Judge: Joseph Lipner, Case: 24STCV26655, Date: 2025-02-18 Tentative Ruling
Case Number: 24STCV26655 Hearing Date: February 18, 2025 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
FRANK ARAGON, et al.,
Plaintiffs, v. DESIREE GOMEZ, et al., Defendants. |
Case No:
24STCV26655 Hearing Date: February 18, 2025 Calendar Number: 7 |
Defendants PHH Corporation (“PHH”) (sued as “PHH Mortgage,
Inc.”) and Wells
Fargo Bank, National Association, as
Trustee for Park Place Securities, Inc. Asset-Backed Pass-Through Certificates
Series 2005-WCH1, (“Wells Fargo Trustee”) (sued as “Wells Fargo Bank N.A.”)
(collectively, “Moving Defendants”) demur to the first, second, third, fourth,
fifth, sixth, eighth, and ninth claims in the Complaint filed by Plaintiffs Frank
Aragon, Successor Trustee of the Roseann Gomez Trust (“Aragon”) and Cruz
Carrasco, Heir of the Ernelda Carrasco by his legal guardian, Frank Aragon
(“Carrasco”) (collectively, “Plaintiffs”).
The
Court SUSTAINS the demurrer to the third claim WITHOUT LEAVE TO AMEND.
The
Court SUSTAINS the demurrer to the remaining claims WITH LEAVE TO AMEND. Plaintiff may amend the complaint within 20
days.
This is a mortgage case. The following facts are taken from
the allegations of the Complaint, which the Court accepts as true for the
purposes of the demurrer.
On February 6, 2018, Ernelda Carrasco (the “Borrower”)
executed a deed of trust (the “Deed of Trust”) recorded against the real
property located at 3647-3649 E. 4th Street, Los Angeles, CA (the “Property”).
The loan was thereafter assigned to Defendant PHH.
The Property subsequently passed through a number of owners.
Plaintiffs allege that the Roseann Oregon Gomez Living Trust (the “Trust”) now
holds title to the Property. Plaintiff Aragon is the trustee of the Trust.
Plaintiffs filed this action on October 11, 2024, raising
claims for (1) wrongful foreclosure; (2) quiet title; (3) accounting; (4)
unfair competition; (5) breach of contract; (6) violation of Real Estate
Settlement and Procedures Act (“RESPA”); (7) fraud; (8) fraudulent business
practices and accounting; and (9) injunctive relief.
On January 7, 2025, Moving Defendants demurred to the
Complaint. Plaintiffs filed an opposition and Moving Defendants filed a reply.
The Court grants Moving Defendants’ request for judicial
notice and takes notice of the submitted deeds of trust filed with the Los
Angeles County Recorder’s Office as public records.
“The party against whom a complaint or cross-complaint has
been filed may object, by demurrer or answer as provided in Section 430.30, to
the pleading on any one or more of the following grounds:
(a) The court has
no jurisdiction of the subject of the cause of action alleged in the pleading.
(b) The person who filed the pleading does not have the
legal capacity to sue.
(c) There is
another action pending between the same parties on the same cause of action.
(d) There is a defect or misjoinder of parties.
(e) The pleading does not state facts sufficient to
constitute a cause of action.
(f) The pleading is
uncertain. As used in this subdivision, “uncertain” includes ambiguous and
unintelligible.
(g) In an action
founded upon a contract, it cannot be ascertained from the pleading whether the
contract is written, is oral, or is implied by conduct.
(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
As a general matter, in a demurrer proceeding, the defects
must be apparent on the face of the pleading or via proper judicial
notice. (Donabedian v. Mercury Ins.
Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading
alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants,
Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) The court assumes the truth
of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where a demurrer is sustained, leave to amend must be
allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335,
348.) The burden is on the plaintiff to show the court that a pleading can be
amended successfully. (Ibid.;
Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f
there is any reasonable possibility that the plaintiff can state a good cause
of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist.
(1969) 70 Cal.2d 240, 245).
Plaintiffs admit that a number of their claims are not
properly pleaded and request leave to amend so that they can cure the defects.
“The elements of a wrongful foreclosure cause of action are:
(1) The 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.” (Citrus El Dorado, LLC v. Chicago Title Co. (2019)
32 Cal.App.5th 943, 948, quotation marks and brackets omitted.)
Plaintiffs admit in their opposition that this claim is
premature because a foreclosure sale has not yet taken place. Plaintiffs
contend that a foreclosure sale was scheduled to take place on February 5,
2025.
The Court sustains the demurrer to this claim with leave to
amend.
An action for quiet title seeks “to establish title against
adverse claims to real or personal property or any interest therein.” (Code
Civ. Proc., § 760.020, subd. (a).) In an action for quiet title, 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.” (Code Civ. Proc., §
761.020.)
Plaintiffs state that they agree to dismiss this claim
without prejudice.
The Court sustains the demurrer to this claim with leave to
amend.
“A cause of action for an accounting requires a showing that
a relationship exists between the plaintiff and defendant that requires an
accounting, and that some balance is due the plaintiff that can only be
ascertained by an accounting. An action for accounting is not available where
the plaintiff alleges the right to recover a sum certain or a sum that can be
made certain by calculation.” (Teselle v.
McLoughlin (2009) 173 Cal.App.4th 156, 179, citations and paragraph break
omitted.)
Plaintiffs allege that PHH failed to provide Aragon with a
full accounting of the total indebtedness under the Deed of Trust. (Complaint ¶
39.) But this is the amount owed by Plaintiffs, and not to
Plaintiffs, and is therefore not an appropriate subject for an accounting
claim.
The Court therefore sustains the demurrer to this claim
without leave to amend.
Moving Defendants contend that Plaintiffs have not stated an
injury and that this claim rises and falls with Plaintiffs’ other claims.
Plaintiffs argue that this claim survives because their fifth, sixth, seventh,
and eighth claims state injuries.
Because the Court sustains the demurrer to the other claims
with leave to amend, the Court sustains the demurrer to this claim with leave
to amend.
Moving Defendants argue that Plaintiffs have not alleged
that they are successors in interest to the underlying contract between PHH and
the Borrower. Moving Defendants argue that Plaintiffs further have not alleged
damages.
Plaintiffs argue that they have alleged that they are a
successor in interest to the Deed of Trust.
Here, Plaintiffs have alleged that title to the Property has
been passed to them. Plaintiffs have alleged that PHH charged a number of
improper fees, including late or default-related fees while payments were
deferred. Plaintiffs allege that PHH failed to provide information to Roseann
Gomez that made it impossible for her to pay off the indebtedness. Plaintiffs
allege that PHH has failed to procure property insurance on the Property.
However, these allegations are conclusory, and do not state facts explaining
what, exactly, PHH did.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiffs do not allege in the Complaint what provision of
RESPA PHH violated. Plaintiff only alleges that PHH failed to provide proper
communication and notice to the Trust.
Plaintiffs do not provide clarification or explanation in
the opposition, either. Rather, they simply quote the purpose of RESPA from 12
U.S.C. § 2601 without elaboration.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiffs state that this claim will be clarified if they
are granted leave to amend.
The Court sustains the demurrer to this claim with leave to
amend.
Plaintiffs state that this claim will be clarified if they
are granted leave to amend.
The Court sustains the demurrer to this claim with leave to
amend.