Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23STCV06014, Date: 2025-06-03 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23STCV06014, Date: 2025-06-03 Tentative Ruling

Case Number: 23STCV06014 Hearing Date: June 3, 2025 Dept: N

REASONING

Request for Judicial Notice

Defendants Vladimir Valsky, Val Serebryany, as trustee of the Serebryany Family Trust, and

VIG Private Lending, Inc. (“Defendants”) requests judicial notice of the recorded instruments

attached to the declaration of Barton E. DeBolt. Defendants’ request is GRANTED pursuant to

Evidence Code section 452, subdivision (c).

First Cause of Action: Breach of Contract

To state a cause of action for breach of contract, Plaintiff The Tash Family Trust, dated

November 20, 2014, Raymond Tash, Trustee (“Plaintiff”) must be able to establish “(1) the

existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3)

defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v.

Goldman (2011) 51 Cal.4th 811, 821.)

Plaintiff alleges that, in early 2023, it entered into a contract with Defendants to postpone the

foreclosure sale, for agreed-to consideration, which was paid by Plaintiff, but Defendants

breached the agreement by conducting the foreclosure sale. (Third Am. Compl. ¶¶ 24-25.)

Plaintiff previously referred to papers that were signed in February 2023 to postpone the sale

(Second Am. Compl. ¶ 13), but Plaintiff now appears to assert that the agreement was an oral

agreement between the parties (Third Am. Compl. ¶ 13). As the Court has previously stated, “[a]

mortgage or deed of trust [] comes within the statute of frauds,” as does “[a]n agreement to

modify a contract that is subject to the statute of frauds,” such as a loan modification agreement

or agreement to postpone a sale, and such agreements must be in writing to be valid. (Secrest v.

Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552, 553.) Plaintiff

argues that Civil Code section 2924g, subdivision (c)(1)(C), allows a sale to be postponed by

oral agreement (see Third Am. Compl. ¶ 16), but this does not preclude the requirement that for

an agreement to postpone to be enforceable by one party, it must be in writing. Plaintiff also

alleges that it complied with the three requirements for the sale to be postponed; specifically,

Raymond Tash provided documentation that the property taxes were current, he paid Defendant

Valsky the $7,500 extension fee in cash, and he began making payments on the First Bridge

mortgage, which had just been extended. (Third Am. Compl. ¶ 14.) The Court previously stated

that there may a basis to estop Defendants from asserting the statute of frauds, i.e., Plaintiff may

have performed under the agreement (see Secrest v. Security National Mortgage Loan Trust

2002-2, supra, 167 Cal.App.4th at p. 555), but Plaintiff asserts only payment of funds, and it is

well established that “[t]he payment of money is not sufficient part performance to take an oral

agreement out of the statute of frauds, for the party paying money under an invalid contract has

an adequate remedy at law,” and a party can only invoke estoppel where there would be an

“unjust and unconscionable loss.” (Id. at pp. 555-556.) It is not alleged that Plaintiff changed his

position in any way in reliance on the agreement except for payment of funds and providing

documentation of such, and Plaintiff has an adequate remedy at law for recovery of such

payment, such that there is no basis to conclude the statute of frauds does not apply here.

Plaintiff has filed an “opposition” to the demurrer seeking to amend the pleading based on new

facts. This is not a proper request, as Plaintiff refers to facts which are not subject to judicial

notice or apparent on the face of the pleading, Plaintiff has not made a noticed motion for leave

to amend under Code of Civil Procedure section 473, subdivision (a)(1), and the request does not

comply with the requirements of such a noticed motion under rule 3.1324 of the California Rules

of Court. Moreover, the arguments made in the opposition do not compel a different conclusion

than what the Court has stated above. Given that the Court has provided Plaintiff several

opportunities to amend this claim and it has failed to do so, Defendants’ demurrer to the first

cause of action is SUSTAINED without leave to amend.

Second Cause of Action: Fraud

“The elements of fraud are (a) a misrepresentation (false representation, concealment, or

nondisclosure); (b) scienter or knowledge of its falsity; (c) intent to induce reliance; (d)

justifiable reliance; and (e) resulting damage.” (Hinesley v. Oakshade Town Ctr. (2005) 135

Cal.App.4th 289, 294.) The facts constituting the alleged fraud must be alleged factually and

specifically as to every element of fraud, as the policy of “liberal construction” of the pleadings

will not ordinarily be invoked. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) To

properly allege fraud against a corporation, the plaintiffs must plead the names of the persons

allegedly making the false representations, their authority to speak, to whom they spoke, what

they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co.

(1991) 2 Cal.App.4th 153, 157.)

Plaintiff alleges that an agreement was reached that refinancing would occur as to the subject

property, but Defendants foreclosed on the property, and Defendants’ conduct had been intended

to induce Plaintiff to enter into agreements with no intention to perform. (Third Am. Compl. ¶¶

28-34.) Plaintiff fails to provide any specific facts about the representations made to him, i.e.,

there is no information as to who said what, when that person spoke, the authority to speak, and

the nature by which representations were made. The nature of Defendants’ intention that Plaintiff

rely is also unclear. This claim also suffers from the same issues regarding the statute of frauds

as stated above. Thus, Defendants’ demurrer to the first cause of action is also SUSTAINED

without leave to amend.

Third Cause of Action: Wrongful Foreclosure

“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.)

Plaintiff asserts wrongful foreclosure based on the conduct alleged in the prior two causes of

action, specifically the representations that the foreclosure sale would be postponed, but it was

not. (Third Am. Compl. ¶ 38.) As with Plaintiff’s other claims, the purported agreement to

postpone is subject to the statute of frauds, and Plaintiff has not sufficiently set forth the

representations made to him or contract between Plaintiff and Defendants. Accordingly,

Defendants’ demurrer to the third cause of action is also SUSTAINED without leave to amend.

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