McKell

INTRODUCTION

Plaintiffs Linda McKell, Scott David Pasnikowski and Susan Nero appeal from an order of dismissal entered after the trial court sustained defendants’ demurrer to their second amended complaint without leave to amend. Plaintiffs challenge the propriety of the trial court’s ruling. We reverse the order of dismissal and direct the trial court to overrule defendants’ demurrer as to certain of plaintiffs’ causes of action.

FACTUAL AND PROCEDURAL BACKGROUND 1

Plaintiffs brought this action for damages and equitable relief against defendants 2 as a class action. The trial court sustained defendants’ demurrer *1465 and dismissed the action without ruling on the question whether the case could proceed as a class action.

In their first amended complaint, plaintiffs alleged causes of action for violation of the unfair competition law (UCL, Bus. & Prof. Code, § 17200 et seq.); violation of the Consumers Legal Remedies Act (CLRA, Civ. Code, § 1750 et seq.); unjust enrichment/imposition of a constructive trust; breach of contract; breach of bailment agreement; and conversion. The basis of all causes of action was defendants’ overcharging plaintiffs for underwriting,…

Concurring and Dissenting. — I concur with the majority opinion insofar as it affirms some parts of the judgment of dismissal but otherwise dissent.

A.

The trial court found that all of plaintiffs’ causes of action turn on the existence of an agreement requiring Washington Mutual to charge no more than the “pass-through” costs for underwriting, tax services, and wire transfers on residential mortgage loan closings. Understandably, the trial court inquired (when it sustained demurrers to plaintiffs’ earlier pleadings) about the factual basis for this agreement. The answer? Washington Mutual “requires its borrowers to pay the cost of automatic underwriting and wire transfers ... by disclosing on the HUD-1 Settlement Statement the purported costs of these fees” which, by their payment of these fees, plaintiffs agreed to pay. 1 “[I]nstead of charging Plaintiffs ... for underwriting, tax services and wire transfer services, Washington Mutual charged Plaintiffs . . . amounts in excess of those services,” allegedly leading plaintiffs to believe they “were *1493 paying for the actual cost of such services.” 2 Notwithstanding the majority opinion’s alternative view, it is on…