Judge Holly J. Fujie, Case Number: 24STCV25526, Date: 2025-04-02 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

MOVING PARTY: Defendant Nationstar Mortgage dba Mr. Cooper sued erroneously as Mr. Cooper (“Mr. Cooper”)

The Court has considered the moving papers. No opposition has been filed. Any opposition was required to have been filed by March 19, 2025. (Code of Civil Procedure (“CCP”), § 1005, subd. (b) [opposition must be filed at least nine court days prior to the hearing].)

This action arises from a loan agreement and foreclosure on the real property located at 637 North West Knoll Drive, No. 204, West Hollywood, CA 90069 (the “Subject Property”). Plaintiff Nichole Holtz, in pro per, filed the complaint (“Complaint”) on October 2, 2024 against defendants Westknoll Plaza Homeowners Association, Inc., Alterra Assessment Recovery LLC, Mr. Cooper (collectively, “Defendants”) and Does 1 through 20, inclusive, alleging causes of action for: (1) intentional misrepresentation; (2) to void or cancel Notice of Default and Election to Sell under the Deed of Trust; (3) violation of covenants, conditions & restrictions California; Civil Code § 1367; (4) accounting; (5) breach of implied covenant of good faith and fair dealing; (6) slander of title; (7) quiet title; (8) declaratory relief; and (9) violation of California Business & Professions Code §§ 17200 et seq.

On March 4, 2025, Mr. Cooper filed the instant motion for judgment on the pleadings (the “Motion”). The Motion is unopposed.

Pursuant to Evidence Code section 452, subdivision (h), the Court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”

Pursuant to Mr. Cooper’s request, the Court takes judicial notice of the following documents recorded with the Los Angeles County Recorder’s Office: (1) Deed of Trust, recorded on August 23, 2006 as Instrument No. 06- 1878927; (2) Assignment of Deed of Trust, recorded on October 27, 2011 as Instrument No. 20111458796; (3) Assignment of Deed of Trust, recorded on November 1, 2011 as Instrument No. 20111480410; (4) Assignment of Deed of Trust, recorded on April 17, 2013 as Instrument No. 20130566857; (5) Notice of Delinquent Assessment Lien, recorded on July 21, 2022 as Instrument No. 20220744393; (6) Notice of Default and Election to Sell Under Notice of Delinquent Assessment Lien, recorded on April 12, 2024 as Instrument No. 20240242451; and (7) Notice of Trustee’s Sale, recorded on August 6, 2024 as Instrument No. 20240523956. (RJN, Exs. 1-7.)

"A motion for judgment on the pleadings is analogous to a general demurrer, but is made after the time to file a demurrer has expired." (International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196.) If the party moving for judgment on the pleadings is a defendant, there are only two permissible grounds for bringing the motion: the court lacks subject matter jurisdiction or the complaint "does not state facts sufficient to constitute a cause of action against that defendant." (Code of Civil Procedure (“CCP”), § 438, subd. (c)(1)(b)(ii).)

“Because the motion is, in effect, a general demurrer, the same rules apply.” (Sofias v. Bank of America (1985) 172 Cal.App.3d 583, 586.) Therefore, when determining whether a complaint fails to state facts sufficient to constitute a cause of action, the court must treat the complaint as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1465.)

If the court grants the motion, it may permit the opposing party to amend the pleading. (CCP, § 438, subd. (h)(1).) If granting leave to amend, the court must allow the party 30 days to file the amended pleading. (CCP § 438, subd. (h)(2).) But “[i]f there is no liability as a matter of law, leave to amend should not be granted.” (Schonfeldt, supra, 61 Cal.App.4th at 1465.)

Mr. Cooper moves for judgment on the pleadings as to the first, second, fourth, sixth, seventh, eighth and ninth causes of action, which are the only causes of action alleged in the Complaint against Mr. Cooper.

Mr. Cooper argues that the first cause of action for intentional misrepresentation is barred by the statute of limitations. Plaintiff’s intentional misrepresentation cause of action is governed by the three-year statute of limitations for actions “for relief on the ground of fraud or mistake” (CCP § 338 subd. (d).) The Deed of Trust shows that Plaintiff obtained the loan on August 15, 2006. (Compl., Ex. A; RJN, Ex. 1.) The loan was transferred to Deutsche Bank on April 5, 2013. (RJN, Ex. 4.) Mr. Cooper services the loan on Deutsche Bank’s behalf. (Compl., ¶ 3; Mot. p. 1:27-28.) Plaintiff filed this action on October 2, 2024. Thus, the intentional misrepresentation cause of action is untimely.

Second Cause of Action, To Void or Cancel Notice of Default and Election to Sell Under the Deed of Trust

Mr. Cooper argues that the second cause of action to void or cancel the Notice of Default and Election to Sell Under Deed of Trust fails because Mr. Cooper did not record the Notice of Default. (Compl., ¶ 18, Ex. D; RJN, Ex. 6.) Mr. Cooper also argues that the cause of action fails because Plaintiff has alleged no facts showing that the Notice of Default is void or voidable. (Mot., pp. 5:26-6:4.) Thus, Plaintiff has failed to state facts sufficient to constitute a cause of action to void or cancel the Notice of Default and Election to Sell Under Deed of Trust against Mr. Cooper.

