98 Cal.App.2d 163, 164.) That statute provides in relevant part: “(a) A contract in
writing may be modified by a contract in writing. [¶] name=I1A011160009C11DF8BF3B1AAC68F1F9D>name=I1A007522009C11DF8BF3B1AAC68F1F9D> (b) A contract in writing may be modified by
an oral agreement to the extent that the oral agreement is executed by the
parties. [¶] name=I1A007523009C11DF8BF3B1AAC68F1F9D>(c)
Unless the contract otherwise expressly provides, a contract in writing may be
modified by an oral agreement supported by new consideration. The statute of frauds (Section 1624) is
required to be satisfied if the contract as modified is within its
provisions.” (Civ. Code, § 1698.)

Here,
appellant did not allege that the modification was in writing. Indeed, the only writing evidencing a
modification was the decedent’s handwritten notation on an exhibit attached to
the complaint that the interest rate would be lowered to seven and one-half
percent in the future—a notation which contradicted appellant’s allegations and
led the trial court to conclude that any modification was uncertain. (See Building
Permit Consultants, Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409
[contents of an exhibit attached to the complaint “will take precedence over and
supersede any inconsistent or contrary allegations set out in the pleading”]; >Mead v. Sanwa Bank California (1998) 61
Cal.App.4th 561, 567–568 [“If
the facts appearing in
the attached exhibit contradict those expressly pleaded, those in the exhibit
are given precedence”].) Similarly, any
contention that the oral modification was executed would be contradicted by the
terms of the note that any prepayment must be made in addition to the regularly
scheduled interest payments.

Thus,
appellant relies on Civil Code section 1698, subdivision (c), asserting that he
adequately alleged an oral modification supported by new consideration in the
form of his personal relationship with the decedent. But the cases on which appellant relies
involve solely the question of the adequacy of consideration, not the existence
of new consideration to support an oral modification. (See Whorton v. Dillingham (1988) 202 Cal.App.3d 447,
454 [allegations that the plaintiff provided the defendant with services as a
chauffeur, bodyguard, secretary and business partner held adequate
consideration]; Henderson v. Fisher (1965)
236 Cal.App.2d 468, 474 [in testing the adequacy of consideration, “the court
may consider such factors as the relationship of the parties, their friendship,
love, affection, and regard for each other, and the object to be obtained by
the contract”].)

Here, the question was not whether
appellant alleged adequate consideration, but rather, whether he alleged new
consideration for the oral modification of the note. It is well established “that a supplemental
agreement either adding to or varying the terms of the original contract, so as
to impose new and onerous burdens upon one of the parties, requires a
consideration to support it.” (>Krobitzsch v. Middleton (1946) 72
Cal.App.2d 804, 808.) An obligation already owed by the promisee to the promisor is not
consideration. (Civ. Code, § 1605 [“Any benefit conferred, or agreed to
be conferred, upon the promisor, by any other person, to which the promisor is
not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by
such person, other than such as he is at the time of consent lawfully bound to
suffer, as an inducement to the promisor, is a good consideration for a
promise”].) Appellant alleged that his
personal relationship with the decedent existed at the time he entered into the
note and thereafter alleged that the modification was “due to the long standing
personal friendship . . . .” As appellant alleged no new consideration for
the oral interest rate modification, the oral agreement lacked
consideration. Because appellant could
not allege one of the essential elements of his breach of contract claim, the
trial court properly sustained the demurrer to the first cause of action. (Cantu
v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879–880.)

>B. Promissory Estoppel.

In his second cause of action for href="http://www.mcmillanlaw.com/">promissory estoppel against Forte,
Freitas and Reynolds, appellant alleged that he reasonably relied on Forte’s
promise, made “circa November 2009,” to pick up his November and December 2009
payments, and he suffered injury when Forte did not fulfill his promise and a
nonjudicial foreclosure proceeding was commenced.

“‘Promissory estoppel applies
whenever a “promise which the promisor should reasonably expect to induce
action or forbearance on the part of the promisee or a third person and which
does induce such action or name="citeas((Cite_as:_182_Cal.App.4th_1661,_*">forbearance” would result
in an “injustice” if the promise were not enforced. [Citation.]’
[Citation.] ‘The elements of a
promissory estoppel claim are “(1) a promise clear and unambiguous in its terms;
(2) reliance by the party to whom the promise is made; (3) [the] reliance must
be both reasonable and foreseeable; and (4) the party asserting the estoppel
must be injured by his reliance.”
[Citation.]’ [Citation.]” (Advanced Choices, Inc. v. State Dept. of Health Services (2010) 182
Cal.App.4th 1661, 1671–1672.) “The party claiming estoppel
must specifically plead all facts relied on to establish its elements.” (Smith
v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 48.)

