Judge: Theresa M. Traber, Case: 22STCV21462, Date: 2023-01-25 Tentative Ruling
Case Number: 22STCV21462 Hearing Date: January 25, 2023 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: January 25, 2023 TRIAL
DATE: TBD
CASE: Antaliah Thomas Vinnai et al. v.
AMB LLC, et al.
CASE NO.: 22STCV21462 
DEMURRER
TO COMPLAINT
MOVING PARTY: Defendant Total Lender Solutions, Inc. (“Total
Lender”)
RESPONDING PARTY(S): Plaintiffs
Antaliah Thomas Vinnai, Antoinette Thomas Love, individually and as successors
in interest to the Estate of Carrie Thomas (collectively, “Plaintiffs”)
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiffs initiated this action on July 1, 2022 against Defendants Total
Lender; AMB LLC dba American MortgageBanc (“AMB”); Lawrence Kopppelman & Co
(“Lawrence”); the 1996 McDonough Family Trust, R. Emmet McDonough Trustee (“McDonough
Trust”); The Anticouni Family Trust (“Anticouni Trust”), and Ralph Schiavone
(“Schiavone”). In the Complaint, it is alleged that Decedent Carrie Thomas
(“Decedent”) took out a loan secured by a Deed of Trust (Document No.
20071724212) against the subject properly commonly known as 4120 South
Normandie Avenue, Los Angeles, CA 90037, which was recorded on June 11, 2007,
and that AMB is the originating lender of the loan. Decedent passed away on
March 9, 2019. Prior to her death, the subject property burned down on February
17, 2017. AMB and Schiavone received funds from the Hartford to rebuild the
subject property, but reconstruction of the property is still incomplete. Plaintiffs,
as executors of Decedent’s estate, have attempted to assume and modify the
existing loan. However, while negotiations regarding the modification of the
loan were pending, Defendants proceeded with foreclosure proceedings after
recording a Notice of Default on March 2, 2022 (Document No. 20220239519). Based
on these allegations, Plaintiffs assert Defendants did not intend to provide
them with a chance to modify the loan in good faith. It is further alleged that
Defendants converted $100,000 in fire insurance proceeds.
The Complaint alleges the following causes of action: (1) violation of
Civ. Code § 2923.5; (2) violation Civ. Code § 2923.7; (3) violation of Civ.
Code § 2924.11; (4) promissory estoppel; (5) violation of Civ. Code § 2924.17;
(6) unfair business practices; (7) breach of implied covenant of good faith and
fair dealing; (8) injunctive relief (Civ. Code § 2924.12); (9) breach of
fiduciary duty; (10) conversion; (11) fraud; (12) intentional infliction of
emotional distress; (13) breach of contract; (14) accounting; (15) negligence;
(16) elder abuse; and (17) constructive eviction.
On September 8, 2022, Defendant
Total Lending filed the instant demurrer to the Complaint in its entirety for
failure to state facts sufficient to constitute a cause of action and for
uncertainty.
TENTATIVE RULING:
Defendant Total Lending’s demurrer
to the Complaint is SUSTAINED in its entirety with leave to amend,
except as to the ninth, tenth and twelfth causes of action as to which the
Demurrer is SUSTAINED without leave to amend.
DISCUSSION:
Defendant Total
Lender demurs to the Complaint in its entirety on the grounds that the
Complaint fails to state facts sufficient to constitute a cause of action and that
the Complaint is uncertain. Specifically, Defendant Total Lender argues that,
as trustee of the Deed of Trust encumbering the subject property, it does not
owe a duty to the borrower and its conduct associated with the foreclosure of
the subject property is privileged pursuant to Civil Code § 47 and 2924(d).
(Demurrer at pg. 7.)
