Judge Teresa A. Beaudet, Case 22STCV07627 2022-12-06 Tentative Ruling

Plaintiff Judith Baldwin, in pro per, (“Plaintiff”) filed this action on March 2, 2022 against Defendants Select Portfolio Servicing, Inc. (“SPS”) and U.S. Bank N.A., Successor Trustee to Bank of America, N.A., Successor in Interest to Lasalle Bank, N.A., as Trustee, on Behalf of the Holders of WAMU Series Mortgage Pass Through Certificates 2005 AR17.

Plaintiff filed the operative First Amended Complaint (“FAC”) on July 7, 2022, asserting twenty causes of action.

Defendants SPS and U.S. Bank N.A., Successor Trustee to Bank of America, N.A., Successor in Interest to Lasalle Bank, N.A., as Trustee, on Behalf of the Holders of WAMU Mortgage Pass-Through Certificates, Series 2005-AR17 (“U.S. Bank”) (jointly, “Defendants”) now demur to each of the causes of action of the FAC. Defendants also move to strike portions of the FAC. Plaintiff opposes both.

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.)

Plaintiff alleges that she was the owner of residential real property located at 12518 Addison St., Valley Village, California 91607 (the “Subject Property”). (FAC, ¶ 8.)

Plaintiff appears to allege that on or about October 5, 2005, she obtained a loan from Washington Mutual Bank, FA in the sum of $664,000.00 (“the Loan”), secured by a Deed of Trust (“Deed of Trust”) recorded against her property on October 13, 2005. (FAC, ¶ 11(a), p. 4.) SPS was acting as the loan serving agent for the Loan. (FAC, ¶ 11(a), p. 5.)

On April 6, 2010, a notice of default (“NOD”) was recorded against the Property. (FAC, ¶ 11(b), p. 4.) On January 15, 2019, a notice of trustee sale (“NOTS”) was recorded against the Property. (FAC, ¶ 11(c), p. 5.) On August 22, 2019, a trustee’s deed upon sale (“TDUS”) was recorded, indicating that the Subject Property was sold at an auction on August 13, 2019, to U.S. Bank. (FAC, ¶ 11(d), p. 5.)

As Defendants note, the premise of Plaintiff’s FAC is that the foreclosure sale of the Subject Property was wrongful.

Statute of Limitations as to Plaintiffs’ First, Second, and Fifth Causes of Action

Plaintiff’s first cause of action is for violation of Civil Code section 2923.5 “and/or” 2923.55. Civil Code section 2923.5, subdivision (a)(1) provides that: “(a)(1) A mortgage servicer… shall not record a notice of default pursuant to Section 2924 until both of the following: (A) Either 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (e). (B) The mortgage servicer complies with paragraph (1) of subdivision (a) of Section 2924.18, if the borrower has provided a complete application as defined in subdivision (d) of Section 2924.18.”

Civil Code section 2923.55, subdivision (a)(1) similarly provides that “(a) A mortgage servicer…shall not record a notice of default pursuant to Section 2924 until all of the following: (1) The mortgage servicer has satisfied the requirements of paragraph (1) of subdivision (b). (2) Either 30 days after initial contact is made as required by paragraph (2) of subdivision (b) or 30 days after satisfying the due diligence requirements as described in subdivision (f). (3) The mortgage servicer complies with subdivision (c) of Section 2923.6, if the borrower has provided a complete application as defined in subdivision (h) of Section 2923.6.” Pursuant to Civil Code section 2923.55, subdivision (b)(1), a mortgage servicer shall send certain specified information in writing to the borrower. Pursuant to Civil Code section 2923.55, subdivision (b)(2), “[a] mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure...” Pursuant to Civil Code section 2923.55, subdivision (c), “[a] notice of default recorded pursuant to Section 2924 shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required because the individual did not meet the definition of ‘borrower’ pursuant to subdivision (c) of Section 2920.5.”

Plaintiff alleges that “Defendants did not satisfy the requirements of paragraph (1) of subdivision (b), as required by section (a)(1), since they never sent Plaintiff a statement advising that Plaintiff could request” certain information. (FAC, ¶ 14(a).) Plaintiff also alleges that Defendants did not comply with Civil Code section 2923.55, subdivision (b)(2) or (c), because “a mortgage servicer never contacted Plaintiff in person or by telephone in order to assess the Plaintiff’s financial situation and explore options for the borrower to avoid foreclosure prior to recording the NOD.” (FAC, ¶ 14(b).)

Plaintiff’s second cause of action is for violation of Civil Code section 2923.6. Civil Code section 2923.6, subdivision (c) provides, “[i]f a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer…shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee’s sale until any of the following occurs: (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired. (2) The borrower does not accept an offered first lien loan modification within 14 days of the offer. (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower’s obligations under, the first lien loan modification.”

Plaintiff alleges that “[p]ursuant to the statute, Defendants were contractually bound to offer Plaintiff an opportunity to apply for a loan modification or workout plan if they were under the belief that Plaintiff’s loan was in default. Defendants however failed to properly review Plaintiff for a modification.” (FAC, ¶ 19.) Plaintiff alleges that Defendants violated Civil Code section 2923.6 because they “provided Plaintiff with false and conflicting fraudulent and negligent information including one correspondence that confirms that SPS will, in fact, review Plaintiff for a loss mitigation alternative and another one a day or two later advising that SPS simply refuses to review Plaintiff for a modification because the sale is 15 days away.” (FAC, ¶ 19.)

