Judge: Robert B. Broadbelt, Case: 20STCV43833, Date: 2022-08-24 Tentative Ruling

Case Number: 20STCV43833    Hearing Date: August 24, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Paladar Capital Investments, LP

RESPONDING PARTY:       Unopposed

(1)   Demurrer to First Amended Complaint

MOVING PARTY:                Defendants Gregory Funding, LLC and Ajax Mortgage Loan Trust 2018-G, Mortgage-Backed Securities, Series 2018-G, by US Bank National Association as indenture trustee

RESPONDING PARTY:       Unopposed

(2)   Demurrer to First Amended Complaint

MOVING PARTY:                Defendant Wells Fargo Bank, N.A.

RESPONDING PARTY:       Plaintiff Felisa Dee Richards

(3)   Demurrer to First Amended Complaint

The court considered the moving papers filed in connection with the demurrers filed by defendants Paladar Capital Investments, LP, and defendants Gregory Funding, LLC, and Ajax Mortgage Loan Trust.  No oppositions to these demurrers were filed.  The court considered the moving, opposition, and reply papers filed in connection with Wells Fargo’s demurrer.

BACKGROUND

Plaintiff Felisa Dee Richards (“Plaintiff”) filed this wrongful foreclosure action on November 17, 2020.  Plaintiff filed the operative First Amended Complaint on December 10, 2021, against defendants Gregory Funding LLC; Affinia Default Services, LLC; Ajax Mortgage Loan Trust 2018-G, Mortgage-Backed Securities, Series 2018-G, by U.S. Bank National Association as indenture trustee; Wells Fargo Bank, N.A.; and Paladar Capital Investments, LP.  Plaintiff’s First Amended Complaint asserts 23 causes of action, including claims for wrongful foreclosure, fraud, emotional distress, and violations of the California Homeowners’ Bill of Rights and the Fair Debt Collection Practices Act.

Three sets of demurrers are pending before the court.  First, defendant Paladar Capital Investments, LP (“Paladar”) filed a demurrer to Plaintiff’s first through twenty-third causes of action.  Second, defendants Gregory Funding LLC (“Gregory Funding”) and Ajax Mortgage Loan Trust 2018-G, Mortgage-Backed Securities, Series 2018-G, by US Bank National Association, as indenture trustee (“Ajax”) (collectively, “Lender Defendants”) filed a demurrer to Plaintiff’s first through twenty-third causes of action.  Finally, defendant Wells Fargo Bank, NA (“Wells Fargo”) filed a demurrer to Plaintiff’s first through twenty-third causes of action.

REQUEST FOR JUDICIAL NOTICE

The court grants Paladar’s request for judicial notice.  (Evid. Code, § 452, subd. (d).)

The court grants Lender Defendant’s request for judicial notice.  (Evid. Code, § 452, subds. (c), (d).)

The court grants Wells Fargo’s request for judicial notice.  (Evid. Code, § 452, subds. (c), (d).)

DEMURRER FILED BY DEFENDANT PALADAR

The court overrules Paladar’s demurrer to Plaintiff’s First Amended Complaint on the ground that it is uncertain because the First Amended Complaint is not ambiguous or unintelligible as to Paladar.  (Code Civ. Proc., § 430.10, subd. (f).)

The court overrules Paladar’s demurrer to Plaintiff’s first cause of action for fraud in the inducement because it is asserted only against defendant Wells Fargo.

The court sustains Paladar’s demurrer to Plaintiff’s second cause of action for reasonable reliance and detrimental reliance because it does not state facts sufficient to constitute a cause of action against Paladar since Plaintiff fails to allege that Paladar made any misrepresentations on which Plaintiff relied and because the elements of reasonable reliance and detrimental reliance, alone, do not constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Paladar’s demurrer to Plaintiff’s third cause of action for equitable cancellation of assignment, substitution of trustee, notice of default, and notice of sale because it does not state facts sufficient to constitute a cause of action against Paladar since Plaintiff fails to allege wrongful conduct on the part of Paladar.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Paladar’s demurrer to Plaintiff’s fourth, fifth, and sixth causes of action because these causes of action are not asserted against Paladar, and instead are alleged against lender defendants Wells Fargo, Ajax, and Gregory Funding. 

