Judge: Robert B. Broadbelt, Case: 23STCV14562, Date: 2023-09-08 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: 23STCV14562    Hearing Date: February 15, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant NewRez LLC, d/b/a Shellpoint Mortgage Servicing (on behalf of itself and as erroneously sued as Shellpoint Mortgage Servicing)        

RESPONDING PARTY:       Plaintiff Aysia Rowe

(1)   Demurrer to First Amended Complaint

MOVING PARTY:                 Defendant Artem Gerashchenkov     

RESPONDING PARTY:       Unopposed

(2)   Demurrer to First Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with the demurrer filed by defendant NewRez LLC, d/b/a Shellpoint Mortgage Servicing. 

The court considered the moving papers filed in connection with the demurrer filed by defendant Artem Gerashchenkov.  No opposition papers were filed in connection with that demurrer.

REQUEST FOR JUDICIAL NOTICE

The court grants defendant NewRez LLC, d/b/a Shellpoint Mortgage Servicing’s requests for judicial notice.  (Evid. Code, § 452, subds. (c), (d); Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, n. 1 [existence and facial contents of recorded deed of trust was properly noticed by the trial court].)  The court notes that, although it has taken judicial notice of documents filed in court, it does not “take judicial notice of hearsay allegations” therein.  (Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014 [“Although a court cannot take judicial notice of hearsay allegations in a court record, it can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments”].)

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

BACKGROUND

Plaintiff Aysia Rowe (“Plaintiff”) filed the operative First Amended Complaint in this action on July 14, 2023 against, inter alia, defendants Artem Gerashchenkov, Shellpoint Mortgage Servicing, and NewRez LLC.  The First Amended Complaint alleges 13 causes of action for (1) quiet title; (2) wrongful foreclosure; (3) cancellation of instruments; (4) breach of contract; (5) promissory estoppel; (6) breach of the implied covenant of good faith and fair dealing; (7) violation of RESPA; (8) negligence; (9) fraud; (10) accounting; (11) unfair competition; (12) violation of the California Homeowners Bill of Rights; and (13) violation of the California Homeowners Bill of Rights.

Now pending before the court are two demurrers filed by two sets of defendants. 

First, defendant NewRez LLC, d/b/a Shellpoint Mortgage Servicing (on behalf of itself and as erroneously sued as Shellpoint Mortgage Servicing) (“Shellpoint”) moves the court for an order sustaining its demurrer to Plaintiff’s first through 13th causes of action. 

Second, defendant Artem Gerashchenkov (“Gerashchenkov”) moves the court for an order sustaining his demurrer to Plaintiff’s first through third, 10th, and 11th causes of action.

DEMURRER FILED BY SHELLPOINT

The court sustains Shellpoint’s demurrer to the first, second, third, and eighth causes of action because they do not state facts sufficient to constitute a cause of action since (1) the allegations of the First Amended Complaint show that Plaintiff does not have standing to assert those claims because (i) she has alleged that she obtained ownership interests and rights of administration over the subject property only “in her capacity as Executor of the Estate, as Trustee of the Trust, and as a beneficiary under both” but (ii) has not filed this action in those capacities and has instead only filed this action as an individual, and (2) Plaintiff has conceded, in opposition, that she does not have standing to bring these causes of action in her individual capacity.  (Code Civ. Proc., §§ 430.10, subd. (e), 367 [“Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute”]; FAC ¶ 22; FAC p. 1:10 [naming as plaintiff “Aysia A. Rowe, an individual”]; City of Brentwood v. Campbell (2015) 237 Cal.App.4th 488, 504 [“anyone other than a real party in interest lacks standing and is subject to a demurrer for the failure to state a cause of action”]; Opp., p. 1:5-16.)

The court sustains Shellpoint’s demurrer to the fourth, fifth, sixth, seventh, ninth, 10th, 11th, 12th, and 13th causes of action because they do not state facts sufficient to constitute a cause of action since Plaintiff does not have standing to assert these causes of action.  (Code Civ. Proc., §§ 430.10, subd. (e), 367.)

The fourth through seventh, 10th, and 11th causes of action are based on (1) the allegation that Plaintiff was harmed as a result of the loss of ownership of, or loss of equity in, the subject property, or (2) the alleged failure to honor and execute the loan modification agreements or to deprive Plaintiff of the benefits of those agreements.  (FAC ¶¶ 45 [“all harms suffered in this matter stem back to” the alleged breach of the loan modification agreement by Ditech], 123, 125, 135, 137, 141, 143, 156, 161.)  Although the ninth cause of action for fraud does not include specific allegations of harm, it appears that it is also based on the allegations that Shellpoint and the other defendants failed to honor the loan modification agreement.  (FAC ¶¶ 149-150.) Similarly, the 12th and 13th causes of action, alleging violations of the California Homeowners Bill of Rights, are based on (1) the alleged failure to comply with the statutory scheme regarding the default process on the subject property, or (2) injury caused by the loss of equity in and wrongful foreclosure on the subject property.  (FAC ¶¶ 174-175.)

The court finds that, as pleaded, Plaintiff does not have standing to allege causes of action based on the loan modification agreements or ownership of the subject property.  (Code Civ. Proc., § 367.)

