Fuller v. First Franklin Financial, Cal. App. 3rd Dist. | PREDATORY LENDING: The court overruled the trial court's sustaining of a demurrer because the complaint's allegations of an overstatement of the appraisal value . . . hidden kickbacks . . . breach of fiduciary duty . . . unfair business practices....

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Fuller v. First Franklin Financial, Cal. App. 3rd Dist. | PREDATORY LENDING: Overstatement of the appraisal value . . . Hidden kickbacks . . . Breach of fiduciary duty . . . Unfair business practices….

Fuller v. First Franklin Financial, Cal. App. 3rd Dist. | PREDATORY LENDING: Overstatement of the appraisal value . . . Hidden kickbacks . . . Breach of fiduciary duty . . . Unfair business practices….

Filed 5/1/13 Certified for publication 5/29/13 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

(Butte)
—-

MICHAEL FULLER et al.,
Plaintiffs and Appellants,

v.

FIRST FRANKLIN FINANCIAL CORPORATION et al.,
Defendants and Respondents.

home in June 2006, and Bank of America is First Franklin’s successor in interest on the loan.2 In their fourth effort at stating a cause of action, under direction from the trial court “to provide further allegations of late discovery of the [actionable] facts,” plaintiffs alleged defendants First Franklin and SFM, pursuant to a scheme of predatory lending, made material misrepresentations and fraudulent concealments of circumstances in the appraisal of the residence and in the terms of the loan in order to maximize their profit, which the plaintiffs did not discover until late 2009. Plaintiffs listed several counts (inexactly denominated “causes of action” (see Cullen v. Corwin (2012) 206 Cal.App.4th 1074, 1076, fn. 1)) that included theories of deceit, negligence, unfair business practices, and SFM’s breach of its fiduciary duty to them, and civil conspiracy (which is not an independent cause of action in any event but only a theory for establishing vicarious liability (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 557(1), p. 706 (Witkin)).

First Franklin and SFM separately demurred. Basing its January 2012 rulings on the statute of limitations, the trial court issued an order of dismissal in favor of First Franklin, and an order sustaining SFM’s demurrer as to all causes of action without leave to amend.

Plaintiffs filed notices of appeal from the two orders. SFM subsequently moved for judgment on the pleadings on the count of negligence.3 The trial court granted the motion for lack of opposition, and entered a judgment of dismissal as to SFM in June 2012. We deem the premature notice of appeal from the trial court’s order sustaining SFM’s demurrer to have been filed immediately after the subsequently entered judgment for SFM. (Cal. Rules of Court, rule 8.308(c); see In re Gray (2009) 179 Cal.App.4th 1189, 1197 [this court discusses equities in favor of deeming notice to be “premature” once record prepared and briefing completed after entry of judgment].)

Plaintiffs argue that they had sufficiently alleged delayed discovery of facts that defendants had purposely withheld from them in order to induce them to enter into the now defaulted loans. We agree. We shall thus reverse the judgments of dismissal with directions to overrule the demurrers.

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