Case Number: TC028930 Hearing Date: February 28, 2018 Dept: A

# 8. Carolina Hernandez v. U.S. Bank National Association, et al.

Case No.: TC028930

Matter on calendar for: Hearing on two demurrers

Tentative ruling:

I. Background

Self-represented Plaintiff Carolina Hernandez’s Complaint asserts causes of action for: wrongful foreclosure, cancellation of instruments, quiet title, violation of Bus. and Prof. Code § 17200, breach of fiduciary duty, and injunctive relief.

Plaintiff alleges all claims against all defendants, without differentiating between them.

Defendants Hollyvale Rental Holdings, LLC and U.S. Bank, National Association separately demur to the First Amended Verified Complaint.

The Court previously sustained Hollyvale’s demurrer with leave to amend. Plaintiff’s First Amended Verified Complaint (“FAC”) is factually identical to her original complaint.

II. Standard

Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (CCP § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) In ruling on a demurrer, the Court shall accept all material allegations in the Complaint as true. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) A plaintiff must allege the “essential facts… with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) The Court makes no factual findings on demurrer. (Id.)

III. Analysis

The Court grants Defendants’ separate requests for judicial notice pursuant to Evid. Code § 452.

Judicially noticeable facts show:

· Plaintiff acquired the property with a loan secured by a deed of trust;

· Plaintiff defaulted in 2009;

· The DOT was assigned to U.S. Bank in 2011;

· U.S. Bank noticed the property for sale in 2016;

· U.S. Bank purchased the property at a trustee’s sale on May 16, 2016;

· U.S. Bank sold the property to Defendant, and the sale was recorded on July 25, 2016;

· Plaintiff filed two previous actions for wrongful foreclosure in 2017, but dismissed each one.

Hollyvale’s demurrer is meritorious because:

· There are no specific allegations of wrongdoing against Hollyvale. The Court previously sustained Hollyvale’s demurrer on such basis, but Plaintiff failed to substantively amend.

· Hollyvale appears to be a bonafide purchaser for value who acquired its interest in real property without notice of another’s rights in the property, and took the property free of such unknown rights. (Hollyvale’s Request for Judicial Notice, Exh. 6, Melendrez v. D&I, Inv., Inc. (2005) 127 Cal.App.4th 1238, 1251.) Plaintiff does not allege differently.

· Plaintiff does not allege tender of the amounts due and owing under the mortgage loan. “[A] debtor cannot set aside the foreclosure based on irregularities in the sale without also alleging tender of the amount of the secured debt.” (Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 512.)

· Plaintiff has not alleged facts showing that the DOT was void or fraudulent.

· Each cause of action is independently deficient for the reasons stated in Hollyvale’s demurrer.

U.S. Bank’s demurrer is meritorious because:

· Plaintiff has failed to allege tender. (Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 512.)

· Plaintiff alleges that the DOT was “fraudulent and forged” in Paragraph 91 of the FAC. But any action based on fraud allegations must be brought within three years of accrual under CCP section 338. A four-year statute applies to contract-based actions seeking to cancel an allegedly invalid contract. (Moss v. Moss (1942) 20 Cal.2d 640, 644-645.) The DOT was executed in 2006, while the U.S. Bank assignment occurred in 2011. This action is time-barred on its face.

· Plaintiff is judicially estopped from asserting her claims. (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183.) Judicial estoppel applies when (1) the same party has taken two positions, (2) in judicial proceedings, (3) the party was successful in asserting the first position, (4) the two positions are totally inconsistent, and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Id.) When Plaintiff filed her Chapter 13 Bankruptcy in 2010, she did not dispute the validity of her deed of trust or its assignment. (U.S. Bank’s Request for Judicial Notice, Exh. 9, p. 5.) Plaintiff’s subsequent bankruptcy filing in 2013 took the same, successful position. (Id., Exh. 12, p.1.) Plaintiff now takes a totally inconsistent position in another judicial proceeding: that the DOT and its assignment to U.S. are invalid and void. There is no indication that the first position was taken as a result of fraud, ignorance, or mistake.

· Each cause of action is independently deficient for the reasons stated in U.S. Bank’s demurrer.

The Court previously gave Plaintiff an opportunity to amend, but Plaintiff failed to substantively amend her complaint. In Opposition, Plaintiff has failed to meet her burden of offering facts indicating a reasonable possibility of successful amendment. (Plaintiff will have an opportunity at the hearing to offer such facts, however.) Successful amendment appears futile. The Court sustains the demurrer without leave to amend.

IV. Ruling

The Court sustains each demurrer without leave to amend.

Each Defendant must separately file, serve, and lodge a proposed order incorporating such parts of this tentative ruling as become the order of the Court.