Adams v. JP Morgan Chase Bank
Filed 12/18/13 Adams v. JP Morgan Chase Bank CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CHARLES ADAMS
III,
Plaintiff and Appellant,
v.
JP MORGAN
CHASE BANK, N.A. et al.,
Defendants and Respondents.
B245892
(Los
Angeles County
Super. Ct. No. SC114600)
APPEAL
from a judgment of the Superior Court of
Los Angeles County.
H. Chester Horn, Jr., Judge.
Affirmed.
Sidley Law
Group and Michael I. Sidley for Plaintiff and Appellant.
Wargo &
French, Mark Block, Shanon J. McGinnis and Jeffrey N. Williams for Defendants
and Respondents, JP Morgan Chase Bank, N.A., California Reconveyance Company
and Bank of America, N.A.
_________________________________
Charles
Adams III sued JP Morgan Chase Bank, N.A. (Chase), Bank of America,
N.A. (BAC), and California Reconveyance Company (CRC) on claims arising from
his failed attempts to negotiate a loan modification. The defendants filed a joint demurrer to Adams’s operative third amended
complaint (TAC). The
and entered a judgment of dismissal. Adams appeals and we affirm.
FACTS
As
always in the context of reviewing a demurrer,
we consider the facts alleged in the operative complaint to be true. (Moore
v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We may also consider matters that are
judicially noticed. (
591.) Examined in light of these rules,
the following are the facts in this case.
In
December 2006, Adams financed the purchase of real property on Pacific Coast Highway in Malibu with a loan from Washington Mutual Bank (WaMu).
As part of the loan agreement Adams signed a note stating he owed $1.14 million to WaMu; payment of
the note was secured by a
deed of trust. The deed of trust identified
WaMu as both the lender and beneficiary, and CRC as the trustee. For a period of time, WaMu serviced the loan
by collecting payments on Adams’s note.
for WaMu. In 2008, the FDIC, as WaMu’s
receiver, entered into a Purchase and
all interest in WaMu’s assets to Chase. In summary, by 2008 Chase had succeeded to
WaMu’s interests in the Adams loan, as beneficiary under the deed of trust
securing payment of the loan, and as the servicer of Adams’s loan.
“Prior to, but within the past two
years [before] July 6, 2011, [Adams] entered into an oral contract
the purpose of obtaining a loan modification with . . . Chase
and/or . . . BAC.â€
(Italics added.) In papers he later filed in the trial court, Adams expressly acknowledged that he was not alleging “a contract
‘obligating [Chase and or BAC] to modify [his Chase] loan.’†As such, we understand Adams to have attempted to allege an oral “contract to negotiate†for a
loan modification. In summary, Adams alleged a breach of an oral contract to engage in a process –– i.e., “to negotiate in good faith.â€
Chase and BAC breached the oral
contract entered into between Chase and Adams “by . . . failing
to negotiate a loan modification in good faith, in that they frustrated [his]
attempts at every step . . . so that no loan modification
was ever entered into between the parties.â€
Adams performed all obligations and satisfied all conditions for which
he was responsible under the oral contract to negotiate. We understand this allegation to mean that Adams permitted his original Chase (nee WaMu) loan to go into
default. Chase and BAC’s breach of the
oral contract to negotiate “caused [Adams] to incur additional and substantial expenses because the
entry . . . of the notice of default caused [his] credit
and borrowing expenses to increase substantially, and in some instances
prevented him from securing credit.†No
specific instance of increased borrowing expenses is alleged.
In July 2011, Chase assigned the beneficial
interest under the deed of trust to BAC, but Chase continued servicing the Adams loan. At about the same
time, CRC (the trustee under the deed of trust) recorded a notice of default
against the Malibu property stating that Adams had fallen behind on his loan payments by more than $60,000. On October 11, 2011, CRC recorded a notice against the Malibu property that the trustee’s sale was set for November
3, 2011.
On October
24, 2011, Adams commenced his current action by filing a complaint to halt the
pending foreclosure sale. In August
2012, Adams filed his operative TAC. The TAC alleged the following causes of
action, listed respectively: breach of
oral contract; breach of the implied covenant of good faith and fair dealing,
apparently as a contract based claim; negligent interference with prospective
economic relations; and violation of the Unfair Competition Law or UCL (see Bus.
