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Chen v. Bank of America CA4/1 (2014) · DecisionDepot
/ California Court of Appeal Chen v. Bank of America CA4/1 Unpublished Filed 8/18/14 Chen v. Bank of America CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA NENG-GUIN CHEN, D064958 Plaintiff and Appellant,
v. (Super. Ct. No. 37-2010-00054105- CU-OR-NC) BANK OF AMERICA CORPORATION, N.A.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Robert P.
Dahlquist, Judge. Affirmed.
Neng-Guin Chen, in pro. per., for Plaintiff and Appellant.
Bryan Cave, Stuart W. Price, Angela Buenaventura and Sarah Samuelson for
Defendant and Respondent.
INTRODUCTION Neng-Guin Chen appeals a judgment in favor of Bank of America, N.A. (bank) on
claims related to the bank's loan collection efforts and its denial of a second loan
modification. She contends the trial court erred by denying her leave to file a third
amended complaint, by denying her leave to amend her second amended complaint to
include a prayer for punitive damages, by granting the bank's motion for summary
adjudication of two causes of action without requiring the bank to comply with Code of
Civil Procedure section 437c, subdivision (s), and by erroneously instructing the jury on
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
the requirements for her to establish her invasion of privacy claim. We conclude there is
no merit to any of these contentions and affirm the judgment.
BACKGROUND In November 2005 Chen, a real estate broker, refinanced a residential property
with an adjustable rate loan through the bank's predecessor, Countrywide Home Loans,
Inc. (Countrywide). The loan had an initial interest rate of 2.875 percent. Beginning in
June 2006, the interest rate adjusted every six months to the London Interbank Offered
Rate plus 1.875 percent. The loan had a maximum interest rate of 8.875 percent.
Effective March 2009 Chen and Countrywide entered into a loan modification
agreement. Under the terms of the agreement, the modified loan had an initial fixed
interest rate of 4.5 percent and Chen was to make interest-only payments from June 2009
through May 2012. The interest rate would then increase to 5.6 percent and Chen was to
begin paying both the principal and interest.
In November 2009 Chen stopped making payments on the modified loan. By
then, interest rates had dropped to the point the interest rate on her modified loan was
higher than the interest rate on her prior loan would have been. Chen asked to modify her
loan again; however, the bank declined her request.
In April 2010 Chen sued the bank, alleging causes of action for: (1) violation of
the stipulated judgment and injunction in People v. Countrywide Financial Corp., et al.,
(Super. Ct. L.A. County, N.W. Dist., 2008, No. LC083076); (2) violation of Business and
Professions Code sections 17200 and 17500; (3) injunctive relief; and (4)
misrepresentation and fraud. Essentially, Chen sought to rescind the loan modification
agreement, the note, and the deed of trust, and to enjoin foreclosure.
The bank demurred to the complaint. The court sustained the demurrer without
leave to amend as to the first cause of action and with leave to amend as to the remaining
In October 2010 Chen filed a first amended complaint alleging eight causes of
action: (1) breach of contract; (2) breach of the implied covenant of good faith and fair
dealing; (3) unfair debt collection practices under the Rosenthal Fair Debt Collection
Practices Act (Civ. Code, § 1788 et seq.) (Rosenthal Act); (4) invasion of privacy; (5)
violation of Business and Professions Code section 17500; (6) violation of Business and
Professions Code section 17200; (7) intentional misrepresentation; and (8) fraud. In
addition to continuing to challenge her modified loan, Chen's first amended complaint
alleged the bank violated her privacy by repeatedly attempting to contact her by calling
her cell phone and violated Business and Professions Code section 17500 through false
advertisements about the bank's National Homeownership Retention Program.
The bank demurred to the first amended complaint. In January 2011 the court
sustained the demurrer without leave to amend as to the third and sixth causes of action,
finding the Rosenthal Act did not apply to residential mortgage loans. The court
sustained the demurrer with leave to amend as to the remaining causes of action, finding
various pleading deficiencies. The court also granted the bank's companion motion to
strike Chen's prayer for punitive damages.
