Judge: Nick A. Dourbetas, Case: 2020-01137118, Date: 2022-09-30 Tentative Ruling
1. Motion to Consolidate for Purposes of Trial
2. Motion for SLAPP
3. Demurrer to Amended Complaint
4. Demurrer to Amended Complaint
Motion to Consolidate:
Plaintiff Pam Ragland’s motion to consolidate the instant action with Case No. 2021-01229478 is DENIED. (Code Civ. Proc., 1048, subd. (a) [authorizing consolidation]; Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511 [court’s discretion re: consolidation].) The appeal in Case No. 2021-01229478 is apparently in its very early stages; consolidation at this point would complicate and delay matters further.
Defendants Alexander Allen and Sunyata, LLC, shall give notice.
Special Motion to Strike:
The special motion to strike by defendants Wells Fargo Bank, National Association as Trustee for Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2006-OPT1, Ocwen Loan Servicing, LLC, PHH Mortgage Corporation, and specially appearing defendants Wells Fargo Bank, N.A. and Ocwen Financial Corporation, is DENIED. (Code Civ. Proc., § 425.16, subd. (f) [60 days to file anti-SLAPP motion]; Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645 [statutory time limit “should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier”]; Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1187-1188 [no abuse of discretion denying late anti-SLAPP motion; “overarching objective of the anti–SLAPP statute is ‘to prevent and deter’ lawsuits chilling speech and petition rights … A late anti–SLAPP motion cannot fulfill the statutory purpose if it is not brought until after the parties have incurred substantial expense”].)
The court finds that the motion is untimely, coming after over two years of litigation, including prior pleading challenges and other motions, and directed to causes of action which were pled in prior versions of plaintiff’s complaint. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, supra at 640 [late anti-SLAPP motion denied where case had been pending for two years with numerous motions, including defendants demurrers and motions to strike directed to the prior pleadings, without previously filing an anti-SLAPP motion].) The court declines to exercise its discretion to hear the motion despite its admitted untimeliness, as moving parties provide no evidence that the statutory purposes of early resolution would be met. (Hewlett-Packard Co. v. Oracle Corp., supra at 1187-1188.)
On its own motion, the court takes judicial notice of the following minute orders evidencing defendants’ prior pleading challenges and other motions: 3-5-21 (ROA 253), 8-13-21 (ROA 412), 10-13-21 (ROA 466), 12-3-21 (ROA 516). (Evid. Code, § 452, subd. (d) [judicial notice of court records].)
Moving parties’ request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d) [judicial notice of court records]; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [judicial notice of the recordation and legal effect of recorded documents].) As to Exs. 1-11, the court takes judicial notice of the fact that the documents were recorded, but not of the truth of their contents. (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) As to Exs. 12 and 13, the court takes judicial notice of the fact that the documents were filed, but not of the truth of their contents. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.)
As the motion is denied on timeliness grounds, there is no need for the court to address plaintiff’s request for judicial notice. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 [court is not required to take judicial notice of irrelevant documents].)
For the same reasons, there is no need to address the fact that plaintiff’s documents were untimely, nor moving defendants’ evidentiary objections to plaintiff’s evidence.
Plaintiff shall give notice.
Demurrer to Third Amended Complaint (Allen/Sunyata):
Defendants Alexander Allen and Sunyata, LLC’s demurrer to the 12th cause of action for quiet title in plaintiff Pam Ragland’s Third Amended Complaint [TAC] is OVERRULED. (Code Civ. Proc., § 430.10, subd. (e) [authorizing demurrer].)
Moving defendants shall file an Answer to the TAC within 15 days.
Moving parties’ demurrer is based on authorities precluding adverse possession claims by a tenant under a lease; however, the TAC alleges the property covers two parcels, and that the lease does not apply to the back parcel to which plaintiff claims adverse possession. (TAC, ¶¶ 24, 27, 37, 77-89, 373, 447, 451.)
Defendant’s request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d) [judicial notice of court records].) As to Ex. 1, the court takes judicial notice of the fact that the documents were filed, but not of the truth of their contents. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.)
Plaintiff’s request for judicial notice is GRANTED as to Exs. 1 and 2 Evid. Code § 452, subd. (d) [court records]), and DENIED as to Ex. 3, which is irrelevant to the instant demurrer. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 [court is not required to take judicial notice of irrelevant documents].)
The court exercises its discretion to consider both parties’ pleadings, despite timeliness concerns. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 698 [response on merits can waive service defect even if timeliness objection raised, absent request for continuance and/or showing of prejudice].) However, the court observes that both parties have previously failed to adhere to statutory deadlines, and that further late papers may not be considered.
Plaintiff Pam Ragland shall give notice.
