Judge Teresa A. Beaudet, Case Number: 22STCV07627, Date: 2023-05-22 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 a First Amended Complaint (“FAC”) on July 7, 2022, asserting twenty causes of action. On December 6, 2022, the Court issued an order sustaining in part and overruling in part the demurrer to the FAC filed by 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”). The Court also granted in part Defendants’ motion to strike portions of the FAC.

On December 27, 2022, Plaintiff filed the operative Second Amended Complaint (“SAC”), asserting fourteen causes of action.

Defendants now demur to the fourth, ninth, and eleventh causes of action of the SAC. Defendants also move to strike portions of the SAC. Plaintiff opposes both.

The Court notes that Defendants filed a notice of objection to Plaintiff’s late filing and late service of her opposition to Defendants’ demurrer and motion to strike.

As noted by Defendants, pursuant to Code of Civil Procedure section 1005, subdivision (b), “[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days before the hearing.” In addition, under Code of Civil Procedure section 1010.6, subdivision (a)(4)(B), “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”

Plaintiff’s opposition to Defendants’ demurrer and motion to strike was filed on May 15, 2023, and the proof of service attached to the opposition indicates that it was served by email on May 15, 2023. Accordingly, Plaintiff’s opposition was filed and served only five court days prior to the May 22, 2023 hearing date. Defendants’ objection states that as a result of the foregoing, “Plaintiff has deprived Defendants, to their detriment, of an opportunity to file a reply, which was due on May 15, 2023.” (Defendants’ Notice of Objection at p. 2:9-10.)

Based on the foregoing, the Court sustains Defendants’ objection to Plaintiff’s opposition to the demurrer and motion to strike.

In the SAC, Plaintiff alleges that she was the owner of residential real property located at 12518 Addison St., Valley Village, California 91607 (the “Subject Property”). (SAC, ¶ 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. (SAC, ¶ 11(a).) On April 6, 2010, a notice of default (“NOD”) was recorded against the Subject Property. (SAC, ¶ 11(b).) On January 15, 2019, a notice of trustee sale (“NOTS”) was recorded against the Subject Property. (SAC, ¶ 11(c).) 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. (SAC, ¶ 11(d).) As Defendants note, the premise of Plaintiff’s SAC is that the foreclosure sale of the Subject Property was wrongful.

Plaintiff’s fourth 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.” (SAC, ¶ 38.)

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.” (SAC, ¶ 38.) “[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 still has not alleged facts showing she performed her obligations under the deed of trust. Defendants also note that the July 31, 2019 letter included in Exhibit “E” to SAC indicates, inter alia, that “[a]s of the date of this letter, the account is due for December 1, 2009.”

The Court notes that even if the Court were to consider Plaintiff’s opposition to the demurrer, the opposition does not address the foregoing argument. The opposition does not discuss the element of Plaintiff’s performance or excuse for nonperformance. The Court is unable to locate any allegations demonstrating Plaintiff’s performance or excuse for nonperformance of the alleged deed of trust.

Based on the foregoing, the Court sustains the demurrer to the fourth cause of action for breach of contract. The Court sustains the demurrer without leave to amend because the Court previously sustained Defendants’ demurrer to the breach of contract cause of action in the FAC (See December 6, 2022 Order). In addition, even if the Court were to consider Plaintiff’s opposition, Plaintiff has not proffered any basis for any amendment to the fourth cause of action.

“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].) “In 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 (1996) 12 Cal.4th 631, 645 [internal quotations and citations omitted].)

