Judge: Marcella O. Mclaughlin, Case: 37-2023-00032892-CU-OR-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Other Real Property Demurrer / Motion to Strike 37-2023-00032892-CU-OR-CTL SALVADOR AVILA SUCCESSOR TRUSTEE OF THE MICHAEL E CROUSE TRUST VS LONGBRIDGE FINANCIAL LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 11/21/2023

The demurrer to the complaint is SUSTAINED with leave to amend.

A. Longbridge Financial's request for judicial notice is granted. Evid. Code § 452(d), (h). However, '[t]aking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.' Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.

B. 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 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. Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561-62. 'The first element – wrongfulness – can be satisfied by a variety of procedural defects, such as noncompliance with the requirements for notice[.]' Ram v. OneWest Bank, FSB (2015) 234 Cal.App.4th 1, 11.

In this case, insufficient facts have been pled showing a procedural defect in the foreclosure process.

Specifically, while plaintiff alleges that the Michael E. Crouse Trust owns the subject property and that he is the successor trustee of the Trust, plaintiff has not alleged that he was the successor trustee of the Trust at the time the notice of default was recorded. (See Complaint at ¶¶ 2, 4.) Only successors in interest 'as of the recording date of the notice of default' are entitled to receive a copy of the notice of default and the notice of sale. Civ. Code § 2924b(c)(2)(A). Thus, as currently pled, the complaint fails to state a claim for wrongful foreclosure based on violation of the notice requirements in Civil Code section 2924b.

C. 'Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.' Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227. Accordingly, plaintiff is granted leave to amend the complaint. Plaintiff must file and serve the FAC by January 22, 2024.

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