Filed 5/30/14 Yaghobi v. Wells Fargo Bank CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 ONE

DAVID YAGHOBI,                                                       B246200

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC479197)
         v.

WELLS FARGO BANK, N.A.,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Daniel
Buckley, Judge. Affirmed.

                                                         ______

         Mitchell Keiter for Plaintiff and Appellant.

         Kutak Rock, Jeffrey S. Gerardo, Steven M. Dailey, and Antoinette P. Hewitt for
Defendant and Respondent.

                                                         ______
       David Yaghobi sued Wells Fargo Bank, N.A. for breach of contract and
promissory estoppel. The superior court sustained Wells Fargo’s demurrer without leave
to amend, and Yaghobi appeals. We affirm.
                                      BACKGROUND
       This case arises out of Yaghobi’s attempts to obtain a loan modification on the
trust deed on real property he owned. Because we are reviewing a judgment of dismissal
after the sustaining of a demurrer without leave to amend, our summary of the facts is
drawn from the allegations in Yaghobi’s operative pleading.
       Yaghobi alleges that in 2010 he retained certain individuals and entities to assist
and represent him in his loan modification efforts. The first law firm that he retained
advised him to stop paying his mortgage, apparently in order to put pressure on the
lender, Wells Fargo. In early 2011, Yaghobi became concerned about that approach and
went to a Wells Fargo office to try “to pay his mortgage,” but Wells Fargo “refused [the]
payment.”
       A few months later, Yaghobi received notice of a trustee’s sale of the property.
He informed his attorney, who told him that “there was nothing else that could be done in
his case and that he would have to file [b]ankruptcy.”
       Yaghobi then retained new counsel to file his bankruptcy petition and represent
him in negotiations with Wells Fargo. The bankruptcy petition was filed on April 29 but
dismissed on May 20 for failure to file necessary documents. Yaghobi’s property was
sold to a third party in a trustee’s sale on or about June 6, 2011.
       On February 16, 2012, Yaghobi filed suit against the lawyers and firms that had
represented him, and also against Wells Fargo. The only cause of action alleged against
Wells Fargo was for breach of contract. Yaghobi’s theory was that he was a third-party
beneficiary of the “Servicer Participation Agreement” (SPA) entered into by Wells Fargo
as part of the Home Affordable Modification Program (HAMP) under the Emergency
Economic Stabilization Act of 2008. Yaghobi sought both damages and cancellation of
the sale of his property.



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       Wells Fargo demurred and moved to strike portions of the complaint. Among
other arguments, Wells Fargo contended that borrowers are not third-party beneficiaries
of SPAs under the HAMP, and Wells Fargo cited several federal district court decisions
to that effect.
       While the demurrer and motion to strike were pending, Yaghobi filed a first
amended complaint. He named the same defendants but added three new causes of
action, one of which was alleged against Wells Fargo. The breach of contract claim
against Wells Fargo was unchanged—Yaghobi’s sole theory was that he was a third-party
beneficiary of Wells Fargo’s SPA under the HAMP, and he again sought damages and
cancellation of the sale of his property.
       The new claim against Wells Fargo (and all other defendants) was entitled
“promissory estoppel.” In it, Yaghobi alleged that “[b]eginning in 2010” he contacted
Wells Fargo “numerous times in attempts to [obtain] a modification of his loan,” and that
Wells Fargo “represented that [Yaghobi] was eligible for a HAMP modification.” He
alleged that he “reasonably relied” on Wells Fargo’s promises “that he was eligible for a
HAMP modification,” and in reliance on those promises he “expended time and money
[filling] out loan modification applications, gathering necessary documents and
ultimately hiring purported law firms for loan modification assistance.” “Despite
providing all the paperwork and financial information requested of him, [Yaghobi] was
never given a permanent modification plan and on June 6, 2011 [his] Subject Property
was sold.”
       Wells Fargo again demurred and moved to strike portions of the first amended
complaint. Among other arguments, Wells Fargo repeated its contention that borrowers
are not third-party beneficiaries of SPAs under the HAMP. As for the promissory
estoppel claim, Wells Fargo argued that Yaghobi failed to allege breach of a clear and
unambiguous promise and that any reliance on the alleged promise would have been
unreasonable.
       The superior court sustained the demurrer without leave to amend and entered
judgment dismissing the action with prejudice as to Wells Fargo. The court agreed with