As a preliminary matter, Plaintiffs
concede that the ninth, tenth and twelfth causes of action for breach of
fiduciary duty, conversion and intentional infliction of emotional distress,
respectively, lack merit and agree to dismiss them. (See Opposition at
pg. 6.) Based on this admission, the Court finds that Defendant Total Lender’s
demurrer is sustained without leave to amend as to the ninth,
tenth and twelfth causes 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
record shows that Defendant Total Lender filed a meet and confer declaration
pursuant to Code of Civil Procedure § 430.41. (See “Declaration
of Demurring or Moving Party Regarding Meet and Confer” filed on September 8,
2022.) Therefore, the statutory
requirements to meet and confer have been satisfied.
Privilege
Defendant
Total Lender initially argues that its conduct, as the foreclosure trustee, is
privileged under Civil Code §§ 47(c)(1) and 2924(d), and as a result, it has no
tort liability stemming from the performance of its duties without specific
facts to support a finding of malice. (Demurrer at pg. 9, relying on Kachlon
v. Markowitz (2008) 168 Cal.App.4th 316, 336.)
“[S]ection 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).” (Kachlon v.
Markowitz (2008) 168 Cal.App.4th 316, 333.) Actual malice is defined as
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.’” (Sanborn v. Chronicle Pub. Co.
(1976) 18 Cal.3d 406, 413.) Consequently, the recording of a notice of default
is privileged unless the trustee has acted with malice. (Kachlon,
supra, 168 Cal.App.4th at pp. 333, 336,338, 340)
In opposition, Plaintiffs argue
that Defendant Total Lender is liable to the same extent as Defendants AMB,
Lawrence, McDonough Trust, Anticouni Trust, and Schiavone under the principles
of joint venture liability. (Opposition at pp. 5-6.) Upon review of the
Complaint, the Court finds that sufficient facts have not been alleged to
support Plaintiffs’ joint venture theory. Instead, upon information and belief,
Plaintiffs allege that the Defendants acted as agents and joint venturers for
one another and committed the alleged acts “with the knowledge, permission,
consent or subsequent ratification of their co-defendants.” (Compl. ¶ 11.)
While it is alleged that Total Lender participated in the “imperfect
securitization of the Note and/or Deed of Trust” (Comp. ¶ 9), the Complaint
fails to allege how Defendant Total Lender acted with actual malice in
executing its duties as the foreclosure trustee. As determined in Kachlon,
tort liability cannot be attributed to a foreclosure trustee in the performance
of its duties without facts supporting a finding of malice. (Kachlon, supra,
168 Cal.App.4th at 336.)
Accordingly, the Court SUSTAINS
Defendant Total Lender’s demurrer to the Complaint in its entirety on this
ground. While the demurrer has been sustained as to the entire Complaint, the
Court shall address Defendant Total Lender’s remaining arguments for each cause
of action out of precaution.
First, Second, Third, Fifth, and
Eighth Causes of Action: Various Violations of the California Homeowners Bill
of Rights
Next, Total
Lender argues that the first (violation of Civ. Code § 2923.5), second
(violation of Civ. Code § 2923.7), third (violation of Civ. Code § 2924.11),
fifth (violation of Civ. Code § 2924.17), and eighth causes of action
(violation of Civ. Code § 2924.12) asserted against are subject to demurrer.
(Demurrer at pp. 9-10.)
Pursuant to Civil Code § 2924.12
(a) (1), “[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.” Under Civil
Code § 2923.5, “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).” (Id., at
(a)(1).) Also, “When 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.) Moreover, when a foreclosure
prevention alternative is approved, a notice of default shall generally not be recorded.
(Civ. Code § 2924.11.) “A declaration recorded pursuant to 2923.5… in
connection with a foreclosure subject to the requirements of §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.” (Civ. Code § 2924.17.)
Defendant Total Lender points out
that compliance with the California Homeowners Bill of Rights (“HBOR”) falls on
the beneficiary or mortgage servicer, with the trustee being excluded from the
definition of “mortgage servicer.” (Demurrer at pp. 9-10; Civ. Code § 2920.5.)
