Case Name: Behnaz Mohamad Beigi, et al. v. Bank of America, N.A., et al.
Case No.: 18CV333565

I. Background

This is a wrongful foreclosure action brought by plaintiffs Behnaz Mohamad Beigi and Nader Tabesh (collectively, “Plaintiffs”) against defendants Bank of America, N.A., MTC Financial, Inc. (dba Trustee Corps) (“Trustee”), and Bayview Loan Servicing, LLC.

In September 2005, Plaintiffs obtained a loan of $632,000 from America’s Wholesale Lender that was secured by a deed of trust for real property located at 4992 Mise Avenue in San Jose, California (the “Property”). (Compl., ¶ 24 & Ex. A.) America’s Wholesale Lender eventually transferred the loan to Countrywide Home Loans (“Countrywide”) who thereafter modified the loan in 2008. (Compl., ¶ 25.) The modification reduced Plaintiffs’ monthly mortgage payment to $2,500. (Compl., ¶ 26.)

After Bank of America, N.A. (“Lender”) acquired Countrywide’s assets in 2008, including Plaintiffs’ loan, it refused to honor the loan modification. (Compl., ¶ 26.) Lender claimed it had no record of the loan modification and incrementally raised Plaintiffs’ payments from $2,500 to $12,000. (Compl., ¶¶ 26–27.) Plaintiffs sent Lender a copy of the modification and continued to make payments consistent therewith, but it mishandled their payments, inconsistently cashed some checks while returning others, and eventually closed their account. (Compl., ¶¶ 27–28.)

Plaintiffs subsequently submitted two modification applications to Lender. (Compl., ¶ 29.) Lender provided Plaintiffs with a trial payment plan requiring three monthly payments of $5,000. (Compl., ¶ 29.) Although Lender told Plaintiffs they would receive a permanent modification at the end of the trial period, it never sent them documents reflecting as much. (Compl., ¶ 29.) Plaintiffs also allege Lender never assigned them a competent single point of contact. (Compl., ¶ 30.)

In 2016, Bayview Loan Servicing, LLC (“Servicer”) began servicing Plaintiffs’ loan. (Compl., ¶ 31.) Servicer purportedly recorded a notice of default without first contacting Plaintiffs about their default. (Compl., ¶ 32 & Ex. B.) In 2018, Plaintiffs contacted Servicer and applied for another loan modification. (Compl., ¶ 34.) Representative John Koscinski told Plaintiffs that Servicer would not post a sale date while it was reviewing their modification application and scheduled a phone appointment with them for July 24, 2018. (Compl., ¶ 34.) Servicer told them at a meeting on July 26 that it was denying their application and that the amount of their default was $166,000. (Compl., ¶ 35.) Plaintiffs allege Servicer recorded a notice of sale the following day without first providing them with a written denial of their application. (Compl., ¶ 34 & Ex. C.) Plaintiffs also allege Servicer never assigned them a competent single point of contact. (Compl., ¶ 35.)

Plaintiffs assert causes of action against Lender, Servicer, and Trustee for: (1) violation of Civil Code section 2923.7; (2) violation of Civil Code section 2924.11; (3) violation of Civil Code section 2923.55; (4) breach of the implied covenant of good faith and fair dealing; (5) promissory estoppel; (6) intentional misrepresentation; (7) negligent misrepresentation; (8) negligence; (9) financial elder abuse; and (10) unfair competition.

Currently before the Court is Lender’s demurrer to the complaint and each cause of action asserted therein. It filed a request for judicial notice in support.
II. Request for Judicial Notice

When a court takes judicial notice, it recognizes and accepts “the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [internal quotation marks and citation omitted].)

Lender requests judicial notice of a number of instruments recorded in connection with the Property, particularly: (1) assignment of deed of trust and substitution of trustee from April 2010; (2) notice of default from April 2010; (3) notice of trustee’s sale from October 2010; (4) notice of trustee’s sale from December 2011; (5) quitclaim deed from October 2012; (6) notice of trustee’s sale from June 2013; (7) assignment of deed of trust from October 2013; (8) notice of trustee’s sale from December 2013; (9) loan modification agreement from October 2014; (10) notice of default from November 2016; (11) notice of trustee’s sale from February 2017; and (12) notice of trustee’s sale from July 2018. (RJN, Exs. 1–12.)

