Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV083115
Richman, J.
In 2005, appellant Kabita Choudhuri sought to refinance the mortgage on property she owned in Mill Valley with a home loan offered by respondent Wells Fargo Home Mortgage, a division of Wells Fargo Bank, N.A. Choudhuri’s interest in refinancing stemmed from her need to access equity in her home. She anticipated receiving a cash out payment of $8,632.78, which she intended to use to pay off a number of outstanding debts. Respondent Todd Bell was a Wells Fargo home mortgage consultant who assisted Choudhuri in obtaining the loan.
We refer to respondents collectively as Wells Fargo.
After close of escrow, Choudhuri learned that, per the loan agreement which required payment of all outstanding liens at closing, the title company had applied $6,389 of the cash-out amount to Choudhuri’s delinquent property taxes, reducing her cash-out payment to $2,366.82. Rather than timely rescinding the loan agreement, however, Choudhuri began making payments. After she began missing payments in April 2006, only then did she belatedly seek to void the loan. When Wells Fargo declined to unwind the agreement, Choudhuri filed suit.
While Choudhuri’s operative pleadings are a virtual kitchen sink of muddled accusations, she appeared to assert claims for common count, breach of contract, and fraud, based upon her allegations that: (1) Bell had told her he had secured, or would secure, his manager’s approval to deviate from the bank’s policy requiring payment of her delinquent property taxes at the close of escrow; (2) Bell had informed her it was a 30 year, fixed interest rate loan when, in fact, it was a 2/6 adjustable rate mortgage; and (3) Wells Fargo defrauded her in numerous other particulars in the origination and administration of the loan.
Wells Fargo Home Mortgage and Bell moved for summary judgment or adjudication on Choudhuri’s claims, and the trial court granted summary judgment. Choudhuri appeals. We affirm.
CHOUDHURI’S BRIEFS FAIL TO COMPLY WITH FUNDMENTAL RULES OF APPELLATE LAW
We begin with an observation that while the nature of the dispute is not inherently complicated, Choudhuri’s failure to comply with the most fundamental rules of appellate law has rendered this appeal a logistical challenge. In the words of the court in People v. Dougherty (1982) 138 Cal.App.3d 278, 280, Choudhuri’s opening brief “reads like an all out, frontal assault on the rules on appeal.” A few examples are illustrative.
This challenge is compounded by the manner in which Choudhuri amended her complaint (detailed in section III, infra), resulting in not one but three operative pleadings.
Pursuant to California Rules of Court (Rule), rule 8.204(a)(2)(C), an appellant must file an opening brief that, among other things, “[p]rovide[s] a summary of the significant facts limited to matters in the record.” Choudhuri’s opening brief contains a so-called “factual history, ” but it is far from “a summary of the significant facts, ” nor is it “limited to matters in the record.” Rather, it consists of five-and-a-half, single-spaced pages of disjointed opinion, argument, and conjecture that utterly fail to depict an “honest and fair picture of the pertinent facts.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2011) ¶ 9:140, p. 9-39.)
Pursuant to Rule 8.204(a)(1)(C), a party must provide a citation to evidence in the record supporting any matter asserted in a brief. Despite this requirement, Choudhuri’s “factual history” relates paragraph upon paragraph of purported facts without citation to the record. In fact, the entire “factual history” contains a mere two record citations. And in the rare instances elsewhere in her opening brief where Choudhuri actually does provide a record cite, it is often to a swath of hundreds of pages. (People v. Dougherty, supra, 138 Cal.App.3d at p. 281 [“An all-inclusive reference to 116 reporter’s transcript pages is not within the spirit of the rules.”].) To compound that error, the pages cited are often to documents that were not before the trial court on summary judgment.
But perhaps most audacious of all is Choudhuri’s reference in her opening brief to deposition testimony of Roy Givens, whose complete testimony was not a part of the summary judgment motion below—nor part of the record on appeal. Choudhuri directs us to obtain a transcript of his testimony from Wells Fargo, representing that she could not afford to supply the transcript. This presumptuous behavior violates at least three rules of appellate law. First, on review of summary judgment, we are bound by the papers that were before the trial court. (Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 640 [“[W]e will consider only those facts that were before the trial court when it ruled on the motions. [Citation.] This, in turn, means the facts contained in the parties’ separate statements.”].) Second, the scope of our review on appeal is limited to matters in the record. (Rule 8.204(a)(1)(C), (a)(2)(C); Banning v. Newdow (2004) 119 Cal.App.4th 438, 453, fn. 6 [factual assertions attributed to sources outside the record are disregarded]; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn.1 [unsupported statement of facts disregarded].) Finally, it is Choudhuri’s obligation to procure the record on appeal. (Rules 8.121-8.130.) Thus, we will not—indeed, cannot—heed Choudhuri’s suggestion that we obtain the Givens transcript ourselves.
We note that Choudhuri appears before us in propria persona, as she did before the trial court. While this may explain the numerous deficiencies in her briefs, it in no way excuses them. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [“ ‘ “[T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney.” ’ ”].) To the extent that Choudhuri’s “facts” lack proper citation to the record and evidentiary support, we are compelled to disregard them. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1037; In re S.C. (2006) 138 Cal.App.4th 396, 406 [“When an appellant’s brief makes no reference to the pages of the record where a point can be found, an appellate court need not search through the record in an effort to discover the point purportedly made.”]; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1 [“It is not the task of the reviewing court to search the record for evidence that supports the party’s statement; it is for the party to cite the court to those references. Upon the party’s failure to do so, the appellate court need not consider or may disregard the matter.”].)
With that, we set forth a factual history that is supported by the record.
FACTUAL BACKGROUND
In November 2005, Choudhuri contacted Wells Fargo about refinancing two loans secured by her home in Mill Valley. Her interest in refinancing was motivated, at least in part, by her desire to obtain cash to repay creditors who were pressing her for payment. Bell was the home mortgage consultant assigned to assist Choudhuri in obtaining the loan.
Initially, Wells Fargo proposed a loan in the amount of $717,000, which would have repaid the two existing loans. After an appraisal of Choudhuri’s home returned a value too low to support a loan in that amount, the proposed loan was reduced to $679,000.
Bell sent Choudhuri’s application to another lender to see if it would provide her with a second loan. Initially, the second lender approved the application based on her credit score at the time her application was submitted. By the time of final loan approval, however, Choudhuri’s credit score had dropped, prompting the lender to withdraw its approval. Choudhuri nevertheless decided to proceed with the $679,000 loan from Wells Fargo, expecting that she would receive a cash-out payment of $8,632.78 from that loan.
On December 20, 2005—two days before closing—Wells Fargo sent Choudhuri a commitment letter setting forth the terms and conditions of the loan. The letter advised that the loan type was a 2/6 adjustable rate mortgage, and expressly advised that “any and all existing liens on the property must be paid in full at closing.”
The loan closed on December 22, 2005. Prior to closing, however, it was discovered that Choudhuri’s property taxes had become delinquent on December 10, 2005. Consistent with the terms of the commitment letter, the title company paid Choudhuri’s delinquent property taxes—$6,389—at closing out of the cash-out amount. As a result, rather than the $8,632.78 in cash that Choudhuri anticipated receiving, she instead received $2,366.82. According to Choudhuri, Bell had promised her that he had either secured, or would secure, his manager’s permission to deviate from the policy requiring the delinquent property taxes to be paid at closing. Bell denied ever making such a representation.