Plaintiff’s fifth cause of action is for violation of Civil Code section 2924.17. Civil Code section 2924.17, subdivision (a) provides that “[a] declaration recorded pursuant to Section 2923.5 or pursuant to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence.” Plaintiff alleges that “Defendants violated…Section 2924.17 by not properly reviewing Plaintiff’s loan information and verifying whether Defendants had the right to foreclose pursuant to competent and reliable evidence.” (FAC, ¶ 35.)

Defendants assert that the first, second, and fifth causes of action are time barred. They contend that the statutory violations alleged in these causes of action arise from the recording of the subject notice of default on April 6, 2010, which took place over eleven years prior to the filing of this action. (See FAC, ¶ 11(b), p. 4, “The NOD was recorded on April 6, 2010.”) Defendants note that pursuant to Code of Civil Procedure section 338, subdivision (a), there is a three-year statute of limitations for “[a]n action upon a liability created by statute, other than a penalty or forfeiture.”

Plaintiff asserts that “[t]he fraud and other irregularities in the NOD is not barred by… statute of limitations as Plaintiff is alleging the invalidity of the NOD is only relevant in that it renders the subsequent NOTS and TDUS based on the NOD void and/or voidable.” (Opp’n at p. 5:14-17, emphasis omitted.) As set forth above, Plaintiff alleges that a notice of trustee sale was recorded on January 15, 2019, and that a trustee’s deed upon sale was recorded on August 22, 2019. (FAC, ¶ 11(c)-(d), p. 5.)

But Civil Code sections 2923.5 and 2923.55 provide that certain actions must be taken before a notice of default is recorded. Thus, the Court agrees with Defendants that the alleged statutory violations of Civil Code sections 2923.5 and 2923.55 arise from the alleged recording of the notice of default on April 6, 2010. Plaintiff filed the instant action more than three years later, on March 2, 2022. Thus, the Court sustains the demurrer to the first cause of action, with leave to amend.

The Court does not find that all of the alleged violations of Civil Code section 2923.6 and 2924.17 arise from the alleged recording of the notice of default on April 6, 2010. As discussed, Civil Code section 2923.6, subdivision (c) provides that “[a] mortgage servicer… shall not record a notice of default or notice of sale or conduct a trustee’s sale until any of the following occurs…” (Emphasis added.) In addition, Civil Code section 2924.17, subdivision (a) provides that “[a] declaration recorded pursuant to Section 2923.5 or pursuant to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence.” (Emphasis added.) The Court notes that “[a] demurrer does not lie to a portion of a cause of action.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682.)

Civil Code section 2923.6, subdivision (c) provides that “[i]f a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower’s mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending.”

Plaintiff alleges that “[i]n 2019, Plaintiff submitted to SPS an application for a loan modification.” (FAC, ¶ 11(a), p. 5.) Defendants assert that there is no allegation that the loan modification was pending when the notice of trustee’s sale was recorded on January 15, 2019. (FAC, ¶ 11(c), p. 5.) The Court likewise does not find any such allegation. Defendants also assert that the FAC does not allege that at least 5 business days prior to the sale date, Plaintiff submitted to SPS a complete loan modification package, as required by Section 2923.6, which would prevent the sale from going forward. In paragraph 55 of the FAC, Plaintiff alleges that “in 2019 she submitted a ‘complete’ loan modification application…” (FAC, ¶ 55, emphasis added.) Plaintiff alleges that “Defendants unlawfully proceeded with an invalid trustee sale of the Subject Property on August 13, 2019…” (FAC, ¶ 30.) However, the Court is unable to locate any allegations that Plaintiff’s application for a loan modification was submitted at least five business days before a scheduled foreclosure sale.

Based on the foregoing, the Court sustains the demurrer to the second cause of action, with leave to amend.

Plaintiff’s third cause of action is for violation of Civil Code section 2923.7. This provision provides that “[w]hen a borrower requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication with the single point of contact.” (Civ. Code § 2923.7, subd. (a).)

Defendants assert that Plaintiff alleges no facts showing her loan obligation or modification process was affected by a purported violation of Section 2923.7. But Defendants only cite to nonbinding federal authority in support of this assertion. Moreover, Plaintiff alleges that “Defendants never provided Plaintiff or Plaintiff’s representative(s) with an actual SPOC that was responsive, available, reachable by a dedicated phone number, and knowledgeable about Plaintiff’s loan modification application(s), but instead provided Plaintiff with conflicting and confusing communications.” (FAC, ¶ 25.) Plaintiff alleges that as a result of Defendants’ failure to comply with Civil Code section 2923.7, Plaintiff has been subjected to the foreclosure process and lost title to the Subject Property. (FAC, ¶ 26.)

Based on the foregoing, the Court overrules the demurrer to the third cause of action.

Plaintiff’s fourth cause of action is for violation of Civil Code section 2924.11. Pursuant to Civil Code section 2924.11, subdivision (a), “[i]f a foreclosure prevention alternative is approved in writing prior to the recordation of a notice of default, a mortgage servicer…shall not record a notice of default under either of the following circumstances: (1) The borrower is in compliance with the terms of a written trial or permanent loan modification, forbearance, or repayment plan. (2) A foreclosure prevention alternative has been approved in writing by all parties, including, for example, the first lien investor, junior lienholder, and mortgage insurer, as applicable, and proof of funds or financing has been provided to the servicer.” Defendants assert that the fourth cause of action fails because Plaintiff does not allege that she at any time had been approved for a foreclosure prevention alternative prior to the recording of the notice of default on April 6, 2010.