Lender also seeks judicial notice of a bankruptcy petition and an order dismissing that petition filed in United States Bankruptcy Court for the Northern District of California. (RJN, Exs. 13–14.)
A court may take judicial notice of the existence and facial contents of recorded instruments. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1, citing Evid. Code, § 452, subds. (c) & (h).) Additionally, a court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) Even so, with the exception of the 2014 loan modification agreement, none of the recorded instruments and court records identified above are relevant. Lender seeks judicial notice of these matters for the purpose of providing a history of proceedings that is not material to the demurrer because it does not thereafter rely upon that history in support of its arguments. Lender does discuss the 2014 modification agreement in presenting its arguments. Thus, only that recorded instrument is relevant.

Based on the foregoing, Lender’s request for judicial notice is GRANTED as to the 2014 modification agreement and DENIED as to the court records and the balance of the recorded instruments that are the subject of its request.

III. Demurrer

Lender demurs to the complaint and each claim asserted against it on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e)–(f).)

A. Uncertainty

A demurrer on the ground of uncertainty tests whether a pleading is ambiguous, uncertain, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer on the ground of uncertainty “is not intended to reach the failure to incorporate sufficient facts in the pleading, but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145–46.) “[D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

Lender does not advance any argument in support of its demurrer on the ground of uncertainty. Additionally, it is not otherwise obvious to the Court that the complaint is uncertain, ambiguous, or unintelligible. Consequently, the demurrer on the ground of uncertainty is OVERRULED.

B. Failure to State Sufficient Facts

1. First Cause of Action

The first cause of action is for failure to provide a single point of contact in violation of Civil Code section 2923.7. Lender argues Plaintiffs do not state a viable claim because that statute was not yet in effect at the time and it complied with its statutory obligation.

Civil Code section 2923.7, part of the California Homeowners Bill of Rights (“HBOR”), requires a loan servicer to assign a borrower in default, upon request, a single point of contact for inquiries and communications about his or her loan. (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 904.) “The single point of contact provision…is intended to prevent borrowers from being given the run around, being told one thing by one bank employee while something entirely different is being pursued by another.” (Id. at pp. 904–05.)

Lender is correct that the HBOR, inclusive of the particular protection at issue, went into effect in January 2013 and does not apply retroactively. (See Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818.) Even so, its argument that Plaintiffs do not “clearly allege that [its] alleged violation of Section 2923.7 fell after the effective date” (Mem. of Pts. & Auth. at p. 13:23–24) is not persuasive. Plaintiffs allege Lender did not assign a single point of contact at any point in time between 2008 and 2016. (Compl., ¶¶ 28–31.) Accordingly, Plaintiffs adequately allege Lender did not assign them a single point of contact after the HBOR went into effect.

Lender also asserts it is permissible under the statute to assign a team of individuals as the single point of contact. Although this statement of law is correct (see Civ. Code, § 2923.7, subd. (e)), it is immaterial because Plaintiffs do not allege Lender violated the statute by assigning a team and not an individual as their single point of contact.

Lender then argues that because Plaintiffs allege they spoke with its employees about their loan, they cannot state a claim for violation of Civil Code section 2923.7. It appears Lender’s position is that so long as Plaintiffs could speak with one of its employees about their loan, the single point of contact requirement was satisfied. It cites no authority to support its interpretation of the statute. Additionally, as Plaintiffs argue in opposition, such an interpretation does not comport with the language and purpose of the statute. The statute requires that the team assigned to serve as a borrower’s single point of contact consist of “personnel each of whom has the ability and authority to perform the responsibilities described in [the HBOR].” (Civ. Code, § 2923.7, subd. (e).) “[E]ach member of the team [must be] knowledgeable about the borrower’s situation and current status in the alternatives to foreclosure process.” (Civ. Code, § 2923.7, subd. (e).) Lender’s focus on the fact that Plaintiffs could speak with an employee is misguided because that is not all that is required; rather, the employee(s) must meet the statutory requirements for knowledgeability and authority.

Based on the foregoing, Lender does not demonstrate that no claim for violation of Civil Code section 2923.7 has been stated. The demurrer to the first cause of action is therefore OVERRULED.

