NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

Plaintiff and appellant Francisco Reyes appeals from the order dismissing his second amended complaint (the complaint) against defendants and respondents Stewart Title of California (Stewart Title) and GMAC Mortgage, LLC (GMAC) (collectively defendants). He contends the trial court erred in sustaining each defendant's demurrer without leave to amend. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In accord with the usual rules of appeal from a judgment sustaining a demurrer without leave to amend, we state the facts as alleged in the complaint without passing on their veracity. (R.S. v. PacifiCare Life & Health Ins. Co. (2011) 194 Cal.App.4th 192, 195.) Reyes speaks very little English and does not read or write English. In January 2006, he purchased a home in Lancaster; he paid 20 percent down and obtained a loan for the remaining 80 percent of the purchase price. The purchase price, amount of the down payment and original loan are not stated, but in November 2006, Reyes had about $150,000 of equity in the property when he contacted George Escalante about refinancing. At the time, Escalante was doing business as Pacific Shore Finance, Inc., and Tri Star Funding.1 The complaint does not state whether Tri Star Funding was licensed, but Reyes alleged that he was "informed and believes" that neither Escalante nor Pacific Shore Finance, Inc., was a licensed real estate agent or broker. Escalante explained the details of the proposed new mortgage to Reyes in Reyes's own language; Escalante falsely promised that the principal amount of the new mortgage would not be more than the original loan and Reyes's monthly payments would not increase. Reyes entered into a "written contract" with Master Financial, Inc., "according to which [Escalante and Master Financial, Inc.] were to refinance without increasing the amount of the then existing loan or the monthly payments."2 Escalante selected respondent Stewart Title as the escrow company; Mayra Bonales was the escrow officer. Reyes signed a number of documents in connection with the refinancing, all of which were written in English; Reyes did not know that one of the documents he signed was a promissory note in the amount of $15,000, made payable to Tri Star Funding, an entity with which Reyes was not familiar but which he believes was owned by Escalante; the note was paid to Tri Star Funding through escrow.3 Rosa Esquivel notarized Reyes's signature on a deed of trust which identified Master Financial, Inc., as the lender; Esquivel falsely certified that Reyes appeared before her and that it was proved that Reyes executed the documents. When Reyes's mortgage payments increased after the close of escrow, he contacted an attorney who explained to Reyes that the new mortgage did not just refinance the original loan as he had been promised; instead the new mortgage financed 100 percent of the equity in the property as a result of which the principal balance was about $150,000 more than the original loan. Reyes did not receive the proceeds of the new mortgage. (We understand "proceeds" to mean the difference between the principal amount of the original loan and the principal amount of the new mortgage, which may or may not be equivalent to the $150,000 in equity as the complaint alleges.) Reyes alleges those proceeds were taken by Escalante and Master Financial, Inc. Some time later, respondent GMAC purchased the new mortgage from Master Financial, Inc. After Reyes defaulted on the new mortgage, GMAC foreclosed, filed an unlawful detainer action and evicted Reyes from the property.

Reyes filed this action in February 2009.4 The operative Second Amended Complaint names Stewart Title as a defendant in the second cause of action for breach of fiduciary duties; Stewart Title and GMAC as defendants in the fourth cause of action for rescission; and GMAC as a defendant in the fifth cause of action for cancellation of instrument. Stewart Title and GMAC each demurred to the complaint.5 On February 19, 2010, the trial court sustained both demurrers without leave to amend. An order dismissing Stewart Title was filed on February 24, 2010; the record does not include a Notice of Entry of Judgment for this order. Judgment of dismissal with prejudice of GMAC was filed on March 1, 2010, and GMAC served a Notice of Order and Entry of Judgment on March 4, 2010.

On May 3, 2010, Reyes filed a notice of appeal from the judgments of dismissal of Stewart Title and GMAC.6

DISCUSSION

A. Standard of Review

The standard of review from an order sustaining a demurrer without leave to amend is well established: we accept as true all well-pleaded facts and those subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. Whether leave should have been granted is reviewed for abuse of discretion; denial of leave to amend is an abuse of discretion if there is any reasonable probability the defect can be cured by an amendment. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078-1079.)

