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The Single Biggest Myth about Mobile Learning [#mLearning]
mLearning Revolution
There are many great blog posts out there about Mobile Learning Myths and not a single one mentions what I think is the biggest misconception about Mobile Learning. The majority of the myths mentioned out there include things like: You cannot condense real learning into the smaller screens. Mobile Devices are too distracting for providing effective learning.
A List of Interesting Mobile Learning Links
Upside Learning
Mobile learning is in the air, almost everyone realizes the potential, and some companies are now taking tentative first steps. While I haven't blogged in a while, I continue trawling through my RSS feeds, seeing more and more references to mobile learning, mlearning, performance support, 'just-in-time' and so many other terms that make sense in that context.
Learning Designers have 3 Choices Regarding Mobile Learning [#mLearning]
mLearning Revolution
Last week Cisco published a research paper entitled " Cisco Visual Networking Index: Global Mobile Data Traffic Forecast Update, 2012–2017 ," which included some staggering figures, as to the speed with which we are adopting internet-connected mobile devices around the world. mobile devices per capita. Mobilize Learning by Optimizing it for Touch.
Free online book on #mobile learning research
Ignatia Webs
The relentless editing team of Mohamed Ally and Avgoustos Tsinakos have released a free, online book on global mobile learning implementations and trends in collaboration with the Open University of China. Ho Chapter 14 Using Self-Efficacy to Assess the Readiness of Nursing Educators and Students for Mobile Learning by Richard F. You can download the 258 page book here.
New to Mobile Learning Development: 3 Big Problems and 7 Solutions
New to Mobile Learning Development: 3 Big Prob- lems and 7 Solutions Mobile Learning is Here to Stay With the introduction of the Apple iPhone and iPad, a mobile computing revolution. do we take advantage of these devices to deploy learning content and how do we. Problem #1: How do we develop learning content that works on all of the different.
Free papers on mobile learning from #IMLF2016 conference #mlearning
Ignatia Webs
This is a really wonderful set of papers that encompass the latest mobile learning realities and implementations. To give you an idea, I am adding the abstract of her paper here: Mobile devices transcend the educational affordances provided by conventional tethered electronic and traditional learning.
Top 7 Myths Of Mobile Learning
Upside Learning
When it comes to mobile learning myths and misconceptions abound. The mlearning domain is still new to many, so this confusion is to be expected. These myths are holding back widespread adoption of mobile learning in the workplace. This is the most common misconception about mlearning which leads you to evaluate how to implement elearning on mobile devices.
Mobile Learning Revolution – Round-Up Of Our Best mLearning Posts
Upside Learning
Mobile Learning has been on our minds and for all the right reasons. And we are one of the 30 exhibitors showcasing our entire range of innovative Mobile Learning Solutions at booth number 316. Also on display would be our newly launched revolutionary platform for Mobile Learning – Upside2Go. What Is Mobile Learning? See you there.
Mobile Learning Pitfalls To Avoid – Presentation
Upside Learning
Mobile technology, having seeped into popular culture, is now finding widespread acceptance as a learning tool in the workplace as well. According to Towards Maturity's In-focus report titled Mobile Learning in the Workplace, 2013 was the year when mLearning became the norm rather than the exception; with seven out of ten businesses now adopting mobile […]. Mobile Learning Mobile Learning Pitfalls Pitfalls of mobile learning
6 Steps To A Better Mobile Learning Strategy
Upside Learning
Mobile learning is a relatively new domain and is rapidly evolving as well, which makes its implementation a not so easy task. When implementing mobile learning in workplace, following 6 steps will help create an effective mlearning strategy. 1. We believe that's because of the lack of understanding of what mobile learning is and how to use it in the workplace.
When Designing Mobile Learning, Think Less is More [#mLearning]
mLearning Revolution
Over the weekend I came across this fascinating article that really got me thinking about how we should approach the design of mobile learning (mLearning). strongly believe mobile played a big role in Facebook's decision to acquire Intagram so I agree with McKenzie. also believe that each new era in computing brings challenges and mobile is no different.
Top 21 Tips For Mobile Learning
Upside Learning
The eLearningGuild recently released a great resource "158 Tips on mLearning: From Planning to Implementation" Very interestingly, in the introduction Chris Benz says – the big question last year was "Should we do mLearning?" " The question this year is "How should we do mLearning?" Mobile Learning Mobile Learning Tips The eLearningGuild " It's a fantastic change – one that we've been looking forward […].
Free eBook on #mobile learning in context
Ignatia Webs
The wonderful freely available eBook "Mobile in context" combines contemporary mobile learning insights from experts around the world, engaged in formal, informal, academic and corporate mobile learning. books ebook eLearning eLearning guild mlearncon mLearning mobile mobile learning How I wished I could be there!
Introducing: mLearning Design Training [6-hr Workshop with RJ Jacquez]
mLearning Revolution
After delivering my 6Hr Mobile Learning Workshop for companies for a few months, today I'm opening it up for Learning Professionals. This workshop is a result of months of research on mobile; mobile app design testing for best practices ; countless hours of consulting and lots of learning about design from trial and error. Send to Kindle.
A Lesson in Mobile Learning Design from Yelp [#mLearning]
mLearning Revolution
I love this tweet, because it epitomizes how most people view the mobile experience, often as the "light" version of the desktop: "It looks like you're on a train. Would you like me to show you the insultingly simplified mobile site?" It turns out that mobile users wanted to do this much to Yelp's surprise. Send to Kindle.
Mobile Learning: A Quick SWOT Analysis
Upside Learning
For over two years now, we have not only just been hearing about mobile learning but also actively understanding and working on it. From trying to explain five myths of mobile learning to assisting customer new to mobile learning, getting started with mobile learning has been an exciting journey through which we have seen mobile learning seeing increasing adoption.
Mobile Learning – The Third Dimension
Upside Learning
An organization's ability to learn, and translate that learning into action rapidly, is the ultimate competitive advantage. We believe mobile learning will play an extremely important role in enabling organizations to support their people manage and retain their competitive edge – check out our earlier webinar " No escaping mobile learning ".
Top 10 Ways People Are Using Mobile Learning
Upside Learning
Clearly there is plenty of buzz out there around mobile learning. Many companies know that there are efficiencies to be achieved through an effectively deployed mLearning strategy. Yet the question I'm asked most frequently is – how are your clients leveraging mobile learning technology? […]. Mobile Learning In my role, I field multiple inquiries on a weekly basis.