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Wells Fargo’s arguments that (1) Yaghobi could not sue as a third-party beneficiary of
Wells Fargo’s SPA under the HAMP and (2) the first amended complaint did not allege a
promise by Wells Fargo to Yaghobi that was sufficiently definite to be enforceable.
Yaghobi timely appealed.
                                STANDARD OF REVIEW
       “‘The burden of affirmatively demonstrating error is on the appellant. This is a
general principle of appellate practice as well as an ingredient of the constitutional
doctrine of reversible error.’ [Citation.] The order of the lower court is ‘“presumed to
be correct on appeal, and all intendments and presumptions are indulged in favor of its
correctness.”’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak (2001)
90 Cal.App.4th 600, 610.)
       In reviewing a judgment after a demurrer was sustained without leave to amend,
we “must assume the truth of the complaint’s properly pleaded or implied factual
allegations,” and “we determine whether the complaint states facts sufficient to state a
cause of action.” (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) If it
does not, we also must determine “whether there is a reasonable possibility the plaintiff
could cure the defect with an amendment,” an issue on which the plaintiff bears the
burden of proof. (Ibid.)
                                       DISCUSSION
       On appeal, Yaghobi does not attempt to defend the sole breach of contract
theory alleged in the first amended complaint, namely, that he can sue Wells Fargo as a
third-party beneficiary of Wells Fargo’s SPA under the HAMP. Because he has
presented no argument (meritorious or otherwise) on that issue, he has not carried his
burden of showing that the superior court erred by rejecting that theory.
       Instead, Yaghobi argues in support of the theory identified in his first amended
complaint as a promissory estoppel claim. He argues that he sufficiently alleged
consideration and detrimental reliance. He does not, however, address Wells Fargo’s
argument, repeatedly advanced in the trial court and in Wells Fargo’s respondent’s brief
on appeal, that the first amended complaint failed to allege a promise by Wells Fargo that


                                              4
was sufficiently definite to be enforceable.1 Yaghobi therefore has not carried his burden
of showing error in the trial court’s ruling as to this claim either.
       Finally, Yaghobi argues that he should be granted leave to amend. But he does
not identify any factual allegations that he could add by amendment to cure the defects in
his claims against Wells Fargo. He has therefore failed to carry his burden on this issue
as well.
       For all of the foregoing reasons, we must affirm the judgment in favor of
Wells Fargo.




1
       Yaghobi does argue that a promise “to postpone foreclosure” may be enforceable
on a promissory estoppel theory. But the first amended complaint does not allege that
Wells Fargo promised Yaghobi that it would postpone foreclosure. Rather, the first
amended complaint alleges that under the SPA Wells Fargo was obligated to postpone
foreclosure under certain circumstances. But that relates only to Yaghobi’s third-party
beneficiary theory, which Yaghobi does not pursue on appeal (e.g., Yaghobi never
addresses the argument that borrowers lack standing to sue as third-party beneficiaries of
SPAs under the HAMP). The only promise alleged in the first amended complaint in
support of the promissory estoppel claim is Wells Fargo’s alleged promise that Yaghobi
“was eligible for a HAMP modification.” On appeal, Yaghobi does not argue that such a
promise is sufficiently definite to be enforceable.

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                                   DISPOSITION
     The judgment is affirmed. Respondent shall recover its costs of appeal.
     NOT TO BE PUBLISHED.




                                              ROTHSCHILD, Acting P. J.
We concur:




             CHANEY, J.




             JOHNSON, J.




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