Judge: Deborah C. Servino, Case: 30-2022-01282423, Date: 2023-08-11 Tentative Ruling
Defendants Select Portfolio Servicing, Inc., JP Morgan Chase Bank, National Association, and The Bank of New York Mellon, successor trustee to JPMorgan Chase Bank, National Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A Trust 2005-10, Mortgage Pass-Through Certificates, Series 2005-10 (improperly sued as The Bank of New York Mellon f/k/a The Bank of New York as successor in interest to The Bank of New York, National Association, as Trustee f/b/o holders of Structured Asset Mortgage Investments II Inc., Bear Stearns ALT-A Trust 2005-10, Mortgage Pass-Through Certificates, Series 2005-10) (collectively, “Moving Parties”) demur, and in the alternative, move for judgment on the pleadings, to the sixth cause of action for violation of Business and Professions section 17200 on the ground that Plaintiff Ariel Higareda lacks standing. The motion is denied.
Demurrer
Moving Parties’ second demurrer is untimely. (Code Civ. Proc., § 430.40, subd. (a) [“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”].) In addition, Moving Parties already demurred to this Complaint. (See ROA 34.) Moving Parties did not demur on this ground in their initial demurrer. This ground should have been raised in the demurrer that the court heard on March 17, 2023. (See Code Civ. Proc., § 430.41, subd. (b) [“A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.”].) Although not directly on point, there appears no reason why a party would be prohibited from demurring after an amended pleading is filed but not before an amended pleading is filed. Accordingly, the demurrer is overruled as procedurally improper.
Motion for Judgment on the Pleadings
Pursuant to Code of Civil Procedure section 438, subdivision (b)(1), a party may move for judgment on the pleadings. A defendant may move for a judgment on the pleadings on the ground that the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B).)
The grounds for a motion for judgment on the pleadings “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 438, subd. (d); see, Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063 [subject to certain exceptions, extrinsic evidence should not be considered in a motion for judgment on the pleadings].)
A motion for judgment on the pleadings has the same function as a general demurrer. (Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227, citation omitted [“The standard for granting a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law”].) Where the moving party is a defendant, the motion may be made on one of two grounds: that the court lacks “jurisdiction over the subject of the cause of action alleged in the complaint,” or, the complaint “does not state facts sufficient to constitute a cause of action against that defendant.” (Code Civ. Proc., § 438, subd. (c)(1)(B).)
The sixth cause of action is for violation of Business and Professions Code section 17200. (Complaint, at pp. 36-39.) Business & Professions Code section 17200 prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Under the unlawful prong, a violation of law may be actionable as unfair competition under Business & Professions Code section 17200. (Lueras v. BAC Home Loans Servicing, LP, 221 Cal.App.4th 49, 81.) “An unfair business practice occurs when that practice offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers . . . An unfair business practice also means the public policy which is a predicate to the action must be tethered to specific constitutional, statutory or regulatory provisions.” (Ibid. [internal citations omitted].) A fraudulent practice “require[s] only a showing that members of the public are likely to be deceived and can be shown even without allegations of actual deception, reasonable reliance and damage.” (Ibid. [internal citations omitted].)
To establish standing, Plaintiffs must allege facts that “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 322.)
Plaintiffs alleged sufficient facts to show Higareda has standing to bring this claim. Specifically, Higareda is one of the title holders to the Subject Property. Moving Parties wrongfully foreclosed the Subject Property. Moving Parties executed and recorded fraudulent documents. Moving Parties did not provide proper notice to Plaintiffs. Moving Parties violated the Homeowners Bill of Rights. Plaintiffs have been prejudiced, harmed and financially damaged and have lost possession of their home. Plaintiffs were deprived of clear and quiet title to the Subject Property and lost equity of the Subject Property. There is a cloud on title and Plaintiffs' right to the use and enjoyment of the Subject Property was restricted. Plaintiffs' right to unrestricted possession and ownership of the Subject Property was hindered. (Complaint, at ¶¶ 2, 17, 38, 39, 44, 45, 52, 94, 97, 104, 108, 144, and 153-157.)
Moving Parties contend the recorded documents attached to the Complaint do not show Higareda on the loan documents. If the facts “appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.) Simply because Higareda is not on the loan documents does not mean Higareda is not on title. Plaintiffs' Complaint alleges Plascencia and Higareda stand “as the only legal recognized title-holder” to the Subject Property. (Complaint, at ¶ 2.) The documents attached to the Complaint do not contradict Plaintiffs' allegation that Higareda is a title holder to the Subject Property. The issue is the sufficiency of the pleading, not the truth of the facts alleged. Thus, no matter how unlikely or improbable, the allegations made must be accepted as true for the purpose of ruling on the demurrer. (Del E. Webb Corporation v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Accordingly, the motion for judgment on the pleadings is denied.
CASE MANAGEMENT CONFERENCE
The case management conference is continued to October 13, 2023 at 10 am in Department C21, to be heard concurrently with Defendant The Wolf Firm's motion.
Moving Parties shall give notice of the ruling and of the continued case management conference to all parties.