Opinion
A146625
01-18-2017
BETTY WELCH et al., Plaintiffs and Appellants, v. ROBERT BROWN et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CV413596)
After Robert and Jan Sander's son was arrested, they arranged for a bail bond through Robert and Kimberly Brown and Lake County Bail Bonds. The bail was high, and the bond company required security. Jan's parents, Orville and Betty Welch, executed a deed of trust on property still held in their name, but which the Sanders had purchased and on which the Sanders resided. The bail bond required annual premium payments, which plaintiffs failed to pay, and the surety foreclosed. In the instant lawsuit, the Sanders and Betty Welch claimed, among other things, that they were unaware of and were misled about having to pay annual premiums. Eventually, their 14 causes of action were disposed of through demurrers and dismissals. They now challenge the demurrer rulings. We largely affirm, but remand as to two causes of action to allow plaintiffs one last opportunity to plead viable claims.
Orville Welch has passed away.
BACKGROUND
We set forth only the facts relevant to the issues on appeal. We therefore start with the allegations of the third amended complaint, the operative pleading.
Plaintiffs generally alleged as follows: In 1997, the Sanders purchased property in Lake County from Jan's parents, Orville and Betty Welch. Although the Sanders paid the purchase price in full, record title was never transferred to them. On January 7, 2009, the Welches, because they were still the owners of record, executed a deed of trust on the property to secure a bail bond for the Sanders' son. On January 8, the Sanders and the Welches entered into a bail bond agreement with defendants Rob Brown, Kimberly Brown and Lake County Bail Bonds, which included a promise to pay a $10,000 bail premium. The agreement "purportedly" required them to pay annual premiums. They were "unaware of this clause" and "do not believe they agreed to those terms." The agreement "also," allegedly, "contained a clause requiring a written demand for payment of the annual premium and they never received one." "Instead," plaintiffs received a "more than $20,000 bill" after the criminal case was concluded. They were unable to pay, and the Browns and Lake County Bail Bonds foreclosed on the deed of trust. After notice of a trustee's sale was recorded on March 8, 2012, Betty Welch filed for bankruptcy protection and an automatic stay remained in effect until her bankruptcy case "closed." In August 2012, the Browns appeared on the property. Rob Brown said he now owned it, assaulted Robert Sanders, and punched the Sanders' labrador retriever in the head. The dog thereafter suffered seizures and eventually died. In January 2013, the Browns filed an unlawful detainer action. Plaintiffs "failed to answer," their default was taken, and the Browns obtained a writ of possession. Plaintiffs appealed and obtained a stay conditioned on their payment of rent to the Browns, which they paid "for over a year."
Plaintiffs asserted 14 causes of action: to set aside the trustee's sale (first cause of action); to void or cancel the trustee's deed (second cause of action); for unjust enrichment (third cause of action); to quiet title (fourth cause of action); for battery (fifth cause of action); for assault (sixth cause of action); for intentional infliction of emotional distress (seventh cause of action); for breach of contract (eighth cause of action); for fraud (ninth cause of action); for violation of Code of Civil Procedure section 3340 (10th cause of action); for trespass (11th cause of action); for elder abuse (12th cause of action); breach of fiduciary duty (13th cause action); and declaratory relief (14th cause of action). They attached copies of the deed of trust and surety bond agreement to their complaint.
We discuss the specific allegations of these causes of action in the next section of this opinion.
Defendants interposed a demurrer to four of the causes of action: the second (void or cancel the trustee's deed); eighth (breach of contract); 10th (violation of Code Civ. Proc., § 3340); and 11th (trespass). They also moved to strike the allegation that the bail agreement "contained a clause requiring a written demand for payment of the annual premium and they [plaintiffs] never received one" as being "false and irrelevant" and contrary to the terms of the agreement attached to their complaint, and to strike paragraphs 41, 52 and 56 as also being "false and irrelevant."
Plaintiffs did not file opposition. Fifteen minutes before the hearing, their attorney met with counsel for defendants at the courthouse, stated she would not be filing any response and would submit, and that she was leaving the courthouse. Accordingly, plaintiffs made no appearance at the hearing. Given the lack of opposition and representations to defense counsel, the court, on September 15, 2014, sustained the demurrer and granted the motion to strike without leave to amend.
