Judge Thomas D. Long, Case Number: 23STCV14912, Date: 2023-12-14 Tentative Ruling

On June 27, 2023, Plaintiffs Doris Speed and The Doris Speed Trust filed this action against Defendant Nationstar Mortgage LLC dba Mr. Cooper. On October 19, 2023, Defendant filed an answer.

Plaintiffs use a form complaint for actions based in contract. At Page 2, Item 8, Plaintiffs checked the boxes for Breach of Contract, Other (specifying “Fraud, Identity Theft”), and “Other Allegations.” The Other Allegations are listed as “negligence,fraud,breachofcontract,breachoftheimpliedconsent of goodfaithandfairdealing,violationCalifornia ConsumerProtectionAct and unjust enrichment based on improper,inaccurate, fraudulent,excessive presentations of latefees.” Plaintiffs also include attachments for breach of contract and fraud.

Plaintiffs’ Objections/Response to the Declaration of Katalina Beaumann: Overruled.

Plaintiffs’ Objections/Response to Defendant’s Request for Judicial Notice: Overruled.

Defendant’s Omnibus Objections to Plaintiffs’ Filings: The Court finds it unnecessary to rule on these objections in order to decide the motions.

A motion for judgment on the pleadings is the functional equivalent to 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.) The Court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

The standard elements of a claim for breach of contract are (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) “A written contract may be pleaded by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) To plead a contract by its legal effect, a plaintiff must “allege the substance of its relevant terms. This is more difficult, for it requires a careful analysis of the instrument, comprehensiveness in statement, and avoidance of legal conclusions.” (Ibid.)

Plaintiffs allege, “Defendant caused damaging harm toward Plaintiff’s mental, physical, and financial stability. Plaintiff seeks monetary award and return of title and possession of residence 8901 La Salle Ave, Los Angeles, CA 90047 in this matter by rescinding Defendant’s Instrument No. 20190031645, 20190031646, 20190350161, 2021 1228470,20211714355, 20220614291, 20220885007.” (Complaint at p. 3.) The additional attachments attempt to explain the procedural history of Plaintiffs’ attempts to assume her late husband’s loan with Defendant. (Complaint at pp. 4-5.) There are no factual allegations about any contract between Plaintiffs and Defendant, nor any terms. (See Motion at pp. 2-3.) The Complaint’s 117 pages of exhibits do not include any contract between Plaintiffs and Defendant.

Additionally, Defendant argues that any claim would be barred by the statute of limitations. “‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.’” (Geneva Towers Ltd. Partnership v. City of San Francisco (2003) 29 Cal.4th 769, 781.) An action based on a written contract must be brought within four years. (Code Civ. Proc., § 337.) An action based on an oral contract must be brought within two years. (Code Civ. Proc., § 339.) The Complaint alleges that Defendant breached the agreement on January 11, 2019—more than four years before Plaintiffs filed this action on June 27, 2023. (See Complaint at p. 3.)

To the extent that Plaintiffs also allege breach of the implied covenant of good faith and fair dealing (Complaint at p. 2), they cannot state a claim without an underlying contract. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349-350 [“The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. . . . It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.”].)

“The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.] The essential elements of a count for negligent misrepresentation are the same except that it does not require knowledge of falsity but instead requires a misrepresentation of fact by a person who has no reasonable grounds for believing it to be true. [Citations.]” (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.) “Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.) “‘This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Fraud based on concealment requires that “(1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage.” (Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 310-311.) Less specificity is required to plead fraud by concealment. (Ibid.) “Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party.” (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1256, 1384.)

The Complaint alleges that Defendant “created and maintained a property loan account for the ‘Estate of Wayne D. Speed’ until 2022” and “demanded $50,460.67 from last successor,” despite his death in 2013. (Complaint at p. 7.) Defendant also “failed to disclose[] to the Trustees and the Beneficiaries they knew Wayne D. Speed demised on 10-13-2013 and demanded $50,460.67 for Plaintiff to assume the loan.” (Ibid.) “Defendant kept the loan No.0596808564 under Estate of Wayne D. Speed and did not honour the Plaintiff as the new owner of the loan,” and in reliance, Plaintiffs “paid the ambiguous monthly mortgage.” (Id. at p. 8.) “The Plaintiff was not aware that they didn[’t] have to pay the demand amount of $50,460.67 and could continue pay their monthly payments of $2,034.02 under loan No. 0596808564.” (Id. at p. 10.)

These allegations are uncertain, lack any specificity, and do not meet the particularity requirement for pleading a fraud claim.

Within the fraud claim, the Complaint alleges theft of Wayne D. Speed’s identity. (Complaint at pp. 8-9.) “Under Instrument No. 20190031646, The Defendant recorded a fraudualnt [sic] foreclosure in 2019 on Wayne D. Speed’s dissolved loan N0.0596808564 and furthering stealing his identity from the years 2013 (after his demised DOD 10-13-2013)- until 2022.” (Complaint at p. 8.) Additionally, Defendant “open[ed] new account loan No. 0596808564 and sent to the Estate of Wayne D. Speed via the United States Post Service demanded $50,460.67 to steal Wayne D. Speed’s identity to created fraudulent [sic] foreclosures.” (Id. at p. 9.)

“In order to recover actual damages or attorney’s fees in an action or cross-complaint filed by a person alleging that they are a victim of identity theft, the person shall show that they provided written notice to the claimant that a situation of identity theft might exist, including, upon written request of the claimant, a valid, signed Federal Trade Commission (FTC) identity theft report completed at least 30 days before filing the action, or within their cross-complaint pursuant to this section. In the alternative, the person may provide a valid copy of a police report or of a Department of Motor Vehicles (DMV) investigative report, filed pursuant to Section 530.5 of the Penal Code, at least 30 days before filing the action or within their cross-complaint pursuant to this section.” (Civ. Code, § 1798.93, subd. (c)(5).)

The Complaint’s conclusory allegation of identity theft provides no indication that this was done. Moreover, Plaintiffs do not allege theft of their own identities. (See Motion at pp. 7-8.)

To the extent that Plaintiff purport to bring claims for negligence, violation of the California Consumer Protection Act, and unjust enrichment (Complaint at p. 2), there are no supporting factual alleges, and Plaintiffs do not attach pages for these causes of action as required.

The motion for judgment on the pleadings is GRANTED. Because Plaintiffs have not shown any way they can plausibly remedy the deficiencies, no leave to amend is granted.

A Non-Appearance Case Review re: Submission of Proposed Judgment is scheduled for January 3, 2024 at 8:30 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court