Judge Theresa M. Traber, Case 21STCV44056 2022-09-28 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV44056, Date: 2022-09-28 Tentative Ruling

Case Number: 21STCV44056 Hearing Date: September 28, 2022 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: September 28, 2022 TRIAL DATE: NOT SET

CASE: Rosanne Smith v. Planet Home Lending, LLC, et al.

CASE NO.: 21STCV44056

DEMURRER TO FIRST AMENDED COMPLAINT

MOVING PARTY: Defendant Planet Home Lending, LLC.

RESPONDING PARTY(S): Plaintiff Rosanne Smith.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is an action for wrongful foreclosure on a property located at 82 W. Arbor Street, Long Beach, CA 90805. It was commence on December 21, 2021, with a First Amended Complaint filed on March 21, 2022.

Defendant demurs to the First Amended Complaint in its entirety.

TENTATIVE RULING:

Defendant’s Demurrer is SUSTAINED with leave to amend as to the first, third and ninth causes of action.

Defendant’s Demurrer is SUSTAINED without leave to amend as to the second, seventh, and eighth causes of action. Defendant may reallege the contentions in the seventh and eighth causes of action in connection with the third cause of action for violation of Civil Code section 2923.6.

Defendant’s Demurrer is otherwise OVERRULED as to all other causes of action.

DISCUSSION:

Defendant demurs to the Complaint in its entirety for failure to state facts sufficient to constitute a cause of action.

Legal Standard

A demurrer tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally and allegations contained therein are assumed to be true”].) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Meet and Confer

Before filing a demurrer, the demurring party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the demurrer and file a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41(a).) However, an insufficient meet and confer process is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., § 430.41(a)(4).)

The Declaration of Kelsey Luu in support of the demurrer states that she sent a meet and confer letter to Plaintiff’s counsel on April 20, 2022, and never received a response. (Declaration of Kelsey Luu ISO Demurrer ¶ 4.) Given Plaintiff’s counsel’s failure to respond, the Court finds that Defendant has satisfied the statutory meet and confer requirements.

Defendant’s Request for Judicial Notice

Defendant requests that the Court take judicial notice of (1) a Deed of Trust recorded in the Official Records of Los Angeles County on July 25, 2019 as Instrument Number 20190730107; (2) an Assignment Deed of Trust recorded in the Official Records of Los Angeles County on July 25, 2019 as Instrument Number 20190730108; (3) an Assignment Deed of Trust recorded in the Official Records of Los Angeles County on May 6, 2021 as Instrument Number 20210728089; (4) a Substitution of Trustee recorded in the Official Records of Los Angeles County on May 25, 2021 as Instrument Number 20210834598; (5) a Notice of Default and Election to Sell under Deed of Trust recorded in the Official Records of Los Angeles County on May 25, 2021 as Instrument Number 20210834599; and (6) a Notice of Trustee’s Sale recorded in the Official Records of Los Angeles County on September 22, 2021 as Instrument Number 2021443498. These requests are GRANTED pursuant to Evidence Code section 452(h) (documents whose existence are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy).

Defendant also requests that the Court take judicial notice of (7) the Bankruptcy Court docket for In Re Rosanne Smith, Case No. 2:21-bk-18443-NB in the United States Bankruptcy Court for the Central District of California. Defendant’s Request is GRANTED pursuant to Evidence Code section 452(d) (court records).

Finally, Defendant requests that the Court take judicial notice of (8) a May 26, 2021 Letter from Planet Home Lending addressed to Roseanne Smith; (9) a November 3, 2021 Letter from Planet Home Lending addressed to Roseanne Smith; and (10) a November 4, 2021 Letter from Planet Home Lending addressed to Roseanne Smith. Defendant contends that the Court may take judicial notice of these documents because it “forms the basis of Plaintiff’s cause of action.” However, Defendant cites no law or precedent standing for the proposition that this is a valid basis for judicial notice. The cases which Defendant offers in support -- StorMedia v. Superior Court (1999) 20 Cal.4th 499 (to which Defendant provides an invalid pincite) and Marina Tenants Ass’n v. Deauville Marina Dev. Co. (1986) 181 Cal.App.3d 122 -- are completely silent on this issue. Defendant’s requests for judicial notice of these documents are wholly improper and are therefore DENIED.