The same month Chen filed a second amended complaint, alleging causes of
action for: (1) breach of contract; (2) breach of the implied covenant of good faith and
fair dealing; (3) invasion of privacy; (4) violation of Business and Professions Code
section 17500; (5) violation of Business and Professions Code section 17200, and (6)
fraud. Chen principally sought a new loan modification, injunctive relief from
foreclosure pending the new loan modification, rescission of her note and deed of trust,
and $100,000 in damages. She also once again sought punitive damages.
The bank demurred to the second amended complaint. It also moved to strike the
prayer for punitive damages, which Chen did not oppose. The court overruled the
demurrer as to the first four causes of action, sustained the demurrer without leave to
amend as to the fifth and sixth causes of action, and granted the motion to strike. The
court subsequently set a March 2013 trial date. The parties later stipulated to continuing
the trial date to July 2013.
Meanwhile, in February 2013 Chen moved for leave to file a third amended
complaint to add causes of action for violation of the Telephone Consumer Protection
Act of 1991 (47 U.S.C. § 227 et seq.) and the federal Fair Debt Collection Practices Act
(15 U.S.C. § 1692 et seq.) as well as for intentional and negligent infliction of emotional
distress. The proposed complaint again sought punitive damages. In April, the court
denied the motion, finding it to be untimely because the court was not persuaded the
factual basis for the new claims had only recently been discovered or that there was a
valid reason for Chen to have waited nearly three years before seeking to assert the new
claims. The court also found allowing Chen to file the third amended complaint would
necessitate a further continuance of the trial date to accommodate additional motions and
Around the same time the court denied Chen's motion for leave to file a third
amended complaint, the bank filed a motion for summary adjudication of the breach of
contract and breach of covenant causes of action in Chen's second amended complaint.
In July 2013 the court granted the bank's motion, finding the bank had established it had
not breached either its contractual obligations or the covenant of good faith and fair
dealing in the manner Chen claimed and she had not raised a triable issue of material fact
on this point. The court also found she could not prevail on these causes of action
because the bank established she had not fulfilled her own contractual obligations and she
had not raised a triable issue of material fact on this point either.
Approximately two weeks before the scheduled trial date and a few days before
the court ruled on the bank's summary adjudication motion, Chen applied ex parte for an
order shortening time for the court to hear a motion for leave to amend her second
amended complaint to add a prayer for punitive damages. The court denied the
application without prejudice.
The court later continued the trial date to mid-September 2013. At that time, the
parties submitted a joint trial readiness conference report, acknowledging punitive
damages were no longer at issue and the only remaining causes of action were for
invasion of privacy and violation of Business and Professions Code section 17500. The
report also listed the agreed upon jury instructions, which included the CACI 1800
instruction for intrusion into private affairs. During a subsequent pre-trial conference on
jury instructions and other matters, Chen expressly stated she had no objection to the
version of the CACI 1800 instruction the court intended to use.
The court conducted a jury trial on Chen's invasion of privacy cause of action and
the jury returned a verdict in the bank's favor. While the jury was deliberating, the court
conducted a bench trial on Chen's claim for violation of Business and Professions Code
section 17500. After Chen presented her case, the bank moved for judgment under Code
of Civil Procedure section 631.8. The court granted the motion and subsequently entered
DISCUSSION Denial of Leave to File a Third Amended Complaint
Chen first contends the court erred by denying her motion for leave to file a third
amended complaint. Chen has not established any such error.
"The court may . . . in its discretion, after notice to the adverse party, allow, upon
any terms as may be just, an amendment to any pleading . . . ." (Code Civ. Proc., § 473,
subd. (a)(1).) " ' " . . . The exercise of that discretion will not be disturbed on appeal
absent a clear showing of abuse. More importantly, the discretion to be exercised is that
of the trial court, not that of the reviewing court. Thus, even if the reviewing court might
have ruled otherwise in the first instance, the trial court's order will yet not be reversed
unless, as a matter of law, it is not supported by the record." ' " (Branick v. Downey
Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.)
