Domondon v. Three Olives Inc.

Filed 6/25/20 Domondon v. Three Olives Inc. CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARY ALYN ABAD DOMONDON,
Plaintiff and Appellant,
v.
THREE OLIVES INC., et al.,
Defendants and Respondents.
B292561
(Los Angeles County
Super. Ct. No. BC641464)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Ernest M. Hiroshige, Judge. Affirmed.
David Y. Nakatsu for Plaintiff and Appellant.
McGuireWoods, Leslie M. Werlin and Adam F.
Summerfield for Defendants and Respondents.
__________________________

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Plaintiff Mary Alyn Abad Domondon had two mortgages on
her property totaling $825,000—a first mortgage for $660,000
and a second mortgage for $165,000, both serviced by defendant
Bank of America, N.A. (BofA). She fell behind on her payments,
and in 2011, BofA agreed to modify her loans. She and BofA’s
nominal beneficiary Mortgage Electronic Registration Systems,
Inc. (MERS) signed a written modification agreement that
increased the first loan to $854,348.77. The agreement did not
mention the second loan, but Domondon believed the modification
consolidated her second loan debt into the first loan (plus late
fees) and extinguished the separate second loan. She stopped
receiving a separate bill for the second loan as she had in the
past, and she made no further payments on the second loan.
BofA, however, never reconveyed the second deed of trust.
Instead, three years after the modification, MERS assigned the
defaulted second deed of trust to a third party, which eventually
foreclosed on Domondon’s property and evicted her.
Domondon sued BofA and MERS, as well as the parties
involved in the foreclosure, alleging a host of claims based on her
allegation the loans were consolidated and the second deed of
trust was void. The trial court sustained a demurrer from BofA
and MERS without leave to amend. Among other points, the
trial court interpreted the modification agreement to encompass
only the first loan, leaving the second loan in place.
Domondon rests her appeal almost entirely on arguing the
trial court improperly resolved a factual conflict when it
interpreted the modification agreement contrary to her
allegations. Like her, we are troubled by the trial court’s
approach, which ran contrary to settled standards on demurrer.
Ultimately, though, Domondon’s appeal fails. Even if we assume

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she is right and the trial court improperly resolved a factual
conflict, BofA and MERS raise a host of other reasons why the
demurrer was properly sustained. Domondon has not addressed
many of these arguments, and in the ones she has addressed, her
analysis is conclusory and unsupported. She has also made no
attempt to show she should be given leave to amend. We are
therefore compelled to affirm.
BACKGROUND
According to Domondon’s operative second amended
complaint (SAC), in 2006, Domondon took out two mortgages on
her property in Los Angeles from an entity called First
Franklin—a first loan for $660,000 and a second loan for
$165,000. She received separate statements and made separate
payments for each loan. Five years later in 2011, she experienced
financial difficulties and sought a loan modification, filling out an
application listing both loans and requesting they be
consolidated.
By that time, BofA had become servicer for both loans.
In January 2012, MERS, First Franklin, and BofA accepted the
loan modification. According to Domondon’s allegations, the first
and second loans were consolidated into a modified first loan for
$854,348.77, encompassing the first loan amount of $660,000, the
second loan amount of $165,000, and “assorted late fees for [her]
then delinquency.” In the process, BofA told her the loans would
be consolidated “and that her second loan would cease to exist.”
She believed this because the amount of the modified first loan
was so much higher than the original first loan and actually
exceeded the amount of the original first and second loans
together. After the modification, BofA sent her only one
“consolidated bill” and no longer sent any bills for the second