First, Plaintiff has not alleged that she, in her individual capacity, had an ownership interest in the subject property.

As to ownership of the property, Plaintiff has alleged the following.  Tonja T. Taylor (“Taylor”) purchased the property that is the subject of this action in 1999.  (FAC ¶ 16.)  The subject property was thereafter transferred from Taylor to Tonja T. Taylor, as Trustee of the Nubian Village Trust on August 8, 2008.  (FAC ¶¶ 20, 84 [“the SUBJECT PROPERTY was owned by the TRUST”]; FAC Ex. D [Transfer Deed].)  Taylor passed away on August 27, 2017.  (FAC ¶ 22.)  Plaintiff obtained ownership interest and rights of administration over the property upon Taylor’s death in Plaintiff’s “capacity as the Executor of the Estate, as Trustee of the Trust, and as a beneficiary under both.”  (FAC ¶ 22.)  

Thus, Plaintiff has alleged that she obtained an ownership interest in the subject property only “in her capacity as Executor of the Estate, as Trustee of the Trust, and as a beneficiary under both.”  (FAC ¶ 22.)  However, Plaintiff has not filed this action in those capacities and has instead filed this action as an individual.  (FAC p. 1:10 [naming as plaintiff “Aysia A. Rowe, an individual”].)  The court therefore finds that Plaintiff does not have standing to assert causes of action on the ground that she was harmed by the loss of ownership of the property.  (Code Civ. Proc., § 367.)

Second, Plaintiff has not alleged that she was a party to the loan modification agreements described in the First Amended Complaint.

Plaintiff has alleged the existence of two loan modification agreements.  On May 21, 2010, Taylor executed the first loan modification agreement with BAC Loans Servicing LP, which modified the terms of the December 2007 mortgage loan.  (FAC ¶ 21.)  Plaintiff has not alleged that she was a party to this modification agreement.  Thereafter, on December 11, 2018, Ditech presented, and Plaintiff signed as “‘Aysia Rowe Executor of the Estate of Tonja T. Taylor,’” the second loan modification agreement.  (FAC ¶¶ 34-35.)  Plaintiff was later informed by Ditech that the inscription on the loan modification was defective, and a representative of Ditech instructed Plaintiff to re-execute the agreement by adding the term “Estate Executor” next to Plaintiff’s signature.  (FAC ¶ 47.)  Plaintiff did not allege that she signed the second loan modification agreement in her individual capacity. 

Thus, as pleaded, Plaintiff has not alleged facts establishing that she entered into a loan modification agreement in her individual capacity and therefore does not have standing to assert causes of action on the ground that she was harmed by the alleged failure to honor or execute the loan modification agreements to which she was not a party.  (Code Civ. Proc., § 367.)

The court also sustains Shellpoint’s demurrer to the ninth cause of action for fraud because it does not state facts sufficient to constitute a cause of action since Plaintiff has not alleged each element of fraud with the particularity required by California law.  (Code Civ. Proc. § 430.10, subd. (e); Lauckhart v. El Macero Homeowners Assn. (2023) 92 Cal.App.5th 889, 903 [“Fraud must be pleaded with particularity”].)

DEMURRER FILED BY GERASHCHENKOV

The court sustains Gerashchenkov’s demurrer to the first, second, third, 10th, and 11th causes of action because they do not state facts sufficient to constitute causes of action since Plaintiff does not have standing to assert these claims for the same reasons set forth in the court’s ruling on Shellpoint’s demurrer discussed above.  (Code Civ. Proc., §§ 430.10, subd. (e), 367; City of Brentwood, supra, 237 Cal.App.4th at p. 504.)

The court also sustains Gerashchenkov’s demurrer to the 10th cause of action for accounting because it does not state facts sufficient to constitute a cause of action since (1) this cause of action is based on the allegation that there is a controversy between Plaintiff and the defendants with respect to the amount of money that was owed to the defendants, but (2) Plaintiff has not alleged facts establishing that there existed a relationship between Plaintiff and Gerashchenkov that requires an accounting.  (Code Civ. Proc., § 430.10, subd. (e); FAC ¶¶ 155-156; Sass v. Cohen (2020) 10 Cal.5th 861, 869 [elements of action for accounting].)

ORDER

            The court sustains defendant NewRez LLC, d/b/a Shellpoint Mortgage Servicing (for itself and erroneously sued as Shellpoint Mortgage Servicing)’s demurrer to plaintiff Aysia A. Rowe’s First Amended Complaint.

The court sustains defendant Artem Gerashchenkov’s demurrer to plaintiff Aysia A. Rowe’s first through third, 10th, and 11th causes of action in plaintiff’s First Amended Complaint.

The court grants plaintiff Aysia A. Rowe 20 days leave to file a Second Amended Complaint that cures the defects set forth in this ruling.

            The court orders defendant NewRez LLC, d/b/a Shellpoint Mortgage Servicing (for itself and erroneously sued as Shellpoint Mortgage Servicing) to give notice of this ruling.

IT IS SO ORDERED.

DATED:  February 15, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court