Here, the record shows Chen sought leave to file a third amended complaint nearly
three years after commencing this action. The proposed complaint alleged several new
causes of action even though the court had already given her multiple opportunities to
state her claims against the bank. The court found allowing leave to amend would
necessitate a continuance of the trial date to accommodate additional discovery and
motions. The court also found the factual basis for the new causes of action was not
newly discovered and Chen had not otherwise satisfactorily explained her delay in
seeking leave to amend. We presume the court's findings are supported by the record
(Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148-1149), and Chen has not identified
any record evidence undermining them.
When the granting of leave to amend would necessitate a trial continuance to
allow for further trial preparation, the party seeking leave to amend must show he or she
has acted diligently. If the party does not make such a showing, a court does not abuse its
discretion in denying leave to amend. (Davies v. Symmes (1942) 49 Cal.App.2d 433,
444; see Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939-940 ["even if a
good amendment is proposed in proper form, unwarranted delay in presenting it mayof
itselfbe a valid reason for denial"].) As Chen has not shown she acted diligently in this
case, we conclude she has not established the court clearly abused its discretion in
denying her leave to file a third amended complaint. (P&D Consultants, Inc. v. City of
Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [court did not abuse its discretion in
denying leave to amend a complaint to add causes of action where granting leave to
amend would have required additional discovery and pretrial motions, and plaintiff
unreasonably delayed seeking leave to amend].)
Denial of Leave to Add Prayer for Punitive Damages to Second Amended Complaint
Chen next contends the court erred by denying her leave to add a prayer for
punitive damages to her second amended complaint. We reject this contention for several
First, despite Chen's characterization of the court's action as the denial of a motion
for leave to amend, the court actually denied an application for an order shortening time
to bring the motion, not the motion itself. As the record is silent as to why the court
denied the application, we presume the court's decision was correct absent an affirmative
showing to the contrary, which Chen has not made. (Denham v. Superior Court of Los
Angeles County (1970) 2 Cal.3d 557, 564.)
Second, the court denied the application without prejudice and Chen never made
any further attempt to revisit the matter. Instead, in the joint trial readiness conference
report, she agreed punitive damages were no longer an issue in the case. Consequently,
she has arguably forfeited this claim of error. (See Sperber v. Robinson (1994) 26
Cal.App.4th 736, 742-743.)
Finally, even if we assume the court had actually denied her motion and she had
not forfeited the claimed error, she has not established the claimed error prejudiced her.
"California's Constitution provides, 'No judgment shall be set aside, or new trial granted,
in any cause, on the ground of misdirection of the jury, or of the improper admission or
rejection of evidence, or for any error as to any matter of pleading, or for any error as to
any matter of procedure, unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
miscarriage of justice.' (Cal. Const., art. VI, § 13; see Code Civ. Proc., § 475.)
" ' "The effect of this [constitutional] provision is to eliminate any presumption of
injury from error, and to require that the appellate court examine the evidence to
determine whether the error did in fact prejudice the [appellant]. Thus, reversible error is
a relative concept, and whether a slight or gross error is ground for reversal depends on
the circumstances in each case." [Citation.] [¶] The phrase "miscarriage of justice" has a
settled meaning in our law, having been explained in the seminal case of People v.
Watson (1956) 46 Cal.2d 818 (Watson). Thus, "a 'miscarriage of justice' should be
declared only when the court, 'after an examination of the entire cause, including the
evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to
the appealing party would have been reached in the absence of the error." [Citation.]
"We have made clear that a 'probability' in this context does not mean more likely than
not, but merely a reasonable chance, more than an abstract possibility." [Citation.]'
"The Watson standard applies in both criminal and civil cases, and requires
appellate courts to 'examine "each individual case to determine whether prejudice
actually occurred in light of the entire record." [Citations].' [Citation.] Under this
standard, the appellant bears the burden to make an 'affirmative showing' the trial court
committed error that resulted in a miscarriage of justice." (Conservatorship of Maria B.
(2013) 218 Cal.App.4th 514, 532-533.)
