SoCal TntvRul 9/8/12

* TENTATIVE RULING: *

KC063802       Plaintiff, et al. v. Bank of America Home Loans, et al.

Defendants Bank of America, N.A., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.’s DEMURRER TO PLAINTIFFS’ COMPLAINT

Defendants Bank of America, N.A., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.’s demurrer to plaintiffs’ complaint is SUSTAINED. The court will hear from Plaintiffs regarding whether leave to amend is warranted.

ANALYSIS

Defendants Bank of America, N.A., ReconTrust Company, N.A., and Mortgage Electronic Registration Systems, Inc.’s demurrer to plaintiffs’ complaint is SUSTAINED. The court will hear from Plaintiffs regarding whether leave to amend is warranted.

1st CAUSE OF ACTION: LACK OF STANDING: “Civ. Code, § 2924, subd. (a)(1), states that a trustee, mortgagee, or beneficiary, or any of their authorized agents may initiate the foreclosure process… NOWHERE DOES THE STATUTE PROVIDE FOR A JUDICIAL ACTION TO DETERMINE WHETHER THE PERSON INITIATING THE FORECLOSURE PROCESS IS INDEED AUTHORIZED, and the court sees no ground for implying such an action.” (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.)

Plaintiffs challenge Defendants’ authority to foreclose, but fail to state with particularity the unusual circumstances which would give rise to such a claim. Production of the original note is not required to proceed with a nonjudicial foreclosure. (See Gamboa v. Trustee Corps. (ND Cal. 2009) 2009 WL 656285, at *4; Putkkuri v. ReconTrust Co. (SD Cal. 2009) 2009 WL 32567, at *2.) Further, it is well-established in California that securitization and pooling of a promissory note does not impact its legal status or enforceability. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149.) Demurrer is SUSTAINED.

2nd – 3rd causes of action: FRAUD: The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal. 3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.)

Fraud fails for lack of specificity. Demurrer is SUSTAINED.

2nd – 3rd, and 8th – 10th CAUSES OF ACTION: Fraud claims are subject to a 3-year statute of limitations. (CCP 338(d).) RESPA claims expire three years from the closing of the loan. (12 USC 2614.) A TILA claim for rescission expires "three years after the loan closes or upon the sale of the secured property, whichever date is earlier." (Beach v. Ocwen Fed. Bank, 523 U.S. 410, 411, 118 S. Ct. 1408, 140 L. Ed. 2d 566 (1998) citing 15 U.S.C. § 1635(f).)

Plaintiffs’ claims seeking rescission are time-barred. The loan closed on 4/25/06. The claims should have been filed by 4/25/09. Demurrer is SUSTAINED.

4th CAUSE OF ACTION: IIED: The elements are: 1) outrageous conduct by defendant; 2) intentional or reckless causing emotional distress; 3) severe emotional distress; and 4) causation. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; see also Conroy v. Regents of Univ. of Cal. (2007) _ Cal.App.4th _, _, 2007 WL 1492363, *9 - “MUST BE CONDUCT DIRECTED AT THE PLAINTIFF, OR OCCUR IN THE PRESENCE OF A PLAINTIFF OF WHOM THE DEFENDANT IS AWARE”; Trerice v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 - “court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery”; Cross v. Bonded Adjustment Bureau (1996) 48 Cal. App. 4th 266, 283 and Alcorn v. Anbro Eng., Inc. (1970) 2 Cal.3d 493, 499 - outrageous conduct is a fact question where reasonable minds may differ.)

Plaintiffs fail to allege outrageous or wrongful conduct. Seeking to foreclose on a deed of trust when one has the right to do so does not constitute outrageous conduct. Demurrer is SUSTAINED.

5th CAUSE OF ACTION: QUIET TITLE: QUIET TITLE: The complaint shall be verified and shall include all of the following: (a) A description of the property that is the subject of the action. In the case of tangible personal property, the description shall include its usual location. In the case of real property, the description shall include both its legal description and its street address or common designation, if any; (b) The title of the plaintiff as to which a determination under this chapter is sought and the basis of the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession; (c) The adverse claims to the title of the plaintiff against which a determination is sought; (d) The date as of which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought; (e) A prayer for the determination of the title of the plaintiff against the adverse claims. (CCP 761.020.) In this state it is established that a cause of action to quiet title may be pleaded in general terms. If the complaint alleges that the plaintiff is the owner in fee simple of the described property, that each defendant claims some interest in the property, that each claim is wrongful and that no defendant has any interest in the property, then allegations such as these are ordinarily sufficient to state a cause of action to quiet title. (Hyatt v. Colkins, 174 Cal.580.) They are insufficient only if the rest of the complaint reveals a defect in the plaintiff's title. (See Martin v. Hall, 219 Cal. 334; Carlson v. Lindauer, 119 Cal.App.2d 292.)

