Filed 2/10/14 Mosley v. Premier Credit Union CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE


EDGAR MOSLEY,                                                       B248780

         Plaintiff and Appellant,                                   (Los Angeles County
                                                                    Super. Ct. No. MC022615)
         v.

PREMIER AMERICA CREDIT UNION,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of Los Angeles County,
Randolph A. Rogers, Judge. Affirmed.
         Edgar Mosley in pro. per. for Plaintiff and Appellant.
         Anderson, McPharlin & Conners, Eric A. Schneider and Leila M. Rossetti for
Defendant and Respondent.
       Plaintiff Edgar Mosley appeals the judgment entered following the trial court’s
grant of a motion for summary judgment in favor of defendant Premier America Credit
Union (“Premier”). Finding no error, we affirm the judgment.


                       FACTUAL AND PROCEDURAL SUMMARY
       According to his complaint, Mosley purchased a motor vehicle pursuant to a
Retail Installment Contract (the “Sales Contract”) which was thereafter assigned to
Premier. The contract provided for 83 monthly payments of $621.15 each, due on the
14th day of the month. Payments which were more than ten days late were subject to a
5% late fee. The final payment was due on May 14, 2011. After making all the
payments required under the Sales Contract, Mosley demanded that Premier transfer title
to him. Premier refused to do so, maintaining that additional sums were due pursuant
under the Sales Contract.
       On June 1, 2011, acting in propria persona, Mosley filed suit against Premier,
alleging causes of action for breach of contract, fraud, and violations of the Rees-
Levering Automobile Sales and Finance Act, Civil Code section 2981 et seq. (“Rees-
Levering”). Mosley acknowledged in his complaint that he made three late payments, for
which he paid late fees of $94.1 He stated, however, that after the second late charge was
incurred, Premier began deducting $31 (the 5% late charge) from his payments of
$621.15, resulting in underpayments to his account thereafter. He further alleged that
Premier applied finance charges of 8% to the unpaid balance, and that he was thus
charged 13% for late fees in violation of Rees-Levering. Mosley requested $10,000 in
damages for emotional distress, $50,000 in punitive damages, and other relief deemed
proper by the court.
       Premier demurred to the complaint, contending it was ambiguous and
unintelligible, and that it failed to state facts sufficient to constitution a cause of action for
breach of contract or fraud. Specifically, Premier complained that the terms of the

       1
        In an amended complaint, it was apparent that Mosley did not pay the late fees as
they accrued, but at the end of the contract term.
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contract which Mosley claimed were breached were not set forth in the complaint, nor
was a copy of the contract attached thereto; that Mosley identified no contract damages
but improperly sought emotional distress and punitive damages for breach of contract;
and that the complaint failed to plead a cause of action for fraud with sufficient
particularity. The trial court sustained the demurrer with leave to amend.
       On September 19, 2011, Mosley filed a first amended complaint, which in
addition to amending his causes of action for breach of contract, fraud and violations of
Rees-Levering, added claims under the Unfair Competition Law, Business and
Professions Code section 17200 et seq. (“UCL”).
       Premier demurred to the first amended complaint on the grounds of uncertainty,
failure to state a cause of action, and on the basis that the court had not authorized
Mosley to add any new causes of action. The court sustained the demurrer with leave to
amend as to two causes of action: breach of the covenant of good faith and fair dealing,
and breach of the unfairness prong of the UCL. The remaining causes of action,
including common law fraud, were sustained without leave to amend. In a subsequent
order, the trial court permitted Mosley to amend his pleading to “also allege the unlawful
prong of Business and Profession[s] Code [section] 17200.”
       On February 17, 2012, Mosley filed his second amended complaint, alleging five
causes of action. Among these causes of action were breach of fiduciary duty and
negligence, claims he had not previously made and for which he did not seek the court’s
permission to include in his amended complaint. Another new cause of action was titled
“Deceit upon the Public,” by which Mosley alleged that Premier purported “to have the
legal authority to increase fees on Plaintiff’s contract when in truth the Defendant sought
to serve only [its] own personal pecuniary interest.” Mosley sought damages of $200,000
for breach of fiduciary duty, $100,000 for breach of the implied covenant of good faith
and fair dealing, and $6,000 per day “for each violation of Business and Professions Code
section 17207” for a total amount of not less than $100,000. The cited Business Code
section provides a civil penalty for the intentional violation of an injunction prohibiting


