Judge Stephen I. Goorvitch, Case 19STCV29177 2022-10-31 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 19STCV29177, Date: 2022-10-31 Tentative Ruling

Case Number: 19STCV29177 Hearing Date: October 31, 2022 Dept: 39

Parvin Jamali v. Selective Portfolio Servicing, Inc., et al.

Case No. 19STCV29177

[Tentative] Orders on Demurrers

Order Setting Future Hearing Dates

Order #1 of 4

The Court posts this tentative order in advance of the hearings on demurrers filed by U.S. Bank National Association and Select Portfolio Servicing, Inc. The Court shall hold a hearing on Monday, October 31, 2022, at 9:00 a.m. Any party who does not appear shall waive the right to be heard and shall submit to entry of this tentative order.

Plaintiff Parvin Jamali (“Jamali”) filed this complaint against U.S. Bank National Association (“U.S. Bank”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) (collectively, the “Movants”) concerning a foreclosure action. Now, the Movants demur to the complaint. “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

In the alternative, the Court sustains the demurrer on the merits. Plaintiff’s first cause of action is under Civil Code section 2923.55. “A borrower may state a cause of action under [Civil Code] section 2923.5 by alleging the lender did not actually contact the borrower or otherwise make the required efforts to contact the borrower despite a contrary declaration in the recorded notice of default.” (Rossberg v. Bank of America, N.A. (2013) 219 Cal. App. 4th 1481, 1494.) Plaintiff alleges that Defendants failed to contact Plaintiff before taking Plaintiff’s default on April 25, 2019, and instead relied on contacts with Plaintiff from December 17, 2014. (First Amended Complaint, ¶ 53.) The purpose of contacts under Civil Code section 2923.5 is to require the lender to assess the borrower’s financial situation and explore options to avoid foreclosure. (Civ. Code, § 2923.5, subds. (a) – (b).) Plaintiff concedes that Defendants did so in advance of the foreclosure. Therefore, Plaintiff’s claim fails.

Plaintiff’s second cause of action is for slander of title. The elements of a cause of action for slander of title are: (1) a false and unprivileged disparagement; (2) of title to property; (3) resulting in actual pecuniary damage. (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 419.) Plaintiff alleges Defendants wrongfully recorded a notice of default and election to sell the property. The filing of documents pursuant to the foreclosure procedure is privileged under the common-interest privilege. (Civil Code § 2924(d).) The common-interest privilege is a qualified privilege, and may be overcome with a showing of malice. (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 341.) While Plaintiff alleges that Defendants maliciously filed the notice of default, Plaintiff does not allege facts to support that conclusion. (See First Amended Complaint, ¶ 61.)

Plaintiff’s third cause of action is for cancellation of instruments. To state a cause of action for cancellation of written instruments, Plaintiff must allege that written instruments are void or voidable as to Plaintiff, and that Plaintiff has a reasonable apprehension that these written instruments may cause serious injury to Plaintiff. (Civ. Code, § 3412.) Plaintiff alleges that Defendants filed a notice of default and election to sell in violation of stays. Plaintiff cites Royal Thrift and Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, which is not on point. In that case, the Court held that an automatic stay of nonjudicial foreclosure arises when a property owner appeals from an adverse judgment in a case where the owner was challenging the validity of the loan. (Royal Thrift and Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24, 35-37.) Here, Plaintiff concedes that no foreclosure sale took place. Instead, Plaintiff alleges that Defendants filed a notice of default. (First Amended Complaint, ¶ 49.) Accordingly, Plaintiff does not allege that Defendants foreclosed on Plaintiff’s property in violation of the rule set forth in Royal Thrift and Loan Co. v. County Escrow, Inc. (2004) 123 Cal.App.4th 24. The only other stay Plaintiff mentions is a stay of pending litigation, not foreclosure proceedings. (First Amended Complaint, ¶ 29.) Accordingly, Plaintiff has not alleged facts to support the claim for cancellation of instruments.

