Judge Gary Y. Tanaka, Case 22TRCV00361 2023-01-26 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, January 26, 2023

Department B Calendar No. 9

Bank of America, N.A.,’s Demurrer to Complaint is sustained without leave to amend.

Plaintiff filed the Complaint on May 9, 2022. Plaintiff alleges the following facts. This action arises from the recordation of the notice of default and notice of trustee’s sale and resulting trustee’s sale of Plaintiff’s former real property located at 1612 S. Denver Ave., Gardena, CA 90248-2603. Plaintiff alleges multiple violations of the Homeowner’s Bill of Rights Act (“HBOR”). Plaintiff alleges causes of action for: 1. Violation of Civ. Code 2923.5; 2. Violation of Civ. Code 2924(a)(1); 3. Violation of Civ. Code 2924.9; 4. Wrongful Foreclosure; 5. Interpleader Pursuant to CCP 386; 6. Unfair Business Practices; 7. Cancellation of Written Instruments, Civ. Code 3412.

Demurring Defendant set forth an adequate meet and confer declaration in compliance with CCP § 430.41. (Declaration, J. Owen Campbell, ¶¶ 2-3.)

Defendant’s request for judicial notice is granted pursuant to Evidence Code Sections 452(c) and (h).

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case "with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) "Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer." (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.) Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

Defendant demurs to the second cause of action for failure to state facts sufficient to constitute a cause of action.

Defendant’s demurrer to the second cause of action is sustained without leave to amend. In the opposition, Plaintiff states that he agrees to abandon this cause of action. Plaintiff has also agreed to abandon the fifth cause of action but the Court notes that no demurrer was set forth as to this cause of action. Plaintiff is free to file a request for dismissal as to fifth cause of action.

The bulk of the written opposition consists of opposing a demurrer to causes of action to which the Defendant did not demur. The Court notes that the instant demurrer is a classic example of why the meet and confer process was mandated by statute and could have easily been resolved without Court intervention. The Court urges the parties to, in the future, properly meet and confer prior to any motions which mandate a good faith meet and confer process.

Defendant’s demurrer to the second cause of action of the Complaint is sustained without leave to amend.