Indeed, Plaintiff alleges that Defendants violated Civil Code section 2924.11 because SPS “intentionally or negligently failed, frustrated, or refused to receive Plaintiff’s [request for mortgage assistance] application.” (FAC, ¶ 30.) Plaintiff alleges that “[d]espite the fact that Plaintiff’s loan modification application was not properly reviewed, and Plaintiff had not been provided with a valid denial, Defendants unlawfully proceeded with an invalid trustee sale of the Subject Property on August 13, 2019, in direct violation of California Civil Code Section 2924.11.” (FAC, ¶ 30.) It is unclear what provision of Civil Code section 2924.11 Plaintiff alleges has been violated here.

Based on the foregoing, the Court sustains the demurrer to the fourth cause of action, with leave to amend.

Plaintiff’s fifth cause of action is for violation of Civil Code section 2924.17. As set forth above, Civil Code section 2924.17, subdivision (a) provides that “[a] declaration recorded pursuant to Section 2923.5 or pursuant to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence.”

Defendants assert that this cause of action is barred by the doctrine of res judicata because Plaintiff previously challenged the accuracy of the notice of default in her federal lawsuit against Defendants in connection with her cause of action for the alleged violation of Civil Code section 2923.5. Defendants provide judicially noticeable evidence that Plaintiff filed a Complaint in the U.S. District Court for the Central District of California on March 14, 2019 in Case No. 2:19-cv-01898-JAK-AGR (the “Federal Action”). (Defendants’ RJN, Ex. 3.) In a December 26, 2019 minute order, the United States District Court indicated, inter alia, that Defendants’ motion to dismiss was granted “insofar as the Complaint advances a cause of action premised on the April 2010 Notice of Default having been entered in violation of Cal. Civ. Code § 2923.5. Because there is no reasonable basis for asserting tolling until 2019, any amendment to this claim would be futile. Therefore, the claim is dismissed with prejudice.” (Defendants’ RJN, Ex. 6, p. 10.)

“The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction. Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different cause of action.” (Warga v. Cooper (1996) 44 Cal.App.4th 371, 377 [internal quotations omitted].) Defendants note that “the rule is that the prior judgment is res judicata on matters which were raised or could have been raised, on matters litigated or litigable.” (Id. at p. 378.) Defendants contend in the demurrer that “[s]ince the Notice of Default was recorded in 2010, prior to the filing of the federal lawsuit, the alleged inaccuracy as to the default amount contained in the Notice of Default could have, and should have, been raised in the federal lawsuit. Had it been raised the Court would have likewise dismissed it with prejudice on the ground it is time-barred.” (Demurrer at p. 14:24-27.) But Plaintiff’s fifth cause of action does not solely challenge the accuracy of the notice of default. Plaintiff alleges that “the amounts of arrears in the NOD, NOTS and the amount at trustee’s sale were inaccurate and highly inflated due to SPS adding excessive fees, costs, and interest to the SUBJECT LOAN balance. Defendants violated C.C.C. Section 2924.17 by not properly reviewing Plaintiff’s loan information and verifying whether Defendants had the right to foreclose pursuant to competent and reliable evidence.” (FAC, ¶ 35.) In the reply, Defendants assert that the challenge to the accuracy of the notice of trustee’s sale is likewise barred by res judicata because it could have been raised in the prior lawsuit but was not. The Court notes that Defendants did not make this argument in the demurrer, and “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)

Based on the foregoing, the Court overrules the demurrer to the fifth cause of action.

Plaintiff’s sixth cause of action for breach of contract alleges that “Defendants materially breached the Deed of Trust by failing to provide Plaintiff with notice of Plaintiff’s right to bring a lawsuit to allege defenses to the acceleration and sale.” (FAC, ¶ 41.) Plaintiff cites to paragraph 22 of the deed of trust, which she alleges provides that “Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument…The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.” (FAC, ¶ 41.) “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Defendants assert that the breach of contract cause of action fails because Plaintiff has not alleged facts showing that she suffered damages as a proximate result of Defendants’ purported breach of their alleged obligations under Paragraph 22. But Plaintiff alleges that as a result of Defendants’ breach of contract, she has suffered the loss of her residence as well as other damages. (FAC, ¶ 46.)

Defendants also assert that the breach of contract cause of action fails because Plaintiff has not alleged facts showing she performed her obligations under the deed of trust. In the opposition, Plaintiff asserts that she alleged that she was “excused from performing as Defendant’s obligation only arose upon default,” citing to paragraph 44 of the FAC, which alleges that “Defendants duty to provide the requisite above-referenced notice only arose upon Plaintiff’s default.” Defendants counter that Plaintiff has thus not alleged facts showing that she was excused from performing her obligations to make loan payments, as “[t]he alleged obligations under Paragraph 22 of the Deed of Trust arise only after Plaintiff defaults on her loan obligations. In short, she was in breach of her obligations before Defendants breached

Based on the foregoing, the Court sustains the demurrer to the sixth cause of action, with leave to amend.

