Judge: Gregory Keosian, Case: 20STCV22971, Date: 2023-10-03 Tentative Ruling

Case Number: 20STCV22971    Hearing Date: January 31, 2024    Dept: 61

Defendants NewRez LLC dba Shellpoint Mortgage Servicing and The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of CWALT, Inc., Alternative Loan Trust 2007-6, Mortgage Pass-Through Certificates, Series 2007-6’s Motion for Judgment on the Pleadings is contingent upon the ruling on Plaintiff’s Petition to Administer Estate of Austeene George Cooper in Probate Case No. 20STPB07802. If the petition is denied, the present motion shall be GRANTED, without leave to amend. If the petition is granted, this motion shall be DENIED.

I.                   MOTION FOR JUDGMENT ON THE PLEADINGS

A party may move for a judgment on the pleadings as to an entire complaint or as to a particular cause of action in a complaint. (Code Civ. Proc. § 438 subd. (c)(2)(A).) If a defendant moves for a judgment on the pleadings and argues that a complaint does not state facts sufficient to constitute a cause of action against that defendant, then the court should grant a defendant’s motion only if the court finds as a matter of law that the complaint fails to alleges facts sufficient to constitute the cause of action. (See id., § 438 subd. (c)(1)(B)(ii); see also Mechanical Contractors Assn. v. Greater Bay Area Assn. (1998) 66 Cal.App.4th 672, 677.)

“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.” (Bezirdjian v. O’Reilly (2010) 183 Cal.App.4th 316, 321.) When considering a motion for judgment on the pleadings, the court not only should assume that all facts alleged in the SAC are true but also should give those alleged facts a liberal construction. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516, 101 Cal.Rptr.2d 470, 12 P.3d 720.) In particular, the court should liberally construe the alleged facts “‘with a view to attaining substantial justice among the parties.’ [Citation.]” (See Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1232, 44 Cal.Rptr.2d 352, 900 P.2d 601.)

The present motion mirrors in many respects the prior motion for judgment on the pleadings this court granted with leave to amend on December 8, 2023.Defendants NewRez LLC dba Shellpoint Mortgage Servicing and The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificate holders of CWALT, Inc., Alternative Loan Trust 2007-6, Mortgage Pass-Through Certificates, Series 2007-6 (Defendants) move for judgment on the Third Amended Complaint (TAC) on the grounds that Plaintiff Kristi Courtois’ (Plaintiff) remaining claims for elder abuse, violation of the Homeowners Bill of Rights (HBOR), Business & Professions Code § 17200 (UCL), and negligence are barred by her lack of standing.

As with the previous motion, Defendants contend that Plaintiff’s claim to standing rests upon her status as executor of Decedent Austeene G. Cooper’s estate, when Plaintiff has not in fact been appointed as same. Although Defendants acknowledge that Plaintiff was granted Special Letters of Administration from the probate court to prosecute the present action, they note that on August 4, 2023, the probate court denied Plaintiff’s petition for probate of will on the grounds that Plaintiff had drafted the will in which she was appointed, and therefore her petition was barred by “the conclusive presumption of fraud” under Probate Code § 21380, subd. (a) and (c). (RJN Exh. B.) In the same order, the court noted that Plaintiff’s special letters of administration had expired in June 2023, and declined to renew them. (Ibid.) Defendants therefore argue that Plaintiff’s basis for standing has failed. (Motion at pp. 5–6.)[1]

Plaintiff in opposition argues that the disposal of her petition to probate the will does not deprive her of standing, as she has since filed[2] a new petition to administer the Decedent’s intestate estate, supported by the declaration of Brand Cooper, Decedent’s brother and one of his heirs-at-law. (Opposition at pp. 3–4.) As with Plaintiff’s prior opposition to Defendant’s earlier motion for judgment on the pleadings, she contends that the present lack of standing may be cured if the probate court grants her petition. (Ibid.)

Defendants in reply contend that Plaintiff’s appointment of intestate executor is unlikely, as Probate Code § 8402 states that “a person is not competent to act as personal representative in any of the following circumstances,” thereafter listing, among other bases, “[t]here are grounds for removal of the person from office under Section 8502.” (Prob. Code § 8402, subd. (a)((3).) Probate Code § 8502, meanwhile, states that a personal representative may be removed from office for “commit[ing] a fraud on the estate.” (Prob. Code § 8502, subd. (a); Reply at p. 4.) Thus Defendants contend that Plaintiff’s new petition to be administrator of the estate is “unlikely speculation.” (Reply at p. 4.)

The judicially noticeable materials make clear that Plaintiff, at present, lacks standing. She has since filed a new petition to be appointed the executor of Decedent’s intestate estate. Defects in standing may be cured (Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 243), but the resolution of Plaintiff’s new petition is uncertain. Plaintiff in her request for judicial notice contends that the hearing date on the petition is November 16, 2023.

Accordingly, the resolution of the present motion depends upon the resolution of Plaintiff’s petition, and this court may not grant or deny the motion until Plaintiff’s petition is decided. If the petition is denied, the motion shall be GRANTED, without leave to amend. If the petition is granted, this motion shall be DENIED.

Defendants to give notice.