Filed 11/15/13 Bare v. JPMorgan Chase CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                       (Tehama)
                                                            ----




JENNIFER BARE,                                                                               C068709

                   Plaintiff and Appellant,                                      (Super. Ct. No. NCI16175)

         v.

JPMORGAN CHASE BANK, N.A.,

                   Defendant and Respondent.




         Defendant JPMorgan Chase Bank, N.A. (Chase), repossessed a 2003 Chevrolet
Silverado that plaintiff Jennifer Bare purchased with Chase financing. Bare brought a
claim for breach of oral and written contract and fraud against Chase. The trial court
sustained Chase’s demurrer to Bare’s second amended complaint without leave to amend.
Bare, proceeding in pro. per., presents a barrage of challenges to the court’s decision. We
shall affirm the judgment.



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                  FACTUAL AND PROCEDURAL BACKGROUND
       Bare purchased a 2003 Chevrolet Silverado from a dealership in September 2008.
Chase provided the financing for the purchase. The transaction was governed by a
“Retail Installment Sale Contract” (contract).
       The contract provided for a sales price of $17,178.86, $12, 553.86 of which was to
be financed by a payment of $625.00 due on August 9, 2008, with 59 additional
payments of $345.96 due monthly thereafter. The contract bears Bare’s signature.
       The contract states Chase possesses a security interest in the Chevrolet, noting the
vehicle “secures payment of all you owe on this contract” and “also secures your other
agreements in this contract as the law allows.” In addition, the contract includes a section
on late payment and spells out the consequences for a late or missed payment. These
include late charges, an acceleration clause, and payment of collection costs.
       The contract also states that if a payment is late or missed, “We may take the
vehicle from you. If you default, we may take (repossess) the vehicle from you if we do
so peacefully and the law allows it . . . .” The contract defines “default” to include a late
payment. The borrower may recover the repossessed vehicle by paying all past-due
payments and any late charges.
       Finally, the contract contains a provision regarding changes in the terms of the
contract. The provision states: “How this contract can be changed. This contract
contains the entire agreement between you and us relating to this contract. Any change to
the contract must be in writing and both you and we must sign it. No oral changes are
binding.”
       Chase repossessed Bare’s vehicle in June 2010. In July 2010 Bare filed a
complaint against Chase for breach of contract stemming from Chase’s repossession of
the Chevrolet. Bare did not attach a written contract to the complaint and did not specify
the terms of the contract. Instead, Bare attached an “Affidavit of Jennifer Bare” detailing
her claims. Chase filed a demurrer to the complaint.

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       Prior to the scheduled hearing on the demurrer, Bare filed a first amended
complaint, alleging breach of both written and oral contract. Chase filed a demurrer to
the first amended complaint and a motion to strike.
       In December 2010 Bare filed a second amended complaint, without leave to
amend from the court, alleging breach of written and oral contract and fraud. Bare
attached a copy of the contract to the second amended complaint. Bare also attached
another “Affidavit of Jennifer Bare.” Bare’s second affidavit alleged numerous
conversations between Bare and Chase employees on the possibility of alternative
payment arrangements stemming from Bare’s inability to make her May 26, 2010,
payment under the contract.
       According to Bare, on May 28, 2010, she called Chase and told them her
unemployment check was going to be late, so the scheduled payment would not go
through. Bare states she spoke with a Chase employee and set up another payment
arrangement, by which Chase would take a payment electronically on June 4, 2010,
which was still within the 10-day grace period. Bare alleges she requested the payment
be taken out on June 4, although the employee wanted to set up the withdrawal for
June 3. According to Bare, “The payment hit my bank on June 3rd and it bounced, like I
knew it would, because it was supposed to be set-up for the 4th.” Bare identifies this as
breach of “verbal contract number 1.”
       The payment was not made on June 4, 2010, and on that day Bare alleges: “I
called the Sacramento Chase and spoke with Cherie, which is the vice president. She
stated that, ‘I need not to make a payment until the situation got handled’. I told her that
I needed to make a payment because I believed I was already behind (within the 10-day
grace period and did not want to ruin my good credit standing with Chase and my credit
history) and did not want it to be any later. She told me not to make a payment and that it
would not take her long until she gets the situation handled. By her telling me not to