Seventh Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing

Plaintiff alleges that “Defendants interfered with Plaintiff’s right to receive the benefits of the above-referenced agreement and breached the covenant of good faith and fair dealing implied in the Deed of Trust” in a number of ways. (FAC, ¶ 52.) Defendants assert that “the benefits under the Deed of Trust that Defendants allegedly interfered with are set forth in subsections a-k of Paragraph 52 of the FAC. Except for possibly subsection g., the items listed therein are

not benefits or obligations provided for under the Deed of Trust.” (Demurrer at p. 16:15-17.) However, Plaintiff also alleges that Defendants interfered with Plaintiff’s right to receive the benefits of another “above-referenced agreement.” (FAC, ¶ 52.) Plaintiff alleges that “[s]ubsequent to entering into the Deed of Trust, Plaintiff alleges that Defendants were assigned a beneficial interest, and/or substituted in as trustee and/or servicer, and that accordingly, Plaintiff has an agreement with at least one of the above-referenced Defendants…It is pursuant to this agreement that Defendants have collected monthly payments on the Subject Loan claiming a beneficial interest in the SUBJECT PROPERTY and pursuant to which Defendants foreclosed upon the Subject Property.” (FAC, ¶ 50.) Defendants’ arguments solely pertain to the alleged deed of trust.

Based on the foregoing, the Court overrules the demurrer to the seventh cause of action.

Although Plaintiff does not clearly allege that the eighth cause of action is for promissory estoppel, “[t]he elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance.” (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734 [internal quotations omitted].)

Defendants assert that because Plaintiff has not shown that Defendants made a clear and unambiguous promise, Plaintiff fails to state a claim for promissory estoppel. But in support of the eighth cause of action, Plaintiff alleges that “Defendants clearly promised to review Plaintiff for a loss mitigation alternative,” and that “Defendants failed to perform the promises by not reviewing Plaintiff for a loss mitigation alternative.” (FAC, ¶¶ 55-56.)

Based on the foregoing, the Court overrules the demurrer to the eighth cause of action.

To prevail on a negligence claim, plaintiffs must show that the defendant “owed them a legal duty, that it breached the duty, and that the breach was a proximate or legal cause of their injuries.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477.) Plaintiff alleges in support of the negligence cause of action that “Defendants, and in particular SPS breached the duty of care owed to Plaintiff in the servicing of the SUBJECT LOAN by, among other things, failing to assist and review [request for mortgage assistance] with Plaintiff, preparing and filing false documents, and thereby proceeding with an invalid trustee sale, taking ownership from Plaintiff through [Trustee’s Deed Upon Sale].” (FAC, ¶ 63.) As set forth above, Plaintiff alleges that the trustee’s deed upon sale was recorded on August 22, 2019, and that the subject property was sold at an auction on August 13, 2019. (FAC, ¶ 11(d), p. 5.)

Defendants assert that since the alleged foreclosure sale took place in August 2019, the negligence claim is barred by the applicable two-year statute of limitations that expired in August 2021. (See So v. Shin (2013) 212 Cal.App.4th 652, 662, “[t]he limitations period for a cause of action for ordinary negligence is two years.” The instant action was filed on March 2, 2022. Defendants also cite to Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 948, where the California Supreme Court held that “when a borrower requests a loan modification, a lender owes no tort duty sounding in general negligence principles to ‘process, review and respond carefully and completely to’ the borrower's application.” Plaintiff fails to address these points in her opposition.

Tenth Cause of Action for Fraudulent Misrepresentation and Eleventh Cause of Action for Negligent Misrepresentation

“The elements of fraud or deceit are: a representation, usually of fact, which is false, knowledge of its falsity, intent to defraud, justifiable reliance upon the misrepresentation, and damage resulting from that justifiable reliance. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 72-73 [internal citations omitted].) “Negligent misrepresentation is a form of deceit, the elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages.” (B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823, 834 [internal quotations omitted].)

“In California, fraud must be pled specifically; general and conclusory allegations do not suffice…This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. A plaintiff's burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 [internal quotations and citations omitted, emphasis in original].)[1]

In support of the tenth cause of action for fraudulent misrepresentation, Plaintiff asserts that “Defendants misrepresented their intention to properly review Plaintiff for a loss mitigation alternative and further misrepresented their right to proceed with an invalid trustee sale.” (FAC, ¶ 70.) As Defendants note, there are no allegations as to who made these purported representations on behalf of one or both Defendants, the authority of such person(s) to speak for all of the Defendants[2], what they specifically said or wrote, and when such representations were supposedly made to Plaintiff. Plaintiff cites to Exhibit E to the FAC (FAC, ¶ 70), but does not point to any statements in the letters attached as Exhibit E showing that Defendants represented that they would properly review Plaintiff for a loss mitigation alternative or that Defendants had a right to proceed with the foreclosure.

In the opposition, Plaintiff cites to Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47 in support of the fraud causes of action, where the Court noted that “in the pleading of fraud, the rule is relaxed when it is apparent from the allegations that the defendant necessarily possesses knowledge of the facts.” But as Defendants note, there are two Defendants here, and Plaintiff fails to clearly specify which Defendant did what, when and how. Defendants also asserts that “the alleged events constituting the fraud scheme and who Plaintiff communicated with in connection with the alleged misrepresentations is within Plaintiff’s knowledge.” (Reply at p. 6:17-19.) Further, Defendants assert that they would not have more knowledge regarding the alleged execution of a fraudulent notice of default than Plaintiff, because the notice of default indicates that JP Morgan Chase Bank caused it to be executed and recorded in 2010 (and not Defendants here). (See FAC, ¶ 11(b), p. 4, Ex. B.)

