Judge Gregory Keosian, Case 22STCV09404 2022-10-31 Tentative Ruling

Judge: Gregory Keosian, Case: 22STCV09404, Date: 2022-10-31 Tentative Ruling

Case Number: 22STCV09404 Hearing Date: October 31, 2022 Dept: 61

I. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) A court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 (“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”))

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendants Bank of America, N.A. and The Bank of New York Mellon FKA The Bank of New York, as Successor Trustee to JPMorgan Chase Bank, N.A., as Trustee on Behalf of the Certificateholders of The CWHEQ, Inc., CWHEQ Revolving Home Equity Loan Trust, Series 2006-A (Defendants) demurrer to the remaining three causes of action in Plaintiff Luis Campos’s (Plaintiff) First Amended Complaint (FAC) for violation of the Homeowner’s Bill of Rights (HBOR) and California’s Unfair Competition Law (UCL). This court previously sustained Defendants’ demurrer to those same causes of action, on the grounds that Plaintiff had stated no material violation of HBOR, as the claims related only to the possibility of a foreclosure that was not pending. Plaintiff has amended the complaint, and Defendants argue that the additions made do not contribute to a finding of materiality.

The violations alleged in the FAC derive from Civil Code § 2923.7, which requires a mortgage servicer to appoint a single point of contact (SPOC) whenever a borrower requests a foreclosure prevention alternative. (Civ. Code § 2923.7, subd. (a)), and Civil Code § 2924.10, which requires mortgage servicers to provide written acknowledgement of the receipt of documents associated with a borrower’s loan modification application. (Civ. Code § 2924.10, subd. (a).) Although no trustee’s sale has occurred or is pending, and thus no damages are available under Civil Code §§ 2924.12 and 2924.19, injunctive relief remains available “to enjoin a material violation.” (Civ. Code § 2924.12, subd. (a); 2924.19, subd. (a).)

Plaintiff’s allegations in the amended complaint concerning the materiality of the alleged violations are identical to those presented before. Plaintiff alleges that Defendants’ alleged failure to appoint a SPOC or to provide acknowledgement of receipt of documents constitute material violations because in doing so “the entity has prevented PLAINTIFF’S chances for a successful submission of the proper papers to complete a loan modification package to save the Subject Property from foreclosure, and the resultant loss of equity and a place to live for PLAINTIFF’ and his dependents.” (FAC ¶¶ 43, 49.) These allegations are identical in substance to the allegations supporting the same violations in the Complaint. (Complaint ¶¶ 53, 64.) No additional facts or explanations have been pleaded. Plaintiff’s opposition to the present motion does not discuss materiality, which is the sole basis for the present demurrer.

The demurrer is SUSTAINED as to all causes of action, without leave to amend.

Defendants to give notice.