Based on the trial court's September 15 ruling, defendants filed a second demurrer, this time to the first (set aside the trustee's sale), third (unjust enrichment), fourth (quiet title), seventh (intentional infliction of emotional distress), ninth (fraud), 12th (elder abuse), 13th (breach of fiduciary duty), and 14th (declaratory relief) causes of action.
Plaintiffs filed written opposition and appeared at the November 18, 2014, hearing. Both parties submitted on their papers, and the court took the matter under submission. The court issued a written order on December 8, sustaining the demurrer without leave to amend as to all the challenged causes of action except the seventh (intentional infliction of emotional distress), as to which leave to amend was granted.
When plaintiffs did not file an amended pleading, defendants moved to dismiss the third amended complaint in its entirety with prejudice. The parties resolved this motion by way of a stipulation that the seventh cause of action would be dismissed with prejudice and defendants would answer the remaining causes of action.
After defendants filed their answer, they moved to dismiss with prejudice all the causes of action to which demurrers had been sustained without leave to amend. Plaintiffs did not file written opposition. Instead, their attorney appeared at the hearing and asked for a continuance to do so, claiming she did not have a key to the mailbox to which the motion had been sent. Counsel for defendants opposed the request, asserting it was a delay tactic, plaintiffs' counsel was aware the motion had been filed, and there was no good cause to continue the hearing. The trial court denied the request for a continuance, noting plaintiffs' attorney had appeared at a prior status conference, at which the motion had been specifically discussed. The court then allowed plaintiffs' counsel to present opposition orally, but she was unable to provide any reason why the motion should not be granted. The court granted the motion, leaving in play only the fifth (battery) and sixth (assault) causes of action, the seventh cause of action having been dismissed with prejudice pursuant to the prior stipulation.
Plaintiffs appeared without counsel at the trial assignment hearing and at that time asked that the fifth and sixth causes of action be dismissed without prejudice. Defendants objected unless the dismissal was with prejudice, and the matter was continued. The court ultimately granted plaintiffs' request and dismissed the two causes of action without prejudice, and awarded costs to defendants.
DISCUSSION
Appellate Jurisdiction
Plaintiffs filed a notice of appeal on October 16, 2015, which stated they were appealing from the "August 19, 2015 Dismissal without prejudice of 5th and 6th Causes of Action in Plaintiffs' 3rd Amended Complaint; Code of Civil Procedure Section 904.1(a) (dismissal of remaining claims)." As defendants point out, this order granting plaintiffs' request to voluntarily dismiss their fifth (battery) and sixth (assault) causes of action without prejudice is not, in and of itself, a final, appealable order or judgment.
It is clear from the record, however, that what plaintiffs intended to appeal are the demurrer and dismissal rulings against them, and that they waited to do so until after the last judicial act that, together with prior rulings, disposed of their case in its entirety. This is evidenced by the list of issues to be raised on appeal attached to their notice designating the record on appeal. This list identifies the challenged rulings as the trial court's September 15, 2014, minute order sustaining defendants' first demurrer to and motion to strike portions of the third amended complaint, the court's December 8, 2014, written order sustaining defendants' second demurrer to the third amended complaint, and the court's July 30, 2015, written order dismissing with prejudice the causes of action in the third amended complaint as to which demurrers had been sustained without leave to amend.
What is, indeed, missing in this case is a judgment of dismissal, which should have been entered after the court granted plaintiffs' request to dismiss their fifth and sixth causes of action without prejudice, since that ruling disposed of the last remaining causes of action in the case. However, we may treat an order sustaining a demurrer without leave to amend or a dismissal order as a judgment, and we do so in this case in the interests of judicial efficiency. (See Code Civ. Proc., § 581d; Jocer Enterprises, Inc. v. Price (2010) 183 Cal.App.4th 559, 565, fn. 4; Melton v. Boustred (2010) 183 Cal.App.4th 521, 527-528, fn. 1.) Accordingly, as far as appellate jurisdiction is concerned, we deem plaintiffs to have timely appealed from a final judgment and to be challenging on appeal the dismissal of causes of action pursuant to the trial court's orders of September 15 and December 8, 2014, and July 30, 2015.