In support of the negligent misrepresentation cause of action, Plaintiff alleges that “Defendants, and each of them, made various fraudulent and negligent misrepresentations of fact. Please see Paragraphs 11 and 71 hereinabove incorporated herein by this reference.” (FAC, ¶ 79.) In paragraph 71, Plaintiff alleges that “Defendants utilized multiple and ever-changing points of contact in order to delay, obstruct, confuse, and discourage Plaintiff from completing the loan modification process.” (FAC, ¶ 71.) But the Court does not see how this constitutes alleged misrepresentations of fact. As to paragraph 11 of the FAC, it is unclear what the alleged negligent misrepresentations are. In the opposition, Plaintiff does not point to any allegations demonstrating “how, when, where, to whom, and by what means the representations were made…” (Foster v. Sexton, supra, 61 Cal.App.5th 998, 1028, citing to Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Based on the foregoing, the Court sustains Defendants’ demurrer to the tenth and eleventh causes of action, with leave to amend.

“To maintain an action for deceit based on a false promise, one must specifically allege and prove, among other things, that the promisor did not intend to perform at the time he or she made the promise and that it was intended to deceive or induce the promisee to do or not do a particular thing. Given this requirement, an action based on a false promise is simply a type of intentional misrepresentation, i.e., actual fraud.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159 [internal citations omitted].) As set forth above, “[i]n California, fraud must be pled specifically…A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Lazar v. Superior Court, supra, 12 Cal.4th at p. 645 [internal quotations and citations omitted].)

In support of the twelfth cause of action for fraudulent promise without intention to perform, Plaintiff alleges that “Defendants fraudulently promised to review Plaintiff for a loss mitigation alternative. Please see, for example Paragraph 11, 75 above, and Exhibit E referenced above, and elsewhere in this Complaint, all of which are incorporated herein by this

reference.” (FAC, ¶ 85.) Plaintiff alleges that “Defendants failed to perform the promises by failing to properly review Plaintiff for a loss mitigation alternative and instead proceeding with an invalid trustee sale without having provided Plaintiff with a valid denial or right to appeal.” (FAC, ¶ 86.) Defendants assert that paragraph Paragraphs 11 and 75 and Exhibit E are devoid of any factual allegations to support Plaintiff’s claim that Defendants promised that they would “properly review Plaintiff for a loss mitigation alternative.” Plaintiff does not respond to this point in the opposition. Defendants also assert that there are no allegations as to who made this purported promise on behalf of one or both Defendants, the authority of such person(s) to speak for Defendants, what they specifically said or wrote, and when such representations were supposedly made to Plaintiff. As set forth above, Plaintiff asserts in connection with her fraud causes of action that the specificity requirement is relaxed here. Defendants’ response to this assertion is discussed above.

Based on the foregoing, the Court sustains the demurrer to the twelfth cause of action.

“The required elements for fraudulent concealment are (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

In support of the thirteenth cause of action for fraudulent concealment, Plaintiff alleges that “Defendants intentionally concealed the following material facts from Plaintiff – that Defendants had no intention of reviewing Plaintiff for a loss mitigation alternative at the time they advised Plaintiff that they would, and that Defendants were legally entitled to proceed with foreclosure.” (FAC, ¶ 95.) Defendants assert that Plaintiff fails to allege specific facts supporting each element of this cause of action. As Defendants note, Plaintiff does not allege what facts support the existence of a duty by Defendants owed to Plaintiff to disclose the material facts, and Plaintiff does not allege that she was unaware of such fact(s) and would not have acted as she did if she had known of the concealed or suppressed fact. Plaintiff does not respond to this point in the opposition.

Based on the foregoing, the Court sustains the demurrer to the thirteenth cause of action.

In support of the fourteenth cause of action for declaratory relief, Plaintiff alleges that “[a] dispute has arisen between and among Plaintiff and Defendants and each of them as to the duties and obligations of the respective parties with regard to the SUBJECT LOAN, and title to the SUBJECT PROPERTY.” (FAC, ¶ 105.) Plaintiff further alleges that “a dispute has arisen between Plaintiff and Defendants and each of them as to the duties and obligations of the respective parties regarding the unlawfully foreclosed DOT and the purported trustee sale and resulting TDUS.” (FAC, ¶ 106.)

Defendants assert that the declaratory relief cause of action fails because Plaintiff seeks to address alleged past wrongs of Defendants and for redress of those alleged past wrongs. Defendants cite to Osseous Technologies of America, Inc. v. DiscoveryOrtho Partners LLC (2010) 191 Cal.App.4th 357, 367, where the Court of Appeal noted that “[t]here is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them.” (Internal quotations omitted.) In the opposition, Plaintiff asserts that “Defendants despite failing to comply with the HBOR and pursuant to fraudulent conduct, took the Subject Property back via credit bid in August 2019. Plaintiff believes Defendants still have title to the Subject Property, acquired through an invalid and illegal sale, and senior citizen Plaintiff wants to return to her home. Accordingly, there is indeed an ongoing controversy that requires an adjudication separate from the remaining causes of action.” (Opp’n at p. 16:7-12.) But as Defendants note, Plaintiff thus seeks a declaration that the alleged foreclosure sale conducted in 2019 was invalid and seeks to redress such past wrongs.

Based on the foregoing, the Court sustains the demurrer to the fourteenth cause of action, with leave to amend.

Fifteenth Cause of Action for Wrongful Foreclosure, to Set Aside Trustee Sale and Injunctive Relief

In support of the fifth cause of action for wrongful disclosure, to set aside trustee sale, and injunctive relief, Plaintiff alleges that “Defendants caused an illegal, fraudulent, and willfully oppressive transfer and conveyance of the SUBJECT PROPERTY pursuant to a power of sale contained in the Deed of Trust” by engaging in a variety of conduct. (FAC, ¶ 113.)