                                              3
unfair competition. The complaint alleged neither the existence of, nor Premier’s
violation of, such an injunction.
       Premier demurred to the causes of action for breach of fiduciary duty, violation of
Rees-Levering, deceit upon the public, and negligence, based upon the failure to state
facts sufficient to constitute a cause of action, and on the fact that the court did not
authorize Mosley to include these causes of action in his amended pleading. At a May 3,
2012 hearing on the matter, the court sustained without leave to amend the four causes of
action to which Premier demurred.2 A court trial was set for February 8, 2013 as to the
two remaining causes of action, for violation of the UCL and breach of the implied
covenant of good faith and fair dealing.
       On May 11, 2012, pursuant to Code of Civil Procedure section 1008,
subdivision (a), Mosley sought reconsideration of the grant of Premier’s demurrer to the
second amended complaint. The trial court denied reconsideration, finding that Mosley
failed to provide any new or different facts, circumstances or law, but simply argued that
the court did not properly consider his evidence and misapplied the law.
       On July 20, 2012, Mosley filed a notice of appeal purporting to appeal the trial
court’s grant of Premier’s demurrer to the second amended complaint.
       On October 9, 2012, Mosley filed a peremptory challenge pursuant to Code of
Civil Procedure section 170.6, which the trial court denied as untimely.
       On November 13, 2012, Premier filed a motion for judgment on the pleadings,
contending that Mosley’s cause of action for breach of the implied covenant of good faith
and fair dealing was defective, because the complaint did not allege a breach of contract,
a necessary element of a cause of action for breach of the implied covenant. Mosley did
not respond to Premier’s motion, but requested that it be taken off calendar due to the
trial court’s lack of jurisdiction as a result of his appeal of the court’s earlier ruling on



       2
         Premier also moved to strike portions of the second amended complaint. The
trial court denied the motion.

                                               4
demurrer. The court granted the unopposed motion for judgment on the pleadings, with
leave to amend. Mosley did not amend his complaint.
        On December 17, 2012, this court dismissed Mosley’s appeal, ruling that we had
no jurisdiction to hear the appeal since a cause of action remained to be tried.
        On January 30, 2013, Premier filed a motion for summary judgment. Submitted
with the motion was the declaration of a Premier Loan Recovery Officer, who declared
that in December 2012, Premier issued a check to Mosley in the amount of $900,
representing the sum of all late fees ever charged to his account, plus interest, and the
difference between the amount of finance charges applied to Mosley’s account and the
amount of finance charges provided for in the Sales Contract ($84.15), plus interest. The
loan officer also confirmed that title to the vehicle was released to Mosley in October of
2012.
        In its summary judgment motion, Premier argued that, under his remaining cause
of action for violation of the UCL, Mosley’s only remedies were an injunction and
restitution: “While any member of the public can bring suit under the act to enjoin a
business from engaging in unfair competition, it is well established that individuals may
not recover damages.” (Korea Supply Company v. Lockheed Martin Corp. (2003) 29
Cal.4th 1134, 1150.) Premier maintained that Mosley did not seek an injunction, and that
any amounts “which could possibly be returned to the plaintiff via restitution have
already been restored” to him.
        Mosley did not oppose the motion for summary judgment. The court granted the
motion and entered judgment in Premier’s favor.
        Mosley timely filed a notice of appeal.


                                      CONTENTIONS
        On appeal, Mosley challenges the trial court’s rulings on Premier’s demurrers to
the first and second amended complaints and the denial of his section §170.6 peremptory
challenge. He also maintains that the trial court had no jurisdiction to grant Premier's
motions for judgment on the pleadings and summary judgment, since Mosley had filed a
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notice of appeal of the court’s ruling on Premier’s demurrer to the second amended
complaint.3 We consider each contention below.