In
opposition, Plaintiffs maintains that Defendant Total Lender is liable under a
joint venture theory of liability. (Opposition at pg. 6.) They further argue that
the demurrer to their claim for injunctive relief pursuant to Civil Code §
2924.12 is inappropriate because discovery needs to be conducted. (Opposition
at pg. 7.) Additionally, Plaintiffs asserts that the violations of the HBOR stem
from the recording of the March 2, 2022 Notice of Default, which was recorded
by Total Lender, as trustee. (Opposition at pg. 8; Compl. ¶ 32.) These
arguments are not persuasive, however, because they fail to address Defendant
Total Lender’s argument that these alleged violations are in connection with a
mortgage servicer’s obligations, not a foreclosure trustee’s. As to Plaintiffs’
theory of joint venture liability, the Complaint relies on conclusory
allegations to support this theory. (Compl. ¶ 11.) Rather, “A joint venture is
‘an undertaking by two or more persons jointly to carry out a single business
enterprise for profit.’ ” (Weiner v. Fleischman (1991) 54 Cal.3d476, 482.)
Additionally, “‘[t]here are three basic elements of a joint venture: the
members must have joint control over the venture (even though they may delegate
it), they must share the profits of the undertaking, and the members must each
have an ownership interest in the enterprise.’ Where a joint venture is
established, the parties to the venture are vicariously liable for the torts of
the other in furtherance of the venture.” (Cochrum v. Costa Victoria
Healthcare, LLC (2018) 25 Cal.App.5th1034, 1053.) Here, Plaintiffs have failed to state any
allegations supporting these elements of joint venture liability.
Accordingly,
the Court SUSTAINS Defendant Total Lender’s demurrer as to the first, second,
third, fifth, and eighth causes of action.
Fourth
Cause of Action: Promissory Estoppel
Next, Defendant Total Lender demurs
to the fourth cause of action for promissory estoppel on the ground that it has
been insufficiently pleaded. (Demurrer at pp. 10-11.)
The 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.’ [Citation.]” (US Ecology, Inc. v. State
(2005) 129 Cal.App.4th 887, 901.)
Defendant Total Lender argues that
the Complaint fails to allege any promise made between it and the Plaintiffs.
(Demurrer at pg. 10.) As a result, because Defendant Total Lender was only
performing its duties as a foreclosure trustee, it contends that this cause of
action fails as a matter of law. (Demurrer at pg. 11.)
In opposition, Plaintiffs argues
that Defendants promised them that they would not foreclose on the subject
property as long as parties negotiated an alternative to foreclosure.
(Opposition at pg. 7; Compl. ¶ 79.) Additionally, Plaintiffs assert that
Defendant Total Lender “knew or should have known Defendants AMB and Schiavone
made Plaintiffs a promise that was clear and unambiguous on its terms” because
the Notice of Default was recorded while negotiations regarding the loan
modification was pending. (Opposition at pp. 7-8; Compl. ¶ 32.) As Plaintiffs’
concede, however, the promise was made by AMB and Schiavone. Nothing in the
Complaint would support the notice that Defendant Total Lender was ever aware
of the loan modification negotiations. If Plaintiffs are relying on a joint
venture theory, then additional facts must be alleged to support this
contention.
Accordingly, because the claim
promissory estoppel has been insufficiently alleged against Defendant Total
Lender, the Court SUSTAINS the demurrer to the fourth cause of action.
Sixth
Cause of Action for Unfair Business Practices
Defendant
Total Lender also demurs to the sixth cause of action for unlawful business
practices because it has been insufficiently alleged. (Demurrer at pp. 11-13.)
The Unfair
Competition Law prohibits “any unlawful or fraudulent business act or
practice.” (Bus. & Prof. Code § 17200.) “To state a cause of action based
on an unlawful business act or practice under the UCL, a plaintiff must allege
facts sufficient to show a violation of some underlying law.” (People v.