2. Second Cause of Action

With respect to the second cause of action for violation of Civil Code section 2924.11, Lender argues Plaintiffs only allege that Servicer engaged in conduct that violates the statute.
Civil Code section 2924.11, which is also part of the HBOR, prohibits dual-tracking. (Jolley, supra, 213 Cal.App.4th at pp. 904–05 & fn. 1.) Dual-tracking occurs “when a servicer continues foreclosure proceedings while reviewing a homeowner’s application for a loan modification….” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86, fn. 14 [internal quotation marks and citation omitted].)

Here, as Lender points out, Plaintiffs solely allege Servicer violated the dual-tracking prohibition in Civil Code section 2924.11. (Compl., ¶¶ 60–62.) Plaintiffs do not allege Lender pursued foreclosure while it was reviewing their application for a loan modification. Thus, Plaintiffs fail to state a dual-tracking claim against Lender in particular. Indeed, Plaintiffs appear to concede this point because they do not address it in their opposition.

For the reasons set forth above, the demurrer to the second cause of action is sustainable. When sustaining a demurrer, a court may deny leave to amend if the plaintiff does not demonstrate there is any reasonable possibility of curing the defect in the pleading through amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs do not articulate how they could cure the defect in their claim if given leave to amend. Additionally, the other facts alleged as well as Plaintiffs’ silence suggest they never intended to assert the second cause of action against Lender. Consequently, Lender’s demurrer to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

3. Third Cause of Action

Lender argues the third cause of action for violation of Civil Code section 2923.55, like the second cause of action, concerns the conduct of Servicer only.

Civil Code section 2923.55, another part of the HBOR, requires the foreclosing entity to attempt to contact a borrower and discuss foreclosure prevention alternatives before recording a notice of default. (Civ. Code, § 2923.55, subds. (a)–(b).) If the party pursuing foreclosure thereafter records a notice of default, the notice must be accompanied by a declaration of compliance confirming it first attempted to contact the borrower as required by the statute. (Civ. Code, § 2923.55, subd. (c).)

As Lender correctly articulates, the third cause of action focuses exclusively on the conduct of Servicer. (See Compl., ¶¶ 69–70.) Plaintiffs do not allege Lender pursued foreclosure without talking to them about alternatives thereto. In opposition, Plaintiffs argue this reading of the pleading is incorrect, but they do not identify any factual allegation that supports their argument. Plaintiffs also state the compliance declaration attached to the notice of default recorded by Servicer does not reflect who purportedly contacted them. It is fundamentally unclear how this fact demonstrates a claim has been stated against Lender. More significantly, as Plaintiffs acknowledge, Servicer recorded that notice of default, not Lender.

Based on the foregoing, Plaintiffs do not allege facts sufficient to state a claim for violation of Civil Code section 2923.55 against Lender. Because Plaintiffs’ opposition is essentially nonresponsive and they do not argue they can or intend to allege new facts to state a claim against Lender in particular, leave to amend is not warranted. (See Goodman, supra, 18 Cal.3d at p. 349.)

Accordingly, Lender’s demurrer to the third cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

4. Fourth Cause of Action

In the fourth cause of action, Plaintiffs allege “Defendants” breached the implied covenant of good faith and fair dealing by: “(l) refusing to honor the loan modification Countrywide provided, thus pushing Plaintiffs into further default; (2) raising [ ] payments from $2,500 to $6,000 and more without explanation; (3) returning the payments Plaintiffs made in order to be current on the Note; (4) closing Plaintiffs’ account when [they] tried to make payments; (5) recording [a notice of default] prior to contacting Plaintiffs to provide foreclosure prevention alternatives; (6) recording a [notice of sale] prior to informing Plaintiffs of the result of their [application for a loan modification]; (7) failing to provide Plaintiffs with the two loan modifications they were promised; and (8) failing to provide timely, good faith reviews of their loan modification applications.” (Compl., ¶ 75.)

“Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885.) “The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises.” (Ibid.) “The scope of conduct prohibited by the implied covenant depends on the purposes and express terms of the contract.” (Ibid.)

Lender first appears to challenge whether the facts alleged constitute a breach of the implied covenant.

Because the covenant of good faith and fair dealing is an implied term of a contract, “its breach [necessarily is] a breach of the contract, although a breach of a consensual (i.e., an express or implied-in-fact) contract term will not necessarily constitute a breach of the covenant.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1393–94.) To state a claim for breach of the implied covenant, a plaintiff must allege the defendant’s conduct, “whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.” (Id. at p. 1395.)

