Judge: Malcolm Mackey, Case: 22STCV05079, Date: 2022-09-01 Tentative Ruling
Case Number: 22STCV05079 Hearing Date: September 1, 2022 Dept: 55
SHETTY
v.
BLOCK 22STCV05079
Hearing Date: 9/1/22,
Dept. 55
#12: DEMURRER
TO COMPLAINT. MOTION TO STRIKE.
Notice: Okay
No
Opposition
MP:
Defendants JACK EMREK and SUE EMREK,
individually and as Trustees of the EMREK FAMILY TRUST.
RP:
Summary
On 2/9/22, Plaintiff NIKI-ALEXANDER SHETTY et al
filed a Complaint alleging: The EMREK defendants purported to retain a security
interest in Plaintiffs’ home, when the security interest and loan documents that
Plaintiff ADINA ZAHARESCU signed with NEW HAVEN FINANCIAL, INC., was to finance
the acquisition of a Chatsworth Property.
The security interest was based on forged changes in
the Note and Deed of Trust that she executed on December 29, 2005, as part of
the loan documents for the Chatsworth Property transaction, which never closed
with NEW HAVEN, but instead with another lender. On or about July 7, 2008, timely, within
three years from the date of the original transaction, Plaintiffs sent a
recission demand, pursuant to the Truth in Lending Act. Defendant THOMAS
BLOCK obtained an assignment of the
altered and forged Deed of Trust from Defendant SUE EMREK, as trustee of the
EMREK FAMILY TRUST, recorded on 7/7/11. The
Deed of Trust was rendered void by Plaintiff’s rescission, and the note was
rendered unsecured. Block has been
foreclosing on plaintiffs’ home pursuant to the altered, forged Note and Deed
of Trust, with a trustee’s sale date of February 22, 2022.
The causes of action are:
1. WRONGFUL FORECLOSURE;
2. QUIET TITLE;
3. CANCELLATION OF
INSTRUMENT;
4. DECLARATORY RELIEF;
5. VIOLATION OF
REGULATION Z OF THE TRUTH IN LENDING ACT;
6. FRAUD;
7. ACCOUNTING;
8. VIOLATION OF THE
UNFAIR BUSINESS PRACTICES ACT.
MP
Positions
Moving party requests an order sustaining the demurrer
to the Fifth and Sixth Causes of Action of the Complaint, and granting the
motion to strike overly broad references to "Defendants" and punitive
damages as to the Fifth and Sixth causes of action, on grounds including the
following:
·
Statute of Limitations-- Fifth Cause of Action for Violation of the
Truth In Lending Act, and Sixth Cause of Action for Fraud: The statute of limitations bars plaintiffs,
who allegedly knew of such causes of action more than ten years prior to filing
this action, from before pursuing these causes of action.
·
As of 2011 when the Emreks assigned the
subject deed of trust to Defendant Block, Plaintiffs were on notice of the
allegedly fraudulent note and deed of trust, and the Emreks are no longer
involved in seeking to enforce as they no longer have an interest in the deed
of trust or promissory note.
·
Uncertainty-- Sixth Cause of Action for
Fraud: There are insufficient facts
alleged as to the Emreks to establish liability for fraud.
·
Motion to Strike: The Emreks no longer had any control of the
subject documents, any interest in the subject property and have not taken any
action to enforce said documents.
Tentative
Ruling
The unopposed demurrer is sustained, based upon all of
its page numbers.
The unopposed motion to strike is granted, for the
reasons stated.
Twenty days’ leave to amend.
The failure to file a proper and timely opposition in
trial court creates a waiver of the issues on any appeal. Bell v. Am. Title Ins. Co. (1991) 226
Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683,
693 (appellate court will not consider
any erroneous rulings where an objection could have been made).
A judge in a civil case is not "'obligated to
seek out theories [a party] might have advanced, or to articulate … that which
… [a party] has left unspoken.'" Mesecher
v.
In order to obtain leave to amend, complainants must
state how the allegations would be amended in order to state a cause of
action. Drum v. San Fernando Valley
Bar Ass'n (2010) 182 Cal.App.4th
247, 253.
However, courts generally allow at least one time to
amend a complaint, after sustaining a demurrer, even without any request for
leave to amend. McDonald v. Sup.
Alternatively, the matter should be ordered off
calendar, if the complainant voluntarily has filed an amended pleading by the hearing time.
The filing of an amended complaint pursuant to Code of
Civil Procedure Section 472 renders moot a demurrer addressing the superseded
pleading because it "'"ceases to perform any function as a
pleading."'" Sylmar Air
Conditioning v.
Finally, as to demurrer rulings, statements of
decision may consist of references to appropriate page numbers and
paragraphs. CCP §472d.