Judge: Theresa M. Traber, Case: 21STCV44056, Date: 2023-08-28 Tentative Ruling

Case Number: 21STCV44056    Hearing Date: April 4, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     April 4, 2024              TRIAL DATE: May 7, 2024

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

CASE NO.:                 21STCV44056           

MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY:               Defendants Planet Home Lending, LLC and Wilmington Savings Fund Society FSB

RESPONDING PARTY(S): No response on eCourt as of 3/29/24

CASE HISTORY:

·         12/21/21: Complaint filed.

·         03/21/22: First Amended Complaint filed.

·         10/17/22: Second Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for wrongful foreclosure on a property located at 82 W. Abor Street, Long Beach, CA 90805.

Defendants move for judgment on the pleadings.

TENTATIVE RULING:

            Defendants’ Motion for Judgment on the Pleadings is GRANTED.

            Dismissal is entered as to all Defendants with prejudice this date.

DISCUSSION:

Defendants move for judgment on the pleadings.

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Legal Standard

A motion for judgment on the pleadings is the functional equivalent of a general demurrer.  (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198).  Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity.  (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994). Any defects must either appear on the face of the pleading, or else be taken by judicial notice.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22).  The parties’ ability to prove their respective claims is of no concern.  (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 99.)  Though the Court must accept the allegations of the complaint and answer as true (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515), it will not do so for “conclusions of law or fact, opinions, speculation, or allegations contrary to law or [judicially noticed] facts…” (Stevenson Real Estate Servs., Inc. v. CB Richard Ellis Real Estate Servs., Inc. (2006) 138 Cal.App.4th 1215, 1219-20).

Meet and Confer

Before filing a motion for judgment on the pleadings, the moving party shall meet and confer in person or by telephone with the party who has filed the pleading subject to the motion for judgment on the pleadings and file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 439(a).) However, an insufficient meet and confer process is not grounds to grant or deny a motion for judgment on the pleadings. (Code Civ. Proc., § 439(a)(4).)

The Declaration of Kelsey Luu, attorney for Defendants, states that Defendants’ counsel attempted to contact Plaintiff through her counsel via email on October 11, 2023 and October 31, 2023, but received no response. (Declaration of Kelsey Luu ISO Mot. ¶¶ 9-10.)  The Court therefore finds that Defendants have satisfied their statutory meet and confer obligations.

Timing

           A motion for judgment on the pleadings may be brought by a defendant at any time after the time to demur has expired and an answer has been filed. (Code Civ. Proc. § 438(f)). Unless a court orders otherwise, a motion for judgment on the pleadings may not be made after entry of a pre-trial conference order, (Cal. Rules of Court 3.720-3.730) or 30 days before the initial trial date, whichever is later. (Code Civ. Proc. § 438(e). No pre-trial conference order was entered in this case, and the motion was filed more than 30 days before the initial trial date.

Request for Judicial Notice

           Defendants request 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 of Deed of Trust recorded in the Official Records of Los Angeles County on July 25, 2019 as Instrument Number 20190730108; (3) an Assignment of 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; (6) a Notice of Trustee’s Sale recorded in the Official Records of Los Angeles County on September 22, 2021 as Instrument Number 2021443498; (7) Defendants’ Notice of Motion and Motion for Order Establishing Admissions of Plaintiff, Request for Monetary Sanctions; Memorandum of Points and Authorities;  and Declaration of Crystal R. Davieau filed in this case on May 25, 2023; (8) the Bankruptcy Court docket for the Case Name: In Re Roseanne Smith, Case Number 2:21-bk-18443-NB, filed in the United States Bankruptcy Court for the Central District of California; (9) a Trustee’s Deed upon Sale recorded in the Official Records of Los Angeles County on March 3, 2022 as Instrument Number 20220245679; and (10) the Notice of Ruling on Defendants’ Motion to Compel Plaintiff’s Responses to Special Interrogatories and Motion for Order Establishing Admissions of Plaintiff filed in this case on August 29, 2023.

           Defendants’ Requests Nos. 1 through 6 and No. 9 are GRANTED pursuant to Evidence Code section 452(h) as official records of the County Reporter. (Evid. Code § 452(h); see also McElroy v. Chase Manhattan Mortg. Co. (2005) 134 Cal.App.4th 388, 394.) Defendants’ Requests nos. 7, 8, and 10 are GRANTED pursuant to Evidence Code section 452(d) (court records).

Analysis

            Defendants move for judgment on the pleadings on the grounds that all of Plaintiff’s claims are defeated as a consequence of the Court’s August 29, 2023 order deeming the truth of the matters stated in Defendants’ Requests for Admissions as admitted.

            Plaintiff alleged violations of Civil Code sections 2923.5; 2923.6(c); 2923.7, 2924.9, and 2924.10, asserting that the Notice of Default recorded on May 25, 2021 and Notice of Trustee’s Sale recorded on August 22, 2021 against the subject property violated these provisions of the Homeowner’s Bill of Rights. (See SAC ¶¶ 27-64.) Plaintiff also asserted claims for unfair competition, cancellation of written instrument, and wrongful foreclosure, all arguing that the Notice of Default and Notice of Sale were unlawful and void because they violated the Homeowner’s Bill of Rights. (¶¶ 65-99.)

            Defendants argue that Plaintiff’s first five causes of action fail because of the Court’s August 29, 2023 order. The Civil Code states in relevant part that, “[u]nless otherwise provided . . . sections 2923.5 . . . 2923.6, 2923.7, 2924.9 [and] 2924.10 . . . shall apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property. . .” (Civ. Code § 2924.15(a).) “Owner occupied” property is property that is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes. (Civ. Code § 2924.15.) On May 25, 2023, Defendants moved for an order deeming the truth of matters stated in their Requests for Admissions propounded to Plaintiff as admitted, including, inter alia, Request No. 13, which sought an admission that the subject property was not Plaintiff’s principal residence during the operative period of 2019 through 2022. (See RJN Exh. 7.) The Court granted the motion on August 29, 2023. (RJN Exh. 10.) A party’s admissions in requests for admissions are properly subject to judicial notice. (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Thus, through the Court’s August 29, 2023 ruling, Plaintiff has admitted that the subject property was not her principal residence, and therefore that her first five causes of action are barred by Civil Code section 2924.15(a).

            Defendants next argue that the remainder of Plaintiff’s claims fail because they are derivative of the first five causes of action. In so arguing, Defendants appear to conflate the sixth (mislabeled as ninth) cause of action for unfair competition with the seventh (mislabeled as tenth) cause of action for cancellation of written instrument in their moving papers. However, as the Notice of Motion and the body of the moving papers clearly state that the motion is brought as to the pleadings, this defect is not prejudicial. Moreover, as all three causes of action on their face state that they are predicated on the invalidity of the Notice of Default and Notice of Sale, those claims must fail with the underlying HBOR causes of action.

            Thus, because all of Plaintiff’s claims fail by application of the August 29, 2023 ruling, Defendants are entitled to judgment on the pleadings.

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 demonstrated how the pleadings might be amended to cure these defects. Moreover, as the Court’s ruling here is based on the prior ruling deeming the truth of matters stated in requests for admissions, it is not possible for the defects in the pleadings to be cured by amendment. The Court therefore cannot grant leave to amend on this record.

CONCLUSION:

            Accordingly, Defendants’ Motion for Judgment on the Pleadings is GRANTED.

            Dismissal is entered as to all Defendants with prejudice this date.

            Moving Parties to give notice.

IT IS SO ORDERED.

Dated:  April 4, 2024                          ___________________________________

                                                                                    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.