Forfeiture of Challenges On Appeal
Jurisdiction, however, is only a threshold step. Defendants also point out plaintiffs failed to oppose their first demurrer and motion to strike and their motion to dismiss the causes of action as to which demurrers had been sustained without leave to amend. We therefore turn to whether plaintiffs preserved their challenges to the three orders they purport to attack on appeal.
As we have recounted, not only did plaintiffs fail to oppose defendants' first demurrer and motion to strike, but prior to the hearing, plaintiffs' attorney (Susan Feeney) spoke with defendants' attorney (Steven Brown) at the courthouse. Feeney told Brown plaintiffs were not filing a response and were going to submit, and then left the courthouse and did not appear at the hearing. Given the lack of opposition and what defense counsel had been told, the trial court sustained the demurrer and granted the motion to strike with prejudice.
Defendants contend plaintiffs waived any asserted error in the trial court's September 15 ruling by failing to file opposition to and failing to appear at the hearing. Plaintiffs maintain they have not waived any challenges to the court's order, relying on Code of Civil Procedure section 472c which provides in pertinent part: "When a court makes an order sustaining a demurrer without leave to amend[,] the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made." (Code Civ. Proc., § 472c, subd. (a); see, e.g., Mercury Ins. Co v. Pearson (2008) 169 Cal.App.4th 1064, 1072 [" 'While it is the plaintiff's burden to show "that the trial court abused its discretion" and "show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading," a plaintiff can make "such a showing . . . for the first time to the reviewing court." ' "].)
In our view, whether a trial court abused its discretion in denying leave to amend (and the statutory preservation of that issue on appeal), presents a different issue than whether a plaintiff's failure to make any objection at all to a demurrer should generally be viewed as forfeiting any challenge on appeal to the sustaining of the demurrer. Indeed, in reviewing a demurrer sustained without leave to amend, we consider the merits of the demurrer separately from the trial court's decision to deny leave to amend, and we apply different standards of review to these two inquiries—de novo in reviewing the substantive merits of the court's demurrer ruling and abuse of discretion in reviewing the denial of leave to amend. (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1162-1163 (Daniels).)
"Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ' waiver,' the correct legal term for the loss of a right based on failure to timely assert it is 'forfeiture,' because a person who fails to preserve a claim forfeits that claim." (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, superseded by statute on other grounds as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)
We recognize it is an abuse of discretion to deny leave to amend if there is any reasonable possibility the plaintiff can state a viable cause of action and that a plaintiff may advance a new legal theory on appeal as to why the allegations of his or her complaint state a cause of action. (Daniels, supra, 246 Cal.App.4th at p. 1163; Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 259-260; B&P Development Corp. v. City of Saratoga (1986) 185 Cal.App.3d 949, 959.) But this is not the same thing as saying a plaintiff can do absolutely nothing to defend the viability of his or her causes of action in the trial court—or, as the case here, affirmatively represent he or she will be voicing no opposition to a demurrer and motion to strike—and, upon suffering the inevitable adverse ruling, join battle on the pleadings for the first time on appeal.
"The Supreme Court in Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265, explained the basis for the forfeiture rule as follows: 'The forfeiture rule generally applies in all civil and criminal proceedings. The rule is designed to advance efficiency and deter gamesmanship. As we explained in People v. Simon (2001) 25 Cal.4th 1082: " ' " 'The purpose of the general doctrine of waiver [or forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . .' " [Citation.] " 'No procedural principle is more familiar to this Court than that a constitutional right,' or a right of any other sort, 'may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.' . . ." [¶] "The rationale for this rule was aptly explained in Sommer v. Martin (1921) 55 Cal.App. 603 at page 610, . . . : ' "In the hurry of the trial many things may be, and are, overlooked which would readily have been rectified had attention been called to them. The law casts upon the party the duty of looking after his legal rights and of calling the judge's attention to any infringement of them. If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal." ' " ' (Fn. omitted; [citations].)" ' " (In re Marriage of E. & Stephen P. (2013) 213 Cal.App.4th 983, 991 [by failing to object, father forfeited challenge to order terminating his parental rights on ground court should have ordered investigation by licensed social worker], italics omitted; see In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [" 'An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method.' "]; JRS Products, Inc. v. Matsushita Electric Corp. of America (2004) 115 Cal.App.4th 168, 178 (JRS Products) ["Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider."]; Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476 (Bonner) [as "a general principle" a litigant cannot raise "a new issue for the first time on appeal; among other things, the practice is unfair to the trial court and any opposing litigants"], disapproved on other grounds in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 320-321.)
