NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

McKINSTER, Acting P.J.

Plaintiff and appellant Phillix Sinclair (plaintiff) appeals from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendants and respondents Donet Co., LP, and FCI Lender Services, Inc. (hereafter referred to individually or collectively as defendants) to plaintiff's second amended complaint. The trial court sustained defendants' demurrer without leave to amend after first finding that plaintiff's opposition to the demurrer was not timely. As a result, the trial court did not consider plaintiff's opposition. That filing also is not included in the record on appeal. Plaintiff does not challenge that ruling. Instead, he contends that his complaint states causes of action under each of the three theories alleged in his second amended complaint.

We conclude the trial court did not abuse its discretion and therefore we will affirm.

PROCEDURAL BACKGROUND

Plaintiff, who represented himself in the trial court,1 filed his original complaint on March 7, 2008. That pleading contained three purported causes of action, one for "damages," the second for "breach of fiduciary duty," and the third seeking injunctive relief. Plaintiff alleged in his original complaint that on about January 26, 2001, he and three others who are not parties to the action, purchased the Overland Inn in Needles, California; the purchasers gave defendant Donet (presumably the seller, although not identified as such in the complaint) a promissory note for $240,000 plus interest at seven percent, fully amortized over nine years; the promissory note was secured by a deed of trust in favor of defendant Donet; the first monthly payment in the amount of $3,001.56 was due February 26, 2001; defendants initiated foreclosure in November 2007; the property was scheduled to be sold at auction on March 11, 2008; plaintiff requested a reinstatement quote from defendant FCI (presumably the trustee under the deed of trust, although not identified as such); defendants failed to provide an accurate accounting of monies received on the promissory note from January 26, 2001, to November 9, 2008; the notice of trustee's sale was defective because the amount said to be outstanding on the loan was inaccurate and the notice was not published 30 days prior to the date of the trustee's sale as allegedly required by Code of Civil Procedure section 2824; and defendant Donet failed to comply with plaintiff's request for monthly and annual accounting statements.

Based on the above noted allegations, in his first cause of action plaintiff sought damages according to proof but in excess of $1,000,000 on a legal theory undisclosed in the complaint. In the second cause of action entitled "breach of fiduciary duty" plaintiff alleged that defendants owed him a fiduciary duty "[d]ue to the Promisory [sic] Note," that defendants breached that duty by committing the acts alleged above, and proximately caused plaintiff damages, according to proof but in excess of $1,000,000; and defendants acted with oppression, fraud, and malice as a result of which plaintiff sought punitive damages. Plaintiff's third cause of action sought to enjoin the foreclosure sale.

Defendants demurred to the original complaint on the ground that it failed to state a cause of action on any theory alleged and failed to establish a causal connection between defendants' alleged acts and plaintiff's purported damages. Defendants also moved to strike the punitive damage allegation. The trial court sustained defendants' demurrer and granted plaintiff leave to amend his complaint.

Plaintiff filed his amended complaint on December 12, 2008. Like the original complaint, the amended pleading included three purported causes of action, one for breach of contract, a second for fraud, and a third for emotional distress.2 In addition to the facts alleged in his original complaint, plaintiff alleged in his amended pleading that "defendant[] failed to apply all the monthly payments made by the Plaintiff, and in a timely Manner, [sic] and in compliance with the original agreement, promissory note and the Deed of Trust," which resulted in breach of the "original agreement"; defendant Donet initiated the first of two foreclosures against plaintiff in April 2007; defendant FCI was the "foreclosure agent"; the deed of trust prohibits foreclosure if a dispute exists and "defendant" had been notified that a dispute existed; plaintiff was forced to pay defendants whatever amount they requested in order to reinstate the loan as a result of which plaintiff suffered damages; in November 2007, defendants initiated a second foreclosure; plaintiff asked for a reinstatement quote on February 10, 2008, but did not get that quote until February 26, 2008; and plaintiff filed this lawsuit to prevent foreclosure and the attendant loss of the property.

Plaintiff incorporated the above noted allegations in the first cause of action of his amended complaint entitled "Breach of Agreement/Contract," and further alleged that he "seeks damages against each of the defendants by [c]ommitting the acts" set out above in an amount according to proof but in excess of $100,000. In his second cause of action, entitled "Compaint [sic] for Fraud," plaintiff alleged in pertinent part that in January 2001, defendants falsely and fraudulently represented that they would apply plaintiff's monthly payments on the promissory note in a timely manner as outlined in the promissory note and in the event of a dispute they would not initiate foreclosure; defendants failed to provide plaintiff the annual statement of the interest paid on the note that plaintiff needed in order to deduct the interest from his "annual tax filing" and defendants did this to defraud and deceive plaintiff "as to how defendants . . . were either withholding the payments or applying them inappropriately"; as a result of defendants' actions, plaintiff was induced to and did make monthly payments on the promissory note secured by the deed of trust; and had plaintiff known the actual facts, he would not have signed the promissory note or would not have made the monthly payments. Plaintiff alleged that he had been damaged in the amount of $10,000 as the result of defendant Donet's action, and he also sought punitive damages "according to proof" but in excess of $1,000,000.