Plaintiffs fail to allege their claim to legal title. Further, a borrower cannot quiet title without discharging his debt. (Aguilar v. Bocci (1974) 39 Cal.App.3d 475, 477.) Demurrer is SUSTAINED.

6th CAUSE OF ACTION: SLANDER OF TITLE: The elements are: 1) a false statement, disparaging title to real or personal property; 2) publication of the statement to a third person; 3) express or implied malice; 4) absence of privilege to make the statement; and 5) pecuniary damage. (Appel v. Berman (1984) 159 Cal.App.3d 1209, 1214.)

Plaintiffs fail to allege a publication of a false statement. Further, mailing a notice of default is a privileged. (CC 2924(d)(1).) Demurrer is SUSTAINED.

7th CAUSE OF ACTION: DECLARATORY RELIEF: In his declaratory relief cause of action, Gomes sets forth the purported legal authority for his first cause of action, alleging that Civil Code section 2924, subdivision (a), by “necessary implication,” allows for an action to test whether the person initiating the foreclosure has the authority to do so. We reject this argument… . The recognition of the right to bring a lawsuit to determine a nominee's authorization to proceed with foreclosure on behalf of the noteholder would fundamentally undermine the nonjudicial nature of the process and introduce the possibility of lawsuits filed solely for the purpose of delaying valid foreclosures…. Gomes has not asserted any factual basis to suspect that MERS lacks authority to proceed with the foreclosure. He simply seeks the right to bring a lawsuit to find out whether MERS has such authority. No case law or statute authorizes such a speculative suit. (Gomes v. Countrywide (2011) 192 Cal.App.4th 1149, 1154-55.)

Plaintiffs’ declaratory relief claim is premised on Defendants’ lack of authority to foreclose, which was rejected by Gomes v. Countrywide. Demurrer is SUSTAINED.

* TENTATIVE RULING: *

BC470531       Plaintiff, et al. v. Ocwen Loan Servicing, LLC, et al.

Motion: Motion to Compel Further Responses to Inspection Demand

Plaintiffs filed this action against Defendant Ocwen Loan Servicing LLC, alleging various causes of action under debt collection statutes. Plaintiffs now move for an order compelling further responses to the first set inspection demands.

Initially, the court notes that the parties entered into a stipulation permitting the opposition and reply papers to be filed two court days late. The parties may not do this without a court order; see CCP §1005(b) & CRC 3.1300(a). The court has considered the papers, but will not do so in the future; see CRC 3.1300(d).

Plaintiffs have shown that they served inspection demands on Defendant on 2/9/12. Defendant served initial responses on 4/13/12 and further responses on 5/18/12. Plaintiffs now seek further responses to Demand Nos. 1-2, 4-6, 8-11, and 13-14.

As to Defendant’s supplemental objections, Defendant waived its additional objections based on confidentiality in its further responses to Nos. 2 and 4 because these objections were not asserted in Defendant’s initial responses. See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 273-74. Defendant’s relevancy and annoyance and harassment objections to Nos. 1, 13 and 14 are not waived because they are fairly encompassed by Defendant’s overbroad objection in its initial responses.

As to each inspection demand, Defendant submits that no documents have been withheld, and Defendant’s further responses indicate that it produced “responsive non-privileged documents” subject to its objections and will produce “responsive non-privileged supplemental responses within its possession, custody, and control as appropriate as [it] continues its reasonable inquiry.” This response is incomplete, because Defendant has failed to explain its interpretation of how the documents are “responsive” in relation to Defendant’s objections; see CCP § 2031.240(b)(1). Defendant fails to explain that there were no privileged documents that were withheld or provided a privilege log for documents that were withheld. Also the Comment History produced by Defendant refers to several documents that were not produced. Consistent with Defendant’s “responsive” production, Defendant has failed to explain whether such referenced documents were produced or why they were not produced (see CCP § 2031.230).