We find no merit to appellant’s
contention that he adequately pled the requisite elements of promissory
estoppel. First, the alleged promise to
“pick up” the monthly payments was not clear and unambiguous. (See Ladas
v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 770
[“To be enforceable, a promise must be definite enough that a court can
determine the scope of the duty and the limits of performance must be
sufficiently defined to provide a rational basis for the assessment of
damages”].) Moreover, appellant failed
to allege reasonable reliance on Forte’s promise to pick the November and
December 2009 checks. Though the
question of whether a party’s reliance is reasonable is typically one of fact,
it may be decided as one of law if reasonable minds could come to only one
conclusion on the basis of the facts alleged.
(See Alliance Mortgage Co. v.
Rothwell (1995) 10 Cal.4th 1226, 1239; see also Joffe v. City of Huntington Park (2011) 201 Cal.App.4th 492, 513
[promissory estoppel not established as a matter of law where no reasonable
reliance shown].) We find it
unreasonable, as a matter of law, for appellant to have relied on a promise to
pick up two payments at the end of 2009 as a basis for failing to make any payments
on the property until April 2011 when it was sold. For the same reason, appellant failed
adequately to allege any injury from his reliance, as he had multiple statutory
opportunities from November 2009 to April 2011 to avoid foreclosure, each of which
were unrelated to Forte’s alleged promise.
(Moeller v. Lien (1994) 25
Cal.App.4th 822, 830–831.)

Accordingly,
we agree with the trial court that appellant failed to state a claim for
promissory estoppel.

>C. Tortious Breach of Statute.

Appellant alleged his third
cause of action for tortious breach of statute against Integrated Lender
Services only, and not against Forte, Freitas or Reynolds. Because this cause of action was never
alleged against these defendants, there is no claim against them and there was
no demurrer to sustain.

But, in order to address all issues
raised by the parties, we note the following:

As explained in >Kachlon v. Markowitz (2008) 168
Cal.App.4th 316, 334, the Civil Code provides a comprehensive scheme governing
nonjudicial foreclosures. Under a deed
of trust securing a promissory note, “the borrower, or
‘trustor,’ conveys nominal title to property to an intermediary, the ‘trustee,’
who holds that title as security for repayment of the loan to the lender, or
‘beneficiary.’ [Citations.]name="sp_7047_546">
The trustee’s duties are twofold:
(1) to ‘reconvey’ the deed of trust to the trustor upon satisfaction of
the debt owed to the beneficiary, resulting in a release of the lien created by
the deed of trust, or (2) to initiate nonjudicial foreclosure on the property
upon the trustor’s default, resulting in a sale of the property. [Citations.]”
(Ibid.; accord, >Alliance Mortgage Co. v. Rothwell, supra,10
Cal.4th at p. 1236 [“In
a nonjudicial foreclosure, also known as a ‘trustee’s sale,’ the trustee
exercises the power of sale given by the deed of trust”].) According to the statutory scheme, “[w]name="SDU_8">name=B62017458193>hen the trustor defaults on the debt secured by the deed of
trust, the beneficiary may declare a default and make a demand on the trustee
to commence foreclosure.
[Citation.]” (>Kachlon v. Markowitz, supra, at p. 334.)

Here,
appellant alleged that the trustee breached both Civil Code section 2924c,
subdivision (b)(1) by overstating the amount by which he was in default and
Civil Code section 2924j by failing to account for any surplus from the
sale. But according to the statutory
scheme, these are duties undertaken by the trustee. In accordance with that scheme, appellant
alleged that “INTEGRATED LENDER SERVICES, a Delaware Corporation, caused the
Notice of Default to be recorded in March 2010 . . . .” Moreover, the cases on which he relies
confirm that it is the trustee’s obligation to record the notice of
default. (E.g., System Inv. Corp. v. Union Bank (1971) 21 Cal.App.3d 137, 152 [“section 2924 of the Civil
Code provides that the trustee shall first file for record a notice of default
identifying the deed of trust and containing a statement that a breach of the
obligation for which such transfer in trust is security has occurred”].) Given that appellant has not and
cannot allege that Forte, Freitas or Reynolds breached any statutory duty
imposed under the non-judicial foreclosure scheme, the trial court properly
sustained their demurrer to the third cause of action.

