Judge: Joel R Wohlfeil, Case: 37-2023-00045355-CU-OR-CTL, Date: 2024-05-10 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

HALL OF JUSTICE

TENTATIVE RULINGS - May 07, 2024

05/10/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00045355-CU-OR-CTL RANDY ACORD AS SUCCESSOR TRUSTEE OF THE ACORD TRUST AGREEMENT VS MEKS CAPITAL CORPORATION [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 04/22/2024

The special and general Demurrer (ROA # 53) of Defendants Bird Rock Home Mortgage, LLC ('Bird Rock'), Bird Rock Management, LLC and Stephen Paul Niednagel ('Niednagel') (collectively 'Bird Rock Defendants') to causes of action 3, 4, 7, 8 and 10 in the Complaint by Plaintiff Randy Acord ('Plaintiff'), is SUSTAINED IN PART and OVERRULED IN PART, as listed below.

The special Demurrer for misjoinder is overruled in its entirety.

The general Demurrer of Defendant Bird Rock Home Mortgage is overruled to causes of action 3 and 4, and is sustained to causes of action 7, 8 and 10. Leave to amend is only permitted as to cause of action 10. A First Amended Complaint must be filed and served within twenty (20) days of this hearing.

The general Demurrer of Defendants Bird Rock Management, LLC and Stephen Paul Niednagel is sustained as to causes of action 3, 4, 7, 8 and 10. Leave to amend is not permitted.

Plaintiff should also use the forthcoming amended pleading to prune the now defunct claims from this action.

This ruling is premised on the analysis set forth below.

Defendants' Request (ROA # 56) for judicial notice is GRANTED.

3rd COA: CANCELLATION OF INSTRUMENTS (COUNT ONE) 4th COA: CANCELLATION OF INSTRUMENTS (COUNT TWO) Defendants Bird Rock Management and Niednagel argue facts are not pled demonstrating that they are proper parties to this cause of action. Plaintiff does not oppose this aspect of the general Demurrer.

Defendant Bird Rock Home Mortgage argues these causes of action fail because tender is not alleged.

In Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal. App. 4th 808, the opinion states: 'Finally, because a cause of action to cancel a written instrument under section 3412 sounds in equity, a debtor must generally allege tender or offer of tender of the amounts borrowed as a prerequisite to such claims. The tender requirement 'is based on the theory that one who is relying upon equity in overcoming a voidable sale must show that he is able to perform his obligations under the Calendar No.: Event ID:  TENTATIVE RULINGS

3112292 CASE NUMBER: CASE TITLE:  RANDY ACORD AS SUCCESSOR TRUSTEE OF THE ACORD TRUST  37-2023-00045355-CU-OR-CTL contract so that equity will not have been employed for an idle purpose.' (Dimock v. Emerald Properties (2000) 81 Cal. App. 4th 868, 878.) The tender rule is not absolute; tender is not required to cancel a written instrument that is void and not merely voidable. (Id. at p. 876; Smith v. Williams (1961) 55 Cal. 2d 617, 620 – 621; Ram v. OneWest Bank, FSB (2015) 234 Cal. App. 4th 1, 11.) As discussed ante, we conclude the alleged defects merely rendered MERS's assignment of the DOT to the 2007 – AR7 trust voidable under New York law. In any event, because we affirm the judgment on standing grounds, we do not decide whether Saterbak was required to plead the ability or willingness to tender to cancel the assignment pursuant to section 3412.' Id. at 819, 820.

The FAC at paragraphs 112, 121, 123 and 127 allege that the subject instruments are void, and not merely voidable. Thus, as alleged, tender is not necessary. Voidability is a fact question that cannot be resolved on this Demurrer.

Defendant Bird Rock Home Mortgage also argues these causes of action fail because unconscionability is not sufficiently alleged. However, cause of action 3 is not premised on unconscionability. It alleges the subject instruments are void because they are unlawful and against public policy.

Cause of action 4 is premised on unconscionability. Paragraphs 26 - 58 and 60 - 92 allege detailed facts that, if true, could support the elements of both procedural and substantive unconscionability. See Graham v. Bank of America, N.A. (2014) 226 Cal. App. 4th 594, 616 - 618. As alleged, oppression and surprise occurred with respect to obtaining consent for the loan agreements. Also, unconscionable loan terms are alleged.

Defendant Bird Rock Home Mortgage also argues a special Demurrer for 'misjoinder' must be sustained because 'Raymond' the loan broker is not a named party. However, even if this argument has merit, this Defendant is named in the FAC. See FAC at ¶ 11. The special Demurrer is not persuasive.

7th COA: VIOLATION OF CALIFORNIA UNFAIR COMPETITION LAW As discussed above, Defendants Bird Rock Management and Niednagel are not proper parties.

Plaintiff does not oppose Defendant Bird Rock Home Mortgage's general Demurrer to this cause of action.

8th COA: FRAUD (MISREPRESENTATION AND CONCEALMENT) As discussed above, Defendants Bird Rock Management and Niednagel are not proper parties.

Plaintiff does not oppose Defendant Bird Rock Home Mortgage's general Demurrer to this cause of action.

10th COA: QUIET TITLE As discussed above, Defendants Bird Rock Management and Niednagel are not proper parties.

As also discussed above, as currently alleged, tender is not a necessary element. Also, unconscionability is sufficiently alleged.

On the other hand, the general Demurrer is sustained with leave to amend because this cause of action is not verified. Code Civ. Proc. 761.020.

Calendar No.: Event ID:  TENTATIVE RULINGS

3112292