Choudhuri did not promptly seek to cancel the transaction. Rather, she commenced making payments pursuant to the loan agreement. By April 2006, however, she began missing payments, and Wells Fargo ultimately initiated foreclosure proceedings.
Choudhuri obtained a preliminary injunction in the trial court, staying the foreclosure proceedings while her claims against Wells Fargo proceeded. After Wells Fargo prevailed on summary judgment, the injunction was lifted. Choudhuri then petitioned this court for a writ of supersedeas to stay the foreclosure action, which writ we granted.
This lawsuit ensued.
THE PLEADINGS
The first step in the summary judgment process consists of “ ‘ “identify[ing] the issues framed by the pleadings.” ’ ” (Rosales v. Battle (2003)113 Cal.App.4th 1178, 1182.) While this should not be an onerous task, the state of Choudhuri’s pleadings makes it a formidable undertaking in this case. As the trial court put it in the order granting summary judgment, “The precise claims alleged by plaintiff’s initial Judicial Council form complaint and the subsequent individual amendments to that pleading were difficult to decipher.” “[D]ifficult” is an understatement.
On June 26, 2008, two and a half years after the disputed loan closed, Choudhuri filed her initial complaint against Wells Fargo. It was a five-page, Judicial Council form complaint, asserting what Choudhuri labeled as causes of action for breach of contract and fraud. To it, Choudhuri appended 172 pages of miscellaneous loan documents and communications allegedly relating to the loan.
A first amended complaint followed on August 14, 2008. This time, Choudhuri attached form causes of action for breach of contract, fraud, and intentional tort. In the intentional tort cause of action, where the form requested “description of reasons for liability, ” she listed the following 14 counts: (1) “Promissory Fraud, false representation without intent to perform”; (2) “Intentional Misrepresentation with intention to induce”; (3) “Deception, concealment and suppression of material facts”; (4) “Failure to disclose material facts which qualified the written contract, resulting in promisee suffering detrimental change in position as a proximate result of oral promise”; (5) “Breach of fiduciary duty”; (6) “Breach of contract—failure to disburse funds according to terms of loan document”; (7) “Failure to exercise additional duties of care assumed in acting as title officer”; (8) “Duress and abuse of confidential relationship, with foreseeability of harm”; (9) “Continuing fraud (tort) in monthly rates and statements”; (10) “Fraudulent accounting”; (11) “Harassment”; (12) “Gender discrimination”; (13) “On-going violation of Truth in Lending Act in disclosure of monthly rates and statements”; (14) “Violation of RESPA provisions with regard to tax disbursements and failure to disclose change in contract terms, and for requiring use of specific title company.”
On September 22, 2008, Wells Fargo and Bell (hereafter, collectively, Wells Fargo) demurred to Choudhuri’s first amended complaint. Before the demurrer was heard, Choudhuri filed a second amended complaint. It included the Judicial Council form complaint for contract, on which Choudhuri represented that she was attaching causes of action for breach of contract, common count (“excessive fees in predatory loan & foreclosure fraud unrefunded”), and “Continuing intentional fraud: mortgage, foreclosure; breach of contract/fiduciary; gender discrimination, fraudulent accounting.” As for “Other allegations, ” Choudhuri identified “Misrepresentation with intent to induce; failure to disclose material information; interference, threats, intimidation & coercion in foreclosure process; continuing intentional tort in fraudulent accounting.”
The second amended complaint also included the Judicial Council form complaint for personal injury, property damage, and wrongful death. On it, Choudhuri checked the “personal injury” box and she identified “Intentional Tort—Fraud” and “Lenders’ professional liability for intentional and constructive fraud, under CA Real Estate Act, section 36.5 Lender’s liability” as the causes of action attached.
Attached to the two form complaints were three form causes of action. The first was for common count and alleged, “Excessive fees charged in predatory loan & foreclosure process. [F]or losses suffered by plaintiff as a result of fraudulent activities perpetrated by defendant in misleading plaintiff with false promises to induce contract signing. Plaintiff relied upon trust in Wells Fargo agent, Todd Bell, as a licensed mortgage representative, bound by fiduciary duty under TILA and RESPA to disclose information material to closing of the contract.”
The second cause of action was for breach of contract, which alleged that on or about December 22, 2005, Choudhuri and Wells Fargo entered into a “written contract contingent upon oral promises” and that “Todd Bell had discussed question of tax payment prior to signing of loan docs, so was fully aware of the falsity of his promise.” She further alleged that Bell breached the contract by “suppress[ing] information material to the contract, ” and by “abusing the confidential relationship....”
The third cause of action purported to allege fraud stemming from “Intentional or Negligent Misrepresentation, ” “Concealment, ” and “Promise without Intent to Perform.” In terms of a misrepresentation, Choudhuri alleged that “Bell uttered a false representation which he knew to be false, since plaintiff had discussed matter with him prior to loan signing, inducing plaintiff to rely on his oral promise that funds would not be taken out of cash out to pay outstanding taxes and induced plaintiff into signing documents. Bell also assumed role of title manager and thereby owed an additional and independent fiduciary duty of disclosure and liability to plaintiff.” Choudhuri contended these representations were false because, “Although Bell promised plaintiff that he had already secured or would secure his manager’s permission not to take funds out of cash out promised to pay taxes that had just become due but were not yet in default, as an agent vested with the authority of Wells Fargo he made an affirmative misrepresentation and breached his oral contractual promise and [became] liable for damages suffered by plaintiff as a result of his fraud.”
As to concealment, Choudhuri alleged that “Bell concealed information about the material change in facts until it was too late for the plaintiff to cancel contract. He also advised plaintiff incorrect cancellation dates.”
Lastly, regarding a promise without intent to perform, Choudhuri alleged that “Todd Bell represented himself as having full authority in making the promise and with full knowledge of the falsity and with no intention to keep his promise or to disclose information material to the contract, chose to betray the confidential relationship with plaintiff, therefore incurring full liability for damages suffered as a consequence of his fraudulent actions. His intent to defraud and induce plaintiff to rely on his oral promise is evident by his deliberately withholding the knowledge of tax payment out of promised funds until AFTER the closing of the contract.” In addition to allegations regarding the cash-out payment, Choudhuri also alleged that Bell induced her into accepting the loan with a promise of a 30-year fixed mortgage, switching it to a 2/6 adjustable rate loan at the last minute when she had insufficient time to review the terms.
Attached to the Judicial Council form causes of action were three additional pages, purporting to allege more causes of action. Cause of action four—“continuing tort—accounting fraud”— alleged that Wells Fargo, among other things, inflated her income on the loan application in order to qualify her for the loan, issued fraudulent monthly statements displaying incorrect balances, applied incorrect interest rates, and impounded an incorrect amount for future tax payments.
Cause of action five alleged gender discrimination in violation of Penal Code section 422.55, 422.56, and 422.6. This cause of action was premised on Choudhuri’s claim that Wells Fargo would not have treated “a single male customer the way they have treated the plaintiff, a single female in dire financial circumstances.”