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loan, as it had done in the past. The modification agreement was
recorded. Domondon remained current on her payments under
the modification plan until her house was sold in foreclosure.
Either intentionally or negligently, BofA, MERS, and First
Franklin failed to reconvey the second deed of trust on the
property after the modification. Because the second loan was
extinguished, there was no security interest underlying that deed
of trust, so it was now void. Nonetheless, in 2015, MERS
assigned the deed of trust to another entity. That transfer
eventually led to a foreclosure sale of the property and
Domondon’s eviction.
Domondon filed this lawsuit on November 22, 2016 against
BofA and MERS, as well as the parties involved in the
foreclosure.1 A demurrer to the first amended complaint was
sustained with leave to amend, but the record does not contain
that complaint, the briefing on that demurrer, or the court’s
ruling. In the operative SAC, Domondon alleged claims for quiet
title and slander of title against MERS. As against both MERS
and BofA, she alleged claims for negligence; intentional and
negligent misrepresentation; intentional and negligent infliction
of emotional distress; violations of Business and Professions Code
section 17200; promissory estoppel; and declaratory relief.
Domondon attached a host of exhibits to her complaint,
including the recorded loan modification agreement. It is entitled
“Home Affordable Modification Agreement” and bears the loan
1 Those parties were an individual named Robert Madden
and two companies he owned—Trinity Financial Services and
Three Olives, Inc.—which Domondon alleged fraudulently
conducted the foreclosure and concealed it from BofA and MERS.
Madden and his companies are not parties to the current appeal.

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number for the first loan but does not mention the second loan.
Paragraph 3.B. modifies the “New Principal Balance” to
$854,348.77. Paragraph 3.C. states that $256,304.63 of the
“Deferred Principal Balance” is eligible for forgiveness in three
equal annual installments if Domondon makes timely monthly
payments. The resulting “Interest Bearing Principal Balance”
would be $598,044.14. Domondon alleged Paragraph 3.C. was a
loan forgiveness clause for the second loan, and this “deferred
principal reduction amount and write down of a second mortgage
was a common practice during the housing crisis around this
time.”
BofA and MERS demurred to the SAC, as did the other
defendants. BofA and MERS asserted a host of legal challenges
to Domondon’s claims and requested judicial notice of the
modification agreement, among other documents.2
The trial court sustained respondents’ demurrer without
leave to amend. The court noted it had sustained a demurrer to
the first amended complaint because Domondon “failed to allege
any facts against BOFA or MERS that constitute a cause of
action, [Domondon] could not allege proximate cause or
justifiable reliance as to support her negligence and fraud claims,
and [Domondon’s] title related claims fail because neither BOFA
nor MERS hold title to the Property or participated in the
foreclosure process. [Domondon’s] SAC fails to correct these
defects.”
2 Domondon did not include BofA and MERS’s request for
judicial notice in the record on appeal. We can glean from their
demurrer that the loan modification agreement was attached to
their request as Exhibit C.

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Taking judicial notice of the modification agreement and
other title documents, the court disregarded Domondon’s
allegation that the loans were consolidated and held the
modification agreement “show[s] that the loan modification was
as to the first mortgage only.” The court said the agreement
“states that it is for the ‘first lien mortgage’ and makes no
mention of the second mortgage. As such, [Domondon’s]
allegation that BOFA ‘consolidated’ the first and second
mortgages is demonstrably false.” On that basis, it rejected
Domondon’s negligence and fraud claims based on the allegation
BofA “misrepresented the fact that it was consolidating the two
mortgages.” It reasoned: “[Domondon] cannot allege that
BOFA’s misrepresentation proximately caused the second
mortgage to go into default, or that [Domondon] reasonably relied
on BOFA’s purported misrepresentations because [Domondon]
not only signed the loan modification agreement, it was recorded
at the County Recorder’s office and is part of the public record.
As such, at the very least, [Domondon] had constructive notice of
the fact that only the first mortgage was refinanced. Based on
the foregoing, not only is [Domondon’s] claim substantively
deficient, given that the loan modification occurred in January
2012, it is barred by the statute of limitations.”
For the “title related claims,” the court held the judicially
noticed documents showed neither BofA nor MERS participated
in the foreclosure process, so the title claims failed. The
remaining claims for emotional distress, unfair business
practices, promissory estoppel, and declaratory relief failed, the
court found, because they were derivative of the other claims.
The court denied leave to amend because the SAC did not
address the deficiencies in the first amended complaint and

