Judge: Andrew E. Cooper, Case: 23CHCV01336, Date: 2023-09-26 Tentative Ruling

Case Number: 23CHCV01336    Hearing Date: September 26, 2023    Dept: F51

Demurrer Filed: 6/28/23

MOVING PARTY: Defendant U.S. Bank, National Association, as trustee for GSR Mortgage Loan Trust 2006-3F, Mortgage Pass-Through Certificates, Series 2006-3F (“Defendant”)

RESPONDING PARTY: Plaintiff Fred S. Hong, in pro per (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: Defendant demurs to Plaintiff’s entire complaint.

TENTATIVE RULING: The demurrer is sustained without leave to amend. Defendant’s request for judicial notice is granted.

BACKGROUND

This is a wrongful foreclosure action in which Plaintiff, who owns and resides at certain real property since 12/12/16, alleges that Defendant initiated an eviction action against Plaintiff on 12/19/20. (Attachment to Compl. ¶¶ 1–2.) Plaintiff further alleges that Defendant “engaged in deceptive business practices by marketing loan modifications and then, after Plaintiff’s [sic] relied on the loan modification and [Defendant] continued to process [sic] with foreclosure. (Id. at ¶ 7.)

On 5/8/23, Plaintiff filed the instant action against Defendant, alleging sole cause of action for Breach of Contract. On 6/28/23, Moving Defendant filed the instant demurrer. No opposition has been filed to date.

DEMURRER

As a general matter, a party may respond to a pleading against it by demurrer based on any single or combination of eight enumerated grounds, including that “the pleading does not state facts sufficient to constitute a cause of action” and is uncertain, meaning “ambiguous and unintelligible.” (Code Civ. Proc., § 430.10, subds. (e) and (f).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)¿

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) 

Here, Defendant¿demurs to Plaintiff’s entire complaint on the basis that “Plaintiff has failed to join necessary and indispensable parties, the borrower under the subject foreclosed loan and prior co-owners of the subject property.” (Dem. 3:4–6, citing Code Civ. Proc. § 430.10, subds. (b), (d).) Defendant also demurs against Plaintiff’s cause of action on the ground that Plaintiff has failed to allege facts sufficient to constitute a cause of action for breach of contract. (Id. at 3:8–11, citing Code Civ. Proc. § 430.10, subds. (e), (f).)

A.    Meet and Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Defendant’s counsel declares that on 6/8/23, she mailed Plaintiff a letter discussing the issues raised in the instant demurrer and motion to strike. (Decl. of Kristina M. Pelletier ¶ 3.) Counsel also telephoned Plaintiff but was unable to reach him. (Id. at ¶ 4.) Therefore, counsel has satisfied the preliminary meet and confer requirements of Code of Civil Procedure section 430.41, subdivision (a).

B.     Standing

As a preliminary matter, Defendant asserts that Plaintiff lacks the necessary standing to bring the instant breach of contract action. “The action seems to be premised on Borrower’s Loan and allegations that USB made misrepresentations concerning loan modifications. … However, Plaintiff is not the Borrower. Although Borrower may have transferred a partial interest in the Property to a third-party who then transferred that partial interest to Plaintiff … this title transfer did not add Plaintiff as a borrower on the Loan and did not bestow upon him any of the rights held by the Borrower. Plaintiff is not a party to the Loan documents and has not alleged any relationship with USB. … Plaintiff does not allege he ever assumed Loan, thus, he lacks standing to assert any claims regarding the Loan.” (Dem. 6:27–7:6.)

All civil actions must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Code Civ. Proc. § 367.) A party who is not the real party in interest does not have standing to sue, because the claim belongs to someone else. In such a case, the complaint is subject to a general demurrer. (City of Brentwood v. Campbell (2015) 237 Cal.App.4th 488, 504; The H.N. & Frances C. Berger Found. v. Perez (2013) 218 Cal.App.4th 37, 42.)

Here, Defendant proffers loan documents, of which the Court takes judicial notice, showing that Plaintiff is not the loan Borrower and therefore, as a nonsignatory to the purported loan modification documents, has no standing to bring the instant action for breach of contract. The Court notes that Plaintiff has failed to oppose the instant demurrer, and therefore finds that Plaintiff is not the real party in interest in this action.

A related issue Defendant raises is that Plaintiff’s complaint fails for lack of joinder of necessary parties, namely the loan Borrower. Code of Civil Procedure section 430.10, subdivision (d), provides that a defendant may bring a demurrer on the ground that “there is a defect or misjoinder of parties.” As Defendant observes, “this action concerns the foreclosure proceedings against the Property due to Borrower’s default on the Loan. Since Borrower is not a party to this action, the Court cannot grant complete relief in Borrower’s absence.” (Dem. 7:21–23.)

Based on the foregoing, the Court finds that Plaintiff lacks the standing to bring the instant action, as Plaintiff has failed to include the Borrower as a party. Accordingly, the demurrer is sustained on this ground.

C.    Breach of Contract

Plaintiff’s sole cause of action against Defendant alleges Breach of Contract. To state this cause of action, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) If a breach of contract claim “is based on alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written agreement must be attached and incorporated by reference.” (Harris v. Rudin, Richman & Appel (1999) 74 Cal.App.4th 299, 307.)

Here, as Defendant observes, Plaintiff has failed to identify any agreement between the parties that Defendant allegedly breached. (Dem. 8:20–22.) Without the terms of the purported agreement, the Court is unable to ascertain the parties’ performance, breach, or damages. Based on the foregoing, the Court finds that Plaintiff has failed to allege facts sufficient to constitute a cause of action for breach of contract. Accordingly, the demurrer is sustained on this ground.

D.    Uncertainty 

Generally speaking, “demurrers for uncertainty are disfavored and thus are strictly construed because ambiguities can reasonably be clarified under modern rules of discovery. Such demurrers are granted only if the pleading is so incomprehensible that defendant cannot reasonably respond.” (Cal.Jur.3d § 137.) “Where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.” (Williams v. Beechnut Nutrition Corp. (2011) 185 Cal.App.3d 135, 139 fn.2.)  

Here, Defendant argues that Plaintiff’s complaint is uncertain pursuant to Code of Civil Procedure section 430.10, subdivision (f). In applying the stringent standard for demurrers filed on this ground, the Court finds that the complaint is not “so incomprehensible” that Defendant cannot respond, especially given the extensive analysis it has argued against the pleading. Accordingly, the demurrer is overruled on this ground.

E.     Leave to Amend

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

Here, the Court notes that this is the first demurrer brought by Defendant in this action. However, Plaintiff has failed to oppose the instant demurrer, and therefore has not made any showing that he can successfully amend his complaint. Moreover, a plaintiff's lack of standing is a fatal jurisdictional defect that requires a judge to render judgment against the plaintiff. (Spotlight on Coastal Corruption v. Kinsey (2020) 57 Cal.App.5th 874, 887; Sipple v. City of Hayward (2014) 225 Cal.App.4th 349, 358.) Therefore, the demurrer is sustained without leave to amend.

CONCLUSION 

The demurrer is sustained without leave to amend.