In support of the ninth cause of action for fraudulent promise without intention to perform, Plaintiff alleges that “Defendants clearly promised to review Plaintiff for a loss mitigation alternative. Please see Paragraph 11 and Exhibit E referenced herein above and incorporated herein by this reference.” (SAC, ¶ 76, emphasis omitted.) More specifically, paragraph 76 of the SAC references a July 24, 2019 letter included in Exhibit E to the SAC, which provides, inter alia, that “Select Portfolio Servicing, Inc. (SPS), the mortgage servicer on the above referenced account, has received correspondence that we believe may be a request for assistance, or you submitted a Request for Mortgage Assistance Form (RMA). Unfortunately, the account is ineligible for one or more resolution options or it is ineligible for the option you selected on the RMA.” (SAC, ¶ 76, Ex. E.) Plaintiff then alleges that “SPS on behalf of itself and remaining Defendants, failed to perform the promises by not reviewing Plaintiff for a loss mitigation alternative as required and promised and instead proceeded with an invalid trustee sale without having provided Plaintiff with a valid denial, help with alternative resolution options, or truthful information - despite the fact that SPS was required, by law, to review Plaintiff for a loss mitigation alternative up to 5 business days before the scheduled trustee sale.” (SAC, ¶ 79.)

Defendants assert that “[t]here is no promise made in the July 24, 2019 letter or any of the other letters attached as Exhibit E of the SAC to review Plaintiff for loss mitigation options. In addition, there are no allegations as to who made these purported promises on behalf of one or both Defendants, the authority of such person(s) to speak for one or both Defendants, what they specifically said or wrote, and when such representations were supposedly made to Plaintiff.” (Demurrer at p. 8:23-27.)

Plaintiff also alleges in support of the ninth cause of action that “SPS authorized representative Barbara Busch fraudulently promised Plaintiff that SPS ‘may be able to help you with an alternate resolution option. Please contact us for details.’” (SAC, ¶ 76.) Plaintiff alleges she “called the designated Relationship Manager Estefania Moreno and requested SPS provide other possible options as promised to do in the July 31, 2019 letter. Instead, SPS authorized representative Ms. Moreno told Plaintiff that Plaintiff’s only option was to immediately pay the SUBJECT LOAN.” (SAC, ¶ 76.) As discussed, Plaintiff alleges that “SPS on behalf of itself and remaining Defendants, failed to perform the promises by not reviewing Plaintiff for a loss mitigation alternative as required and promised...” (SAC, ¶ 79.) Defendants assert that “Ms. Busch’s statement that SPS ‘may be able to help you’ is not actionable fraud. It is merely a statement that Plaintiff contact SPS to see what options she may have to avoid foreclosure, and that option was provided to her by the SPS Relationship Manager.” (Demurrer at p. 8:17-20.)

The Court notes that even if the Court were to consider Plaintiff’s opposition, Plaintiff does not respond to the foregoing points in the opposition. Moreover, the Court is unable to locate any statements in the letters attached as Exhibit E to the SAC showing that Defendants “clearly promised to review Plaintiff for a loss mitigation alternative.” The Court finds that Defendants have demonstrated that the ninth cause of action is deficient.

Based on the foregoing, the Court sustains the demurrer to the ninth cause of action for fraudulent promise without intention to perform. The Court sustains the demurrer without leave to amend because the Court previously sustained Defendants’ demurrer to the fraudulent promise without intention to perform cause of action in the FAC (See December 6, 2022 Order). Moreover, even if the Court were to consider Plaintiff’s opposition, Plaintiff has not proffered any basis for any amendment to the ninth cause of action.

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

In support of the eleventh 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. (SAC, ¶ 99.)

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

However, Plaintiff also alleges in support of the eleventh cause of action that “Plaintiff is not required to tender the entire sum of indebtedness because Plaintiff alleges that one or more of the following exceptions to the tender requirement apply herein: (A) the value of Plaintiff’s monetary claims and set-offs against the beneficiary are equal to or greater than the value of the secured debt thereby entitling Plaintiff to monetary damages that will far exceed the secured debt; (B) it would be inequitable to impose a tender requirement on Plaintiff under the circumstances, since the foreclosure proceeded pursuant to blatantly fraudulent and unlawful conduct in direct violation of the Civil Code; and, (C) Plaintiff does not rely on equity to challenge the foreclosure, as the foreclosure is statutorily void for failure to comply with the stringent civil code requirements necessary to conduct a non-judicial foreclosure including the Homeowners’ Bill of Rights (“HBOR”).” (SAC, ¶ 98.) In the demurrer, Defendants assert that “[t]he first ground makes no sense. Plaintiff wants to set aside the sale and at the same time be awarded damages in an amount equal to the value of the amount of the loan. She cannot have it both ways. If she wants to set aside the sale, she must tender the amount of the indebtedness.” (Demurrer at p. 9:23-25.) However, Defendants do not cite to any legal authority in support of this proposition.