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Domondon failed to demonstrate how the deficiencies could be
cured. The court entered judgment for BofA and MERS.
Domondon moved for a new trial, which the trial court
denied. Rejecting Domondon’s arguments, the court held (1) it
did not improperly weigh the evidence after taking judicial notice
of the loan modification agreement; (2) BofA and MERS did not
hold title at the time of the foreclosure; and (3) the delayed
discovery rule did not apply to render her claims timely.
DISCUSSION
I. Introduction
To place Domondon’s appeal in the proper context, we
briefly describe the parties’ appellate briefing and Domondon’s
burdens as appellant.
In her opening brief, Domondon’s centerpiece argument is
her claim the trial court improperly weighed the conflicting
evidence against her when it granted judicial notice of the loan
modification agreement and found it excluded the second loan.
(See Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242
Cal.App.4th 651, 660–661 (Richtek) [trial court erred in taking
judicial notice of allegations in foreign complaint, which
contradicted plaintiff’s express allegations in complaint].) From
that premise, Domondon argues each of her substantive claims is
adequately pled and timely brought under the applicable statute
of limitations. Many of her arguments are conclusory and
unsupported by authority. She also attacks the trial court’s
denial of the new trial motion on the same grounds. Although
she requests leave to amend, she does not address how she would
amend her claims if given another opportunity to do so.
In their respondent’s brief, BofA and MERS address each of
Domondon’s causes of action on the merits. In doing so, they

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raise myriad defects that have nothing to do with the trial court’s
allegedly faulty finding that the loan modification agreement
encompassed only the first loan and not the second. These
independent grounds could (and as we explain, do) support
sustaining the demurrer and denying the new trial motion. BofA
and MERS also point out Domondon did not attempt to show she
should be granted leave to amend.3
Domondon does not address any of these alternative
grounds in her reply brief. Nor does she argue respondents are
precluded from raising them for the first time in their
respondent’s brief. Nor does she show how she could amend the
complaint to fix these problems. Instead, she repeats her
argument the trial court improperly used judicial notice to
resolve a factual conflict.
II. Domondon’s Burdens as Appellant
The standards governing our review are well-settled. We
review the sustaining of a demurrer de novo. (SC Manufactured
Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 83 (Liebert).)
We must assume the truth of well-pleaded facts and facts that
can be reasonably inferred from those expressly pleaded. (Ibid.)
We may also consider exhibits attached to the complaint and
3 BofA and MERS also argue we must affirm the judgment
because Domondon did not include the trial court’s final order
sustaining the demurrer in the record on appeal. While that is
true, the record contains the court’s tentative ruling. In support
of the motion for new trial, Domondon’s counsel declared the
court incorporated the tentative ruling into its final order
sustaining the demurrer. BofA and MERS do not suggest counsel
was mistaken or the court’s ruling changed before the final order.
Based on this record, we can adequately review the trial court’s
ruling.

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facts properly subject to judicial notice. (Richtek, supra, 242
Cal.App.4th at p. 658.)
Even on de novo review, a plaintiff cannot simply “tender
the complaint and hope we can discern a cause of action. It is
plaintiff[’s] burden to show either that the demurrer was
sustained erroneously or that the trial court’s denial of leave to
amend was an abuse of discretion.” (Keyes v. Bowen (2010) 189
Cal.App.4th 647, 655 (Keyes).)
As in all appeals, “the trial court’s judgment is presumed to
be correct, and the appellant has the burden to prove otherwise
by presenting legal authority on each point made and factual
analysis, supported by appropriate citations to the material facts
in the record; otherwise, the argument may be deemed forfeited.
[Citations.] [¶] It is the appellant’s responsibility to support
claims of error with citation and authority; this court is not
obligated to perform the function on the appellant’s behalf.”
(Keyes, supra, 189 Cal.App.4th at pp. 655–656.)
Accordingly, our review “ ‘ “is limited to issues [that] have
been adequately raised and supported in plaintiffs’ brief.
[Citations.] Issues not raised in an appellant’s brief are deemed
waived or abandoned. [Citation.]” ’ ” (Pfeifer v. Countrywide
Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282.) This is
particularly important on review from a demurrer because we
must “affirm the trial court’s judgment if it is correct on any
theory, and on appeal, the responding parties are free to advance
legal arguments that they did not raise in the trial court and
which the trial court did not rely.” (L.K. v. Golightly (2011) 199
Cal.App.4th 641, 644.) For that reason, we will not reverse the
sustaining of a demurrer even if the trial court’s reasoning is
incorrect, so long as the judgment was correct. “ ‘After all, we