>D. Quiet
Title.

In his
fourth cause of action, appellant sought an order quieting title to the
property on the ground that all defendants “claim some right, title and
interest in the subject property which is adverse to that of Plaintiff and as
such a cloud exists on Plaintiff’s title . . . .”href="#_ftn2" name="_ftnref2" title="">^[2] He further alleged, however, that defendant
Strategic Acquisition acquired the property in April 2011.href="#_ftn3" name="_ftnref3" title="">^[3] On appeal, he maintains that he alleged
sufficient facts supporting his claim to quiet title, emphasizing that a simple
action to quiet title is equitable in nature.
(See Strauss v. Summerhays (1984)
157 Cal.App.3d 806, 812.)

The general
rule is that a holder of
equitable title, or of some
equitable interest in the
property, cannot maintain a quiet
title action against a name="SR;5276">legal owner. (E.g., G.
R. Holcomb Estate Co. v. Burke (1935) 4 Cal.2d 289, 297; >County of Los Angeles v. Hannon (1910) 159 Cal. 37, 48; Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866; >Stafford v. Ballinger (1962) 199
Cal.App.2d 289, 294–295.) An exception to the general rule exists where
it is pled with specificity that the legal title holder obtained its interest
through fraud. (Strong v. Strong (1943) 22 Cal.2d 540, 546; see also >Warren v. Merrill (2006) 143 Cal.App.4th
96, 113–114 & fn. 20.) Equitable
rights cannot be established in a quiet title action when the pleadings contain
only general allegations asserting a right to ownership. (Strong
v. Strong, supra, at p. 546.)

The trial court correctly applied
the general rule here. Appellant’s claim
to an equitable interest in the property failed to support a cause of action to
quiet title as against the legal owner.
Application of the exception was unwarranted because appellant did not
allege with any level of specificity that the legal owner obtained its interest
through fraud. (See >Estate of Young (2008) 160 Cal.App.4th
62, 79 [setting forth fraud elements].)

Finally, the demurrer was properly sustained on the
alternative ground relied on by the trial court that appellant was barred from
maintaining an action to quiet title in the absence of any allegation he had
discharged the debt he owed on the property.
(See Shimpones v. Stickney (1934)
219 Cal. 637, 649 [“It is settled in California that a mortgagor cannot quiet
his title against the mortgagee without paying the debt secured”]; >Aguilar v. Bocci (1974) 39 Cal.App.3d
475, 477 [stating that the appellant could not “quiet title without discharging
his debt. The cloud upon his title
persists until the debt is paid”].)

>E. Cancellation of Instrument.

In
his fifth cause of action, appellant alleged he was entitled to the
cancellation of the notice of default and trustee’s deed upon sale. Civil Code section 3412 permits an action for cancellation of a
written instrument “in respect to which there is a
reasonable apprehension that if left outstanding it may cause serious injury to
a person against whom it is void or voidable.”
Under this statute, a court can order cancellation
of a deed whenever it is void or voidable, for example, when executed by a
person who lacks legal capacity; or when the instrument
was obtained by undue influence or for inadequate consideration, or procured by
fraud. (12 Miller & Starr, Cal. Real
Estate (3d ed. 2011) Judicial Remedies, § 34:113, p. 34–383.) The plaintiff must allege “facts, not mere
conclusions, showing the name="citeas((Cite_as:_28_Cal.2d_824,_*834,_17">apparent validity of the
instrument designated, and point out the reason for asserting that it is
actually invalid. [Citations.]” (Ephraim
v. Metropolitan Trust Co. (1946) 28 Cal.2d 824, 833–834.)

Appellant did not include any factual
allegations in his fifth cause of action, but instead incorporated his prior
allegations. Thus, he alleged that the
instruments should be cancelled for reasons we have already found fail to
establish the invalidity of the notice of default or trustee’s deed upon
sale—namely, that the notice of default overstated the amount due by failing to
credit payments made in accordance with an oral agreement between appellant and
the decedent. (See generally >Zakaessian v. Zakaessian (1945) 70
Cal.App.2d 721, 724–725 [the plaintiff must allege facts showing the invalidity
of the instrument to support a claim under Civ. Code, § 3412].) In addition, appellant failed to allege that
the instruments were “in the possession of or under the control of” Forte,
Freitas and/or Reynolds at the time he commenced his action. (Consolidated
Con. Co. v. McConnell (1919) 40 Cal.App. 443, 445.)