Free book increasing access through #mlearning
Ignatia Webs
The Commonwealth of Learning and Athabasca University just released a great free book on mobile learning, edited by the Mohamed Ally and Avgoustos Tsinakos. What to expect: Part I describes considerations for, and approaches to, designing mobile learning materials. With over 200 pages of mobile learning wisdom, there is a lot to read and reflect upon.
Free Mobile Learning Course – MobiMOOC2012
Upside Learning
For MobiMOOC 2012 she's lined up a very impressive faculty to conduct weekly sessions on mobile learning and related topics. feel absolutely honored to be included amongst them and I look forward to interacting and learning from the participants of these sessions. Learn More. Introduction to mLearning. mLearning – basic concepts. Augmented mLearning.
Introducing a new Podcast: This Week in #mLearning [Episode 1: The new iPad and Mobile Learning]
mLearning Revolution
I'm am extremely excited to introduce a brand new weekly Podcast entitled 'This Week in Mobile Learning" with my friend and co-host Robert Gadd. Each week Robert and I will discuss various trending topics and their impact on mobile learning, including the state of mobile in general, mobile devices, HTML5, Adobe Flash, Responsive Web Design, Rapid Development tools, especially as they begin making the shift from desktop to mobile, mobile apps, video, Education and more. Adobe Flash and Mobile devices. And much more.
Free #research papers on #mLearning from mLearn conference
Ignatia Webs
The topics are very diverse: augmented learning, health (diabetes 1 support among others), gender, learning analytics, mLearning pedagogy, language learning, learning with tablets. augmented learning pedagogy mobile mLearning research mobile learning health diabetes conferences
Mobile Learning And The BYOD Movement
Upside Learning
With the almost insatiable need for information and communication increasing across the global workforce, most of them are turning to mobile devices. However, by using Mobile Device Management (MDM) and Mobile Application Management (MAM) platforms, organizations may be able to manage the security risks posed by BYOD. What does this mean for mlearning?
Future of #mLearning inspiring ideas @dave_parsons
Ignatia Webs
Imagine a future world where mobile learning is intuitive. His paper swooped me from one train of thought to another, adding new insights, challenging old ideas and reshuffling current mobile learning ''facts''. He starts off with a student showing his off the shelf hardware robot to his peers, while controlling the robot with his own adapted mobile device.
From eLearning to mLearning: The Top 5 Challenges beyond Technology
mLearning Revolution
No, the future of eLearning and Learning in general is Mobile Learning or better yet Multiscreen Learning , either way we can abbreviate it as m Learning. Mobile Challenges. Every new computing paradigm has challenges and the new mobile revolution is no different. The reality is that we don't like change and mobile is a new way of thinking.
Getting Started With Mobile Learning?
Upside Learning
Mobile learning is in the air. At Upside Learning, we have been doing a fair bit of mobile learning for more than two years now. During this period we've tried several things; experimented a lot; and in the process have built a good understanding and capability in the mobile learning space. What is Mobile Learning. Why Mobile Learning.
Free #mobile research papers from #mLearn Qatar
Ignatia Webs
Free papers on mobile learning research are made available to all thanks to the mLearn Qatar organizing team. The paper on " mobile learning through indigenous languages: learning through a constructivist approach " written by Mmaki Jantjies and Mike Joy was a treat to read. This got me thinking about the lack of mobile OER again. So, got reading.
Models of Mobile Learning
The Mobile Learner
In incorporating mobile learning into everyday teaching and learning, one first must think of a workable model to frame the discussion and the implementation. The title says it all. 4) Towards a Theory of Mobile Learning – A nine page paper (PDF) from the University of Birmingham looking at the design of mobile learning systems. mlearning mobilelearning mobile learning
Models of Mobile Learning
The Mobile Learner
In incorporating mobile learning into everyday teaching and learning, one first must think of a workable model to frame the discussion and the implementation. The title says it all. 4) Towards a Theory of Mobile Learning – A nine page paper (PDF) from the University of Birmingham looking at the design of mobile learning systems. mlearning mobilelearning mobile learning
Mobile Learning is where the Puck is Going to Be [#mLearning]
mLearning Revolution
have been busy launching my workshop on how to transition from e-Learning to m-Learning. Now that this workshop is up-and-running, I'm back with more thoughts on the mobile learning revolution. Everyone was eager to learn more about how to design learning experiences that are optimized for touch on mobile devices. Thank You for reading.
Free mobile learning papers from mLearn2016 conference in Sydney #mLearning #mobile
Ignatia Webs
This is a great set of mobile learning papers ( proceedings available here ) written for the 15th mLearn conference that was organised in Sydney, Australia on 24-26 October 2016. The theme chosen for the conference was Mobile Learning Futures – Sustaining Quality Research and Practice in Mobile Learning. Sustainability and quality are the keys to mobile learning. Future mobile learning research needs to look beyond technological intervention per se. Authentic assessments that provide evidence of learning are needed.
Are We Wired For Mobile Learning? [INFOGRAPHIC]
The Mobile Learner
apps cell_phone digital culture edushifts mlearning mobilelearning mobile learningThis infographic links back to it's original location on [link]. discovered this infographic from Louise Duncan's blog found here: [link].
Future Mobile Learning
mLearnopedia on Blogspot
Last week in a workshop on mobile learning I was looking for something interesting in that difficult time right after lunch. So I decided to talk about where mobile is going and thus additional opportunities for mobile learning. mobile mLearning research mobile learning history future presentation ADLWhat did I miss?
Join the open and free course on mobile learning: #MobiMOOC
Ignatia Webs
Mobile learning (mLearning) is all the rage at the moment, but how do you get started and how do you maximize the mLearning plans you have? Simple, follow this free online course facilitated by 7 mobile experts and turn your mLearning knowledge into a practical project. The target group for this course is … anyone interested in mLearning. Interested?
What I Learnt About Mobile Learning Design
Upside Learning
This means that there are going to be millions of Smartphone users out there, who can access mobile learning anywhere, at any time. Mobile hardware has its own limitations and hence we need to adhere to some critical design conventions in order to make our mobile applications a success. Five Mobile Learning Implementation Tips – Abhijit Kadle. ?
10 Things Adobe gets Right about Mobile Learning with Captivate 8 [Review]
mLearning Revolution
The more I test #AdobeCaptivate 8 for my Review, the more I realize this is the version for #mLearning I've been waiting for! When comparing the two big players in the rapid eLearning market, Articulate and Adobe, they approach mobile learning design very differently. Having said that, here are 10 things Adobe gets right about Mobile Learning with Captivate 8: 1.