The court sustains Paladar’s demurrer to Plaintiff’s seventh cause of action for intentional and negligent infliction of emotional distress because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to allege (1) as to her claim for intentional infliction of emotional distress, extreme and outrageous conduct by Paladar with the intent of causing, or reckless disregard of the probability of causing, emotional distress, and (2) as to her claim for negligent infliction of emotional distress, that Paladar owed Plaintiff a duty, breached that duty, and that its breach caused Plaintiff emotional distress.  (Code Civ. Proc., § 430.10, subd. (e); Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [elements of claim for intentional infliction of emotional distress]; Klein v. Children’s Hosp. Medical Ctr. (1996) 46 Cal.App.4th 889, 894 [elements of claim for negligent infliction of emotional distress].)

The court overrules Paladar’s demurrer to Plaintiff’s eighth through fourteenth causes of action because these causes of action are not asserted against Paladar, and instead are alleged against lender defendants Wells Fargo, Ajax, and Gregory Funding. 

The court sustains Paladar’s demurrer to Plaintiff’s fifteenth cause of action for wrongful foreclosure because it fails to state facts sufficient to constitute a cause of action against Paladar since Plaintiff fails to allege that Paladar is the trustee or mortgagee that caused the allegedly unlawful sale of Plaintiff’s property, and instead only alleges that Paladar is the entity that purchased Plaintiff’s property at the foreclosure auction (FAC ¶ 390) and subsequently evicted Plaintiff.  (Code Civ. Proc., § 430.10, subd. (e); Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th 1293, 1306-1307 [an element of the tort of wrongful foreclosure is that “the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property”].)

The court overrules Paladar’s demurrer to Plaintiff’s sixteenth through eighteenth causes of action because these causes of action are not asserted against Paladar, and instead are alleged against the lender defendants.

The court overrules Paladar’s demurrer to Plaintiff’s nineteenth cause of action for quiet title because it states facts sufficient to constitute a cause of action since Plaintiff alleges (1) that the property was sold to Paladar (FAC ¶ 390), and (2) that Paladar has been unable to rescind the sale (FAC ¶ 562), and therefore has sufficiently requested the court declare the rights of the parties as to the property (FAC ¶ 564).  (Code Civ. Proc., § 430.10, subd. (e); Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 291 [the purpose of a quiet title action is to determine any adverse claim to the property and to declare and define any interests held by the parties].)

The court sustains Paladar’s demurrer to Plaintiff’s twentieth cause of action for tolling because it fails to state facts sufficient to constitute a cause of action against Paladar because Plaintiff fails to allege facts relating to Paladar to which this theory would apply.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Paladar’s demurrer to Plaintiff’s twenty-first cause of action for unfair competition because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to allege facts establishing that Paladar, in purchasing Plaintiff’s home, acted unlawfully or unfairly.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Paladar’s demurrer to Plaintiff’s twenty-second and twenty-third causes of action because these causes of action are not asserted against Paladar, and instead are alleged against lender defendants Wells Fargo, Ajax, and Gregory Funding.

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)  To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  Here, the court finds that Plaintiff has failed to articulate how she could amend the second, third, seventh, fifteenth, twentieth, and twenty-first causes of action by failing to oppose Paladar’s demurrer.  

Therefore, the court sustains Paladar’s demurrer to the third, seventh, fifteenth, and twenty-first causes of action without leave to amend.

DEMURRER FILED BY LENDER DEFENDANTS

The court overrules Lender Defendants’ demurrer on the ground that Plaintiff’s First Amended Complaint is barred by claim preclusion because the face of the First Amended Complaint and the judicially noticed documents do not establish that there has been “a final judgment on the merits in the first suit.”  (Code Civ. Proc., § 430.10, subd. (e); DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.) 

