Filed 12/13/13 Rubio v. JPMorgan Chase Bank CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE


MARIA T. RUBIO,                                                         B243639

         Plaintiff and Appellant,                                       (Los Angeles County
                                                                        Super. Ct. No. PC050207)
         v.

JPMORGAN CHASE BANK, N.A., etc.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Stephen Pfahler, Judge. Affirmed.


         Law Office of Louisa Moritz and Louisa Moritz for Plaintiff and Appellant.


         AlvaradoSmith, John M. Sorich, S. Christopher Yoo and Taline M. Gulesserian
for Defendant and Respondent.


                                            _____________________
                                   INTRODUCTION
       Plaintiff and appellant Maria T. Rubio appeals a judgment of dismissal entered
after the superior court sustained the general demurrer of defendant and respondent
JPMorgan Chase Bank, N.A. (Chase) to Rubio’s operative second amended complaint
(complaint) without leave to amend. The complaint purports to set forth negligent
misrepresentation and promissory estoppel causes of action based on Chase’s alleged
wrongful nonjudicial foreclosure of Rubio’s real property in Sylmar. We conclude the
superior court correctly sustained the demurrer and that Rubio did not meet her burden of
showing there is a reasonable possibility that the defects in the complaint can be cured by
amendment. Accordingly, we affirm the judgment.
                       RUBIO’S FACTUAL ALLEGATIONS1
       In June 2006, Rubio and her husband Fernando Gamez Meza obtained a $560,000
loan from Washington Mutual Bank, FA (WaMu). As collateral for the loan, they
offered their Sylmar property. Rubio and Meza executed a promissory note and a deed of
trust. The trustee of the deed of trust was California Reconveyance Company.
       Rubio contends that Chase became WaMu’s successor in interest.2 According to
Chase, WaMu was placed into receivership by the Office of Thrift Supervision. Chase
further contends it purchased WaMu’s interests in the promissory note and deed of trust

1
        We assume the factual allegations in the complaint are true. Additionally,
pursuant to Evidence Code sections 452 and 459 and Code of Civil Procedure section
430.30, subdivision (a), we take judicial notice of facts contained in the documents
attached to Chase’s request for judicial notice in support of its demurrer. These
documents pertain to Rubio’s property and were recorded in the Los Angeles County
Recorder’s Office. We may take judicial notice of “the fact of a document’s recordation,
the date the document was recorded and executed, the parties to the transaction reflected
in a recorded document, and the document’s legally operative language, assuming there is
no genuine dispute regarding the document’s authenticity.” (Fontenot v. Wells Fargo
Bank, N.A. (2011) 198 Cal.App.4th 256, 265.) Rubio does not dispute the authenticity of
the documents attached to Chase’s request for judicial notice.
2
       The complaint alleges that “Chase Home Finance, LLC” was the successor to
WaMu. JPMorgan Chase Bank, N.A. filed responsive pleadings as a party erroneously
sued as Chase Home Finance, LLC.


                                             2
from the receiver pursuant to a purchase and assumption agreement. There is nothing in
the record, however, regarding such an agreement.
         On February 10, 2009, two documents were recorded relating to Rubio’s Sylmar
property. The first was an assignment of deed of trust. This document stated that the
deed of trust and promissory note were assigned to LaSalle Bank NA as trustee for
WaMu Mortgage Pass-Through Certificates Series 2006-AR9 Trust. The assignment was
executed by Chase, as successor in interest to WaMu.3
         The second recorded document was a notice of default and election to sell under
deed of trust (notice of default). The notice of default was executed by California
Reconveyance Company, as trustee of the deed of trust. It stated that Rubio and her
husband defaulted on their obligations under the promissory note and that the balance due
under the note was $14,543.72 as of February 6, 2009.
         In May 2009 and July 2010, California Reconveyance Company recorded notices
of trustee’s sale. The trustee sales scheduled by these notices, however, did not take
place.
         On September 1, 2010, Rubio filed a Chapter 13 (11 U.S.C. §§ 1301-1330)
bankruptcy petition. After filing the petition, Rubio allegedly maintained her monthly
payments due under the promissory note to Chase. “On November 10, 2010 the
bankruptcy was dismissed because of a technical defect and not because of any failure or
inability to maintain her payments. The dismissal was made without any bar and [Rubio]
was free to refile with the Bankruptcy Court without restrictions.”