Lender does not explain how each alleged breach is insufficient in light of this legal standard. For example, although it asserts conduct permitted by a contract necessarily does not constitute a breach of the implied covenant, it does not articulate how that point pertains to the facts alleged here. Thus, Lender does not demonstrate Plaintiffs fail to allege a breach of the implied covenant.

Next, Lender argues in a conclusory manner that Plaintiffs do not allege they suffered damages as a result. But Plaintiffs do allege they suffered damages as a result of the breaches alleged. (Compl., ¶ 78.) Plaintiffs allege they paid unnecessary fees, penalties, and legal expenses and that their credit has been negatively impacted. (Compl., ¶ 78.) Accordingly, Lender’s argument lacks merit.

Finally, Lender argues the fourth cause of action is time-barred. A court may sustain a demurrer on the ground of failure to state facts sufficient to constitute a cause of action if “‘the complaint shows on its face that the statute [of limitations] bars the action.’ [Citation.]” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315.) A demurrer is only sustainable on this basis if the challenged cause of action is clearly and affirmatively barred by the statute of limitations based on the allegations on the face of the pleading. (Id. at p. 1316.) To substantiate a demurrer on this basis, the demurring party must demonstrate (1) which statute of limitations applies and (2) when the claim accrued. (Ibid.)

Lender states Plaintiffs’ claim is subject to the four-year statute of limitations in Code of Civil Procedure section 337. Courts have, indeed, held that is the applicable statute of limitations when a plaintiff asserts a claim for breach of the implied covenant in connection with a written contract. (Ladd v. Warner Brothers Entertainment, Inc. (2010) 184 Cal.App.4th 1298, 1309, fn. 7.) Even so, Lender does not demonstrate Plaintiffs filed their complaint in 2018 more than four years after their claim accrued. With respect to accrual, Lender simply states Plaintiffs allege it “breached the 2008 Modification within a few months of September 9, 2008.” (Mem. of Pts. & Auth. at p. 18:9–10.) But Plaintiffs do not just allege a breach occurred in September 2008. (Compl., ¶¶ 27–30.) Ultimately, Lender does not provide a reasoned explanation supported by legal authority sufficient to demonstrate when the claim accrued in light of each breach alleged. Consequently, it does not substantiate its argument.

In conclusion, Lender does not demonstrate that no claim for breach of the implied covenant of good faith and fair dealing has been stated. The demurrer to the fourth cause of action is therefore OVERRULED.

5. Fifth Cause of Action

Plaintiffs’ fifth cause of action is for promissory estoppel. “In California, under the doctrine of promissory estoppel, [a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 779 [internal quotation marks and citations omitted].) In essence, it is “a doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced.” (Id. at pp. 779–80 [internal quotation marks and citations omitted].) “The elements of promissory estoppel are (1) a clear promise, (2) reliance, (3) substantial detriment, and (4) damages [ ].” (Id. at p. 780.)

Lender presents two arguments in support of its demurrer to Plaintiffs’ promissory estoppel claim.

First, Lender argues Plaintiffs fail to plead the essential elements of their claim with specificity. Although not especially clear, it appears Lender may be arguing claims for promissory estoppel must be pleaded with the same level of particularity as fraud claims. In support, Lender primarily relies on a dissenting opinion from Moncada as though it is binding precedent establishing a claim for promissory estoppel must be pleaded with particularity. A dissenting opinion is not binding precedent. (People v. Lopez (2012) 55 Cal.4th 569, 585.) Consequently, Lender’s reliance on the dissenting opinion in Moncada is misplaced.

Lender also cites Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38. In Smith, the First District stated “[t]he party claiming estoppel must specifically plead all facts relied on to establish its elements.” (Id. at p. 48.) It determined the plaintiffs’ conclusory allegation that they “relied” on the defendant’s promise was insufficient to state a claim for promissory estoppel. (Ibid.) Courts have not widely interpreted Smith as establishing a specificity requirement like that which applies to fraud claims. Perhaps this is because the authority upon which the First District relied simply stated “all of the facts relied upon to establish the elements constituting the doctrine” must be pleaded. (Del Paso Recreation & Park Dist. v. Bd. of Supervisors (1973) 33 Cal.App.3d 483, 501.) Additionally, although the First District used the term “specifically,” it essentially just concluded the plaintiffs pleaded conclusions and not facts and did not actually opine as to the precise level of specificity or particularity that is required. (Smith, supra, 225 Cal.App.3d at p. 48.) For these reasons, Lender does not substantiate the proposition that a plaintiff must plead the elements of promissory estoppel with the same degree of particularity as fraud.

