Judge: Robert B. Broadbelt, Case: 21STCV27393, Date: 2022-12-09 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 21STCV27393    Hearing Date: December 9, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Northern California Mortgage Fund, XIV, LLC, and Northern California Mortgage Fund, XII, LLC

RESPONDING PARTY:       Plaintiff Rosa Maria Samples

(1)   Demurrer to First Amended Complaint

MOVING PARTY:                Defendant Navy Federal Credit Union

RESPONDING PARTY:       Plaintiff Rosa Maria Samples

(2)   Demurrer to First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with each demurrer.

BACKGROUND

Plaintiff Rosa Maria Samples, as trustee of the Maria A. Gonzalez Living Trust dated 2020, and as executrix of last will and testament of Maria A. Gonzalez, deceased (“Plaintiff”), filed this quiet title and fraud action on July 26, 2021, against various defendants.

Plaintiff filed her operative First Amended Complaint on April 22, 2022, against defendants Northern California Mortgage Fund XIC, LLC; Northern California Mortgage Fund XII, LLC; Sergio Alberto Herrera; Carlos Rafael Gonzalez; Luz Velasquez; Franklin Advantage; Jeff Yorke; and Navy Federal Credit Union.

Plaintiff’s First Amended Complaint alleges eight causes of action for (1) financial elder abuse; (2) unjust enrichment; (3) fraud; (4) violation of Business and Professions Code section 17200; (5) undue influence; (6) cancellation of instruments; (7) quiet title; and (8) negligence.

Two sets of demurrers are pending before the court.  First, defendants Northern California Mortgage Fund XIV, LLC, and Northern California Mortgage Fund XII, LLC (collectively, “Northern California Mortgage”) move the court for an order sustaining their demurrer to Plaintiff’s fourth, sixth, seventh, and eight causes of action. Second, defendant Navy Federal Credit Union (“Navy Federal”) moves the court for an order sustaining its demurrer to Plaintiff’s fourth, sixth, seventh, and eighth causes of action.     

REQUEST FOR JUDICIAL NOTICE

The court denies defendant Navy Federal’s request for judicial notice, filed on December 2, 2022, as an improper attempt to introduce new evidence in reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

The court denies defendants Northern California Mortgage’s request for judicial notice, filed on December 5, 2022, as an improper attempt to introduce new evidence in reply.  (Jay, supra, 218 Cal.App.4th at p. 1537.)

DEMURRER FILED BY NORTHERN CALIFORNIA MORTGAGE

Plaintiff’s fourth cause of action is for violation of Business and Professions Code section 17200.  This statute proscribes unfair competition, which is defined to include “any unlawful, unfair or fraudulent business act or practice….”  (Bus. & Prof. Code, § 17200.)  The court sustains Northern California Mortgage’s demurrer to Plaintiff’s fourth cause of action for violation of Business and Professions Code section 17200 because it fails to state facts sufficient to constitute a cause of action since (1) Plaintiff does not allege facts to establish that Northern California Mortgage engaged in any unlawful, unfair, or fraudulent business act or practice as required by Business and Professions Code section 17200, and (2) Plaintiff has not alleged facts establishing that she has suffered injury in fact and that she has lost money or property as a result of any alleged unfair competition committed by Northern California Mortgage as required by Business and Professions Code section 17204.  (Code Civ. Proc., § 430.10, subd. (e); Bus. & Prof. Code, § 17200; Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610, 613.)

The court overrules Northern California Mortgage’s demurrer to Plaintiff’s sixth cause of action for cancellation of instruments because it states facts sufficient to constitute a cause of action since Plaintiff alleges facts establishing that the Notice of Default is void or voidable based on an improperly calculated demand, such that the Notice of Default and its related documents should be rescinded or cancelled.  (Code Civ. Proc., § 430.10, subd. (e); Civ. Code, § 3412; FAC ¶¶ 22, 71.) 

The court overrules Northern California Mortgage’s demurrer to Plaintiff’s seventh cause of action for quiet title because it states facts sufficient to constitute a cause of action since Plaintiff alleges that Northern California Mortgage has made adverse claims to Plaintiff’s title by recording the Notice of Default and Notice of Trustee’s Sale (FAC ¶¶ 22-23, 79).  (Code Civ. Proc., §§ 430.10, subd. (e), 761.020, subd. (c); Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 291 [the purpose of a quiet title claim is to determine any adverse claims to property].)

