Judge: Carolyn M. Caietti, Case: 37-2023-00017851-CU-BC-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 12, 2023

10/13/2023  10:30:00 AM  C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited  Breach of Contract/Warranty Demurrer / Motion to Strike 37-2023-00017851-CU-BC-CTL CATIBOG VS MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 06/21/2023

Defendant Bird Rock Mortgage, LLC's Demurrer to Plaintiff's Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants PHH Mortgage Corporation (PHH) and Mortgage Electronic Registration Systems, Inc.

(MERS)'s Demurrer to Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

The Court considered Plaintiff's late opposition to Defendant Bird Rock Mortgage, LLC's demurrer.

All requests for judicial notice (ROA 22, 26) are granted and notice will be taken to the extent permitted.

(Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1 (ruling the trial court properly judicially noticed the existence and facial contents of a recorded deed of trust, assignment of the deed of trust, substitution of trustee, notices of default and of trustee's sale and trustee's deed upon sale under Evidence Code section 452(c) and (h); see also, Evid. Code, § 452(d) [Ex. 8 – Judgment]).) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) Generally, Plaintiff's Complaint alleges Defendants wrongfully foreclosed his property without a valid substitution of trustee recorded prior to, currently with or subsequent to a notice of default, notice of trustee's sale or trustee's deed upon sale concerning the deed of trust on Plaintiff's property. (E.g., Complaint, at ¶ 8.) The Complaint against Defendant Bird Rock Mortgage, LLC does not state sufficient facts to constitute each cause of action against it. Each cause of action is based on Plaintiff's allegation that 'at no time was any valid substitution of trustee recorded prior to, concurrently with, or subsequent to any Notice of Default...' (Complaint, at ¶¶ 8, 17, 24, 31, 38, 41, 44, 46.) However, as can be judicially noticed by the Calendar No.: Event ID:  TENTATIVE RULINGS

2988005  47 CASE NUMBER: CASE TITLE:  CATIBOG VS MORTGAGE ELECTRONIC REGISTRATION  37-2023-00017851-CU-BC-CTL Court, a substitution of attorney was recorded before the notice of default. (RFJN, at Ex. 4; see also, Civ.

Code, § 2934a(a)(1)(A) [the trustee under a trust deed may be substituted by the recording of a substitution executed by the beneficiaries under the trust deed or their successors in interest]; Dimock v. Emerald Properties LLC (2000) 81 Cal.App.4th 868, 871 ['By statute the Legislature has permitted the beneficiary of a deed of trust to substitute, at anytime, a new trustee for the existing trustee.'].) The Complaint fails to plead facts that would overcome the conclusive presumption of a valid sale in favor of a bona fide third-party purchaser because there was a properly recorded substitution of trustee recorded prior to the Notice of Default.

Res judicata also applies as Bird Rock completed an unlawful detainer action and obtained a judgment against Plaintiff, conclusively establishing Bird Rock's ownership and right to possession of the property and the substituted trustee's power to conduct the foreclosure sale. (See generally, Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797 & RFJN, Ex. 8.) Plaintiff's opposition fails to: (i) oppose Bird Rock's request for judicial notice; (ii) address Exhibit 4 and the substitution of trustee recorded before the recording of the notice of default; and (iii) oppose Bird Rock's res judicata argument.

Plaintiff requested leave to amend but did not identify how these defects can be cured. The Complaint and opposition are based on the fact no substitution of attorney was recorded before the notice of default, and Exhibit 4 shows such a recording.

For the same reasons, the Complaint against PHH and MERS does not state facts to constitute each cause of action against them. First, Plaintiff did not oppose the demurrer and impliedly conceded on the merits. (San Diego Local Rule 2.1.19(B) ['The court may deem a lack of opposition to be a concession that a motion is meritorious.'].) Second, there are no facts alleged against MERS showing liability. At most, the Complaint alleges on November 20, 2018, and before the notice of default's filing, MERS caused a corporate assignment to be recorded. (Complaint, at ¶ 4.) Concluding Orders For these reasons, Bird Rock's demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

PHH and MERS' demurrer is SUSTAINED WITHOUT LEAVE TO AMEND.

This ruling is dispositive of the case against Bird Rock, PHH and MERS. Defendants are ordered to prepare and submit the appropriate dismissals in accordance with any applicable rules and laws.

If the tentative ruling is confirmed without modification, it will be the Court's final ruling. Defendant Bird Rock is ordered to serve written notice of the Court's final ruling by October 17, 2023.

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