Case Number: TC028944 Hearing Date: June 18, 2019 Dept: A

# 5. Angelo Jackson v. Wells Fargo Bank, et al.

Case No.: TC028944

Matter on calendar for: demurrer to the SAC (x2); motion to strike

Tentative ruling:

I. Background

Defendant Wells Fargo Bank, N.A., foreclosed on plaintiff Angelo Jackson’s property and sold it at a trustee’s sale to defendant Ralph Partners II, LLC. Ralph Partners has since sold the property to a third party. NBS Default Services was the trustee. Jackson alleges that Wells Fargo improperly foreclosed on his property and that Ralph Partners failed to care for his personal property after his eviction.

The operative Second Amended Complaint (“SAC”) alleges the following causes of action:

(1) Breach of covenant of good faith and fair dealing,

(2) Fraud and misrepresentation,

(3) Negligence (mislabeled as fraud and misrepresentation),

(4) Bailment, and

(5) Conversion

The first and second causes of action are alleged against Wells Fargo. The third, fourth, and fifth are alleged against Ralph Partners. Wells Fargo demurs and moves to strike the second cause of action. Ralph Partners demurs. The demurrers and motion to strike are opposed.

For the reasons set forth below, the Court sustains the demurrers and denies the motion to strike.

II. Standard

A. Demurrer

A demurrer tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.) In testing the sufficiency of the complaint, the court must assume the truth of (1) the properly pleaded factual allegations; (2) facts that can be reasonably inferred from those expressly pleaded; and (3) judicially noticed matters. (Blank v. Kirwan (1985) 39 Cal.App.3d 311, 318.) The Court may not consider contentions, deductions, or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.App.4th 634, 638.) Because a demurrer tests the legal sufficiency of a complaint, the plaintiff must show that the complaint alleges facts sufficient to establish every element of each cause of action. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43.) Where the complaint fails to state facts sufficient to constitute a cause of action, courts should sustain the demurrer. (C.C.P., § 430.10(e); Zelig v. County of Los Angeles (2002) 27 Cal.App.4th 1112, 1126.)

Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 643-644.) “Whether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 609–610.)

Under Code Civil Procedure § 430.10(f), a demurrer may also be sustained if a complaint is “uncertain.” Uncertainty exists where a complaint’s factual allegations are so confusing they do not sufficiently apprise a defendant of the issues it is being asked to meet. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

B. Motion to strike

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of the pleading. (C.C.P., § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of the pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (C.C.P., §§ 436(a)-(b); Stafford v. Schultz (1954) 42 Cal.2d 767, 782 [“matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

III. Analysis

A. Judicial notice

Wells Fargo’s request for judicial notice of various recorded documents and of documents filed in this action is granted. (Evid. Code, § 452(c) and (g).) The Court also takes judicial notice of the records in the underlying unlawful detainer action Ralph Partners II, LLC v. Angelo J. Jackson, et al., 17CMUD00313. (See In re A.B. (2008) 164 Cal.App.4th 832, 839.)

B. Breach of the covenant of good faith and fair dealing (Wells Fargo)

A breach of the implied covenant of good faith and fair dealing cause of action has four elements: (1) existence of a contractual relationship; (2) implied duty; (3) breach; and (4) causation of damages. (E.g., Smith v. San Francisco (1990) 225 Cal.App.3d 38, 49.)

Jackson alleges Wells Fargo breach its covenant of good faith and fair dealing by failing to adhere to an oral modification. (SAC ¶ 13.) “The statute of frauds requires any contract subject to its provisions to be memorialized in a writing subscribed by the party to be charged or by the party’s agent. [Civ. Code, § 1624; Secrest v. Security National Mortgage Loan Trust 2002–2 (2008) 167 Cal.App.4th 544, 552.]” (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1503.) A mortgage falls under the statute of frauds, as does any subsequent modification. (Ibid.) Jackson’s alleged oral modification is unenforceable under the statute of frauds: “Because the [plaintiffs] sought to allege a contract subject to the statue of frauds, they must allege a written contract signed by [Bank of America] and their failure to do so is a legal issue properly decided on demurrer. [Citation.]” (Ibid.)

The demurrer to the first cause of action is sustained.

C. Fraud (Wells Fargo)

The elements of fraud are (1) a misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pled with specificity. (Id. at 645.) This “necessitates pleading facts which show how, when, where, to whom, and by what means representations were tendered.” (Ibid.) Alleging fraud against a corporation requires including the “’names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. [Tarmann v. State Farm Mutual Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.]” (Ibid.)

Jackson’s second cause of action for fraud falls short of the specificity required in pleading this cause of action. Jackson generally refers to an oral contract but fails to allege what was said or the identify of any speakers. He also fails to allege justifiable reliance.

Wells Fargo’s demurrer to the second cause of action is sustained.

D. Motion to strike

The motion to strike is denied as moot.

E. Negligence, bailment, and conversion (Ralph Partners)

These three causes of action are related. The elements of negligence are: (1) legal duty owed to plaintiffs to use due care; (2) breach of that duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.) The California Civil Code refers to a bailment as a deposit. An involuntary deposit is the “accidental leaving or placing of personal property in the possession of any person, without negligence on the part of its owner.” (Civil Code § 1815(a).) Ralph Partners’ possession of Jackson’s personal property was the result of an unlawful detainer action, so its obligations in respect to the property are governed by Code of Civil Procedure § 1174.

The First Amended Complaint suggested Ralph Partners took possession of the property in January 2017. (FAC ¶ 23.) If Ralph Partners took possession, pursuant to its writ, in January 2017 and Jackson attempted to recover the property a year later, Jackson would not be able to state a claim for negligence, bailment, or conversion because Ralph Partners’ duty to maintain the personal property is limited to 15 days. However, January 2017 was the date Ralph Partners purchased the property, not the writ execution date. Ralph Partners initiated an unlawful detainer action in September 2017. The actual writ of possession was granted on November 9, 2017. The Court cannot determine, either from the judicially noticeable documents or the SAC, the date on which the writ was levied. The SAC suggests the actual eviction occurred in January 2018. (SAC ¶ 31.) As to Jackson’s retrieval of his personal belongings, the FAC alleged Jackson was granted access to the unit on January 31, 2018, though the SAC replaces this specific date with a general allegation of re-entry in January 2018. (FAC ¶ 27; SAC ¶ 34.)

To state his claims for negligence, bailment, or conversion, Jackson must allege the date of the writ’s execution and his timely claim for the property under Code of Civil Procedure § 1174(h).

Ralph Partners’ demurrer to the third, fourth, and fifth causes of action is sustained.

IV. Ruling

Wells Fargo’s demurrer is sustained without leave to amend unless Jackson can show the possibility of curing the SAC.

Ralph Partners’ demurrer is sustained with 20 days leave to amend. Any responsive pleading is due 20 days thereafter, or 25 is served by mail.