Get Mobile to Implement Mobile Learning
Mobile Learning Edge
In an article from Float Mobile Learning , an mLearning firm based in Illinois, Scott McCormick suggests that to really discover what your firm requires in terms of mobile education and support, you have to get mobile yourself. Listen to their needs before you design your mobile learning program and you'll get a lot further when you implement it.
These Stats Bode well for Mobile Learning
mLearning Revolution
. All signs continue to point to a near future where mobile devices will surpass desktop PCs for how we connect to the Internet, shop, and most other things, including learning. believe we are getting very close to a 'mobile-first' approach to developing content and I can't wait to see we can come up as a community when it comes to mobile learning design.
8 Things we MUST do in 2013 to seize the potential of mLearning
mLearning Revolution
2012 has been an amazing year for mobile! This year we have seen technology companies introduce a myriad of mobile devices of all sizes, prices and operating systems. Earlier this year Comscore reported that 2014 will be the year in which the number of mobile users will surpass desktop users for the first time. Become an Active, Observant Mobile user. Samsung S3).
great paid eBook on #mLearning field work
Ignatia Webs
Anyone interested in mobile learning and how it can be used in different field settings will enjoy reading this wonderful book. mLearning design, meaning making) and are followed by an addendum adding additional knowledge to the overall topic, creating a holistic insight into both the chapter, as well as in the overall mLearning landscape.


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March 9, 2012
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT,v.RAY MAXWELL, DEFENDANT/PETITIONER.
ORDER RE: Rule 59(e) Motion for Reconsideration to Alter or Amend Judgment [15]
Before the Court is Petitioner Ray Maxwell's ("Petitioner") Rule 59(e) Motion for Reconsideration to Alter or Amend Judgment [15]. Having reviewed all papers submitted pertaining to this Motion, the Court NOW FINDS AND RULES AS FOLLOWS:
The Court hereby DENIES Petitioner's Rule 59(e) Motion for Reconsideration to Alter or Amend Judgment
[15]. In this Motion, Petitioner requests that the Court reconsider its previous Order denying Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by Person in Federal Custody ("2255 Motion") [14].
In the 2255 Motion, Petitioner challenged the validity of his guilty plea and his current sentence by bringing a claim of ineffective assistance of counsel. Petitioner claimed that because he was under the influence of medications to treat his mental illness at the time of his guilty plea, he was not competent to accept the plea deal or to plead guilty, and his trial counsel rendered ineffective assistance of counsel by allowing him to do so. Petitioner also requested in the alternative that the Court hold an evidentiary hearing to evaluate whether Petitioner was indeed incompetent at the time of his guilty plea so as to render his guilty plea invalid. In denying Petitioner's 2255 Motion, the Court found that Petitioner had not asserted a viable ineffective assistance of counsel and was not entitled to an evidentiary hearing.
Federal Rule of Civil Procedure 59(e) permits a court to alter or amend a judgment previously entered.
Fed. R. Civ. P. 59(e). The term "judgment" as used in the Federal Rules of Civil Procedure includes "a decree and any order from which an appeal lies." Fed. R. Civ. P. 54(a). Under Rule 59(e), it is appropriate to alter or amend a judgment if "(1) the district court is presented with newly discovered evidence, (2) the district court committed clear error or made an initial decision that was manifestly unjust, or (3) there is an intervening change in controlling law." Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).
Upon review, the Court finds that Petitioner has not submitted any new facts or law that were not considered in this Court's previous denial of Petitioner's 2255 Motion. Moreover, the Court finds that it did not commit clear error in both rejecting Plaintiff's ineffective assistance of counsel and denying Plaintiff's request for an evidentiary hearing. Furthermore, the Court finds that the denial of Plaintiff's 2255 Motion was not manifestly unjust.
More specifically, with regards to the evidentiary hearing, the Court finds that the record conclusively disproves Petitioner's claim of incompetence, and an evidentiary hearing is still not required. See, e.g., United States v. Meija-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) ("The district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and the records conclusively show that the movant is not entitled to relief.").
Accordingly, Petitioner's Rule 59(e) Motion for Reconsideration to Alter or Amend Judgment is DENIED.
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Topic: Carmichael Lynch
Subaru Unveils Two New Safety Ads, and They Couldn't Be More Different
One bleak and somber, one comic
By David Gianatasio on Aug. 29, 2016 - 10:37 AM EDT
Nothing says love quite like twisted steel and shredded tires. Wrecked cars, and their understandably shaken and contrite teenage drivers, appear in Carmichael Lynch's latest work for Subaru, which focuses on…
Subaru's New Ad Revisits Some Old Ones, and Shows Why the Campaign Works So Well
Nostalgia, and love, in a road trip down memory lane
By Angela Natividad on Jul. 11, 2016 - 11:19 AM EDT
Years into its ongoing and successful "Love" campaign, Subaru has been named Kelley Blue Book's 2016 Most Trusted Brand and Best Overall Brand. And to look ahead, it's looking back—at…
U.S. Bank's New Ads Imagine the Future, Thanks to Some Clever Visual Tricks
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By David Gianatasio on Jan. 25, 2016 - 11:52 AM EST
U.S. Bank's new campaign from Carmichael Lynch leaves a lot to the imagination. For example, in "New House," a young couple tour their dream home ... which hasn't been built yet.…
Master and Apprentice Are Back, and Ridiculous as Ever, for Steak 'n Shake
New spots from Carmichael Lynch
By Andrew McMains on Aug. 28, 2014 - 4:24 PM EDT
The latest ads in Carmichael Lynch's master and apprentice campaign for Steak 'n Shake continue to use sound effects and choice props to comic effect. This time, the main featured sound…
If Hangry Animals Emerge From Your Belly, You Might Need Jack Link's Beef Jerky
Or see a doctor immediately
By Alfred Maskeroni on Jun. 24, 2014 - 12:05 PM EDT
Ads are most beautiful when they speak to us in a language we understand—when they tap into our subconscious and make us feel like they empathize, like they are one…
Subaru Gets Trashy With Trailer for Grindhouse-Style Movie
Drifter and his WRX give a girl 'The Ride of Her Life'
By Gabriel Beltrone on Apr. 2, 2014 - 10:36 AM EDT
Subaru is going for the lowest common denominator of dudes with this new grindhouse-style trailer for a movie that hopefully will never really exist. The title, The Ride of Her Life,…
Quietly Amazing Subaru Ad Is About So Much More Than a Girl Changing a Flat Tire
Another great 'Love' story
By Roo Ciambriello on Jan. 29, 2014 - 11:30 AM EST
This new ad in Subaru and Carmichael Lynch's "Love" campaign opens on a scene we all dread—a car with a flat tire, and of course it's raining. We see a…
Intense Subaru Ad Focuses Almost Entirely on One of Its Vehicles Horribly Wrecked in a Crash
But it's not all grim
By Tim Nudd on Jan. 16, 2014 - 3:54 PM EST
And speaking of Subaru, here's another new spot from Carmichael Lynch for the automaker, and it's a whole lot more sobering than that snogging-dogs one. This one's about safety, and it…
Now You Can Tweet to a Plant. For Science.
