Judge: Ronald F. Frank, Case: 22TRCV00911, Date: 2023-07-20 Tentative Ruling
Case Number: 22TRCV00911 Hearing Date: July 20, 2023 Dept: 8
Tentative Ruling¿¿
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HEARING DATE: July 20, 2023
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CASE NUMBER: 22TRCV00911
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CASE NAME: Tracie Love,
et al. v. Jerome L. Dodson, et al.
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MOVING PARTY: Defendants, Jerome L. Dodson, Asset Default Management,
Inc., Lil’Wave Financial, Inc., dba Superior Loan Servicing.
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RESPONDING PARTY: Plaintiff
(no opposition filed)
TRIAL DATE: None Set.
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MOTION:¿ (1) Defendant Dodson’s Motion to
Compel Requests for Production, Requests for Admission, Special Interrogatories
and Form Interrogatories.
(2)
Defendant Lil’ Wave’s Motion to Compel Requests for Production, Requests for
Admission, Special Interrogatories and Form Interrogatories.
(3)
Request for Sanctions
(4)
Demurrer to First Amended Complaint
¿¿
Tentative Rulings: (1) Defendant Dodson’s Motion to
Compel GRANTED.
(2)
Defendant Lil’ Wave’s Motion to Compel GRANTED.
(3)
Sanctions DENIED without prejudice to being sought at a later hearing
(4) SUSTAINED, with 20 days leave to amend
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 2nd 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.
Defendant
Jerome L. Dodson (“Defendant Dodson”) notes that on January 26, 2023,
Plaintiff, Tracie Love (“Plaintiff Love”) was served with Requests
for Production of Documents, Requests for Admissions, Special Interrogatories
and Form Interrogatories. Defendant Dodson further notes that responses were
due on March 2, 2023. Defendant Dodson notes that his counsel, on March 3,
2023, emailed counsel for Plaintiff Love advising that discovery responses were
overdue, and offered an extension to the next business day. However, Defendant
Dodson notes that as of the date of signing the current motion, no responses to
discovery propounded by Defendant Dodson have been received.
Defendant, Lil’ Wave Financial, Incl. dba Superior
Loan Servicing (“Lil’ Wave”) notes that on January 26, 2023, Plaintiff, Tracie Love (“Plaintiff
Love”) was served with Requests for Production of Documents,
Requests for Admissions, Special Interrogatories and Form Interrogatories.
Defendant Lil’ Wave, further notes that responses were due on March 2, 2023.
Defendant Lil’ Wave notes that his counsel, on March 3, 2023, emailed counsel
for Plaintiff Love advising that discovery responses were overdue, and offered
an extension to the next business day. However, Defendant Lil’ Wave notes that
as of the date of signing the current motion, no responses to discovery propounded
by Defendant Lil’ Wave have been received.
B. Procedural¿¿
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On
April 4, 2023, Defendants filed their Motions to Compel. To date, no opposition
has been filed. The motions to compel were on file and pending a week before
Plaintiffs’ counsel Brian Stuart filed his motion to be relieved as counsel for
Plaintiffs. The Court granted the motion to be relieved on May 4, and Mr.
Stuart submitted the proposed order per the Court’s May 4 ruling within a week,
but through clerical error the proposed order was not entered until May 26 and
Mr. Stuart did not mail notice of the entry of the order until May 30, 2023.
Because of that delay, the May 29 date ordered by the Court for Plaintiff to
oppose these motions to compel and to oppose the Demurrer had already elapsed
before Plaintiff received notice of the Court’s order. On June 9, 2023, the Court had posted its
tentative rulings to grant the discovery motions, but decided not to rule that
day. Given the Plaintiff’s
self-represented status, and because of the Court’s concern about ensuring the
Plaintiff had proper notice of the granting of the motion by Mr. Stuart to
cease representing Plaintiff and of the pending discovery motions, the Court on
its own motion continued the hearing on the pending discovery motions for
approximately 6 weeks, to the current hearing date of July 20.
In addition, on April 21, 2023,
Defendants filed a Demurrer to the FAC. To date, no opposition has been filed.
However, in light of the Court’s tentative ruling granting his motion to be relieved,
Plaintiff’s attorney requested this demurrer be continued to June 9, 2023 at
8:30 p.m. when the discovery motions had also been re-scheduled. The Court later continued the hearing on the
unopposed Demurrer to July 20, 2023. Still,
no opposition to the Demurrer has been filed despite several
postponements.