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review the validity of the ruling and not the reasons given.
[Citation.]’ ” (Alfaro v. Community Housing Improvement System
& Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1397.)
Finally, to obtain leave to amend, the appellant “ ‘bears the
burden of establishing that it could have amended the complaint
to cure the defect.’ ” (Daniels v. Select Portfolio Servicing, Inc.
(2016) 246 Cal.App.4th 1150, 1163 (Daniels).) “We review the
trial court’s denial of leave to amend for abuse of discretion.
[Citation.] ‘Where a demurrer is sustained without leave to
amend, [we] must determine whether there is a reasonable
probability that the complaint could have been amended to cure
the defect; if so, [we] will conclude that the trial court abused its
discretion by denying the plaintiff leave to amend.’ ” (Ibid.)
We apply these rules in analyzing Domondon’s specific
causes of action below. As we explain, the trial court erred in
making factual findings on the meaning of the modification
agreement, but that error did not impact the judgment because
BofA and MERS have raised independent reasons to sustain the
demurrer. Domondon has not addressed most of those grounds
and has failed to adequately support several of the arguments
she does present. And she does not explain why she should be
granted leave to amend.4
III. The Trial Court Improperly Resolved a Factual
Dispute in Sustaining the Demurrer
The trial court interpreted the loan modification
agreement’s silence on the second loan as unequivocal proof it
4 To the extent our opinion does not address any contentions
raised by the parties, including the statute of limitations issues,
they are unnecessary to our decision.

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covered only the first loan. In its view, the modification
agreement showed Domondon’s allegations that the two loans
were consolidated was “demonstrably false.” As noted, this
alleged error is the centerpiece of Domondon’s appeal.
The court’s finding was erroneous. On demurrer, the court
must assume the pleaded facts are true, but if there is a conflict
between the allegations and the exhibits attached to the
complaint, the exhibits control. (See Liebert, supra, 162
Cal.App.4th at p. 83; Del E. Webb Corp. v. Structural Materials
Co. (1981) 123 Cal.App.3d 593, 604.)5 However, if the attached
exhibits are ambiguous and susceptible to the plaintiff’s
construction, we “must accept the construction offered by
plaintiff.” (Liebert, supra, 162 Cal.App.4th at p. 83.)
The modification agreement’s silence on the second loan is
ambiguous and susceptible to Domondon’s interpretation. This is
perhaps best demonstrated by the modified loan amount itself,
which was enough to cover the first and second loans, plus late
payments and fees. Domondon’s interpretation is also supported
by logic. She was a financially troubled homeowner who sought
help through the modification agreement. Under the trial court’s
5 Domondon devotes a significant portion of her appellate
briefing to arguing the trial court improperly took judicial notice
of the content and meaning of the loan modification agreement.
The judicial notice issue is beside the point. She attached the
modification agreement to the SAC, so it was incorporated into
her allegations and the trial court could consider it in ruling on
the demurrer without taking judicial notice of it. (Stoops v.
Abbassi (2002) 100 Cal.App.4th 644, 650 [“ ‘Where written
documents are the foundation of an action and are attached to
the complaint and incorporated therein by reference, they become
part of the complaint and may be considered on demurrer.’ ”].)