As to Nos. 9-10 and 13-14, Defendant argues that these categories seek Defendant’s general servicing policies, practices, and procedures that this Court has already determined to be irrelevant in its 8/9/12 ruling. That argument is wrong. The Court’s ruling addressed Plaintiffs’ special interrogatories which sought contact information for other residential homeowners and identification of all of Defendant’s employees who performed loan servicing functions; the Court did not rule that Defendant’s general servicing policies, practices, and procedures (which may or may not have been applied to Plaintiffs’ loan) are irrelevant. Only the portion of Nos. 13 and 14 directed at other residential loans are irrelevant for the reasons discussed in the Court’s 8/9/12 ruling; all others are appropriate.

* TENTATIVE RULING: *

To grant the motion to compel Defendant to provide further responses to Requests for Admission, Set One, Nos. 8, 36-67, 87-92, 157-158, Request for Production of Documents, Set One, No. 1, and Form Interrogatory No. 17.1 as to Requests for Admission, Set One, Nos. 8, 36-67, 87-92, 157-158. Further verified responses must be served, and responsive documents produced, within 20 days of service of the order by the clerk. To impose $4,320 in monetary sanctions in favor of PLAINTIFF, Inc., against

plaintiff Defendant and his counsel, to be paid to Plaintiff’s counsel within 30 days of service of the order by the clerk. Code Civ. Proc. §§ 2023.010(f), 2030.300(e), 20313.310(h), 2033.290(d).

Explanation:

Plaintiff originally filed four discovery motions, three of which sought further responses from three plaintiffs. On 7/25/12, the court denied the motion for deemed admissions, and continued the hearing on the Requests for Admission, Requests for Production of Documents, and Form Interrogatories, to 9/6/12. The court ordered the parties to “meet and confer in person in a good faith effort at resolving all remaining discovery issues. Nine court days before the continued hearing date the parties shall file with the court a joint statement detailing the further efforts at informal resolution, which requests for admission remain at issue, and the parties’ respective positions regarding each request.”

Plaintiff’s counsel attempted in good faith to comply with the court’s order.

Defendant’s counsel completely disregarded the order, failing to appear twice for

scheduled meetings with opposing counsel, apparently failing to communicate with opposing counsel about the matter, and failing to participate in the preparation of the joint statement ordered by the court. Accordingly, the court will grant the remaining motions as limited, in their entirety, as set forth below.

The court is aware of Plaintiff’s counsel’s declaration filed on 8/31/12, in which he seeks to obtain rulings on certain discovery requests was withdrawn at the 7/25/12 hearing. However, the court at this time will only rule on the discovery requests identified in the 8/14/12 amended separate statements.

Inasmuch as the Second Amended Complaint includes no prayer for punitive damages, discovery aimed at punitive damages allegations would not be proper at this time. However, plaintiff’s counsel will not be rewarded for their apparent game playing. In addition to amending the complaint to remove the prayer for punitive damages, plaintiffs’ counsel represented to the court at the 7/25 hearing that plaintiffs would not pursue any claim for punitive damages. It now appears that this was done for the purpose of avoiding discovery relating to punitive damages (see second further Elliott Dec. ¶¶ 3-14) with the intent of adding back in the punitive damages claim after discovery is completed (see second further. In the unlikely event that defendants are subsequently permitted leave to seek punitive damages, the court will permit Plaintiff to renew its motion as to those requests that were withdrawn.

The court also notes that sanctions are awarded based on the amounts requested in the original moving papers. Though a substantial portion of the discovery has been withdrawn, sanctions in the full amount requested for the three motions continued to 9/6 (less travel time from Sherman Oaks) is appropriate in light of the fact that, at the time the motions were filed, plaintiffs still maintained claims for punitive damages. Moreover, since the discovery sought from each plaintiff was essentially identical, motions directed solely against Defendant would not have taken any less time to prepare than the motions that were directed at all three plaintiffs.

Request for Admissions

RFA No. 8 asks plaintiff to admit that there is no merit to her claim for the cost of post-accident medical expenses. Plaintiff objected that the request is vague, ambiguous and argumentative, calls for legal opinion, is violate of the attorney-client and attorney work product privileges. The response further says that plaintiffs are entitled to file an unverified complaint, and whether something lacks legal merit is a legal opinion that plaintiff is incapable of making.