McKal (1979) 25 Cal.3d 626, 635.) “A
plaintiff alleging unfair business practices under these statutes must state
with reasonable particularity the facts supporting the statutory elements of
the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14
Cal.App.4th 612, 619.)
Here, Defendant
Total Lender contends that it is being improperly lumped with the other
Defendants and that none of its conduct is unfair, fraudulent or unlawful.
(Demurrer at pp. 12-13.)
In
opposition, Plaintiffs argue that it has been deprived of loss mitigation
options due to Defendants’ conduct and relies on Defendants’ alleged
intentional avoidance of their obligations. (Opposition at pg. 8.) However, as
stated above, the statutory obligations proscribed under the HBOR apply to the
mortgage servicer, not the foreclosure trustee. Because claims arising from
violations of the HBOR have been sustained, it follows that Plaintiff’s unfair
business practice claim fails as well because the Complaint does not allege
that Defendant Total Lender violated an underlying law. (McKal, supra,
25 Cal.3d at 635.)
Accordingly,
the Court SUSTAINS the demurrer to the sixth cause of action because it has not
been sufficiently alleged against Defendant Total Lender.
Seventh and Thirteenth Causes of
Action: Breach of Implied Covenant of Good Faith and Fair Dealing and Breach of
Contract
Defendant Total Lender also demurs to the
seventh and thirteen causes of action for breach of implied covenant of good
faith and fair dealing and breach of contract, respectively. (Demurrer at pp.
13-14.)
“A cause of action for damages for breach of
contract is comprised of the following elements: (1) the contract, (2)
plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach,
and (4) the resulting damages to plaintiff.” (Durell v. Sharp Healthcare (2010) 183
Cal.App.4th 1350, 1367.) “Further, the complaint must indicate on its face
whether the contract is written, oral, or implied by conduct. If the action is
based on an alleged breach of a written contract, the terms must be set out
verbatim in the body of the complaint or a copy of the written instrument must
be attached and incorporated by reference.” (Otworth v. Southern Pac.
Transportation Co. (1985) 166 Cal.App.3d 452, 458-459 (internal
citations omitted); Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th
394, 402 [“The correct rule is that ‘a plaintiff may plead the legal effect of
the contract rather than its precise language.’”].) “[A]ll essential
elements of a breach of contract cause of action[] must be pleaded with
specificity.” (Levy v. State Farm Mutual Automobile Ins. Co. (2007)
150 Cal.App.4th 1, 5.)
Here, Defendant
Total Lender argues that the Complaint fails to allege that there is a
contractual relationship between the parties to support Plaintiffs’ contract
claims. (Demurrer at pg. 14.) The Court agrees. While the Complaint alleges
that Defendants committed breach by proceeding with a non-judicial foreclosure
while loan modification negotiations were pending (Compl. ¶¶ 119-121) as well
as failing to complete the reconstruction of the subject property and
converting insurance funds (Compl. ¶ 171), this alleged conduct is not
attributable to Defendant Total Lender. As stated above, the complaint fails to
sufficiently allege Defendant Total Lender’s involvement in the alleged promise.
Moreover, considering Plaintiffs’ concession that the conversion claim fails
against Defendant Total Lender, it is unclear how the breach of contract claim
can be maintained against Defendant Total Lender when the allegations fail to
establish the defendant’s connection with the reconstruction of the subject
property or the conversion of the insurance funds. Additional facts would be
needed to support Plaintiffs’ joint venture theory of liability.
Accordingly,
because Plaintiffs’ contract claims have been insufficiently alleged as to
Defendant Total Lender, the Court SUSTAINS the demurs to the seventh and
thirteenth causes of action.
Eleventh Cause of Action: Fraud
Defendant Total Lender also demurs to the
eleventh cause of action for fraud because it has been insufficiently alleged.