& Prof. Code, § 17200). Adams prayed for compensatory damages, attorney fees under the UCL,
injunctive relief “prohibiting any further action by the defendants under the
notice of default [and notice of sale recorded] and [Adams]’s property,†and injunctive relief respecting the “rights of the
general public.†The named defendants were
Chase, BAC, and CRC.
name="_ftnref6" title="">[6]
All of the causes of action in
Adams’s operative TAC are based on the allegations noted above that at some
unidentified point in time within the past two years prior to July 2011 (the
date the notice of default was recorded), Adams entered an oral contract with
Chase for purposes of obtaining a loan modification with Chase and/or BAC, and
that the contract provided Chase and BAC “would work with [Adams] in good
faith, to reach a loan modification, but [Adams] first had to permit his loan
to fall into default.†Adams alleged a breach in that Chase and BAC had “failed to negotiate
with him in good faith toward a loan modification.â€
Chase, BAC and CRC filed a joint demurrer
to Adams’s TAC. On October 17, 2012, the parties argued the matter to the trial
court, and the court took the matter under submission. Later that same day, the court issued an order
sustaining the demurrer without leave to amend. On November 1, 2012, the court signed and entered judgment of
dismissal in favor of Chase, BAC and CRC.
Adams filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
A
demurrer tests whether a pleading is legally sufficient to state a cause of
action. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) Our task on appeal is to determine whether
the alleged facts are sufficient to state a cause of action. (McCall
v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) Our review is de novo, meaning we
independently decide whether the complaint is legally sufficient to state a
cause of action. (Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 958.)
An appellate court
reviews a trial court’s ruling, not its stated reasons for its ruling. Thus, a trial court’s ruling that is correct under
any legal principle raised in the trial court will not be disturbed on appeal on
the ground the ruling was rendered for a “wrong†reason. When the trial court issues a ruling that is correct
on any theory of law applicable to the case and raised in the trial court, its ruling
will be affirmed on appeal regardless of the considerations that moved the trial
court to its conclusion. (
(1998) 60 Cal.App.4th 1205, 1217.)
II. The Contract-Related Causes of Action
The joint
demurrer filed by Chase,
BAC and CRC (hereafter collectively Chase) argued that Adams’s alleged contract-related causes of action were barred by the
statute of frauds. The trial court
agreed, as do we.
title="">[7]
Adams’s TAC expressly alleged that the oral contract he entered into
with Chase was entered into “for the purpose of obtaining a loan modification.â€
This necessarily means a modification of
the original loan agreement, including the note secured by the deed of trust, through
which Adams financed the purchase of the Pacific Coast Highway property.
We read nothing in Adams’s briefs on appeal or in his submissions in the
trial court to raise a dispute that long term loan agreements which include an
interest in real property (e.g., a deed of trust) are invalid unless memorialized
in writing under the statute of frauds.
(See Civ. Code, § 1624.) And,
an agreement to modify an agreement that is subject to the statute of frauds is
also subject to the statute of frauds. (
Trust 2002-2 (2008) 167 Cal.App.4th 544, 553 [an agreement by
a lender to forbear from exercising a right of foreclosure under a deed of
trust was an attempted
statute of frauds].) “Here, the alleged promise for a loan
modification is subject to the statute of frauds. Absent a written agreement to modify the
loan, any claim based upon an oral contract to modify the loan is barred by the
statute of frauds.†(
Countrywide Home Loans, Inc.
(E.D. Cal. 2010) 732 F.Supp.2d 1038, 1043-1044.)
To avoid this result, Adams presents a two-part argument.
First, he argues he is not alleging an oral agreement with his lender for
a loan modification, but rather, an oral agreement with his lender to engage in
a process, i.e., to negotiate in good
faith for a loan agreement. He argues such
a “contract to negotiate†is a recognized, enforceable contract under California law, and that a “contract to negotiate†is
breached by a party’s failure to perform the contractual obligation to
negotiate in good faith. Adams’s argument is based on Copeland
v. Baskin Robbins
motion for summary judgment. Building upon
this foundation, Adams next argues that a “contract to negotiate†such
as he alleges is not subject to the statute of frauds. He relies on Shell v. Darneille (1984) 162 Cal.App.3d 957 (Shell) for this second part of his argument. We address both parts of Adams’s argument in order.
1. Enforceable “Contracts to Negotiateâ€
Copeland involved a prospective
sale of an ice cream manufacturing plant. (Copeland,
supra, 96 Cal.App.4th at pp. 1253-1254.)