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make a payment on my loan, she entrapped me. She knew by me not making my
payment would put me into default and this in turn would break my contract . . . .”
        Bare’s payment was due on May 26, 2010. Bare’s affidavit alleges that on
June 10, 2010: “Cherie called me and told me that she would credit me the $43 late fee
and the $15 bank fee and that I owed $691 and I needed to pay it on June 17, 2010. I said
ok without looking at the calendar but just wanted to get things going. I asked her if I
could pay one payment now and then another in a week because I get another check in a
week. She stated that I had to make the payment in full that partial payments would not
be accepted. I said ok then I will try to get it in the bank by the 17th. . . .”
        Finally, Bare’s affidavit alleges that on June 16, 2010: “I called and talked to the
call center and informed them that my check was going to be late and that I needed to be
granted one more week to come up with the $691 or asked if I could pay one month’s
payment and then pay the other month’s payment in a week. I was told that as long as I
make the payment in the branch by June 27th that I would be fine . . . .” Bare labels this
“verbal contract 2,” which Chase breached by repossessing the Chevrolet on June 24,
2010.
        The remainder of Bare’s affidavit describes the events following the repossession.
Bare states she had collected the funds the day of the repossession to “pay the entire
default amount.” The following day, June 25, 2010, Bare attempted to work with Chase
“on getting [her] vehicle up to date.”
        Bare concludes: “In closing, Chase broke laws to get ahead and breached
3 contracts; 2 verbal and 1 written. They committed fraud, entrapment and intentionally
inflicted emotional distress; [citation]; upon me and my family. I need justice in
resolving this matter.”
        At a December 2010 hearing on the demurrer to the first amended complaint,
Chase withdrew the demurrer to the first amended complaint and stipulated to the filing
of the second amended complaint. Chase filed a demurrer to the second amended

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complaint. Chase contended the second amended complaint failed to identify any
provisions in the contract that Chase was alleged to have breached. In addition, Chase
argued the contract contained unambiguous provisions that contradict Bare’s allegations.
       Bare filed an “Answer” to the demurrer but failed to include any points and
authorities addressing the legal issues raised in the demurrer. Instead, Bare attached a
“Declaration” alleging more facts to support her second amended complaint.
       Following oral argument, the trial court sustained Chase’s demurrer to the second
amended complaint without leave to amend as to both the contract and fraud causes of
action. The court found Bare failed to state facts sufficient to constitute a cause of action
for breach of written contract and noted Bare admitted in her pleadings that she had not
made her payments in a timely manner as required by the contract. As for the oral
contracts, the court found Bare did not allege that the oral contracts were reduced to
writing or otherwise executed by the parties. As to Bare’s fraud claim, the court stated
Bare could not plead justifiable reliance on the alleged oral representations because the
contract provides modifications must be in writing. Nor had Bare established the damage
element of her claim.
       Following entry of judgment, Bare filed a timely notice of appeal.
                                      DISCUSSION
                                              I.
       The function of a demurrer is to test the sufficiency of the complaint by raising
questions of law. We give the complaint a reasonable interpretation and read it as a
whole with its parts considered in their context. A general demurrer admits the truth of
all material factual allegations. We are not concerned with the plaintiff’s ability to prove
the allegations or with any possible difficulties in making such proof. We are not bound
by the construction placed by the trial court on the pleadings; instead, we make our own
independent judgment. (Herman v. Los Angeles County Metropolitan Transportation
Authority (1999) 71 Cal.App.4th 819, 824.)