Demurrer to Third Amended Complaint (Bank defendants):
Defendants Wells Fargo Bank, National Association as Trustee for Structured Asset Securities Corporation, Mortgage Pass-Through Certificates, Series 2006-OPT1, Ocwen Loan Servicing, LLC, and PHH Mortgage Corporation’s demurrer to plaintiff’s Third Amended Complaint [TAC] is SUSTAINED as to the third cause of action for fraud, with a final opportunity to amend, and otherwise OVERRULED. (Code Civ. Proc., 430.10 [authorizing demurrer].)
Moving defendants’ request for judicial notice is GRANTED as to Exs. 1-11, limited to the fact that the documents were recorded, but not of the truth of their contents. (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) Moving defendants’ request for judicial notice is GRANTED as to Exs. 12-14. (Evid. Code, § 452, subd. (d) [court records].) As to Ex. 14, judicial notice is limited to the fact that the document was filed, but not of the truth of its contents. (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7.)
Plaintiff’s request for judicial notice is GRANTED as to Exs. 2, 5, 6, and 8-12. (Evid. Code, § 452, subd. (d) [court records].) The remainder of plaintiff’s request for judicial notice is DENIED. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 889 [while judicial notice may be taken of the existence of government websites, “the same is not true of their factual content … we know of no ‘official Web site’ provision for judicial notice in California”]; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 295 [court need not take judicial notice of irrelevant documents].)
Plaintiff’s declaration in support of the Opposition (ROA 733) was not considered. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [extrinsic evidence not properly subject to judicial notice may not be considered on demurrer].) As plaintiff’s declaration was not considered, there is no need to address moving parties’ evidentiary objections thereto (ROA 779).
The court otherwise exercises its discretion to consider plaintiff’s untimely Opposition papers in connection with this motion.
Moving parties shall give notice.
Demurrer to entire TAC:
Defendants Wells Fargo Bank, N.A. and Ocwen Financial Corporation’s demurer to the entire TAC on grounds of misjoinder of parties (Code Civ. Proc., § 430.10, subd. (d)), is OVERRULED. The demurrer relies on moving defendants’ request for judicial notice of recorded documents; however, as noted above, judicial notice is limited to the fact of recordation.
3rd cause of action: Fraud
This cause of action fails as to the element of detrimental reliance. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [elements; specific pleading required]; Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 [same].)
This cause of action is based on (1) moving parties’ allegedly lacking standing to evict, due to defects and alleged forgeries in the chain of title (TAC, ¶¶ 588(a)-588(z), 594, 595, 600-603); (2) Wells Fargo filing a Substitution of Attorney form in a prior UD action, signed by “Jason Risk,” who is allegedly an employee of Ocwen, not Wells Fargo (¶¶ 591, 592); (3) making allegedly false statements in UD pleadings (¶¶ 604-608); and (4) the trust was closed so Trustee is a “dead entity” and has no rights and the assignments are void (¶ 611).
While the TAC cites authority regarding reliance (¶ 617), the TAC does not allege any facts as to how plaintiff detrimentally relied on MPs’ purported false assertions of entitlement to evict, or the other allegedly false representations made in the prior UD actions. In fact, the TAC alleges otherwise, and that plaintiff defeated the prior UD actions in part on this basis. (TAC ¶¶ 52-56, 238, 244-255.) The fact that plaintiff incurred attorney fees defending the UD actions (TAC, ¶¶ 610, 621), or spent money on repairs to the property (TAC, passim), while they may constitute damages generally, are not alleged to have been spent in reliance on defendants’ purported representations.
Further, this cause of action is time-barred, as the TAC alleges facts indicating plaintiff knew in 2014 that moving defendants did not have duly perfected title and thus lacked the ability to evict. (TAC, ¶¶ 572, 588, 595-596, 600, 609, 618-622; Code Civ. Proc., § 338, subd. (d) [three-year statute of limitations].)
While the TAC attempts to allege delayed discovery (¶ 590), plaintiff’s conclusory allegations on this point are contradicted by her other extensive allegations disputing MPs’ entitlement to evict, as set forth above. (See Gentry v. Ebay, Inc. (2002) 99 Cal.App.4th 816, 827 [specific factual allegations control over inconsistent general or conclusory allegations].)
Finally, plaintiff’s Opposition argues this claim is timely pursuant to the continuing violation doctrine. However, the TAC does not allege the continuing violation doctrine, nor allege any facts supporting its application here. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 [doctrine requires a course of conduct or actions which are “sufficiently similar in kind,” “have occurred with reasonable frequency”, and “have not acquired a degree of permanence”].)
12th cause of action: Quiet Title
Moving parties cite authorities precluding adverse possession claims by a tenant under a lease; however, the TAC alleges the property covers two parcels, and that the lease does not apply to the back parcel to which plaintiff claims adverse possession. (TAC, ¶¶ 24, 27, 37, 77-89, 373, 447, 451.)
Leave to amend.
Plaintiff is granted 15 days leave to amend the fraud cause of action.
Moving parties shall give notice.