Filed 6/28/17 Abu-Ghazaleh v. Wells Fargo Bank CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO


ADEL ABU-GHAZALEH,
Plaintiff and Appellant,
v.
WELLS FARGO BANK, N.A.,
Defendant and Respondent.

A148527

(Contra Costa County
Super. Ct. No. C1501063)


Plaintiff Adel Abu-Ghazaleh (Abu-Ghazaleh) appeals from the trial court’s sustaining of a demurrer by defendant Wells Fargo Bank, N.A. (Wells Fargo) to plaintiffs’ breach of contract cause of action. Abu-Ghazaleh contends the trial court wrongly decided that they did not allege facts sufficient to state a cause of action. We conclude plaintiffs’ cause of action was time-barred and affirm on this basis.
BACKGROUND
In June 2015, plaintiffs filed a verified complaint with exhibits against two defendants, Wells Fargo and First American Title Company, and later filed a verified first amended complaint with exhibits. Plaintiffs alleged three causes of action based on defendants’ efforts to foreclose on plaintiffs’ home, a residential real property in San Ramon, California. Plaintiffs alleged that defendants sought to foreclose on their home, despite plaintiffs’ entering into a loan modification agreement with Wells Fargo. Plaintiffs alleged they became aware on or about April 20, 2011, that defendant Wells Fargo had breached their written loan modification agreement, attached as Exhibit C to the first amended complaint, by unilaterally increasing plaintiffs’ monthly mortgage payment from $5,082.85 to $11,843.43. Plaintiffs also alleged defendants had violated Civil Code section 2923.6 by ignoring plaintiffs’ June 2015 efforts to contact Wells Fargo and instead proceeding with their efforts to foreclose. Finally, plaintiffs alleged that defendants’ actions violated the Unfair Competition Law, Business and Professions Code section 17200 et seq. Plaintiffs sought an injunction prohibiting the further sale of their home, as well as general and consequential damages.
Wells Fargo filed a demurrer to plaintiffs’ first amended complaint. It argued that plaintiffs’ breach of contract cause of action was time-barred under Code of Civil Procedure section 337(1), which requires a breach of a written contract claim be brought within four years of the alleged breach. It further argued that all three of plaintiffs’ causes of action failed to state facts sufficient to state a cause of action and were uncertain. Plaintiffs did not file any opposition.
On May 6, 2016, the court adopted its tentative ruling with a modification and sustained Wells Fargo’s demurrer without leave to amend. The court ruled regarding plaintiffs’ breach of contract cause of action that plaintiffs did not allege a necessary element—that they had either performed or been excused from performing on the contract—since they did not allege they made mortgage payments after April 2011. Further, plaintiffs did not allege any facts in support of their allegation that “Wells [Fargo] breached the agreement by ‘intentionally refusing to honor payments under the Agreement,’ ” rendering this a conclusory allegation. And just as important, although the mortgage statement attached to the first amended complaint indicated that the total monthly payment of $11,843.83 was comprised of “principal and/or interest” and “escrow,” plaintiffs did not address the escrow payments they were required to make in addition to their mortgage payment, undermining their contention that this $11,843.83 was an impermissible increase in their monthly mortgage payment alone.
The trial court ruled regarding plaintiffs’ cause of action for violation of Civil Code section 2923.6 that their allegations did not allege a violation. Specifically, plaintiffs were required to allege, but did not allege that after they were evaluated for a loan modification prior to January 1, 2013, they had submitted a documented change in their financial circumstances to their mortgage servicer.
The trial court ruled regarding plaintiffs’ Unfair Competition Law claim that they did not allege a necessary element, that they had suffered an economic injury, since the trustee’s sale of their home had not yet occurred.
The court ordered the action dismissed with judgment for Wells Fargo, and for Wells Fargo to also submit a proposed judgment of dismissal with prejudice that included the other defendant, First American Title Insurance Company. On June 1, 2016, Abu-Ghazaleh filed a notice of appeal from the court’s May 6, 2016 order.
DISCUSSION
Abu-Ghazaleh challenges the trial court’s sustaining of Wells Fargo’s demurrer regarding plaintiffs’ breach of contract cause of action only. Abu-Ghazaleh contends that the trial court erred because they alleged facts sufficient to state a cause of action. Wells Fargo responds that plaintiffs’ breach of contract cause of action was time-barred and, in any event, that plaintiffs did not allege facts sufficient to state a cause of action. We conclude plaintiffs’ breach of contract cause of action was time-barred.
