Filed 3/15/16 Badiei v. J.P. Morgan Chase Bank CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



KEVIN BADIEI,                                                       D068518

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2014-00040779-
                                                                    CU-OR-CTL)
J.P. MORGAN CHASE BANK, N.A.,

         Defendant and Respondent.


         APPEAL from a judgment of the Superior Court of San Diego County, Timothy

B. Taylor, Judge. Affirmed.

         Kevin Badiei, in propria persona, for Plaintiff and Appellant.

         Keesal, Young & Logan, David D. Piper and Kendra S. Canape for Defendant and

Respondent.



         Kevin Badiei appeals a judgment entered after the trial court sustained J.P.

Morgan Chase's (Chase) demurrer without leave to amend. Badiei's complaint asked the

court to "render a recordable judgment against JP Morgan Chase about the accounting
and loan balances and monthly payments" of two properties subject to Chase mortgages.

Chase demurred, asserting the complaint's request failed because Badiei had not alleged

any actionable controversy or that he was owed a balance. Badiei, appearing in propria

persona, contends he should have been permitted to amend his complaint. We affirm the

judgment.

                                    BACKGROUND

       The two properties at issue are located in San Diego County at 5957 Avenida

Chamnez (Avenida Property) and 7235 Calabria Court (Calabria Property).

A. Avenida Property

       Badiei obtained title to the Avenida Property in 2000. Several years later he

obtained a loan of $1,000,000 from Washington Mutual Bank, FA (Washington Mutual)

secured by a deed of trust on the property. On December 31, 2014, a Corporate

Assignment of Deed of Trust was recorded against the property indicating that all

beneficial interest in the loan was transferred by the Federal Deposit Insurance

Corporation as receiver for Washington Mutual to JP Morgan Chase Bank, National

Association.

       On July 24, 2013, Badiei signed a Loan Modification Agreement providing Chase

would suspend any foreclosure activity and that the new principal balance of the loan was

$1,239,470.95. The agreement also provided that $214,600 of the balance would be

deferred and would not bear interest. The agreement required Badiei to make monthly

payments beginning on August 1, 2013, and set the payment amount and interest rate



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(increasing from 2% to 5.5% over time). The agreement also required the payment of the

deferred balance on the loan's maturity date.

       Badiei's complaint attached three mortgage statements for the Avenida Property.

The statement dated December 23, 2013, includes a "Deferred Interest Balance" of

$170,432.57 that is not reflected on the November 22, 2013, statement. The statement

dated July 1, 2014, shows a "Deferred Interest Balance" of $160,529.61. Badiei asserts

the "Deferred Interest Balance" is a "phantom loan" and that the mortgage statements

show approximately $1,500 per month was applied to this "phantom loan."

B. Calabria Property

       In 2007 Badiei obtained title to the Calabria Property and a loan of $389,600 from

Washington Mutual secured by a deed of trust on the property. On July 18, 2013, Chase

sent a letter to Badiei stating that under the terms of his adjustable rate mortgage, an

adjustment was made to the payment due on September 1, 2013. The letter also stated

the new payment "is based on a rate of 4.45100%," a remaining term of 408 months and a

"projected unpaid principal balance" of $412,710.99.

       Thereafter, Badiei signed a Loan Modification Agreement for the property,

effective September 1, 2013, which provided Chase would suspend foreclosure

proceedings and the new principal balance of the loan was $502,941.84. The agreement

also stated $180,000 of the balance would be deferred. The agreement set the rate of

interest on the nondeferred portion of the balance at 4.625% and monthly payments at

$1,570.28.    A letter dated August 4, 2014, from Chase to Badiei provided Chase was

reducing the principal balance on the mortgage for the Calabria Property by $45,491.71

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"because of a recent mortgage settlement between [Chase] and federal and state

agencies." The letter stated the loan's current principal balance of $498,691.71 was

adjusted to $453,200.

C. Procedural History

       On December 2, 2014, Badiei filed a complaint against Chase requesting that the

court "render a recordable judgment against [Chase] about the accounting and loan

balances and monthly payments of the" two properties. The complaint contained no

factual allegations of wrongdoing by Chase or of any specific dispute between Badiei and

Chase. Badiei attached to the complaint both loan modification agreements; the August

4, 2014 letter from Chase indicating the reduction of the Calabria Property loan balance;

the July 18, 2013 letter from Chase notifying Badiei of an adjustment to the interest rate

and payment amount; a statement for the Calabria Property dated September 4, 2013; and

statements for the Avenida Property dated November 22, 2013, December 23, 2013, and

July 1, 2014. On February 5, 2015, Badiei filed an amended complaint changing "the

classification from 'limited' to 'Unlimited.' "

       Chase demurred and also sought judicial notice of documents recorded with the

San Diego County Recorder's Office related to both properties. In its demurrer, Chase

contended the complaint was devoid of any factual detail and that Badiei had failed to

assert any ascertainable legal claim to support either an accounting or declaratory relief.