In his third cause of action seeking damages for intentional and negligent infliction of emotional distress, plaintiff alleged that defendants Donet and Williams intentionally failed to apply plaintiff's monthly payments on the promissory note first to accrued interest, then principal, and any remaining amount to unpaid collection charges and late fees; defendants initiated foreclosure even though the promissory note states that foreclosure "cannot be initiated when there is [a] legitimate dispute"; defendants did not provide plaintiff with the reinstatement quote, which caused plaintiff a "high level of anxiety and emotional distress"; defendant failed to exercise due care which caused plaintiff to suffer emotional distress; and as a result of defendants' acts "the plaintiff was in A constant fear of not knowing what the reinstatement quote might be, and or, if when the reinstatement Quote was provided if he could come up with monies demanded, to reinstate the loan. The plaintiff was in constant Fear of losing the underlying property."

Defendants demurred to plaintiff's amended complaint, and the trial court sustained that demurrer, again granting plaintiff leave to amend.

Plaintiff filed his second amended complaint (sometimes also referred to as the SAC), the pleading that is the subject of this appeal, on June 12, 2009. In that pleading plaintiff purported to allege causes of action for breach of contract, fraud, and violation of the state and federal fair debt collection laws. Plaintiff included in the SAC the allegations of the previous two complaints regarding the purchase from defendant Donet of the Overland Inn in January 2001, and defendant Donet taking a promissory note for $240,000 secured by a deed of trust on the property. In his cause of action for breach of contract plaintiff alleged, as he had in his previous two pleadings, that defendant failed to properly apply plaintiff's monthly payments first to interest, next to principal, then to late charges and other expenses; defendant violated the terms of the trust deed by initiating foreclosure against plaintiff even though a good faith dispute existed; defendant failed beginning in 2002 and thereafter to provide plaintiff with IRS form 1098 setting out the interest and principal plaintiff had paid to defendant; and defendant's actions caused plaintiff damage consisting of late charges "and other alleged expenses, which cannot be easily ascertained," foreclosure costs, travel expenses, "charges and loss of income." Plaintiff also sought punitive damages in connection with his breach of contract claim.

Plaintiff's second cause of action for fraud repeated the allegations from his amended complaint that "defendant" represented it would apply plaintiff's monthly payments in the manner set out above, and also that it would not initiate foreclosure as long as there was a good faith dispute. Plaintiff alleged that defendant made the promises without intent to perform and that plaintiff was induced to buy the property based on defendant's promises. Plaintiff alleged that as a result of defendant's fraud plaintiff was damaged "by having to pay the defendant extra Late charges, foreclosure costs, the monies that the defendant could have used for other purposes, to the value according to proof at trial, but which exceeds $5,000.00" Plaintiff also requested punitive damages according to proof at trial but in excess of $50,000.

Plaintiff's third purported cause of action in the second amended complaint alleged violations of both the federal Fair Debt Collection Practices Act and the state Rosenthal Fair Debt Collection Practices Act. According to plaintiff, defendants violated those two statutes by failing to investigate the alleged "dispute" after "the Plaintiff has [sic] registered a letter disputing the alleged debt," continuing with the foreclosure, and by failing to apply plaintiff's monthly payments in the manner specified in the agreement. Plaintiff alleged he suffered damage according to proof at trial but in excess of $2,000 and also requested punitive damages.

Defendants again demurred to plaintiff's second amended complaint on the ground that it failed to state a cause of action and that it was vague, unclear, and ambiguous. The trial court sustained defendants' demurrer, this time without leave to amend. Defendants then moved to dismiss the action and the trial court granted that motion. Plaintiff appeals from the subsequently entered judgment of dismissal.

DISCUSSION

1.

STANDARD OF REVIEW

A demurrer "tests the legal sufficiency of factual allegations in a complaint." (Rakestraw v. California Physicians' Service (2000) 81 Cal.App.4th 39, 42.) In reviewing a trial court's ruling sustaining a demurrer, this court exercises independent judgment in determining whether the complaint's factual allegations sufficiently state a cause of action. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501.) We treat the demurrer "`as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.'" (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Further, "[i]f the court sustained the demurrer without leave to amend, as here, 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." (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) "[S]uch a showing can be made for the first time to the reviewing court. [Citation]" (Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93 Cal.App.4th 700, 711.)

2.

