Judge: Lynne M. Hobbs, Case: 24STCV05351, Date: 2024-06-11 Tentative Ruling

Case Number: 24STCV05351    Hearing Date: June 11, 2024    Dept: 61

TAUHEEDAH SHAKOOR CURRY vs BARRETT, DAFFIN FRAPPIER TREDER & WEISS, LLP, et al.

TENTATIVE      

Defendant Wells Fargo Bank, N.A.’s Demurrer to the Complaint is SUSTAINED without leave to amend.

Moving party to give notice.  

DISCUSSION 

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.) In particular, as is relevant here, 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) 39 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. [Citation.]”)  

“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.)

Defendant Wells Fargo Bank, N.A. (Defendant) demurrers to the Complaint of Plaintiff Tauheedah Shakoor Curry (Plaintiff) on the grounds that the alleged violation of a bankruptcy stay beyond the jurisdiction of this court. (Demurrer at pp. 2–3.) Defendant also argues that the Complaint states no basis for relief under state law, other than violation of the stay. (Demurrer at p. 3.)

Defendant is correct that this court lacks jurisdiction over the case. The misconduct alleged in the Complaint consists of conducting a foreclosure sale despite the existence of an automatic bankruptcy stay. (Complaint ¶¶ 16, 20, 23, 29.)

Even if the foreclosure had violated the stay, appellants would have been required to raise that claim in the bankruptcy court. “The bankruptcy court ha[s] jurisdiction over all claims alleging willful violation of the automatic stay.” (In re Davis (9th Cir.BAP 1995) 177 B.R. 907, 912.) The existence of a federal remedy for violation of the stay must be read as an implicit rejection of state court remedies.

(Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.) Plaintiff has filed no opposition to the motion.