During negotiations, prospective buyer Copeland, “made clear†to
prospective seller Baskin Robbins, that he would not close the purchase of the
plant unless Baskin Robbins agreed to buy ice cream produced by Copeland at the
plant for a period of three years after the sale (in the parties’ verbiage, a
“co-packing†agreement). (Ibid.) The parties signed a letter agreement which stated
that Baskin Robbins would sell its ice
cream plant to Copeland for $1.3 million, and
Baskin Robbins “would agree, subject to a separate co-packing agreement and
negotiated pricing,†to
provide Copeland a three year co-packing agreement for 3 million gallons in
year one, then 2 million gallons in years two and three. (Id. at p. 1254.) After
several months of negotiation over the terms of the contemplated co-packing
agreement, Baskin Robbins pulled out of negotiations for the co-packing agreement,
and indicated that it would or would not go forward with the sale of the plant,
at Copeland’s choosing, apparently accepting Copeland’s view that the lack of a
further co-packing agreement was a “‘deal-breaker.’†(Ibid.)
Copeland sued Baskin Robbins for
parties had signed, alleging that Baskin Robbins had wrongly refused to negotiate
the further co-packing agreement that the parties had contemplated under the
letter agreement. (Copeland, supra, 96 Cal.App.4th at pp. 1254-1255.) The trial court granted Baskin Robbins’s
motion for summary judgment, finding that the parties’ letter agreement “failed
as a contract†because the parties never agreed on the essential terms of the further,
contemplated co-packing agreement. (Id. at p. 1255.)
The Court of Appeal affirmed summary
judgment on other grounds. In so doing, it
ruled that a provision in a contract calling upon the parties to negotiate a
further agreement is distinguishable from an unenforceable “‘agreement to agree.’â€
It determined that a contract with a
provision to negotiate further “can be formed and breached just like any other
contract.†(Copeland, supra, 96 Cal.App.4th at pp. 1253, 1257-1263.) The Court of Appeal likened Copeland’s claims
to those in Channel Home Centers, Grace
Retail v. Grossman (3d Cir. 1986) 795 F.2d 291 (Channel Home) where two parties entered into a preliminary written agreement
for a lease of a store in a shopping center, with a term providing that they
would negotiate further terms before finalization of all of the lease terms, and
the lessor thereafter withdrew from the preliminary agreement and leased the
store to a third party. In
Appeals ruled that, by unilaterally terminating negotiations, the lesser had
breached the “we agree to negotiate†term in the parties’ preliminary written
agreement. (Copeland, supra, at p. 1259.)
Adams’ current case is different, as he has not alleged an underlying, concrete
preliminary agreement with Chase with a term providing that the parties would negotiate
further to finalize all terms of a contemplated final agreement. He has essentially tried to skip a step. In so doing, Adams has alleged a more direct and unenforceable “agreement to
agree.†(See, e.g., Roberts v. Adams (1958) 164 Cal.App.2d 312, 316;
Aviation, Inc. (1966) 65 Cal.2d 396 [an “agreement to agree†is not enforceable
unless the terms left to future negotiation are of a minor nature compared to an
underlying agreement].) Adams has cited us no case in which a court found an enforceable promise
to negotiate in the absence of some well-defined underlying agreement. Adams’s arguments do not persuade us that he has sufficiently alleged a
type of agreement that would qualify as an enforceable “contract
2. The Statute of Frauds
Even if Adams has alleged a recognized, enforceable style of a “contract to
negotiate,†the statute of frauds still would be applicable in the factual context
of his case. Adams’s reliance on Shell, supra,
162 Cal.App.3d 957 for a different result is not persuasive. In Shell,
the plaintiff worked as an oil industry lobbyist. He alleged and proved at trial that the
defendant owed him compensation under
a contract that could be called an employment or agency agreement. The defendant
third party on the defendant’s behalf after the business relationship between
the defendant and the third party deteriorated.
In other words, there was a lease agreement between the defendant and a
third party, and the defendant hired the plaintiff to assist the defendant get
a lease modification, but the plaintiff did not enter any agreement directly linked
to the lease. (Id. at p. 961.) In this
context, the Court of Appeal ruled that the agreement between the plaintiff and
defendant, was basically an agreement to hire an agent to lead negotiations, and
that such an agreement was not subject to the statute of frauds even though a
lease modification was the contemplated end result of their relationship. This was so because the agreement involved in
the case was not to modify a property-related agreement; the lease holder was
not a party to the “I will help you get a modification†agreement. The case was based on the plaintiff’s agency
contract with the defendant; the lease was a side matter.