3
       The record does not indicate what interest, if any, Chase had in the promissory
note and deed of trust after the assignment. It appears Chase was the loan servicer. In
any case, Chase does not dispute that it is a proper defendant in this case.


                                             3
       Subsequently, Rubio received a letter from Chase dated November 17, 2010.
According to Rubio, in the letter Chase “offered to help” Rubio qualify for the federal
Home Affordable Modification Program (HAMP). In response to the letter, Rubio called
Chase on November 23, 2010 “and requested the information packet to begin the
‘evaluation process.’ ”4
       On or about November 30, 2010, Chase mailed another letter to Rubio indicating
that her account would now be handled by Ascension Capital Group (Ascension) and that
all future communications regarding the account and payments should be directed to
Ascension. Before Rubio contacted Ascension or received an information packet,
however, her property was sold at a public auction on December 8, 2010.
       On December 16, 2010, California Reconveyance Company, as trustee of the deed
of trust, recorded a trustee’s deed upon sale. This document indicated that Rancho
Horizon LLC purchased Rubio’s property at a trustee’s sale on December 8, 2010, for
$314,000. Although the trustee’s deed upon sale states in its recitals a notice of sale was
duly recorded, no such notice is in the record.
                                          ISSUES
       There are three main issues on appeal:
       1.      Whether the superior court erroneously sustained Chase’s demurrer to the
complaint.
       2.      Whether the superior court failed to provide the specific ground or grounds
for its order sustaining the demurrer and, if so, whether the judgment should be reversed
as a result.


4
        Rubio attached a copy of the letter to her opposition to Chase’s demurrer. We
describe the contents of the letter in footnote 6, post. Because the letter was not attached
to the complaint and is not the subject of a request for judicial notice, we do not consider
the actual contents of the letter in reaching our conclusion that the complaint does not
state facts sufficient to constitute a cause of action, but only to corroborate it. (Roman v.
County of Los Angeles (2000) 85 Cal.App.4th 316, 324, fn. 4.) We do, however, consider
the contents of the letter in our analysis of whether Rubio can amend her complaint to
allege a cause of action.


                                             4
       3.     Whether Rubio met her burden of showing there is a reasonable possibility
that the defects in her complaint can be cured by amendment.
                                       DISCUSSION
       1.     The Superior Court Correctly Sustained Chase’s Demurrer
              a.     Standard of Review
       On appeal from a judgment of dismissal following a ruling sustaining a general
demurrer, we determine de novo whether the complaint alleges facts sufficient to state a
cause of action. (Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 87
(Maxton).) We assume the truth of the factual allegations in the complaint, liberally
construed, as well as facts that can be reasonably inferred from those expressly pleaded.
(Glen Oaks Estates Homeowners Assn. v. Re/Max Premier Properties, Inc. (2012)
203 Cal.App.4th 913, 919; Maxton, at p. 87.) We do not, however, accept as true
plaintiff’s contentions, deductions or conclusions of law. (Maxton, at p. 87.)
              b.     Negligent Misrepresentation
       The first cause of action in the complaint is for negligent misrepresentation. The
elements of negligent misrepresentation are “(1) a misrepresentation of a past or existing
material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to
induce another’s reliance on the fact misrepresented, (4) ignorance of the truth and
justifiable reliance thereon by the party to whom the misrepresentation was directed, and
(5) damages.” (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.) Negligent
misrepresentation is a kind of fraud which gives rise to the tort action for deceit. (Agosta
v. Astor (2004) 120 Cal.App.4th 596, 603.) It has the same elements as intentional
misrepresentation except the claim does not require scienter or intent to defraud. (Small
v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.)
       A cause of action for negligent misrepresentation must be pled with specificity.
(Aspiras v. Wells Fargo Bank, N.A. (2013) 219 Cal.App.4th 948, 960 (Aspiras).) General
and conclusory allegations are not enough. (Lazar v. Superior Court (1996) 12 Cal.4th
631, 645 (Lazar).) The complaint must allege facts which show how, when, where, to
whom, and by what means the representations were tendered. (Ibid.)


