Case Name: Williams, et al. v. Ocwen Loan Servicing, LLC, et al.
Case No.: 18CV339913

Defendants (1) Ocwen Loan Servicing, LLC (“Ocwen”) and U.S. Bank National Association, as Trustee for Resident Accredit Loans Inc. Series 2006 QS2 (the “Trust”) (collectively, “Defendants”) and (2) Hollyvale Rental Holdings, LLC (“Hollyvale”) each demur to the complaint (“Complaint”) filed by plaintiffs Brock Williams and Sylvia Williams (collectively, “Plaintiffs”).

I. Factual and Procedural Background

This is an action for wrongful foreclosure, among other things, arising out of the foreclosure sale of a residential property located in San Jose. According to the allegations of the operative Complaint, on December 15, 2005, Plaintiffs purchased the real property located at 940 College Drive in San Jose (the “Property”) with a loan from American Mortgage Express Corp. that was secured by two deeds of trust (“DOTs”) recorded against the Property. (Complaint, ¶ 9, Exhibit A.) On November 13, 2014, a Notice of Default (“NOD”) was recorded by Trustee Western Progressive, LLC. (Id., ¶ 11, Exhibit B.) In September 2017, a Notice of Trustee’s Sale was recorded. (Id., ¶ 12, Exhibit C.)

On July 7, 2018, Plaintiffs, who were experiencing financial hardship, submitted a request for modification assistance. (Complaint, ¶ 13, Exhibit D.) In 2018, Defendants offered Plaintiffs a modification that was improper because it did not decrease the amount owed per month by at least 10 percent. (Id., ¶ 14.) Defendants ultimately would not give Plaintiffs a modification “for reasons that are not justified.” (Id. at ¶ 15.)

On August 22, 2018, a Trustee’s Deed upon Sale was recorded indicating that the Property had been sold on August 6, 2018 to Hollyvale. (Complaint, ¶ 16.) Plaintiffs allege that this sale was unlawful because it was conducted while they were under review for a possible modification. (Id., ¶ 17.) On September 5, 2018, Hollyvale left an Unlawful Detainer Summons and Complaint on Plaintiffs’ doorstep. (Id., ¶ 18.)

Based on the foregoing, Plaintiffs filed their Complaint on December 18, 2018, asserting claims for: (1) wrongful foreclosure; (2) breach of contract; (3) breach of the implied duty of good faith and fair dealing; (4) negligent misrepresentation; (5) negligence; (6) intentional infliction of emotional distress; (7) cancellation of instruments; (8) wrongful eviction; and (9) violation of Business and Professions Code § 17200.

On February 5, 2019, Defendants filed the instant demurrer to each of the nine causes of action asserted in the Complaint on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) On March 5, 2019, Hollyvale filed its own demurrer to each of the claims asserted in the Complaint on the same grounds. Plaintiffs oppose both motions.

II. Hollyvale’s Demurrer

While Hollyvale addresses each of the claims asserted in the Complaint individually to articulate why it believes the particular claim has not been stated against it by Plaintiffs, it maintains that as a general matter, Plaintiffs’ Complaint is “globally” defective because it is a bona fide purchaser and thus its title is invulnerable to challenge.

“As a general rule, the purchaser at a nonjudicial foreclosure sale receives title under a trustee’s deed free and clear of any right, title or interest of the trustor.” (Moeller v. Lien (1994) 25 Cal.App.4th 822, 831.) “A properly conducted nonjudicial foreclosure sale constitutes a final adjudication of the rights of the borrower and lender.” (Id., citing Smith v. Allen (1968) 68 Cal.2d 93, 96.) “Once the trustee’s sale is completed, the trustor has no further rights of redemption.” (Id., citing Ballengee v. Sadlier (1986) 179 Cal.App.3d 1, 5.) “If the trustee’s deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser.” (Id.) The term bona fide purchaser means “one who pays value for property without notice of any adverse interest or of any irregularity in the sale proceedings. [Citations.]” (Melendrez v. D & I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1250.) Thus, to qualify as a bona fide purchaser the buyer must: “(1) purchase the property in good faith for value, and (2) have no knowledge or notice of the asserted rights of another.” (Id. at p. 1251, original italics.)

“Thus, as a general rule, a trustor has no right to set aside a trustee’s deed as against a bona fide purchaser for value by attacking the validity of the sale.” (Id., citing Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 436.) “The conclusive presumption precludes an attack by the trustor on a trustee’s sale to a bona fide purchaser even where the trustee wrongfully rejected a proper tender of reinstatement by the trustor.” (Id. at pp. 831-832.) “Where the trustor is precluded from suing to set aside the foreclosure sale, the trustor may recover damages from the trustee. (Id., citing Munger v. Moore (1970) 11 Cal.App.3d 1, 9, 11.)

