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Rufini Published-Reversed Sustain Demurrer Without Leave On: Breach Of Contract & Covenant of Good Faith & Fair Dealing, Unfair Business Practices

June 25, 2014

James Rufini challenges an order sustaining a demurrer, without leave to amend, to his complaint concerning a failed home loan modification and eventual foreclosure. He contends his complaint adequately alleges causes of action for wrongful foreclosure, breach of contract and of the covenant of good faith and fair dealing, breach of fiduciary duty, negligence, negligent misrepresentation, and unfair business practices. We affirm the trial court’s order sustaining the demurrer to the causes of action for general negligence, breach of fiduciary duty, and an accounting, and reverse it as to the causes of action for breach of contract, negligent misrepresentation and unfair business practices. With the guidance of appellate decisions, issued after the trial court’s ruling, which address similar claims, we conclude the court should have granted Rufini leave to amend. We reverse to allow Rufini to amend his complaint on remand if he can do so as generally described in this opinion.


The judgment is affirmed as to the causes of action for general negligence, breach of fiduciary duty and an accounting. In all other respects, the judgment is reversed and the matter remanded for further proceedings. Rufini shall recover costs incurred on appeal.

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Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager


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