First Cause of Action: Violation of Civil Code section 2923.5

Defendant demurs to Plaintiff’s first cause of action for violation of Civil Code section 2923.5 for failure to state facts sufficient to constitute a cause of action.

Civil Code section 2923.5 states, in relevant part:

(a)(1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Section 2924 until 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 (g).

(2) A mortgagee, beneficiary, or authorized agent 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. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of the borrower s financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically.

(Civ. Code § 2923.5(a).) Subdivision (g) sets forth the requirements for showing due diligence in attempting to contact the borrower before a party may file a notice of default without having successfully contacted the borrower. (See Civ. Code § 2923.5(g).)

Defendant advances four arguments in support of its contention that Plaintiff has failed to state facts sufficient to constitute a cause of action. First, Defendant argues that Plaintiff has not properly alleged that Defendant violated section 2923.5. The First Amended Complaint alleges that Defendant recorded a Notice of Default on the property on May 25, 2021. (FAC ¶ 30.) The FAC also alleges that Defendant failed to satisfy the requirements of Civil Code section 2923.5(a)(2). (Id. ¶ 31.) However, the FAC offers no allegations as to how Defendant violated this code provision. It does not state whether Defendant ever contacted Plaintiff. Nor does it offer any allegations regarding whether Defendant satisfied its requirements of due diligence. Plaintiff’s assertions in opposition that Defendant did not contact Plaintiff before recording the Notice of Default are not supported by corresponding allegations in the Complaint, and therefore are insufficient to maintain this cause of action as currently pled. For this reason alone, the Court agrees with Defendant that Plaintiff has failed to state facts sufficient to constitute a cause of action.

As the Court has found that an independent basis exists to sustain the demurrer, the Court need not address the remainder of Defendant’s arguments. However, as these arguments are maintained throughout the demurrer, the Court will address the remaining arguments here.

Defendant’s second argument is that the allegations in the FAC fail to overcome Defendant’s “prima facie evidence” of compliance with the statute. Civil Code section 2924(c) states that a declaration attesting “all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default . . . shall constitute prima facie evidence of compliance with these requirements.” The Court is unsure why Defendant believes that “prima facie evidence” is in any way relevant or dispositive on a demurrer, where the only question is the sufficiency of the allegations in the pleadings, and Defendant cites no law or precedent that so states. This argument is wholly unpersuasive and insufficient to show a failure to state facts sufficient to constitute a cause of action.

Defendant’s third argument is that the purported violation was not material. Defendant once again cites no binding law or precedent that establishes the “materiality” of a violation as a necessary showing in the pleadings. Defendant cites no California law, and the Court is aware of none, which requires that the Plaintiff allege facts sufficient to show a “material” violation of the Homeowner Bill of Rights to state facts sufficient to constitute a cause of action. Defendant’s citation to Schmidt v. Citibank (2018) 28 Cal.App.5th 1109, is inapplicable because that ruling was reviewing a successful motion for summary judgment, not a demurrer. (Schmidt v. Citibank (2018) 28 Cal.App.5th 1109, 1112.) The Court is similarly unpersuaded by Defendant’s citation to Cardenas v. Caliber Home Loans Inc. (N.D. Cal. 2017) 281 F.Supp.3d 862, as the District Court in Cardenas based its adoption of a materiality requirement on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss (analogous to a demurrer in California court) on an erroneous construction of Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808. The District Court improperly construed Saterbak’s materiality assessment in connection with Civil Code section 3412 as applying to the Homeowner’s Bill of Rights, when the Court of Appeal did no such thing. (Cardenas, supra, 281 F.Supp.3d at 870; Saterbak, supra, 245 Cal.App.4th at 818-20.) Defendant has not shown that Plaintiff has failed to state facts sufficient to constitute a cause of action on this basis.

Defendant’s fourth argument is that plaintiff is not eligible for relief under the Homeowner’s Bill of Rights because the property is not owner-occupied under Civil Code section 2924.15. Defendant cites no allegations in the complaint and no judicially noticeable facts or documents that support this contention, instead stating that “[j]ust because Plaintiff alleged that she lived at the Property during the loan modification application period does not mean it is her principal residence.” Furthermore, the very first paragraph of the First Amended Complaint states that the property is Plaintiff’s “personal and principal residence.” (FAC ¶ 1 [emphasis added].) For the purposes of a demurrer, that allegation must be taken as true. Defendant has therefore not shown that Plaintiff has failed to state facts sufficient to constitute a cause of action on this basis.