If a timely motion to compel has been filed, the burden is on the responding party to justify any objection or failure fully to answer the interrogatories. Coy v. Superior Court (1962) 58 Cal.2d 210, 220–221; Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 255. Plaintiff has failed to file an opposition that justifies any of these objections. Plaintiff’s previously-field opposition papers made no attempt to justify any of these objections, and having disregarded the court’s 7/25/12 order, no justification was subsequently provided. Moreover, it is not ground for objection that the request is “ambiguous,” unless it is so ambiguous that the responding party cannot in good faith frame an intelligent reply. See Cembrook v. Superior Court (1961) 56 Cal.2d 423, 428. The court does not find the request to be vague or ambiguous. “Argumentative” is not a proper objection to discovery.

Nor is there any apparent merit to the privilege objections. It is not ground for objection that the request calls for a legal opinion. See Code Civ. Proc. § 2033.010; Cembrook, supra, 56 Cal.2d at 430; Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395-396.

Plaintiff responded a single response to RFA Nos. 36-158, objecting that the requests are vague, ambiguous, overbroad, burdensome and oppressive, violate attorney-client and work product privileges, violate privacy rights and physician-patient privilege, and exceed the number of permissible requests under Code Civ. Proc. § 2033.030.

The single blanket objection to all requests over 35 in number is improper, as “the party to whom Requests for Admission have been directed shall respond in writing under oath separately to each request.” Code Civ. Proc. § 2033.210(a).

Again, plaintiff has failed to justify his objections by refusing to participate in the further meet and confer and joint statement requirements ordered by the court. Nowhere in the previously filed opposition did plaintiff address any of the objections, other than the objections under Code Civ. Proc. § 2033.030 and that the discovery is burdensome and oppressive. Objections not addressed in the opposition are overruled.

If more than 35 RFAs are sought, the propounding party must serve a “declaration of necessity.” Code Civ. Proc. § 2033.030(b). Plaintiff served a declaration of necessity, which plaintiff contended is defective. However, the responding party may challenge the “declaration of necessity” by motion for protective order, on the ground the number of RFAs is unwarranted. Code Civ. Proc. § 2033.040(b). Because plaintiff filed no motion for protective order, plaintiff has waived the objection under § 2033.030.

The previously-filed opposition argued that the discovery is burdensome and oppressive.

The ground for objection is “oppression.” Thus, it is not enough that the questions will require a lot of work to answer. It must be shown that the burden of answering is so unjust that it amounts to oppression. West Pico Furniture Co. of Los Angeles v. Superior Court (1961) 56 Cal.2d 407, 418. In determining whether the burden is unjust, a weighing process is required: It must appear that the amount of work required to answer the questions is so great, and the utility of the information sought so minimal, that it would defeat the ends of justice to require the answers. See Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 19; and West Pico Furniture Co., supra.

On a motion to compel answers, the burden is on the objecting party to sustain the objection by detailed evidence showing precisely how much work is required to answer; conclusionary statements are not sufficient. West Pico Furniture Co., supra.

Plaintiff’s opposition based on burden and oppression was based on the sheer volume of discovery sought from of the three plaintiffs, and large number of requests for admission multiplied by the corresponding production demand and form interrogatory 17.1. But since the opposition was filed most of the discovery motions have been withdrawn, and the motion to compel responses to the request for admissions has been narrowed from 124 requests to just 37.

Having refused to participate in the further meet and confer and submission of plaintiff’s position in the joint statement ordered by the court, plaintiff has abandoned his opportunity to present any argument as to whether or why the limited amount of discovery now at issue is burdensome or oppressive. Plaintiff has not met that burden. Accordingly, the motion should be granted as to RFA Nos. 8, 36-67, 87-92, 157-158.

Form Interrogatory 17.1

Form Interrogatory No. 17.1 asks that, with respect to each RFA response that is not an unqualified admission, plaintiff (a) state the number of the request, (b) state all facts upon which the response is based, (c) identify all persons with knowledge of those facts, (d) identify all documents and things that support the response, and identify the persons with each document or thing.

Plaintiff responded: “Objection. This interrogatory is vague, ambiguous, compound, overbroad, burdensome and oppressive. Subject to the aforesaid objections, the facts, witnesses and documents supporting each denial and each failure to admit are set forth in the separate responses to the defendant’s first request for admissions.”

That is obviously unresponsive. Plaintiff has not submitted any argument justifying his objections, which the court finds to be without merit, and overrules. As noted above, plaintiff has not met his burden of showing that the discovery, particularly as narrowed, is oppressive. Accordingly, plaintiff must serve supplemental responses without objection to form interrogatory no. 17.1, with regards to RFA nos. 8, 36-67, 87-92, 157-158.