“A judgment or adjudication is on the merits if the substance of the claim or issue is tried and determined.”  (Parkford Owners for a Better Community v. Windeshausen (2022) 81 Cal.App.5th 216, 227 [emphasis added].)  Rulings on purely procedural or technical grounds—such as, for example, the ground of mootness—are distinct from actual determinations of the merits.  (Ibid.)  Here, Lender Defendants have presented the Bankruptcy Court’s order granting defendant Ajax’s motion to dismiss for failure to state a claim.  (Lender Defendants’ RJN, Ex. 2.)  However, the order itself states that it is being granted for the reasons stated on the record and in the tentative ruling, but does not provide its legal reasoning.  (Ibid., p. 2:7-9.)  The tentative ruling states that the motion is being granted without leave to amend, “because, for the reasons set forth in Defendant’s motion and reply papers, Debtor has not established that any amendment would not be futile.”  (Id. at Ex. “A,” p. 1.)  Lender Defendants have not judicially noticed the court record, or the moving and reply papers on which the Bankruptcy Court’s order was evidently based.  Thus, the court has not been presented with the reasons upon which Ajax’s motion was granted, and therefore cannot determine, for purposes of this demurrer, whether the “substance” of Plaintiff’s claims was tried and determined by the Bankruptcy Court such that the court could find that there has been a final judgment on the merits. 

The court sustains Lender Defendant’s demurrer to Plaintiff’s fourth cause of action for violation of the Homeowners’ Bill of Rights because it fails to state facts sufficient to constitute a cause of action against Lender Defendants since Plaintiff fails to allege (1) which provisions were violated, and (2) facts in support of the alleged violations of the subject provisions.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Lender Defendants’ demurrer to Plaintiff’s fifth cause of action for an accounting because it states facts sufficient to constitute a cause of action since Plaintiff alleges (1) Defendants “overcharged” Plaintiff for years and improperly applying payments, and (2) that she is entitled to an accounting to determine “what moneys she…is owed….”  (FAC ¶ 455).  (Code Civ. Proc., § 430.10, subd. (e); Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179 [“A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting”].)

The court overrules Lender Defendants’ demurrer to Plaintiff’s sixth cause of action for breach of contract on the ground of the bar of the statute of limitations because it does not “appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred.”  (Code Civ. Proc., §¿430.10, subd. (e); Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.)  

The court sustains Lender Defendants’ demurrer to Plaintiff’s ninth cause of action for promissory estoppel because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to allege that either Ajax or Gregory Funding made the alleged promise to Plaintiff that she would need to pay no more than $1,000 monthly on her mortgage (FAC ¶ 480), and has instead alleged that it was counsel for Wells Fargo who “had agreed Plaintiff should continue to make mortgage payments of $1000 to Wells Fargo” (FAC ¶¶ 177-178, 361).  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Lender Defendants’ demurrer to Plaintiff’s tenth cause of action for negligence because Lender Defendants move the court to sustain the demurrer to this cause of action on the ground that Lender Defendants do not owe a duty of care in the servicing of a mortgage loan or in negotiations for a mortgage modification.  (Demurrer, 11:17-18; Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 915 [there is no tort duty sounding in general negligence to process, review, and respond carefully to a borrower’s loan modification application].)  However, this addresses only one allegation in support of this cause of action.  (FAC ¶ 486 [“The Lender Defendants were negligent in how they held and serviced the Loan Modification….”].)  Plaintiff has also alleged that Lender Defendants acted negligently “in the steps, they took toward foreclosure on the Property.”  (Ibid.)  “A demurrer does not lie to a portion of a cause of action.”  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)  The court therefore overrules Lender Defendants’ demurrer because it requests the court to sustain the demurrer only as to a portion of Plaintiff’s negligence cause of action. 

The court overrules Lender Defendants’ demurrer to Plaintiff’s eleventh cause of action for concealment because it states facts sufficient to constitute a cause of action since Plaintiff alleges (1) Lender Defendants failed to provide Plaintiff any specific amount of alleged default, any intent to accelerate their claims, and any intent to proceed with foreclosure actions (FAC ¶ 490); (2) defendant Ajax did not communicate with Plaintiff until it decided to foreclose on her home (FAC ¶ 170); (3) Plaintiff never received a Notice of Default from the new lender or servicer (i.e., Ajax and Gregory Funding) (FAC ¶ 175); (4) Lender Defendants intended to move forward with foreclosure (FAC ¶ 493); and (5) had Defendants not concealed information, Plaintiff would have acted differently (FAC ¶ 493).  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Lender Defendants’ demurrer to Plaintiff’s twelfth cause of action for false promise because it fails to state facts sufficient to constitute a cause of action since this cause of action is not pleaded with the specificity required by law, and in particular has not alleged who made the subject promises.  (Code Civ. Proc., § 430.10, subd. (e); Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73 [every element of the cause of action for fraud must be alleged with sufficient specificity as to allow the defendant to fully understand the nature of the charge made].)  The court recognizes that Plaintiff has incorporated her preceding allegations into this cause of action (FAC ¶ 498), some of which allege that counsel for Wells Fargo and for Plaintiff agreed that Plaintiff should continue to make certain mortgage payments (FAC ¶ 177).  However, Plaintiff does not appear to allege that Lender Defendants and Plaintiff agreed to modify the loan in this manner. 