The court sustains Northern California Mortgage’s demurrer to Plaintiff’s eighth cause of action for negligence because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to allege facts establishing that Northern California Mortgage owed a legal duty to “vet and inquire into the circumstances surrounding the loan made by Navy [Federal]” and to “inquire as to the actions of” the other, third-party defendants (FAC ¶ 89).  (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. 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.)  The court finds that Plaintiff has not met her burden of showing in what manner she can amend her complaint that will render it sufficient.  The court therefore sustains Northern California Mortgage’s demurrer to the fourth and eighth causes of action without leave to amend. 

DEMURRER FILED BY DEFENDANT NAVY FEDERAL

The court sustains Navy Federal’s demurrer to Plaintiff’s fourth cause of action for violation of Business and Professions Code section 17200 because it fails to state facts sufficient to constitute a cause of action since (1) Plaintiff does not allege facts to establish that Navy Federal engaged in any unlawful, unfair, or fraudulent business act or practice as required by Business and Professions Code section 17200, and (2) Plaintiff has not alleged facts establishing that she has suffered injury in fact and that she has lost money or property as a result of any alleged unfair competition committed by Navy Federal as required by Business and Professions Code section 17204.  (Code Civ. Proc., § 430.10, subd. (e); Graham, supra, 226 Cal.App.4th at pp. 610, 613.)

The court sustains Navy Federal’s demurrer to Plaintiff’s sixth cause of action for cancellation of instruments because it fails to state facts sufficient to constitute a cause of action since Plaintiff (1) fails to allege any facts referencing Navy Federal in this cause of action, and (2) fails to allege that any of the instruments sought to be cancelled by Plaintiff were issued by or relate to Navy Federal.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶ 22 [the Notice of Default was recorded in favor of Northern California Mortgage Fund XIC, LLC].)

The court sustains Navy Federal’s demurrer to Plaintiff’s seventh cause of action for quiet title because it fails to state facts sufficient to constitute a cause of action since Plaintiff fails to allege that Navy Federal has made a claim adverse to Plaintiff’s title.  (Code Civ. Proc., §§ 430.10, subd. (e), 761.020, subd. (c).)

The court sustains Navy Federal’s demurrer to Plaintiff’s eighth cause of action for negligence because it fails to state facts sufficient to constitute a cause of action since Plaintiff does not allege facts establishing that Navy Federal owed a legal duty to Plaintiff or Maria Gonzalez, who were not customers of Navy Federal.  (Code Civ. Proc., § 430.10, subd. (e); Rodriguez v. Bank of the West (2008) 162 Cal.App.4th 454, 463, 466 [“absent extraordinary and specific facts, a bank does not owe a duty of care to a noncustomer”; holding that the bank did not owe a duty to a stranger because the stranger had no contractual relationship with the bank].)

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.)  The court finds that Plaintiff has not met her burden of showing in what manner she can amend her complaint that will render it sufficient.  The court therefore sustains Navy Federal’s demurrer to the fourth, sixth, seventh, and eighth causes of action without leave to amend. 

ORDER

The court sustains defendants Northern California Mortgage Fund XII, LLC, and Northern California Mortgage Fund XIV, LLC’s demurrer to plaintiff Rosa Maria Samples’s fourth and eighth causes of action without leave to amend.

The court overrules defendants Northern California Mortgage Fund XII, LLC, and Northern California Mortgage Fund XIV, LLC’s demurrer to plaintiff Rosa Maria Samples’s sixth and seventh causes of action.

The court orders defendants Northern California Mortgage Fund XII, LLC, and Northern California Mortgage Fund XIV, LLC to file an answer to the First Amended Complaint within 15 days of the date of this order.

The court sustains defendant Navy Federal Credit Union’s demurrer to plaintiff Rosa Maria Samples’s fourth, sixth, seventh, and eighth causes of action without leave to amend.

The court orders defendant Navy Federal Credit Union to lodge and serve a proposed order of dismissal of that defendant from the First Amended Complaint filed by plaintiff Rosa Maria Samples within 10 days of the date of this order pursuant to Code of Civil Procedure section 581, subdivision (f)(1).

The court orders defendant Navy Federal Credit Union to give notice of this ruling.

IT IS SO ORDERED.

DATED:  December 9, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court