Ndile George Njenge versus Bank of America

2017-00223865-CU-OR

Ndile George Njenge vs. Bank of America

Nature of Proceeding: Hearing on Demurrer to 1st Amended Complaint

Filed By: Gifford, Kaelee M.

Defendants Fay Servicing, LLC (“Fay”) and PROF-2013-S3 Legal Title Trust, by U.S. Bank National Association, as Legal Title Trustee, sued herein as US Bank NA (“US Bank Trust”) (collectively, “Defendants”) demurrer to plaintiff Ndile George Njenge’s (“Plaintiff”) First Amended Complaint (“FAC”) is ruled upon as follows.

This matter was continued from August 21, 2018, to today’s date to permit Defendants to file a reply to Plaintiff’s late-filed opposition, which was filed only two days prior to the hearing. Defendants have not filed any reply.

Defendants’ request for judicial notice is granted. (See Poseidon Devel., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also Stratford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land documents, not contracts, are the subject of judicial notice on demurrer].) The Court, however, does not accept the truth of any facts within the judicially noticed documents except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel., supra, 152 Cal.App.4th at 1117-18.) see also Fontenot v. Wells Fargo Bank, N.A.

(2011) 198 Cal.App.4th 256, 265 (“[A] court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in the recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity.”)

In this foreclosure action Plaintiff alleges causes of action against Defendants for wrongful foreclosure, breach of oral contract, breach of written contract, quiet title, slander of title, cancellation of instruments, promissory estoppel, negligence, negligent misrepresentation, fraud, violation of the Rosenthal Fair Debt Collection Practices Act, violation of Business & Professions Code § 17200, and declaratory relief. Plaintiff filed his original complaint on December 14, 2017, alleging the foregoing 13 causes of action. On June 15, 2018, Defendants’ demurrer to the initial complaint was sustained with leave to amend as to all causes of action alleged therein. On June 25, 2018, Plaintiff filed the FAC, alleging the same 13 causes of action.

Plaintiff alleges that he entered into a trial payment plan with Bank of America (“BOFA”) in 2009. Plaintiff alleges that BOFA failed to fulfill its obligations under that plan but sold the loan to Fay. (FAC ¶¶ 19-22.) Plaintiff alleges he applied for a loan modification with Fay, but Fay chose to sell the loan to BSI Financial Services. (FAC ¶ 23-24.) Plaintiff alleges that he applied for a loan modification with BSI, but BSI refused to modify the loan, chose to foreclose, and sold the home to Werking, Inc. (FAC ¶ 25.)

Plaintiff alleges in May 2011, an assignment of deed of trust was recorded transferring the property from the original trustee, Reconstrust Company, NA to Bank of America Home Loan Servicing. (FAC ¶ 26.) Plaintiff alleges in November of 2015, the DOT was assigned to U.S. Bank Trust and was executed by Lucia Gasca and Jorge Gasca, wife and husband as Joint Tenants borrowers on a property with the same address as Plaintiff’s. (FAC ¶ 27.) Plaintiff appears to allege this assignment of the DOT was void as to his property because it does not list himself and his wife as the borrowers on the property.

Plaintiff then appears to allege that the company who held the trustee sale, Extra Default Solution, LLC, was not the proper trustee. (FAC ¶ 28.) Plaintiff alleges BSI caused a notice of default to be recorded by Extra Default Solution, LLC. (FAC ¶ 29.)

Defendants now demur to the FAC on the grounds that Plaintiff has failed to make any substantive changes. Defendants demur to each of the causes of action alleged against them.

First Cause of Action (Wrongful Foreclosure)

Defendants’ demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. The subject foreclosure activity still involves foreclosure notices that were recorded after Defendants no longer had any interest under the subject Deed of Trust. (RJN Exhs. 3-6.)

Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Plaintiff has not met that burden.