The court sustains Lender Defendants’ demurrer to Plaintiff’s thirteenth cause of action for fraud because it fails to state facts sufficient to constitute a cause of action since this cause of action is not pleaded with the specificity required by California law, and in particular has not alleged who made the challenged representations referenced in paragraphs 509 and 511.  (Code Civ. Proc., § 430.10, subd. (e); Stansfield, supra, 220 Cal.App.3d at p. 73.)  In addition, more specificity is required as to this cause of action because it appears to be duplicative of the concealment cause of action.  (See FAC ¶ 505 [“Defendants failed to provide Plaintiff” with information regarding the default and intent to proceed to foreclosure].)

The court sustains Lender Defendants’ demurrer to Plaintiff’s fourteenth cause of action for negligent misrepresentation because it fails to state facts sufficient to constitute a cause of action since this cause of action is not pleaded with the specificity required by law, as Plaintiff has not alleged who made the challenged representations as to Lender Defendants.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Lender Defendants’ demurer to Plaintiff’s fifteenth cause of action for wrongful foreclosure because it states facts sufficient to constitute a cause of action since Plaintiff alleges the element of tender (FAC ¶ 521).  (Code Civ. Proc., § 430.10, subd. (e); Majd, supra, 243 Cal.App.4th at pp. 1306-1307.)

The court sustains Lender Defendants’ demurrer to Plaintiff’s sixteenth cause of action for violation of Civil Code section 2923.6, subdivision (c) because it fails to state facts sufficient to constitute a cause of action since (1) under this provision, a mortgage servicer or its agent may record a notice of default or notice of sale or conduct a trustee’s sale if a borrower accepts a written first lien modification, but defaults on, or otherwise breaches obligations under, the lien modification; (2) Plaintiff alleges that she accepted a loan modification agreement as of April 4, 2011 (FAC ¶ 42; FAC, Ex. B); and (3) the notice of default was recorded on July 25, 2017 (FAC ¶ 76).  Therefore, Plaintiff has not alleged facts sufficient to constitute a cause of action pursuant to Civil Code section 2923.6, subdivision (c) because Plaintiff’s allegations indicate that Lender Defendants’ actions were permitted.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains defendant Ajax’s demurrer to Plaintiff’s seventeenth cause of action for violation of Civil Code section 2923.7 because it fails to allege facts sufficient to constitute a cause of action since (1) section 2923.7 requires a mortgage servicer to promptly establish a single point of contact, but (2) Ajax is not alleged to be a mortgage servicer, but rather is alleged to be a lender.  (Code Civ. Proc., § 430.10, subd. (e); Civ. Code, § 2923.7, subd. (a); FAC ¶ 4.)

The court overrules defendant Gregory Funding’s demurrer to Plaintiff’s seventeenth cause of action for violation of Civil Code section 2923.7 because it states sufficient to constitute a cause of action.  The court recognizes that Plaintiff alleges that she defaulted on the loan modification, as set forth above, and that Gregory Funding therefore argues that Plaintiff is not entitled to any of the statutory protections because of her prior default.  (Deschaine v. IndyMac Mortg. Servs. (9th Cir. 2015) 617 Fed.Appx. 690, 693-694.)  That theory is based on the provision set forth in Civil Code section 2923.6, subdivision (g), which provides that mortgage services shall not be obligated to evaluate applications from borrowers who have been evaluated or afforded a fair opportunity to be evaluated.  However, that provision also indicates that it is inapplicable if “there has been a material change in the borrower’s financial circumstances since the date of the borrower’s previous application and that change is documented by the borrower and submitted to the mortgage servicer.”  (Civ. Code, § 2923.6, subd. (g).)  Plaintiff alleges that she submitted her transmitted application that “documented [her] material change of financial circumstances.”  (FAC ¶ 527.)  Thus, Plaintiff is entitled to the statutory protections set forth in this provision.