B. The Complaint Does Not State a Cause of Action as to Stewart Title

Reyes contends it was error to sustain Stewart Title's demurrer to the complaint without leave to amend because the second cause of action for breach of fiduciary duty states a cause of action against Stewart Title.7 As we understand his argument, the complaint adequately states a cause of action based on Stewart Title's breach of fiduciary duty to (1) meet with Reyes personally, ascertain that the signatures on the documents were his, mail copies of the escrow instructions directly to Reyes; and (2) ascertain whether Escalante was a licensed real estate broker.

To state a cause of action for breach of fiduciary duty, a plaintiff must plead facts showing the existence of a fiduciary relationship, its breach, and damage. (See Oates v. City of Lincoln (2001) 93 Cal.App.4th 25, 35.) The absence of any element is fatal to the cause of action. (LaMonte v. Sanwa Bank California (1996) 45 Cal.App.4th 509, 517 (LaMonte ).) Whether a fiduciary duty exists is a question of law. (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1599.) It is well settled that an escrow holder has a fiduciary duty to the parties to the escrow (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711-714 (Summit)), and it is undisputed that Stewart Title acted as an escrow holder in the transaction.

Paragraph 33 of the complaint alleges that Stewart Title breached its fiduciary duty as an escrow holder in the following ways:

We conclude these allegations fail to state a cause of action for breach of fiduciary duty because as alleged the charged acts and omissions do not qualify as breaches of Stewart Title's fiduciary duties in this case.

1. Stewart Title's Failure to Meet Reyes Personally, Send a Copy of the Escrow Instructions Directly to Reyes and Ascertain That His Signature Was Not Forged

An escrow holder's fiduciary duty is limited to strict compliance with the instructions of the parties; it has no general duty to police the affairs of the parties. (Summit, supra, 27 Cal.4th at pp. 711-714; see also Markowitz v. Fidelity Nat. Title Co. (2006) 142 Cal.App.4th 508, 529 [absent evidence of fraud, an escrow holder's obligations are limited to compliance with the parties' instructions]; Kangarlou v. Progressive Title Co., Inc. (2005) 128 Cal.App.4th 1174, 1179 (Kangarlou) [escrow holder has a fiduciary duty to the escrow parties to comply strictly with the parties' instructions].)

Escrow instructions may be oral, even when some of the escrow instructions are in writing, and some escrow instructions may be implicit in other express instructions. (Kirk Corp. v. First American Title Co. (1990) 220 Cal.App.3d 785, 807.) For example, in Lee v. Escrow Consultants, Inc. (1989) 210 Cal.App.3d 915, the court held that the escrow agent's duty to verify the signature on amendments to the escrow instructions arose from an express instruction that any amendments be "given in writing by all parties affected thereby." (Lee, at p. 921, capitalization omitted.) An escrow holder incurs no liability for failing to do something not required by the terms of the escrow. (Money Store Investment Corp. v. Southern Cal. Bank (2002) 98 Cal.App.4th 722, 731.) Absent allegations of collusion by the escrow agent, an escrow agent has no obligation to notify the parties of suspicious facts that might indicate they are being defrauded. (Romo v. Stewart Title of California (1995) 35 Cal.App.4th 1609, 1618, fn. 9, citing Lee, supra, 210 Cal.App.3d 915.)

