Judge: Salvatore Sirna, Case: 24PSCV00548, Date: 2024-11-25 Tentative Ruling

Case Number: 24PSCV00548    Hearing Date: November 25, 2024    Dept: G

Defendant PHH Mortgage Corporation’s Motion to Dismiss Action With Prejudice

Respondent: NO OPPOSITION

TENTATIVE RULING

Defendant PHH Mortgage Corporation’s Motion to Dismiss Action With Prejudice is GRANTED.

BACKGROUND

This is an action to quiet title. In November 1987, Plaintiffs Shelia Crigler and William Crigler purchased a property in Pomona. To finance their purchase, they obtained a secured loan and subsequently mortgaged the Pomona property for additional funds. In October 2018, they executed a quitclaim deed to convey their ownership to the Family Trust of William Robert Crigler and Shelia Vera Crigler. After William Crigler passed away in 2018, Plaintiff Kyndle Crigler assumed the mortgage payments. In 2022, the Criglers applied for and were placed on a payment plan by Defendant PHH Mortgage Corporation (PHH). In April 2023, PHH removed the Criglers from the repayment plan after they allegedly failed to timely pay property charge expenses. While the Criglers allege they attempted to make payment towards the amount demanded by PHH, PHH proceeded with nonjudicial foreclosure proceedings. On December 4, 2023, Defendant Breckenridge Property Fund 2016, LLC (Breckenridge) purchased the Pomona property at a foreclosure auction.

On February 21, 2024, the Criglers filed a complaint against Breckenridge, First American Title Insurance Company (First American), PHH, and Does 1-20, alleging the following causes of action: (1) quiet title, (2) cancellation of written instrument, (3) wrongful foreclosure, (4) declaratory relief, (5) slander of title, and (6) negligent misrepresentation. On May 13, 2024, the court sustained a demurrer to the Complaint by Breckenridge.

On June 3, 2024, the Criglers filed a First Amended Complaint (FAC) against the same defendants alleging the same causes of action. On August 28, 2024, the court sustained a demurrer to the FAC by Breckenridge without leave to amend and a demurrer to the FAC by PHH with thirty days leave to amend.

On October 8, 2024, the court granted the Criglers’ ex parte application to extend the deadline for leave to amend to October 15, 2024.

On October 16, 2024, PHH filed the present motion. A hearing on PHH’s motion is set for November 25, 2024, along with a case management conference.

ANALYSIS

PHH moves for dismissal of the Criglers’ action on the grounds that they failed to timely file a SAC. For the following reasons, the court GRANTS PHH’s motion.

Legal Standard

Pursuant to Code of Civil Procedure section 581, subdivision (f)(2), the court may dismiss the complaint when, “after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal.”  (Code Civ. Proc., § 581, subd. (f)(2).)  If a plaintiff fails to amend after the court has sustained a demurrer, the court may construe the failure to amend as an admission that the plaintiff cannot cure the defects that the court identified and dismiss the plaintiff’s complaint with prejudice.  (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.)

Discussion

On August 28, 2024, the court sustained PHH’s demurrer to the Criglers’ FAC with thirty (30) days leave to amend as to the third and sixth causes of action and without leave to amend as to the fourth and fifth causes of action. (08/28/2024 Ruling, p. 1.) On September 30, 2024, the Criglers filed an ex parte application that requested an extension of time to file and serve an amended pleading. The court granted their requested and extended the deadline to 4:00 PM on October 15, 2024. Because the Criglers did not file any amended pleading by these deadlines and no cause of action remains against PHH, the court GRANTS PHH’s motion.

CONCLUSION

Based on the foregoing, PHH’s motion to dismiss the Criglers’ action with prejudice is GRANTED.