Chase asserted Badiei was seeking, "in essence, either an accounting or a declaration of

his rights and duties with respect to the two Loans at issue." Chase argued that the relief



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Badiei sought was derivative only and not available absent an independently viable legal

claim.

         In response to the demurrer, Badiei argued he could amend the complaint to allege

breach of contract claims with respect to both mortgages. With respect to the Avenida

Property, Badiei asserted that instead of applying his monthly mortgage payments to

reduce the principal and interest of the loan, Chase "created a Phantom loan of

$169,025.92 . . . , to which Chase applies Plaintiff's monthly principal and interest

payments." Badiei also stated that Chase "created a false loan balance of $1,239,470 that

is based on the fraudulent indices of Washington Mutual . . . , which has been declared

illegal." Likewise, with respect to the Calabria Property, Badiei asserted that the

principal balance of the mortgage set forth in the Loan Modification Agreement of

$502,941 is "based on the fraudulent indices of Washington Mutual . . . , which has been

declared illegal." He also claimed the balance was incorrect because Chase's July 18,

2013 letter indicated the balance of the loan was only $412,710.99. Badiei further

asserted Chase breached its contract with Badiei because "Chase's monthly mortgage

payment demand of $1,924.65 is excessive . . . ."

         Without any supporting factual allegations, Badiei also argued he would amend

the complaint to include claims for intentional misrepresentation, negligent

misrepresentation, fraudulent concealment, and violations of Civil Code sections 1572,

1709 and 1710. He repeated his request for an accounting and asserted that prior to filing

the complaint he asked Chase for an accounting but that his request was ignored. In

support of this assertion, Badiei submitted an e-mail chain between himself and Chase's

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attorney. The e-mails show Badiei provided the complaint to Chase before September

and that Chase's attorney indicated on December 10, 2014, that she believed she had

resolved Badiei's concerns and would call him in the next few days to discuss the

resolution.

       The trial court granted Chase's request for judicial notice and sustained the

demurrer without leave to amend. The court concluded the complaint failed to plead any

facts to support a claim for relief, and specifically did not allege any actual controversy

between the parties regarding the balances on the two loans or allege Chase owed money

to Badiei. "Rather, [the complaint] evidently seeks a declaration as to the amount of

money that plaintiff owes [Chase]." Recognizing it is "ordinarily an abuse of discretion

to deny" a request for leave "unless the inability to state a valid cause of action is clear,"

the trial court concluded leave to amend was properly denied because Badiei failed to

meet his "burden to show in what manner he [could] amend the [complaint] and how the

amendment [would] change the legal effect of the pleading."

                                        DISCUSSION

       Badiei's briefing in this court is difficult to understand and includes long passages

of irrelevant commentary on corporate and government wrongdoing in the recent

financial crisis. Badiei appears to contend that the trial court erred by denying him leave

to amend his complaint because he provided "evidence that the loan balances . . . are false

and in breach of the loan agreement . . . ." He asserts "using crooked account practices

and illegal loan indices, in breach of its loan agreement and deed of trust, Chase falsely

created a loan balance of $502,941" on the Calabria Property. He contends "[b]y

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Chase[']s own admission the loan balance should have been $412,701 and in breach of

the mortgage agreement Chase is collecting monthly mortgage payments that are based

on a $502,941 loan." Similarly, Badiei asserts Chase used "crooked accounting

practices" and "crooked indices" to increase the Avenida Property loan balance from

$1,000,000 to $1,402,594.66.

                                               I

        We note at the outset that we address only those arguments that we can

reasonably discern from Badiei's briefing and that are supported by identifiable argument.

" 'Appellate briefs must provide argument and legal authority for the positions taken.

"When an appellant fails to raise a point, or asserts it but fails to support it with reasoned

argument and citations to authority, we treat the point as waived." ' [Citation.] 'We are

not bound to develop appellants' arguments for them. [Citation.] The absence of cogent

legal argument or citation to authority allows this court to treat the contention as

waived.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.)

These standards are unchanged where an appellant appears in propria persona. "[S]uch a

party is to be treated like any other party and is entitled to the same, but no greater

consideration than other litigants and attorneys." (Barton v. New United Motor

Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210; see also Rappleyea v. Campbell

(1994) 8 Cal.4th 975, 984-985.)