Here, Plaintiffs seek to set aside the foreclosure sale via cancellation of the Trustee’s Deed upon Sale. (Complaint, ¶¶ 81-91.) While Hollyvale maintains that it is a bona fide purchaser, whether it actually is such a purchaser is a factual issue that cannot be resolved on demurrer. As stated above, to qualify as a bona fide purchaser the buyer must: “(1) purchase the property in good faith for value, and (2) have no knowledge or notice of the asserted rights of another.” (Melendrez, supra, 127 Cal.App.4th at 1251.) There are no allegations in the Complaint which indicate that Hollyvale satisfies the foregoing requirements, and a blanket representation by Hollyvale in its opposition that it does is insufficient. Thus, Hollyvale’s assertion that it is a bona fide purchaser does not provide a basis upon which to sustain its demurrer to the claims asserted against it in the Complaint.

Turning to the first cause of action for wrongful foreclosure, Plaintiffs allege that Defendants breached their obligations to them by failing to notify them of any foreclosure alternatives they may have been eligible for and by recording a Notice of Default (“NOD”) without any attempt to contact them to discuss foreclosure avoidance options. (Complaint, ¶¶ 28-33.)

Hollyvale asserts, persuasively, that Plaintiffs cannot state a claim for wrongful foreclosure against it because it had no role in noticing the foreclosure and thus cannot be held liable for any defects therein. “The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale. They are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184.) Hollyvale is not alleged to have been the trustee or mortgagee that caused the sale of the Property. Consequently, Plaintiffs have not stated a claim for wrongful foreclosure against this defendant. In their opposition, Plaintiffs do not directly address the deficiencies in this cause of action and thus impliedly concede their inability to state such a claim against Hollyvale. Therefore, Hollyvale’s demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

The next two causes of action are contract claims predicated on the DOT recorded on the Property in 2005. (Complaint, ¶ 40.) In order to state a claim for breach of contract, a plaintiff must allege (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) Defendants breach; and (4) damages to the plaintiff as a result of the breach. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) To state a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff “must establish the existence of a contractual obligation, along with conduct that frustrates the other party’s rights to benefit from the contract.” (Racine & Laramie v. Dept. of Parks & Rec. (1992) 11 Cal.App.4th 1026, 1031.) Hollyvale contends that these claims fail because it is not a party to the DOT. Indeed, there is no allegation that Hollyvale is a party to the DOT, and it is not even alleged to have become involved with the Property until over 10 years after the DOT was initially executed. Plaintiffs offer no response to Hollyvale’s assertions in their opposition. Accordingly, Hollyvale’s demurrer to the second and third causes of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Next, Plaintiffs’ fourth cause of action for negligent misrepresentation alleges that Ocwen’s representative misrepresented to Plaintiffs that it would have a response regarding the auditing of their account by early August 2018. (Complaint, ¶ 62.) As Hollyvale notes, there is no allegation that it made any representation to Plaintiffs, much less a false one. Thus, no claim for negligent misrepresentation has been stated against it. (See Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243 [stating elements of negligent misrepresentation].) Therefore, Hollyvale’s demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs’ fifth cause of action is for negligence and is predicated on allegations that the servicing of their loan was “carelessly done.” (Complaint, ¶ 74.) Hollyvale contends that no claim for negligence has been stated against it because it was not involved with the servicing of Plaintiffs’ loan. This assertion is well taken because the alleged negligence at issue preceded Hollyvale’s involvement with the Property. Consequently, no claim for negligence has been stated against Hollyvale and its demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs’ sixth cause of action for intentional infliction of emotional distress (“IIED”) is also predicated on conduct that preceded Hollyvale’s involvement with the Property- particularly the purported failure by Ocwen to correct Plaintiffs’ accounting and review them for a loan modification as allegedly agreed upon. (Complaint, ¶¶ 78-79.) Consequently, as Hollyvale maintains, no claim for IIED has been stated against it and its demurrer to the sixth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