The court overrules Lender Defendants’ demurrer to Plaintiff’s eighteenth cause of action for violation of Civil Code section 2924.10 because it states facts sufficient to constitute a cause of action since Plaintiff alleges (1) that she submitted her application which included a documented material change of financial circumstances (FAC ¶ 550), and (2) that Lender Defendants have not cured this material violation (FAC ¶ 553).  (Code Civ. Proc., § 430.10, subd. (e).)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”  (Palm Springs Villas II Homeowners Assn., Inc., supra, 248 Cal.App.4th at p. 290.)  To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”  (Goodman, supra, 18 Cal.3d at p. 349.)  Here, the court finds that Plaintiff has failed to articulate how she could amend the fourth, ninth, twelfth, thirteenth, fourteenth, sixteenth, and seventeenth (as to defendant Ajax) causes of action by failing to oppose Lender Defendants’ demurrer.  

The court therefore sustains Lender Defendants’ demurrer without leave to amend.

DEMURRER FILED BY WELLS FARGO

The court overrules Wells Fargo’s demurrer on the ground that Plaintiff’s 1st, 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, and 21st causes of action are barred by claim preclusion.  The term “claim preclusion” is used to describe the primary aspect of the res judicata doctrine, and the term “issue preclusion” is used to encompass the notion of collateral estoppel.  (DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824.)  Claim preclusion “prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.”  [Citation.]  Claim preclusion arises if a second suit involves:  (1) the same cause of action (2) between the same parties (3) after a final judgment on the merits in the first suit.  [Citations.]  If claim preclusion is established, it operates to bar relitigation of the claim altogether.”  (Ibid.) 

Wells Fargo has not established, based on the face of the First Amended Complaint and the judicially noticed documents, that the arguments presented in Plaintiff’s objection to Wells Fargo’s claim constitute a “cause of action” within the meaning of the doctrine.  (DKN Holdings LLC, supra, 61 Cal.4th at p. 824 [claim preclusion arises if a second suit involves the same cause of action].)  Plaintiff did not assert that she was entitled to a remedial right for Wells Fargo’s violation of Plaintiff’s primary right, and instead asserted these claims defensively in the bankruptcy proceeding.  (Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, 399.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s first, ninth, eleventh, twelfth, thirteenth, and fourteenth causes of action on the ground of the bar of the statute of limitations because it does not “appear clearly and affirmatively that, upon the face of the complaint, the right[s] of action [are] necessarily barred” since Plaintiff alleges that she did not discover the facts alleged in the First Amended Complaint until 2018 (FAC ¶ 565).  (Code Civ. Proc., §¿430.10, subd. (e); Lockley, supra, 91 Cal.App.4th at p. 881.)  

The court overrules Wells Fargo’s demurrer to Plaintiff’s first cause of action because it states facts sufficient to constitute a cause of action since Plaintiff specifically alleges that Wells Fargo induced Plaintiff to believe they would abide by the terms set forth in the Original Loan Modification but instead allegedly altered the loan modification and subsequently used the terms of the “doctored” loan modification.  (Code Civ. Proc., § 430.10, subd. (e).) 

The court sustains Wells Fargo’s demurrer to Plaintiff’s second cause of action for reasonable reliance; detrimental reliance because it fails to state facts sufficient to constitute a cause of action since reasonable and detrimental reliance is not a cause of action, but instead consist of elements of misrepresentation claims.

The court sustains Wells Fargo’s demurrer to Plaintiff’s third cause of action for equitable cancellation of assignment, substitution of trustee, notice of default, and notice of sale because it fails to state a cause of action since Plaintiff does not have standing to challenge the assignment on the ground that there were irregularities in the securitization process (see FAC ¶¶ 425-426, 432).  (Code Civ. Proc., § 430.10, subd. (e); Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 43-44.)