Applying these rules to the allegations of the complaint in this case, we find the complaint fails to adequately allege that Stewart Title breached its fiduciary duty to comply strictly with the escrow instructions by failing to meet Reyes, send a copy of the escrow instructions to him directly, or ascertain that his signature on "some" instructions was not forged. Reyes did not attach a copy of the escrow instructions to the complaint and the complaint does not expressly allege that Reyes never received a copy of the instructions or that Stewart Title has refused to provide him with one. Nor does the complaint allege any instruction that expressly required the escrow officer to meet Reyes personally or to mail a copy of the escrow instructions directly to Reyes. Finally, the complaint does not allege an express instruction from which these other instructions could be implied. For example, Reyes does not allege there was an instruction requiring the parties to appear before the escrow officer to sign documents, requiring the parties' signatures to be notarized, or even requiring the escrow officer to obtain picture identification of the parties.8 Rather, Reyes appears to argue without authority that an escrow holder has a general duty to meet personally with the principals to an escrow, to personally verify their signatures and to mail a copy of the escrow instructions directly to the principals if the escrow holder is not personally familiar with them: "[I]n exercising ordinary skill and diligence in his employment [the escrow holder] must ascertain, one way or another, that his/her principal signed the escrow instructions. If the escrow holder does not meet the with the principal, is not familiar with the principal's signature, . . . does not mail the documents directly to the principal, there is no way for the escrow holder [to] determine[] if the principal did in fact sign[] the instructions." We decline to impose such a general duty, absent an express instruction from which it can be inferred. (Summit, supra, 27 Cal.4th at pp. 711-714; Vournas v. Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 674 [insufficient allegations of breach of fiduciary duty; escrow instructions not attached to complaint].) There are a myriad of circumstances in which such duties would be impractical, if not impossible to fulfill; for example, where one or both principals are not in the same city as the escrow holder.

2. Allegations that Escalante Was Not a Licensed Real Estate Broker, Stewart Title Improperly Dealt With Unlicensed Escalante and Failed to Inform Reyes that Escalante Was Unlicensed

Business and Professions Code section 10138 (§ 10138) makes it a misdemeanor to deliver compensation to a person not licensed as a real estate broker for the performance of acts which require a real estate license. In California, mortgage brokers are generally required to be licensed real estate brokers. (Wyatt v. Union Mortgage Co. (1979) 24 Cal.3d 773, 782; see also Bus. & Prof. Code, § 10131, subd. (d) [a real estate broker is a person who, for compensation, solicits borrowers, negotiates loans or performs services for borrowers in connection with loans secured by liens on real property].) In Kangarlou, supra, the court held that the escrow holder had a fiduciary duty to comply with section 10138. (Kangarlou, supra, 128 Cal.App.4th at p. 1179.) Thus, Stewart Title had a fiduciary duty to ascertain whether Escalante was appropriately licensed before it could deliver compensation to him. But Reyes failed to adequately allege breach of this duty.9

First, to adequately allege a cause of action for breach of this duty, Reyes had to allege that Escalante was unlicensed. The allegation that Reyes is "informed and believes" Escalante was not licensed is not sufficient.10 This is because whether Escalante was licensed is ascertainable from public records. A demurrer is properly granted when a fact pled on information and belief is ascertainable from public records. (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802; People v. Birch Securities Co. (1948) 86 Cal.App.2d 703, 708; Swars v. Council of the City of Vallejo (1944) 64 Cal.App.2d 858, 864.) Reyes did not allege how he was unable to determine whether Escalante was licensed.

Second, the complaint does not allege that Stewart Title paid any compensation to the unlicensed Escalante or Pacific Shore Finance, Inc. The allegation that Escalante (and Master Financial, Inc.) took the proceeds of the new mortgage suggests theft, not compensation. Although paragraph 14 of the complaint alleges that $15,000 was paid through escrow to Tri Star Funding, there is no allegation that Tri Star Funding was unlicensed, that this was compensation, or that the payment to Tri Star Funding violated section 10138 or any express or implied escrow instructions.

Finally, the complaint does not allege that Stewart Title breached its fiduciary duty by failing to ascertain whether Escalante was licensed or by paying any compensation to Escalante. On the contrary, the allegations are that Stewart Title breached its fiduciary duty because it "dealt with" the unlicensed Escalante and Pacific Shore Finance, Inc., and failed to communicate to Reyes that Escalante and Pacific Shore Finance, Inc., were unlicensed. Under section 10138, Stewart Title was not prohibited from "dealing" with an unlicensed mortgage broker, only from paying compensation to one. And no statute or other law cited by Reyes required Stewart Title to inform Reyes of the status of Escalante's licensing. (See Summit, supra, 27 Cal.4th at p. 711 [escrow holder had no general duty to police the affairs of the parties].)

C. The Complaint Does Not State a Cause of Action as to GMAC

Reyes contends it was error to sustain without leave to amend GMAC's demurrer to the fourth cause of action for rescission and the fifth cause of action for cancellation of instrument. He argues that GMAC was liable for the violations committed by Master Financial, Inc., the original lender from which GMAC purchased the loan. We find no error.