ANALYSIS

A. Breach of Contract Cause of Action

Plaintiff concedes that his second amended complaint does not state a cause of action for breach of contract. Plaintiff acknowledges that he mistakenly based his breach of contract claim on a provision in the deed of trust that precludes foreclosure when the trustor is in a good faith dispute with a third party creditor. Plaintiff concedes that the provision in question does not apply to defendant Donet because Donet is a party to the contract, not a third party creditor. Plaintiff contends, however, that the complaint could be amended to state a breach of contract cause of action against defendant Donet because plaintiff alleged facts in the SAC that imply plaintiff was not in default on the promissory note at the time defendant Donet initiated the foreclosure. We disagree.

"`A cause of action for damages for breach of contract is comprised of the following elements: (1) the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) resulting damages to plaintiff.'" (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367, italics omitted.)

As set out above, plaintiff alleged in the second amended complaint that defendant Donet did not credit plaintiff's monthly payments in the manner required in the promissory note. Those facts imply plaintiff was not in default on his payments on the promissory note and therefore defendant Donet wrongfully initiated foreclosure proceedings against him.

Assuming the truth of those allegations, plaintiff did not allege in his second amended complaint that as a result of defendant Donet's alleged breach of contract plaintiff suffered damage. Plaintiff did not allege that he tendered payments not yet due on the promissory note in order to prevent the foreclosure sale. Nor does plaintiff assert that he can amend the complaint to include such an allegation. Moreover, and equally telling, plaintiff does not actually state that he can amend the complaint to include a factual allegation that he was not in default on the promissory note when defendant Donet initiated the foreclosure process. Plaintiff bears the burden to show the manner in which the pleading could be amended in order to state a cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 ["Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading."].) Plaintiff has not met that burden with respect to his breach of contract cause of action.

B. Fraud Cause of Action

Plaintiff contends that his second amended complaint alleges a cause of action for fraud, namely that defendant Donet "deliberately and knowingly misrepresented the amount of arrears in the mortgage, that [plaintiff] detrimentally relied on its misrepresentations in order to avoid the pending foreclosure by paying the $34,000 plus reinstatement amount, and that there is a causal connection between [plaintiff's] damages and Donet's false statements in that [plaintiff] would not have paid the reinstatement amount but for Donet's misrepresentation that he owed it."

Defendant demurred to the fraud cause of action on the ground that although framed in terms of fraud, it clearly is based on breach of contract and as such cannot support a fraud cause of action. "Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law. `The law imposes the obligation that "every person is bound without contract to abstain from injuring the person or property of another, or infringing upon any of his rights." [Citation.] This duty is independent of the contract . . . . "[A]n omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty."' [Citation.]" (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.)

Plaintiff did not plead a duty independent of the contract and does not claim in his appeal that such a duty exists and that he therefore can amend the complaint to state a fraud cause of action. Consequently, the trial court did not abuse its discretion by sustaining defendants' demurrer to that cause of action without leave to amend.

C. Unfair Debt Collection Cause of Action

Plaintiff included his cause of action for violation of the state and federal fair debt collection practices acts for the first time in his second amended complaint. Defendants demurred on the ground that the cause of action was barred by the one-year statute of limitations set out in Civil Code section 1788.30, subdivision (f) and 15 United States Code section 1692k(d). Plaintiff concedes that the statute of limitations under both the state and federal debt collection statutes is one year. He contends that the original complaint was filed within the one-year limitation period and the unfair debt collection cause of action relates back to that filing.

We will not address the issue because both the state and federal laws apply only to "debt collectors," defined in the state law as "any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection." (Civ. Code, § 1788.2, subd. (c).) The federal Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.) defines "debt collector" to mean "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." (15 U.S.C. § 1692a(6).)

Plaintiff did not allege in his second amended complaint, and in our view cannot allege, that defendant Donet as the beneficiary under the deed of trust and lender on the promissory note is a debt collector as defined in either statute. Simply put, neither act applies to defendant Donet's effort to foreclose under the deed of trust. Therefore, the demurrer was properly sustained without leave to amend on this cause of action as to defendant Donet.

Plaintiff did not allege any facts to show that defendant FCI Lender Services is a debt collector within the meaning of either statute, or that it committed any act in violation of the state or federal laws. Instead, the only allegations against defendant FCI included in the SAC are that it violated the purported provision in the deed of trust that precludes foreclosure when there is a legitimate dispute with a third party. As previously discussed, plaintiff concedes that the provision only precludes foreclosure when the dispute is with a third party and therefore the provision does not apply to his claim against either defendant. Plaintiff has not shown how he could amend his complaint to state a claim against defendant FCI for violation of the state and federal fair debt collection acts, and in fact does not mention FCI in his discussion of this cause of action. We construe his silence on this point as a concession that such an amendment is not possible. In any event, that silence results in his failure to meet his burden of showing the trial court abused its discretion in sustaining defendants' demurrer without leave to amend.

DISPOSITION

The judgment is affirmed.

Defendants to recover their costs on appeal.

We concur.

Miller, J.

Codrington, J.