The court sustains Wells Fargo’s demurrer to Plaintiff’s fourth cause of action for violation of California Homeowners’ Bill of Rights because Plaintiff’s opposition concedes that this claim is insufficient and “agrees to dismiss this claim against Wells Fargo.”  (Opp., 12:18-21.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s fifth cause of action for an accounting because it states facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e); Teselle, supra, 173 Cal.App.4th at p. 179.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s sixth cause of action for breach of contract because it states facts sufficient to constitute a cause of action since Plaintiff alleges (1) the existence of the Modification Agreement signed by Plaintiff and Wells Fargo (FAC ¶ 457, Ex. B, p. 4); (2) that Plaintiff performed all her duties thereunder (FAC ¶ 458); (3) that Wells Fargo breached the modification agreement (FAC ¶ 459); and (4) that Plaintiff was damaged (FAC ¶ 460).  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Wells Fargo’s demurrer to Plaintiff’s seventh cause of action for intentional and negligent infliction of emotional distress because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to allege (1) as to her claim for intentional infliction of emotional distress, extreme and outrageous conduct by Wells Fargo with the intent of causing, or reckless disregard of the probability of causing, emotional distress, and (2) as to her claim for negligent infliction of emotional distress, that Wells Fargo owed Plaintiff a duty, breached that duty, and that its breach caused Plaintiff emotional distress.  (Code Civ. Proc., § 430.10, subd. (e); Hughes, supra, 46 Cal.4th at p. 1050; Klein, supra, 46 Cal.App.4th at p. 894.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s eighth cause of action for breach of the implied covenant of good faith and fair dealing because it states facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Wells Fargo’s demurrer to Plaintiff’s ninth cause of action for promissory estoppel because it states facts sufficient to constitute a cause of action since Plaintiff alleges that Plaintiff was promised that she should continue to make monthly payments in the sum of $1,000 (FAC ¶ 480), and specifically has alleged that it was counsel for Wells Fargo who “had agreed Plaintiff should continue to make mortgage payments of $1000 to Wells Fargo” (FAC ¶¶ 177-178, 361; FAC Ex. U [email from Eliza Ghanooni advising Plaintiff to continue to make payments of $1,000 to Wells Fargo].)  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Wells Fargo’s demurrer to Plaintiff’s tenth cause of action for negligence because it states facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)  Although a lender does not owe a tort duty to process, review, and respond carefully to a borrower’s application, Plaintiff’s negligence cause of action is also based on the allegedly negligent acts “in the steps, they took toward foreclosure on the Property” (FAC ¶ 486).  This conduct may implicate actions taken unrelated to any alleged failure to properly process, review, and respond to an application.  The court therefore overrules the demurrer on this ground.

The court sustains Wells Fargo’s demurrer to Plaintiff’s eleventh cause of action for concealment because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to plead this cause of action with the particularity required by law, as Plaintiff’s allegations do not indicate the acts taken by Wells Fargo that expose it to liability under this theory.  (Code Civ. Proc., § 430.10, subd. (e); Stansfield, supra, 220 Cal.App.3d at p. 73.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s twelfth cause of action for false promise because it states facts sufficient to constitute a cause of action since Plaintiff alleges that Plaintiff was promised that she should continue to make limited payments to Wells Fargo, as set forth in connection with Plaintiff’s ninth cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Wells Fargo’s demurrer to Plaintiff’s thirteenth cause of action for fraud because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to plead this cause of action with the particularity required by law, as Plaintiff has not alleged the specific misrepresentations that were made by Wells Fargo as to this cause of action.  (Code Civ. Proc., § 430.10, subd. (e); Stansfield, supra, 220 Cal.App.3d at p. 73.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s fourteenth cause of action for negligent misrepresentation because it states facts sufficient to constitute a cause of action since Plaintiff alleges that Plaintiff was promised that she should continue to make limited payments to Wells Fargo, as set forth in connection with Plaintiff’s ninth and twelfth causes of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Wells Fargo’s demurrer to Plaintiff’s fifteenth cause of action for wrongful disclosure because it fails to state facts sufficient to constitute a cause of action since (1) the First Amended Complaint’s exhibits indicate that Wells Fargo transferred its interest in Plaintiff’s loan to MTGLQ Investors LP on March 6, 2019 (FAC ¶ 132, Ex. Q); (2) the trustee’s sale occurred on November 18, 2020 (FAC, Ex. GG); and (3) therefore, Plaintiff has not alleged that Wells Fargo was the trustee or mortgagee that caused the allegedly unlawful sale of property.  (Code Civ. Proc., § 430.10, subd. (e); Majd, supra, 243 Cal.App.4th at pp. 1306-1307.)

The court sustains Wells Fargo’s demurrer to Plaintiff’s sixteenth cause of action for violation of Civil Code section 2923.6 because Plaintiff’s opposition concedes that this claim is insufficient and “agrees to dismiss this claim against Wells Fargo.”  (Opp., 12:18-21.)