Request for Production of Documents

The only request for production at issue is No. 1, which asks for all writings identified in response to form interrogatory 17.1. The response states that “After a diligent search, RESPONDING PARTY does not have any documents responsive to this request in his care, custody or control.”

This response is evasive and incomplete. A response stating inability to comply with the Code Civ. Proc. § 2031.010 demand shall state that a diligent search and reasonable inquiry has been made in an effort to locate the item demanded; and the reason the party is unable to comply: e.g., the document never existed, or has been lost or stolen, has been destroyed, or is not in the possession, custody or control of the responding party.

To the extent that the response claims that the documents are not in plaintiff’s care, custody or control, the response must state the name and address of anyone believed to have the document. Code Civ. Proc. § 2031.230.

* TENTATIVE RULING: *

30-2010-00412198  Plaintiff v. Kondauer Capital Corporation

Motion by Plaintiff for Modification of Preliminary Injunction:

(a) Plaintiffs’ motion to modify the preliminary injunction/stay order is granted in part and denied in part.

(i) GRANTED as to plaintiffs request to not have to pay rent of $4,250.00 during the pendency of this action because defendants’ caused plaintiffs to seek other living quarters. [See C.C.P. § 533.]

(ii) But DENIED as to ordering that the swimming pool be maintained. First, the agreement setting rent specifically excluded pool repairs. Second, such an order would constitute a mandatory injunction that is not indicated under the facts of this case. [See Shoemaker v. County of Los Angeles (1995) 37 Cal. App.4th 618, 625.] Of note, plaintiffs have represented that their primary residence will be the newly leased Villa Park property and not the subject property with the pool.

(b) Plaintiffs’ Request for Judicial Notice: Plaintiffs requested that the court take judicial notice of Exhibit 1, Handwritten Notes and the Minute Orders of 11-15-10 and 11-19-10, and Exhibit 2, Stipulation for Entry of Judgment for Possession of Real Property Only. Plaintiffs’ request for judicial notice is denied in part and granted in part.

* TENTATIVE RULING: *

12-557658       Plaintiff VS SELECT PORTFOLIO SERVICING INC

PLAINTIFF’S ORDER TO SHOW CAUSE RE:PRELIMINARY INJUNCTION

The decision to grant or deny a preliminary injunction rests with the discretion of the trial court. Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc. (2001) 91 Cal. App. 4th 678, 695. “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the Plaintiff will prevail on the merits at trial and (2) the interim harm that the Plaintiff would be likely to sustain if the injunction were denied as compared to the harm the Defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749. 

The Plaintiff bears the burden of showing all elements necessary to support the issuance of a preliminary injunction. O’Connell v. Sup. Ct. (2006) 141 Cal. App. 4th 1452, 1481.

Here, the balance of harms favors Plaintiffs because real property is unique, and this is simply a business transaction for Defendants.  The primary question, then, is whether Plaintiffs have shown a likelihood of prevailing on the merits.  As for their first and third causes of action, Plaintiffs have not shown a likelihood of prevailing on the merits.

For the second cause of action for violation of Cal. Civ. Code § 2923.5, however, the evidence is that the beneficiary and loan servicer did not comply with section 2923.5 before filing the notice of default, which is required by the law.  Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 225 (“The right conferred by section 2923.5 is the right to be contacted . . . prior to a notice of default”) (emphasis in original).

Accordingly, the preliminary injunction enjoining Select Portfolio Servicing, Inc. (“SPS”), U.S. Bank N.A., and ReconTrust Company from proceeding with a trustee’s sale of the property located at 1 Lucania, Newport Coast on the basis of the notice of default recorded on 10/18/11 is granted upon conditions that will be discussed at the hearing. Court will also discuss setting and early loan modification settlement conference.

* TENTATIVE RULING: *

Plaintiff v OneWest Bank

 Strike 2nd Amended Complaint

Plaintiff has now alleged that a motion for relief from automatic stay in regard to the subject property was granted before his present civil action was filed; Chap 7 Trustee would have been on notice of this motion for relief from stay and thus aware that Plaintiff owned the subject property; In essence, the Chap 7 trustee abandoned any claim to the property by failing to oppose OneWest’s motion for relief;

Grant Request for Judicial Notice limited to the filing of the documents and not as to the truth of the information contained therein;

Deny Motion to Strike – Deft may otherwise respond or answer Plaintiff’s 2nd Amended Complaint within 21 days.

