Judge: Maurice A. Leiter, Case: 23STCV18782, Date: 2023-12-04 Tentative Ruling

Case Number: 23STCV18782    Hearing Date: December 4, 2023    Dept: 54

Hearing Date: December 4, 2023

Department 54, Judge Maurice A. Leiter

Demurrer to Complaint

Moving Party: Defendants Bank of America, N.A., et al.

Responding Party: None

T/R:      DEFENDANTS’ DEMURRER IS SUSTAINED WITHOUT LEAVE TO AMEND.

DEFENDANTS 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 August 8, 2023, Plaintiff Curtis Randolph sued Defendant Bank of America, N.A., and others, asserting causes of action for (1) conversion; (2) unjust enrichment; (3) UCL violations; and (4) negligent misrepresentation. Plaintiff alleges the Note and/or Deed of Trust for Plaintiff’s mortgage loan hid the “actual lender;” the loan was improperly assigned; and the loan was improperly placed into a securitized trust pool.

REQUEST FOR JUDICIAL NOTICE

Defendants’ 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.)

Defendant demurs to the complaint on the grounds that it is barred by res judicata and the statute of limitations and that it fails to state sufficient facts.

A demurrer lies where the dates alleged in the complaint show “clearly and affirmatively” that the action is barred by a statute of limitations.  It is not enough that the complaint shows that the action may be barred.  (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.)  The statute of limitations begins to run when the cause of action “accrues.”  (CCP § 312.) A cause of action “accrues” when, under the substantive law, the wrongful act is done or the wrongful result occurs, and the consequent liability arises.  (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.)  That is, a cause of action accrues “upon the occurrence of the last element essential to the cause of action.”  (Howard Jarvis Taxpayers Ass’n v. City of La Habra (2001) 25 Cal.4th 809, 815.) 

The statute of limitations for Plaintiff’s conversion cause of action is three years. (Code of Civ. Proc. § 338(c).) The statute of limitations for unjust enrichment is three years. (Code of Civ. Proc. § 338(d).) The statute of limitations for a violation of Bus. & Prof. Code § 17200 is four years. (Bus. & Prof. Code § 17208.) Lastly, the statute of limitations for negligent misrepresentation is three years. (Code of Civ. Proc. § 338(d).)

Plaintiff alleges the fraudulent Deed of Trust was recorded in 2011. Plaintiff’s home was foreclosed on and sold on March 28, 2019. Plaintiff filed this lawsuit more than four years later, on August 8, 2023. Plaintiff’s complaint is barred on its face by statute of limitations. The Court need not address the remaining arguments.

Defendants’ demurrer is SUSTAINED without leave to amend. As the complaint is barred, it cannot be remedied by amendment. Additionally, Plaintiff has failed to oppose this motion to request leave for amend.