Museum tests theory that talking encourages growth
By David Gianatasio on Oct. 10, 2013 - 9:26 AM EDT
Does talking to plants really help them grow? It's a question that, I'm sure, keeps us all awake at night. Luckily, Carmichael Lynch and the Denver Museum of Nature &…
Subaru's Latest Ads Need a Flashing Warning Light for Sweetness Overload
Too much or just right?
By David Gianatasio on Jul. 30, 2013 - 11:40 AM EDT
Subaru stakes its claim as the car for people whose lives are just so damn cute in this pair of new spots from Carmichael Lynch. "The Date" follows a young couple…


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August 11, 2011
ARLENE FONTENOT, PLAINTIFF AND APPELLANT,v.WELLS FARGO BANK, N.A., ET AL., DEFENDANTS AND RESPONDENTS.
Alameda County Super. Ct. No. RG09433189 Trial Court: Alameda County Superior Court Trial Judge: Hon. Ronni MacLaren
Plaintiff Arlene Fontenot sued Wells Fargo Bank, N.A. (Wells Fargo), Mortgage Electronic Registration Systems, Inc. (MERS), and three other entities after she defaulted on a secured real estate loan and lost the property to foreclosure. In the fourth amended complaint, plaintiff alleged the foreclosure was unlawful because Wells Fargo had breached an agreement to forbear from foreclosure, and MERS made an invalid assignment of an interest in the promissory note relating to the property. Wells Fargo and MERS filed demurrers, based in part on recorded documents they contended demonstrated plaintiff's claims to be without factual foundation. The trial court took judicial notice of the requested documents and sustained the demurrers without leave to amend. We affirm.
On April 30, 2010, plaintiff filed her fourth amended complaint (complaint) against Wells Fargo, MERS, and three other defendants.*fn1 The complaint alleged that in 2006, plaintiff gave defendant Alliance Bancorp a $1 million promissory note, secured by a deed of trust in the purchased real property (property). MERS was identified as the "nominee" of the lender in the deed of trust. In November 2007, plaintiff was served with a notice of default by defendant NDEx West, LLC (NDEx), although NDEx was not substituted as trustee of the deed of trust until two months later. In December 2007, MERS assigned the deed of trust to defendant HSBC Bank USA, N.A. (HSBC). Several months later, Wells Fargo was alleged to have foreclosed on the property and sold it, although the complaint otherwise contained no explanation of Wells Fargo's relationship to the secured transaction.*fn2
The complaint asserted a single cause of action against all defendants for "Wrongful Foreclosure [Negligence per Se]." Within that cause of action, plaintiff alleged several different imperfections in the foreclosure process, including improper or ineffective transfers of the promissory note and security. Plaintiff sought an award of damages, as well as an order voiding the foreclosure sale and her debt.
The trial court had earlier sustained a demurrer to the third amended complaint.*fn3 In sustaining the demurrer without leave to amend as to three of four causes of action, the court found "allegations concerning improper or ineffective assignments" to be "inconsistent with recorded instruments or . . . with the law governing assignments." The court allowed amendment of the remaining cause of action, ruling "[p]laintiff has alleged the germ of a cause of action for wrongful foreclosure by alleging that she had a written forbearance agreement with [Wells Fargo]. Since the agreement is only effective if in writing, Plaintiff must attach the written agreement. . . ."
Responding to the latter portion of the court's order, the complaint alleged that in February 2008 plaintiff entered into a "SPECIAL FORBEARANCE AGREEMENT" (forbearance agreement) with Wells Fargo. Mindful of the court's instruction, plaintiff attached a copy to the complaint. The forbearance agreement stated that Wells Fargo would suspend further debt enforcement proceedings in return for plaintiff's making a series of five monthly payments, beginning in February 2008. The first four payments were between $8,000 and $8,500, while the last payment was a balloon payment of over $59,000. If plaintiff failed to make the required payments, Wells Fargo was entitled to terminate the forbearance agreement and reinstitute foreclosure proceedings.
Plaintiff alleged she made the first payment under the forbearance agreement as scheduled. Soon thereafter, on March 10, 2008, she received a letter from Wells Fargo (March letter) "stating that the monthly mortgage payments were being reduced effective May 1, 2008 from $7,395.82 to $4,895.82 for the next six months." The complaint alleged plaintiff made two more of the payments required by the forbearance agreement, but in May 2008, she "accepted the offer" contained in the March letter and submitted a payment of $4,895.82. Wells Fargo refused to accept the payment as satisfaction of plaintiff's obligations and foreclosed in August 2008.*fn4 Plaintiff did not attach a copy of the March letter to the complaint.
Wells Fargo filed a demurrer, arguing the complaint failed to state a claim and was uncertain. The court sustained the demurrer without leave to amend because it failed to demonstrate plaintiff complied with the forbearance agreement. The court rejected any reliance by plaintiff on the March letter as an amendment of the forbearance agreement because plaintiff had not attached a copy of the letter to the complaint. The court noted it had already rejected plaintiff's other alleged grounds for her cause of action against Wells Fargo and reaffirmed those rulings.
MERS also filed a demurrer. With respect to MERS, the complaint alleged MERS was not the "true" beneficiary under the deed of trust, never had ownership of the promissory note, and never held an assignable interest in the note or deed of trust. As a result, any assignment of the note by MERS to HSBC was invalid. In addition, plaintiff alleged the "trustee substitution" was "invalid due to the fact that the transmission of any interest in Plaintiff's note from MERS is void." In its demurrer, MERS argued plaintiff's allegations were contradicted by the judicially noticeable documents or otherwise legally flawed.
