Case Number: BC681494 Hearing Date: March 13, 2018 Dept: 53

sean e. randle, et al. VS. breckenridge property fund 2016, llc, et al., BC681494, march 13, 2018

[tentative] order re: demurrer to plaintiffs’ complaint

Defendants WELLS FARGO BANK, N.A.; OCWEN FINANCIAL CORP.; OCWEN LOAN SERVICING, LLC; WESTERN PROGRESSIVE LLC; and CHARTER CAPITAL CORPORATION’s Demurrer to Plaintiffs’ Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

background

Plaintiffs Sean E. Randle (“Randle”) and the Estate of Jessye L. Randle (jointly, “Plaintiffs”) filed a Complaint in pro per on October 30, 2017 against a number of defendants challenging the foreclosure sale of that certain real property located at 1524 S. Spaulding Avenue, Los Angeles, CA 90019 (the “Property”) (the “Complaint”).

Defendants Wells Fargo Bank, N.A., as Trustee for Option One Mortgage Loan Trust 2007-4, Asset-Backed Certificates, Series 2007-4; Ocwen Financial Corp.; Ocwen Loan Servicing, LLC; Western Progressive LLC; and Charter Capital Corporation (collectively, “Defendants”) now demur to the entire Complaint on the grounds that it is barred by the doctrine of res judicata and collateral estoppel. Defendants further demur to the first, second, third, and fourth causes of action for failure to allege facts sufficient to constitute a cause of action and for uncertainty. No opposition to the demurrer was filed.

REQUEST FOR JUDICIAL NOTICE

Defendants’ Request for Judicial Notice is granted.

Discussion

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) A pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., §430.10(f).)

A. Res Judicata

The doctrine of res judicata bars a second suit between the same parties on the same cause of action that was adjudicated on the merits in an earlier suit, even if the later suit is prosecuted on a different legal theory. (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245; Lucas v. County of Los Angeles (1996) 47 Cal.App.4th 277, 285.) Res judicata “rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.” (Citizens for Open Access etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065.) The doctrine applies “if (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding.” (Federation of Hillside & Canyon Associations v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) “Upon satisfaction of these conditions, claim preclusion bars ‘not only … issues that were actually litigated but also issues that could have been litigated.” (Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226 (quoting Federation of Hillside & Canyon Assn’s, supra, 126 Cal.App.4th at 1202.).)

Plaintiffs have previously filed seven different lawsuits to challenge the foreclosure and subsequent sale of the Property. (RFJN, Exs. 9, 11, 13, 15, 17, 19, and 21.) Defendants contend that the dismissals with prejudice of three of those previously filed lawsuits bar Plaintiffs’ claims in the instant lawsuit.

The first of the three lawsuits, filed in Los Angeles Superior Court with case number BC480039, was dismissed with prejudice on January 30, 2013, following Randle’s failure to amend the complaint after a demurrer that the complaint failed to state facts sufficient to establish a cause of action was sustained with leave to amend. (RFJN, Ex. 14.) “A judgment given after the sustaining of a general demurrer . . . where the demurrer sets up the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action” may be deemed a judgment on the merits. (Goddard v. Security Title Insurance & Guarantee Co. (1939) 14 Cal.2d 47, 52.)

The second lawsuit, also filed in Los Angeles Superior Court, with case number BC529678, was dismissed with prejudice on February 28, 2014, following a demurrer that was sustained without leave to amend. (RFJN, Ex. 20.)

The third lawsuit, also filed in Los Angeles Superior Court, with case number BC673556, was dismissed with prejudice on November 8, 2017, following a demurrer that was sustained without leave to amend. (RFJN, Ex. 22.)

Each of the three lawsuits (BC480039, BC529678, and BC673556) involved the same Property, the same loan, and the same foreclosure proceedings as those alleged in the instant action. (RFJN, Exs. 13, 19, 21.) Furthermore, the dismissal of BC673556 was predicated on the court’s finding that the doctrine of res judicata barred Plaintiffs’ claims. (RFJN, Ex. 22.)

The Court finds that the decisions in the prior three lawsuits were final and on the merits; that the present lawsuit is on the same causes of action or affects the same primary right as the prior three lawsuits; and that the parties in this lawsuit are in privity or the same as the parties in the prior three lawsuits. Accordingly, the instant action is barred by res judicata.

B. Failure to State Causes of Action

Moreover, the Court finds that the Complaint fails to state a cause of action for the reasons noted in Defendants’ demurrer.

For one, no tender of the outstanding balance of the subject loan was alleged, and an action to set aside a trustee’s sale for irregularities in the sale notice or procedure must be accompanied by an offer to tender the full amount of the debt for which the property was security. (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 577.)

Additionally, there are no facts pled to support a cause of action for the imposition of a constructive trust. Plaintiffs merely refer to the filing of an ex parte application that contains the facts that purport to support this cause of action.

The second cause of action for equitable rescission is time-barred, and Plaintiffs failed to allege any facts to support an estoppel or tolling argument. Plaintiffs allege that they gave notice of rescission via a letter dated April 11, 2008. (Complaint, ¶ 16a.) An action to enforce such rescission must be brought one year after the end of the 20-day period in which to comply with the notice of rescission. (See Pearce v. Bank of America Home Loans (N.D. Cal., June 8, 2010, No. C 09-3988 JF) 2010 WL 2348637, at *5). The instant claim for rescission was brought approximately nine years after the notice of rescission was given. Accordingly, the claim is time-barred.

Plaintiffs’ quiet title cause of action fails because Plaintiffs’ do not have title to the Property, and Plaintiffs cannot challenge a third party’s legal title based on a merely equitable interest in the Property. (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866.)

Plaintiffs’ alternate declaratory relief cause of action fails because an actual and present controversy is not alleged. Instead, Plaintiffs are attempting to redress past wrongs. (Complaint, ¶¶ 51-52.)

Lastly, the wrongful foreclosure cause of action fails because there are no facts pled as to a void assignment of the note or deed of trust. (See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 936 [holding that a borrower can have standing to claim a non-judicial foreclosure was wrongful if the borrower established that the assignment by which the foreclosing party purportedly took a beneficial interest in the deed of trust was not merely voidable but void].)

In addition, although Plaintiffs allege that Defendants lacked authority to foreclose, a defaulted borrower may not bring an action to test whether the person initiating the foreclosure has the authority to do so. (Complaint, ¶ 57; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1156-1157.)

CONCLUSION

For the foregoing reasons, and in light of Plaintiffs’ non-opposition to Defendants’ demurrer, Defendants’ demurrer to the Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants are ordered to provide notice of this ruling.

DATED: March 13, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court