In addition, in the SAC, Plaintiff cites to the case Onofrio v. Rice (1997) 55 Cal.App.4th 413. (SAC ¶ 15.) In Onofrio, “[t]he Rices argue[d] Onofrio was not entitled to relief on her 15th cause of action for rescission because she failed to tender the amount necessary to cure the default.” (Id. at pp. 423-424.) The Court of Appeal noted that “[t]he Rices ignore significant parts of the authority upon which they rely. [A] tender may not be required where it would be inequitable to do so. Similarly, when the person making the claim has a counter-claim or set-off against the beneficiary, . . . it is deemed that they offset each other, and if the offset is equal to or greater than the amount due, a tender is not required . . .. Also, if the action attacks the validity of the underlying debt, a tender is not required since it would constitute an affirmative of the debt.” (Id. at p. 424 [internal quotations and citations omitted, emphasis added].) 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 eleventh 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 requests for injunctive relief in connection with the first, second, and third causes of action of the SAC. (SAC, ¶¶ 23, 28, 34.) Paragraphs 23, 28, and 34 of the SAC provide as follows:

“Due to Defendant’s non-compliance with Civil Code [Sections 2923.6, 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 23, 28, and 34 of the SAC 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.[1] (See SAC, ¶ 11(d), “[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 2923.55, 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, paragraphs 1 and 2 of the prayer for relief should be stricken as they pertain to the first, second, and third causes of action. Paragraph 1 of the prayer for relief seeks “rescission of the sale and restitution of the SUBJECT PROPERTY to the Plaintiff.” (SAC, p. 63:14.) Paragraph 2 of the prayer for relief seeks “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.” (SAC, p. 63:15-20.)

Even if the Court were to consider Plaintiff’s opposition to the motion to strike, the opposition fails to address the application of Civil Code section 2924.12 here.

Defendants also move to strike Plaintiff’s requests for punitive damages. Plaintiff’s requests for punitive damages are sought in connection with the seventh, ninth, tenth, and thirteenth causes of action (paragraphs 66, 87, 94, and 119 of the SAC) and paragraph 8 of the prayer for relief. As set forth above, the Court sustains Defendants’ demurrer to the ninth cause of action. Thus, Defendants’ motion to strike is moot as to paragraph 87 of the SAC, as well as paragraph 8 of the prayer for relief as it pertains to the ninth cause of action.

As to the remaining causes of action, Defendants note that Civil Code section 3294, subdivision (a) provides that “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Pursuant to Civil Code section 3294, subdivision (b), “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

In the seventh cause of action, Plaintiff alleges that “Plaintiff is informed and believes, and on that basis alleges, that SPS’s conduct alleged herein was designed, implemented and authorized by SPS corporate executives, known to and ratified by SPS board of directors and known and approved by the other defendants to which SPS acted as agent at all relevant times alleged herein.” (SAC, ¶ 60.)[2] Defendants contend that these allegations are conclusory and thus insufficient. (See Mot. at p. 7:1-6.) The Court finds that the allegations are sufficient as to SPS at the pleading stage. However, as noted by Defendant, there does not appear to be allegations that an officer, director or managing agent of U.S. Bank ratified SPS’s conduct complained of in the SAC. Thus, the Court agrees that the punitive damages allegations should be stricken as to U.S. Bank.

