2017-00219847-CU-OR

Leslie Bakey vs. J. Pedro Zarate

Nature of Proceeding: Hearing on Demurrer to Cross-Complaint

Filed By: Stoltzman, Michael W.

Cross-Defendants Specialized Loan Servicing LLC (erroneously sued as Specialized Loan LLC) (“SLS”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and The Bank of New York Mellon fka The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2006-OAlO Mortgage Pass-Through Certificates, Series 2006-OAlO (erroneously sued as Bank of New York Mellon fka The Bank of New York as Trustee for the Certificate Holders of the Alternative Loan Trust 2006-OAlO Mortgage Pass-Through Certificates Series 2006-OAlO) (“BONY”) (collectively referred to herein as “Cross-Defendants”) demurrer to the cross-complaint filed by cross-complainant J. Pedro Zarate (“Cross-Complainant”) is UNOPPOSED and is SUSTAINED with leave to amend.

The Court notes that in order to render a demurrer moot, an amended pleading must be filed no later than the date the opposition to the demurrer was due. (CCP 472(a).) Cross-Complainant filed the First Amended Cross-Complaint in the afternoon of March 1, 2019, only one day prior to the hearing on this matter. This untimely filing does not moot the demurrer.

Cross-Defendants’ request for judicial notice is granted.

Cross-Complainant filed his 125 page verified cross-complaint on October 29, 2018. Therein, Cross-Complainant alleges seventeen causes of action: (1) setting aside Trustee’s sale for wrongful foreclosure (against all Cross-Defendants); (2) fraud by deceit (against BONY); (3) fraud and deceit (against SLS); (4) unfair or deceptive practices pursuant to Bus. & Prof. Code § 17200 (against BONY); (5) fraud in the inducement (against Grand View, Sedlar, and Rogers); (6) conversion of chattel (against Bakey); (7) fraud (against BANA); (8) fraud (against BANA); (9) violation of California Financial Code § 4973(f) (against BANA); (10) fraud (against BANA); (11) slander of title (against BONY); (12) violation of HBOR – Civil Code §§ 2923.55 and 2923.17 (against SLS, BONY, and NBS); (13) Violation of HBOR – Civil Code § 2923.6 (c)(1) (against BONY, SLS, and NBS; (14) Violation of HBOR – Civil Code § 2923.7 (against SLS); (15) setting aside Trustee’s sale for wrongful foreclosure (against Bakey and BONY); (16) setting aside Trustee’s sale for wrongful foreclosure (against Bakey, BONY, BANA, NBS, and SLS); and (17) quiet title (against BONY, Bakey, Sedlar, Rogers, and Loretz).

Cross-Defendants demur to the first (against all Cross-Defendants), second (against BONY), third (against SLS), fourth (against BONY), eleventh (against BONY), twelfth (against SLS and BONY), thirteenth (against SLS and BONY), fourteenth (against SLS), fifteenth (against BONY), sixteenth (against SLS and BONY), and seventeenth (against BONY) causes of action on the grounds each cause of action fails to state facts sufficient to state a cause of action. (CCP § 430.10(e).)

The demurrer is sustained for the reasons stated in Cross-Defendants’ memorandum of points and authorities, pp. 2-14. The Court construes Cross-Complainant’s failure to oppose the demurrer as a concession on the merits. (D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 728, fn. 4 [where nonmoving party fails to oppose a ground for a motion “it is assumed that [nonmoving party] concedes” that ground].) Nonetheless, as this demurrer, is Cross-Defendants’ first objections to the complaint, the court grants Cross-Complainant leave to amend.

Cross-Complainant may file and serve an amended cross-complaint no later than March 14, 2019. (Although not required by statute or court rule, Cross-Complainant is directed to present the clerk a copy of this ruling at the time of filing the amended complaint.)

The notice of motion does not provide notice of the Court’s tentative ruling system as required by Local Rule 1.06(D). Cross-Defendants’ counsel is ordered to notify Cross-Complainant immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event Cross-Complainant appears without following the procedures set forth in Local Rule 1.06(B).

This minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.