Case Number: BC693489 Hearing Date: August 06, 2018 Dept: 47

LVNV Funding LLC v. Michael Cornwell

(1) DEMURRER TO COMPLAINT;

(2) MOTION TO STRIKE RE: COMPLAINT

MOVING PARTY: (1) & (2) Defendant Michael Cornwell

RESPONDING PARTY(S): (1) & (2) No oppositions filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiff seeks to recover on an open book account based upon an extension of credit made by Plaintiff’s assignor to Defendant.

Defendant Michael Cornwell demurs to the Complaint and moves to strike portions thereof.

TENTATIVE RULING

Conditioned upon Defendant providing proof that the demurrer and motion to strike, and the notice of continuance of the hearing on the demurrer and motion to strike were served upon Plaintiff’s counsel at 2180 Harvard Street, Ste. 160, Sacramento, CA 95818, the demurrer to the entire Complaint is SUSTAINED with leave to amend.

Plaintiff is given 30 days leave to amend.

DISCUSSION:

Notice

The demurrer and motion to strike re: the Complaint were served at 5011 Dudley Blvd., Bldg. 250, Bay G, McClellan, CA 95652. However, the last address on file with the Court for Plaintiff’s counsel is 2180 Harvard Street, Ste. 160, Sacramento, CA 95815. No opposition was filed, so there are no assurances that Plaintiff’s counsel received timely notice of this demurrer. Because no change of address form was filed by Plaintiff’s counsel, Plaintiff’s counsel has represented to the Court and the Defendant that the Sacramento address is where papers are to be served until notice of change of address is filed with the Court.

Defendant was ordered to give notice of the continuance and file proof of service of such. However, Defendant has not done so. The following ruling applies only if Defendant provides proof that the demurrer and motion to strike, and the notice of continuance of the hearing on the demurrer and motion to strike were served upon Plaintiff’s counsel at 2180 Harvard Street, Ste. 160, Sacramento, CA 95818. Otherwise, the hearing will once again be continued.

Demurrer

Meet and Confer

The Declaration of Michael Cornwell reflects that Plaintiff’s counsel did not respond to meet and confer efforts. This satisfies CCP § 430.41(a)(3)(B).

Defendant’s Objection and Motion To Strike Declaration of Ali Delforoush

The Court does not have any record of a Declaration of Ali Delforoush having been filed with the Court. Obviously, the Court will not consider any declaration it has not received.

Request For Judicial Notice

Defendant requests that the Court take judicial notice of the following: (1) Excerpts from The Structure and Practices of the Debt Buying Industry Federal Trade Commission, January 2013, available on the FTC website; (2) McCulloch v. Johnson Rodenburg & Lauinger LLC (9th Cir. 2011) 637 F3d 939, 945; (3) Proof of service of summons filed April 6, 2018 by Plaintiff; (4) Case Management Statement filed by Plaintiff on May 8, 2018. Request No. 1 is GRANTED. The Court may take judicial notice of agency publications. Board of Education v. Watson (1966) 63 Cal.2d 829, 836. Requests Nos. 2 – 4 are GRANTED per Evid. Code § 452(d)(court records).

Analysis

1. Entire Complaint

A. Re: Pleading Requirements of Civil Code § 1788.58.

Plaintiff alleges that it is a debt buyer. Complaint ¶ 1.

Defendant argues that the Complaint fails to satisfy the pleading requirements set forth in Civil Code § 1788.58(a)(4) & (b):

In an action brought by a debt buyer on a consumer debt:

(a) The complaint shall allege all of the following:

(1) That the plaintiff is a debt buyer.

(2) The nature of the underlying debt and the consumer transaction or transactions from which it is derived, in a short and plain statement.

(3) That the debt buyer is the sole owner of the debt at issue, or has authority to assert the rights of all owners of the debt.

(4) The debt balance at charge off and an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt. This paragraph shall not be deemed to require a specific itemization, but the explanation shall identify separately the charge-off balance, the total of any post-charge-off interest, and the total of any post-charge-off fees.

(5) The date of default or the date of the last payment.

(6) The name and an address of the charge-off creditor at the time of charge off and the charge-off creditor’s account number associated with the debt. The charge-off creditor’s name and address shall be in sufficient form so as to reasonably identify the charge-off creditor.

(7) The name and last known address of the debtor as they appeared in the charge-off creditor’s records prior to the sale of the debt. If the debt was sold prior to January 1, 2014, the debtor’s name and last known address as they appeared in the debt owner’s records on December 31, 2013, shall be sufficient.

(8) The names and addresses of all persons or entities that purchased the debt after charge off, including the plaintiff debt buyer. The names and addresses shall be in sufficient form so as to reasonably identify each such purchaser.

(9) That the debt buyer has complied with Section 1788.52.

(b) A copy of the contract or other document described in subdivision (b) of Section 1788.52 shall be attached to the complaint.

(c) The requirements of this title shall not be deemed to require the disclosure in public records of personal, financial, or medical information, the confidentiality of which is protected by any state or federal law.

Civil Code § 1788.58.

The Complaint does attach a copy of the contract as Exh. A and includes information relating to Defendant as the borrower. However, the Complaint does not plead the debt balance at charge off, nor an explanation of the amount, nature, and reason for all post-charge-off interest and fees, if any, imposed by the charge-off creditor or any subsequent purchasers of the debt, as required by Civil Code § 1799.59(a)(4).

This ground for demurrer is successful and the demurrer to the entire Complaint is therefore SUSTAINED with 30 days leave to amend.

B. Re: Allegations of Verified Complaint Are Contradicted By Attachments.

The Complaint seeks to recover $25,377.05. Nothing in the exhibits attached to the Complaint demonstrate that this amount is false (the amount sought presumably includes interest on the outstanding principal balance). Plaintiff need not submit evidence to prove its claims in the Complaint in the pleading stage.

This ground for demurrer is not persuasive.

C. Re: Arbitration Provision

The arbitration provision set forth at ¶ 18 (Complaint, Exh. A) does not require arbitration unless the other parties demands it. “Either party to this Agreement, . . . may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration. . .” Here, by filing the lawsuit, Plaintiff has elected not to require arbitration. If Defendant wishes to demand arbitration, he must bring a motion to compel arbitration.

This ground for demurrer is not persuasive.

Plaintiff to give notice, unless waived.

IT IS SO ORDERED.

Dated: August 6, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court