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interpretation, she would have been worse off after the
modification—her first loan increased by more than $200,000
while leaving the second loan untouched, boosting her total loan
debt from $825,000 to more than $1 million. If she couldn’t pay
the lower amount before the modification, she certainly couldn’t
pay the higher amount after. On the other hand, it makes sense
BofA would increase Domondon’s first loan to consolidate and
extinguish the second loan while adding a potentially helpful
forgiveness clause like Paragraph 3.C. triggered by her timely
payments.
Nevertheless, this error has no impact on Domondon’s
appeal. We will credit her allegation the modification agreement
did not mention the second loan because the second loan was
being eliminated entirely and the outstanding amount
consolidated into the newly modified first loan. We will also
credit her allegation BofA and MERS told her the loans would be
consolidated, but then they failed to reconvey the second deed of
trust, leading to foreclosure. Even under her version of the facts,
all her claims fail for other reasons.
IV. Substantive Claims
Negligence
To state a negligence claim, a plaintiff must allege “(1) the
defendant owed the plaintiff a duty of care, (2) the defendant
breached that duty, and (3) the breach proximately caused the
plaintiff’s damages or injuries.” (Lueras v. BAC Home Loans
Servicing, LP (2013) 221 Cal.App.4th 49, 62 (Lueras).)
Domondon alleged BofA and MERS owed her a duty of care
“when they represented to [her] that they had approved and
accepted a loan modification” that “consolidated both a first and
second mortgage into one new mortgage with one mortgage

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payment (consolidating the First Mortgage $660,000 and Second
Mortgage $165,000 which total $825,000 plus additional late
fees).” They breached that duty by failing to reconvey the second
deed of trust, proximately causing the loss of her property
through foreclosure based on a void deed of trust.
BofA and MERS argue this claim fails because they owed
no duty of care to Domondon in the modification process. They
rely on this Division’s recent decision declining to find a lender
owed a tort duty to a distressed borrower in negotiating a loan
modification. (Sheen v. Wells Fargo Bank, N.A. (2019) 38
Cal.App.5th 346, 348 (Sheen), rev. granted, Nov. 13, 2019; see
Lueras, supra, 221 Cal.App.4th at p. 67 [lender owes no “common
law duty of care to offer, consider, or approve a loan modification,
or to explore and offer foreclosure alternatives”].) Domondon
relies on the contrary reasoning in Alvarez v. BAC Home Loan
Servicing, L.P. (2014) 228 Cal.App.4th 941, which held a lender
does, in fact, owe a duty of care to a borrower when it agrees to
consider a loan modification. (Id. at p. 948.) Sheen specifically
rejected Alvarez. (Sheen, supra, at p. 358.) We will continue to
follow Sheen.
In passing, Domondon points out BofA and MERS
“went beyond” undertaking a review for a loan modification and
actually agreed to one. If this distinguishes her case from Sheen,
she does not explain how or provide any legal authority or
analysis to support a different result. We will not do her job for
her, particularly given the complex and conflicting law
surrounding the issue of duty in mortgage loan modifications.

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Because she has not adequately supported this contention, we
will not consider it.6
Misrepresentation Claims
While a lender does not owe a general duty to borrowers,
a lender “does owe a duty to a borrower to not make material
misrepresentations” in the loan modification process. (Lueras,
supra, 221 Cal.App.4th at p. 68.) Domondon alleged claims for
negligent and intentional misrepresentation because BofA and
“Related Defendants” represented that the loan modification
consolidated the first and second loans, which they knew was
false or unreasonably believed was true.
“The elements of a cause of action for intentional
misrepresentation are (1) a misrepresentation, (2) with
knowledge of its falsity, (3) with the intent to induce another’s
reliance on the misrepresentation, (4) actual and justifiable
reliance, and (5) resulting damage. [Citation.] The elements of a
claim for negligent misrepresentation are nearly identical. Only
the second element is different, requiring the absence of
reasonable grounds for believing the misrepresentation to be true
instead of knowledge of its falsity.” (Daniels, supra, 246
Cal.App.4th at p. 1166.)
6 A recent decision from the Third District disagreed with
Sheen to the extent Sheen did not consider the “special
relationship” exception to the no-duty rule as it might apply to
the loan modification process. (See Weimer v. Nationstar
Mortgage, LLC (2020) 47 Cal.App.5th 341, 355.) Domondon has
not argued the special relationship exception applies here, so we
adhere to Sheen and do not consider the issue.