                                              5
       “A plaintiff’s burden in asserting a fraud claim against a corporate employer is
even greater. In such a case, the plaintiff must ‘allege the names of the persons who
made the allegedly fraudulent representations, their authority to speak, to whom they
spoke, what they said or wrote, and when it was said or written.’ ” (Lazar, supra,
12 Cal.4th at p. 645.)
       Here, the complaint alleges that the November 17, 2010, letter misled Rubio into
“thinking she might qualify for a modification of the loan” and believing the foreclosure
proceedings “would be held in abeyance” during Chase’s evaluation of her loan. The
complaint further alleges that “in various telephone conversations [Chase] verbally
assured [Rubio] that no further foreclosure proceedings would occur.” In reliance on
Chase’s written and verbal statements, Rubio allegedly did not stop the trustee’s sale by
filing another bankruptcy petition.
       The complaint fails to state a claim for negligent misrepresentation because it does
not include any allegations regarding an actionable misrepresentation. Generally a
representation cannot be actionable unless it is about “ ‘past or existing facts.’ ” (Neu-
Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309.)
Although a false promise to perform in the future can be the basis of an intentional
misrepresentation claim, it cannot support a claim for negligent misrepresentation.
(Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158-159.)
An “offer to help” or a promise to hold foreclosure proceedings in abeyance does not
concern past or existing facts, and thus cannot be the basis for a negligent
misrepresentation cause of action.
       Further, the complaint’s allegation about “various telephone conversations” falls
far short of the specificity requirements for this tort. The complaint does not allege when
these conversations occurred, with whom Rubio allegedly spoke, or the alleged authority
of that person to bind Chase.




                                              6
       The complaint also fails to allege facts showing Rubio justifiably and
detrimentally relied on any purported misrepresentations of fact by Chase. Although the
November 17, 2010, letter allegedly states Chase would assist Rubio apply for assistance
through HAMP, it does not state anything regarding delaying or stopping the foreclosure
process before Rubio submitted an application.5
       Moreover, the complaint does not allege that Rubio could have cured the default
even if she had filed a bankruptcy petition. It is important to keep in mind that a debtor
cannot discharge a mortgage debt in bankruptcy and keep her home. (Aceves v. U.S.
Bank, N.A. (2011) 192 Cal.App.4th 218, 228-229 (Aceves).) “ ‘Rather, a Chapter 13
bankruptcy offers the debtor an opportunity to cure a mortgage delinquency over time—
in essence it is a statutorily mandated payment plan—but one that requires the debtor to
pay precisely the amount she would have to pay to the lender outside of bankruptcy.’ ”
(Id. at p. 229.) The complaint alleges no facts indicating Rubio would or could have paid
her debt over time under a bankruptcy plan.
       The complaint, in short, fails to state sufficient facts to constitute a cause of action
for negligent misrepresentation. The superior court therefore correctly sustained Chase’s
demurrer to this cause of action.
              c.     Promissory Estoppel
       The second cause of action in the complaint is for promissory estoppel. “ ‘The
elements of a promissory estoppel claim are “(1) a promise clear and unambiguous in its
terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be
both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured
by his reliance.” [Citation.]’ ” (Advanced Choices, Inc. v. State Dept. of Health Services

5
       HAMP is a federal program which assists eligible borrowers who have defaulted
on their mortgage payments or who are likely to default by reducing their monthly
payments to sustainable levels without discharging any of the underlying debt. (Aspiras,
supra, 219 Cal.App.4th at p. 952, fn. 2; see West v. JPMorgan Chase, N.A. (2013)
214 Cal.App.4th 780, 786-788 [describing the program]; see also Chavez v. Indymac
Mortgage Services (2013) 219 Cal.App.4th 1052, 1055-1056 [describing a trial period
plan under HAMP].)