Cause of action six for “foreclosure fraud” alleged that “Wells Fargo fraudulently lured plaintiff into foreclosure by advising plaintiff to keep aside monthly mortgage payments in order to allow the file to be reviewed by them. Over a period of 2 months they persisted in requesting documents, sometimes claiming they had not received faxes or mailings and demanding additional documents, and then suddenly accelerating foreclosure without warning.”
Two documents were also attached to the second amended complaint, one a statement of updated damages and the other an “abbreviated account of facts supporting the causes of action listed in the amended complaint #2.”
On December 23, 2008, Wells Fargo demurred to Choudhuri’s second amended complaint, generally demurring to the individual causes of action for failure to state a claim and also specially demurring to the entire complaint on uncertainty grounds “because Plaintiff jumbles together claims, includes ‘sub-causes of action’ under other causes of action, fails to include a clear statement of facts and incorporates causes of action into other causes of action.”
Following a hearing on April 20, 2009, the court sustained Wells Fargo’s demurrer with leave to amend as to each cause of action.
On April 27, 2009, Choudhuri filed an “Amendment to Plaintiff’s Second Amended Complaint Filed November 20, 2008.” This was not a stand-alone, all inclusive complaint, but rather a supplement that purported to clarify the causes of action set forth in her second amended complaint.
As to the first cause of action, Choudhuri alleged that it was for common count “ ‘for money paid, laid out, and expended to or for defendant’s special instance and request’ specifically relating to defendants’ breach of contract in their failure to credit plaintiff’s deposit to the mortgage transaction at closing.”
Choudhuri amended the second cause of action for breach of contract to clarify that the claim was based on a written contract. However, she “reiterate[d] that this written contract was signed by the plaintiff contingent upon Todd Bell’s oral representations to the plaintiff.”
In the third cause of action for fraud, Choudhuri clarified that the “oral and written representations by Todd Bell were made during telephone conversations and in email exchanges between the dates of December 13, 2005 and December 27, 2005.”
Choudhuri amended the fourth cause of action for “Continuing Fraud—Accounting Fraud” to allege that Wells Fargo induced her into signing the loan agreement “without informing her that their underwriters had substantially inflated her income to falsely improve her loan to debt ratio in order to qualify her for the loan. These predatory practices predisposed the plaintiff to severe risk of foreclosure.” She further added a reliance allegation.
As to the fifth cause of action for gender discrimination, Choudhuri alleged that Wells Fargo discriminated against her by coercing her into using a title company of their choosing and “in depriving the plaintiff and her family of their constitutional and statutory right to a threat-free enjoyment of rightfully owned property and in their continued threats of foreclosure based on fraud under CA Penal Code §§422.55-422.56.”
Choudhuri amended the sixth cause of action for “foreclosure fraud” to allege that Wells Fargo’s customer service agents advised her to default on her monthly payments so they could review her file, and then falsely advised her they were reviewing her file while they were, in fact, accelerating foreclosure.
Finally, Choudhuri incorporated additional allegations into the third cause of action for fraud.
Wells Fargo once again demurred. The trial court sustained the demurrer to the first and second causes of action with leave to amend, overruled the demurrer to the third cause of action, and sustained the demurrer without leave to amend as to any remaining causes of action.
On August 17, 2009, Choudhuri filed an “Amendment to Plaintiff’s Second Amended Complaint As Amended” which, again, was not an inclusive pleading but rather supplemented her second amended complaint and the April 27, 2009 amendment. In this amendment, Choudhuri expanded on her common count claim, explaining that, based on a written contract, Wells Fargo was indebted to her in the amount of $8,632.78 and that Wells Fargo “breached the contract by failing, without statutorily-required disclosures of change in facts material to the contract, to provide the plaintiff, at the time of signing or at any later date (e.g., at the time of closing), with a check in the amount promised for cash-out finances stated in the written contract. This cause of action also related to defendants’ breach of contract in their failure to credit plaintiff’s deposits and advances to the mortgage transaction at closing, which has caused the plaintiff’s principal to be fraudulently inflated by those amounts, since they showed up as a debit.”
Choudhuri likewise expanded on the allegations in support of her second cause of action for breach of contract, explaining that the claim was based on a written contract indicating that Wells Fargo would pay her $8,632.78 in cash-out proceeds at the time of closing. She “reiterate[d] that this written contract was signed by the plaintiff contingent upon Todd Bell’s oral representations to the plaintiff, an oral contract which was also breached.”
Wells Fargo demurred to the second amended complaint as twice amended. As pertinent here, the court overruled the demurrer, and on January 21, 2010, Wells Fargo filed a verified answer.
WELLS FARGO’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION
On April 16, 2010, Wells Fargo moved for summary judgment or, in the alternative, summary adjudication. As to the first cause of action, for common count, Wells Fargo argued that it was barred by the two-year statute of limitations applicable to “ ‘[a]n action upon a contract, obligation or liability not founded upon an instrument of writing....’ ” Alternatively, it argued that Choudhuri failed to identify “ ‘a statement of indebtedness in a certain sum, ’ ” which is an element of a common count claim. Finally, Wells Fargo argued that the cause of action must fail for the same reasons Choudhuri’s breach of contract claim failed.
Turning to the second cause of action, for breach of contract, Wells Fargo argued that while Choudhuri’s claim was presumptively based on her mortgage agreement with Wells Fargo, she could not establish the existence of the alleged agreement. Further, according to Wells Fargo, Choudhuri failed to establish the remaining elements of a breach of contract claim, including her performance and Wells Fargo’s breach.
Finally, Wells Fargo explained that Choudhuri’s fraud claim was seemingly based on her contention that Bell had represented to her that he had secured, or would secure, his manager’s permission to deviate from the policy requiring payment of Choudhuri’s past due property taxes at closing. Wells Fargo argued that Choudhuri failed, however, to provide any evidence of this purported representation, let alone that it was known to be false at the time Bell allegedly made it. She also alleged that Bell falsely advised her post closing that it was too late to rescind the transaction but, according to Wells Fargo, the evidence showed that she was apprised of the correct cancellation date.
Wells Fargo also argued that to the extent Choudhuri was asserting foreclosure fraud, a claim apparently premised on her allegation that Wells Fargo coerced her into missing payments and going into foreclosure, she could not produce any evidence to support that claim. And to the extent that Choudhuri also alleged accounting fraud, Wells Fargo argued that not only had Choudhuri failed to provide evidence that the accounting on her loan was inaccurate, but the evidence showed that her payments had been properly applied and her interest rate properly calculated.
Finally, Wells Fargo argued that all of Choudhuri’s causes of action were preempted by the National Bank Act, and that she was not entitled to recover punitive damages.
In support of its motion, Wells Fargo filed a separate statement of undisputed facts, as well as five declarations: Wells Fargo loan administration managers Jacquie Krome and Scott Grantham; Wells Fargo litigation specialist Jamie Walls; defendant Bell; and attorney Matthew Sgnilek. Each declaration appended, and authenticated, documentary evidence supporting Wells Fargo’s motion.