1. Rescission

The fourth cause of action seeks rescission of the "November 7, 2006 loan agreement," which we understand to mean the promissory note and deed of trust that secured the new mortgage. Citing Music Acceptance Corp. v. Lofing (1995) 32 Cal.App.4th 610, 622 (buyer of defective piano was entitled to cancel contract and make no further payments to finance company), Reyes argues that rescission is proper because GMAC "steps into the shoes" of its assignor, Master Financial, Inc. We disagree.

Rescission is a remedy, not a cause of action. The requisite allegations for rescission are: (1) a contract; (2) the grounds for rescission; and (3) the plaintiff's performance. (4 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 542, pp. 668-669.) A party to a contract may rescind the contract if that party's consent was obtained through "fraud . . . exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party." (Civ. Code, § 1689, subd. (b)(1).) "`"In the usual case of fraud, where the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable. . . ."' In that case, the party seeking to void the contract must rescind under our statutory and common law rules. [Citation.]" (Village Northridge Homeowners Assn. v. State Farm Fire & Casualty Co. (2010) 50 Cal.4th 913, 921.) This includes "`"prompt notice"'" and an "`"offer to restore the consideration received, if any."'" (Ibid.)

"`A deed obtained as a result of fraud committed against the grantor or by use of undue influence by the grantee may be rescinded by the grantor. [Citation.] If a grantor is aware that the instrument he is executing is a deed and that it will convey his title, but is induced to sign and deliver by fraudulent misrepresentations or undue influence, the deed is voidable and can be relied upon and enforced by a bona fide purchaser.' [Citation.]" (Schiavon v. Arnaudo Brothers (2000) 84 Cal.App.4th 374, 380 (Schiavon).) In Schiavon, the court explained, "A deed is void if the grantor's signature is forged or if the grantor is unaware of the nature of what he or she is signing. [Citation.] A voidable deed, on the other hand, is one where the grantor is aware of what he or she is executing, but has been induced to do so through fraudulent misrepresentations." (Id. at p. 378, italics added.)

Schiavon is instructive. In that case, the plaintiff loaned Perlitch money secured by a deed of trust on property owned by Perlitch; the recorded deed of trust was mailed to Perlitch, not the plaintiff. Without plaintiff's knowledge, the deed of trust, with the plaintiff's forged signature under the section "Request for Full Reconveyance," was recorded. Perlitch sold the property to the defendant, who was a bona fide purchaser. The plaintiff filed an action to cancel the reconveyance and reinstate the deed of trust. The defendant's demurrer was sustained on the grounds that the defendant was a bona fide purchaser with no knowledge of the fraud. The appellate court affirmed. (Schiavon, supra, 84 Cal.App.4th at pp. 376-377.)

Here, the pertinent allegations are that Reyes signed a number of documents in connection with the refinancing based on Escalante's false representation that the principal amount of the new mortgage would not be greater than the original loan, and that the monthly payments would not be higher. Because Reyes was aware of what he was signing (documents relating to the new mortgage) but was induced to do so through fraudulent misrepresentations (that the new mortgage would be for the same principal amount and that the payments would not increase), the deed of trust securing the new mortgage was voidable, not void. Under these circumstances, GMAC was a holder in due course of the new mortgage. (Schiavon, supra, 84 Cal.App.4th at p. 379.)

The allegation that Reyes is "informed and believes" that "most" of the documents were "signed by someone else, not [Reyes]," does not compel a contrary result. This vague statement, which appeared in identical form in the original complaint, is not sufficient to support an inference that Reyes's signature on the deed of trust was forged, making it void and not simply voidable. The phrase "most of the document[s]" could refer to any collateral documents signed in connection with the refinancing, such as acknowledgements that Reyes received disclosures required by the Truth in Lending Act (15 U.S.C.A. § 1601 et seq., hereafter TILA), not the note and deed of trust which Reyes seeks to rescind. Certainly, Reyes must know whether specific documents contain his signature.