In this case, Chen sought leave to add a prayer for punitive damages in connection
with her invasion of privacy cause of action. Since the jury found squarely against Chen
on this cause of action and, for the reasons explained in part IV, post, Chen cannot
establish the court committed instructional error as to this cause of action, Chen has not
shown the exclusion of a prayer for punitive damages resulted in a miscarriage of justice.
III Motion for Summary Adjudication
Chen further contends the court erred by granting the bank's motion for summary
adjudication despite the bank's failure to comply with Code of Civil Procedure
section 437c, subdivision (s). This subdivision permits a party to "move for summary
adjudication of a legal issue . . . that does not completely dispose of a cause of
action . . . [¶] upon the stipulation of the parties whose claims or defenses are put at issue
by the motion and a prior determination and order by the court that the motion will
further the interests of judicial economy, by reducing the time to be consumed in trial, or
significantly increase the ability of the parties to resolve the case by settlement."
(Civ. Proc. Code, § 437c, subds. (s)(1) & (2).)
We conclude Chen has forfeited this claim of error by failing to object on this
basis below. (Avalos v. Perez (2011) 196 Cal.App.4th 773, 776-777.) Even if Chen had
not forfeited this claim of error, we conclude it lacks merit because the bank's motion for
summary adjudication sought to and did dispose of entire causes of action, not parts of
them. Accordingly, Code of Civil Procedure section 437c, subdivision (s), did not apply
Invasion of Privacy Jury Instruction
Chen's final contention relates to the jury instruction for her invasion of privacy
cause of action. With Chen's express approval, the court instructed the jury, "[Chen]
claims in this case that [the bank] violated her right to privacy. To establish this claim,
[Chen] must prove all of the following: [¶] One, that [Chen] had a reasonable
expectation of privacy in connection with receiving phone calls on her cell phone from
[the bank] regarding her home loan; [¶] Two, that [the bank] intentionally intruded by
calling [Chen] on her cell phone regarding her home loan; [¶] Three, that [the bank's]
phone intrusion would be highly offensive to a reasonable person; [¶] Four, that [Chen]
was harmed; [¶] And, five, that [the bank's] conduct was a substantial factor in causing
"In deciding whether [Chen] has a reasonableor had a reasonable expectation of
privacy, you should consider, among other factors, the following: The identity of [the
bank], the extent to which other persons had access to [Chen's] cell phone, and the means
by which the intrusion occurred. [¶] In deciding whether an intrusion is highly offensive
to a reasonable person, you should consider, among other factors, the following: The
circumstances surrounding the intrusion, [the bank's] motives and goals, the setting in
which the intrusion occurred, how much privacy [Chen] could expect in that setting, and
whether the intrusion was objectively reasonable to an ordinary person."
Notwithstanding her express approval of the instruction, Chen now contends the
court prejudicially erred in giving it because it misstated her claim. Specifically, she
contends the instruction required the jury to determine whether the bank invaded her
privacy by calling her cell phone about her home loan when her true claim was that the
bank invaded her privacy by disrupting her workplace with repeated calls to her cell
phone while she was trying to talk with and show properties to her clients.
However, by expressly approving the instruction and not requesting any additional
instructions, Chen has forfeited this contention. (Metcalf v. County of San Joaquin
(2008) 42 Cal.4th 1121, 1130.) " ' " 'In a civil case, each of the parties must propose
complete and comprehensive instructions in accordance with his theory of the litigation;
if the parties do not do so, the court has no duty to instruct on its own motion.' 12
[Citations.]" [Citation.] Neither a trial court nor a reviewing court in a civil action is
obligated to seek out theories plaintiff might have advanced, or to articulate for him that
which he has left unspoken.' [Citation] . . . Where, as here, "the court gives an
instruction correct in law, but the party complains that it is too general, lacks clarity, or is
incomplete, he must request the additional or qualifying instruction in order to have the
error reviewed." [Citations.]' [Citation.] [Chen's] failure to request any different
instructions means [she] may not argue on appeal the trial court should have instructed
differently." (Id. at pp. 1130-1131.)
DISPOSITION The judgment is affirmed. Respondent is awarded its appeal costs.
MCCONNELL, P. J.
HUFFMAN, J.
NARES, J.