“The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They 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.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408 [internal quotations omitted]) “Federal district courts interpreting this cause of action have frequently cited the Nevada rule articulated in Collins v. Union Federal Sav. & Loan Assn. (1983) 99 Nev. 284 [662 P.2d 610, 623], that [a]n action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish that at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale…In other words, mere technical violations of the foreclosure process will not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the facts of the case.” (Id. at pp. 408-409 [internal quotations omitted].)

Defendants assert that the fifteenth cause of action must fail because Plaintiff does not allege she was not in default under terms of her loan. Defendants also note that the July 31, 2019 letter included in Exhibit “E” to FAC indicates that “[a]s of the date of this letter, the account is due for December 1, 2009.” Plaintiff does not respond to this point in the opposition.

Thus, the Court sustains the demurrer to the fifteenth cause of action, with leave to amend.

Defendants assert that the sixteenth cause of action for quiet title must fail because Plaintiff does not allege that she tendered the outstanding debt, and she is not excused from the tender requirement. Defendants note that “[a] borrower may not…quiet title against a secured lender without first paying the outstanding debt on which the mortgage or deed of trust is based. The cloud on title remains until the debt is paid.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86 [internal citations omitted].)

In the FAC, Plaintiff alleges that exceptions to the tender requirement apply here. (FAC, ¶ 11(q), pp. 11-12.) In the opposition, Plaintiff cites to Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 929, footnote 4, where the Court of Appeal noted that “[i]t has been held that, at least when seeking to set aside the foreclosure sale, the plaintiff must also show prejudice and a tender of the amount of the secured indebtedness, or an excuse of tender. Tender has been excused when, among other circumstances, the plaintiff alleges the foreclosure deed is facially void, as arguably is the case when the entity that initiated the sale lacked authority to do so.” (Internal citations omitted.) Here, Plaintiff alleges that “[t]he fraud and other irregularities in the NOD renders the subsequent NOTS and TDUS based on the NOD void and/or voidable.” (FAC, ¶ 11(b), p. 7.) Plaintiff also alleges that “the 2010 NOD is void or voidable due to lack of an authorized corporate signature by purported designee Clement J. Durkin.” (FAC, ¶ 11(b), p. 6.) The Court notes that “[a]s a general rule¿in testing a pleading against a demurrer the facts alleged in the pleading are deemed to be true, however improbable they may be.” (Del E. Webb Corp. v. Structural Materials Co.¿(1981) 123 Cal.App.3d 593, 604.)

Based on the foregoing, the Court overrules the demurrer to the sixteenth cause of action.

Seventeenth Cause of Action for Slander of Title and Eighteenth Cause of Action for Cancellation of Instruments

“To establish slander of title, a plaintiff must show: (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 612 [internal quotations omitted].) In support of the seventeenth cause of action for slander of title, Plaintiff alleges that “Defendants harmed Plaintiff by recording documents that cast doubt about Plaintiff’s ownership of the SUBJECT PROPERTY,” including a “fraudulent and invalid Notice of Default,” a “fraudulent and invalid Notice of Trustee Sale,” and a “fraudulent and invalid Trustee’s Deed Upon Sale.” (FAC, ¶ 124.)

“Civil Code section 3412 provides a ‘written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled.’ To obtain cancellation under this section, a plaintiff must allege the instrument is “void or voidable” and would cause ‘serious injury’ if not canceled. Cancellation of an instrument is essentially a request for rescission of the instrument. The effect of a decree cancelling an instrument is to place the parties where they were before the instrument was made, as if it had never been made.” (Deutsche Bank National Trust Co. v. Pyle (2017) 13 Cal.App.5th 513, 523 [internal citations omitted].) In support of the eighteenth cause of action for cancellation of instruments, Plaintiff alleges that “[t]he NOD and/or NOTS and/or TDUS were all executed and recorded fraudulently as alleged in detail throughout this Verified Complaint. These aforementioned recorded documents if left standing have and will cause Plaintiff serious injury, including loss of the SUBJECT PROPERTY and eviction, as well as damage to credit,

loss of interest, loss of equity, as well as payment of an exorbitant sum in interest, fees and costs.” (FAC, ¶ 133.)

Defendants argue that since the cancellation of instruments cause of action relies on the failed fraud-based causes of action, this cause of action likewise fails. As set forth above, the Court sustains Defendants’ demurrer to Plaintiff’s fraud-based causes of action. In addition, as both the slander of title, in Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331, 1336, the Court of Appeal found that “[p]laintiff failed to state a cause of action for slander of title because all of the documents underlying his claim are privileged.” The Schep Court noted that “[t]he recording of a notice of sale and notice of default are privileged. Section 2924, subdivision (d)(1), provides that ‘[t]he mailing, publication, and delivery of notices as required’ by Section 2924 ‘constitute privileged communications pursuant to Section 47.’…section 2924 mandates the recording of both a notice of default…and a notice of sale… The recording of a trustee’s deed upon sale is also privileged.” (Ibid.) Defendants thus assert that the alleged recording of the notice of default, notice of trustee sale, and trustee’s deed upon sale here was privileged, such that the slander of title and cancellation of instruments causes of action fail.