II. ANALYSIS¿¿
A. Motion to Compel Responses
A
party must respond to interrogatories within 30 days after service. (Code Civ.
Proc., § 2030.260, subd. (a).) If a party to whom interrogatories are directed
does not provide timely responses, the requesting party may move for an order
compelling responses to the discovery. (Code Civ. Proc., § 2030.290, subd.
(b).) The party also waives the right to make any objections, including one
based on privilege or work-product protection. (Code Civ. Proc., § 2030.290,
subd. (a).) There is no time limit for a motion to compel responses to
interrogatories other than the cutoff on hearing discovery motions 15 days
before trial. (Code Civ. Proc., § 2024.020, subd. (a); Code Civ. Proc.,
2030.290.) No meet and confer efforts are required before filing a motion to
compel responses to the discovery. (Code Civ. Proc., § 2030.290; Sinaiko
Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148
Cal.App.4th 390, 411.)¿
Further,
“A party may demand that any other party produce . . . a document that is in
the possession, custody, or control of the party on whom the demand is made.”
(Code Civ. Proc., § 2031.010(b).) The demanding party may move for an order
compelling further response to the demand if the demanding party deems that (1)
a statement of compliance with the demand is incomplete, (2) a representation
of inability to comply is inadequate, incomplete, or evasive, or (3) an
objection in the response is without merit or too general. (Code Civ. Proc., §
2031.310(a).) “The motion shall set forth specific facts showing good cause
justifying the discovery sought by the demand,” and “[t]he motion shall be
accompanied by a meet and confer declaration under Section 2016.040.” (Code
Civ. Proc., § 2031.310(b).)
Code
of Civil Procedure section 2023.030, subdivision (a) provides, in pertinent
part, that the court may impose a monetary sanction on a party engaging in the
misuse of the discovery process to pay the reasonable expenses, including
attorney’s fees, incurred by anyone as a result of that conduct. A misuse of
the discovery process includes failing to respond or submit to an authorized
method of discovery. (Code Civ. Proc., § 2023.010, subd. (d).)
Lastly,
“Any party may obtain discovery . . . by a written request that any other party
to the action admit the genuineness of specified documents, or the truth of
specified matters of fact, opinion relating to fact, or application of law to
fact. A request for admission may relate to a matter that is in controversy
between the parties.”¿ (CCP § 2033.010.)¿ “Within 30 days after service of
requests for admission, the party to whom the requests are directed shall serve
the original of the response to them on the requesting party, and a copy of the
response on all other parties who have appeared . . . .”¿ (CCP § 2033.250(a).)
Here,
Plaintiff has not responded to any of the propounded discovery from either of
the Defendants. As such, the Court’s tentative ruling is GRANT all the
Defendants’ Motions. However, when the Court first heard this on June 9, 2023,
it noted that because it appears the now self-represented Plaintiffs may not
have received notice that they were self-represented until a week before the
June 9 hearing, the Court CONTINUED the hearing on all the motions to compel
and for monetary sanctions, and the hearing on Defendants’ Demurrer to the July
20, 2023 date already scheduled for an 8:30 a.m. Case Management Conference.
Plaintiff
has likely received notice now, and has still failed to respond. As such, the
Court GRANTS all Defendants’ Motions and rules on Requests for Sanctions below.
B. Sanctions
Pursuant to Code of Civil Procedure § 2030.300(d), ad
2033.290(d), the Court shall impose monetary sanctions against any party who
unsuccessfully makes or opposes a motion to compel responses to
interrogatories, and further responses. Both Defendants have requested
sanctions in the amount of $2,250. The Court’s inclination is to deny monetary
sanctions at this time in light of the tentative rulings to sustain the
Demurrer and to GRANT the motions to Compel, without prejudice to Defendants’
right to re-assert the monetary sanctions upon a hearing of a future
motion.
C.
Demurrer
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.)¿
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.)¿
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.)