Adams’s current case is different because he alleged a direct oral agreement
with his lender, Chase. The original loan
agreement entered into between Chase and Adams had to be in writing and, thus,
so too did the alleged oral agreement concerning modification. This is so whether we view the alleged
agreement as an alleged direct agreement for a loan modification or an alleged
agreement to negotiate a modification. In
either event, the intended end result between the original contracting parties
was a modification or attempted modification of an agreement that had to be in
writing. Adams did not hire someone to assist him in obtaining a loan
modification, and is not suing that agent for failure to do his or her job, nor
is the agent suing to be paid for work performed. (See Shell,
supra, 162 Cal.App.3d 957.) To allow
a claim for breach of an oral “contract to negotiate†such as that which is
alleged in Adams’s current case, free from the statute of frauds, would allow a
breach of contract action to arise, free from the statute of frauds, in every
instance in which a borrower could not obtain a loan modification. We disagree that such a result should come to
pass from Copeland, supra, 96
Cal.App.4th 1251 and Shell, supra, 162
Cal.App.3d 957.
III. Prospective Economic Relations
Adams contends he alleged
sufficient facts to state a cause of action for negligent interference with
prospective economic relations. We
disagree.
To state a
cause of action for the tort of negligent
interference with prospective economic relations, a plaintiff must allege (1)
an economic relationship existed between the plaintiff and a third party with a
reasonably probable future economic benefit for the plaintiff; (2) the
defendant knew of the existence of the relationship and knew or should have known
that if the defendant did not act
with due care its actions would interfere with the relationship and cause
plaintiff to lose in whole or in part the reasonably probable future economic
benefit of the relationship; (3) the defendant was negligently interfered with
the relationship; and (4) the defendant’s negligence caused damage to plaintiff
in that the relationship was actually interfered with or disrupted and
plaintiff lost in whole or in part the economic benefits reasonably expected
from the relationship. (See
Court (1997) 59 Cal.App.4th 764, 786.)
Of course, the tort arises in the context of negligence, meaning it
arises only when the plaintiff pleads the defendant owed the plaintiff a duty
of care. (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 348.) The plaintiff also has the burden of pleading
the defendant’s interference was wrongful beyond the fact of the interference
itself. (See Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th
376, 393.) It is not enough merely to
allege an act that causes interference; plaintiff must allege the act was
wrongful, which, in Adams’s current case, means a negligent act.
The trial court correctly sustained
the defendants’ demurrer for several reasons.
First, Adams’s TAC did not allege that an identifiable economic
relationship existed between him and a third party with a reasonably probable
future economic benefit for Adams. His TAC merely alleges in
the baldest of conclusory language that he “enjoyed an economic, and
profitable, relationship with others that probably would have resulted in a
future economic benefit to him.†Basically,
he alleges his credit-worthiness was diminished. But he does not allege facts showing that any
actual credit relationship was adversely affected. In the absence of alleged facts as to a relationship
that suffered from some manner of interference, we affirm the trial court’s
ruling.
Second, as the trial court correctly
noted, Adams’ cause of action for negligent interference
with prospective economic relations
also fails because it is based upon his allegation that defendants engaged in negligent
conduct by failing and refusing to negotiate for a loan modification. That is, a reiteration of his alleged breach
of oral contract claim. Adams did not allege wrongful conduct “beyond the fact of the
interference itself†in that the alleged interference was the failure to make a
loan, which was the alleged wrongful conduct causing the interference. Adams’s TAC is as circular as it is conclusory. He does not allege facts showing a duty of
care was owed underlying the failure to negotiate.
Adams reliance on Wallis v.
Superior Court (1984) 160 Cal.App.3d 1109 (Wallis) for a different conclusion is not persuasive. Adams tells us in his opening brief on appeal
that Wallis supports the principle
that “where contract damages alone do not remedy the harm suffered, California
law will recognize a tort claim based upon a breach of contract.†We find Wallis
is completely out of place to the issue of pleading a cause of action for negligent
interference with prospective economic relations. Wallis
involved a non-competition agreement between employee and employer, and
retirement benefits. Even assuming
47 Cal.3d 654 [employee-employer relationships are not like
insurer-insured relationships]), the case supports the proposition that parties
in certain special contractual circumstances may allege a breach of the
covenant of good faith and fair dealing as a tort. Even if Wallis
said what Adams says it says –– that California law recognizes tort claims based on a breach of
contract –– a plaintiff does not allege a cause of action sounding in tort
merely by the alternative labeling of a breach of contract cause of action as a
tort cause of action. A plaintiff must still
allege a special relationship in order to be sufficient to state a tort cause
of action. Here, Adams has not done so; he merely re-pled his breach of contract with a
the new tort label of negligent interference with prospective economic
relations.