In any event, even assuming some degree of specificity is required, Lender does not provide a reasoned explanation or analogous authority to show how Plaintiffs’ allegations are insufficient here. Plaintiffs identify the particular promise at issue in the fifth cause of action, namely the promise of a modification, and allege additional facts about that promise in the background portion of the pleading. (Compl., ¶¶ 79, 81.) Additionally, unlike in Smith, Plaintiffs do not simply allege they relied on the promise. (See Smith, supra, 225 Cal.App.3d at p. 48.) Rather, Plaintiffs explain how they changed their behavior in light of Lender’s promise. (Compl., ¶ 82.) Thus, it is not apparent to the Court, especially given the absence of a clear explanation from Lender, that the allegations are insufficient to state a claim for promissory estoppel.

Second, Lender argues the claim is time-barred. Lender does not substantiate this argument for the same reasons articulated above relative to the fourth cause of action. Again, although Lender appears to believe the claim accrued when it refused to honor Countrywide’s loan modification in 2008, that is not the act upon which this claim is based. Rather, Plaintiffs’ claim arises from the applications for loan modifications they sent directly to Lender sometime thereafter and the subsequent trial period plans. (Compl., ¶¶ 29, 79, 81.) Because Lender does not address the allegations actually pleaded, it does not substantiate its argument.

Based on the foregoing, the demurrer to the fifth cause of action is OVERRULED.

6. Sixth Cause of Action

The sixth cause of action is for intentional misrepresentation.

The essential elements of a fraud claim based on an intentional misrepresentation are: “(1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, citing Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) These elements must be pleaded with particularity. (Lazar, supra, 12 Cal.4th at pp. 644–45.) For example, a plaintiff must plead facts “which show how, when, where, to whom, and by what means the representations were tendered.” (Id. at p. 645 [internal quotation marks and citation omitted].) “[G]eneral and conclusory allegations do not suffice.” (Ibid.)

Lender argues Plaintiffs do not allege the essential elements of their claim for intentional misrepresentation with particularity. Its characterization of the pleading is accurate. In the sixth cause of action, Plaintiffs generically refer to Lender, Servicer, and Trustee collectively in a manner that does not make clear the particular facts that support their claim against each defendant. Plaintiffs do not specifically allege what misrepresentations Lender made, who specifically made those misrepresentations on its behalf, and the other circumstances surrounding the alleged misrepresentations. Plaintiffs’ allegations are, thus, insufficient to state a claim for fraud.

Plaintiffs do not present any argument to support a contrary conclusion in their opposition. Thus, they appear to concede that this fraud claim is not properly pleaded. The demurrer is therefore sustainable for the reasons articulated above.

Lender additionally argues Plaintiffs’ claim is time-barred. It is unnecessary to reach this argument in light of the fundamental deficiencies in Plaintiffs’ allegations. And, in any event, Lender does not substantiate this argument because it does not demonstrate when the claim accrued.

In conclusion, the demurrer to the sixth cause of action is sustainable because Plaintiffs fail to plead facts with particularity sufficient to state a fraud claim. Because Plaintiffs fail to address Lender’s argument and do not explain how they could amend the complaint to state a viable claim, the Court is inclined to deny them leave to amend. Nevertheless, out of an abundance of caution, the Court will give them an opportunity to do so. The demurrer to the sixth cause of action is therefore SUSTAINED with 10 days’ leave to amend.

7. Seventh Cause of Action

As Lender articulates, the seventh cause of action for negligent misrepresentation suffers from the same deficiencies as the sixth cause of action. (See generally Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173–74 [comparing torts of intentional and negligent misrepresentation].) Plaintiffs also fail to address the seventh cause of action in their opposition. Consequently, for the same reasons articulated above with respect to the sixth cause of action, the demurrer to the seventh cause of action is SUSTAINED with 10 days’ leave to amend.