                                               7
(2010) 182 Cal.App.4th 1661, 1672 (Advanced Choices).) This cause of action is
essentially the same as a breach of contract claim, except that the plaintiff’s reasonable
and detrimental reliance on a promise is regarded as a substitute for the consideration
required for an enforceable contract. (US Ecology, Inc. v. State of California (2005)
129 Cal.App.4th 887, 904.)
       Here, the complaint does not state facts indicating Chase made a clear and
unambiguous promise that can be the basis for a promissory estoppel claim. Chase’s
alleged written “offer to help” Rubio apply for assistance through HAMP was too vague
and amorphous of a statement to support a promissory estoppel claim. It was at most an
invitation to Rubio to apply for a loan modification and nothing more.
       Likewise, Chase’s alleged oral assurances that “no further foreclosure proceedings
would occur” are insufficiently “ ‘ “clear and unambiguous in its terms.” ’ ” (Advanced
Choices, supra, 182 Cal.App.4th at p. 1672.) It is unclear whether Rubio alleges that
Chase promised to never foreclose on her home or whether she contends Chase promised
to postpone foreclosure temporarily. If the alleged postponement was temporary, Rubio
does not allege how long it would be and what, if anything, would permit Chase from
proceeding with a foreclosure.
       “To be enforceable, a promise must be definite enough that a court can determine
the scope of the duty and the limits of performance must be sufficiently defined to
provide a rational basis for the assessment of damages.” (Ladas v. California State Auto.
Assn. (1993) 19 Cal.App.4th 761, 770.) Chase’s alleged promises do not meet this
standard.
       Additionally, for the reasons explained ante, Rubio did not justifiably and
detrimentally rely on Chase’s alleged promises. The complaint therefore fails to state
facts sufficient to constitute a promissory estoppel cause of action.




                                              8
       The insufficiency of the complaint in this case is illustrated by contrasting its
allegations with the allegations of the complaint in Aceves. There, a bank allegedly
promised to not foreclose on a borrower’s home without first engaging in negotiations
with her to reinstate and modify its loan on mutually agreeable terms. (Aceves, supra,
192 Cal.App.4th at p. 226.) At the time, the borrower’s Chapter 13 bankruptcy case was
pending. In reliance on the bank’s promise, the borrower did not to oppose the bank’s
motion to lift the bankruptcy stay, which was later granted by the bankruptcy court.
(Id. at p. 223.) The bank nonetheless caused the borrower’s home to be sold at a
trustee’s sale without engaging in negotiations with the borrower to modify her loan.
(Id. at p. 224.)
       In this case, by contrast, Rubio does not allege that Chase asked her to forego any
particular course of conduct as a prerequisite to negotiations or that Chase ever promised
to negotiate a loan modification. Further, Rubio did not have a bankruptcy case pending
when Chase allegedly made its promises, and she does not allege that Chase knew she
was considering filing a new bankruptcy petition. Thus there was no binding agreement
between the parties supported by the doctrine of promissory estoppel. This case is
distinguishable from Aceves.
       2.      Rubio Waived Her Argument That the Superior Court Failed to Adequately
               State the Grounds for Sustaining Chase’s Demurrer
       Rubio argues the superior court failed to sustain Chase’s demurrer with the
specificity required by Code of Civil Procedure section 472d. This statute provides:
“Whenever a demurrer in any action or proceeding is sustained, the court shall include in
its decision or order a statement of the specific ground or grounds upon which the
decision or order is based which may be by reference to appropriate pages and paragraphs
of the demurrer. [¶] The party against whom a demurrer has been sustained may waive
these requirements.” (Code Civ. Proc., § 472d.)