* TENTATIVE RULING: *

2010-00427889           Plaintiff vs JPMorgan Chase

 Defendant JPMorgan Chase’s Motion to Compel Further Discovery Responses

 The court is inclined to GRANT in part and DENY in part defendant JP Morgan Chase Bank, N.A.’s Motion to Compel Further Discovery as follows:

The request to compel responses to Form Interrogatory No. 9.2, Special Interrogatories 1-3, and Requests for Production Nos. 1-6 is DENIED.  The motion is untimely as to these requests, because plaintiff’s responses to these requests contained only objections.  Thus, Plaintiff’s failure to verify the responses does not render ineffective her objections.  See Food 4 Less Supermarkets, Inc. v. Sup. Ct., 40 Cal.App.4th 651, 656-658 (1995).   As a result, Chase was required to bring this motion within 45 days of service of plaintiff’s responses on May 29, 2012.  Chase did not, and the parties did not stipulate in writing to extend Chase’s deadline to “a specific later date”, as required by CCP§§2030.300(c) and 2031.310(c).

The request to compel response to Special Interrogatory No. 4 is DENIED for failure to comply with California Rule of Court 3.1345.

The request to compel further responses to Form Interrogatories 6.2-6.7 and 9.1 is GRANTED.  The motion as to these requests is timely because plaintiff did not verify her responses to these requests until July 18, 2012.  See Ex. 12.  Plaintiff must provide supplemental responses to these interrogatories within 20 days.

The request to overrule plaintiff’s objections is DENIED as untimely, pursuant to the court’s conclusions above.

* TENTATIVE RULING: *

2012-00544810           Plaintiff vs Select Portfolio Servicing Inc

The instant litigation mirrors case # 11-00513952, which plaintiff dismissed after removal to federal court. In that matter, she dismissed her case prior to a dismissal hearing and now she has filed a first amended complaint before hearing on defendant’s demurrer.  As noted by defendant, each cause of action depends upon statutory violations, none of which assist plaintiff post-foreclosure.

Defendant’s demurrer is sustained without leave to amend as to the 1st-4th causes of action, which are improperly based on violations of statutes that are presently inapplicable to plaintiff.

Borrowers may not challenge a foreclosure sale absent tender. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428.)  It is undisputed that plaintiff has failed to tender.  CC 2923.5 acts only to delay sale, and regardless, plaintiff acknowledges that she did engage in modification discussions.  Moreover, an alleged violation of this statute must be raised prior to sale of the property; plaintiff raised her argument after the sale had taken place. (Mabry v. Superior Ct. (2010) 185 cal.App.4th 208.)

It is well established that there is no private right of action under either CC 2923.6 or HAMP, which further does not entitle a delinquent borrower to a loan modification.

Lastly, CC 1493, which reads as follows is of no benefit to plaintiff here:

“Offer to be made in good faith. An offer of performance must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor.” Plaintiff’s efforts to assert a violation of the above fail.

Defendant’s demurrer to the 5th cause of action for a “court-supervised loan modification” is sustained without leave, as the request lacks any legal support

Plaintiff seeks court supervision on the basis that defendant has violated multiple statutes; her claim is not supported by either the facts or the law.

Defendant’s demurrer to the 6th cause of action is sustained without leave, as there is no cognizable basis for declaratory relief.

Plaintiff acknowledges that she borrowed the funds and that she has not repaid them as promised.  She also has failed to tender or offer any other basis for the relief sought.

Defendant Select Portfolio’s demurrer to plaintiff’s first amended complaint is sustained in its entirety without leave to amend.  This is plaintiff’s second complaint and 4th attempt to state viable claims.  It appears that the ongoing litigation is merely an effort to avoid eviction.

* TENTATIVE RULING: *

2012-00568785           Plaintiff vs US Bank National Association as Trustee and Successor Interest to Bank of America, Acting as Successor in Interest to Lasalle Bank, Metrocities

Plaintiffs’ motion for consolidation is denied.  Defendant is to give notice.

Defendant seeks an order consolidating the instant action with unlawful detainer case, US Bank National Association v. Plaintiff , Case No. 12-566452, for all purposes.  Moving party also requests to have the instant action (12-568785) made the lead case.

Both actions relate to the property located in Huntington Beach, California.

Moving party asserts that the parties in the two cases are the same and that the same witnesses will testify in both actions. This is partially true as US Bank National Association, Plaintiffs are parties to both actions. Renters are additional defendants in the unlawful detainer action, and the Plaintiff Family Trust and Western Pureland Corporation, LLC, are additional plaintiffs in the instant action.

