Judge: Melvin D. Sandvig, Case: 23CHCV01204, Date: 2025-02-10 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247.  Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 23CHCV01204    Hearing Date: February 10, 2025    Dept: F47

Dept. F47

Date: 2/10/25

Case #23CHCV01204

 

DEMURRER TO THE SECOND AMENDED COMPLAINT

 

Demurrer filed on 11/12/24.

 

MOVING PARTY: Defendants Loancare, LLC and Lakeview Loan Servicing LLC

RESPONDING PARTY: Plaintiff Kyle A. Perez, Executor of the Estate of Kyle T. Perez

NOTICE: ok

 

Demurrer is to the entire Second Amended Complaint:

            1.  Negligent Misrepresentation

            2.  Intentional Misrepresentation

            3.  Breach of Contract

            4.  Declaratory Relief

            5.  Promissory Estoppel

            6.  Violation of Business & Professions Code 17200

 

RULING: An Order to Show Cause Re Dismissal will be set in approximately 30 days and the hearing on the demurrer will be continued for approximately 90 days, as set forth below.   

 

SUMMARY OF FACTS & PROCEDURAL HISTORY

 

This action arises out of foreclosure proceedings against property located at 9251 Notre Dame Avenue in Chatsworth, California (the Property).  In or about July 2017, Kenneth T. Perez (Borrower) took out a mortgage loan from Skyline Home Loans in the amount of $501,215.00.  (Second Amended Complaint (SAC) ¶16).  In or around August 2018, Borrower executed a Power of Attorney in favor of Plaintiff Kyle A. Perez, Executor of the Estate of Kenneth T. Perez (Plaintiff).  (Id. ¶17).  On 5/26/19, Borrower died.  (Id. ¶18).  By Last Will and Testament of Kenneth T. Perez, Plaintiff was appointed executor of the Estate of Kenneth T. Perez.  Id.  In or around December 2021, Plaintiff alleges that he received a loan modification agreement (2021 Loan Modification Agreement) from Defendant Loancare, LLC (Loancare) executed by Defendant Lakeview Loan Servicing LLC (Lakeview) (collectively, Defendants) stating the first modification payment would be due on 3/1/22 in the amount of $2,514.84 with an interest rate of 3.625%.  (Id. misnumbered ¶10 on p.3:12-16 of the SAC).  Plaintiff alleges that he signed and notarized the 2021 Loan Modification Agreement and returned it to Loancare.  (Id. ¶19).

 

Plaintiff alleges that on or around 1/21/22, he contacted Loancare and spoke to supervisor, Lashea, who stated Loancare did not receive the 2021 Loan Modification Agreement.  (Id. ¶20).  Plaintiff alleges that he re-sent the executed 2021 Loan Modification Agreement to Loancare two more times.  (Id. ¶21).  In or around April 2022, Plaintiff alleges that Loancare rejected the 2021 Loan Modification Agreement due to signatures not matching.  (Id. ¶22).  On or around 4/15/22, Plaintiff re-sent the 2021 Loan Modification Agreement to Loancare with notarized signatures along with two checks for March and April 2022.  (Id. ¶¶23-24).

 

Plaintiff alleges that instead of applying the two payments to the 2021 Loan Modification Agreement, Loancare applied them to the original loan terms.  (Id. ¶25).  Plaintiff contacted Loancare to inquire why the payments were not being applied to the 2021 Loan Modification Agreement and requested that if the payments were not going to be applied to the 2021 Loan Modification Agreement, that they be returned.  (Id. ¶27).  Loancare returned the payments to Plaintiff.  (Id. ¶28).  Between April 2022 and October 2022, Plaintiff alleges that he contacted Loancare regarding the status of the executed 2021 Loan Modification Agreement.  (Id. ¶30).  On or about 10/17/22, Defendant National Default Servicing Corporation (National Default), on behalf of Loancare, recorded a Notice of Default (NOD) against the Property.  (Id. misnumbered ¶11 p.4:18-22 of SAC).  Thereafter, from November 2022 through February 2023, Plaintiff alleges that he spoke to various Loancare agents regarding the 2021 Loan Modification Agreement.  (Id. ¶¶31-36). 