If failing to object can result in the forfeiture of issues bearing on constitutionally protected parental rights, for example (e.g., In re S.B., supra, 32 Cal.4th at p. 1293), then surely the forfeiture rule also applies generally to rulings on demurrers and motions to strike in other civil actions, like the one at hand, not involving constitutionally protected rights. Certainly the justifications for the forfeiture rule apply to orders on such responsive pleadings. (See K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 948-949 [plaintiff's failure to object to procedure whereby three causes of action in fifth amended complaint were dismissed at the outset of trial on preemption grounds forfeited challenge to procedure on appeal].)
Of course, "application of the forfeiture rule is not automatic," and appellate courts have the discretion to consider some issues raised for the first time on appeal. (In re S.B., supra, 32 Cal.4th at p. 1293; see JRS Products, supra, 115 Cal.App.4th at p. 179 [an appellate court "is at liberty to reject a waiver claim and consider the issue on the merits"]; Bonner, supra, 45 Cal.App.4th at pp. 1476-1477 [courts may entertain a legal issue raised for the first time on appeal].) "But the appellate court's discretion to excuse forfeiture should be exercised rarely and only in cases presenting an important legal issue." (In re S.B., supra, 32 Cal.4th at p. 1293; see, e.g., Bonner, supra, 45 Cal.App.4th at pp. 1476-1477 [appellate court would consider whether plaintiff stated state constitutional claim, even though defendant had not challenged viability of claim in trial court].)
Given the record here, we conclude there is no reason to excuse plaintiffs from the forfeiture rule. Not only did they fail to file any opposition to defendants' first demurrer and motion to strike, but their attorney met with defense counsel just prior to the hearing, stated there would be no opposition, and then left the courthouse, thus failing to appear at the hearing. Having deliberately chosen in the trial court not to defend the viability of the challenged causes of action, plaintiffs cannot bestir themselves for the first time on appeal and make a case for claims they effectively abandoned. Accordingly, we will not address plaintiffs' challenges to the trial court's September 15, 2014, minute order sustaining the defendant's demurrer to the second (void or cancel the trustee's deed), eighth (breach of contract), 10th (violation of Code Civ. Proc., § 3340) and 11th (trespass) causes of action and granting defendants' motion to strike.
Defendants' second demurrer to most of the remaining causes of action was predicated on the court's September 15 order sustaining defendants' first demurrer and granting their motion to strike. Plaintiffs opposed this demurrer, except as to the seventh cause of action. Accordingly, plaintiffs preserved their right to challenge the court's December 8, 2014, order, but only to the extent the order turns on issues independent of the rulings the trial court made in its September 15 order, any challenges to which, as we have discussed, have been forfeited on appeal.
Although plaintiffs' opposition to defendants' second demurrer failed to address the seventh cause of action, the trial court nevertheless addressed the merits and allowed leave to amend as to that cause of action. Accordingly, we will not deem plaintiffs to have forfeited any error in connection with that ruling. The seventh cause of action was addressed again in the face of defendants' first motion to dismiss the third amended complaint with prejudice, after plaintiffs failed to file a fourth amended complaint. To resolve the motion, the parties entered into a stipulation, which included stipulating to dismissal of the seventh cause of action with prejudice. Defendants assert this stipulation bars plaintiffs from challenging the dismissal on appeal. However, plaintiffs were entitled to stand on their allegations, and the stipulation did no more than result in the dismissal that would have inevitably followed from their failure to amend. Accordingly, plaintiffs did not forfeit their right to challenge the second demurrer ruling as to the seventh cause of action by subsequently stipulating to its dismissal.
