17-CIV-05831 LAFRANCE GRAVES, ET AL. VS. OCWEN SERVICING LLC, ET AL.

LAFRANCE GRAVES OCWEN SERVICING LLC
HAYK M. GRIGORYAN ADAM F. SUMMERFIELD

OCWEN SERVICING LLC’S DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT TENTATIVE RULING:

Defendant Ocwen’s demurrer to Plaintiffs’ first cause of action for violation of Cal. Bus. & Prof. Code § 17200, et seq. and Plaintiffs’ second cause of action for violation of the Homeowners’ Bill of Rights (“HBOR”) is SUSTAINED without leave to amend.

The court previously sustained Ocwen’s demurrer to these causes of action and provided Plaintiffs with the opportunity to amend the complaint to plead facts sufficient to state a claim. The court’s order provided, in pertinent part, as follows:

As to the First Cause of Action for violation of Bus. & Prof. Code 17200, the Demurrer is SUSTAINED WITH LEAVE TO AMEND. This claim is predicated on the alleged HBOR statutory violations and common law claims asserted in the other causes of action, which for the reasons state below, are not sufficiently plead.

As to the Second Cause of Action for violation of the Homeowner’s Bill of Rights (HBOR), the Demurrer is SUSTAINED WITH LEAVE TO AMEND. The FAC alleges violations of two HBOR statutes: Civ. Code 2923.7 (single point of contact) and 2924.11 (dual-tracking). No cause of action is properly alleged under 2923.7. As the Court previously noted in granting Ocwen’s Motion for Judgment on the Pleadings as to this claim, 2923.7 does not apply absent allegations that Plaintiffs requested and were denied a single point of contact (SPOC), neither of which is alleged here. Indeed, Plaintiffs’ original Complaint conceded Plaintiffs were assigned a team of personnel as permitted under Section 2923.7. See Original Complaint, 20, 22, 24-25; Civ. Code 2923.7(e) (Section 2923.7(e) provides that a single point of contact can mean “an individual or team of personnel. . . .”). As for 2924.11, as Defendants note, prior to a foreclosure sale, Plaintiffs’ only remedy is injunctive relief (see 2924.12). Plaintiffs seek only damages, which is not available pre-sale. Because the FAC does not allege that any foreclosure sale has occurred, no cause of action is stated. See Civ. Code 2924.12(a)(1) and (b); Rockridge Trust v. Wells Fargo, N.A. (2013) 985 F.Supp.2d 1110, 1148-1149; Vasquez v. Bank of America, N.A. (N.D. Ca. 2013) 2013 WL 6001924 at *7.

10/9/18 Minute Order. Plaintiffs have made no material changes in the second amended complaint. With respect to their claim asserting violation of the HBOR, Plaintiffs have added the allegation that “they specifically requested and were denied a single point of contact, even though they were assigned a few people to deal with, but none of them, were fully aware of the details of the loan modification review and Plaintiffs were forced to call several employees in order to get any update on their application.” SAC, ¶ 84. Notably, however, Plaintiffs acknowledge that they were “assigned a few people to deal with” and they do not allege they did not receive the requested update on their application. Plaintiffs have failed to set forth facts sufficient to state a cause of action for violation of Section 2923.7 of the HBOR.

Further, the court notes that Plaintiffs have not filed an opposition to the present demurrer. As a result, they have not provided any grounds for the court to revisit its prior conclusion that, because Plaintiffs do not seek injunctive relief for the alleged violation of Civil Code § 2924.11, Plaintiffs have failed to assert a cause of action for violation of Section 2924.11. Accordingly, Plaintiffs’ cause of action for violation of the HBOR fails for the same reasons identified in the court’s October 9, 2018 ruling on Ocwen’s demurrer.

Similarly, with respect to the demurrer to the cause of action for violation of Bus. & Prof. Code § 17200, et seq., Plaintiffs have provided no grounds for the court to revisit its determination that viability of this cause of action depends on Plaintiffs’ ability to assert a violation of law, statutory or otherwise. Accordingly, Plaintiffs’ cause of action for violation of Bus. & Prof. Code § 17200, et seq. fails for the same reasons identified in the court’s October 9, 2018 order.

Because it appears that Plaintiffs are unable to allege facts sufficient to state a cause of action for violation of the HBOR or Bus. & Prof. Code § 17200, et seq., the demurrer to these causes of action is sustained without leave to amend.

Defendant Ocwen’s demurrer to Plaintiffs’ third cause of action for negligence is OVERRULED as moot. As noted in the ruling on Ocwen’s motion to strike, the court previously sustained Ocwen’s demurrer to Plaintiffs’ negligence claim without leave to amend. Because the motion to strike is granted with respect to this cause of action, Ocwen’s demurrer as to this cause of action is moot.

Defendant Ocwen’s request for judicial notice is GRANTED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.

17-CIV-05831 LAFRANCE GRAVES, ET AL. VS. OCWEN SERVICING LLC, ET AL.

LAFRANCE GRAVES OCWEN SERVICING LLC
HAYK M. GRIGORYAN ADAM F. SUMMERFIELD

OCWEN SERVICING LLC’S MOTION TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT TENTATIVE RULING:

Defendant Ocwen’s motion to strike Plaintiffs’ complaint is GRANTED, in part, and DENIED, in part.

The court’s October 9, 2018 order sustained Ocwen’s demurrer to Plaintiffs’ negligence cause of action without leave to amend. Accordingly, Ocwen’s motion to strike that portion of the SAC setting forth a cause of action for negligence is GRANTED. Paragraphs 87 through 107 of the second amended complaint are hereby stricken.

Ocwen contends the entire SAC should be stricken because it was not timely filed under operation of CRC 3.1320. The court notes, however, there is a split of authority as to whether Plaintiffs must file a noticed motion seeking permission to file the late pleading, or whether the court can consider the late-filed pleading absent such a request. See, e.g., Leader v. Health Indus. of America, Inc. (2001) 89 CA4th 603, 612-613, 107 CR2d 489, 496497; cf. Harlan v. Department of Transp. (2005) 132 CA4th 868, 874, 33 CR3d 912, 916-917. Under the circumstances of the present case, the court deems it appropriate to consider the late-filed pleading and the merits of Plaintiffs’ demurrer. Ocwen’s motion to strike Plaintiffs’ complaint in its entirety is DENIED.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.