       This court applies the following well-established law in reviewing a trial court's

order sustaining a demurrer without leave to amend: " 'We treat the demurrer as

admitting all material facts properly pleaded, but not contentions, deductions or

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conclusions of fact or law. [Citation.] We also consider matters which may be judicially

noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it

as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we

determine whether the complaint states facts sufficient to constitute a cause of action.

[Citation.] And when it is sustained without leave to amend, we decide whether there is a

reasonable possibility that the defect can be cured by amendment: if it can be, the trial

court has abused its discretion and we reverse; if not, there has been no abuse of

discretion and we affirm. [Citations.] The burden of proving such reasonable possibility

is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A plaintiff

must show "in what manner he can amend his complaint and how that amendment will

change the legal effect of his pleading." (Goodman v. Kennedy (1976) 18 Cal.3d 335,

349.)

                                              II

        Badiei contends the court erred by denying his request to amend the complaint to

add claims for breach of contract, intentional and negligent misrepresentation, fraudulent

concealment and violations of Civil Code sections 1572, 1709 and 1710.1 To state a

claim for breach of contract, a plaintiff must allege "(1) the existence of the contract, (2)

plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the

resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51



1      Badiei's briefing does not assert the court erred by sustaining Chase's demurrer to
his request that the court "render a recordable judgment against JP Morgan Chase about
the accounting and loan balances and monthly payments of" each loan.
                                              8
Cal.4th 811, 821.) Badiei's has not provided any factual allegations as to how Chase

breached the loan modification agreement for either property.

       With respect to the Calabria Property loan, Badiei states only that the loan balance

is too high. He does not provide any factual allegations as to what agreement Chase

breached or why the higher amount constitutes a breach. (See Cooper v. Leslie Salt Co.

(1969) 70 Cal.2d 627, 636-637 [Affirming denial of leave to amend where plaintiff

"insinuates multiple wrongs by respondents, [but] he never points out in what manner

those insinuations could be combined to state a cause of action"].) Likewise, with respect

to the Avenida Property, Badiei asserts that Chase increased the loan balance and that the

line item labeled "deferred interest balance" on his monthly statements is a "phantom

loan," but he does not assert any factual allegation as to how this constituted a breach of

the loan modification agreement by Chase.

       Badiei's claims for intentional and negligent misrepresentation, fraudulent

concealment and violations of Civil Code sections 1572, 1709 and 17102 fair no better.

" ' "The elements of fraud, which gives rise to the tort action for deceit, are (a)

misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of

falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance;

and (e) resulting damage." ' " (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167,



2      Civil Code section 1572 defines what constitutes "actual fraud" in the making of a
contract. Section 1709 states: "One who willfully deceives another with intent to induce
him to alter his position to his injury or risk, is liable for any damage which he thereby
suffers." (Civ. Code, § 1709.) Section 1710 defines what constitutes deceit within the
meaning of section 1709.
                                                 9
173.) "These elements may not be pleaded in a general or conclusory fashion. [Citation.]

Fraud must be pled specifically—that is, a plaintiff must plead facts that show with

particularity the elements of the cause of action." (Glaski v. Bank of America, National

Association (2013) 218 Cal.App.4th 1079, 1090.)

       "The tort of negligent misrepresentation does not require scienter or intent to

defraud. [Citation.] It encompasses '[t]he assertion, as a fact, of that which is not true, by

one who has no reasonable ground for believing it to be true' [citation], and '[t]he positive

assertion, in a manner not warranted by the information of the person making it, of that

which is not true, though he believes it to be true' . . . ." (Small v. Fritz Companies, Inc,

supra, 30 Cal.4th at pp. 173-174.) In both causes of action, the plaintiff must plead

actual reliance on the misrepresentation. (Cadlo v. Owens-Illinois, Inc. (2004) 125

Cal.App.4th 513, 519.)

       Badiei has not asserted any factual allegations of a fraud by Chase or that support

the Civil Code violations he contends he should have been permitted to add. Badiei

states only that there are inconsistencies in the various documents he attached to the

complaint and that these inconsistencies are "prima facie evidence . . . of . . . crooked

accounting practices" that should be considered fraudulent. These vague assertions are

not sufficient to show how Badiei would amend his complaint to assert an actionable

claim. (See Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024,

1031 ["plaintiff has the burden of showing that the facts pleaded are sufficient to

establish every element of the cause of action"].)



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       Because Badiei has not shown a reasonable possibility that he can allege facts

sufficient to state a claim for breach of contract or fraud, he has not established that it was

an abuse of discretion to deny leave to amend.

                                       DISPOSITION

       The judgment is affirmed. Respondent shall recover costs on appeal.



                                                                                    IRION, J.

WE CONCUR:



          HUFFMAN, Acting P. J.



                    O'ROURKE, J.




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