In the opposition, Plaintiff cites to Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 336, where the Court of Appeal noted that Civil Code section 47 “provides a qualified privilege for communications made without malice, to a person interested therein, … by one who is also interested, the so-called common interest privilege. For this purpose, malice is defined as actual malice, meaning that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” (Internal quotations omitted, emphasis in original.) The Kachlon Court held that “section 2924 deems the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures, to be privileged communications under the qualified common interest privilege of section 47, subdivision (c)(1). We conclude that Best Alliance’s recording of the notice of default was privileged, that the evidence failed to demonstrate Best Alliance acted with malice, and that therefore Best Alliance was immune from the Markowitzes’ slander of title and negligence claims.” (Kachlon v. Markowitz, supra, at p. 333.) Plaintiff asserts that here, “Defendants’ conduct clearly indicates a malicious intent to force Plaintiff into foreclosure by refusing to review Plaintiff’s loan modification application in direct violation of Civil Code § 2923.6.” (Opp’n at p. 18:9-12.) But as set forth above, the Court sustains Defendants’ demurrer to the second cause of action for violation of Civil Code Section 2923.6.

Based on the foregoing, the Court sustains the demurrer to the seventeenth and eighteenth causes of action.

In support of the nineteenth cause of action for elder abuse, Plaintiff alleges that the “acts of abuse” were that Defendants recorded “a facially fraudulent and invalid NOD, NOTS and TDUS without having complied with the requirements of the Civil Code, pursuant to which they appropriated the Subject Property from Plaintiff.” (FAC, ¶ 142.) Plaintiff alleges that Defendants have “committed elder abuse as defined at Welfare and Institutions Code Section 15610.30.” (FAC, ¶ 140.)

Financial elder abuse occurs when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both,” or assists another in doing so. (Welf. & Inst. Code, § 15610.30, subd. (a).) A taking is for a “wrongful use” when a party “knew or should have known that [its] conduct is likely to be harmful to the elder….” (Welf. & Inst. Code, § 15610.30(b).)

Defendants assert that the elder abuse cause of action fails because the fraud causes of action fail, and because the recording of the subject documents is privileged. Plaintiff does not respond to these points in the opposition.

Based on the foregoing, the Court sustains the demurrer to the nineteenth cause of action.

Twentieth Cause of Action for Violation of Business and Professions Code section 17200, et seq.

¿¿Business and Professions Code section 17200, et seq. (the “Unfair Competition Law” or “UCL”) prohibits fraudulent, unlawful and unfair business practices. Pursuant to Business and Professions Code section 17204, “[a]ctions for relief pursuant to this chapter shall be prosecuted exclusively in a court of competent jurisdiction by,” inter alia, “a person who has suffered injury in fact and has lost money or property as a result of the unfair competition.”

Plaintiff alleges that Defendants engaged in unfair business practices in a number of ways. (See FAC, ¶ 151.) Defendants assert that Plaintiff has failed to allege facts showing economic injury and causation, specifically, that she has not alleged facts showing that absent the alleged unfair and fraudulent conduct of Defendants, she would have received a loan modification or otherwise avoided foreclosure. But Plaintiff alleges that “had SPS legitimately conducted a review of Plaintiff’s financial condition, identify, and help plaintiff with RMA, Plaintiff would have qualified for a loan modification and not been subjected to the loss of her residence for 14 years, along with accumulated equity therein.” (FAC, ¶ 152.)

Defendants argue for the first time in the reply that the causes of action relied upon by Plaintiff for her UCL cause of action fail, such that the UCL cause of action likewise fails. As set forth above, “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh, supra, 10 Cal.App.4th at p. 1453.)

Based on the foregoing, the Court overrules the demurrer to the twentieth cause of action.

A court may strike any “irrelevant, false, or improper matter inserted in any pleading” or all or any part of a pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437.)

Defendants move to strike a number of allegations, including Plaintiff’s requests for punitive damages. Plaintiff’s requests for punitive damages are sought in connection with the tenth, twelfth, thirteenth, and nineteenth causes of action (Paragraphs 77, 93, 101, 103, and 148) and paragraph 8 of the prayer for relief. As set forth above, the Court sustains Defendants’ demurrer to the tenth, twelfth, thirteenth, and nineteenth causes of action. Thus, Defendants’ motion to strike is moot as to paragraphs 77, 93, 101, and 148 of the FAC. Defendants also move to strike “Paragraph 8 of the Prayer as to the Tenth, Twelfth, Thirteenth, Nineteenth and Twentieth Causes of Action.” (Mot. at p. 3:5-6.) Because the Court grants Defendants’ demurrer to these causes of action, Defendants’ motion to strike paragraph 8 of the prayer for relief is likewise moot.

Plaintiff also moves to strike requests for injunctive relief in connection with the first through fifth causes of action. As set forth above, the Court sustains Defendants’ demurrer to the

first, second, and fourth causes of action. Thus, Defendants’ motion to strike to paragraphs 16, 22, and 32 of the FAC is moot. Similarly, Defendants’ motion to strike paragraph 2 of the prayer for relief as to the first, second, and fourth causes of action is moot.

Defendants move to strike paragraph 27 of the third cause of action and paragraph 37 of the fifth cause of action, which provide that:

“Due to Defendant’s non-compliance with Civil Code [Sections 2923.7 and 2924.17], Plaintiff is likely to succeed in Plaintiff’s claim for relief. Plaintiff seeks injunctive relief preventing Defendants from selling or transferring their interest in the Subject Property to another party and rescission of the invalid trustee sale. The hardship incurred by Plaintiff if the Subject Property and equity is lost as a result of the invalid trustee sale is permanent and severe; whereas the hardship incurred by Defendant if the foreclosure process is reinitiated following the conclusion of the subject litigation, is transitory and minimal. This is further strengthened by the fact that Plaintiff is a senior citizen who should not be subjected to such hardship. Plaintiff is entitled to such relief as set forth in this Cause of Action including any statutory relief, and such further relief as is set forth below in the section captioned Prayer for Relief which is by this reference incorporated.”