8. Eighth Cause of Action

Lender’s argument with respect to the eighth cause of action for negligence is not a model of clarity.

Initially, Lender provides a general statement of law on negligence. As it articulates, “[t]he elements of a cause of action for negligence are duty, breach, causation, and damages” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529). Lender then quotes cases discussing the element of duty in particular. But Lender does not, thereafter, discuss those cases or advance any points with respect to the element of duty. Thus, to the extent Lender intended to argue it did not owe Plaintiffs a legal duty, it has not effectively made such an argument.
Lender then advances a number of unrelated points in a disjointed manner.

First, Lender states there are no “specific facts” alleged about its wrongdoing. (Mem. of Pts. & Auth. at p. 22:16–17.) “Negligence may be alleged in general terms; that is, it is sufficient to allege an act was negligently done without stating the particular omission which rendered it negligent.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) Consequently, to the extent Lender is arguing the negligence claim is not pleaded with specificity, its argument lacks merit.

Next, Lender raises the fact that Plaintiffs also allege Servicer was negligent after it acquired their loan in 2016. This restatement of the allegations concerning Servicer is not helpful because it does not demonstrate that no claim has been stated against Lender.

Lender also states that to the extent Plaintiffs’ claim is based on its failure to honor the loan modification in 2008, the claim is time-barred. Lender does not provide any supporting analysis of applicable authority and does not address the entirety of Plaintiffs’ claim. Thus, Lender does not substantiate this argument. (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [arguments must be supported by explanation and authority].)

Additionally, Lender states “the recorded documents reflect that Plaintiffs actually did accept the 2014 Modification.” (Mem. of Pts. & Auth. at p. 22:24–25.) It then states, without more, “[t]hey fail to explain how they suffered damages.” (Mem. of Pts. & Auth. at p. 22:25.) Although it appears Lender may be arguing Plaintiffs do not allege they suffered damages as a result of some particular occurrence, it is not possible to divine its logical or legal reasoning. Lender’s argument does not appear to be directed to the facts actually alleged in the eighth cause of action. (Compl., ¶ 107.) Consequently, these statements do not demonstrate there is a pleading defect that justifies sustaining the demurrer to the negligence claim.

Based on the foregoing, Lender does not substantiate its demurrer. The demurrer to the eighth cause of action is therefore OVERRULED.

9. Ninth Cause of Action

Lender argues Plaintiffs fail to state a claim for financial elder abuse because they do not allege facts, with particularity, sufficient to support each essential element of their claim.
Plaintiffs’ claim is based on the Elder Abuse and Dependent Adult Protection Act (the “Act”). (See Welf. & Inst. Code, § 15657.) The “Act makes certain enhanced remedies available to a plaintiff who proves abuse of an elder, i.e., a ‘person residing in this state, 65 years of age or older.’” (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 404, quoting Welf. & Inst. Code, § 15610.27.) “In particular, a plaintiff who proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of such abuse may recover attorney[’s] fees and costs.” (Carter, supra, 198 Cal.App.4th at p. 404, quoting Welf. & Inst. Code, § 15657.)

To state a claim for financial elder abuse, a plaintiff must allege: (1) he or she was an elder at the time of his or her injury; (2) the defendant took, secreted, appropriated or retained, or assisted another in taking, secreting, appropriating or retaining, real or personal property; and (3) the defendant wrongfully used the property or intended to defraud the elder plaintiff. (Welf. & Inst. Code, § 15610.30.) These facts must be pleaded with particularity. (Carter, supra, 198 Cal.App.4th at p. 407.)

Lender argues Plaintiffs do not allege with particularity the conduct purportedly constituting elder abuse. This argument is persuasive. In the ninth cause of action, Plaintiffs do not allege what Lender, in particular, purportedly did that constitutes elder abuse. Instead, they make generic allegations about the defendants collectively. (Compl., ¶ 117.) Plaintiffs do not allege, even generally, that Lender took real or personal property for a wrongful purpose or with intent to defraud them. Thus, Plaintiffs’ allegations are insufficient.

