17-CIV-00778 JOY RAMOS VS. OCWEN LOAN SERVICING, LLC, ET AL.

JOY RAMOS OCWEN LOAN SERVICING, LLC
JOHN E. STRINGER ALISON V. LIPPA

HEARING ON DEMURRER TENTATIVE RULING:

As to all asserted causes of action, Defendant Fidelity National Title Insurance Co.’s (Fidelity) Demurrer to Plaintiff Joy Ramos’ 10-6-17 First Amended Complaint (FAC) is SUSTAINED WITHOUT LEAVE TO AMEND. Code Civ. Proc. Sect. 430.10(e), (f). As discussed below, if Plaintiff seeks leave to amend as to Fidelity, Plaintiff is expected to explain, at the 8-2-17 hearing, why granting leave to amend as to Fidelity would not be futile.

First, as to all asserted claims, the FAC is uncertain by failing to specifically identify what conduct defendant Fidelity, as distinct from the other named defendants, purportedly engaged in. Code Civ. Proc. Sect. 430.10(f); Moore v. Regents of Univ. of Cal. (1990) 51 Cal.3d 120, 125. As set forth in Code Civ. Proc. Sect. 425.10(a), a Complaint must include a “statement of the facts constituting the cause of action, in ordinary and concise language,” as to each named defendant. That is, the Complaint must specify the conduct of Fidelity (not just “defendants,” collectively) that satisfies the elements of each asserted cause of action. See Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829. Here, the FAC lumps defendants together when making conclusory allegations about “predatory lending,” even though Fidelity is not alleged to have been a lender. From the allegations, it is unclear how Fidelity played any part in the alleged “predatory” lending, which appears to be the only basis for the asserted claims.

The FAC also fails to state a cause of action for “intentional infliction of emotional distress.” Code Civ. Proc. Sect. 430.10(e). First, as referenced above, this claim appears based on conclusory allegations of “predatory lending,” unsupported by any underlying fact allegations pertaining to Fidelity. Further, the predatory lending allegation appears directed at the lender, not Fidelity, which appears to have served as the alleged title/escrow company. Moreover, this cause of action requires factual allegations of “outrageous” conduct that “exceed all bounds of that usually tolerated in a civilized community.” Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376; Christensen v. Sup. Ct. (1991) 54 Cal.3d 868, 903. The FAC does not allege any facts/conduct by Fidelity that can reasonably be characterized as “outrageous.” There are no allegations tying Fidelity to the loan itself or the foreclosure proceedings other than in a capacity as the title/escrow company. Wilson v. Hynek (2012) 207 Ca1.App.4th 999, 1009.

The FAC also fails to state a cause of action for fraud. Code Civ. Proc. Sect. 430.10(e). First, fraud is not plead with the requisite specificity. The FAC alleges “defendants” told Plaintiff she could re-finance her loan, knowing that Plaintiff was a victim of predatory lending and could not refinance, and concealed the “fact” that Plaintiff’s loan was predatory, and that “the housing market was on the brink of collapse.” A fraud claim must state, with particularity, all facts constituting the alleged fraud, including specifying the factual misrepresentations purportedly made by Fidelity to Plaintiff on which she relied, the persons within the corporation who made or concealed such facts, when they were made, the action taken by Plaintiff in justifiable reliance thereon, and the resulting damage. Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157-158; Civ. Code Sect. 1710.

The FAC fails to state a cause of action for negligence. Civ. Proc. Sect. 430.10(e). Although Plaintiff’s form Complaint checks a box for “general negligence,” there is no attached cause of action alleging negligence, nor any supporting factual allegations.

Although the Court generally takes a liberal stance with respect to amending pleadings, the allegations here appear directed at the lender, not Fidelity, which appears to have served only in a capacity as the escrow/title company. No alleged facts appear directed towards Fidelity. The burden is on Plaintiff to show/explain in what manner he/she can amend the complaint, and how that amendment will change the legal effect of the pleading. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. Plaintiff has not opposed the Demurrer. If Plaintiff believes an amendment is possible to properly state a cause of action against Fidelity, Plaintiff is expected to explain, at the hearing, why leave to amend should be permitted as to defendant Fidelity.