“In our de novo review of an order sustaining a demurrer, we assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. [Citation.] We then determine if those facts are sufficient, as a matter of law, to state a cause of action under any legal theory. [Citation.] [¶] In making this determination, we also consider facts of which the trial court properly took judicial notice. [Citation.] Indeed, a demurrer may be sustained where judicially noticeable facts render the pleading defective [citation], and allegations in the pleading may be disregarded if they are contrary to facts judicially noticed.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751.)
Further, we “must affirm if the trial court’s decision to sustain the demurrer was correct on any theory.” (Kennedy v. Baxter Healthcare Corp. (1996) 43 Cal.App.4th 799, 808.) In other words, “we do not review the validity of the trial court’s reasoning but only the propriety of the ruling itself.” (Orange Unified Sch. Dist. v. Rancho Santiago Cmty. College Dist. (1997) 54 Cal.App.4th 750, 757.)
The parties extensively debate whether or not plaintiffs alleged facts sufficient to state a breach of contract cause of action. We need not address this debate, however, because Wells Fargo, as it did below, argues first that plaintiffs’ breach of contract cause of action was time-barred under Code of Civil Procedure section 337(1). That provision requires a breach of a written contract claim to be brought within four years of the alleged breach. Abu-Ghazaleh does not address this issue. We agree with Wells Fargo.
Plaintiffs filed their initial complaint on June 19, 2015. Their first amended complaint alleges that Wells Fargo breached their written loan modification agreement with plaintiffs, which was attached to the complaint, on April 1, 2011, by requiring plaintiffs to make monthly mortgage payments of $11,843.83, rather than the $5,082.85 previously agreed to in the loan modification agreement. Plaintiffs further allege that they became aware of this breach of the loan modification agreement on or about April 20, 2011. Thus, plaintiffs’ breach of contract claim accrued no later than April 2011, whether measured from when Wells Fargo actually breached the loan modification agreement or when plaintiffs became aware of the breach. “A cause of action for breach of contract accrues at the time of breach, which then starts the limitations period running.” (Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1120.) April 2011 was more than four years before plaintiffs filed their initial complaint in June 2015.
Although Abu-Ghazaleh does not address the issue in his appellate briefing, plaintiffs argued below in their opposition to Wells Fargo’s demurrer that they did not know they had a claim until “mid-August 2011,” which, if true, would mean they filed their initial complaint within the four-year statute of limitation. Mid-August 2011 was when, according to plaintiffs, Wells Fargo responded to their inquiry about Wells Fargo’s increase of their required monthly payment by informing them that it was “in fact going to increase Plaintiffs’ monthly mortgage payments to $11,843.83.” Thus, plaintiffs contended, the delayed discovery rule applied to their circumstances. Under this rule, “the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her.” (Jolly v. Eli Lily & Co. (1998) 44 Cal.3d 1103, 1110, fn. omitted.)
We conclude the delayed discovery rule has no bearing on this case. “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ ” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808, italics omitted.) Plaintiffs did not allege that they were unaware of Wells Fargo’s breach. To the contrary, they alleged in their first amended complaint that they knew Wells Fargo had “increased payment to $11,843.83 . . . on or about April 20, 2011, when Plaintiffs received a mortgage statement from WELLS wherein it stated that Plaintiffs were already behind on their mortgage payments and the statement further stated that the new monthly mortgage payment had increased to $11,843.83.” In other words, plaintiffs allege they discovered Wells Fargo’s purported breach in April 2011, more than four years before they filed their complaint in June 2015.
Plaintiffs’ further allegations are in effect that Wells Fargo did not reconsider this position upon plaintiffs’ inquiry. This is not relevant to when we determine plaintiffs knew or should have known about Wells Fargo’s breach. We measure plaintiffs’ time to file their complaint from when they themselves allege they discovered the breach, not from a later date when Wells Fargo allegedly confirmed these increased charges. Indeed, to rule otherwise would be to allow parties to extend their time to file a complaint by merely inquiring of the breaching party time and again whether they were really serious about the breach. This, of course, would be absurd. Plaintiffs were time-barred from pursuing their breach of contract cause of action because they filed it in June 2015, more than four years after they alleged they became aware in April 2011 that Wells Fargo had breached the parties’ written loan modification agreement.
In light of this conclusion, we have no need to address the parties’ other arguments.
DISPOSITION
The ruling appealed from is affirmed.


 




STEWART, J.



We concur.




KLINE, P.J.




RICHMAN, J.






















Abu-Ghazaleh v. Wells Fargo Bank (A148527)