Additionally, as Lender articulates, Plaintiffs do not allege they were elders at the time the purported financial abuse occurred. The complaint solely alleges Nader Tabesh (“Tabesh”), and not his wife Behnaz Mohamad Beigi, qualifies as an elder. Additionally, as for Tabesh, the complaint simply states he “is now sixty-eight years old and was approximately 65 years old prior to the servicing rights transferring from [Lender] to [Servicer].” (Compl., ¶ 116.) But it is not apparent from this allegation that Tabesh qualified as an elder at the time he purportedly suffered financial abuse. Consequently, Plaintiffs fail to allege facts showing they qualified as elders at the time of their injuries.

In Plaintiffs’ opposition, they appear to concede Lender’s demurrer is meritorious because they do not address this claim or Lender’s arguments with respect thereto.

For these reasons set forth above, the demurrer to the ninth cause of action is sustainable. Plaintiffs do not explain how they could amend the pleading to state a viable claim. Although it appears unlikely Plaintiffs could do so given Tabesh’s age, the Court will give them leave to amend out of an abundance of caution. The demurrer to the ninth cause of action is therefore SUSTAINED with 10 days’ leave to amend.

10. Tenth Cause of Action

In the tenth cause of action, Plaintiffs allege the conduct underlying their other claims also constitutes a violation of California’s Unfair Competition Law (the “UCL”). (See Bus. & Prof. Code, § 17200.)

Lender first argues Plaintiffs do not specifically allege whether their claim is based on the unlawful, unfair, or fraudulent prong of the UCL. It does not cite any authority that actually supports its argument. The sole case it relies upon is a district court decision stating as follows: “Because the law is stated in the disjunctive, it contemplates three distinct categories of unfair competition, and a plaintiff must plead the specific rubric under which the proscribed conduct falls.” (Sohal v. Federal Home Loan Mortgage Corp. (N.D.Cal. Aug. 30, 2011 Case No. 11-CV-01941-JSW) 2011 WL 3842195.) But the district court appears to have relied on Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) (“Cel-Tech”) 20 Cal.4th 163 for the entirety of its rule statement when that opinion, in fact, only supports the proposition that there are three categories of conduct prohibited by the UCL. In Cel-Tech, the California Supreme Court did not hold a plaintiff must specifically identify the prong of the UCL upon which he or she is relying to state a viable claim. And, to the extent the district court was actually relying, at least in part, on the heightened federal pleading standard set forth in Bell Atlantic Corporation v. Twombly (2007) 550 U.S. 544 and Ashcroft v. Iqbal (2009) 556 U.S. 662, its decision has no precedential value as that standard does not ordinarily apply in state court. (See generally Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561–62.) Lender, thus, does not substantiate its argument.

Lender also argues Plaintiffs lack standing to assert a UCL claim. Standing is an essential prerequisite for asserting a UCL claim. (Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 723, citing Kwikset Corp. v. Super. Ct. (2011) 51 Cal.4th 310, 320–21.) To properly plead standing, a plaintiff must allege he or she suffered an injury in fact, particularly a loss or deprivation of money or property. (Hansen, supra, 25 Cal.App.5th at pp. 724–25.) For example, a plaintiff suffers an economic injury sufficient to confer standing when he or she pays more in the course of a transaction than he or she would have or when a present or future interest in property is diminished. (Kwikset, supra, 51 Cal.4th at pp. 323–24.)

Lender does not demonstrate Plaintiffs fail to allege they suffered an injury in fact. Its supporting analysis is too simplistic and does not appear to be based on an accurate reading of the complaint. Although not clearly articulated by Lender, it appears to argue that because Plaintiffs received a loan to finance the purchase of the Property they have not suffered any injury. Significantly, Lender fails to address all of the events that transpired after Plaintiffs obtained the loan, which events provide the bases for their claim. Lender does not address Plaintiffs’ allegations, for example, that its conduct caused them to pay unnecessary fees and penalties and to lose equity in their home. (Compl., ¶ 30.) Accordingly, Lender’s standing argument is not persuasive.

Based on the foregoing, the demurrer to the tenth cause of action is OVERRULED.

11. Entire Complaint

Lender’s demurrer is also directed to the entire complaint as a whole. A demurrer to a complaint as a whole is sustainable “only if no count of the complaint states facts sufficient to entitle [the plaintiff] to relief on any theory.” (Warren v. Atchison, T. & S.F. Ry. Co. (1971) 19 Cal.App.3d 24, 29.) As reflected above, Lender does not demonstrate that no claim has been stated on any theory. Consequently, the demurrer to the entire complaint is OVERRULED.

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