 

On or around 2/9/23, National Default, on behalf of Loancare, recorded a Notice of Trustee’s Sale (NOS) against the Property indicating that Loancare intends to sell the Property.  (Id. misnumbered ¶12 p.5:12-16 of SAC and ¶337). 

 

On 4/26/23, Plaintiff, represented by counsel, filed this action against Loancare, Lakeview and National Default for: (1) Negligent Misrepresentation; (2) Intentional Misrepresentation; (3) Declaratory Relief; (4) Promissory Estoppel and (5) Violation of Business & Professions Code 17200.  After meet and confer efforts failed to resolve issues Defendants had with the complaint, on 7/23/23, Loancare and Lakeview filed (served on 6/30/23) a demurrer to the entire complaint on the ground that each cause of action failed to state sufficient facts to constitute a cause of action.  CCP 430.10(e). Plaintiff opposed the demurrer.  Defendants filed and served a late reply to the demurrer.  On 10/24/23, this Court sustained the demurrer with 30 days leave to amend. 

 

On 11/27/23, Plaintiff, represented by counsel, filed a First Amended Complaint alleging causes of action for: (1) Negligent Misrepresentation, (2) Intentional Misrepresentation, (3) Breach of Contract, (4) Declaratory Relief, (5) Promissory Estoppel and (6) Violation of Business and Professions Code 17200.  After meet and confer efforts failed to resolve the issues Defendants  have with the First Amended Complaint, on 1/19/24 Defendants filed and served a demurrer to the entire First Amended Complaint. 

 

On 3/22/24, Plaintiff’s counsel filed and served a motion to be relieved as counsel.  On 3/27/24, Plaintiff, represented by counsel, Plaintiff opposed the demurrer to the First Amended Complaint.  The Court issued a tentative ruling sustaining the demurrer without leave to amend as to the 1st and 2nd causes of action, overruling the demurrer as to the 3rd, 4th, 5th and 6th causes of action and ordering Defendants to file an answer within 30 days. 

 

However, after arguments at the 4/10/24 hearing on the demurrer, by stipulation of the parties, the entire complaint was to be amended within 30 days and the demurrer was ultimately sustained with 30 days leave to amend.  (See 4/10/24 Minute Order).

 

On 5/9/24, Plaintiff, represented by counsel, filed the subject “Verified Supplemental Second Amended Complaint” again alleging causes of action for: (1) Negligent Misrepresentation, (2) Intentional Misrepresentation, (3) Breach of Contract, (4) Declaratory Relief, (5) Promissory Estoppel and (6) Violation of Business and Professions Code 17200.

 

On 7/26/24, over Plaintiff’s opposition, the Court granted Plaintiff’s counsel’s motion to be relieved as counsel.  After meet and confer efforts with Plaintiff failed to resolve the issues Defendants have with the Second Amended Complaint, on 11/12/24, Defendants filed and served the instant demurrer to the entire Second Amended Complaint.  Plaintiff, who is now unrepresented by counsel, has not opposed or otherwise responded to the demurrer. 

 

ANALYSIS

 

Plaintiff Kyle A. Perez as the Executor of the Estate of Kyle T. Perez may not represent the estate in this action without counsel.  See Estate of Sanchez (2023) 95 CA5th 331, 340-341 citing City of Downey (1968) 263 CA2d 775, 777-783 and Hansen (2003) 114 CA4th 618, 619-620, 622-623.

 

Since there is no evidence in the Court file that Plaintiff is currently represented by counsel, the hearing on the demurrer will be continued to allow Plaintiff to retain counsel to represent him in this action or face dismissal of the action. 

 

CONCLUSION

 

The hearing on the demurrer will be continued approximately 90 days. 

 

The Court will set an Order to Show Cause Re Dismissal (OSC) for Plaintiff’s Failure to Retain Counsel in approximately 30 days.  If Plaintiff retains counsel and files a substitution of attorney before the OSC date, the OSC will be placed off calendar.  If Plaintiff does not retain counsel, Plaintiff must show cause why he is  not required to be represented by counsel in this action and/or why this action should not be dismissed as a result of his failure to retain counsel. 

 

If the action is dismissed at the OSC hearing, the continued hearing date on the demurrer will be advanced and placed off calendar. 

 

If the action is not dismissed, any opposition and reply re the demurrer will be due pursuant to CCP 1005 based on the continued hearing date.