Walls’s declaration was not filed on April 16, 2010 with the rest of Wells Fargo’s summary judgment papers. Rather, it accompanied an April 20, 2010 “Notice of Errata, ” in which Wells Fargo represented that the declaration had been inadvertently omitted when Wells Fargo filed its moving papers.
Wells Fargo also filed a request seeking judicial notice of the following: the court dockets in civil actions filed by Fortis Capital, LLC and Chase Bank USA, N.A. against Choudhuri; the certificate of corporate existence for Wells Fargo Bank National Association; Choudhuri’s second amended complaint filed in the instant action; the British Bankers Association London Interbank Offered Rate (LIBOR) on five different dates; and the Marin County Tax Collector panel of Kabita Choudhuri tax payments and penalties for the 2004-2005 tax year.
On June 23, 2010, Choudhuri filed an opposition to Wells Fargo’s motion, submitting in support a four-paragraph declaration that stated in its entirety:
“1. I am the plaintiff in this case and have personal knowledge of the facts set forth in this declaration and if called as a witness, could and would competently testify to such facts as under oath.
“2. Defendants have attached to their motion for summary judgment exhibits and declarations that are plainly false and in bad faith, Plaintiff believes that Defendants are abusing the court process in order to prejudice and mislead the court.
“3. In particular, Defendants have chosen to omit certain evidence revealed during discovery by the Defendants, such as mortgage application forms completed with fraudulent data (e.g., plaintiff’s income inflated ~300%) by Todd Bell in the name of the plaintiff and which were subsequently forged by him or other employees of Wells Fargo; falsified deed of trust and a falsified anti-predatory worksheet submitted by Wells Fargo to demonstrate fraudulently that they passed the federal predatory test.
“4. Defendants’ attorneys have perjured themselves and have advised their client defendants, Todd Bell and Wells Fargo to perjure themselves by submitting these fraudulent exhibits and declarations in bad faith.”
Choudhuri also filed a response to Wells Fargo’s separate statement in which she “object[ed]” or “strongly object[ed]” to each fact set forth by Wells Fargo. However, Choudhuri did not support her objections with citations to admissible evidence, but only with opinion and argument. She appended to the response the following exhibits: a November 14, 2005 anti-predatory high cost worksheet; an “Itemization of Amount Financed”; letters between Choudhuri and the Wells Fargo dispute resolution department; e-mails between Choudhuri and Bell; a November 10, 2005 general loan acknowledgment; a December 2005 credit report; a notice of right to cancel indicating that the last day to cancel the transaction was December 23, 2005; and excerpts from Bell’s deposition.
Choudhuri also submitted a statement of undisputed material facts. The evidence cited in this statement consisted of “Exhibit A of amended complaint”; Choudhuri’s summary of conversations between Bell and herself, which she declared in the statement “to be true on penalty of perjury”; and a September 19, 2008 loan statement from Wells Fargo to Choudhuri, which she claimed showed Wells Fargo’s fraud. The remainder of the “supporting evidence” was merely Choudhuri’s arguments and allegations.
Choudhuri also filed three requests for judicial notice. In the first, she asked the court to take judicial notice of “the following incidents and the continued fraud actions by the defendants, their officers, employees and their agents, ” alleged fraudulent actions that she then proceeded to detail in a four-page narrative. A second request “re inaccurate deposition records” sought judicial notice of “continued deposition malpractice endured by plaintiff” and of “defendants’ court reporters deliberate mis-transcription of key testimony presented by plaintiff during the depositions.” And in the third request, Choudhuri asked “the court to take judicial notice of the fact that defendants’ attorneys misled plaintiff into believing that the Hon. Judge John A. Sutro had failed to sign the order for the plaintiff to make her monthly mortgage payments to the court....”
Choudhuri also filed objections to Wells Fargo’s evidence. She cited various passages of all of the declarations and objected on “[l]ack of credibility, ” “conflicting testimony, ” and hearsay grounds. She also objected to the Walls declaration in its entirety on the ground that it was untimely filed. And she objected to Wells Fargo’s request for judicial notice.
On July 1, 2010, Wells Fargo filed its reply in support of its motion, along with evidentiary objections to Choudhuri’s separate statement, requests for judicial notice, and declaration. It also objected to the exhibits Choudhuri filed in support of her opposition, stating only that “[t]he documents have simply been tossed into the Opposition. They have not been authenticated, they lack foundation, there is no context for them making them irrelevant, overbroad and hearsay.”
Wells Fargo’s motion was set to be heard on July 7, 2010, before the Honorable James R. Ritchie. Prior to the hearing, Judge Ritchie issued a tentative ruling granting summary judgment. Choudhuri responded to the ruling by filing a “Response and Oral Argument to Court’s Tentative Ruling of 07/07/10 on Defendants’ Motion for Summary Judgment, ” in which she detailed at length her opinions as to why the tentative ruling was erroneous. Appended to the document were over 100 pages of exhibits—none of which was authenticated—including excerpts of deposition testimony, email communications between Choudhuri and Bell, various documents pertaining to the loan, and the complete transcript of Bell’s deposition.
Although apparently provided to Judge Ritchie at the July 7 hearing, the document was not actually filed with the court until the following day.
On July 7, 2010, the matter came on for hearing before Judge Ritchie. After hearing argument on the motion, he took it under submission. The next day, he entered a detailed order granting summary judgment for Wells Fargo, as follows:
The record does not contain a transcript of the hearing.
As to the cause of action for common count, Judge Ritchie rejected Wells Fargo’s argument that the claim was barred by the two-year statute of limitations for oral agreements. Instead, he explained that it appeared that Choudhuri’s common count claim was “based on the same facts alleged in the second cause of action for breach of the written contract.” As such, the four-year statute of limitations period applied. Judge Ritchie noted, however, that “[t]o the extent [Choudhuri] continue[d] to allege a common count claim based on... Bell’s alleged oral agreement, that claim is barred by the two year statute of limitations.”
Judge Ritchie then granted summary adjudication of the common count claim, explaining that “[b]ecause this action is based on the same facts as the breach of contract cause of action, it fails for the same reasons discussed below.”
Turning to Choudhuri’s cause of action for breach of contract, Judge Ritchie concluded that Wells Fargo met its burden of demonstrating that Choudhuri could not establish one or more elements of the claim: “Defendants’ evidence establishes that plaintiff was aware of the terms of the adjustable rate mortgage before agreeing to and signing the loan documents; Wells Fargo was required by the terms of the loan documents (commitment letter, note, and deed of trust) to pay plaintiff’s delinquent property taxes from plaintiff’s cash-out at the time of closing; Wells Fargo properly applied the LIBOR index to periodically adjust the variable interest rate charged on the loan; Wells Fargo properly calculated the monthly adjustable mortgage payments due; Wells Fargo did not breach the terms of the written agreements when it created an escrow account to use in paying plaintiff’s delinquent property taxes; and Wells Fargo properly added fines and penalties for plaintiff’s untimely mortgage payments and delinquent property tax payments.”
