Judge: Randy Rhodes, Case: 22CHCV00171, Date: 2023-02-28 Tentative Ruling
Case Number: 22CHCV00171 Hearing Date: February 28, 2023 Dept: F51
Dept. F-51¿¿
Date: 2/28/23¿
Case #22CHCV00171
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DEMURRER
WITH MOTION TO STRIKE
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Demurrer Filed: 12/14/22¿
Motion to Strike Filed:
12/15/22
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MOVING PARTY: Defendants
Select Portfolio Servicing, Inc.; Chase Mortgage Holdings, Inc.; and Towd Point
Mortgage Trust 2018-5 (collectively, “Defendants”)
RESPONDING PARTY: Plaintiff
Edith K. Augustt, an individual (“Plaintiff”)
NOTICE: OK¿
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RELIEF REQUESTED: Defendants
demur to Plaintiff’s entire first amended complaint (“FAC”). Defendants also
seek an order striking Plaintiff’s first, second, and third causes of action, and
any references to punitive damages and attorney fees.
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TENTATIVE RULING: Defendants’ motion to strike is granted
without leave to amend. The demurrer and request for judicial notice are moot.
BACKGROUND¿
Plaintiff
owns/owned certain real property located at 12436 Longacre Ave, Granada Hills,
California 91344. The home was purchased in 2007 with a $1,399,900 dollar loan
from third party AmeriCorps Funding, who also held the deed of trust. The loan
and/or deed of trust were subsequently transferred to defendant Chase Mortgage
Holdings, Inc. (“Chase”), though Plaintiff denies the existence of any recorded
substitution of trustee, though represents the transfer occurred on 9/7/11. On 8/26/13,
Plaintiff and Chase executed a loan modification agreement, whereby the loan
was divided into two. One loan listed a principal balance of $766,000, with a
second “deferred interest” loan of $576,000 (the balance on the second loan was
due in 2053, but it is unclear when the loan began). The loan and/or deed of
trust were subsequently assigned to defendant Towd Point Mortgage Trust 2018-5
and U.S. Bank, N.A. The loan was subsequently serviced by defendant Select
Portfolio Servicing, Inc.
Plaintiff
subsequently suffered a financial setback, yet continued to make payments.
Plaintiff maintains one or both loans are current. Notwithstanding the
“current” representation, Plaintiff also alleges the variable rate of the
loan(s) led to arrearages, thereby rendering continued payments unaffordable.
On 12/13/21, Plaintiff requested “Loan Subordination,” which was denied on 1/21/22.
Plaintiff paid a $6,144.70 charge for this service and/or as part of a loan
deferment fee.
Plaintiff
alleges both the lack of any properly documented and recorded substitution of
trustee from AmeriCorps to Chase, as well as the improper retention of COVID-19
government relief programs which should have been passed on to Plaintiff in the
form of loan principal forgiveness. Plaintiff also contends the denial was done
in bad faith, and therefore faces potential foreclosure.
On 3/16/22,
Plaintiff, in pro per, filed a complaint against Defendants alleging a sole
cause of action for Declaratory Judgment. On 8/1/22, the Court sustained
Defendants’ unopposed demurrer to Plaintiff’s original complaint with 45 days
leave to amend.
On 9/30/22,
Plaintiff, now represented by counsel, filed her FAC, alleging against
Defendants the following causes of action: (1) Violation of the Covenant of
Good Faith and Fair Dealing; (2) Violation of Business and Professions Code §§
17200 et seq. and 17500 et seq.; and (3) Cancellation of Written Instruments.
On 12/14/22,
Defendants filed the instant demurrer and request for judicial notice. On
12/15/22, Defendants filed the instant motion to strike. On 2/17/23, Plaintiff
filed her opposition to the demurrer. On 2/21/23, Defendants filed their reply.
MOTION TO STRIKE¿
The court may, upon a motion, or at any
time in its discretion, and upon terms it deems proper, strike any irrelevant,
false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436,
subd. (a).) The court may also strike all or any part of any pleading not drawn
or filed in conformity with the laws of this state, a court rule, or an order
of the court. (Id., § 436, subd. (b).) The grounds for moving to strike must appear on the
face of the pleading or by way of judicial notice. (Id., §
437.) Here, Defendants move to strike all the causes of action in
Plaintiff’s FAC, and provisions of the FAC relating to punitive damages and
attorney fees.