       1. The demurrer to the first amended complaint
       “When reviewing a judgment dismissing a complaint after the granting of a
demurrer without leave to amend, courts must assume the truth of the complaint's
properly pleaded or implied factual allegations. (Blank v. Kirwan (1985) 39 Cal.3d 311,
318.) Courts must also consider judicially noticed matters. (Ibid.) In addition, we give
the complaint a reasonable interpretation, and read it in context. (Ibid.) If the trial court
has sustained the demurer, we determine whether the complaint states facts sufficient to
state a cause of action. If the court sustained the demurrer without leave to amend, as
here, we must decide whether there is a reasonable possibility the plaintiff could cure the
defect with an amendment. (Ibid.) If we find that an amendment could cure the defect,
we conclude that the trial court abused its discretion and we reverse; if not, no abuse of
discretion has occurred. (Ibid.) The plaintiff has the burden of proving that an
amendment would cure the defect. (Ibid.)” (Schifando v. City of Los Angeles (2003) 31
Cal.4th 1074, 1081.)
       In his first amended complaint, Mosley alleged that Premier violated various
provisions of Rees-Levering by, for instance, collecting late fees of more than 5% of the
overdue payments. Mosley argued that Premier’s purported violations of Rees-Levering
constituted fraud. The trial court agreed with Premier that Mosley’s fraud allegations
were not pled with sufficient particularity, and so sustained Premier’s demurrer without
leave to amend those allegations.


       3
        Mosley does not challenge the rulings on Premier’s motions for judgment on the
pleadings and summary judgment, but limits his contentions to the trial court court’s lack
of jurisdiction on account of his pending intermediate appeal and, in the case of the
summary judgment order, his filing of a peremptory challenge. Thus, Mosley waived any
substantive challenges to the court’s rulings on Premier’s motions for judgment on the
pleadings and summary judgment. (Kelly v. CB & I Constructors, Inc. (2009) 179
Cal.App.4th 442, 451-452; Behr v. Redmond (2011) 193 Cal.App.4th 517, 538.)
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        “‘Fraud is an intentional tort, the elements of which are (1) misrepresentation; (2)
knowledge of falsity; (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance;
and (5) resulting damage. [Citation.]’ (Cicone v. URS Corp. (1986) 183 Cal.App.3d
194.)” (Intrieri v. Superior Court (2004) 117 Cal.App.4th 72, 85-86.) “‘Fraud actions
. . . are subject to strict requirements of particularity in pleading. . . . The effect of this
rule is twofold: (a) General pleading of the legal conclusion of “fraud” is insufficient; the
facts constituting the fraud must be alleged. (b) Every element of the cause of action for
fraud must be alleged in the proper manner (i.e., factually and specifically), and the
policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain
a pleading defective in any material respect.’ (3 Witkin, Cal. Procedure (2d ed. 1971)
Pleading, § 574; [Citations.]” (Committee On Children's Television, Inc. v. General
Foods Corp. (1983) 35 Cal.3d 197, 216.)
        The first amended complaint fails to state a cause of action for fraud. Mosley
simply asserts that Premier’s violation of certain requirements of Rees-Levering
constitutes fraud. He makes no attempt to set forth the elements of the cause of action.
Indeed, we fail to see how he could allege justifiable reliance on Premier’s supposed
fraud in charging impermissible late fees, since he immediately challenged those very
fees.
        The first amended complaint also failed to state a cause of action based upon
violations of Rees-Levering. That statute regulates finance charges, while Mosley’s
complaint was that Premier improperly assessed late fees. Moreover, the very practice
which Mosley was challenging – Premier’s application of monthly payments first to
outstanding late fees, which resulted in subsequent delinquencies – does not violate Civil
Code section 2982, subdivision (k)’s prohibition on charging more than one late fee per
delinquent installment. (Davis v. Ford Motor Credit Co. (2009) 179 Cal.App.4th 581,
590-591.)
        In sum, after granting Mosley leave to amend his causes of action for breach of the
implied covenant of good faith and fair dealing and violations of the UCL, the trial court


                                                7
properly sustained without leave to amend the remaining causes of action in Mosley’s
first amended complaint.