Looking next at Choudhuri’s burden, Judge Ritchie concluded that she “failed to present rebuttable evidence of sufficient quality in order to show a triable issue of fact....” He explained: “Plaintiff’s opposing separate statement raises objections to defendants’ facts either by: constructing an alternate narrative of the surrounding events and statements without evidentiary support; or by advocating conflicting interpretations of the unambiguous loan-related documents. Importantly, her separate statement does not refer to documents, emails, witness statements, or discovery responses in support of her purported objections, in violation of Code Civ. Proc. § 437c(b)(3) [‘Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.’].) [¶] Ignoring this defect, the court concludes that a review of the record provided by all parties shows no evidence to establish defendants breached any of the terms of the written agreements. Plaintiff’s unsupported beliefs, allegations, and objections to the contract terms, are not sufficient to raise a triable issue of fact. (See Miller v. American Greetings Corp. (2008) 161 [Cal.App.]4th 1055, 1061-1062 [respondent attacked credibility of moving party’s declaration but had no evidence to refute it].)” With that, Judge Ritchie granted summary adjudication on the breach of contract cause of action.
Judge Ritchie then addressed Choudhuri’s three different fraud theories. As to a claimed fraudulent misrepresentation, he concluded that “[t]he documentary evidence submitted by defendants, along with declarations by Wells Fargo’s employees, defendant Todd Bell, Jamie Walls, and Jacqueline Krome, established a prima facie showing that the alleged oral misrepresentations or conversations to convince plaintiff to enter into a 30 year fixed mortgage, never took place.” He then explained that to raise a triable issue of fact, Choudhuri had to “present evidence that Bell is lying. Plaintiff’s only evidence of the existence of these conversations is her own contradictory statements. However, under these circumstances, that is not sufficient. [¶] Plaintiff offers no crucial details of the conversation; e.g., date, place, surrounding circumstances. Since plaintiff is in the best position to know the material facts of these alleged conversations, her failure to supply this evidence should be held against her, i.e., her evidence is insufficient. In such cases, plaintiff’s lack of knowledge shows inability to establish a prima facie case.”
As to Choudhuri’s allegations of accounting fraud, Judge Ritchie reiterated that Wells Fargo’s oral and documentary evidence demonstrated that it properly calculated the adjustable interest rates, monthly mortgage payments, and property taxes owed; and that the fines and penalties for late mortgage and tax payments were properly assessed. Choudhuri then failed “to provide sufficient evidence showing that any of these calculations and assessments was fraudulently made....” Similarly, she failed to present evidence “creat[ing] a triable issue of fact on her claim that defendants falsely inflated plaintiff’s income in order to qualify her for the loan.”
As to Choudhuri’s allegations of foreclosure fraud, Judge Ritchie explained that the evidence showed that beginning in April 2006, Choudhuri started missing her mortgage payments. She did not deny that she missed payments, but alleged that she did so at the recommendation of Wells Fargo customer care personnel. Wells Fargo produced “declarations and documentary evidence showing Wells Fargo required and demanded plaintiff’s compliance with the payment schedule....” In response, Choudhuri “failed to provide evidence of sufficient quality to raise a triable issue of fact as to this claim. Plaintiff does not describe precisely what was said to her, who said it, their authority, or the time and location. Also, plaintiff’s documentary evidence (exs. A and B) do not support her contention.”
Judge Ritchie further noted that to the extent Choudhuri claimed “Wells Fargo charged her an improper LIBOR rate, improperly impounded funds to pay delinquent property taxes, or failed to provide proper notice of cancellation, these claims are all preempted by the federal regulations.” With that, he granted summary adjudication on Choudhuri’s fraud cause of action.
Judge Ritchie also ruled on the parties’ respective requests for judicial notice, denying Choudhuri’s requests in their entirety. He denied Wells Fargo’s request as to the complaints filed by Fortis Capital, LLC and Chase Bank U.S.A., N.A. against Choudhuri in unrelated actions, and granted it as to the remaining items.
Lastly, Judge Ritchie ruled on the parties’ evidentiary objections. He sustained Wells Fargo’s objections to paragraphs 2, 3, and 4 of Choudhuri’s declaration, but denied its objection to the exhibits Choudhuri filed in support of her opposition on the ground that it was not in the format required by Rule 3.1354.
Judge Ritchie overruled Choudhuri’s objections to the declarations of Bell, Grantham, Krome, and Sgnilek. As to the Walls declaration, he sustained objection nos. 5, 10, and 11 on the ground that “Walls’ reference to a summary of plaintiff’s payment history is not properly authenticated” and objection no. 19 to Exhibit C, which was referenced in the declaration but not attached to it.
Judgment was subsequently entered for Wells Fargo and Bell, from which Choudhuri filed a notice of appeal.
DISCUSSION
A. Summary Judgment and the Standard of Review
As we recently explained in Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 253: “Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is properly granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) As applicable here, moving defendants can meet their burden by demonstrating that ‘a cause of action has no merit, ’ which they can do by showing that ‘[o]ne or more elements of the cause of action cannot be separately established....’ (§ 437c, subd. (o)(1); see also Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 486-487.) Once defendants meet this burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact. (§ 437c, subd. (p)(2).)”
In meeting his or her burden, plaintiff “may not rely upon the mere allegations or denials of [the] pleadings, ” but must “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c(p)(2).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact.... To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10-11; accord, Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635) A plaintiff satisfies his or her burden and creates “a triable issue of material fact if, and only if, the [admissible and properly referenced] evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)
It has often been said that in considering a motion for summary judgment or adjudication, the court conducts a three-step analysis: “ ‘ “First, we identify the issues framed by the pleadings.... [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor.... [¶] When a... motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” ’ ” (Rosales v. Battle, supra, 113 Cal.App.4th at p. 1182.)
On appeal, we review a grant of summary judgment de novo: “ ‘[W]e must decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. [Citations.]’ (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348.) Put another way, we exercise our independent judgment, and decide whether undisputed facts have been established that negate plaintiff’s claims.” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 253; accord, Fisherman’s Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320 [“[W]e exercise an independent review to determine if the defendant moving for summary judgment met its burden of establishing a complete defense or of negating each of the plaintiff’s theories and establishing that the action was without merit.”].)
Under the de novo standard, we decide the issues without regard to the trial court’s analysis. In other words, we review the court’s ruling, not its reasoning. (Coral Construction, Inc. v. City and County of San Francisco (2010) 50 Cal.4th 315, 336; Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1561; Richards v. Department of Alcoholic Beverages Control (2006) 139 Cal.App.4th 304, 312.)
While we review the trial court’s grant of summary judgment de novo, we do not, as Choudhuri urges, “examine all of the issues raised in her Opening Brief de novo....” Many of the issues she raises in her opening and reply briefs are not properly before us on appeal, let alone subject to de novo review.
With these principles in mind, we turn to the causes of action in Choudhuri’s pleadings, addressing them out of turn to begin with the second cause of action for breach of contract.
B. Judge Ritchie Properly Granted Summary Adjudication on the Second Cause of Action for Breach of Contract
As noted above, we begin our analysis by determining the issues as framed by the pleadings. (Rosales v. Battle, supra, 113 Cal.App.4th at p. 1182.) Because of the convoluted manner in which Choudhuri amended her second amended complaint, the precise nature of the contract that is the subject of this cause of action is not obvious. In her second amended complaint, Choudhuri alleged not that the subject contract was written or oral, but that it was a “written contract contingent upon oral promises” between herself and Bell as a representative of Wells Fargo. She represented that “[a] copy of the agreement is attached as Exhibit A, ” but no such exhibit was attached.