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We agree with BofA and MERS that Domondon failed to
allege these claims with enough specificity. “Causes of action for
intentional and negligent misrepresentation sound in fraud and,
therefore, each element must be pleaded with specificity.”
(Daniels, supra, 246 Cal.App.4th at p. 1166.) This requires
allegations of “ ‘how, when, where, to whom, and by what means
the representations were made, and, in the case of a corporate
defendant, . . . the names of the persons who made the
representations, their authority to speak on behalf of the
corporation, to whom they spoke, what they said or wrote, and
when the representation was made.’ ” (Id. at pp. 1166–1167.)
Domondon included none of these details in the SAC. She
merely alleged she sought a loan modification in September 2011
and filled out a loan modification application to consolidate her
loans. Then, in January 2012, BofA, MERS, and First Franklin
accepted the modification. She alleged no details about the
process except that “BofA informed client that the loan
modification consolidated both a first and second mortgage into
one new loan modification and that the second deed of trust
would no longer exist,” but that statement was “not true.” BofA
and “Related Defendants” either knew the statement was false or
“had no reasonable ground for believing the representation was
true.”
Domondon also failed to allege any details surrounding
MERS’s specific involvement in the modification process or any
misrepresentations it made to her. In her general allegations,
she alleged BofA told her the loans would be consolidated, while
in her misrepresentation claims themselves, she changed that to
allege BofA and “Related Defendants” made the

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misrepresentation, with “Related Defendants” defined as MERS
and First Franklin.
Domondon did not address the specificity issue in appellate
briefing, so she failed to carry her burden to show either how her
current allegations are adequate or how she could amend the
SAC to add the required detail. (Daniels, supra, 246 Cal.App.4th
at p. 1163.) This was not the first time BofA and MERS raised
this issue, either. They asserted this ground in their demurrer to
the SAC. In her opposition to the demurrer, she did not suggest
she could add detail to her complaint, but argued “[d]iscovery[]
will lead to greater specificity of which agent[s] of Defendant is
responsible for [her] harm.” That is a valid point. (Id. at p. 1167
[specificity “ ‘is relaxed when the allegations indicate that “the
defendant must necessarily possess full information concerning
the facts of the controversy” [citations] or “when the facts lie more
in the knowledge of the” ’ defendant”].) Yet, after BofA and
MERS raised this issue again in their brief on appeal, Domondon
did not argue in her reply brief she should be excused from
adding details to the SAC because respondents possessed them.
She ignored the issue entirely.
Having failed to give any explanation on this point, we
treat the contention as forfeited. She has not carried her burden
to show she should be given yet another opportunity for leave to
amend.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires
allegations “(1) the defendant engage[d] in extreme and
outrageous conduct with the intent to cause, or with reckless
disregard for the probability of causing, emotional distress;
(2) the plaintiff suffer[ed] extreme or severe emotional distress;

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and (3) the defendant’s extreme and outrageous conduct was the
actual and proximate cause of the plaintiff’s extreme or severe
emotional distress.” (Ragland v. U.S. Bank National Assn. (2012)
209 Cal.App.4th 182, 204 (Ragland).)
“Outrageous conduct is conduct that is intentional or
reckless and so extreme as to exceed all bounds of decency in a
civilized community.” (Ragland, supra, 209 Cal.App.4th at
p. 204.) “In order to avoid a demurrer, the plaintiff must allege
with ‘great[] specificity’ the acts which he or she believes are so
extreme as to exceed all bounds of that usually tolerated in a
civilized society.” (Vasquez v. Franklin Management Real Estate
Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) We may decide as a
matter of law whether the conduct “ ‘ “ ‘may reasonably be
regarded as so extreme and outrageous as to permit recovery.’ ” ’ ”
(Chang v. Lederman (2009) 172 Cal.App.4th 67, 87.)
The only outrageous conduct Domondon alleged in the SAC
was BofA’s and MERS’s failure to reconvey the second deed of
trust following the loan modification. BofA and MERS argue this
is not outrageous conduct as a matter of law and is merely an
attempt to transform a breach of contract into an intentional tort.
In her appellate briefing, Domondon cites no legal authority and
provides no analysis to show respondents’ failure to reconvey the
deed of trust could meet the high bar of conduct reasonably
considered “so extreme as to exceed all bounds of decency in a
civilized society.” (Ragland, supra, 209 Cal.App.4th at p. 204.)
She has forfeited the issue.
Even absent forfeiture, this claim fails on the merits.
In Sheen, the plaintiff alleged intentional infliction of emotional
distress because the lender “knew he was in a state of financial
difficulty,” but “failed to respond to his modification application,