Based on the Court’s agreement with Defendant’s first challenge to the claim, however, Defendant’s Demurrer to the First Cause of Action is SUSTAINED.

Second Cause of Action: Violation of Civil Code section 2924(a)(1)

Defendant demurs to Plaintiff’s second cause of action for violation of Civil Code section 2924(a)(1) for failure to state facts sufficient to constitute a cause of action.

Section 2924(a)(1) requires that the trust deed beneficiary or its agent authorize a foreclosure by first filing a Notice of Default. (Civil Code § 2924(a)(1).) The statute also sets forth specific requirements for that notice of default. (Id.)

Defendant contends that Plaintiff has failed to state facts sufficient to constitute a cause of action because Defendant properly recorded a Substitution of Trustee before filing the Notice of Default. Plaintiff alleges that Defendant did not do so. (FAC ¶ 38.) However, Defendant properly requested judicial notice of the Substitution of Trustee and the Notice of Default, which were both filed and recorded with the Los Angeles County Recorder’s Office on May 25, 2021 (RJN Exhs. 4, 5.) Plaintiff does not address this cause of action in the opposition papers. The Court therefore finds, based on the judicially noticed documents, that Plaintiff has failed to state facts sufficient to constitute a cause of action on this basis.

Accordingly, Defendant’s Demurrer to the Second Cause of Action is SUSTAINED.

Third Cause of Action: Violation of Civil Code section 2923.6

Defendant demurs to Plaintiff’s third cause of action for violation of Civil Code section 2923.6 for failure to state facts sufficient to constitute a cause of action.

Civil Code section 2923.6(c) prohibits a lender or servicer from recording a notice of default, notice of trustee’s sale, or conducting a trustee’s sale while a complete application for modification of a first lien is pending. (Civ. Code § 2923.6(c).) However, the lender or servicer is not required by this statute to rescind any notices recorded before the complete application is submitted. Further, under subdivision (g), the lender or servicer is not required to evaluate a successive modification application pursuant to the Homeowner Bill of Rights if the lender or servicer had already done so once before, and the borrower has not shown a material change in their financial circumstances. (Civ. Code § 2923.6(g).)

Here, Plaintiff alleges that Defendant violated this section by failing to rescind all foreclosure efforts against Plaintiff, including the recording of a Notice of Default or Notice of Trustee’s Sale. (FAC ¶ 46.) As Defendant correctly argues, there is no requirement under the statute that any notice of default or of sale must be rescinded while the application is pending. The FAC alleges that the applications were submitted on November 22, 2021, and January 22, 2022, after the Notice of Default (May 22, 2021) and Notice of Trustee’s Sale (August 22, 2021). (FAC ¶¶ 42-44.) Defendant was thus under no obligation to rescind the notices. Furthermore, as Defendant correctly argues, Plaintiff has not alleged in the First Amended Complaint that there was a material change in financial circumstances such that Defendant was obligated to evaluate the second application.

In the opposition, Plaintiff argues that he has alleged that Defendant failed in properly assessing his substantial change in financials. However, no such allegation is contained within the First Amended Complaint, and Plaintiff cites no other allegations sufficient to rescue this cause of action. Had Plaintiff made such allegations within the Complaint, the Court would be obligated to accept those factual contentions as true for the purposes of a demurrer. However, having not included any such allegations, Plaintiff has failed to state facts sufficient to support a cause of action on this basis.

Accordingly, Defendant’s demurrer to the Third Cause of Action is SUSTAINED.

Fourth Cause of Action: Violation of Civil Code section 2923.7

Defendant demurs to Plaintiff’s fourth cause of action for violation of Civil Code section 2923.7 for failure to state facts sufficient to constitute a cause of action.

Under section 2923.7 of the Civil Code, when a borrower requests a foreclosure prevention alternative, the service must promptly appoint a single point of contact (SPOC) and provide the borrower with one or more direct means of communication with that SPOC. (Civ. Code § 2923.7(a).) The SPOC may be an individual or a team with sufficient knowledge and authority to perform the statutory responsibilities. (Civ. Code § 2923.7(e).)