Defendants also assert that Plaintiff fails to allege facts establishing malice, oppression, or fraud. A motion to strike may lie where the facts alleged do not rise to¿the level of “malice,¿oppression¿or fraud” required to support a punitive damages award. (¿¿See Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53, 63-64¿¿.)¿“¿‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.¿” (¿¿Civ. Code, § 3294, subd. (c)(1)¿¿.) “¿‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.¿” (Civ. Code, § 3294, subd. (c)(2)¿.) “¿‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.¿” (Civ. Code, § 3294, subd. (c)(3)¿.)¿

In support of her request for punitive damages, Plaintiff alleges that “Defendants knowingly misrepresented the law to the senior citizen Plaintiff in order to convert the SUBJECT PROPERTY which they did. Defendants expressly stated to Plaintiff that the only reason they could not review Plaintiff for a loss mitigation alternative is because the trustee sale is scheduled in 14 days, which is an express misrepresentation since Plaintiff had up until 5 business days

before the trustee sale to submit a complete loss mitigation alternative.” (SAC, ¶¶ 66, 119.) The Court finds that Plaintiff has sufficiently alleged “fraud” for purposes of her claim for punitive damages.

Based on the foregoing, the Court grants Defendants’ motion to strike paragraphs 66, 94, and 119 of the SAC, and paragraph 8 of the prayer for relief as to U.S. Bank, with leave to amend. The foregoing points were not discussed in the Court’s December 6, 2022 Order on Defendants’ motion to strike portions of the FAC. The Court denies Defendants’ motion to strike paragraphs 66, 94, and 119 of the SAC, and paragraph 8 of the prayer for relief as to SPS.

Defendants move to strike paragraphs 123 and 125 of the fourteenth cause of action for violation of Business and Professions Code section 17200. In paragraph 123, Plaintiff seeks damages, and in paragraph 125, 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 fourteenth 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. (SAC, pp. 63:24-64:1.)

Defendants assert that damages and attorney’s fees are not recoverable under Plaintiff’s fourteenth cause of action. 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.) The Korea Supply Court also noted that “[w]hile the ‘prevent’ prong of section 17203 suggests that the Legislature considered deterrence of unfair practices to be an important goal, the fact that attorney fees and damages, including punitive damages, are not available under the UCL is clear evidence that deterrence by means of monetary penalties is not the act’s sole objective. A court cannot, under the equitable powers of section 17203, award whatever form of monetary relief it believes might deter unfair practices. The fact that the ‘restore’ prong of section 17203 is the only reference to monetary penalties in this section indicates that the Legislature intended to limit the available monetary remedies under the act.” (Id. at p. 1148.)

Further, Defendants assert that Plaintiff does not meet the requirements of Code of Civil Procedure section 1021.5, which 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.” 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.

The Court also notes that even if the Court were to consider Plaintiff’s opposition, Plaintiff does not address any of the foregoing points in her opposition to the motion to strike.

Based on the foregoing, the Court grants Defendants’ motion to strike paragraphs 123 and 125 of the SAC, as well as paragraphs 5, 6, and 7 of the prayer for relief as they pertain to the fourteenth cause of action. The Court grants the motion without leave to amend because the Court previously granted Defendants’ motion to strike on similar grounds as to the FAC (See December 6, 2022 Order). Moreover, even if the Court were to consider Plaintiff’s opposition, Plaintiff has not proffered any basis for any amendment to cure the foregoing deficiencies.

Based on the foregoing, Defendants’ demurrer to the SAC is sustained in part and overruled in part. The Court sustains the demurrer to the fourth and ninth causes of action, without leave to amend. The Court overrules the demurrer as to the eleventh cause of action.

Defendants’ motion to strike is moot in part, granted in part, and denied in part, as set forth above. As discussed, Court grants, inter alia, Defendants’ motion to strike paragraphs 66, 94, and 119 of the SAC, and paragraph 8 of the prayer for relief as to U.S. Bank, with leave to amend.

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]Plaintiff’s first, second, and third causes of action are for alleged violations of provisions of the California Homeowner Bill of Rights.

[2]Defendants note that the tenth and thirteenth causes of action incorporate by reference the previous allegations of the SAC. (SAC, ¶¶ 88, 109.)

JUDITH BALDWIN, Plaintiff, vs. SELECT PORTFOLIO SERVICING, INC., et al., Defendants.	Case No.:	22STCV07627
	Hearing Date:	May 22, 2023
	Hearing Time:	2:00 p.m.
	[TENTATIVE] ORDER RE: DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT; MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT

Superior Court of California

County of Los Angeles

Department 50