Judge Gary Y. Tanaka, Case 22TRCV00497 2023-04-21 Tentative Ruling

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Friday, April 21, 2023

Department B Calendar No. 4

Wescom Central Credit Union’s Demurrer to Complaint is sustained without leave to amend, in part, and sustained with 20 days leave to amend, in part.

Plaintiff filed the Complaint on June 21, 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 2705 145th St., Gardena, CA 90249. 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, et al.; 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, Jonathan M. Beltram, ¶¶ 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 first through fourth, sixth, and seventh causes of action on the ground that the causes of action fail to state facts sufficient to constitute a cause of action. The Court notes that Plaintiff’s opposition makes numerous references to the alleged wrongdoing and statutory violations of an entity named “Rushmore.” It is unclear what Defendant is being referenced here because no entity named “Rushmore” is identified in the Complaint.

Defendant’s demurrer to the first cause of action is sustained without leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.

“[U]nder the plain language of section 2923.5, read in conjunction with section 2924g, the only remedy provided is a postponement of the sale before it happens.” Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 235. Here, upon matters to which the Court may take judicial notice, the trustee’s sale has already occurred, and Plaintiff has no remedy under Section 2923.5. (Defendant’s RJN, Ex. 16.)

Thus, the demurrer to the first cause of action is sustained without leave to amend.

Defendant’s demurrer to the second cause of action is sustained without leave to amend. In the opposition, Plaintiff states that she agrees to abandon this cause of action.

Thus, the demurrer to the second cause of action is sustained without leave to amend.

Defendant’s demurrer to the third cause of action is sustained without leave to amend. Plaintiff fails to state facts sufficient to constitute a cause of action.

“(a) Unless a borrower has previously exhausted the first lien loan modification process offered by, or through, his or her mortgage servicer described in Section 2923.6, within five business days after recording a notice of default pursuant to Section 2924, a mortgage servicer that offers one or more foreclosure prevention alternatives shall send a written communication to the borrower that includes all of the following information:

(1) That the borrower may be evaluated for a foreclosure prevention alternative or, if applicable, foreclosure prevention alternatives.

(2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative.

(3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative.

(b) This section shall not apply to entities described in subdivision (b) of Section 2924.18.

Civ. Code, § 2924.15 states: “(a) Unless otherwise provided, paragraph (5) of subdivision (a) of Section 2924 and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall apply only to a first lien mortgage or deed of trust[.]”

Thus, the statutes identified above only apply to a first lien mortgage or deed of trust. Upon matters to which the Court may take judicial notice, Wescom foreclosed on a junior lien, and not on a first lien. (RJN, Exs. 3, 4.)

Therefore, the demurrer to the third cause of action is sustained without leave to amend.

Defendant’s demurrer to the fourth cause of action is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.

The cause of action is based on the same statutory violations set forth above in the first three causes of action. Thus, as the demurrer to those causes of action were sustained, no underlying facts to support a cause of action for Wrongful Foreclosure exists.

“The trustee under a trust deed upon real property or an estate for years given to secure an obligation to pay money and conferring no other duties upon the trustee than those which are incidental to the exercise of the power of sale therein conferred, may be substituted by the recording in the county in which the property is located of a substitution executed and acknowledged by either of the following:

(A) All of the beneficiaries under the trust deed, or their successors in interest, and the substitution shall be effective notwithstanding any contrary provision in any trust deed executed on or after January 1, 1968.

(B) The holders of more than 50 percent of the record beneficial interest of a series of notes secured by the same real property or of undivided interests in a note secured by real property equivalent to a series transaction, exclusive of any notes or interests of a licensed real estate broker that is the issuer or servicer of the notes or interests or of any affiliate of that licensed real estate broker.”

While Plaintiff referred to this section, Plaintiff alleges no facts to show a violation of this section. Plaintiff also refers to Civ. Code § 2924a(e). However, no such statute exists.

“The elements of a wrongful foreclosure cause of action are: (1) [T]he trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561–562 (internal quotations and citations omitted.) Here, in addition to the deficiencies noted above, because Plaintiff has not alleged facts to demonstrate that the foreclosure sale was void as opposed to voidable, Plaintiff is also required to allege that she has tendered the amount of the indebtedness. Plaintiff has failed to do so.

Thus, the demurrer to the fourth cause of action is sustained with 20 days leave to amend.

Defendant’s demurrer is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to state a cause of action.

“California Business and Professions Code Sections 17000, et seq., and 17200, et seq., states [sic] that unfair competition shall mean and include unlawful, unfair or fraudulent business practices.” Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 618–19. “By proscribing ‘any unlawful’ business act or practice, the UCL “borrows” rules set out in other laws and makes violations of those rules independently actionable. [Citation.] However, a practice may violate the UCL even if it is not prohibited by another statute.” Los Angeles Memorial Coliseum Com. v. Insomniac, Inc. (2015) 233 Cal.App.4th 803, 835. “The unfair competition law is independent of the Unfair Practices Act and other laws. Its remedies are “cumulative ... to the remedies or penalties available under all other laws of this state” (§ 17205), but its sanctions are less severe than those of the Unfair Practices Act. Prevailing plaintiffs are generally limited to injunctive relief and restitution. (§ 17203; see ABC Internat. Traders, Inc. v. Matsushita Electric Corp. (1997) 14 Cal.4th 1247, 1268 [61 Cal.Rptr.2d 112, 931 P.2d 290].) Plaintiffs may not receive damages, much less treble damages, or attorney fees.” Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 179.

Based on the underlying allegations noted above, Plaintiff has failed to allege sufficient facts to demonstrate unlawful, fraudulent, and/or unfair business practices on the part of demurring Defendant.

Defendant’s demurrer to the sixth cause of action is sustained with 20 days leave to amend.

Seventh Cause of Action for Cancellation of Written Instruments, Civ. Code 3412

Defendant’s demurrer is sustained with 20 days leave to amend. Plaintiff fails to state facts sufficient to constitute a cause of action.

Civ. Code, § 3412 states: “A written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.”

Plaintiff merely recites, in a conclusory manner, the elements of the cause of action noted above. (Complaint, ¶¶ 70-71.) However, as noted above, Plaintiff has alleged no facts to demonstrate that the instrument is void or voidable, and, if left outstanding, will cause serious injury to Plaintiff.

Therefore, the demurrer to the seventh cause of action is sustained with 20 days leave to amend.

The trial court has discretion to consolidate actions involving common questions of law or fact. Code Civ. Proc., §1048. The purpose of consolidation is “to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions.” Estate of Baker (1982) 131 Cal.App.3d 471, 485.

The court generally considers the following: (1) timeliness of the motion, i.e., whether granting consolidation would delay the trial of any of the cases involved; (2) complexity, i.e., whether joining the actions involved would make the trial too confusing or complex for a jury; and (3) prejudice, i.e, whether consolidation would adversely affect the rights of any party. State Farm Mut. Auto. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 430–31; Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-79.

Plaintiff moves to consolidate the instant action with Unlawful Detainer Case No. 22TRCV00571. However, Plaintiff failed to follow the procedure outlined in Los Angeles Superior Court, Rules 3.3(f) and (g) to relate and consolidate cases. Rule 3.3(g) states: “(1) Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.”

Here, the cases have not been deemed related and assigned to a single department. Therefore, the motion to consolidate is denied without prejudice.