After answering the third amended complaint, defendants filed a second motion to dismiss with prejudice, this time to eliminate all the causes of action as to which demurrers had been sustained without leave to amend. As we have recounted, plaintiffs did not file written opposition to this motion, but their attorney appeared at the hearing and asked for a continuance to do so. After the trial court denied counsel's request, it invited her to state plaintiffs' opposition for the record. Other than saying plaintiffs opposed the motion to dismiss, counsel could not identify any ground as to why. The court granted the motion and dismissed all causes of action with prejudice, except the fifth, sixth, and seventh (the seventh cause of action having been dismissed with prejudice pursuant to the parties' stipulation). Because this motion to dismiss was essentially a cleanup procedural motion following in the wake of the court's substantive demurrer rulings, we do not deem plaintiffs' failure to identify any reason why the motion should not be granted as forfeiting whatever rights they have to challenge the substance of the court's demurrer rulings.
After the court's July 30, 2015, dismissal order, the only remaining causes of action were plaintiffs' fifth (battery) and sixth (assault) causes of action. By August 14, plaintiffs were appearing in pro per and asked the court to dismiss these two causes of action without prejudice. Because trial had not yet started, plaintiffs had an absolute right to voluntarily dismiss these causes of action, with or without prejudice. (Code Civ. Proc., § 581, subd. (b); see Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 190.) Defendants nevertheless objected to a dismissal without prejudice, and the court continued the hearing. Ultimately, the court granted plaintiffs' "motion" and dismissed these causes of action without prejudice. Since plaintiffs sought this dismissal, they cannot, of course, challenge this dismissal order on appeal.
In sum, under the forfeiture rule, plaintiffs may challenge only the trial court's demurrer rulings made in its December 8, 2014, order as to the first, third, fourth, ninth, 12th, 13th and 14th causes of action and then, only to the extent they are independent of the demurrer rulings made on September 15, 2014, which plaintiffs did not oppose. December 8 , 2014 Demurrer Order
The essence of defendants' second demurrer was that, having stricken pivotal allegations from the complaint pursuant to defendant's first demurrer and motion to strike, the trial court eliminated allegations essential to all of the remaining causes of action except the fifth and sixth causes of action —namely, the first (set aside the trustee's sale), third (unjust enrichment), fourth (quiet title), seventh (intentional infliction of emotional distress), ninth (fraud), 12th (elder abuse), 13th (breach of fiduciary duty ) and 14th (declaratory relief) causes of action. The stricken allegations included those contrary to the express terms of the Surety Bail Bond Agreement, which plaintiffs attached to their complaint as the basis for their claims. The court struck, for example, plaintiffs' allegation that they were entitled to an annual written demand for payment of the bond premium, as there is no such provision in the agreement.
Causes of Action Premised on the Wrongful Foreclosure
The two causes of action that underlie all of plaintiffs' wrongful foreclosure claims are those to set aside the trustee's sale (first cause of action) and for fraud (ninth cause of action). We address these causes of action first and then discuss the remaining wrongful foreclosure causes of action in order.
First Cause of Action (Set Aside Trustee's Sale)
"Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.)
Plaintiffs claimed the foreclosure was illegal because defendants' demand for approximately $20,000 under the bail bond agreement (about twice the $10,000 annual premium) allegedly was not authorized. As established by the first demurrer's resolution of the breach of contract claim (eighth cause of action) and the granting of the motion to strike, however, the bail bond agreement did authorize ongoing annual premiums without further notice to plaintiffs. Accordingly, there was nothing unauthorized about defendants' premium demand, and plaintiffs' first cause of action was properly dismissed without leave to amend.
Ninth Cause of Action (Fraud)
The crux of plaintiff's fraud cause of action is that, despite what the bail bond agreement might say, defendants falsely represented "there would be one premium" and fraudulently induced the agreement. The third amended complaint, however, initially alleges, in paragraph 10, that the bail bond agreement commenced in January 2009, but then alleges, in paragraph 43, that defendants sold the bail bond in February and made false representations in connection with that sale. There are no allegations as to the date, time, or method of any misrepresentation; no allegations that identify the alleged speaker; and no allegations as to what words were spoken that allegedly left an impression "there would be one premium."
California recognizes promissory fraud claims even when the alleged misrepresentations directly contradict the written terms of an induced contract. (See Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169.) However, fraud must be " 'pled specifically; general and conclusory allegations do not suffice. [Citations.] "Thus ' "the policy of liberal construction of the pleadings . . . will not ordinarily be invoked to sustain a pleading defective in any material respect." ' [Citation.] [¶] This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.' " ' " (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 993; Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184 [requirement helps "separate meritorious and nonmeritorious cases . . . in advance of trial"]; Daniels, supra, 246 Cal.App.4th at pp. 1166-1167; see Julius Castle Restaurant, Inc. v. Payne (2013) 216 Cal.App.4th 1423, 1441-1442.)
