Judge Ronald F. Frank, Case 22TRCV00911 2023-02-16 Tentative Ruling

Judge: Ronald F. Frank, Case: 22TRCV00911, Date: 2023-02-16 Tentative Ruling

Case Number: 22TRCV00911 Hearing Date: February 16, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: February 16, 2023¿¿

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CASE NUMBER: 22TRCV00911

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CASE NAME: Tracie Love, E.B.J.T. Enterprise, LLC v. Jerome L. Dodson, et al ¿

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MOVING PARTY: Defendants, Jerome L. Dodson, as Trustee of the Jerome L. Dodson Trust of 2012; Asset Default Management, Inc, Lil’Wave Financial, Inc., dba Superior Loan Servicing

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RESPONDING PARTY: Plaintiff, Tracie Love and E.B.J.T Enterprise, LLC

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TRIAL DATE: Not Set; CMC on 4/20/23

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MOTION:¿ (1) Demurrer¿

Tentative Rulings: (1) Sustained with 20 days leave to amend

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I. BACKGROUND¿¿

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A. Factual¿¿

On October 10, 2022, Plaintiffs, Tracie Love and E.B.J.T Enterprise, LLC (collectively, “Plaintiffs”) filed a complaint against Jerome L. Dodson, as Trustee of the Jerome L. Dodson Trust of 2012; Asset Default Management, Inc, Lil’Wave Financial, Inc., dba Superior Loan Servicing, a Nevada Corporation, and DOES 1 through 100 (collectively, “Defendants”). The complaint alleged causes of action for: (1) Wrongful Foreclosure; and (2) Interference with Business Relations.

The Complaint is based on the following allegations: Plaintiffs claim that they were the owners of the property located at 1235 2^nd Street, Hermosa Beach, California. Plaintiffs contend that on August 31, 2018, Plaintiffs refinanced the Property with Defendant Dodson. The loan was allegedly serviced by Defendant, Lil’Wave. Plaintiffs claim they obtained the loan on a short-term basis and that Plaintiff was in the process of obtaining permanent financing for the property. Plaintiffs claim that Defendant recorded a Notice of Default on the Property on march 8, 2019. Plaintiffs claim they attempted to work with the Defendant to cure the default and on December 16, 2021, Defendants rescinded the foreclosure sale to the Property. However, Plaintiffs note that Defendants filed another notice of Default on the property on December 17, 2021, unbeknownst to Plaintiffs. The Plaintiffs contend that they obtained funding to refinance the property on April 18, 2022 and requested a payoff for the refinance. Plaintiffs claim that it was only then that Plaintiff learned the Property was subject to a foreclosure.

B. Procedural¿¿

On January 6, 2023, Defendants filed a Demurrer to both causes of action. On January 31, 2023, Plaintiff filed an opposition.

¿II. MOVING PARTY’S GROUNDS

Defendants demur to the Complaint on the grounds that it claims each cause of action fails to state facts sufficient to constitute any cause of action against these demurring defendants.

III. ANALYSIS¿

A. Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)¿¿¿

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A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to.¿ (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿¿

B. Discussion

Wrongful Foreclosure

“The elements of a wrongful foreclosure cause of action are: (1) The trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal.App.5th 943, 948, quotation marks and brackets omitted.)

Here, the Complaint alleges that Jerome L. Dodson is Trustee of the Jerome L. Dodson Revokable Trust of 2012 and the lender of the loan on the property secured by a deed of trust. (Complaint, ¶ 5.) Plaintiff claims that Defendant purposefully created confusion in the title to prevent the Plaintiff from obtaining financing. (Complaint, ¶ 26.) Plaintiff also alleged that on December 17, 2021, the Defendants recorded a recission of the notice of the default property, however, unbeknownst to the Plaintiff, the Defendants recorded a Notice of Default on December 16, 2021. (Complaint, ¶¶ 20-21.) Plaintiff contends that she proceeded to obtaining refinancing for the property because she had a title report related to the property, and the title officer determined that there was no notice of default on the property. (Complaint, ¶ 22.) Plaintiff asserts she was harmed because she received financing, however as a result of the foreclosure, financing was withdrawn and the property was foreclosed upon. (Complaint, ¶¶ 23-24.)

As noted in the demurrer, Plaintiff fails to allege or provide facts to support that Plaintiff tendered the amount that was due under the default. However, in opposition, Plaintiffs argue, they alleged facts that they are excused from tendering. Plaintiff submits that the fact that Defendants withdrew the original Notice of Default as part of a work-out agreement with Plaintiff, but then immediately recorded a new notice of default which created “confusion,” excuses her from pleading tendering. This Court does not find this argument particularly persuasive. Plaintiff offers no precedent, statute, or any basis for which these facts would excuse Plaintiff from tendering. As such, the demurrer is sustained on this issue but leave to amend to assert more detailed facts justifying the claimed excuse from the tender requirement will be granted.

Interference with Business Relations

The elements of a claim for intentional interference with prospective economic advantage include “(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, citations, brackets, and quotation marks omitted.) Further, “the alleged interference must have been wrongful by some measure beyond the fact of the interference itself. For an act to be sufficiently independently wrongful, it must be unlawful, that is, it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” (Ibid., citation, ellipsis, and quotation marks omitted.)

Plaintiff’s complaint alleges that Plaintiff had an agreement to refinance the property with a lender, and that Plaintiff requested a payoff from the Defendants to complete the agreement. (Complaint, ¶ 30.) Plaintiff also asserts that Defendants wrongfully conducted a foreclosure sale without proving the Plaintiffs with proper notice. (Complaint, ¶ 31.) Additionally, the Complaint alleges that Defendants knew that the Plaintiff was engaged in an attempt to refinance the property as the Plaintiff actually told the Defendants her intent. (Complaint, ¶ 32.) Plaintiff alleges that Defendants’ acts stopped her attempt to refinance as the third party withdrew their offer as a result of the foreclosure, and the Plaintiff lost her property as a result of Defendants’ actions. (Complaint, ¶¶ 33-34.)

In the opposition brief, plaintiffs appear to acknowledge that in the 7 short sentences of the Second Cause of Action, little in the way of factual detail is provided and plaintiff essentially concedes that leave to amend would be welcomed. Further, there is some confusion in the briefing as to whether the Second Cause of Action is for interference with contractual relations or interference with business relations. As alleged, it appears that plaintiffs are asserting that it is their re-finance contract that was disrupted by Defendants’ alleged wrongful acts. This can be clarified in an amended pleading

IV. CONCLUSION¿¿

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For the foregoing reasons, Defendants’ Demurrer is SUSTAINED with 20 days leave to amend

Moving party is ordered to give notice.¿¿¿¿