Judge: Virginia Keeny, Case: 21STCV07423, Date: 2025-02-26 Tentative Ruling

Case Number: 21STCV07423    Hearing Date: February 26, 2025    Dept: 45

Hearing Date:             February 26, 2025

Moving Party:             Defendant/Cross-Complainant Judith Collie

Responding Party:       Plaintiff/Cross-Defendant Aracely Santoyo

Motion to Dismiss

The court considered the moving and opposition papers.

The court DENIES Defendant’s motion to dismiss, or in the alternative for a bench trial.

Background

            Plaintiff Aracely Santoyo filed this action on February 25, 2021 against defendant Judith Collie, alleging causes of action for (1) Wrongful Foreclosure; (2) Slander of Title; (3) Conversion; (4) Constructive Trust; (5) Unjust Enrichment; (6) Cancellation of Instruments; (7) Breach of Contract; (8) Breach of the Covenant of Good Faith and Fair Dealing; and (9) Violation of Bus. & Prof. Code § 17200, et seq.

            The Complaint alleges the following: On August 27, 2015, Plaintiff entered into an agreement to purchase the subject property at 24425 Woolsey Canyon Road #46, West Hills, California, 91304. (Compl., ¶ 9.) The parties executed a promissory note/security agreement in the amount of $54,640. (Id. at ¶ 10.) Defendant served Plaintiff with a Three-Day Notice to Quit on July 22, 2020. (Id. at ¶ 13.) The Notice to Quit stated that Plaintiff’s home was recently sold in foreclosure and that Defendant purchased the subject property. (Id. at ¶ 13.) Plaintiff was completely surprised by Defendant’s representations since Plaintiff was never served with any notice of default or sale. (Id. at ¶ 13.)

Plaintiff wrote to Defendant on July 28, 2020, requesting (1) the executed debt instrument or note that was the basis of the purported foreclosure, sale, or transfer; (2) documents reflecting proof of the purported foreclosure, sale, or transfer; and (3) an accounting containing the gross sales proceeds and allocations as of result of said foreclosure, sale, or transfer, as required under Health & Safety Code § 18037.5(d). (Compl., ¶ 14.) Defendant never provided these documents or any explanation for the purported sale. (Id. at ¶ 14.) Despite Defendant’s claim that she sold the subject property in foreclosure, Defendant served a Notice of Default on Plaintiff on September 11, 2020. (Id. at ¶ 15.) The Notice of Default wrongfully demanded usurious amounts in addition to $21,089.87 in “late fees.” (Id. at ¶ 15.) Defendant again never provided any documents reflecting the purported foreclosure, sale, or transfer, despite Plaintiff’s request. (Id. at ¶ 16.)

Unbeknownst to Plaintiff, Defendant in fact covertly foreclosed the subject property on January 24, 2020, over seven months before serving the wrongful Notice of Default in September. (Compl., ¶ 17.) Defendant submitted a signed Statement of Foreclosure/Abandonment to the State of California, Department of Housing and Community Development on January 24, 2020. (Id. at ¶ 18.) Defendant certified that the property had been sold to herself for $38,000 on January 24, 2020, yet would later demand payments in September 2020 under the same note that she used as a basis to purportedly foreclose later. (Id. at ¶ 20.) Plaintiff was never served with any notice of default with a period to cure any purported default at least 45 days prior to any sale, as required by Health & Safety Code § 18037.5. (Id. at ¶ 22.) Plaintiff was also never provided with a notice of sale or authenticated notification of disposition before the date fixed for a sale or transfer, pursuant to Health & Safety Code § 18037.5 and Commercial Code §§ 9610-9611. (Id. at ¶ 22.) Further, Defendant did not provide Plaintiff with any statement of accounting, despite a prior written request, as required by Health & Safety Code § 18037.5(d). (Id. at ¶ 22.)

Cross-Complainant Judith Collie filed a Cross-Complaint against cross-defendant Aracely Santoyo on May 12, 2021. Cross-Complainant filed a First Amended Cross-Complaint (FACC) on March 7, 2022, alleging causes of action for (1) Breach of Contract; (2) Fraud; (3) Conversion; (4) Breach of Implied Covenant of Good Faith and Fair Dealing; (5) Promissory Estoppel; (6) Unjust Enrichment; (7) Quiet Title; (8) Financial Elder Abuse; (9) Intentional Infliction of Emotional Distress; (10) Negligent Misrepresentation; and (11) Abuse of Process. The FACC alleges that Cross-Defendant defrauded Cross-Complainant by never intending to perform on the parties’ Promissory Note and Security Agreement. (See FACC, ¶¶ 9, 14, 21.) Cross-Complainant allege that Cross-Defendant’s representations that she would pay under the subject agreement were false at the time she made them. (Id. at ¶ 21.)

            Defendant/Cross-Complainant Judith Collie filed this motion to dismiss on January 23, 2025.  Plaintiff/Cross-Defendant Aracely Santoyo filed an opposition on February 11, 2025.   

Legal Standard

            Section 430.10 of the Code of Civil Procedure sets forth the procedure for filing a demurrer or defense to complaint or cross-complaint.  It states, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:

(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the legal capacity to sue.

(c) There is another action pending between the same parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

(e) The pleading does not state facts sufficient to constitute a cause of action.

(f) The pleading is uncertain. As used in this subdivision, “uncertain” includes ambiguous and unintelligible.

(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section 411.35.

Defendant also requests a bench trial if the matter is not dismissed.  Defendant does not cite any authority but does note that her advanced age and health issues warrant a bench trial.  Under Code of Civil Procedure section 36, “[a] party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: (1) The party has a substantial interest in the action as a whole. (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36(a).) 

Discussion

            Here, Defendant requests that the Plaintiff’s claims be dismissed based on Defendant's “advanced age, significant health issues, and inability to secure legal representation, which collectively render a jury trial burdensome and inequitable.”  Defendant also cites Code of Civil Procedure § 430.10.  In opposition, Plaintiff notes that section 430.10 applies to demurrers, which at this time would be untimely and improper.  In addition, Defendant already filed a demurrer which was overruled.  Defendant cites no authority in the notice of motion under which the Court could grant the relief Defendant seeks.  As such, the Court cannot grant the motion.  (See Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110, subd. (a); People v. American Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726.)  The motion is DENIED.

            Additionally, Defendant’s request for a bench trial is DENIED for the same reasons.        

It is so ordered.