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       When the trial court sustains the demurrer without leave to amend, we must decide
whether there is a reasonable possibility the plaintiff could cure the defect with an
amendment. If we find that an amendment could cure the defect, we must find the trial
court abused its discretion and reverse. If not, the court has not abused its discretion.
The plaintiff bears the burden of proving an amendment would cure the defect.
(Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.)
                                              II.
       Bare alleges Chase breached the contract in repossessing the Chevrolet. A cause
of action for breach of contract requires the plaintiff to plead a contract, the plaintiff’s
performance or excuse for failure to perform, the defendant’s breach, and the resulting
damage. (Hale v. Sharp Healthcare (2010) 183 Cal.App.4th 1373, 1387.)
       Nowhere in her pleadings does Bare identify the contract provision she alleges
Chase breached. Indeed, Bare acknowledges she failed to make the May 2010 payment
required under the contract. Moreover, the contract Bare entered into with Chase
unambiguously states Chase may repossess the vehicle if Bare fails to make a scheduled
payment. Bare offers no possible amendment that could cure these defects. Therefore,
the trial court correctly sustained Chase’s demurrer without leave to amend on the breach
of contract claim.
                                              III.
       Bare alleges two oral contracts: the first on May 28, 2010, when she contacted
Chase and set up a payment for June 4, 2010, and the second on June 16, 2010, when she
contacted Chase and set up a payment by June 27, 2010. Bare alleges Chase breached
these oral contracts when it repossessed the Chevrolet on June 24, 2010.
       The elements of a cause of action for oral contract are the same as those required
for breach of a written contract. (Careau & Co. v. Security Pacific Business Credit, Inc.
(1990) 222 Cal.App.3d 1371, 1388.) An oral contract that modifies a previous contract
must comply with Civil Code section 1698. Section 1698, states, in part: “(b) A contract

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in writing may be modified by an oral agreement to the extent that the oral agreement is
executed by the parties. [¶] (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. [¶] (d) Nothing in this section precludes in
an appropriate case the application of rules of law concerning estoppel, oral novation and
substitution of a new agreement, rescission of a written contract by an oral agreement,
waiver of a provision of a written contract, or oral independent collateral contracts.”
          The contract unambiguously states: “This contract contains the entire agreement
between you and us relating to this contract. Any change to the contract must be in
writing and both you and we must sign it. No oral changes are binding.”
          Bare does not allege the oral contracts were reduced to writing. Nor does Bare
allege any consideration exchanged for the alleged oral contract. A commitment to
perform a preexisting legal obligation cannot constitute the consideration needed to
support a binding contract. (Auerbach v. Great Western Bank (1999) 74 Cal.App.4th
1172, 1185 (Auerbach).) Bare provides no indication there exists a reasonable possibility
that these defects can be cured by amendment. Therefore, the trial court did not err in
sustaining Chase’s demurrer without leave to amend as to the oral contract causes of
action.
                                                IV.
          Bare also alleges Chase’s action in repossessing her vehicle constituted fraud. To
establish fraud, a plaintiff must show a misrepresentation (false representation,
concealment, or nondisclosure); knowledge of falsity; intent to defraud; justifiable
reliance; and resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004)
34 Cal.4th 979, 990.)
          Bare fails to plead any facts to support her justifiable reliance on the alleged
misrepresentations by Chase employees. Although the issue of justifiable reliance

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ordinarily presents a question of fact, there are cases in which it may be decided as a
matter of law. As noted, the contract unambiguously states “No oral changes are
binding.” Given the contract between the parties, which Bare signed, she could not
reasonably rely upon any subsequent alleged oral representations at odds with the written
contract. (Hackethal v. National Casualty Co. (1987) 189 Cal.App.3d 1102, 1111.)
         Nor does Bare plead facts to establish a claim of damages resulting from the
alleged fraud. As the trial court noted, Bare apparently alleges she was damaged by
having to pay for the vehicle as required under the contract. However, a borrower’s
continuing to make payments under a contract in reliance on the lender’s fraudulent
promise to negotiate in good faith to modify the loan does not constitute damages
necessary to support an action for fraud. (Auerbach, supra, 74 Cal.App.4th at pp. 1184-
1190.)
         Given these deficiencies and Bare’s failure to set forth any facts to remedy them,
the trial court correctly sustained Chase’s demurrer to the fraud cause of action without
leave to amend.1
                                       DISPOSITION
         The judgment is affirmed. Chase shall recover costs on appeal.


                                                              RAYE               , P. J.
We concur:


           HULL               , J.

           MAURO              , J.




1 Although Bare briefly mentions entrapment and intentional infliction of emotional
distress in her affidavit, she provides no further facts to establish either cause of action.

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