The unlawful detainer action was filed on 05/03/12, 11 days prior to the instant action.

CCP § 1048(a) provides: “When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions, it may order all the actions consolidated, and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay” (emphasis added).  All that the moving party need show is that the issues in each case are basically the same, and that “economy and convenience” would be served by a joint trial.  See Jud Whitehead Heater Co. v. Obler (1952) 111 Cal.App.2d 861, 867.  The granting or denial of the motion to consolidate rests in the sound discretion of the trial court, and will not be reversed except upon a clear showing of abuse of discretion.  Fellner v. Steinbaum (1955) 132 Cal.App.2d 509, 511.

Here, Plaintiffs cite to Asuncion v. Sup. Ct. (1980) 108 Cal.App.3d 141 in support of their position.  In that case, a lending company filed an unlawful detainer action in the municipal court based on a deed it had recorded as part of what it asserted had been the sale of the property.  The homeowner filed a civil action against the lending company in the superior court complaining the deed had been obtained through fraud and unfair business practices. The municipal court transferred its case to the superior court who attempted to re-transfer it to the municipal court.  In setting aside the re-transfer order, the appellate court stated that because both cases involved the right of possession the superior court properly should “retain jurisdiction over the matter so long as substantive issues of ownership remain to be litigated.” Id. at 147.  While the holding in Asuncion had the effect of undercutting the summary nature of the unlawful detainer action, it did so in the context of two pending matters each of which raised the issue of the right to possession of the property.  That case is inapposite here as it addressed whether the municipal or superior court should try the fraud claims.  The idea of consolidation was a possible alternative procedure suggested by that court (see id. at 147), but the holding was not in regard to a motion for consolidation, which is at issue here.

Plaintiffs must show that the issues in each case are basically the same, and that “economy and convenience” would be served by a consolidation.  This action also involves issues, if resolved, that affect title and possession of the property.  However, matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff’s title, are neither properly raised nor concluded by the unlawful detainer judgment.  Further, the pendency of another action concerning title is immaterial to the resolution of the unlawful detainer proceeding.  Old National Financial Services, Inc. v. Seibert (1987) 194 Cal. App. 3d 460; see also Evans v. Sup. Ct. (1977) 67 Cal.App.3d 162, 170-171.

Here, there would be severe prejudice to U.S. Bank if it is prevented from litigating the unlawful detainer action.  The unlawful detainer action does not bar Plaintiffs from pursuing their claims outside the limited extent of the unlawful detainer setting, e.g., continuing with this action.  Vella v. Hudgins (1977) 20 Cal.3d 251, 258.  Plaintiffs may later seek to stay the execution of the judgment pursuant to CCP §§918 and 918.5 (another pending action) if U.S. Bank is found to have “duly perfected title” under Civ. Code §2924 (statutory nonjudicial procedures).  The pendency of another action should have no bearing on the resolution of an unlawful detainer proceeding.  Evans v. Sup. Ct. (1977) 67 Cal.App.3d 162, 171.  Consolidating the two would infringe upon U.S. Bank’s right to a speedy resolution of the unlawful detainer action under CCP §1179a.

* TENTATIVE RULING: *

2011-00522402           Darryl R Loomis v. Mortgage Electronic Registration Systems, Inc

Defendants Bank of America N.A; Mortgage Electronic Registration Systems, Inc.; Recontrust Company, N.A.; and The Bank of New York Mellon’s Motion to Dismiss

o   1st COA:  Fraudulent Concealment

o   2nd COA:  Unfair Competition

Pursuant to CCP §581(f)(2), this Court has discretion, tempered by the interests of justice, as to whether dismissal is proper.

Fraudulent Concealment

Civil Code §2924(a)(1) vests the right to initiate foreclosure in the beneficiary, trustee or any person appointed by the lender to act as its agent.  Plaintiff offers nothing to contest this, and fails to get around Civil Code §2934a. As a practical matter, California does not recognize preemptive suits questioning an agent’s actual authority to effectuate a  oreclosure sale.

Plaintiff next alleges that Countrywide engaged in “false property valuations”. Plaintiff stopped paying in August of 2008.  Under any scenario, fraud tethered to loan origination would be barred by the applicable 3-year statute of limitations.