Also unavailing is Reyes's reliance on section 1641(d)(1) of the TILA as amended by the Home Ownership and Equity Protection Act of 1994 (15 U.S.C. § 1602(aa)(1), hereafter HOEPA). The stated purpose of the TILA is "`"to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing and credit card practices."' [Citation.]" (Puentes v. Wells Fargo Home Mortgage, Inc. (2008) 160 Cal.App.4th 638, 644, fn. 4, citing Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342, 1349.) A borrower is entitled to rescind a loan transaction based on a lender's violation of the TILA, even after the loan has been refinanced. (Pacific Shore Funding, at p. 1352.) Section 1641(a) of the TILA protects holders in due course by providing that a civil action for violation of the TILA may be maintained against the assignee of a creditor "only if the violation for which such action or proceeding is brought is apparent on the face of the disclosure statement, except where the assignment was involuntary." But this protection does not apply to assignees of HOEPA loans, which are loans on which the finance charges exceed a certain threshold amount (Holbert v. Fremont Investment & Loan (2009) 179 Cal.App.4th 1067, 1070). Section 1641(d)(1) eliminates holder-in-due course protection for assignees of HOEPA loans, only.

Reyes's argument that, under section 1641(d)(1) of the TILA, GMAC is subject to all claims he has against Master Financial, Inc., is unavailing because there is no allegation that the new mortgage qualified as a HOEPA loan, much less that there was any violation of the TILA. Even on appeal, Reyes does not argue that the loan was a high-interest HOEPA loan, nor does he explain how Master Financial, Inc., violated the TILA. Further, Reyes's reliance on In re Murray (Bankr. E.D.Pa. 1999) 239 B.R. 728, for the proposition that GMAC could have determined whether the loan was a HOEPA loan does not compel a contrary result because in that case, the defendant admitted that the loan was a HOEPA loan. (In re Murray, at p. 732.)

2. Cancellation of Instrument

The fifth cause of action for cancellation of instrument alleges: "The written instrument in existence which purports to be a First Trust Deed from [Reyes to Master Financial, Inc.] and which was assigned to GMAC is voidable due to the fact that [Reyes's] execution of the Deed of Trust was a direct and proximate result of fraud by defendants Escalante, Master, GMAC and their agents, which neither was a licensed real estate agent or broker."

On appeal, Reyes fails to make any argument vis-á-vis the cancellation of instrument cause of action. Accordingly, we affirm the order dismissing that cause of action. (Los Angeles Equestrian Center, Inc. v. City of Los Angeles, supra, 17 Cal.App.4th at p. 450 [summary resolution of causes of action not addressed in appellants' briefs upheld because the "failure to discuss the theories on appeal constitutes an abandonment"].)

D. Leave to Amend

It is the appellant's burden to show an abuse of discretion for sustaining the demurrer without leave to amend. Where an appellant does not indicate in the trial court or on appeal the manner in which the complaint can be amended, the appellant fails to meet that burden. (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 716.)

Here, Reyes did not explain in the trial court and does not explain on appeal, how he proposes to amend the complaint to state a cause of action. For example, when questioned at oral argument about whether Reyes had ever received a copy of the escrow instructions, Reyes's counsel only reiterated the allegation in the complaint that Reyes never met with the escrow agent. In the briefs and at oral argument, Reyes did not explain whether the complaint could be amended to allege on other than information and belief that Escalante was unlicensed, that Tri Star Funding was unlicensed, that Stewart Title paid Escalante or one of his unlicensed associated entities compensation for acting as a mortgage broker, that the payment to Tri Star Funding was compensation for such services, that there were express escrow instructions with which Stewart Title did not comply, or even that Stewart Title did not comply with instructions that can be inferred from express instructions. Further, he does not state that the complaint could be amended to allege that the new mortgage was a HOEPA loan, or that there was any violation of the TILA. In sum, Reyes has not articulated a clear path, built on specific allegations, that the pleading deficiencies could be remedied by amendment. Under these circumstances, Reyes has not met his burden of showing it was an abuse of discretion to sustain the demurrers without leave to amend.

DISPOSITION

The judgment is affirmed. Stewart Title and GMAC shall recover their costs on appeal.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.