With the seventh cause of action for cancellation of the Trustee’s Deed upon Sale, Plaintiffs seek to set aside this particular instrument on the grounds that it is fraudulent as a result of a wrongful foreclosure. Hollyvale argues that this claim fails there are no grounds for cancellation given the failure to Plaintiffs’ claim for wrongful eviction. This assertion is well taken as the request to cancel a trustee’s deed is not a cause of action but rather a particular remedy dependent on a substantive basis for liability. (See, e.g., Plastino v. Wells Fargo Bank (N.D. Cal. 2012) 873 F.Supp.2d 1179, 1189.) As no substantive claim for liability has been stated against Hollyvale, there are no grounds to cancel the Trustee’s Deed. Thus, Hollyvale’s demurrer to the seventh cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs’ eighth cause of action for wrongful eviction alleges that an unlawful detainer summons and complaint was left on their doorstep on September 5, 2018 and that their damages “are that they will lose their home through wrongful eviction.” (Complaint, ¶¶ 93, 95.) As Hollyvale maintains, an essential element of the tort of wrongful eviction is that “the tenant has vacated the premises.” (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 900.) Here, Plaintiffs have only alleged that an eviction is pending, but not that it has been completed. (Complaint, ¶¶ 93, 5.) Consequently, no claim for wrongful eviction has been stated against Hollyvale and its demurrer to the eighth cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

With their remaining cause of action, Plaintiffs allege that Defendants engaged in wrongful conduct in violation of Business and Professions Code section 17200 et seq. (the “UCL”) by: wrongfully foreclosing on the Property; breaching the loan agreement; making negligent misrepresentations; wrongfully initiating their eviction from the Property; and waiving “false hope” of a loan modification that caused Plaintiffs to incur damages. (Complaint, ¶ 101.) Hollyvale asserts that this claim is derivative of the preceding failed claims for loan servicing and wrongful foreclosure and fails on the same grounds, namely: (1) the Homeowners Bill of Rights (the “HBOR”) does not apply to Hollyvale as it had no involvement with Plaintiffs’ loan; (2) Plaintiffs do not allege that Hollyvale took any action which constitutes a HBOR violation; and (3) Hollyvale is a bona fide purchaser and therefore not subject to a HBOR claim.

Hollyvale’s assertions are well taken. The only conduct that the ninth cause of action is predicated on that is attributed to Hollyvale in the Complaint is the alleged wrongful eviction of Plaintiffs. However, as explained above, Plaintiffs have not yet been evicted from the Property, so there is no wrongful eviction. Consequently, no claim for violation of the UCL has been stated against Hollyvale and its demurrer to the ninth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

III. Defendants’ Demurrer

A. Defendants’ Request for Judicial Notice

In support of their demurrer to the Complaint, Defendants request that the Court take judicial notice of the following items: (1) the Grant Deed on the Property recorded on January 4, 2006 (Exhibit 1); (2) the DOT recorded on January 4, 2006 (Exhibit 2); (3) an Assignment of Deed of Trust recorded on December 12, 2011 (Exhibit 3); (4) an NOD recorded on December 30, 2011 (Exhibit 4); (5) a Notice of Rescission of Notice of Default recorded on November 24, 2014 (Exhibit 5); (6) an NOD recorded on November 13, 2014 (Exhibit 6); (7) a Notice of Trustee’s Sale recorded on September 14, 2017 (Exhibit 7); and (8) a Trustee’s Deed Upon Sale recorded on August 22, 2018 (Exhibit 8).

These items are proper subjects of judicial notice as facts and propositions that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (See Evid. Code, § 452, subd. (h); 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 a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity].) Accordingly, Defendants’ request for judicial notice is GRANTED.

B. Substantive Merits

Defendants first contend that because Plaintiffs’ have not alleged tender of the amount owed on their loan (or excuse of tender), they cannot challenge the nonjudicial foreclosure sale as they attempt to do here in their first cause of action for wrongful foreclosure.

“As a general rule, a plaintiff may not challenge the propriety of a foreclosure sale on his or her property without offering to repay what he or she borrowed against the Property.” (Intengen v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1053.) “[A] defaulted borrower who seeks to set aside a trustee’s sale is required to do equity before the court will exercise its equitable powers.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112 [internal citations omitted].) Here, Plaintiffs have not made the requisite tender. In their opposition, they do not dispute this failure, but insist that they are excused from making tender because it would be inequitable to enforce the requirement.

While it is true that there are circumstances in which a plaintiff is excused from the requirement of making tender- particularly, it is not required where “the foreclosure sale is void, rather than voidable, such as when a plaintiff proves that the entity lacked the authority to foreclose on the property” (see Dimock v. Emerald Properties (2000) 81 Cal.App.4th 868, 877-878)- there are no facts pleaded in the Complaint which indicate that such circumstances are present here. Plaintiffs do not allege that the entities who foreclosed on the Property lacked the authority to do so, and while they assert in their opposition that the Trustee’s Deed Upon Sale was recorded while they were under the protection of a bankruptcy filing, not only have they not pleaded as much in the Complaint, but the Request for Modification Assistance upon which they rely (attached to as an exhibit to the Complaint) contained an express representation that there was no bankruptcy.