Defendants assert that paragraphs 27 and 37 of the FAC should be stricken because once a trustee’s deed upon sale is recorded, as is alleged here, the sale cannot be set aside based on California Homeowner Bill of Rights violations.[3] (See FAC, ¶ 11(d), p. 5; “[t]he TDUS was recorded on August 22, 2019.” In support of this assertion, Defendants cite to Civil Code section 2924.12. Civil Code section 2924.12, subdivision (a)(1) provides that, “[i]f a trustee’s deed upon sale has not been recorded, a borrower may bring an action for injunctive relief to enjoin a material violation of Section 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17.” (Emphasis added.) Civil Code section 2924.12, subdivision (b) provides, inter alia, that “[a]fter a trustee’s deed upon sale has been recorded, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall be liable to a borrower for actual economic damages pursuant to Section 3281, resulting from a material violation of Section 2923.5, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17 by that mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent where the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.”

Defendants assert that for the same reasons, paragraph 2 of the prayer for relief should be stricken as to the third and fifth causes of action. Paragraph 2 requests “an Order preventing Defendants and their successors, assigns, heirs, agents, employees, officers, attorneys, and representatives from engaging in or performing any of the following acts: (i) offering or advertising the SUBJECT PROPERTY for sale; (ii) attempting to transfer title of the Subject Property; and (iii) selling the SUBJECT PROPERTY to another party…” (FAC, p. 55:1-6.)

Relief Sought in Connection with the Twentieth Cause of Action for Violation of Business and Professions Code section 17200, et seq.

Defendants move to strike paragraphs 152-154 of the twentieth cause of action for violation of the UCL. In paragraph 152, Plaintiff seeks damages; in paragraph 153, Plaintiff alleges that “Defendants have been unjustly enriched and should be required to disgorge all profits”; and in paragraph 154, Plaintiff alleges that she is “entitled to attorney’s fees pursuant to California Code of Civil Procedure § 1021.5.” Defendants also move to strike paragraphs 5, 6, and 7 of the prayer for relief as to the twentieth cause of action. Paragraph 5 seeks general damages, paragraph 6 seeks “compensatory and special damages, including consequential and incidental damages,” and paragraph 7 seeks attorney’s fees and costs. (FAC, p. 55:10-14.)

Defendants cite to Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144, where the California Supreme Court noted that “[w]hile the scope of conduct covered by the UCL is broad, its remedies are limited. A UCL action is equitable in nature; damages cannot be recovered. Civil penalties may be assessed in public unfair competition actions, but the law contains no criminal provisions. We have stated that under the UCL, [p]revailing plaintiffs are generally limited to injunctive relief and restitution.” (Internal quotations and citations omitted.)

In the opposition, Plaintiff does not address Defendants’ argument pertaining to Plaintiff’s request for damages in connection with the UCL cause of action. Plaintiff asserts that she is entitled to attorney’s fees pursuant to Code of Civil Procedure section 1021.5. However, this provision is not part of the UCL (¿Business and Professions Code section 17200, et seq.) Moreover, Code of Civil Procedure section 1021.5 provides in pertinent part that “[u]pon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” Plaintiff does not explain how the instant action will result in a significant benefit conferred on the general public or a large class of persons. The Court agrees with Defendants that Plaintiff’s lawsuit is related to her personal financial stake in the subject property rather than to a large public concern.

Based on the foregoing, the Court grants Defendants’ motion to strike paragraphs 152, 153, and 154 of the FAC. The Court also grants the motion to strike paragraphs 5, 6, and 7 of the prayer for relief as to the twentieth cause of action.

Based on the foregoing, Defendants’ demurrer to the FAC is sustained in part and overruled in part. The Court sustains the demurrer to the first, second, fourth, sixth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, seventeenth, eighteenth, and nineteenth causes of action, with leave to amend. The Court sustains the demurrer to the ninth cause of action, without leave to amend. The Court overrules the demurrer as to the third, fifth, seventh, eighth, sixteenth, and twentieth causes of action.

Defendants’ motion to strike is moot in part and granted in part, as set forth above.

The Court orders Plaintiff to file and serve an amended complaint, if any, within 20 days of the date of this Order. If no amended complaint is filed within 20 days of this Order, Defendants are ordered to file and serve their answer within 30 days of the date of this Order.¿

[1]The Court notes that “[f]or policy reasons, some causes of action, such as fraud and negligent misrepresentation, must be pleaded with particularity—that is, the pleading must set forth how, when, where, to whom, and by what means the representations were made…” (Foster v. Sexton (2021) 61 Cal.App.5th 998, 1028, citing Lazar v. Superior Court (1996) 12 Cal.4th 631, 645, emphasis added.)

[2]Plaintiff alleges that “SPS’s conduct alleged herein was designed, implemented, and authorized by SPS corporate executives…” (FAC, ¶ 72.)

[3]Plaintiff’s first through fifth causes of action are for alleged violations of provisions of the California Homeowner Bill of Rights.

JUDITH BALDWIN, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., et al., Defendants.	Case No.:	22STCV07627
	Hearing Date:	December 6, 2022
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF PLAINTIFF’S FIRST AMENDED COMPLAINT

Superior Court of California

County of Los Angeles

Department 50