Kuehnel v. PHH Mortgage
This case comes to us from a demurrer to a second amended complaint, sustained without leave to amend.[1] Demurrers favor the complainaint. All facts stated in the complaint must be assumed true, even if those facts are counterintuitive. Moreover the plaintiff receives the benefit of all reasonable inferences from those facts. (E.g., Mosby v. Liberty Mutual Ins. Co. (2003) 110 Cal.App.4th 995, 999.) There is indeed much in the second amended complaint in this case which is both counterintuitive and, as the trial judge correctly noted, vague. There are obvious gaps and unanswered questions. It is as if the second amended complaint had come into the court like Richard III, unfinished, sent before its time, and scarce half made up.
Be that as it may, the defendant mortgage company did not engage in what a leading treatise on civil procedure notes to be the dubious effort of forcing the plaintiff borrower to answer the unanswered questions by a series of demurrers for uncertainty.[2] Rather, the mortgage company went for a quick coup de grace, a demurrer based on the theory the forbearance agreement signed by the borrower unambiguously provided for a payment of $12,685.89 on November 1, 2009, and the borrower had failed to allege she made that payment.
We reverse for two reasons. First, the text of the forbearance agreement did not unambiguously provide for payment of $12,685.89 on November 1, 2009. When scrutinized, the text of the agreement is larded with ambiguity. (The trial judge, more charitable than we, simply observed it was “hardly a model of clarity.â€) As we show below, the text was reasonably susceptible of the interpretation the payment might have been spread out “over time.†Second, the reasonableness of the possibility of the payment being spread out over time is corroborated by the factual allegations of the second amended complaint, which alleges that prior to November 1, 2009, the mortgage company sent the borrower a payment coupon book, including payments to begin on the very date of the ostensible $12,685.89 payment. That action – at least on the limited facts before us – could readily lead a reasonable borrower to conclude the coupons reflected that the $12,685.89 – otherwise due on November 1, 2009 – might be spread out over time. Thus, the demurrer was not well taken.
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