Judge: Mark A. Young, Case: 24SMCV01075, Date: 2024-11-12 Tentative Ruling

Case Number: 24SMCV01075    Hearing Date: November 12, 2024    Dept: M

CASE NAME:             Elmoqaddem v. NewRez LLC, et al. 

CASE NO.:                   24SMCV01075

MOTION:                     Demurrer to the Complaint

HEARING DATE:    11/12/2024

LEGAL STANDARD 

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. 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 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.) 

A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)  

“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.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show¿in what manner¿plaintiff can amend the complaint, and¿how¿that amendment will change the legal effect of the pleading.¿(Id.)

REQUEST FOR JUDICIAL NOTICE 

Defendants Newrez LLC and the Bank of New York Mellon (“Defendants”) requests that the Court take judicial notice of the following supplied documents:  

Exhibit A: Trustee's Deed Upon Sale recorded on June 22, 2023, in the Los Angeles County Recorder's Office;

Exhibit B: First Amended Complaint filed by Plaintiff on September 26, 2022, in Salaheddine Elmoquaddem v. NewRez LLC, et al., in the Superior Court of California, County of Los Angeles, case no. 22SMCV01491 ("Prior Action");

Exhibit C: Second Amended Complaint filed by Plaintiff on January 3, 2023, in Prior Action;

Exhibit D: Minute Order after hearing on Demurrer to Second Amended Complaint entered on May 24, 2023, in Prior Action;

Exhibit E: Notice of Entry of Order Sustaining Defendants' Demurrer to Second Amended Complaint and Order Denying Plaintiff's Motion for Reconsideration filed on March 6, 2024, in Prior Action;

Exhibit F: Schedule A/B filed by Plaintiff on June 13, 2023 in In re Elmoqaddem, in the United States Bankruptcy Court – Eastern District of Michigan, case no. 23-44877; Exhibit G: Schedule A/B filed by Plaintiff on June 30, 2023 in In re Elmoqaddem, in the United States Bankruptcy Court – Eastern District of Michigan, case no. 23-45442.

The supplied documents are all court records and therefore subject to judicial notice. (Evid. Code § 452(d).)

ANALYSIS 

Defendants demur to the entirety of the operative First Amended Complaint (FAC) on res judicata grounds. As set forth below, the court concurs that the elements of res judicata are met.  

The doctrine of res judicata generally precludes parties, or their privies, from relitigating a cause of action determined with finality in a prior proceeding. (Smith v. ExxonMobil Oil Corp. (2007) 153 Cal.App.4th 1407, 1413-14; Wright v. Ripley (1998) 65 Cal.App.4th 1189, 1193.) The doctrine has two aspects: it applies to both a previously litigated cause of action, referred to as claim preclusion, and to an issue necessarily decided in a prior action, referred to as issue preclusion. (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 828.) “[R]es judicata does not merely bar relitigation of identical claims or causes of action. Instead, in its collateral estoppel aspect, the doctrine may also preclude a party to prior litigation from redisputing issues therein decided against him, even when those issues bear on different claims raised in a later case. Moreover, because the estoppel need not be mutual, it is not necessary that the earlier and later proceedings involve the identical parties or their privies. Only the party against whom the doctrine is invoked must be bound by the prior proceeding. [Citations.]” (Ibid.)¿¿¿

“In California the phrase ‘cause of action’ is often used indiscriminately ... to mean counts which state [according to different legal theories] the same cause of action....” (Eichler Homes of San Mateo, Inc. v. Superior Court (1961) 55 Cal.2d 845, 847.) For purposes of applying the doctrine of res judicata, the phrase “cause of action” has a more precise meaning: The cause of action is the right to obtain redress for a harm suffered, regardless of the specific remedy sought or the legal theory (common law or statutory) advanced. (Bay Cities Paving & Grading, Inc. v. Lawyers' Mutual Ins. Co. (1993) 5 Cal.4th 854, 860.) “[T]he ‘cause of action’ is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. [Citation.] Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief. ‘Hence a judgment for the defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though he presents a different legal ground for relief.’ [Citations.]” Thus, under the primary rights theory, the determinative factor is the harm suffered. When two actions involving the same parties seek compensation for the same harm, they generally involve the same primary right. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 798.)¿ 

Both lawsuits arise out of the same general set of facts, Defendants’ nonjudicial foreclosure efforts on the real property located at 2568 Military Ave., Los Angeles, 90064. (FAC ¶ 27.) Defendants are the mortgage brokers and servicers. (FAC ¶¶ 5-11.) According to the FAC, Defendants negligently failed to properly and accurately credit payments made by Plaintiff towards the subject mortgage and preparing/filing false documents. (FAC ¶¶30-48.) Plaintiff seeks a determination of the amounts owed under his mortgage agreement pertaining to this property. (FAC ¶¶ 49-59.) Plaintiff seeks to enforce Defendants’ promise to consider a modification in good faith after the COVID forbearance period. (FAC ¶¶ 60-67.) Ultimately, Plaintiff seeks to quiet title on the subject property. (¶ 84.) In the prior 2022 action, Plaintiff alleged that Defendants made the same promise for a good-faith modification review but failed to fulfill its promise. Plaintiff's current FAC is premised on nearly identical allegations. At the core, Plaintiff’s causes of action asserted in the instant lawsuit rely on the same claim that he was somehow deprived of an opportunity to modify his mortgage. Thus, the actions involve the same primary rights and parties.

Plaintiff's prior claims were adjudicated on the merits, resulting in a final judgment. (RJN, Ex. D.) Thus, Plaintiff is attempting to relitigate a claim that was already decided on the merits.  Accordingly, Defendants’ demurrer is SUSTAINED without leave to amend.