Appellant’s reliance on >Pro Value Properties, Inc. v. Quality Loan
Service Corp. (2009) 170 Cal.App.4th 579 is misplaced. There, the trial court affirmed a judgment
finding that a trustee’s sale was void and the trustee’s deed of sale had no
force or effect because the trustee that conducted the sale was not named in
the deed of trust and there was no recorded substitution of trustee. (Id.
at pp. 581–582.) Here, in contrast,
appellant has not alleged that Integrated Lender Services was not the proper
trustee. Rather, his claim is premised
solely on the notice of default’s failure to account for the oral change in
interest rate, for which appellant has failed to allege any consideration. Accordingly, the trial court properly
sustained the demurrer to the fifth cause of action.

>F. Equitable
Accounting.

In his sixth cause of action, appellant
sought an equitable accounting. In
support of his claim, appellant repeated his allegations concerning his oral
agreement with the decedent, Forte’s failure to pick up his monthly payment
checks and the notice of default’s containing an overstated sum due, which
culminated in the nonjudicial foreclosure proceedings. On the basis of those allegations, appellant
further alleged “that an accounting is necessary to determine the rights,
duties and obligations of the respective parties herein.”

On appeal, appellant emphasizes that his
allegations regarding the erroneous amount due in the notice of default
supported his right to an equitable accounting.
We disagree. A complaint
sufficiently states a claim for an accounting by alleging: (1) a fiduciary relationship, (2) losses in
an amount that cannot be ascertained, and (3) misconduct. (Kritzer
v. Lancaster (1950) 96 Cal.App.2d 1, 6–7.)
Appellant’s allegations failed to satisfy the first two elements. First, as the trial court recognized, there
is typically “no fiduciary relationship between the borrower and lender. [Citations.]”
(Oaks Management Corporation v.
Superior Court (2006) 145 Cal.App.4th 453, 466.) Appellant failed to allege any facts that
would show the existence of a fiduciary relationship between him and the
successor trustees Freitas and Reynolds or any other party. (See Abdallah
v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109 [“the trustee under
a deed of trust is not the trustor’s fiduciary”].)

Second,
appellant failed to allege that any sums allegedly due could not be ascertained
without an accounting. Appellant alleged
and the notice of default showed that the total amount owed in March 2010 was
$17,116.37. He further alleged that on
the basis of the oral interest rate modification, “[t]he total owed over a
four-month period, did not exceed Four Thousand Seven Hundred Dollars
($4,700),” and that even including statutory foreclosure costs, the amount
demanded in the notice of default overstated the amount due by at least
$10,000.

“A suit for an
accounting will not lie where it appears from the complaint that none is
necessary or that there is an adequate remedy at law. [Citations.]name=f141955113333> An accounting
will not be accorded with respect to a sum that a plaintiff seeks to recover
and alleges in his complaint to be a sum certain. [Citation.]”
(St. James Church v. Superior
Court (1955) 135 Cal.App.2d 352, 359; accord, Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179 [“An action for accounting is not
available where the plaintiff alleges the right to recover a sum certain or a
sum that can be made certain by calculation”].)
According to the monetary figures set forth in the complaint, the amount
by which the notice of default was in error was a sum capable of being made
certain by calculation. The trial court
properly sustained the demurrer to the sixth cause of action on the basis that
appellant alleged no grounds to support the remedy of an accounting.

G. Wrongful Foreclosure.

In
his seventh cause of action for wrongful foreclosure, appellant sought to set
aside the foreclosure on the ground it was wrongfully instituted for the same
reasons alleged in his other causes of action.
Though appellant argues that he stated sufficient facts to establish a
procedural irregularity in the sale, he fails to address the basis of the trial
court’s ruling, which was that appellant could not state a claim absent an
offer to tender the full amount due and owing.

“It is settled
that an action to set aside a trustee’s sale for irregularities in sale notice
or procedure should be accompanied by an offer to pay the full amount of the
debt for which the property was security.
[Citations.] This rule is premised upon the equitable
maxim that a court of equity will not order that a useless act bename="sp_226_579"> name="citeas((Cite_as:_158_Cal.App.3d_575,_*57">performed.” (Arnolds
Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578–579; accord, >Abdallah v. United Savings Bank, supra,
43 Cal.App.4th at p. 1109; FPCI RE-HAB 01
v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021.) Stated simply, “[a] valid and viable tender
of payment of the indebtedness owing is essential to an action to cancel a
voidable sale under a deed of trust.
[Citations.]” (>Karlsen v. American Sav. & Loan Assn.
(1971) 15 Cal.App.3d 112, 117.)