The MERS request for judicial notice attached a series of recorded documents related to the property, such as two deeds of trust, an assignment of a deed of trust, and documents required by the non-judicial foreclosure procedure, each bearing notarized signatures and the recorder's stamp of Alameda County. The first deed of trust, securing a debt of $1 million, contained a paragraph stating: " 'MERS' is Mortgage Electronic Registration Systems, Inc. MERS is a separate corporation that is acting solely as a nominee for Lender and Lender's successors and assigns. MERS is the beneficiary under this Security Instrument." A later paragraph entitled, "TRANSFER OF RIGHTS IN THE PROPERTY," confirms, "The beneficiary of this Security Instrument is MERS (solely as nominee for Lender and Lender's successors and assigns) and the successors and assigns of MERS. . . . [¶] . . . [¶] . . . Borrower understands and agrees that MERS holds only legal title to the interests granted by Borrower in this Security Instrument, but, if necessary to comply with law or custom, MERS (as nominee for Lender and Lender's successors and assigns) has the right: to exercise any or all of those interests, including, but not limited to, the right to foreclose and sell the Property; and to take any action required of Lender, including, but not limited to, releasing and canceling this Security Instrument."*fn5
A notice of default was recorded on November 9, 2007, by "NDEx West, LLC, as Agent for Beneficiary." Nearly two months later, on December 27, 2007, MERS recorded an assignment of the first deed of trust to "HSBC BANK USA . . . AS TRUSTEE FOR NOMURA ASSET ACCEPTANCE CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES." This assignment purported to assign "all beneficial interest" under the first deed of trust as well as the note and all monies due under the note. Several weeks later, HSBC, listing Wells Fargo as "its attorney in fact," recorded a substitution of trustee under the first deed of trust, naming NDEx as the new trustee. NDEx recorded a notice of trustee's sale on February 15, 2008, and the deed reflecting the sale of the property was recorded in August. Although she opposed the taking of judicial notice, plaintiff did not contest the authenticity of these documents.
The court granted MERS's request for judicial notice and sustained its demurrer without leave to amend, noting, "The only apparent grounds for suing MERS are the allegations that the deed of trust improperly named MERS as nominee and beneficiary, and that there was no physical delivery of the note to HSBC. . . . Those claims do not state a cause of action against MERS as a matter of law."
Plaintiff raises four primary grounds for reversing the trial court's rulings sustaining the two demurrers. With respect to MERS, she argues the trial court erred in taking judicial notice of the various recorded documents and the purported assignment of the note by MERS to HSBC in the assignment of deed of trust was invalid because MERS did not possess an interest in the note. Because the assignment of the note to HSBC was invalid, plaintiff argues, Wells Fargo had no authority to foreclosure. With respect to Wells Fargo, she argues the trial court erred because she stated a claim either for breach of the forbearance agreement, as amended by the March letter, or promissory estoppel.
"On review from an order sustaining a demurrer, 'we examine the complaint de novo to determine whether it alleges facts sufficient to state a cause of action under any legal theory, such facts being assumed true for this purpose. [Citations.]' [Citation.] We may also consider matters that have been judicially noticed." (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors, supra, 48 Cal.4th at p. 42.)
A. The Claim Against MERS
1. Judicial Notice
The trial court's ruling sustaining the MERS demurrer was based on recorded documents that clarified and, to a degree, contradicted plaintiff's allegations regarding MERS's role in the foreclosure. Plaintiff contends the trial court erred in taking judicial notice of these documents. We review the trial court's ruling on the request for judicial notice for abuse of discretion. (Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549.)
" ' "Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter." ' " (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 (Poseidon).) When ruling on a demurrer, "[a] court may take judicial notice of something that cannot reasonably be controverted, even if it negates an express allegation of the pleading." (Ibid.) Accordingly, Evidence Code section 452, subdivisions (c) and (h), respectively, permit a court, in its discretion, to take judicial notice of "[o]fficial acts . . . of any state of the United States" and "[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy."
Pursuant to these provisions, courts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged. (E.g., Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1367, fn. 8, 1382; Evans v. California Trailer Court, Inc., supra, 28 Cal.App.4th at p. 549; Cal-American Income Property Fund II v. County of Los Angeles (1989) 208 Cal.App.3d 109, 112, fn. 2.) The official act of recordation and the common use of a notary public in the execution of such documents assures their reliability, and the maintenance of the documents in the recorder's office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.
In addition, courts have taken judicial notice not only of the existence and recordation of recorded documents but also of a variety of matters that can be deduced from the documents. In Poseidon, for example, the court affirmed the trial court's taking judicial notice, in sustaining a demurrer, of the parties, dates, and legal consequences of a series of recorded documents relating to a real estate transaction. (Poseidon, supra, 152 Cal.App.4th at pp. 1117-1118.) Although the court recognized that it would have been improper to take judicial notice of the truth of statements of fact recited within the documents, the trial court was permitted to take judicial notice of the legal effect of the documents' language when that effect was clear. (Ibid.) Similarly, in McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, the court took judicial notice of the recordation of a notice of default under a deed of trust, the date of the notice's recording, and the amount stated as owing in the notice for the purpose of demonstrating the plaintiffs had notice of the amount claimed to be owing and the opportunity to cure a defective tender. (Id. at p. 394.) Judicial notice of the boundaries of a parcel of land on the basis of the property description in a recorded grant deed has also been approved. (Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1460.)
Strictly speaking, a court takes judicial notice of facts, not documents. (Evid. Code, § 452, subds. (g), (h).) When a court is asked to take judicial notice of a document, the propriety of the court's action depends upon the nature of the facts of which the court takes notice from the document. As noted in Poseidon, for example, it was proper for the trial court to take judicial notice of the dates, parties, and legally operative language of a series of recorded documents, but it would have been improper to take judicial notice of the truth of various factual representations made in the documents. (Poseidon, supra, 152 Cal.App.4th at pp. 1117-1118; see similarly Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375 (Herrera).) Taken together, the decisions discussed above establish that a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.