Defendants also assert that to the extent Plaintiffs’ wrongful foreclosure claim is predicated on their alleged failure to comply with Civil Code section 2923.5, subdivision (a), it is also deficient. This code section provides that “[a] mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Section 2924 until 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (g).” Under paragraph (2), “[a] mortgagee, beneficiary, or authorized agent shall contact the borrower in person or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure.” Plaintiffs allege that Defendants failed to comply with this code section because they were not contacted prior to the initiation of foreclosure proceedings to discuss alternatives to foreclosure. However, as Defendants maintain, Plaintiffs’ allegations of noncompliance are belied by their own admissions that they had prior discussions with Ocwen concerning loss mitigation and were even offered a modification. (Complaint, ¶¶ 13-14.) Civil Code section 2923.5 can be satisfied even where the borrower initiates contact with the servicer to discuss loan modification at least 30 days prior to the recording of the NOD. (See, e.g., Dias v. JP Morgan Chase, N.A. (N.D. Cal. 2014) 2014 WL 2890255; see also Davenport v. Litton Loan Servicing, LP (N.D. Cal. 2010) 725 F.Supp.2d 862, 877 [dismissing Civil Code section 2923.5 claim because plaintiffs’ allegation of loan modification talks negated a claim that that code section was violated].)

Given the foregoing deficiencies, Defendants’ demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Next, Defendants persuasively assert that no claim for breach of contract has been pleaded against them because Plaintiffs fail to identify any provision of the DOT that has been breached by them. Without such identification, the “breach” element has not been sufficiently pleaded. (See Smith v. JP Morgan Chase Bank, N.A. (C.D. Cal. 2014) 2014 WL 6886030, *6.) Further, Defendants note, Ocwen is not a party to the DOT and therefore not only cannot be liable for any breach of the agreement even if one had occurred, but also cannot be liable for breach of the implied covenant based on the DOT. (See Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49 [stating that the “prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract”].)

As for the implied covenant claim with respect to the Trust, Plaintiffs’ failure to plead the breach of a specific term of the DOT is also a hurdle to adequately stating such a claim. This is because the implied covenant is “limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.” (Pasadena Live, LLC v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094.) Plaintiffs have not articulated what express terms of the DOT were frustrated by Defendants’ alleged conduct. Additionally, while Plaintiffs allege that Defendants breached unspecified terms of the DOT by “not working with Plaintiffs during a previous loan modification agreement,” the DOT contains no provisions concerning loan modification.

Based on the foregoing, Defendants’ demurrer to the second and third causes of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Next, Defendants contend that Plaintiffs’ claim for negligent misrepresentation fails because they not only fail to plead the claim with the requisite specificity, but there is no actionable misrepresentation alleged upon which Plaintiffs relied to their detriment.

“The elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation, the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) In order to state a fraud claim, the plaintiff must plead: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of the statement’s falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Lazar v. Super. Ct. (1996) 12 Cal.4th 631, 638.) Negligent misrepresentation must be specifically pleaded, and this particularized pleading standard requires allegations showing how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Super. Ct., supra, 12 Cal.4th, at p. 645; see also Small v. Fritz (2003) 30 Cal. 4th 167, 184.) To state a claim based on a company’s employee’s misrepresentations, the plaintiff must allege the names of the persons who made the representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Lazar v. Super. Ct., supra, 12 Cal.4th, at p. 645.)

Here, Plaintiffs’ fourth cause of action falls well short of the foregoing standard, with no allegations of what specific representations were made to Plaintiffs, who made them, when and how they were made, or why they were false. Further, there are no allegations showing what, if anything, Plaintiffs did in justifiable reliance on any alleged misrepresentation. In their opposition, Plaintiffs do not address the issue of the absence of reliance and resulting damage from this cause of action, suggesting that they are unable to amend this claim to sufficiently plead it. Therefore, Defendants’ demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

In the fifth cause of action, Plaintiffs’ allege that Defendants were negligent with the servicing of their loan and their damages are the loss of their home. (Complaint, ¶¶ 74-75.) Defendants assert that this claim is insufficiently pleaded because they neither breached nor owed a duty of care to Plaintiffs.