In her April 27, 2009 amendment to the second amended complaint, Choudhuri clarified “that the contract is a written contract, ” but then went on “to reiterate that this written contract was signed by the plaintiff contingent upon Todd Bell’s oral representations to the plaintiff.”
And in her August 17, 2009 amendment to the second amended complaint, Choudhuri reiterated that it was a written contract, alleging: “The written contract indicated that the defendants were indebted to the plaintiff in the amount of ~$8,632.78 which was the cash-out finances portion promised in writing. Defendants breached this promise made in the written contract without disclosures to the plaintiff about any changes in facts material to the status of the contract. Plaintiff wishes to reiterate that this written contract was signed by the plaintiff contingent upon Todd Bell’s oral representations to the plaintiff, an oral contract which was also breached. As a result of these breaches of contracts (both written and oral), the plaintiff has suffered proximate harm, including but not limited to severely impaired credit ratings and credit card collections and all the damages listed in the filings thus far. The total indebtedness of the defendants as the result of the fraudulent actions amounts to over $300,000 currently as detailed in the updated damages filed.”
From the foregoing, it appears that Choudhuri’s breach of contract cause of action was premised on her contention that Bell promised her he had obtained, or would obtain, his manager’s approval to depart from the bank’s requirement that Choudhuri’s delinquent property taxes had to be paid at closing, and that she was promised a cash-out payment of $8,632.78 as a term of the loan agreement. Wells Fargo, however, made a prima facie showing that no such promises were made.
Wells Fargo’s evidence established the following: Wells Fargo provided Choudhuri with a commitment letter dated December 20, 2005—two days before the close of escrow—that unambiguously stated: “Unless otherwise provided in the specific conditions section of this commitment, any and all existing liens on the property must be paid in full at closing.” The specific conditions section contained no mention of any exception to this requirement. As of December 10, 2005, Choudhuri’s property taxes were delinquent, and that was precisely the kind of lien that would be paid at closing.
According to Bell’s testimony, he never represented to Choudhuri that he had discussed, or would discuss, the unpaid tax issue with his manager in order to obtain approval for deviation from the bank’s policy. And he himself had no authority to waive payment of delinquent taxes.
Upon this showing, the burden then shifted to Choudhuri to introduce evidence creating a triable issue of fact as to the existence of this purported agreement. She bore the burden of “ ‘mak[ing] an independent showing by a proper declaration or by reference to a deposition or another discovery product that there [was] sufficient proof of [the existence of the alleged agreement] to raise a triable question of fact.’ ” (Trujillo v. First American Registry, Inc., supra, 157 Cal.App.4th at p. 635.) Code of Civil Procedure section 437c, subdivision (b)(3) required Choudhuri to cite such evidence in her response to Wells Fargo’s separate statement. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009)170 Cal.App.4th 554, 568 [separate statement must state whether opponent contends the fact is disputed and also “ ‘be followed by a reference to the supporting evidence.’ ”].) Choudhuri utterly failed to satisfy this burden. As Judge Ritchie correctly summarized: “Plaintiff’s opposing separate statements raises objections to defendants’ facts either by: constructing an alternate narrative of the surrounding events and statements without evidentiary support; or by advocating conflicting interpretations of the unambiguous loan-related documents. Importantly, her separate statement does not refer to documents, emails, witness statements, or discovery responses in support of her purported objections, in violation of Code Civ. Proc. § 437c(b)(3).”
Specifically, in her response to Wells Fargo’s separate statement, Choudhuri “object[ed]” or “strongly object[ed]” to each and every fact set forth by Wells Fargo. She argued that Bell perjured himself, denied that her property taxes were delinquent, and said that she had been misled by Bell. But the only document Choudhuri cited that in anyway involved the cash out was an “email trail” between herself and Steven M. Dailey, counsel for Wells Fargo, which she claimed somehow confirmed an admission by Bell that he did in fact promise Choudhuri that her property taxes would not be paid at closing. The “email trail” is not attached to Choudhuri’s response as “Exhibit C” as represented, and while it appeared elsewhere in her submissions, it was unauthenticated and, more importantly, its contents did not establish that Bell made such an admission.
Choudhuri also submitted a statement of undisputed material facts, but this suffers from the same fatal flaws. The so-called “facts” consisted of Choudhuri’s opinions and arguments, while the “[s]upporting evidence” consisted of “Exhibit A of amended complaint”; a summary of oral communications between Bell and herself, which Choudhuri declared, in the statement, “to be true on penalty of perjury”; and a September 19, 2008 loan statement from Wells Fargo to Choudhuri, which she claimed showed Wells Fargo’s fraud. Again, none of this was authenticated, nor did it constitute credible evidence creating a triable issue as to the existence of the alleged agreement.
Choudhuri’s failure to support her opposition with evidence cited in her separate statement (or her response to Wells Fargo’s separate statement) alone constituted a basis for granting Wells Fargo’s motion. (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co., supra, 170 Cal.App.4th at p. 568 [“ ‘Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.’ ”].) But even if we were to overlook this significant defect, we would still conclude that she failed to satisfy her burden, because nothing in the record created a triable issue of fact concerning the existence of the alleged agreement.
For example, Choudhuri submitted a four-paragraph declaration, but Judge Ritchie sustained Wells Fargo’s objections to the last three paragraphs, leaving only the following: “I am the plaintiff in this case and have personal knowledge of the facts set forth in this declaration and if called as a witness, could and would competently testify to such facts as under oath.” Similarly, Choudhuri submitted three requests for judicial notice, which requests the trial court denied.
Choudhuri also attached the following documents to her response to Wells Fargo’s separate statement: a November 14, 2005 anti-predatory high cost worksheet; an “Itemization of Amount Financed”; communications between Choudhuri and the Wells Fargo dispute resolution department; emails between Choudhuri and Bell; a November 10, 2005 general loan acknowledgment; a December 2005 credit report; a notice of right to cancel indicating that the last day to cancel the transaction was December 23, 2005; and excerpts from Bell’s deposition. Again, none of these documents was properly authenticated or evidenced the purported agreement.
Wells Fargo objected to these documents as follows: “The documents have simply been tossed into the Opposition. They have not been authenticated, they lack foundation, and there is no context for them[, ] making them irrelevant, overbroad and hearsay.” Judge Ritchie overruled the objection on the ground that it was not in the format required by Rule 3.1354(b).
The same is true of the 105 pages attached to Choudhuri’s “Response and Oral Argument to Court’s Tentative Ruling” submitted to the court on the day of the hearing. That attachment included an email exchange between Choudhuri and Bell that occurred after the loan closed, on which she places heavy reliance. In the emails, Bell advised her that “$6,000+ in monies from your [loan] proceeds had to go toward property tax payments owed to Marin County!” She responded, “You had not explained to me that this would happen—in fact we had discussed this and you told me that it would not be necessary.” This exchange simply does not suggest, as Choudhuri would have us believe, that Bell promised her he would obtain his manager’s approval to deviate from Wells Fargo’s requirement that her delinquent property taxes be paid at closing.