Plaintiff concedes the trial court could take judicial notice of recorded documents, but she argues the court improperly took judicial notice of the truth of matters stated in the documents, citing Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057 (Mangini) (overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276). In Mangini, the court held that while it could take judicial notice of the issuance of a report by the United States Surgeon General regarding the health consequences of smoking, it could not take judicial notice of the truth of the conclusions stated in the report. (Id. at pp. 1063-1064.) Similarly, the court refused to take judicial notice of the truth of matters reported in newspaper articles. (Id. at p. 1065.) As is evident from this summary, the documents considered in Mangini were not the type of legally operative documents featured here. Rather, they were fundamentally informative documents, and the parties sought judicial notice of the facts contained in the documents without demonstrating the facts were "not reasonably subject to dispute." (Evid. Code, § 452, subd. (h).) The other cases cited by plaintiff, such as In re Noreen G. (2010) 181 Cal.App.4th 1359, 1389, footnote 13 and C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1103-1104, are not different.*fn6
Despite her general objection, plaintiff contests the taking of judicial notice of only one specific fact--that MERS was the beneficiary of the first deed of trust, which the court noticed on the basis of MERS's designation as beneficiary in the document. Contrary to plaintiff's argument, MERS's status as beneficiary was not the type of fact that is generally an improper subject of judicial notice under Mangini, since its status was not a matter of fact existing apart from the document itself. Rather, MERS was the beneficiary under the deed of trust because, as a legally operative document, the deed of trust designated MERS as the beneficiary. Given this designation, MERS's status was not reasonably subject to dispute. The other matters noticed by the trial court similarly could be inferred from the text or legal effect of the documents themselves, needing no outside confirmation. We find no abuse of discretion.
Just prior to argument, plaintiff forwarded the recently published decision, Herrera, supra, 196 Cal.App.4th 1366, in which the court reversed a grant of summary judgment on the ground the trial court improperly took judicial notice of statements made within recorded documents. (Id. at pp. 1375-1376.) Herrera is not inconsistent with our decision. In Herrera, the defendants sought judicial notice of the truth of recited facts within the recorded documents--for example, that a particular party " 'is the present beneficiary under' " a particular deed of trust. (Id. at p. 1375.) As the court noted, this is the type of statement found in Poseidon to be ineligible for judicial notice. (Herrera, at p. 1375.) In contrast, the facts of which the trial court here took judicial notice arose from the legal effect of the documents, rather than any statements of fact within them.*fn7 (Ibid.)
2. Plaintiff's Claim
a. Background
Plaintiff's claim against MERS challenges an aspect of the "MERS System," a method devised by the mortgage banking industry to facilitate the securitization of real property debt instruments. As described in Mortgage Electronic Registration Systems v. Nebraska Dept. of Banking & Finance (Neb. 2005) 704 N.W.2d 784, MERS is a private corporation that administers a national registry of real estate debt interest transactions. Members of the MERS System assign limited interests in the real property to MERS, which is listed as a grantee in the official records of local governments, but the members retain the promissory notes and mortgage servicing rights. The notes may thereafter be transferred among members without requiring recordation in the public records. (Id. at p. 785.)
Ordinarily, the owner of a promissory note secured by a deed of trust is designated as the beneficiary of the deed of trust. (11 Thompson on Real Property (2d ed. 1998) § 94.02(b)(7)(i), p. 346.) Under the MERS System, however, MERS is designated as the beneficiary in deeds of trust, acting as "nominee" for the lender, and granted the authority to exercise legal rights of the lender. This aspect of the system has come under attack in a number of state and federal decisions across the country, under a variety of legal theories. The decisions have generally, although by no means universally, found that the use of MERS does not invalidate a foreclosure sale that is otherwise substantively and procedurally proper.
Our Courts of Appeal have only recently addressed MERS's role, but both published decisions have come down on the side of MERS.*fn8 In Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes), the plaintiff sought to prevent foreclosure on his home. He sued MERS, among others, alleging he was unaware of the identity of the owner of his promissory note, but believed the owner had not authorized MERS to proceed with the foreclosure. The plaintiff sought to enjoin foreclosure in the absence of proof that MERS was authorized by the note's owner to proceed. (Id. at p. 1152.) The court rejected the claim on both procedural and substantive grounds. With respect to the former, the court concluded the " 'comprehensive' " statutory framework regulating non-judicial foreclosure, Civil Code sections 2924 through 2924k, did not require the agent of a beneficial owner, such as MERS, to demonstrate that it was authorized by the owner before proceeding with foreclosure, at least in the absence of a factual allegation suggesting the agent lacked authority. (Gomes, at pp. 1155-1156.) As the court reasoned, Civil Code section 2924, subdivision (a)(1), which states that a trustee, mortgagee, or beneficiary, or an agent of any of them, may initiate foreclosure, does not include a requirement that an agent demonstrate authorization by its principal. (Gomes, at pp. 1155-1156.) The court also found no substantive basis for the challenge, noting, as here, the plaintiff had agreed in the deed of trust that MERS could proceed with foreclosure and non-judicial sale in the event of a default. Because the deed of trust did not require MERS to provide further assurances of its authorization prior to proceeding with foreclosure, the plaintiff was not entitled to demand such assurances. (Id. at p. 1157.)
A different type of MERS challenge was addressed in Ferguson v. Avelo Mortgage, LLC (2011) 195 Cal.App.4th 1618 (Ferguson). The Ferguson plaintiffs were tenants in a home sold at a non-judicial foreclosure sale. Originally, MERS was designated as a nominee and beneficiary in the deed of trust. On August 3, Quality Loan Service Corporation (Quality) recorded a notice of default, although there was no indication in the public record of Quality's authority to act with respect to the property at the time. The defendant, Avelo Mortgage, LLC (Avelo), had executed a substitution of trustee designating Quality as trustee the prior day, August 2, but that substitution was not recorded until months later, on November 9. Further, at the time Avelo executed the substitution, there was similarly no indication in the public record of its authority to act. Only several weeks later, on August 22, did MERS assign its interest under the deed of trust to Avelo. Notice of the trustee's sale was delivered on November 4 and recorded the same day as the substitution of trustee designating Quality, November 9. The trustee's sale occurred in July of the following year. (Id. at p. 1621.)
Affirming the grant of a demurrer, the court initially addressed the issue of tender, concluding that the plaintiffs were required to allege tender of the amount due under the note when bringing an action to void a non-judicial foreclosure sale. (Ferguson, supra, 195 Cal.App.4th at p. 1624.) It then turned to two arguments concerning MERS's role: MERS lacked the power to foreclose because it was not the holder of the underlying promissory note, and the sale was invalid because the foreclosing parties did not have authority to proceed as a result of the irregularities in the documentation. Citing a series of federal district court decisions, the court first held that MERS was entitled to initiate foreclosure despite having no ownership interest in the promissory note because it was the beneficiary under the deed of trust. (Id. at pp. 1626-1627.) Turning to the second issue, the court agreed with the plaintiffs that the notice of default was defective because Avelo lacked legal authority to execute a substitution of trustee until it had been assigned MERS's interest under the deed of trust. The court found the notice of sale valid under Civil Code section 2934a, subdivision (b), however, because the notice of sale was not recorded prior to the substitution of trustee. (Ferguson, at p. 1628 & fn. 5.) Given the three-month cure period between the recording of the notice of default and notice of sale and the long delay after the recordation of the substitution of trustee before the sale was concluded, the court declined to invalidate the foreclosure on the basis of the irregular documentation. (Ibid.)
b. Plaintiff's Allegations
With that background, we address plaintiff's claims. Referring to the fact that the assignment of the deed of trust purported to assign to HSBC both MERS's interest in the deed of trust and the underlying note, plaintiff explains "the gravamen of [her] claim against MERS was that it had wrongfully assigned the Note and Deed of Trust to Defendant HSBC" because MERS lacked the authority to make an assignment of the underlying promissory note.