Plaintiff’s FAC alleges that on
December 17, 2021, Defendants recorded a recission of the notice of defaults on
the property. (FAC, ¶ 21.) However, Plaintiff contends that unbeknownst to
Plaintiff, Defendants recorded a Notice of Default on December 16, 2021. (FAC,
¶ 22.) Plaintiff alleges she proceeded to obtain refinancing for the property,
and had a title report related to the property, the title officer determined
that there was no notice of default on the property. (FAC, ¶ 23.) Plaintiff
contends she achieved financing for her property and made a request for payoff,
but learned the property was going through foreclosure. (FAC, ¶ 24.) Plaintiff
continues that as a result of the foreclosure process, the Plaintiffs’ new
financing was withdrawn and the Property was foreclosed upon. (FAC, ¶ 25.) At the
time of the foreclosure, Plaintiff notes that she had secured financing for the
project to pay off the loan. (FAC, ¶ 26.) Plaintiff asserts that the Defendants
purposefully created confusion in the title to prevent the Plaintiff from
obtaining financing. (FAC, ¶ 27.) Plaintiff finally alleges that their acts
were wrongful in that they ignored Plaintiff’s attempt to cure the default
while continuing to foreclose and hiding that foreclosure process from the
Plaintiffs. (FAC, ¶ 28.)
As noted by Defendant’s demurrer,
Plaintiff’s pleading has changed very little since this Court sustained a
demurrer to Plaintiff’s first Complaint. In the Court’s former minute order, it
noted that Plaintiff had failed to allege or provide facts to support that
Plaintiff tendered the amount that was due under the default. As discussed
previously as well, Plaintiff failed to add facts to explain why she would be
excused from tendering. Because Plaintiff has failed, again, to amend her
pleading to provide the essential elements for a wrongful foreclosure and has
failed to file an opposition explaining her reasoning, the Court again sustains
the demurrer.
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.)
Here, the FAC contends that the
Plaintiff alleges that the Defendants intentionally interfered with the
Plaintiff’s economic relationship with CMN Funding (“CMN”) (FAC, ¶ 30.)
Plaintiff alleges that she obtained refinancing with CMN and was awaiting a
payout letter from the Defendant. (FAC, ¶ 31.) However, Plaintiff contends that
it was only then that she learned that the Defendant had reinitiated the
foreclosure process and CMN withdrew the financing offer. (FAC, ¶ 32.)
Plaintiff goes on to allege that Defendants purposefully obscured their new
Notice of Default with the Notice of Recission of Default to give the Plaintiff
the impression that no foreclosure process was occurring. (FAC, ¶ 33.) Further,
Plaintiff contends that as the Defendant already knew that the Plaintiff had
obtained the new financing, the Plaintiff alleges that the motivation of the
Defendant was to initiate foreclosure to prevent Plaintiff to complete the loan
transaction with CMN. (FAC, ¶ 34.) Plaintiff asserts that she had an agreement
to refinance the property with a lender and requested a payoff from the
Defendants to complete the agreement. (FAC, ¶ 36.) However, Plaintiff alleges
the Defendants wrongfully conducted a foreclosure sale without providing the
Plaintiffs with proper notice. (FAC, ¶ 37.) Plaintiff contends the Defendants
knew that Plaintiff was engaged in an attempt to refinance the Property as the
Plaintiff actually told the Defendant her intent. (FAC, ¶ 38.) The FAC further
notes Defendants’ acts stopped her attempt to refinance as the third party
withdrew their offer as a result of the foreclosure, and as a result, Plaintiff
lost her property. (FAC, ¶¶ 39-40.)
In this Court’s previous minute
order on the demurrer to the original Complaint, the Court noted that there was
confusion in the briefing as to whether the Second Cause of Action is for
interference with contractual relations or interference with business
relations. The Court opined that it appeared Plaintiff was asserting that it is
the refinance contract that was disrupted by Defendants’ alleged wrongful acts,
but noted that this could be clarified in an amended pleading. However, as
noted above, Plaintiff has kept the Cause of Action – Interference with
Business Relations. Even if this Court were to find that Plaintiff met all of
the elements required for this cause of action, 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. Plaintiff does not allege any
sufficiently independently wrongful act. As such, Plaintiff fails to allege
sufficient facts to state a cause of action for Interference with Business
Relations. As such, the Court sustains Defendants’ demurrer.
IV. CONCLUSION
For
the foregoing reasons, Defendants’ Motions to Compel are GRANTED. The Demurrer
to the First Amended Complaint is sustained with 20 days leave to amend. Defendants’ Requests for monetary Sanctions
are denied without prejudice.
Defendants
to give notice.