Choudhuri’s arguments on appeal as to why summary adjudication on this cause of action is the wrong result are, once again, difficult to ascertain. None of her arguments is addressed specifically to the individual causes of action on which Judge Ritchie granted summary adjudication. Rather, she submits a number of general arguments addressed at what she perceives to be Judge Ritchie’s errors. Primarily, Choudhuri claims that she submitted extensive evidence proving her allegations. She disputes Judge Ritchie’s assertion that she provided “merely claims or theories, ” contending that he “cho[se] to overlook all of the dates, emails and other correspondence and records contained in the exhibits to the complaint [citation] and further attached to Plaintiff’s response and oral argument to Court’s Tentative Ruling of 07/07/2010 on Defendants’ Motion for Summary Judgment filed July 08, 2010.” Elsewhere she similarly refers to the “ample evidence in the exhibits to her very first complaint and subsequent amendments, fully providing emails, letters, details such as dates of events. Plaintiff further supported her complaint by attachments of email trails and deposition records....”
Such statements are illustrative of Choudhuri’s complete lack of understanding of what constitutes admissible evidence, what evidence is before the court on a motion for summary judgment or adjudication, and how that evidence must be presented. The rules governing these issue are not “relative trivialities, ” as Choudhuri dismissively refers to them. While we anticipate that any explanation will fall on deaf ears, we will reiterate what Judge Ritchie accurately concluded: Choudhuri’s “unsupported beliefs, allegations, and objections to the contract terms” are not admissible evidence. Documents appended to a pleading, and specifically here the 172 pages Choudhuri attached to her original complaint, are not evidence. The only evidence that can be considered on summary judgment—whether at the trial or appellate level—is properly authenticated evidence referenced in the party’s separate statement, or response to a separate statement, and which tends to prove the fact at issue. (See Code Civ. Proc., § 437c, subd. (b)(3); Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850; Truijillo v. First American Registry, Inc., supra, 157 Cal.App.4th at p. 635; Wiz Technology, Inc. v. Coopers & Lybrand, supra, 106 Cal.App.4th at pp. 10-11.) Not opinions, arguments, or conjecture.
In fact, the original complaint was not before the trial court, nor is it before us, because it was superseded by subsequent amended complaints. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 [“ ‘an amendatory pleading supersedes the original one, which ceases to perform any functions as a pleading’ ”]; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054.) It is as if the original complaint, and the first amended complaint, never existed. Thus, Choudhuri’s claim that “in her very first filing [she] provided documentary evidence of the promise of $8,632.78 in cash-out funds in the contract signed by the Plaintiff on December 22, 2005 and the mere $2,366.82 which was actually paid as cash-out upon closing” is, to put it simply, wrong.
Choudhuri also argues that “the lower court abused its discretion, exceeding the bounds of reason in dismissing the action by not considering the record before it as it related to specific dates and other details of the chain of fraud that the Defendants perpetrated upon the Plaintiff. [Citation.] In particular, it chose to completely overlook or deliberately ignore Plaintiff’s amendment of April 27, 2009 and November 17, 2009 which corrected all of the deficiencies pointed out by the court and in the Defendants’ innumerable demurrers.” First, we review Judge Ritchie’s ruling de novo (Intel Corp. v. Hamidi, supra, 30 Cal.4th at p. 1348), not for an abuse of discretion. Second, Choudhuri provides no support for her assertion that Judge Ritchie ignored her amendments to the second amended complaint. And third, her pleadings did not constitute evidence, nor are Wells Fargo’s demurrers relevant at this point in the proceeding.
Choudhuri also argues that the “[l]ower court should have recognized that Defendants had not perfected their defense, therefore burden does not shift to Plaintiff.” She fails to explain, however, how the evidence cited by Wells Fargo did not satisfy its burden.
Finally, Choudhuri contends that Judge Ritchie placed “high credence” on Wells Fargo’s documentary evidence, despite having sustained her objections to the evidence. The only objections Judge Ritchie sustained were to discrete portions and one exhibit of the Walls declaration and two items in Wells Fargo’s request for judicial notice. There is no indication in his order that he relied on this evidence, nor is there any suggestion that he weighed the evidence. Rather, his order reflects that he simply determined that Wells Fargo’s evidence made a sufficient prima facie showing that Choudhuri could not prove one or more elements of her claim, shifting to her the burden of producing evidence creating a triable issue of fact, a burden she failed to satisfy.
In sum, we conclude that Wells Fargo’s evidence shifted the burden to Choudhuri to demonstrate a triable issue of material fact concerning the existence of an agreement by Wells Fargo that it would deviate from its policy of requiring payment of any liens, such as delinquent property taxes, at the time of closing, or the existence any other agreement promising that she would receive $8,632.78 at the time of closing. Choudhuri then failed to introduce any admissible evidence creating a triable issue of fact concerning the existence of this alleged agreement. As such, summary adjudication was properly granted on the breach of contract cause of action on this basis.
We need not address the alternative grounds on which Wells Fargo sought summary adjudication, such as the statute of limitations.
C. Judge Ritchie Properly Granted Summary Adjudication on the First Cause of Action for Common Count
Choudhuri’s cause of action for common count fares no better. Common counts are based on express or implied promises to pay money. (Moya v. Northrup (1970) 10 Cal.App.3d 276, 281.) A common count for money paid, laid out and expended, such as that alleged here, “lies when the act of payment was the result of an express or implied contract or gives rise to a quasi contract. [Citation.] The complainant must allege that the money was expended for the use and benefit of the defendant, at his instance and request, and such facts as will show an express or implied contract or a quasi contract on the part of the defendant to pay the amount so expended.” (Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 347, disapproved on other grounds in White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336.) As we explained in McBride v. Boughton (2004) 123 Cal.App.4th 379, 394-395, “A common count is not a specific cause of action, however; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness.... When a common count is used as an alternative way of seeking the same recovery demanded in a specific cause of action and is based on the same facts.... [the] common count must stand or fall with [the specific] cause of action.”
Here, Choudhuri’s August 17, 2009 amendment alleged that Wells Fargo became indebted to Choudhuri within the preceding four years “ ‘because an account was stated in writing by and between plaintiff and defendant in which it was agreed that the defendant was indebted to the plaintiff’ in the amount of $8,632.78 which was the cash out finances portion promised by the defendants in the written contract for $679,400 drawn up by the defendants and signed by the plaintiff at their San Francisco office on December 22, 2005, a copy of which was attached as Exhibit A to the complaint filed on June 26, 2008, and which is subject to the 4-year statute of limitations under CCP §337(1)). The defendants breached the contract by failing, without statutorily required disclosures of change in facts material to the contract, to provide the plaintiff, at the time of signing or at any later date (e.g., at the time of closing), with a check in the amount promised for cash-out finances stated in the written contract. This cause of action also relates to defendants’ breach of contract in their failure to credit plaintiff’s deposits and advances to the mortgage transaction at closing, which has caused the plaintiff’s principal to be fraudulently inflated by those amounts, since they showed up as a debit.”