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sent him misleading letters, and suggested to [the plaintiff’s] wife
the house would not be sold in foreclosure. [The lender] further
confirmed [the plaintiff’s] understanding of the letter with a
further letter that made no mention of a foreclosure sale.”
(Sheen, supra, 38 Cal.App.5th at p. 350.) We deemed this claim
“frivolous”—the lender’s “alleged responses to [the plaintiff’s]
loan modification requests may have been confusing, confused,
tardy, or flat wrong, but this alleged conduct was not so extreme
as to exceed all bounds of what a civilized society usually
tolerates.” (Id. at p. 358.) The failure to reconvey the second
deed of trust here was no worse than the conduct in Sheen.
Domondon has not carried her burden to show she could allege
outrageous conduct if given leave to amend.
Negligent Infliction of Emotional Distress
Domondon asserted a separate claim for negligent infliction
of emotional distress, but that is not an independent tort.
“[R]ather, ‘[t]he tort is negligence, a cause of action in which a
duty to the plaintiff is an essential element.’ ” (Ragland, supra,
209 Cal.App.4th at p. 205.) In a single sentence in her opening
brief, she refers us back to her arguments to support the duty
element of her negligence claim. As we held above, we will follow
Sheen to find no duty in this context, which defeats her claim.
Unfair Competition Law
Domondon alleged BofA and MERS violated the Unfair
Competition Law, section 17200, et seq. (UCL) “by accepting a
loan modification, consolidating the first and second mortgage,
representing the aforementioned as the truth, but failing to
reconvey the second deed of trust, thereby placing [Domondon] at
great risk of losing her house due to the [rogue] Deed of Trust.”
As relief, she sought injunctive relief to reverse the foreclosure

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sale and an “Unconditional Stay of Unlawful Detainer Action.”
She asserted no claim for restitution but claimed damages for her
costs and attorney’s fees.
BofA and MERS argue Domondon has failed to adequately
allege an available remedy under the UCL. Once again,
Domondon failed to address this issue in her briefs on appeal,
forfeiting it. On the merits, BofA and MERS are correct. Under
the UCL, a private plaintiff’s only remedies are injunctive relief
and restitution. (Daniels, supra, 246 Cal.App.4th at p. 1187.)
The foreclosure sale already occurred and Domondon was evicted
through an unlawful detainer action, so her request for an
injunction to prevent them is moot. (See Ragland, supra, 209
Cal.App.4th at p. 208; cf. Mendoza v. JPMorgan Chase Bank,
N.A. (2016) 6 Cal.App.5th 802, 820–821 [“Since the property has
been sold, there remain no prospective claims appropriate for
declaratory relief.”].)
Domondon’s attorney’s fees and costs cannot be deemed
restitution because “ ‘[t]he ‘notion of restoring something to the
victim of unfair competition includes two separate components.
The offending party must have obtained something to which it
was not entitled and the victim must have given up something
which he or she was entitled to keep.’ ” (Daniels, supra, 246
Cal.App.4th at p. 1187.) Domondon did not allege BofA or MERS
obtained any of her attorney’s fees or costs and failed to show
how she could amend this claim if given leave to do so.
Promissory Estoppel
Promissory estoppel requires “ ‘ “ ‘(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