Meet and
Confer
“Before
filing a motion to strike pursuant to this chapter, the moving party shall meet
and confer in person or by telephone with the party who filed the pleading that
is subject to the motion to strike for the purpose of determining if an
agreement can be reached that resolves the objections to be raised in the
motion to strike.” (Code Civ. Proc. § 435.5, subd. (a).) The parties are
required to meet and confer at least five days before the date a motion to
strike must be filed, otherwise the moving party is granted a 30-day extension
to file the motion. (Ibid.)
Here,
counsel for Defendants declares that on 12/9/22, he spoke with Plaintiff’s
attorney regarding the issues raised in the instant demurrer and motion to
strike, but the parties were unable to reach an agreement. (Decl. of Steven
Dailey, ¶ 2.) Therefore, counsel has satisfied the preliminary meet and confer
requirements of Code of Civil Procedure section 435.5, subdivision (a).
Plaintiff’s Causes of Action
In sustaining Defendants’ previous demurrer with leave to
amend, the Court noted that “the plaintiff may not amend the complaint to add a
new cause of action without having obtained permission to do so, unless the new
cause of action is within the scope of the order granting leave to amend.”
(8/1/22 Minute Order, quoting Harris v. Wachovia Mortgage, FSB (2010)
185 Cal.App.4th 1018, 1023.)
Here, Plaintiff amended her complaint for the sole cause of
action of declaratory relief to add the three causes of action discussed above.
Defendants assert that “Plaintiff did not request, nor receive, permission to
plead the new cause [sic] of action. The three causes of action may be stricken
as improperly added beyond the scope of leave to amend provided.” (Mot. to Strike
3:10–12.) The Court notes that Plaintiff has not filed any opposition to the
motion to strike.
Accordingly, the Court grants Defendants’ motion to strike page 5, line 11, paragraph 32
through page 10, line 20, paragraph 62 of Plaintiff’s FAC, containing
Plaintiff’s first, second, and third causes of action.
Punitive Damages
Punitive damages may be recovered upon a proper showing of
malice, fraud, or oppression by clear and convincing evidence. (Civ. Code §
3294, subd. (a).) “Malice” is defined as conduct intended to cause injury to a
person or despicable conduct carried on with a willful and conscious disregard
for the rights or safety of others. (Turman v. Turning Point of Cent. Cal.,
Inc. (2010) 191 Cal.App.4th 53, 63.) “Oppression” means despicable conduct
subjecting a person to cruel and unjust hardship, in conscious disregard of the
person’s rights. (Ibid.) “Fraud” is an intentional misrepresentation,
deceit, or concealment of a material fact known by defendant, with intent to
deprive a person of property, rights or otherwise cause injury. (Ibid.) Punitive damages must be supported by
factual allegations. Conclusory allegations, devoid of any factual
assertions, are insufficient to support a conclusion that parties acted with
oppression, fraud or malice. (Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1042; Anschutz
Entertainment Group, Inc. v. Snepp (2009) 171
Cal.App.4th 598, 643.)¿
Here, as Defendants argue, Plaintiff has not pleaded any
facts alleging malice, oppression, or fraud warranting punitive damages. (Mot.
to Strike 5:1–2.) Accordingly, the Court grants Defendants’ motion to strike
page 11, line 3, paragraph 5 of Plaintiff’s FAC.
Attorney Fees
An award
of attorney fees is proper when authorized by contract, statute, or law. (Code
Civ. Proc. §§ 1032, subd. (b); 1033.5, subd. (a)(10).) Here, Plaintiff does not assert any contractual, statutory,
or legal basis for her prayer to recover attorney fees. Accordingly,
Defendants’ motion to strike page 11, line 3, paragraph 9 of the complaint pertaining to attorney
fees is granted.
Based on
the above analysis and discussion, the Court grants Defendants’ unopposed
motion to strike in full without leave to amend. Accordingly, the demurrer and
request for judicial notice are moot. The Court notes that this order is made without
prejudice, and Plaintiff may file a properly noticed motion for leave to amend
her original complaint to add new causes of action.
CONCLUSION¿
Defendants’ motion to strike is granted without leave to
amend. The demurrer and request for judicial notice are moot.