Mr. Cooper argues that the fourth cause of action for accounting fails because Plaintiff seeks an accounting as to the HOA fees owed on the Subject Property and Mr. Cooper has not claimed any HOA fees. (Compl., ¶¶ 57-64; RJN, Ex. 5.) Thus, Plaintiff has failed to state facts sufficient to constitute an accounting cause of action against Mr. Cooper.

“Slander of title is effected by one who without privilege publishes untrue and disparaging statements with respect to the property of another under such circumstances as would lead a reasonable person to foresee that a prospective purchaser or lessee thereof might abandon his intentions. It is an invasion of the interest in the vendibility of property …. Damages usually consist of loss of a prospective purchaser.” (Phillips v. Glazer (1949) 94 Cal.App.2d 673, 677, cleaned up.) “To state a claim for slander of title, a plaintiff must allege (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336.)

Mr. Cooper argues that the sixth cause of action for slander of title fails because Mr. Cooper did not publish the HOA Lien, Notice of Default, or Notice of Trustee’s Sale. (RJN, Exs. 5-7.) Thus, Plaintiff has failed to state facts sufficient to constitute a slander of title cause of action against Mr. Cooper.

An action for quiet title seeks “to establish title against adverse claims to real or personal property or any interest therein.” (CCP, § 760.020, subd. (a).) In an action for quiet title, a plaintiff must plead (1) “[a] description of the property that is the subject of the action,” specifically the location of tangible personal property and the legal description and street address or common designation of real property, (2) “[t]he title of the plaintiff as to which a determination under this chapter is sought and the basis of the title,” (3) “[t]he adverse claims to the title of the plaintiff against which a determination is sought,” (4) “[t]he date as of which the determination is sought,” and (5) “[a] prayer for the determination of the title of the plaintiff against the adverse claims.” (CCP, § 761.020.)

Mr. Cooper argues that the seventh cause of action for quiet title fails because Plaintiff does not allege that the loan has been repaid in full, which is a prerequisite for a mortgagor to assert a quiet title claim. (Shimpones v. Stickney (1934) 219 Cal. 637, 649; Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477-78; Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707 [“[A] borrower may not assert an action to quiet title against a mortgagee without first paying the outstanding debt on the property.”].) Thus, Plaintiff has failed to state facts sufficient to constitute a quiet title cause of action against Mr. Cooper.

Mr. Cooper argues that the eighth cause of action for declaratory relief fails because declaratory relief is not a proper cause of action, the Complaint pleads no facts showing that there is an actual controversy and because declaratory relief is unnecessary based on the other damages and relief Plaintiff seeks. (Mot., p. 9:6-15.)

Declaratory relief may be warranted where a Plaintiff alleges “‘an actual, present controversy […] pleaded specifically" and "the facts of the respective claims concerning the [underlying] subject must be given.’” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80.) However, “[w]here facts appear from the face of the complaint which would justify a trial court in concluding that its determination is not necessary or proper, it has been held that the court may sustain a general demurrer to the complaint for declaratory relief.” (Moss v. Moss (1942) 20 Cal.2d 640, 642.) “This is a discretionary determination, subject to reversal only if that discretion is abused.” (Otay Land Co. v. Royal Indemnity Co. (2008) 169 Cal.App.4th 556, 563.) As discussed above, Plaintiff has failed to plead an actual controversy as to any of the causes of action alleged against Mr. Cooper. Further, Plaintiff appears to be seeking relief for the same underlying wrongs set forth in the previously discussed causes of action, so it is unclear how the relief sought in the seventh cause of action would be distinct from these claims. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324 [declaratory relief is unavailable where it duplicates other causes of action]; See also Cal. Ins. Guar. Ass'n v. Superior Court (1991) 231 Cal.App.3d 1617, 1624 [“availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief.”].) Thus, Plaintiff has failed to state facts sufficient to constitute a claim for declaratory relief against Mr. Cooper.

Ninth Cause of Action, Violation of California Business & Professions Code §§ 17200 et seq.

Mr. Cooper argues that the ninth cause of action for violation of California Business & Professions Code sections 17200 et. seq fails because Plaintiff has not alleged facts showing that Mr. Cooper engaged in any illegal, fraudulent or deceptive business practices. A claim for unfair business practices serves as a predicate action and “requires violation of another statute,” or that “the practice is not expressly authorized by law.” (People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1016; Berryman v. Merit Prop. Mgmt., Inc. (2007) 152 Cal.App.4th 1544, 1554.) As discussed above, Plaintiff has failed to state facts sufficient to establish any of the causes of action alleged against Mr. Cooper and thus the cause of action for violation of California Business & Professions Code fails as a predicate to Plaintiff’s other claims.

Thus, Mr. Cooper’s Motion for Judgment on the Pleadings is GRANTED, with 20 days leave to amend. The Court informs Plaintiff that unless the above defects in the pleading as to Mr. Cooper are not remedied upon amendment, the Court would seriously consider sustaining a demurrer or granting a motion for judgment on the pleadings as to any such amended complaint without leave to amend as to Mr. Cooper.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court