Judge Upinder S. Kalra, Case Number: 22STCV02561, Date: 2024-08-27 Tentative Ruling

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MOVING PARTY: Defendant K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Associates LLC dba Western Fidelity Trustees

1. Motion for Judgment on the Pleadings is GRANTED as to the second and third causes of action and MOOT as to the first cause of action.

On January 21, 2022, Plaintiffs Francesca Fuentes and Sebastian Rucci (Plaintiffs) filed a Complaint against Defendants Armen Ambarachyan, K.A.R. Properties, Inc. which also operates as Western Fidelity Trustees, and Kathleen Herrera (Defendants) with twelve (12) causes of action for: (1) Set Aside Notice of Default for Wrongful Foreclosure; (2) Failed to Present Options to Avoid Foreclosure (CCC § 2923.5); (3) Failed to Present Options (CCC § 2923.55); (4) Failed to Provide Single Point of Contact (CCC § 2923.7); (5) Foreclosure Prevention Alternative (CCC § 2924.9); (6) Prohibition Against Recording Notice of Default (CCC § 2924.11); (7) Prohibition Against Recording NOD (CCC § 2924.18); (8) Violation of COVID-19 Homeowner Relief Act (CCC § 3273.1); (9) Quiet Title (CCP § 760.020); (10) Slander of Title; (11) Violation of Home Ownership Equity Protection Act (15 USC § 1639); and (12) Violation of Usury (Cal. Const., art. XV, § 1).

According to the Complaint, Defendants wrongfully instituted foreclosure proceedings against Plaintiff’s property located at 42506 Bellagio Drive, Bermuda Dunes, California 92203 (the Property). Plaintiff Rucci owns the Property and Plaintiff Fuentes rents at the Property.

On July 12, 2022, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Associates LLC dba Western Fidelity Trustees filed an Answer.

On May 31, 2023, Plaintiff Francesca Fuentes filed a request for dismissal as to her complaint only.

On June 20, 2023, Plaintiff Rucci filed a Motion for Reconsideration which was granted in part.

On July 19, 2023, the parties filed a stipulation and order to file an amended complaint.

On July 19, 2023, Plaintiff filed a First Amended Complaint (FAC) with three causes of action for: (1) Damages for Violating Usury; (2) Damages for Violating California Homeowner Bill of Rights; and (3) Quiet Title.

On August 2, 2023, Defendants K.A.R. Properties, Inc. and Kathleen Herrera filed an Answer.

On October 17, 2023, Defendant Armen Ambarachyan filed an Answer and a Demurrer to the FAC which the court SUSTAINED.

On October 18, 2023, Defendant Armen Ambarachyan filed a Motion for Sanctions which the court DENIED.

On March 14, 2024, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Trustees file a Motion for Judgment on the Pleadings which they withdrew.

On May 13, 2024, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Trustees file a Motion for Judgment on the Pleadings.

On May 15, 2024, Plaintiff filed a Challenge to Judicial Officer which was granted.

On June 4, 2024, Defendants K.A.R. Properties, Inc., Kathleen Herrera, and Western Fidelity Trustees file a Motion for Judgment on the Pleadings. On August 13, 2024, Plaintiff filed an opposition.

A defendant may move for judgment on the pleadings on the grounds that (1) the court has no jurisdiction of the cause of action alleged in the complaint, or (2) the complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Pro. § 438, subd. (c)(1)(B).) The grounds for a motion for judgment on the pleadings shall appear on the face of the challenged pleading or from any matter which the court has judicially noticed. (Code Civ. Proc., §¿438, subd. (d).) A motion may be made even though the movant has already demurred to the complaint or answer, on the same ground as is the basis for the motion for judgment on the pleadings, and the demurrer has been overruled, “provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.” (Code Civ. Proc., § 438, subd. (g)(1).)

In reviewing a motion for judgment on the pleadings, 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.)

Prior to filing a motion for judgment on the pleadings, the moving party must meet and confer in person, via telephone, or by video conference. (Code Civ. Proc., § 439, subd. (a).) Insufficient meet and confer is not grounds to grant or deny a motion for judgment on the pleadings. (Code Civ. Proc., § 439, subd. (a)(4).) Here, the parties met and conferred via telephone. (Schachter Decl. lines 9-18.)

Moving Parties contend that judgement on the pleadings is appropriate because they are not parties to the alleged Promissory Note and there are no claims they own a money interest in the Promissory Note.

Upon reviewing the FAC, it appears Moving Parties are not subject to the first cause of action. (FAC ¶ 22 [“This cause of action is applicable to defendant Armen Abrarachyan.”]) As such, the motion for judgment on the pleadings is not applicable to the first cause of action.

Second Cause of Action – Damages for Violating California Homeowner Bill of Rights

Moving Parties contend that the court should enter judgment on the pleadings in their favor because it previously sustained a demurrer without leave to amend as to co-defendant Armen Ambarachyan.

As the parties indicate, the court previously sustained co-defendant Abrarachyan’s demurrer to the second and third causes of action without leave to amend because the allegedly impermissible recorded Notice of Default was rescinded. (Ruling on Demurrer 12/07/23.[1]) The court previously reasoned that “Plaintiff may not obtain either injunctive relief or damages for [Defendant Abrarachyan]’s alleged violations of HBOR” because “there is nothing to enjoin, and in the absence of a sale, there are no damages to award.” (Ibid.) Plaintiff does not dispute that the Notice of Default was rescinded. Instead, he argues that he still has damages because it was not rescinded until 629 days later. (Opp. 5:16-27.) However, Plaintiff fails to state how he was damaged by the delay and fails to provide authority supporting his position that there are still damages despite the rescission.[2] Indeed, as the court also previously indicated, “there is no live controversy under HBOR for this court to adjudicate.” (Ruling on Demurrer 12/07/23.) The court sees no reason why it should deviate from the reasoning applied to Defendant Abrarchayn.

Accordingly, the court GRANTS Moving Parties’ motion for judgment on the pleadings as to the second cause of action.

As indicated in the prior ruling, this claim rests on the allegedly void notice of default. (Ruling on Demurrer 12/07/23.) Since it was rescinded, this claim fails.

Accordingly, the court GRANTS Moving Parties’ motion for judgment on the pleadings as to the third cause of action.

1. Motion for Judgment on the Pleadings is GRANTED as to the second and third causes of action and MOOT as to the first cause of action without leave to amend.

[1] Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1014 [“Although a court cannot take judicial notice of hearsay allegations in a court record, it can take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”]