Plaintiff’s fourth cause of action is under the Rosenthal Fair Debt Collection Practices Act. Foreclosure proceedings do not constitute debt collection for purposes of the Rosenthal Fair Debt Collection Practices Act. (See Davidson v. Seterus, Inc. (2018) 21 Cal.App.5th 283, 300.) Likewise, Plaintiff’s fifth cause of elder abuse fails, as foreclosure proceedings do not constitute a wrongful taking of real property. (See Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527-528.)

Based upon the foregoing, the Court sustains the demurrer without leave to amend. Not only does the Court believe no amendment would be successful, Jamali did not oppose the demurrer and has not been participating in this litigation. The Movants’ counsel shall provide notice and file proof of such with the Court.

Order #2 of 3

Plaintiff Parvin Jamali (“Jamali”) filed this complaint against U.S. Bank National Association (“U.S. Bank”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) concerning a foreclosure action. Natasha Espinal (“Espinal”) filed a cross-complaint against U.S. Bank, which demurs to the cross-complaint. “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

As an initial matter, Espinal does not oppose the demurrer. “A failure to oppose a motion may be deemed a consent to the granting of the motion,” per California Rules of Court, rule 8.54(g). Based upon this authority, the Court sustains the demurrer. Putting that aside, Espinal filed an action against U.S. Bank (Case Number 19STCV29627) seeking the same relief. Therefore, the Court sustains the demurrer to the cross-complaint in the instant case without leave to amend. (See Branson v. SunDiamond Growers (1994) 24 Cal.App.4th 327, 335, fn. 2.)

Counsel for U.S. Bank shall provide notice and file proof of such with the Court.

Order #3 of 4

Plaintiff Parvin Jamali (“Jamali”) filed this complaint against U.S. Bank National Association (“U.S. Bank”) and Select Portfolio Servicing, Inc. (“Select Portfolio”) concerning a foreclosure action. Jamali filed a cross-complaint against U.S. Bank, which demurs to the cross-complaint. “It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

As an initial matter, Jamali does not oppose the demurrer. “A failure to oppose a motion may be deemed a consent to the granting of the motion,” per California Rules of Court, rule 8.54(g). Based upon this authority, the Court sustains the demurrer. Putting that aside, Jamali filed both a complaint and a cross-complaint against U.S. Bank. Therefore, the Court sustains the demurrer to the cross-complaint without leave to amend. (See Branson v. SunDiamond Growers (1994) 24 Cal.App.4th 327, 335, fn. 2.)

Counsel for U.S. Bank shall provide notice and file proof of such with the Court.

Order #4 of 4

On November 4, 2019, Defendant Barrett Daffin Frappier Treder & Weiss, LLP (“Barrett Daffin”) demurred to the complaint. The demurrer was not decided by the prior judge because a notice of appeal was filed, and the case was stayed. (See Court’s Minute Order, dated February 19, 2020.) The Court shall hear this demurrer on December 7, 2022, at 8:30 a.m. Any opposition and reply brief shall be due based upon statutory deadlines.

The Court shall hold a case management conference on December 7, 2022, at 8:30 a.m. The Court orders all parties to appear, either remotely or in-person, including cross-complainant Natasha Espinal, and cross-complainant Parvin Jamali. The Court sets an Order to Show Cause why the cross-complaint filed by Natasha Espinal and the cross-complaint filed by Parvin Jamali should not be dismissed without prejudice due to lack of prosecution under Code of Civil Procedure sections 581 and 583. The Court shall hold the hearing at the following location:

Stanley Mosk Courthouse

111 North Hill Street

Department #39 (Goorvitch, J.)

Los Angeles, California 90012

The Court provides notice that if the parties do not appear, either remotely or in-person, absent good cause, the Court intends to dismiss all remaining complaints and cross-complaints without prejudice (assuming the Court does not sustain Barrett Daffin’s demurrer.

Counsel for U.S. Bank shall provide notice and file poof of such with the Court.