Plaintiff finally alleges that the current defendants are “continuing” Countryside’s “wrongful acts” with “hardball tactics and deception.”   Fraud must be pleaded with specificity rather than with general or conclusory allegations. There are no factual averments of any actual wrongdoing by these defendants, and no facts showing detrimental reliance since plaintiff was already in the loan and had no reasonable alternative in 2008 for refinancing.

This cause of action for fraud is simply barren and defective.

Unfair Competition (B&P §17200)

Here, plaintiff’s claim is not tethered to any particular wrongful act.  Instead, plaintiff claims that the use of “unsourced money to fund the loan” somehow violated the Patriot Act.  “A plaintiff alleging unfair business practices must state with reasonable particularity the facts supporting the statutory elements of the violation.”  The statute of limitations here is 4 years, and the “unsourced funds” were used to fund the loan more than seven years ago – thus statute of limitation is implicated.

Plaintiff must demonstrate standing to bring the claim (B&P §17204) which in the context of unfair business practices means a true economic loss. This economic loss must be personal and “not trivial.”

Plaintiff bears the burden of establishing a causal connection between the “unfair business practice” and the injury in fact. Plaintiff was in default, and apparently has no plan for curing the default.  As the Court in Daro noted: “[the] causal connection is broken when a complaining party would suffer the same harm whether or not a defendant complied with the law.”

The Motion to dismiss is denied under CCP §581(f)(2), but is granted for the reasons discussed above.

* TENTATIVE RULING: *

2012-00564946           Plaintiff vs. Bank of America, N.A.

1) Demurrer to Complaint

2) Motion to Strike Complaint

Second Cause of Action for Fraud

Every element of fraud must be pleaded with specificity.  The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made.  A fraud cause of action against an entity must allege the specific names of the persons who made the misrepresentation (or suppressed the fact) their authority to speak for the entity, to whom they spoke, what they said or wrote, and when it was said or written.

The complaint does not set out the alleged fraud, or fraud by concealment, with the required specificity.

Statute of limitations for all defendants except Rueff and Surety Bonding Company of America.

The limitations period does not begin to run until discovery of the facts of the fraud.  Plaintiff alleges that she reported the fraudulent scheme to the police in January 2010, but does not explicitly allege when she discovered the fraud and why she did not discover it earlier.  The discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discover despite a reasonable diligence.’

Statute of limitations as to Rueff and Surety Bonding Company of America.

For notary publics and their bonding companies, a different statute of limitations applies.  Code Civ. Proc. § 338(f) provides that an action against a notary public on his or her bond or in his or her official capacity is three years from the act or one year from discovery, but in no event later than six years from the act.

Plaintiff apparently discovered the facts of the forged deed no later than January 2010, since that is when she reported it to the police.  She filed her complaint more than a year later on 4/26/12.  As to the Rueff and Surety Bonding Company of America, therefore, it does not appear that Montgomery can state a timely claim even if given an opportunity to amend her complaint as to them.

Third Cause of Action for Conversion

It appears the proper action for a forged grant deed for real property is an action to quiet title, recover damages, and cancel the grant deed.

Fourth Cause of Action for Conspiracy

Conspiracy is not an independent cause of action but a “legal doctrine that imposes liability on person who, although not actually committing a tort themselves, shares with the immediate tortfeasors a common plan or design in its perpetration.”

A conspiracy may be inferred from circumstances.

While the complaint alleges in general the wrongful conduct apparently at the heart of the conspiracy, it does not allege facts showing or implying the formation and operation of the conspiracy.

In light of the statute of limitations applicable to notary publics under Code Civ. Proc. § 388(f), the demurrer of Sylvia Rueff (erroneously sued as Sylvia Reuff) and Surety Bonding Company of America is sustained without leave to amend.

The demurrer of defendants Jimmy Reyes, AD Rocha Inc. dba Max Value Realty, and AD Rocha Inc. dba Max Value is sustained with 15 days leave to amend.

Motion to Strike

The Reyes Defendants’ argue, emotional distress damages are not available for actions – even torts – involving real estate because the underlying cause of the emotional distress is an economic transaction.  Plaintiff was not taking part in an economic transaction.  She was uninvolved and unaware as, she alleges, defendants took intentional actions to deprive her of her ownership in her home.  Under the circumstances, the cases cited by the Reyes Defendants do not appear to apply.

The motion to strike of defendants Jimmy Reyes, AD Rocha Inc. dba Max Value Realty, and AD Rocha Inc. dba Max Value is denied as to the emotional distress allegations and granted as to the punitive damages allegation and prayer.