Plaintiffs did not meet this heightened pleading standard, and their proffered allegations are also insufficiently specific to meet it. Accordingly, the trial court also did not err in dismissing their fraud cause of action without leave to amend. (See Brown v. Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275, 282 (Brown).)
Third Cause of Action (Unjust Enrichment)
To the extent plaintiffs are seeking disgorgement of profits as a result of the supposed "wrongful foreclosure," their cause of action for unjust enrichment is a mere rebranding of the contract and fraud causes of action already rejected.
However, to the extent plaintiffs claim defendants retained sale proceeds in excess of the amount due under the bail bond agreement, this claim is unrelated to the first demurrer and motion to strike. Defendants offer no response to this theory, and on remand, plaintiffs may attempt to plead an unjust enrichment claim based upon it. (See, e.g., Civ. Code, § 2924j [discussing surpluses in nonjudicial foreclosures].)
Fourth Cause of Action (Quiet Title) , 13th Cause of Action (Breach of Fiduciary Duty), 14th Cause of Action (Declaratory Relief)
"Any bail licensee who receives collateral in connection with a bail transaction shall receive such collateral in a fiduciary capacity, and prior to any forfeiture of bail shall keep it separate and apart from any other funds or assets of such licensee." (Cal. Code Regs., tit. 10, § 2088; see People v. V. C. Van Pool Bail Bonds (1988) 200 Cal.App.3d 303, 306, fn. 2.)
Plaintiffs' fourth, 13th, and 14th causes of action all seek relief based on the allegedly improper foreclosure. Accordingly, they are simply derivative of plaintiffs' ill-fated contract and fraud claims and were also properly dismissed without leave to amend. (See Rodriguez v. E.M.E., Inc. (2016) 246 Cal.App.4th 1027, 1033 [derivative claims rise or fall with predicate claims]; Malkoskie v. Option One Mortgage Corp. (2010) 188 Cal.App.4th 968, 974.)
12th Cause of Action (Elder Abuse)
" 'Financial abuse' of an elder or dependent adult occurs when a person or entity . . . . [¶] . . . [t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both." (Welf. & Inst. Code, § 15610.30, subds. (a), (a)(1).) After the first demurrer and motion to strike, plaintiffs' elder abuse cause of action cannot hinge on breach of the bail bond agreement. Nor can plaintiffs predicate the claim on fraud, given their failure, discussed above, to proffer specific allegations. With no other allegations offered in support of the cause of action, it also was properly dismissed without leave to amend. (See Brown, supra, 247 Cal.App.4th at p. 282.)
Seventh Cause of Action (Intentional Infliction of Emotional Distress)
The seventh cause of action for intentional infliction of emotional distress does not arise directly from the supposed wrongful foreclosure, rather it arises from defendant Rob Brown allegedly attacking plaintiff Robert Sanders back in August 2012, punching him in the ribs and jaw.
"The elements of a cause of action for intentional infliction of emotional distress are: ' "(1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress." ' " (Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 87-88.)
The trial court sustained the first demurrer to the seventh cause of action, but on the ground the claim was ambiguously pleaded. It offered plaintiffs leave to amend, though, as noted, plaintiffs ultimately consented to dismiss the claim to resolve a later motion to dismiss. On appeal, plaintiffs do not address why the seventh cause of action could not be amended to state a claim. Indeed, intentional assaultive conduct can undergird an emotional distress claim. (See Wilson v. Southern California Edison Co. (2015) 234 Cal.App.4th 123, 152.) On remand, plaintiffs may attempt to plead an intentional infliction claim.
DISPOSITION
The judgment is reversed as to the third and seventh causes of action and affirmed in all other respects. On remand, plaintiffs may file an amended complaint alleging a cause of action for unjust enrichment premised on defendants' retention of sales proceeds in excess of those permitted under the bail bond agreement and for intentional infliction of emotional distress premised on Rob Brown's alleged assaultive conduct. Parties to bear their own costs on appeal.
/s/_________
Banke, J. We concur: /s/_________
Humes, P.J. /s/_________
Dondero, J.