The essential elements of fraud are
“(1) a misrepresentation, (2) with knowledge of its falsity, (3) with the
intent to induce another's reliance on the misrepresentation, (4) justifiable
reliance, and (5) resulting damage.” (Conroy
v. Regents of Univ. of Cal. (2009) 45 Cal. 4th 1244, 1255.) Any action
sounding in fraud must be pleaded with particularity. (City of Pomona v. Sup. Ct. (2001) 89
Cal.App.4th 793, 803.) A plaintiff must
plead facts in the complaint showing “how, when, where, to whom, and by what
means the representations [amounting to fraud] were tendered.” (Stansfield v. Starkey (1990) 220
Cal.App.3d 59, 73.)
Here, Defendant Total Lender argues
that the fraud claim fails because the Complaint does not allege that it made
any misrepresentation to Plaintiffs or had an intention to defraud. (Demurrer
at pg. 16.)
In opposition, Plaintiffs argue
that the Complaint clearly alleges that Defendants engaged in fraud by
misrepresenting that they would consider foreclosure alternative measures. Upon
review of the Complaint, it is clear that that alleged fraudulent conduct was
advanced by AMB, not Defendant Total Lender. (Compl. ¶¶ 158-165.) Because the
Complaint does not sufficiently allege a joint venture theory of liability, the
fraud claim fails as to Defendant Total Lender.
Accordingly, the Court sustains the
demurrer to the eleventh cause of action.
Fourteenth Cause of Action:
Accounting
Defendant Total Lender argues that
the claim for accounting is subject to demurrer because the Complaint fails to
allege the existence of a relationship between the parties that would require
accounting. (Demurrer at pg. 17.)
“A cause of action for
an¿accounting¿requires a showing that a relationship exists between the
plaintiff and defendant that requires an¿accounting, and that some balance is
due the plaintiff that can only be ascertained by an¿accounting.” (Teselle
v. McLoughlin¿(2009) 173 Cal.App.4th 156, 179.)
In opposition, Plaintiffs argues
that the relationship stems from the fact that Defendants served as creditor
and servicers of the underlying loan. (Opposition at pg. 11.) However, this
presumes that Plaintiffs sufficiently alleged a joint venture theory of
liability. As stated above, additional facts must be alleged to establish that
Defendant Total Lender is liable to the same extent as the other named
defendants for pleading purposes.
Accordingly, because the Complaint
fails to allege a relationship between Defendant Total Lender and Plaintiffs
that would require an accounting, the Court SUSTAINS the demurrer to the
fourteenth cause of action.
//
Fifteenth Cause of Action:
Negligence
Defendant Total Lender also demurs
to the fifteenth cause of action for negligence and argues that the elements of
duty and breach have not been sufficiently alleged.
To plead a cause of action for
negligence a plaintiff must allege facts showing: “(1)¿a¿legal¿duty¿of¿care¿toward¿the¿plaintiff;
(2)¿a¿breach¿of that¿duty; (3)¿legal¿causation; and (4)¿damages.” (Century
Surety Co. v. Crosby Insurance, Inc.¿(2004) 124 Cal.App.4th 116, 127.)
While Plaintiffs contend that there
is a “recent growing trend of California Courts find[ing] that a lender and
servicer owe a duty of care to a borrower during the loan modification review
process when they agree to review the borrower for a loan modification”
(Opposition at pg. 10), Defendant Total Lender is alleged to be the foreclosure
trustee. (Compl. ¶ 9.) As stated above, unless Defendant Total Lender acted
with actual malice, the performance of its duty is privileged. Furthermore,
additional allegation must be alleged to support Plaintiffs’ joint venture
theory of liability.
Accordingly, the Court SUSTAINS the
demurrer to the fifteenth cause of action.
Sixteenth Cause of Action: Elder
Abuse
Defendant Total Lender argues that
the sixteenth cause of action for elder abuse is subject to demurrer because it
merely acted as a foreclosure trustee, did not obtain any benefit from the
foreclosure of the subject property, and its conduct occurred three years after
Decedent’s death. (Demurrer at pp. 18-19.)
