Judge: Stephen P. Pfahler, Case: 19CHCV00654, Date: 2023-01-23 Tentative Ruling


Case Number: 19CHCV00654    Hearing Date: January 23, 2023    Dept: F49

Dept. F-49

Date: 1-23-23

Case # 19CHCV00654

Trial Date: 5-1-23 c/f 1-17-23

 

JUDGMENT ON THE PLEADINGS

 

MOVING PARTY: Defendant, Metu Ogike

RESPONDING PARTY: Unopposed/Plaintiff, Nicole Mays

 

RELIEF REQUESTED

Motion for Judgment on the Pleadings to the Second Amended Complaint

·         10th Cause of Action: Negligence

·         11th Cause of Action: Professional Negligence

·         12th Cause of Action: Breach of Fiduciary Duty

 

SUMMARY OF ACTION

In 2010, Plaintiff acquired certain real property, 20003 Egret Place, Canyon Country. Plaintiff fell into arrears on the mortgage in 2018, thereby leading to a June 18, 2018, recorded Notice of Default and October 9, 2018 recorded Notice of Trustee Sale by Defendant Mortgage Management Consultants, Inc. The sale date was set for October 30, 2018, but was apparently not conducted.

 

In February to March 2019, Plaintiff began submitted a loan modification with Mortgage Management Consultants, Inc. In a March 12, 2019 letter, Mortgage Management Consultants, Inc. acknowledged receipt and acceptance of the loan modification application, and that no foreclosure was pending. [First Amend. Comp., Ex. 4.] Notwithstanding the representation, a trustee sale on the property occurred on April 2, 2019. On April 9, 2019, Plaintiff was served with a three-day notice to quit. Defendant Magnum Property Investments, Inc. purchased the property at the trustee sale.

 

Plaintiff alleges that her personal property remained on the premises after she vacated, which was subsequently auctioned, with the rest disposed in the trash.

 

Plaintiff retained defendants Martha Rodriguez, Maria Torrero, and Metu Ogike following the foreclosure. Plaintiff alleges Defendants negligently represented her in defense of the unlawful detainer proceeding and/or challenging the foreclosure.

 

On August 13, 2019, Plaintiff in pro per filed a verified complaint for quiet title, negligence and trespass to land. Plaintiff recorded a lis pendens on August 15, 2019. Counsel substituted into the case for Plaintiff on October 15, 2019.

 

On January 2, 2019, plaintiff dismissed the prior lis pendens and filed a new lis pendens. On January 29, 2020, the court granted the motion of Magnum Property Investments, LLC to expunge the lis pendens.

 

Meanwhile, on January 14, 2020, the parties executed a stipulation for the filing of a first amended complaint. On February 5, 2020, Plaintiff filed the unverified 12 cause of action first amended complaint for wrongful foreclosure, fraudulent misrepresentation, negligent misrepresentation, negligence (fourth cause of action), unfair business practices, promissory estoppel, cancellation of instruments, conversion, negligence (ninth cause of action), negligence (tenth cause of action), professional negligence (eleventh cause of action), and breach of fiduciary duty.

 

Strategic Magnum Holdings, Inc. was not a named defendant in any cause of action.

 

On April 23, 2020, the clerk entered defaults against Martha Rodriguez and Maria Torrero. On May 26, 2020, the clerk entered a default against Metu Ogike. The default was entered two days prior to a motion for judgment on the pleadings to the first amended complaint.

 

On October 1, 2020, the court sustained the demurrer in part and overruled the demurrer in part of Defendants Magnum Property Investments, LLC, Strategic Magnum Holdings, Inc., and Forethought Life Insurance Company. The court also denied the motion to strike.

 

On October 13 and 14, 2020, the court granted the motions to set aside the defaults as to Defendants Martha Rodriguez and Maria Torrero.

 

On October 28, 2020, Plaintiff filed the second amended complaint for wrongful foreclosure, fraudulent misrepresentation, negligent misrepresentation, negligence (fourth cause of action), unfair business practices, promissory estoppel, cancellation of instruments, conversion, negligence (ninth cause of action), negligence (tenth cause of action), professional negligence (eleventh cause of action), and breach of fiduciary duty.

 

On November 5, 2020, the court granted the motion to set aside the default against Metu Ogike. Ogike answered on November 16, 2020. Mortgage Management Consultants, Inc. answered on November 20, 2020. On November 23, 2020, Plaintiff substituted in Dovenmuehle Mortgage, Inc. for Doe 1.

 

On February 5, 2021, the court granted the motion to be relieved as counsel of record for Plaintiff.

 

On April 16, 2021, the court sustained the demurrer of Mangum Property Investments, LLC, Forethought Life Insurance Company, and Strategic Magnum Holdings, Inc. to the second and seventh causes of action for fraud and cancellation of instruments, without leave to amend. Mangum Property Investments, LLC and Strategic Magnum Holdings, Inc. answered the remaining causes of action in the second amended complaint on April 19, 2021. On June 21, 2021, the court sustained the demurrer of Dovenmuehle Mortgage, Inc. with 30 days leave to amend. On August 20, 2021, the court entered the judgment of dismissal in favor of Dovenmuehle Mortgage, Inc.

 

On February 23, 2022, defendants Martha Rodriguez, in pro per, and Marie Torrero, in pro per, separately answered the second amended complaint.

 

RULING: Granted.

Defendant Metu Ogike submits the instant motion for judgment on the pleadings to the only three causes naming moving party—negligence (tenth cause of action), professional negligence (eleventh cause of action), and breach of fiduciary duty (twelfth cause of action). Ogike moves for judgment on the pleadings on grounds that Plaintiff fails to state facts supporting the subject claims. The claims against Ogike arise from the alleged undertaking of alleged legal services in response to the foreclosure. Specifically, Ogike acknowledges the allegation of a written retainer agreement, but challenges the lack of any proof of said written retain agreement between the parties, thereby undermining any claims arising from the alleged relationship between the parties. Ogike alternatively acknowledges the written retainer agreement [Declaration of Metu Ogike, Ex. A], but maintains the terms only required the provision of services following the conclusion of the foreclosure for purposes of making any claim for surplus funds, rather than foreclosure prevention itself, which is the basis of the operative complaint. The court electronic filing system shows no opposition or reply at the time of the tentative ruling publication cutoff.

 

“A motion for judgment on the pleadings serves the function of a demurrer, challenging only defects on the face of the complaint… [¶] The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice.” (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061.) In considering a motion for judgment on the pleadings, courts consider whether the factual allegations, assumed true, are sufficient to constitute a cause of action.  (Fire Insurance Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452-453.)

 

While the motion improperly relies on extrinsic reference, the portion of the argument challenging the factual allegations regarding the lack of any factual basis of liability against moving party remains unopposed. The court therefore grants the unopposed motion for judgment on the pleadings.

 

Motion to Compel the Deposition of Plaintiff set for March 17, 2023.

 

Moving party to give notice.