                                              9
       Here, the superior court’s minute order sustaining Chase’s demurrer stated the
demurrer was sustained “for the reasons stated in the demurrer.” The court did not satisfy
the requirements of Code of Civil Procedure section 472d because it did not cite to any
the specific pages or paragraphs of the demurrer. (E. F. Hutton & Co. v. City National
Bank (1983) 149 Cal.App.3d 60, 64-65 [“ ‘per points and authorities in moving papers’ ”
was insufficient].) Rubio, however, failed to demand or point out to the court the absence
of specific grounds in the minute order. She thus waived any argument on appeal based
on the court’s violation of the statute. (Id. at p. 65, fn. 1.)
       3.      Rubio Has Not Met Her Burden of Showing There is a Reasonable
               Possibility She Can Cure the Defects in the Complaint
       When a general demurrer is sustained, the plaintiff must be given leave to amend
his or her complaint when there is a reasonable possibility that the defects can be cured
by amendment. (Maxton, supra, 203 Cal.App.4th at p. 95.) “The burden of proving
such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.)
       “ ‘To satisfy that burden on appeal, a plaintiff “must show in what manner he can
amend his complaint and how that amendment will change the legal effect of his
pleading.” [Citation.] The assertion of an abstract right to amend does not satisfy this
burden.’ [Citation.] The plaintiff must clearly and specifically state ‘the legal basis for
amendment, i.e., the elements of the cause of action,’ as well as the ‘factual allegations
that sufficiently state all required elements of that cause of action.’ ” (Maxton, supra,
203 Cal.App.4th at p. 95.)
       Contrary to Chase’s contention, Rubio may assert a new proposed cause of action
or theory of liability for the first time on appeal. (Grinzi v. San Diego Hospice Corp.
(2004) 120 Cal.App.4th 72, 85.) Rubio has attached to her opening brief a proposed third
amended complaint (TAC). We conclude, however, that the TAC does not state facts
sufficient to state a cause of action.




                                               10
       The TAC sets forth five causes of action: (1) intentional misrepresentation,
(2) concealment, (3) false promise, (4) negligent misrepresentation and (5) promissory
estoppel. The TAC bases all five causes of action on alleged misrepresentations in
Chase’s letter dated November 17, 2010, which is attached to the pleading.6
       The fatal defect in each of the causes of action in the TAC is that Rubio could not
reasonably rely on the November 17, 2010, letter when she decided not to file a new
bankruptcy petition. Nowhere in the letter does Chase promise to stop or delay
foreclosure proceedings. Indeed, the letter does not mention such proceedings. The letter
also does not state that Chase will in fact agree to modify Rubio’s loan. The letter instead
simply advises Rubio that she can request an application for a loan modification.
A reasonable borrower in Rubio’s position would not have concluded that Chase had
delayed or stopped the foreclosure proceedings based on this letter.
       Apart from the TAC, Rubio has not proposed any other causes of action or
theories of liability. Rubio thus failed to meet her burden of showing there is a
reasonable possibility that the defects in the complaint can be cured by amendment.




6
       The letter states: “Chase may be able to help make your mortgage more
affordable if you are having difficulty making your payments. You could be eligible to
take advantage of the Home Affordable Modification Program, part of a federal initiative
to help homeowners.” It further states that if Rubio calls a certain number, Chase will
send an information packet and forms she needs to sign. The letter then states: “Once we
receive all of your documentation we’ll determine if you are eligible for the program. If
you are, we’ll send you a letter with details about your new, affordable mortgage
payment – and you will start paying the new amount during a trial period. If you make
those trial payments on time and fulfill all the other program conditions, we will offer
you a permanent modification to keep your payments low.”


                                            11
                                 DISPOSITION
     The judgment is affirmed. Respondent is awarded costs on appeal.

     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                             KITCHING, J.

We concur:




                  KLEIN, P. J.




                  ALDRICH, J.




                                        12
