Judge: Robert B. Broadbelt, Case: 22STCV18246, Date: 2023-02-16 Tentative Ruling

Case Number: 22STCV18246    Hearing Date: February 16, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Defendant Western Progressive, LLC

RESPONDING PARTY:       Unopposed

Demurrer to Complaint

The court considered the moving and reply papers filed in connection with this demurrer.  No opposition papers were filed.  

BACKGROUND

Plaintiff Francisco Montiel (“Plaintiff”) filed this action on June 3, 2022, against defendants Western Progressive, LLC, Planet Home Lending, LLC, and all persons claiming any legal or equitable right, title, estate, lien, or interest in the property adverse to Plaintiff’s title, or any cloud on Plaintiff’s title thereto located at 2726 West Pendleton Avenue, Santa Ana, California, 92704, APN.2022-00205-CA.  Plaintiff alleges three causes of action for (1) injunction, (2) unfair business practices, and (3) declaratory relief.

Defendant Western Progressive, LLC (“Defendant”) now moves the court for an order sustaining its demurrer to each cause of action alleged in Plaintiff’s Complaint.

REQUEST FOR JUDICIAL NOTICE

The court grants Defendant’s request for judicial notice.  (Evid. Code, § 452, subd. (c); Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-1118.)

DISCUSSION

The court sustains Defendant’s demurrer to Plaintiff’s first cause of action for injunction enjoining defendants from foreclosing on Plaintiff’s property until he has been considered for a loan modification, approved for a short sale or exhausted alternative means of retention because the judicially noticed documents establish that it does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).) 

Plaintiff alleges that (1) Defendant has recorded a Notice of Trustee Sale with a sale date of June 27, 2022, and (2) sale of the property will occur unless the court issues an injunction.  (Compl., ¶¶ 12, 14, 18.)  Thus, Plaintiff requests “an injunction precluding Defendants from foreclosing on the property until [Plaintiff] has been seriously considered for a loan modification.”  (Compl., ¶ 18; Compl., Prayer, ¶ 1 [prayer for order requiring Defendant to show cause why it should not be enjoined from foreclosing on the property on June 27, 2022].) Defendant recorded the (1) Notice of Default and Election to Sell Under Deed of Trust on February 10, 2022, and (2) Notice of Trustee’s Sale on May 17, 2022, scheduling the sale of the property for June 27, 2022.  (RJN Exs. 4-5; Compl., ¶ 12.)  On July 1, 2022, Defendant recorded a Notice of Rescission of Notice of Default, giving notice that Defendant rescinded, cancelled, and withdrew the Notice of Default and Election to Sell recorded on February 10, 2022.  (RJN Ex. 6.)  

The court finds that the judicially noticed documents establish that Plaintiff’s cause of action for injunctive relief, requesting the court enjoin Defendant from foreclosing on the property, is moot since the legal effect of the Notice of Default and Election to Sell cancelled the notice of default and subsequent sale of the property.  The court therefore finds that Plaintiff has not alleged facts sufficient to constitute a cause of action for injunctive relief. 

The court sustains Defendant’s demurrer to Plaintiff’s second cause of action for unfair business practice because it does not state facts sufficient to constitute a cause of action since Plaintiff does not allege, with the requisite particularity, facts establishing that Defendant’s refusal to consider Plaintiff for a loan modification constitutes an unlawful, unfair, or fraudulent business act or practice within the meaning of Business and Professions Code section 17200.  (Code Civ. Proc., § 430.10, subd. (e); Bus. & Prof. Code, § 17200.)

The court sustains Defendant’s demurrer to Plaintiff’s third cause of action for declaratory relief because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged the existence of an actual, present controversy.  (Code Civ. Proc., §§ 430.10, subd. (e), 1060.)  Plaintiff requests, in connection with this cause of action, a judicial declaration (1) based on the controversy between Plaintiff and Defendant in connection with the foreclosure sale, and (2) that the foreclosure sale of June 27, 2022 is vacated until Plaintiff is considered for a loan modification.  (Compl., ¶¶ 29, 31-32.)  However, as set forth above, the controversy regarding the foreclosure sale scheduled for June 27, 2022 is moot due to Defendant’s filing of the Notice of Default and Election to Sell.

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 their burden to show in what manner the Complaint can be amended to change the legal effect of the pleading. The court therefore sustains Defendant’s demurrer without leave to amend.  

ORDER

The court sustains defendant Western Progressive, LLC’s demurrer to plaintiff Francisco Montiel’s complaint without leave to amend.

The court orders defendant Western Progressive, LLC to lodge and serve a proposed order of dismissal from the Complaint filed by plaintiff Francisco Montiel within 10 days of the date of this order pursuant to Code of Civil Procedure section 581, subdivision (f)(1).

The court orders the hearing on defendant Western Progressive, LLC’s motion to compel deposition set for August 29, 2023 is vacated.    

The court orders defendant Western Progressive, LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 16, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court