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) As a general rule, banks owe borrowers no duty of care unless the institution’s involvement “exceed[s] the scope of its conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1095.) However, this rule is not absolute; courts generally weigh the six so-called Biakanja factors to decide whether a particular financial institution owed the plaintiff a duty of care.

California courts have not settled on a uniform application of the foregoing factors in mortgage cases. In Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, a case cited by Defendants, the court found that because “a loan modification is the renegotiation of loan terms, which falls squarely within the scope of a lending institution’s conventional role as a lender of money,” a residential lender owed no “common law duty of care to offer, consider, or approve a loan modification, or to explore and offer foreclosure alternatives.” (Lueras, 221 Cal.App.4th at 63-67.) By contrast, in Alvarez v. BAC Home Loans Servicing, LP (2014) 228 Cal.App.4th 941, the court held that a lender who undertakes to review a borrower’s application must exercise due care under the Biakanja factors in the processing and consideration of the application. (Alvarez, 228 Cal.App.4th at 948-952.) Most federal courts have found the reasoning of Lueras more persuasive, especially in circumstances where a modification was necessary due to the borrower’s inability to repay the loan and thus his or her harm, the denial of a loan modification, was not closely connected to the lender’s conduct, but rather their own actions.

This Court also finds Lueras to be the better-reasoned decision. Plaintiffs do not dispute that they were in default of their loan due to their own inability to make payments and they fail to specifically articulate how, even if a duty of care existed, Defendants breached that duty with respect to their handling of Plaintiffs’ loan modification application, only broadly alleging that their loan servicing was “carelessly done” and a permanent modification was withheld “for reasons that are not justified.” (Complaint, ¶¶ 15, 74.) These allegations are not sufficient to state a claim for negligence. Accordingly, Defendants’ demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs’ sixth cause of action for IIED is predicated on Defendants’ alleged failure to “correct[] Plaintiffs’ account” and review them for a loan modification as agreed upon. (Complaint, ¶¶ 78-79.) Defendants maintain that Plaintiffs have not and cannot state a claim for IIED because their claimed loss is purely financial. Indeed, the California Supreme Court confirmed in Erlich v. Menezes (1999) 21 Cal.4th 543 that emotional distress damages are unavailable in cases arising solely from financial injury. Moreover, even if such damages were available, Plaintiffs fail to plead conduct on the part of Defendants that qualifies as “extreme and outrageous” and “exceed[ed] all bounds of that usually tolerated in a civilized society,” i.e., the type necessary to state a claim for IIED. (See, e.g., Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009 [exercise of creditor’s rights under loan agreement, absent more (such as threats, insults, abuse or humiliating conduct) not “outrageous”].) Therefore, Defendants’ demurrer to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

With respect to the seventh cause of action for cancellation of instruments, Defendants assert that no such claim can be stated against them because they are not a party to the instrument that Plaintiffs seek to cancel, the Trustee’s Deed upon Sale. This assertion is well taken, as is their argument that this claim fails because Plaintiffs have not pleaded tender of the amounts owed on their loan. (See Davenport v. Seattle Bank (C.D. Cal. 2015) 2015 WL 4886393, *6 [where plaintiff failed to allege tender, nor provided facts to suggest why he was excused from tender, no claim to set aside the trustee’s sale was stated].) Consequently, Defendants’ demurrer to the seventh cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Defendants next contend that Plaintiffs have not stated a claim for wrongful eviction against them because their eviction from the Property is not being sought by them but rather Hollyvale. Nor can they amend to state a claim against them, Defendants continue, because they no longer have any right, title or interest in the Property following the recording of the Trustee’s Deed upon Sale. (Defendants’ RJN, Exhibit E.) Plaintiffs make no attempt to rebut Defendants’ arguments in connection with the eighth cause of action and thus impliedly concede their merits. Accordingly, Defendants’ demurrer to this claim on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

Plaintiffs’ remaining cause of action alleges that Defendants’ breached the UCL by: wrongfully foreclosing on the Property; breaching the loan agreement; making negligent misrepresentations; wrongfully initiating their eviction from the Property; and waiving “false hope” of a loan modification that caused Plaintiffs incur damages. (Complaint, ¶ 101.) All of these acts serve as the bases for the preceding causes of action and, for the reasons articulated above, are insufficient to support the imposition of liability against Defendants. (See Krantz v. BT Visual Images (2001) 89 Cal.App.4th 164, 178 [stating that when a UCL claim is derivative of other causes of action, the claim “stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action”].) Therefore, Defendants’ demurrer to the ninth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.