Fifth Cause of Action (Slander of Title)

Defendants’ demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff was required to allege facts showing “tortious injury to property resulting from unprivileged, false, malicious publication of disparaging statements regarding the title to property owned by plaintiff, to plaintiff’s damage.” (Southcott v. Pioneer Title Co. (1962) 203 Cal.App.2d 673, 676.) Plaintiff has made no discernible changes to this cause of action. Plaintiff’s FAC still fails to allege any facts that these Defendants recorded anything on title that could be considered slanderous. At most Plaintiff seems to allege that some unspecified defendants recorded foreclosure notices. As explained above, these documents were recorded after Defendants no longer had any interest under the subject Deed of Trust. (RJN Exhs. 3-6.) In any event, recording of foreclosure notices and trustee’s deeds are privileged communications pursuant to CCP § 47. (Civil Code § 2924(d).)

Since plaintiff has failed to provide any facts that would cure the defects, no further leave to amend is granted. A court may sustain a demurrer with or without leave to amend. (Code Civ. Proc. 472a(c).) Leave to amend a defective complaint should be denied where no liability exists under substantive law. (Rotolo v San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 321.) A demurrer must be sustained without leave to amend absent a showing by plaintiff that a reasonable possibility exists that the defect can be cured by amendment. (Blank v Kirwan (1985) 39 Cal.3d 311, 318.) The burden of proving such reasonable possibility rests squarely on the plaintiff. (Torres v City of Yorba Linda (1993) 13 Cal.App.4th 1035, 1041.) Plaintiff has not met that burden.

Sixth Cause of Action (Cancellation of Instruments)

Defendants’ demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff has made no discernible changes to this cause of action. Plaintiff still seeks to cancel recorded foreclosure notices but as discussed above, Defendants were not involved in that process as they no longer had any interest in the Deed of Trust at the time the foreclosure notices were recorded.

Eighth Cause of Action (Negligence)

Defendants’ demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. Plaintiff has made no substantive changes to this cause of action. Plaintiff’s FAC still does not allege these Defendants agreed to consider his loan modification application. The cause of action remains focused on the recording and execution of foreclosure documents, but again, as discussed above, these actions took place after these Defendants no longer had any interest in the Deed of Trust. Further the allegations that the “Defendants breached its [sic] duty of care and skill to Plaintiff by failing to properly train and supervise its agents and employees with regard to California law regarding the execution and recording of foreclosure documents” is conclusory. Plaintiff has failed to allege any facts showing that these specific Defendants owed him any duty much less breached that duty.

Tenth Cause of Action (Fraud)

Defendants’ demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. The elements of fraud “are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)

When pleading a claim for fraud, each and every element must be alleged, “and the facts constituting the fraud must be alleged with sufficient specificity to allow defendant to understand fully the nature of the charge made.” (Stansfield v Starkey (1990) 220 Cal.App.3d 59, 73; Cadlo v Owens-Illinois, lnc. (2004) 125 Cal.App.4th 513,519 (stating that “[e]ach element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged”). To satisfy the particularity requirement, the plaintiff must plead facts which “show how, when, where, to whom, and by what means the representations were tendered.” (Stansfield, supra, 220 Cal.App.3d at p. 74; see also Lazar v Superior Court (1996) 14 Cal.4th 631, 645.) Also, when asserting a fraud claim against an entity, plaintiff must “‘allege the names of the persons who made the allegedly fraudulent misrepresentation, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.'” (Lazar, supra, 12 Cal.4th at p. 645 (quoting Tarmann v State Farm Mut Auto Ins Co (1991) 2 Cal.App.4th 153, 157).)

Plaintiffs’ allegations are wholly insufficient. There are no allegations whatsoever regarding any purported misrepresentations made by the demurring Defendants, much less any allegations as to when, how, where, by whom, and by what means any

statements were made by the demurrer Defendants. The only specific misrepresentation alleged is allegedly made by defendant Bank of America. (FAC ¶ 111.)

Twelfth Cause of Action (Violation of Business & Professions Code § 17200)

Defendants’ demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action. This cause of action is derivative of the other causes of action in the complaint and thus fails for the same reasons. The Court need not reach Defendants’ remaining arguments.

Thirteenth Cause of Action (Declaratory Relief)

Conclusion

Defendants’ demurrer is sustained in its entirety without leave to amend.

Defendants shall submit a proposed order for the Court’s signature pursuant to CRC Rule 3.1312.

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Ndile George Njenge versus Bank of America

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