Here, the FAC alleges that Defendant failed to appoint a SPOC. (FAC ¶ 50.) Defendant argues that, because Plaintiff alleges that Plaintiff’s agent called Defendant and spoke to “Stephanie,” Plaintiff has not alleged facts sufficient to constitute a cause of action. (See FAC ¶ 18.) The Court disagrees: an allegation that Plaintiff’s agent was able to speak to someone on the phone in a single instance does not defeat the allegation that a SPOC was not appointed. Defendant also argues that, because statutory causes of action must generally be pleaded with particularity, (see Lopez v. Southern Cal. Rapid Trans. Dist. (1985) 40 Cal.3d 780, 795), a statement that Defendant failed to appoint a SPOC is insufficient under the statute. The Court is unsure what further allegations would be necessary: Defendant was obligated to appoint a SPOC, and Plaintiff alleges that Defendant did not do so. Defendant identifies no additional information that is absent and should be pled. The Court therefore finds that Defendant has not shown that Plaintiff has failed to state facts sufficient to constitute a cause of action on this basis.

Defendant also again argues that Plaintiff must plead that the violation was “material” to prevail on a demurrer. Once again, Defendant fails to cite any binding cases supporting this contention. Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150 only ruled that the plaintiff, in alleging a violation of Civil Code section 2924(a)(6), was not entitled to injunctive relief under Civil Code sections 2924.12 and 2924.19. (Lucioni, supra, 3 Cal.App.5th at 157.) Defendant’s federal case citation relies upon the same argument that the Court rejected in connection with the first cause of action. (Shupe v. Nationstar Mortg. (E.D.Cal.2017) 231 F.Supp.3d 597, 603.) This argument is not sufficient to establish that Plaintiff cannot prevail on this cause of action.

Accordingly, Defendant’s Demurrer to the Fourth Cause of Action is OVERRULED.

Fifth Cause of Action: Violation of Civil Code section 2924.9

Defendant demurs to Plaintiff’s fifth cause of action for violation of Civil Code section 2924.9 for failure to state facts sufficient to constitute a cause of action.

Civil Code section 2924.9(a) states:

Unless a borrower has previously exhausted the first lien loan modification process offered by, or through, his or her mortgage servicer described in Section 2923.6, within five business days after recording a notice of default pursuant to Section 2924, a mortgage servicer that offers one or more foreclosure prevention alternatives shall send a written communication to the borrower that includes all of the following information:

(1) That the borrower may be evaluated for a foreclosure prevention alternative or, if applicable, foreclosure prevention alternatives.

(2) Whether an application is required to be submitted by the borrower in order to be considered for a foreclosure prevention alternative.

(3) The means and process by which a borrower may obtain an application for a foreclosure prevention alternative.

(Civ. Code § 2924.9(a).)

Plaintiff alleges that Defendant failed to notify Plaintiff of all foreclosure alternatives and failed to provide the communications required by the statute. (FAC ¶¶ 57-58.) Defendant contends, offering improper extrinsic evidence, that it did comply with the statute. That argument is improperly raised on a demurrer.

Defendant also reasserts an argument regarding materiality. As stated above in connection with the first and fourth causes of action, this Court declines, absent binding California law, to impose a requirement to show materiality at the pleading stage.

Accordingly, Defendant’s Demurrer to the Fifth Cause of Action is OVERRULED.

Sixth Cause of Action: Violation of Civil Code section 2924.10

Defendant demurs to Plaintiff’s sixth cause of action for violation of Civil Code section 2924.10 for failure to state facts sufficient to constitute a cause of action.

Civil Code section 2924.10 states that, “[w]hen a borrower submits a complete first lien modification application or any document in connection with a first lien modification application, the mortgage servicer shall provide written acknowledgment of the receipt of the documentation with five business days of receipt.”

Plaintiff alleges that Defendant failed to provide written notice of receipt within five business days. (FAC ¶ 62.) Defendant argues that Plaintiff has failed to plead this cause of action with particularity because it does not identify which of the two applications identified were not properly acknowledged. However, construing the allegations in the light most favorable to Plaintiff, as is proper on a demurrer, the Court interprets this allegation as pertaining to both applications identified, and therefore rejects this argument.

Defendant also argues that Plaintiff’s own allegations are undercut because the allegations state that the servicer informed her that the loan modifications were under review and that additional paystubs were required, thus acknowledging receipt. (See FAC ¶¶ 20, 22.) However, these allegations do not state that the communications identified were made in writing within five days of the application. The dates given are November 2 which predates the first application (see FAC ¶ 20) and January 13, which predates the second (See FAC ¶ 22), and neither states that the communications were made in writing. This argument is not sufficient to show that Plaintiff has failed to state facts sufficient to constitute a cause of action.