The court sustains Wells Fargo’s demurrer to Plaintiff’s nineteenth cause of action for quiet title because it fails to state facts sufficient to constitute a cause of action since the exhibits attached to the First Amended Complaint establish that Wells Fargo transferred its interest in Plaintiff’s loan and therefore does not have an adverse right to the property (FAC Ex. Q).  (Code Civ. Proc., § 430.10, subd. (e); Weeden, supra, 70 Cal.App.5th at p. 291.)

The court overrules Wells Fargo’s demurrer to Plaintiff’s twentieth cause of action for tolling because, although this is not a cause of action, the court understands Plaintiff’s pleading to be an attempt to permissibly plead around the statute of limitations.

The court overrules Wells Fargo’s demurrer to Plaintiff’s twenty-first cause of action for unfair competition because it states facts sufficient to constitute a causes of action since the court has overruled various causes of action which form the basis for this cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Wells Fargo’s demurrer to Plaintiff’s twenty-second and twenty-third causes of action because Plaintiff’s opposition “voluntarily relinquishe[s]” these claims against Wells Fargo.  (Opp., 14:27-5.)

Plaintiff requests the court grant leave to amend.  (Opp., 12:8-10.)  The court grants Plaintiff leave to amend since she opposed the demurrer and specifically requested the opportunity to allege additional facts in support of her causes of action.  

ORDER

            The court overrules defendant Paladar Capital Investments, LP’s demurrer to plaintiff Felisa Dee Richard’s 1st, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, 14th, 16th, 17th, 18th, 19th, 22nd, and 23rd causes of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains defendant Paladar Capital Investments, LP’s demurrer to plaintiff Felisa Dee Richard’s 2nd, 3rd, 7th, 15th, 20th, and 21st causes of action without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules defendants Gregory Funding LLC, and Ajax Mortgage Loan Trust 2018-G, Mortgage-Backed Securities, Series 2018-G, by US Bank National Association as indenture trustee’s demurrer to plaintiff Felisa Dee Richard’s First Amended Complaint on the ground of claim preclusion, and plaintiff Felisa Dee Richard’s 5th, 6th, 10th, 11th, 15th, and 18th causes of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains defendants Gregory Funding LLC, and Ajax Mortgage Loan Trust 2018-G, Mortgage-Backed Securities, Series 2018-G, by US Bank National Association as indenture trustee’s demurrer to plaintiff Felisa Dee Richard’s 4th, 9th, 12th, 13th, 14th, and 16th causes of action without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules defendant Gregory Funding LLC’s demurrer to plaintiff Felisa Dee Richard’s 17th cause of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains defendant Ajax Mortgage Loan Trust 2018-G, Mortgage-Backed Securities, Series 2018-G, by US Bank National Association as indenture trustee’s demurrer to plaintiff Felisa Dee Richard’s 17th cause of action without leave to amend.  (Code Civ. Proc., § 430.10, subd. (e).)

The court overrules Wells Fargo Bank NA’s demurrer to plaintiff Felisa Dee Richard’s 1st, 5th, 6th, 8th, 9th, 10th, 12th, 14th, 20th, and 21st causes of action.  (Code Civ. Proc., § 430.10, subd. (e).)

The court sustains Wells Fargo Bank NA’s demurrer to plaintiff Felisa Dee Richard’s 2nd, 3rd, 7th, 11th, 13th, 15, and 19th causes of action.  (Code Civ. Proc., § 430.10, subd. (e).) 

The court grants plaintiff Felisa Dee Richards 20 days leave to file a Second Amended Complaint to cure the deficiencies in the 2nd, 3rd, 7th, 11th, 13th, 15, and 19th causes of action alleged against defendant Wells Fargo Bank NA only.

The court sustains defendant Wells Fargo Bank NA’s demurrer to plaintiff Felisa Dee Richard’s 4th, 16th, 22nd, and 23rd causes of action without leave to amend since Plaintiff’s opposition indicates that she intends to voluntarily dismiss these causes of action as against defendant Wells Fargo Bank NA.

The court orders defendant Paladar Capital Investments, LP to give notice of this order.

IT IS SO ORDERED.

DATED:  August 24, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court