It is evident from this that Choudhuri’s common count claim was premised on the same facts as her breach of contract claim, namely that Wells Fargo, through its agent Bell, promised that at the time of closing, Choudhuri would receive a cash-out payment of $8,632.78. Indeed, she conceded as much in her “objection” to Judge Ritchie’s tentative ruling. As that cause of action has failed, so too must this one. (McBride v. Boughton, supra, 123 Cal.App.4th at pp. 394-395.)
D. Judge Ritchie Properly Granted Summary Adjudication on the Third Cause of Action for Fraud
As with the other causes of action, Choudhuri’s claim for fraud is comprised of a series of evolving allegations that make it difficult to ascertain the precise nature of the claim. In her second amended complaint, the fraud claims consisted of two pages of the Judicial Council form pleading, on which Choudhuri checked “Intentional or Negligent Misrepresentation, ” “Concealment, ” and “Promise Without Intent to Perform” as the manners in which Wells Fargo defrauded her, plus an attachment for “accounting fraud” and another alleging “foreclosure fraud.” In her two subsequent amendments, she alleged additional details regarding fraud and incorporated allegations from other, no longer viable causes of action.
When all is said and done, and as best as we can determine, Choudhuri’s fraud claim appears to concern the disputed loan’s origination or the manner in which Wells Fargo later administered it. As to loan origination, she alleged: (1) Bell falsely promised that Wells Fargo would not use cash-out funds to pay her delinquent property taxes; (2) Bell failed to tell Choudhuri before December 28, 2005 that cash-out funds would be used to pay property taxes; (3) Bell falsely promised a 30-year, fixed interest rate loan, when the loan was, in fact, a 2/6 adjustable rate mortgage; (4) Wells Fargo inflated Choudhuri’s income on loan documents to qualify her for the loan and falsely led her to believe she had qualified for the loan; and (5) Bell gave Choudhuri incorrect information about the deadline for exercising her three day right of rescission.
As to administration of the loan after closing, Choudhuri appeared to claim that: (1) Wells Fargo did not adjust the loan’s interest rate correctly; (2) Wells Fargo misapplied or failed to apply Choudhuri’s payments correctly; and (3) Wells Fargo mishandled the impound and payment of property taxes.
As previously discussed, Wells Fargo produced evidence establishing that it informed Choudhuri before closing that “any and all existing liens on the property must be paid in full at closing.” This term was clearly contained in the commitment letter provided to Choudhuri on December 20, 2005. Wells Fargo loan administration manager Jacquie Krome testified that delinquent property taxes were precisely the type of lien that would be paid off because the taxes would otherwise take priority over the Wells Fargo loan. Bell testified that at no time did he promise Choudhuri that Wells Fargo would deviate from this policy. Because Choudhuri’s property taxes were past due at the time of closing, part of the cash out proceeds were used to pay the taxes.
The evidence also established that Bell never promised Choudhuri that she was getting a 30-year fixed interest rate loan. In fact, Bell’s position in the subprime department of Wells Fargo did not allow him to offer clients fixed rate mortgages. The loan documents provided to Choudhuri before the closing date clearly reflected that the loan was a 2/6 adjustable rate loan. Indeed, Choudhuri admitted in her deposition that Bell told her, at least the day before closing, that the loan was a 2/6 adjustable rate mortgage. Finally, the loan documents, including the commitment letter and the adjustable rate note, clearly showed that the loan was a 2/6 adjustable rate loan.
As to Choudhuri’s allegation that Wells Fargo committed fraud by allegedly inflating her income on loan documents in order to qualify her for a loan that she could not afford, our colleagues in Division Five recently rejected a similar claim. (See Perlas v. GMAC Mortgage, LLC (2010) 187 Cal.App.4th 429, 435-436 [borrower could not allege fraud claim against a lender based on lender’s representation that borrower qualified for loan, even if qualification was based on inflated income].)
Finally, Wells Fargo’s evidence demonstrated that it properly administered Choudhuri’s loan after closing. Wells Fargo litigation specialist Walls testified in detail concerning Wells Fargo’s proper application of Choudhuri’s payments to her account, while Wells Fargo loan administration manager Grantham testified at length as to Wells Fargo’s proper adjustment of the loan’s interest rate in accordance with the terms of her promissory note and published LIBOR data. Wells Fargo’s evidence also demonstrated that it properly required an escrow for real property taxes, and paid those taxes after Choudhuri failed to do so as promised under her deed of trust.
The burden then shifted to Choudhuri to identify evidence creating a triable issue of fact concerning Wells Fargo’s origination and administration of the loan. As above, this Choudhuri failed to do. As we have already detailed, she identified no evidence in her response to Wells Fargo’s separate statement, nor did she introduce any admissible evidence regarding these allegations.
E. Choudhuri’s Extraneous Arguments Lack Merit
1. Wells Fargo Timely Served Its Motion
Choudhuri objects here, as she did below, that Wells Fargo failed to timely serve its moving papers such that Judge Ritchie should have denied the motion on that ground alone. As Choudhuri explains it, Wells Fargo was obligated to serve the motion 75 days prior to the July 7, 2010 hearing date. She claims, however, she did not receive the moving papers until May 6, 2010 and that Wells Fargo’s proof of service reflecting a service date of April 15, 2010 was falsified. Judge Ritchie considered the same argument below, and rejected it as meritless. We review Judge Ritchie’s factual determinations under the deferential substantial evidence standard (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957), and we conclude that the testimony by attorney Sgnilek that the motion was served by overnight mail on April 15, 2010, as corroborated by the proofs of service of the moving papers, supports his conclusion that the motion was timely filed.
2. The Issue of Judicial Disqualification Is Not Properly Before Us
In her opening brief, Choudhuri offers a timeline of various changes in the trial judges assigned to hear her case. She also notes that at one point, the matter was assigned to Honorable John A. Sutro and that she filed a challenge to Judge Sutro pursuant to Code of Civil Procedure section 170.1 because, in her opinion, he had close ties to Wells Fargo. The challenge was rejected as untimely. Choudhuri now “requests an investigation into the reassignments mentioned” and challenges Judge Sutro’s refusal to recuse himself.
The exclusive means for obtaining judicial review of an issue concerning disqualification is by petitioning for a writ of mandate within 10 days after service of notice of the ruling on the disqualification issue. (Code Civ. Proc., § 170.3, subd. (d); People v. Hull (1991) 1 Cal.4th 266, 276; Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1348-1349.) Choudhuri filed such a writ petition concerning her challenge to Judge Sutro. (No. A124558.) We summarily denied it and will not now reconsider the issue on appeal. (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 849-850.)
DISPOSITION
The summary judgment in favor of defendants Wells Fargo Home Mortgage and Todd Bell is affirmed. The stay issued by this court on April 21, 2011, shall be dissolved upon issuance of our remittitur.
We concur: Haerle, Acting P.J. Lambden, J.
On appeal, Wells Fargo contends that Judge Ritchie erred in overruling its objection, a contention we review for abuse of discretion. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) We need not consider whether the objection was properly overruled, however, because nothing in the documents raised a triable issue of fact. Thus, any error in allowing the documents—if any there was—would have been harmless.