Judge: Maurice A. Leiter, Case: 22STCV27246, Date: 2023-02-27 Tentative Ruling

Case Number: 22STCV27246    Hearing Date: February 27, 2023    Dept: 54

Hearing Date: February 27, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to First Amended Complaint

Moving Party: Defendant Specialized Loan Servicing, LLC

Responding Party: None

T/R:    DEFENDANT’S DEMURRER TO THE FIRST AND THIRD CAUSES OF ACTION IS SUSTAINED WITH LEAVE TO AMEND. THE DEMURRER TO THE SECOND CAUSE OF ACTION IS SUSTAINED WITHOUT LEAVE TO AMEND.

PLAINTIFF TO FILE AND SERVE A SECOND AMENDED COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING. DEFENDANT TO FILE AND SERVE A RESPONSE WITHIN 30 DAYS THEREAFTER.

            DEFENDANT to notice. 

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

            The Court considers the moving papers. No opposition has been received.

BACKGROUND

            On November 3, 2022, Plaintiff Luisa P. Reano filed the operative first amended complaint against Defendants Specialized Loan Servicing, LLC, asserting causes of action for intentional misrepresentation, violation of Civ. Code § 2923.5 and injunctive relief. Plaintiff alleges Defendants misrepresented the balance on a second mortgage loan by adding improper fees and charges.

REQUESTS FOR JUDICIAL NOTICE

            Defendant’s request for judicial notice is GRANTED.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. First Cause of Action for Intentional Misrepresentation

The elements of fraud are: “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In California, fraud, including negligent misrepresentation, must be pled with specificity. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)  

Defendant demurs to the first cause of action on the ground that Plaintiff has failed to allege fraud with the requisite specificity. The Court agrees. Plaintiff alleges, “[t]he sum of the second loan mortgage was $118,000.00, in which Defendant Specialized Loan Servicing have raised improper fees and charges, with a total amount now due of $171,000.00, under the second, Deed of Trust executed on September 9, 2005” and “the amounts demanded in the Notice of Default are incorrectly calculated, and includes charges not permitted under the loan document, and is in breach of the loan document.” (FAC ¶ 16, 18.) These allegations are sufficient to support a claim for fraud. Plaintiff has not identified the “improper” fees and charges or stated how they violate the terms of the deed of trust.

Defendant’s demurrer to the first cause of action is SUSTAINED with leave to amend.

B. Second Cause of Action for Violation of Civ. Code § 2923.5 (HBOR)

            Defendant demurs to the second cause of action on the ground that the Homeowner’s Bill of Rights do not apply to second mortgages. Civ. Code § 2924.15(a) provides, …Section 2923.5…shall apply only to a first lien mortgage or deed of trust…” Plaintiff alleges that the subject deed of trust is a second mortgage.

            Defendant’s demurrer to the second cause of action is SUSTAINED without leave to amend.

C. Third Cause of Action for Injunctive Relief

            As Plaintiff has failed to state the substantive causes of action, the cause of action for injunctive relief fails.

            Defendant’s demurrer to the third cause of action is SUSTAINED with leave to amend.