Judge Salvatore Sirna, Case Number: 22PSCV03009, Date: 2023-09-20 Tentative Ruling

Judge: Salvatore Sirna, Case: 22PSCV03009, Date: 2023-09-20 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, counsel are advised to check this website periodically to determine whether any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Department G at (909) 802-1104 prior to 8:30 a.m. the morning of the hearing.

Case Number: 22PSCV03009 Hearing Date: September 20, 2023 Dept: G

Defendant Siwell Inc.’s Demurrer to Second Amended Complaint

Respondent: Plaintiff Briana Quinn

TENTATIVE RULING

Defendant Siwell Inc.’s Demurrer to Second Amended Complaint is SUSTAINED with ten (10) days leave to amend.

BACKGROUND

This is a wrongful foreclosure action. On July 23, 2020, Plaintiff Briana Quinn obtained a mortgage from AHL Funding on real property in Covina (Covina Property) in the amount of $414,631. On April 29, 2022, an assignment of deed of trust was recorded that allegedly assigned the deed of trust from AHL Funding to Defendant Siwell Inc. On the same day, a notice of default and election to sell under deed of trust was recorded. On July 29, a notice of trustee’s sale was recorded. The Covina Property was subsequently sold on December 22.

On December 20, 2022, Quinn filed a complaint against Siwell and Does 1-10, alleging the following causes of action: (1) violation of Civil Code section 2923.5; (2) violation of Civil Code section 2924, subdivision (a)(1); (3) violation of Civil Code section 2923.6, subdivision (c); (4) violation of Civil Code section 2923.7; (5) violation of Civil Code section 2924.9; (6) violation of Civil Code section 2924.10; (7) unfair business practices; and (8) cancellation of written instruments.

On February 21, 2023, Quinn filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action in addition to a ninth cause of action for wrongful foreclosure. On June 16, the court sustained Siwell’s demurrer with leave to amend as to Quinn’s first, third, fourth, fifth, sixth, seventh, eighth, and ninth causes of action and without leave to amend as to Quinn’s second cause of action.

On July 7, 2023, Quinn filed a Second Amended Complaint (SAC) against the same defendants alleging the same causes of action minus the second one.

On August 4, 2023, Siwell filed the present demurrer. Prior to filing on August 2, Siwell’s counsel met and conferred telephonically with Quinn’s counsel and was unable to reach a resolution. (Vermillion Decl., ¶ 2.)

A hearing on the demurrer and a case management conference are set for September 20, 2023. A motion to be relieved as counsel is also set for October 5.

ANALYSIS

Siwell demurs to Quinn’s third cause of action (violation of Civil Code section 2923.6, subdivision (c)), fourth cause of action (violation of Civil Code section 2923.7), fifth cause of action (violation of Civil Code section 2924.9), and sixth cause of action (violation of Civil Code section 2924.10). For the following reasons, the court SUSTAINS Siwell’s demurrer in its entirety with leave amend.

Legal Standard

A party may demur to a complaint on the grounds that it “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747 (Hahn).) When considering demurrers, courts accept all well pleaded facts as true. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747.)

Discussion

Siwell argues Quinn’s causes of action fail because they are not applicable to Siwell. The court agrees.

The requirements of the Civil Code sections in Quinn’s third, fourth, fifth, and sixth causes of action do not apply “to a depository institution chartered under state or federal law, a person licensed pursuant to Division 9 (commencing with Section 22000) or Division 20 (commencing with Section 50000) of the Financial Code, or a person licensed pursuant to Part 1 (commencing with Section 10000) of Division 4 of the Business and Professions Code, that, during its immediately preceding annual reporting period, as established with its primary regulator, foreclosed on 175 or fewer residential real properties, containing no more than four dwelling units, that are located in California. (Civ. Code, § 2923.6, subd. (i), citing Civ. Code, § 2924.18, subd. (b); Civ. Code, § 2923.7, subd. (g)(1); Civ. Code, § 2924.9, subd. (b), citing Civ. Code, § 2924.18, subd. (b); Civ. Code, § 2924.10, subd. (c), citing Civ. Code, § 2924.18, subd, (b).)

In this case, Quinn fails to allege facts establishing Siwell is not one of the institutions excluded from these provisions in Civil Code sections 2924.18, subd. (b) and 2923.7, subd. (g)(1). Because Quinn fails to do so, Quinn cannot establish any of these code provisions are applicable to Siwell.

Accordingly, Siwell’s demurrer to Quinn’s SAC is SUSTAINED with leave to amend.

CONCLUSION

Based on the foregoing, Siwell’s demurrer to Quinn’s SAC is SUSTAINED in its entirety with ten (10) days leave to amend.