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injured by his reliance.’ ” ’ ” (Daniels, supra, 246 Cal.App.4th at
p. 1178.) Domondon alleged she reasonably and detrimentally
relied on the promise from BofA and “Related Defendants” to
modify her loans to consolidate them into a single loan, and they
ratified the agreement by accepting her loan payments. By
failing to reconvey the second deed of trust, they caused her to
lose her property.
BofA and MERS argue promissory estoppel does not apply
because Domondon’s allegations amount to a breach of contract,
and the two claims are mutually exclusive. “ ‘Promissory
estoppel is “a doctrine which employs equitable principles to
satisfy the requirement that consideration must be given in
exchange for the promise sought to be enforced.” ’ [Citation.]
‘The purpose of this doctrine is to make a promise binding, under
certain circumstances, without consideration in the usual sense
of something bargained for and given in exchange. If the
promisee’s performance was requested at the time the promisor
made his promise and that performance was bargained for, the
doctrine is inapplicable. [Citation.] Accordingly, a plaintiff
cannot state a claim for promissory estoppel when the promise
was given in return for proper consideration. The claim instead
must be pleaded as one for breach of the bargained-for contract.”
(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
275 (Fontenot), disapproved on another ground by Yvanova v.
New Century Mortgage Corp. (2016) 62 Cal.4th 919, 939, fn. 13;
see Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240,
249.)
Once again, Domondon does not address this issue on
appeal, forfeiting it. In any case, there was no absence of
consideration here that would justify applying promissory

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estoppel. In signing the modification agreement, Domondon gave
consideration by resuming her payments under the new
consolidated loan, and BofA and MERS gave consideration by
foregoing the enforcement of their right to foreclose on the
original loans. (See Fontenot, supra, 198 Cal.App.4th at p. 275
[loan forbearance agreement supported by borrower’s
consideration in the form of resumed payments on promissory
note].) Domondon has not stated a claim for promissory estoppel
and has not shown she could amend the complaint to do so.
Quiet Title Against MERS
Domondon sought to quiet title against MERS, alleging
MERS “passed invalid title in what should have been a void
second deed of trust to the property.” “ ‘An element of a cause of
action for quiet title is “[t]he adverse claims to the title of the
plaintiff against which a determination is sought.’ ” (Orcilla v.
Big Sur, Inc. (2016) 244 Cal.App.4th 982, 1010.) Following the
foreclosure sale to a third party, MERS had no adverse title claim
to support a quiet title action. (Ibid.) Domondon argues the
third party purchaser took title subject to MERS’s first deed of
trust, but she cites nothing in the record to support that
conclusion. Nor did she allege MERS maintained that interest
after the foreclosure sale. To the contrary, she alleges the
trustee’s deed upon sale “convey[ed] title to the subject property
to” the third party purchaser. Because MERS has no adverse
title claim, this cause of action fails.
Slander of Title Against MERS
“To state a claim for slander of title, a plaintiff must allege
‘(1) a publication, (2) which is without privilege or justification,’
(3) which is false, and (4) which ‘causes direct and immediate
pecuniary loss.’ ” (Schep v. Capital One, N.A. (2017) 12

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Cal.App.5th 1331, 1336.) Domondon alleged MERS slandered
her title because the second deed of trust “without privilege
remained published (recorded) without being reconveyed.”
She adds a second ground in her brief on appeal that MERS also
slandered her title “by publishing an assignment” of the second
deed of trust “without proper beneficial interest” in it.
In her appellate brief, Domondon devotes one sentence to
each of these arguments, providing no cogent legal analysis or
citation of any legal authority. We find both issues forfeited.
Nor has she carried her burden to show reversal is warranted on
this claim or leave to amend should be granted.
Declaratory Relief and New Trial Motion
Domondon’s request for declaratory relief and her new trial
motion rested on the existence of valid underlying claims.
Because she failed to show the trial court erred in sustaining her
demurrer without leave to amend, her declaratory relief claim
fails and the court did not err in denying the new trial motion.
V. Leave to Amend
As noted throughout this opinion, Domondon has failed to
address how she could amend the SAC to allege viable claims.
She has not shown the trial court abused its discretion in denying
leave to amend. (Daniels, supra, 246 Cal.App.4th at p. 1163.)
DISPOSITION
The judgment is affirmed. Respondents are awarded costs
on appeal.
BIGELOW, P. J.
WE CONCUR:
STRATTON, J. WILEY, J.

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