Judge: Carolyn M. Caietti, Case: 37-2023-00014869-CU-OR-CTL, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 23, 2024

05/24/2024  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2023-00014869-CU-OR-CTL KJORLIEN VS BOKF NATIONAL ASSOCIATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Judgment on the Pleadings, 12/12/2023

Defendant BOKF, National Association d/b/a Bank of Oklahoma's (BOKF) unopposed Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND.

BOKF's unopposed request for judicial notice is granted and notice will be taken to the extent permitted.

A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint. (C.C.P., § 438.) Per C.C.P. section 438(c)(B)(ii), a defendant may move for judgment on the pleadings on the grounds that the complaint does not state facts sufficient to constitute a cause of action against the defendant. Like a demurrer, the grounds for the motion must appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.

(C.C.P., § 438(d); Civic Partners Stockton, LLC v. Youssefi (2013) 218 Cal.App.4th 1005, 1012–1013 (citations omitted).) The allegations are accepted as true. (Hardy v. America's Best Home Loans (2014) 232 Cal.App.4th 795, 802.) Courts must construe the pleadings liberally. (C.C.P., § 452.) Courts may not resolve questions of witness credibility or evidentiary conflicts, but must deny the motion if there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) In this case, BOKF moves for judgment on the pleadings on each cause of action.

BOKF duly-served the motion on Plaintiff's former attorney, who was relieved as counsel effective March 11, 2024, before her attorney withdrew. (ROA 61.) As of this writing, Plaintiff has not filed an opposition, thus conceding on the merits. (San Diego Superior Court Local Rule 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious.'].) Notwithstanding, judgment on the Complaint is appropriate. As to the first, second and third causes of action for violations of the Homeowners Bill of Rights (HBOR) (Civil Code, § 2923.4, et seq), the claims are moot and Plaintiff does not have a remedy available because the Deed of Trust was reconveyed and there will not be any trustee's sale. (RFJN No. 3; Civ. Code., § 2924.12(c) ['A mortgage servicer...shall not be liable for any violation that it has corrected and remedied prior to the recordation of the trustee's deed upon sale...']; Billesbach v. Specialized Loan Servicing, LLC (2021) 63 Cal.App.5th 830, 845 (explaining Civil Code section 2924.12(c) 'encourages mortgage servicers to cure any material violation by providing a safe harbor').) As the fifth cause of action for unfair business practices is derivative of the HOBR claims, it too fails. (E.g., Complaint, at ¶ 110.) The fourth cause of action does not state facts to constitute negligence. This claim is based on a duty of Calendar No.: Event ID:  TENTATIVE RULINGS

3064031  46 CASE NUMBER: CASE TITLE:  KJORLIEN VS BOKF NATIONAL ASSOCIATION [IMAGED]  37-2023-00014869-CU-OR-CTL care owed to Plaintiff in servicing the loan and reviewing the loan modification applications. (Complaint, at ¶ 86.) The California Supreme Court recently held there is no such duty. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 915.) Plaintiff does not oppose nor request leave to amend.

For these reasons, the motion is GRANTED WITHOUT LEAVE TO AMEND as to the entire Complaint against Defendant BOKF, National Association d/b/a Bank of Oklahoma.

Finally, Defendant Quality Loan Service Corporation filed a Declaration of Non-Monetary Status (ROA 22), to which the record does not reflect any objection. (Civ. Code, § 2924l(c)-(d).) The Court will set an OSC re Dismissal as to why Quality Loan Service Corporation should not be dismissed.

Concluding Orders Judgement on the Complaint shall be entered in favor of Defendant BOKF, National Association d/b/a Bank of Oklahoma.

The Court sets an OSC re Dismissal as to why Defendant Quality Loan Service Corporation should not be dismissed on July 12, 2024 at 9:30 a.m. in Department 70.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final ruling.

BOKF is ordered to: (i) prepare and submit a judgment in accordance with any applicable laws and rules of Court; (ii) serve written notice of the Court's final ruling on all appearing parties by May 29, 2024.

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