The complaint contains two allegations regarding the MERS's purported lack of authority to assign the note. First, the complaint alleges defendants "bear the burden of proving" a proper assignment occurred, and they "lack evidence sufficient to prove a valid assignment." As so stated, the claim fails because MERS did not bear the burden of proving a valid assignment. The non-judicial foreclosure statutes are a "comprehensive" scheme designed "(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser." (Moeller v. Lien (1994) 25 Cal.App.4th 822, 830.) As a result, a non-judicial foreclosure sale is presumed to have been conducted regularly, and the burden of proof rests with the party attempting to rebut this presumption. (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258 ["It is the burden of the party challenging the trustee's sale to prove such irregularity and thereby overcome the presumption of the sale's regularity"]; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 86, fn. 4; Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 639, disapproved on other grounds in Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 36.) Given the presumption of regularity, if plaintiff contended the sale was invalid because HSBC had no authority to conduct the sale, the burden rested with plaintiff affirmatively to plead facts demonstrating the impropriety.
In contending the burden rested with MERS to demonstrate a valid assignment, plaintiff cites such cases as Neptune Society Corp. v. Longanecker (1987) 194 Cal.App.3d 1233, which stands for the general principle that the party asserting a right under an assigned instrument bears the burden of demonstrating the assignment. (Id. at p. 1242.) While this may be a correct statement of law in an action to collect on an assigned debt, such actions are not subject to the presumption of regularity afforded the non-judicial foreclosure process. As a result, these decisions are not persuasive authority in this context.
Second, the complaint alleges MERS lacked the authority to assign the note because it was merely a nominee of the lender and had no interest in the note. Contrary to plaintiff's claim, the lack of a possessory interest in the note did not necessarily prevent MERS from having the authority to assign the note. While it is true MERS had no power in its own right to assign the note, since it had no interest in the note to assign, MERS did not purport to act for its own interests in assigning the note. Rather, the assignment of deed of trust states that MERS was acting as nominee for the lender, which did possess an assignable interest. A "nominee" is a person or entity designated to act for another in a limited role--in effect, an agent. (Born v. Koop (1962) 200 Cal.App.2d 519, 528; Cisco v. Van Lew (1943) 60 Cal.App.2d 575, 583-584.) The extent of MERS's authority as a nominee was defined by its agency agreement with the lender, and whether MERS had the authority to assign the lender's interest in the note must be determined by reference to that agreement. (See, e.g., van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 571 [agency typically arises by express agreement]; Anderson v. Badger (1948) 84 Cal.App.2d 736, 743 [existence and extent of agent's duties are determined by the agreement between agent and principal]; Civ. Code, § 2315 [agent has such authority as principal confers upon agent].) Accordingly, the allegation that MERS was merely a nominee is insufficient to demonstrate that MERS lacked authority to make a valid assignment of the note on behalf of the original lender.*fn9
Plaintiff also argues any purported assignment by MERS was invalid under the common law of secured transactions. Her argument rests on the general principle that because the security for a debt is "a mere incident of the debt or obligation which it is given to secure" (Hayward Lbr. & Inv. Co. v. Naslund (1932) 125 Cal.App. 34, 39), the assignment of an interest in the security for a debt is a nullity in the absence of an assignment of the debt itself. (E.g., Kelley v. Upshaw (1952) 39 Cal.2d 179, 192; 4 Witkin, Summary of Cal. Law (10th ed. 2005) Security Transactions in Real Property, § 105, p. 899.) The assignment of the deed of trust, however, expressly stated that MERS assigned its interest in the deed of trust "[t]ogether with the note or notes therein described or referred to."*fn10 Accordingly, to plead a claim on this ground plaintiff was required to allege this assignment to HSBC was invalid. Because, as discussed above, plaintiff failed adequately to plead such invalidity, she failed to state a cause of action for wrongful foreclosure on the ground HSBC did not receive an assignment of both the note and its security.
There is a further, overriding basis for rejecting a claim based solely on the alleged invalidity of the MERS assignment. Plaintiff's cause of action ultimately seeks to demonstrate that the non-judicial foreclosure sale was invalid because HSBC lacked authority to foreclose, never having received a proper assignment of the debt. In order to allege such a claim, it was not enough for plaintiff to allege that MERS's purported assignment of the note in the assignment of deed of trust was ineffective. Instead, plaintiff was required to allege that HSBC did not receive a valid assignment of the debt in any manner. Plaintiff rests her argument on the documents in the public record, but assignments of debt, as opposed to assignments of the security interest incident to the debt, are commonly not recorded. The lender could readily have assigned the promissory note to HSBC in an unrecorded document that was not disclosed to plaintiff.*fn11 To state a claim, plaintiff was required to allege not only that the purported MERS assignment was invalid, but also that HSBC did not receive an assignment of the debt in any other manner. There is no such allegation.
We also note a plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiff's interests. (Melendrez v. D & I Investment, Inc., supra, 127 Cal.App.4th at p. 1258; Knapp v. Doherty, supra, 123 Cal.App.4th at p. 86, fn. 4 ["A non-judicial foreclosure sale is presumed to have been conducted regularly and fairly; one attacking the sale must overcome this common law presumption 'by pleading and proving an improper procedure and the resulting prejudice' "], italics added; Lo v. Jensen (2001) 88 Cal.App.4th 1093, 1097-1098 [collusion resulted in inadequate sale price]; Angell v. Superior Court (1999) 73 Cal.App.4th 691, 700 [failure to comply with procedural requirements must cause prejudice to plaintiff].) Prejudice is not presumed from "mere irregularities" in the process. (Meux v. Trezevant (1901) 132 Cal. 487, 490.) Even if MERS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced by MERS's purported assignment, and there is no allegation to this effect. Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing her obligations under the note. Plaintiff effectively concedes she was in default, and she does not allege that the transfer to HSBC interfered in any manner with her payment of the note (see, e.g., Munger v. Moore (1970) 11 Cal.App.3d 1, 7-8 [failure by lender to accept timely tender]), nor that the original lender would have refrained from foreclosure under the circumstances presented. If MERS indeed lacked authority to make the assignment, the true victim was not plaintiff but the original lender, which would have suffered the unauthorized loss of a $1 million promissory note.