To establish financial elder abuse,
the plaintiff must allege that the defendant took or retained the plaintiff’s
property; that the plaintiff was 65 years of age or older at the time of the
conduct; that the defendant took or retained the property for a wrongful use or
with the intent to defraud; that the plaintiff was harmed; and that the
defendant’s conduct was a substantial factor in cause the plaintiff’s harm.
(See Welf. & Inst. Code § 15610.30.)
In opposition, Plaintiffs argue
that all the required elements have been alleged to support their claim for
elder abuse. (Opposition at pg. 11.) However, the Complaint fails to allege how
Defendant Total Lender’s conduct in 2022 impacted Decedent, who is alleged to
have passed away on March 9, 2019. Moreover, as stated above, sufficient
allegations have not been alleged to establish a joint venture theory of
liability that would attributable to Defendant Total Lender.
Accordingly, the Court SUSTAINS the
demurrer to the sixteenth cause of action.
//
Seventeenth Cause of Action:
Constructive Eviction
Lastly, Defendant
Total Lender argues that the seventeenth cause of action for constructive
eviction is subject to demurrer because the Complaint fails to allege that it
was an owner of the subject property, a managing agent, or landlord. (Demurrer
at pg. 19.)
“A
constructive eviction occurs when the acts or omissions . . . of a landlord, or
any disturbance or interference with the tenant's possession by the landlord,
renders the premises, or a substantial portion thereof, unfit for the purposes
for which they were leased, or has the effect of depriving the tenant for a
substantial period of time of the beneficial enjoyment or use of the premises.”
(Groh v. Kover's Bull Pen, Inc.
(1963) 221 Cal. App. 2d 611, 614.)
In
opposition, Plaintiffs assert that this cause of action has been sufficiently
alleged because intolerable conditions arose in the subject property due to
Defendants withheld fire insurance proceeds and failed to comply with the HBOR,
and this forced Plaintiffs to abandon the subject property. (Demurrer at pg.
12; Compl. ¶ 207.) However, this argument lacks merit because Plaintiffs
concede that the conversion claim fails as to Defendant Total Lender and the
claims for violations of the HBOR have been sustained in the instant demurrer.
Consequently, the claim for constructive eviction has not been sufficiently
alleged as to Defendant Total Lender.
Accordingly,
the Court SUSTAINS the demurer as to the seventeenth cause of action.
Leave to Amend
Plaintiffs request leave to amend if any causes of action are sustained.
(Opposition at pg. 12.)
A demurrer may be sustained without leave to amend “only if the
complaint fails to state a cause of action under any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009)
45 Cal.4th 992, 998.) In determining whether leave to amend is warranted, “the
burden is on the Plaintiff to show the manner in which she may amend, and how
the amendment will change the legal effect of the pleading.” (Goodman v.
Kennedy (1976) 18 Cal 3d. 335.)
Here, Plaintiffs have failed to
demonstrate that they are able to plead sufficient facts to justify granting
leave to amend to bring claims against Defendant Total Lender. The burden is on
the plaintiff to show how the complaint might be amended so as to cure the
defect. (Association of Community Organizations for Reform Now v. Department
of Industrial Relations (1995) 41 Cal.App.4th 298, 302.) Given the broad
presumption in favor of leave to amend, however, the Court is inclined to
exercise its discretion to permit Plaintiffs the opportunity to allege facts
supporting their contentions of joint venture and/or actual malice. With respect to the ninth, tenth and twelfth
causes of action, Plaintiffs have conceded their flaws so no leave to amend
will be granted as to these claims.
CONCLUSION:
For the reasons above, Defendant Total
Lending’s demurrer to the Complaint is SUSTAINED in its entirety with
leave to amend, except as to the ninth, tenth and twelfth causes of action as
to which the Demurrer is SUSTAINED without leave to amend.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: January 25, 2023 ___________________________________
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.