Finally, Defendant reasserts an argument regarding materiality. As the Court has rejected this argument, the Court will not address this argument further.

Accordingly, Defendant’s Demurrer to the Sixth Cause of Action is OVERRULED.

Seventh Cause of Action: Violation of Civil Code section 2924.11

Defendant demurs to Plaintiff’s seventh cause of action for violation of Civil Code section 2924.11 for failure to state facts sufficient to constitute a cause of action.

The FAC alleges that Defendant violated section 2924.11 of the Civil Code by failing to send a letter of denial of the loan modification stating that Plaintiff may appeal within 30 days and did not give reasons for denial. (FAC ¶¶ 69-70.) Letters of denial of loan modifications are governed by Civil Code section 2923.6, not section 2924.11 (See Civ. Code § 2923.6(d)-(f).) Therefore, this Cause of Action is improperly pled, and should have been brought under the third cause of action for violation of section 2923.6.

Accordingly, Defendant’s Demurrer to the Seventh Cause of Action is SUSTAINED.

Eighth Cause of Action: Violation of Civil Code section 2923.6(e)

Defendant demurs to Plaintiff’s eighth cause of action for violation of Civil Code section 2924.11 for failure to state facts sufficient to constitute a cause of action.

Civil Code section 2923.6(e) states:

(e) If the borrower’s application for a first lien loan modification is denied, the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee’s sale until the later of:

(1) Thirty-one days after the borrower is notified in writing of the denial.

(2) If the borrower appeals the denial pursuant to subdivision (d), the later of 15 days after the denial of the appeal or 14 days after a first lien loan modification is offered after appeal but declined by the borrower, or, if a first lien loan modification is offered and accepted after appeal, the date on which the borrower fails to timely submit the first payment or otherwise breaches the terms of the offer.

(Civ. Code § 2923.6(e).) Plaintiff alleges that Defendant failed to do so, only allowing one day to file an appeal. (FAC ¶ 77.) Plaintiff alleges that the denial letter was dated February 7, 2022, and the property was foreclosed upon on February 8, 2022. (FAC ¶¶ 25-26.) As stated above in connection with the third cause of action, Plaintiff has not alleged that Plaintiff showed a material change in circumstances such that Defendant was required to provide 30 days to appeal the denial under section 2923.6(g). Furthermore, as stated above in connection with the seventh cause of action, this cause of action should properly be consolidated with the third cause of action, as all three plead violations of the same statute.

Accordingly, Defendant’s Demurrer to the Eighth Cause of Action is SUSTAINED.

Ninth Cause of Action: Unfair Competition

Defendant demurs to the ninth cause of action for unfair competition for failure to state facts sufficient to constitute a cause of action.

The Business and Professions Code prohibits “unfair competition,” defined as any “unlawful, unfair, or fraudulent business act or practice.” (Bus. & Prof. Code § 17200.) To bring a claim under this law, a person must have “suffered injury in fact and [have] lost money or property as a result of unfair competition.” (Bus. & Prof. Code § 17204.) To allege a viable cause of action under this law, the plaintiff must allege a predicate act. (See, e.g., Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1147.)

Defendant first contends that this cause of action must fail because the preceding causes of action have also failed. As the Court has partially overruled Defendant’s demurrer, this argument is likewise rejected.

Defendant also contends that Plaintiff lacks standing to assert a claim under this law. A plaintiff is not entitled to recovery under this law for practices related to foreclosure proceedings if the borrower defaulted on a mortgage before the alleged unfair business practices. (Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 523.) Plaintiff argues in opposition that the incurred late and interest fees constitute a diminished property interest sufficient to establish standing under the UCL. However, Jenkins expressly precludes that argument, as the Court of Appeal held that the harms alleged, including late fees, were insufficient to establish standing when the harms stemmed from the Plaintiff’s admitted default. (Jenkins, supra, 216 Cal.App.4th at 532.) The Court agrees with Defendant that Plaintiff’s claimed harms are not sufficient to establish standing under the UCL.