Appellant
failed to plead that he tendered the amount past due at any point prior to
foreclosure. He attached to his
complaint a bank account withdrawal receipt from April 2010 showing a balance
of over $10,000, and asserts the exhibit was sufficient to satisfy the tender
requirement. But the exhibit did not
identify the owner of the account, nor did it show that appellant had the funds
necessary to tender the over $17,000 due according to the notice of
default. (See Karlsen
v. American Sav. & Loan Assn., supra, 15 Cal.App.3d at p. 118 [“if the offeror
‘. . . is without the money necessary to make the offer good and
knows it . . .’ the tender is without legal force or effect”].) Beyond appellant’s omissions, the trial court
also properly considered that appellant’s original complaint alleged he had
twice filed for bankruptcy while the property was in foreclosure as a further
indication that appellant had failed to satisfy the tender requirement. The demurrer to the seventh cause of action
was properly sustained.

>H. Declaratory Relief.

In his
final cause of action, appellant sought a judicial determination of the rights
and duties of the parties on the basis of the facts previously alleged. Appellant maintains that declaratory relief
is the proper remedy to determine whether the notice of default overstated the
amount due, thereby rendering it void and the foreclosure sale improper. The trial court properly ruled that
declaratory relief was unavailable to appellant, as his complaint sought
redress for past wrongs. (E.g., >Baldwin v. Marina City Properties, Inc. (1978)
79 Cal.App.3d 393, 407 [“‘there
is no basis for declaratory relief where only past wrongs are involved’”].)

It
is well established that declaratory relief
is a remedy that is prospective in nature.
(Gafcon, Inc. v. Ponsor &
Associates (2002) 98 Cal.App.4th 1388, 1403; Sych v. Insurance Co. of North America (1985) 173 Cal.App.3d 321,
329, fn. 5.) As summarized in >Babb v. Superior Court (1971) 3 Cal.3d
841, 848: “The purpose of a judicial
declaration of rights in advance of an actual tortious incident is to enable
the parties to shape their conduct so as to avoid a breach. ‘[D]eclaratory procedure operates
prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before
they lead to repudiation of obligations, invasion of rights or commission of
wrongs; in short, the remedy is to be used in the interests of preventive
justice, to declare rights rather than execute them.’ [Citations.]” Because appellant’s allegations sought redress
for wrongs that had already allegedly occurred, the trial court properly
sustained the demurrer to the declaratory relief cause of action.

>I.
>Leave to Amend.

Appellant contends that, at a minimum,
he should have been granted leave to amend.
He bears the burden of showing that an amendment would cure the defects
in his pleading. (Arce v. Childrens Hospital Los Angeles (2012) 211 Cal.App.4th 1455,
1497, fn. 19.) “‘To satisfy that burden on
appeal, a plaintiff “must show in what manner he can amend his complaint and
how that amendment will change the legal effect of his pleading.” [Citation.]
The assertion of an abstract right to amend does not satisfy this
burden.’ [Citation.] The plaintiff must clearly and specifically
state ‘the legal basis for amendment, i.e., the elements of the cause of
action,’ as well as the ‘factual allegations that sufficiently state all
required elements of that cause of action.’
[Citation.]” (>Maxton v. Western States Metals (2012)
203 Cal.App.4th 81, 95.)

Appellant
has had three opportunities to state a sufficient cause of action. Though he generally requested leave to amend
in his written opposition to the demurrer and at the hearing, he failed to
articulate either any factual allegations or legal bases for leave to amend. On appeal, while he again requests leave to
amend, he has similarly failed to show how an amendment would cure the multiple
defects in his complaint. “Where the appellant
offers no allegations to support the possibility of amendment and no legal
authority showing the viability of new causes of action, there is no basis for finding
the trial court abused its discretion when it sustained the demurrer without
leave to amend. [Citations.]” (Rakestraw
v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 44.) The trial court properly exercised its
discretion in denying leave to amend.



DISPOSITION

The
judgment is affirmed. Forte, Freitas and
Reynolds are entitled to their costs on appeal.

NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.



__________________________, J.

ASHMANN-GERST

We concur:



____________________________,
P. J.

BOREN



____________________________,
J.

CHAVEZ