       2. The demurrer to the second amended complaint
       As noted, Mosley was authorized by the court to amend his pleading to state
causes of action for breach of the covenant of good faith and fair dealing and violations
of the UCL. In his second amended complaint, Mosley included causes of action for
breach of fiduciary duty, violations of Rees-Levering, deceit upon the public, and
negligence. Premier’s demurrer to the amended was addressed solely to these causes of
action which were not authorized by the trial court’s ruling on the earlier demurrer.
       Mosley maintains that the trial court erred in sustaining this demurrer, because the
additional causes of action alleged were not in fact new causes of action, but simply
remedies under the two causes of action for which the court granted leave to amend.
However, Mosley cites no authority for his novel theory, and we know of none. The
argument is thus unavailing.


       3. The order denying Mosley’s peremptory challenge
       Appellant contends that the trial judge erroneously denied his Code of Civil
Procedure section 170.6 challenge. We do not agree.
       Code of Civil Procedure section 170.6 provides a procedure for disqualifying a
bench officer who is prejudiced against a party or the interest of a party in the action or
proceeding. A party who wishes to establish such prejudice must move for relief within a
specified period of time. “If directed to the trial of a civil cause that has been assigned to
a judge for all purposes, the motion shall be made to the assigned judge or the presiding
judge by a party within 15 days after notice of the all purpose assignment, or if the party
has not yet appeared in the action, within 15 days after the appearance.” (Code Civ.
Proc., § 170.6, subd. (a)(2).)
       Here, notice of the assignment of the trial judge was filed on June 1, 2011.
Mosley filed his peremptory challenge on October 9, 2012, over 15 months after he had

                                              8
notice of the all purpose judicial assignment. Thus the trial court properly rejected
Mosley’s peremptory challenge as untimely.


       4. The court’s jurisdiction to hear Premier’s motions for judgment on the
          pleadings and summary judgment during the pendency of Mosley’s interim
          appeal
       On July 20, 2012, Mosley filed a notice of appeal purporting to appeal the trial
court’s order sustaining without leave to amend Premier’s demurrer to certain causes of
action of the second amended complaint, as well as the denial of his Code of Civil
Procedure section 1008, subdivision (a) motion for reconsideration of that ruling. Code
of Civil Procedure section 916, subdivision (a) provides in relevant part that “the
perfecting of an appeal stays proceedings in the trial court upon the judgment or order
appealed from or upon the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may proceed upon any other
matter embraced in the action and not affected by the judgment or order.” Citing this
statute, Mosley contends that the trial court lacked subject matter jurisdiction to rule on
Premier’s motions for judgment on the pleadings and summary judgment.
       On December 17, 2012, this court dismissed Mosley’s appeal for lack of
jurisdiction. In our dismissal order we stated: “Plaintiff, Edgar Mosley, purports to
appeal from an order sustaining a demurrer without leave to amend as to all but one cause
of action in the second amended complaint. The clerk’s transcript reveals a cause of
action remains. The superior court docket indicates there is a hearing scheduled for
December 18, 2012 and a trial date. We asked the parties to brief the issue of our
jurisdiction. . . . Since a single cause of action remains pending between the parties, the
challenged order is not appealable. (Greenfield v. Mather (1939) 14 Cal.2d 228, 233; De
Grandchamp v. Texaco (1979) 100 Cal.App.3d 424, 435. . . .)” The existence of an
appealable judgment is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle
(1994) 8 Cal.4th 121, 126.) Because the order sustaining Premier’s demurrer was not
appealable, this court had no jurisdiction to review it.

                                              9
       “The purpose of the automatic stay provision of section 916, subdivision (a) ‘is to
protect the appellate court's jurisdiction by preserving the status quo until the appeal is
decided. The [automatic stay] prevents the trial court from rendering an appeal futile by
altering the appealed judgment or order by conducting other proceedings that may affect
it.’ (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.)” (Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 189.) Where, as here, the appellate court has no
jurisdiction, there is no need to protect this court’s jurisdiction by preserving the status
quo until the appeal is decided. Indeed, the appeal is rendered futile not by the trial
court’s actions, but by the appellant’s conduct in appealing a nonappealable order.
Consequently, the trial court did not lose jurisdiction upon Mosley’s filing of the July 20,
2012 notice of appeal.


                                        DISPOSITION

       The judgment is affirmed. Respondent is awarded its costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                    MINK, J.*


We concur:



       MOSK, ACTING P. J.



       KRIEGLER, J.




       *
        Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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