Finally, plaintiff contends the deed of trust was ambiguous because it designated MERS as both the " 'nominee for the beneficiary' " and as the "beneficiary." An entity cannot be, plaintiff argues, both an agent and a principal. The record does not support the claimed ambiguity. Contrary to plaintiff's assertion, the deed of trust did not designate MERS as both beneficiary of the deed of trust and nominee for the beneficiary; rather, it states that MERS is the beneficiary, acting as a nominee for the lender. There is nothing inconsistent in MERS's being designated both as the beneficiary and as a nominee, i.e., agent, for the lender. The legal implication of the designation is that MERS may exercise the rights and obligations of a beneficiary of the deed of trust, a role ordinarily afforded the lender, but it will exercise those rights and obligations only as an agent for the lender, not for its own interests. Other statements in the deed of trust regarding the role of MERS are consistent with this interpretation, and there is nothing ambiguous or unusual about the legal arrangement. Plaintiff's argument appears to be premised on the unstated assumption that only the owner of the promissory note can be designated as the beneficiary of a deed of trust, but she cites no legal authority to support that premise.*fn12
B. The Claim Against Wells Fargo
Plaintiff contends the trial court erred in sustaining Wells Fargo's demurrer because she adequately alleged either a claim for wrongful foreclosure, based on Wells Fargo's refusal to accept performance under the forbearance agreement as amended by the March letter, or a claim for promissory estoppel. The trial court declined to consider the allegations regarding the March letter because plaintiff did not attach a copy of the letter to the complaint.
Plaintiff argues that under the ordinary rules of pleading, she was entitled to plead the legal effect of the March letter without attaching a copy to the complaint. (E.g., Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 198-199.) While this is true as a general principle, the argument fails to take account of the trial court's ruling on the demurrer to the third amended complaint, which expressly granted plaintiff leave to amend on condition she attach a copy of the forbearance agreement to the amended pleading. Because a trial court is entitled to grant leave to amend "upon any terms as may be just" (Code Civ. Proc., § 472a, subd. (c)), the ordinary rules of pleading did not apply in these circumstances.
Whether to grant leave to amend under Code of Civil Procedure, section 472a is entrusted to the sound discretion of the trial court, and we review the trial court's decision for abuse of discretion. (CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1538.) While plaintiff argues the trial court was without power to impose a "higher pleading standard," we find no abuse of discretion in the trial court's conditioning leave to amend on attachment of the forbearance agreement. Plaintiff had already filed three versions of the complaint at the time the trial court entered its order, each one unsuccessful in stating a cause of action. Despite the obvious nature of a claim for breach of a forbearance agreement, it was not until the third iteration that plaintiff suggested the possibility of such a cause of action. Under those circumstances, the trial court was justified in requiring plaintiff to attach a copy of the agreement, thereby allowing the legal adequacy of the purported agreement to be tested on demurrer and avoiding further delay and unnecessary motion practice. The ruling placed little burden on plaintiff, since she presumably had access to the written agreement on which she purported to premise her claim.*fn13
Plaintiff also argues the court's order sustaining the demurrer to the third amended complaint did not require her to attach a copy of the March letter because it called only for attachment of the forbearance agreement. By claiming the March letter constituted a written amendment to the terms of the forbearance agreement, however, plaintiff effectively made it a part of the forbearance agreement. Further, because plaintiff conceded she did not comply with the terms of the forbearance agreement itself, attaching only that document served little purpose. The trial court did not abuse its discretion in concluding its order requiring attachment of the forbearance agreement included any written amendments on which plaintiff intended to rely.
Plaintiff argues she should have been granted leave to amend, presumably to attach a copy of the March letter. In deciding whether the trial court abused its discretion in denying leave to amend, "we must decide whether there is a reasonable possibility the plaintiff could cure the defect with an amendment. [Citation.] If we find that an amendment could cure the defect, we conclude that the trial court abused its discretion and we reverse; if not, no abuse of discretion has occurred. [Citation.] The plaintiff has the burden of proving that an amendment would cure the defect. [Citation.]" (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) We find no abuse because, notwithstanding the allegations of the complaint and her present argument, plaintiff provided the trial court with no reason to believe the March letter constituted an amendment to the forbearance agreement. To do so, it was necessary only for plaintiff to submit a copy of the March letter with her opposition to Wells Fargo's demurrer, thereby permitting the court to evaluate the text of the purported amendment and determine whether it could possibly provide a foundation for her allegations. By declining to submit a copy to the trial court, plaintiff failed in carrying her burden to demonstrate a "reasonable possibility" she could cure the defect in her cause of action.*fn14
Finally, plaintiff contends she adequately pleaded a claim for promissory estoppel, based on an alleged promise by Wells Fargo not to foreclose. "In California, under the doctrine of promissory estoppel, 'A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. . . .' [Citations.] 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.' " (Kajima/Ray Wilson v. Los Angeles County Metropolitan Transportation Authority (2000) 23 Cal.4th 305, 310.) "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." (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 249.) 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. (Raedeke v. Gibraltar Savings & Loan Assn. (1974) 10 Cal.3d 665, 672-673; see Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1040-1041 [promissory estoppel appropriate only where no consideration for promise].) Here, the only alleged promise not to foreclose is contained in the forbearance agreement. Because Wells Fargo's promise not to foreclose in the forbearance agreement was given for proper consideration, in the form of plaintiff's agreement to resume making payments on the promissory note, the complaint cannot state a claim for promissory estoppel.
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J. Banke, J.
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1 Bedroom Flat For Sale
Mowatt Close, London, N19
Take your first jump onto the London property ladder and enjoy the feeling of owning your own home! Perfect for first time buyers or the investor looking for their next or first purchase.A well proportioned, ground floor one bedroom purpose built flat, forming part of...
1 Bedroom Flat For Sale
Archway Road, N19
A charming, one bedroom second floor (top) converted flat, forming part of a three storey period property, the apartment features gas central heating, double glazed windows, a 16 ft reception/kitchen and a double bedroom with high ceilings and ample natural light and...
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"I use a lot of repetition. And it becomes a filmic way of talking because as you put the same image after the other, even though it's the exact identical image, everyone sees something changing from one image to the next."
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