Finally, Defendant contends that Plaintiff’s additional claim of an unlawful practice by violating 15 U.S.C. section 1641(g) is not sufficiently pled to establish an unlawful practice as a matter of law. This statute requires that, “not later than 30 days after the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer.” (15 U.S.C. § 1641(g)(1).) Defendant argues that transfer of the Deed of Trust, as alleged, is not sufficient to trigger the notice requirements because Plaintiff has not alleged that ownership of the mortgage loan itself was transferred. (See FAC ¶ 86.) Plaintiff does not respond to this contention in the opposition. Reviewing the plain language of the statute, the Court agrees with Defendant that this allegation is insufficient to establish an unlawful practice under section 1641. Furthermore, even if this allegation was sufficient, Plaintiff has failed to allege facts sufficient to establish standing under the UCL.

Accordingly, Defendant’s Demurrer to the ninth cause of action is SUSTAINED.

Tenth Cause of Action: Cancellation of Instrument

Defendant demurs to the tenth cause of action for cancellation of instrument for failure to state facts sufficient to constitute a cause of action.

Defendant contends that this cause of action must fail because all preceding causes of action have also failed. As this is plainly not the case, Defendant’s demurrer to the tenth cause of action is OVERRULED.

Eleventh Cause of Action: Wrongful Foreclosure

Defendant demurs to the eleventh cause of action for wrongful foreclosure for failure to state facts sufficient to constitute a cause of action.

“A wrongful foreclosure is a common law tort claim. (Sciarratta v. U.S. Bank Nat’l Ass’n. (2016) 247 Cal.App.4th 552, 561–562.) “It is an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on the basis that the foreclosure was improper.” (Id.) “The elements of a wrongful foreclosure cause of action are: ‘(1) [T]he 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.’” (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal.App.5th 943, 948. [internal citations omitted].)

Defendant argues that Plaintiff has failed to state facts sufficient to constitute a cause of action because all of Plaintiff’s HBOR causes of action failed, Plaintiff has not alleged any harm or prejudice, and Plaintiff has not alleged that she tendered the default amount or would have been able to pay but for Defendant’s purported violations. Defendant’s arguments are not well taken. Plaintiff has successfully maintained several causes of action, has alleged that she was excused from tendering, and has suffered injury from the alleged wrongful foreclosure. (FAC ¶¶ 98-101.) Defendant cites no law or precedent showing that Plaintiff is precluded from recovering on this claim for any alleged inability to pay her mortgage, and also cites no law showing that she is not excused from tendering the amount of the secured indebtedness. Defendant has failed to show that Plaintiff cannot prevail on this cause of action.

Accordingly, Defendant’s demurrer to the eleventh cause of action is OVERRULED.

Leave to Amend

When a demurrer is sustained, the Court determines whether there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318). When a plaintiff “has pleaded the general set of facts upon which his cause of action is based,” the court should give the plaintiff an opportunity to amend his complaint, since plaintiff should not “be deprived of his right to maintain his action on the ground that his pleadings were defective for lack of particulars.” (Reed v. Norman (1957) 152 Cal.App.2d 892, 900.) Accordingly, California law imposes the burden on the plaintiffs to demonstrate the manner in which they can amend their pleadings to state their claims against a defendant. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) “Denial of leave to amend constitutes an abuse of discretion unless the complaint shows on its face it is incapable of amendment. [Citation.] Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given." (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.)

Plaintiff has not clearly shown how the allegations in the FAC might be amended to cure the defective causes of action. However, in light of the liberal presumption in favor of leave to amend, the Court will exercise its discretion to grant leave to amend with the exception of the second, seventh, and eighth causes of action. With respect to the second cause of action, the judicially noticed documents establish that the defect in the second cause of action is not curable, as it is a matter of public record that the documents at issue were properly and timely recorded. Therefore, leave to amend is not proper as to that cause of action. With respect to the seventh and eighth causes of action, the court declines to grant leave to amend on the basis that those causes of action are properly consolidated with the third cause of action, as all three properly seek relief under Civil Code section 2923.6, and therefore the seventh and eighth causes of action are redundant. Instead, Plaintiff may properly bring these claims together under a single cause of action.

CONCLUSION:

For the reasons explained above, Defendant’s Demurrer is SUSTAINED with leave to amend as to the first, third and ninth causes of action.

Defendant’s Demurrer is otherwise OVERRULED as to all other causes of action.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: September 28, 2022 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.