IV. The UCL
Adams contends he alleged
sufficient facts to state a cause of action for violation of the UCL. We disagree.
The UCL defines “unfair competition†as “any
unlawful, unfair or fraudulent business act or practice and unfair, deceptive,
untrue or misleading advertising.†(Bus.
& Prof. Code, § 17200.) In proscribing
“unlawful†business acts or practices, the UCL “borrowsâ€
actionable. (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.
(1999) 20 Cal.4th 163, 180.)
Adams does not allege any violation of any statutory law. We acknowledge that a business act or practice
may be independently actionable under the UCL apart from a statutory violation
in that “any . . . unfair or fraudulent business act or practiceâ€
may alternatively support relief under the UCL.
Here, Adams’s TAC alleges a breach of an oral
contract. Although a breach of contract
claim may form the predicate for a UCL claim, the breach must also constitute
an unfair or fraudulent practice.
(Arce v. Kaiser Foundation Health
Plan, Inc. (2010) 181 Cal.App.4th 471, 489-490.) Thus, our state’s courts have recognized that
the “‘systematic breach of certain types of contracts,’†for example, a
company’s breaches of standard consumer contracts, “‘can constitute an unfair
business practice under the UCL. [Citations.]’â€
(Ibid.) However, Adams’s
TAC does not allege facts showing acts or practices of such a nature. He has incorporated his alleged breach of
oral contract claim, and added a conclusory allegation, based on information
and belief, that “defendants engage in the same, or similar, unfair actions and
inactions, against members of the public similarly situated as plaintiff.†We find this insufficient.
V. Leave to Amend
Adams contends the trial court
abused its discretion in declining to grant him leave to file a fourth amended
complaint. We disagree.
The trial court’s decision denying leave to
amend upon sustaining a demurrer is reviewed for abuse of discretion. (Blank
v. Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff and appellant shows that he
or she can cure defects in a pleading by an amendment, the trial court has
abused its discretion, and an appellate court will reverse; if not, there
has been no abuse of discretion and the appellate court will affirm. (Ibid.) The burden of showing such reasonable probability
is squarely on the plaintiff and appellant.
(Ibid.)
In the trial
court, Adams did not proffer any proposed amended pleading in his
opposition to the demurrer to his TAC.
Instead, he stood pat on his arguments that he had sufficiently pleaded
all of his causes of action in his TAC. On appeal,
Adams argues “it would be reasonable to allow amendments†to cure any defects
in his TAC given that he had retained new counsel shortly before he filed his
opposition to the demurrer to his TAC, and his new counsel “was not involved
with any of the prior amendments.†Adams has not, however,
proffered on appeal any proposed amending language or an amended pleading.
Because Adams did not show in
the trial court, and has not shown on appeal, how he can cure his pleading by
amendment, he has not demonstrated an abuse of discretion. His assertion
in his opening brief on appeal that he “can amend his complaint to plead exceptions to the statute of frauds,
to more specifically identify the economic relations Defendants interfered
with, or to provide more detail concerning Defendants’ unfair business
practices†is not a sufficient substitute for showing –– by actually proffering
amended allegations –– how the defects in his operative complaint can be cured.
DISPOSITION
The
judgment is affirmed. Each party to bear
its own costs on appeal.
BIGELOW,
P. J.
We concur:
FLIER,
J.
GRIMES, J.
name="_ftn1" title="">
his original complaint, Adams
alleged he purchased the Malibu property in December 2006. We use this date. In subsequent pleadings, including his
operative TAC, and in his opening brief on appeal, the loan date is stated as December
2008, but this cannot be
correct. The record contains materials
showing that WaMu had become insolvent and had been taken over by the Federal Deposit Insurance Corporation (FDIC) before December
2008. WaMu could not have made a loan to
Adams
in December 2008. Also, copies of loan documents that Adams attached as exhibits to his original complaint show
that he obtained his loan in December 2006, as he alleged in his original
complaint.
name="_ftn2" title="">
who at Chase entered into the alleged oral contract with him and do not allege
facts showing the person’s authority to enter into such a contract. No specific dates are alleged as to when the
oral contract was made.
