Case Number: YC068774 Hearing Date: April 21, 2014 Dept: M

TENTATIVE RULING

First Choice Bank, Evergreen International Bank, and Stewart Default Services’s Demurrer to Second Amended Complaint and Stewart Title of California, Inc. and Stewart Title Guaranty Company’s Joinder in Defendants’ Demurrer to Plaintiff’s Second Amended Complaint are sustained without leave to amend.

As to the entire Second Amended Complaint, plaintiff has failed to allege a tender of the indebtedness. Plaintiff has failed to tender the undisputed obligation in full. See Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109. Plaintiff argues that a tender is only required when the foreclosure sale has not yet occurred. Notwithstanding the fact that this is not necessarily true, here, the foreclosure sale has actually taken place. Plaintiff also argues that he did allege tender. However, paragraphs 37 and 41 of the SAC do not constitute an unambiguous offer to tender. Instead, the offer to tender is as of the date of default.

Plaintiff argues that the Notice of Default overstated the amount of the indebtedness. Plaintiff’s theory regarding the discrepancy in the amounts presumes that no amounts could further accrue after a Notice of Default is recorded. Plaintiff does not provide any authority for this proposition. Further, plaintiff also does not take into account the three payments on the underlying loan with FCB that were due and unpaid.
Further, trivial defects would not invalidate the entire foreclosure process. See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 93, fn. 9. Prejudice is not presumed from any alleged irregularities in the foreclosure process. See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272. Plaintiff does not plead facts to establish any prejudice.

As to the first cause of action for Wrongful Foreclosure, the demurrer is sustained without leave to amend for the reasons noted above.
Further, plaintiff improperly added this cause of action without leave to amend. Upon the sustaining of a demurrer, the scope of leave to amend is only as to the causes of action to which the demurrer was sustained. No leave to amend is afforded to add new causes of action. See People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.
An exception is provided if the new cause of action is within the scope of the order granting leave to amend or if it directly responds to the court’s reasoning for sustaining the demurrer. See Patrick v. Alacer Corp. (2011) 201 Cal.App.4th 1326; See also Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023. Here, nothing in the court’s order sustaining the demurrer to the First Amended Complaint with leave to amend contemplates permission to add a new cause of action for Wrongful Foreclosure.

As to the second cause of action for Cancellation of Recorded Instruments, the demurrer is sustained without leave to amend.
A written instrument may be canceled if there is a “reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable.” Civil Code § 3412. For the reasons stated above, plaintiff has failed to state facts to show that the written instruments are void or voidable.

As to the third cause of action for Declaratory Relief, the demurrer is sustained without leave to amend.
Plaintiff has failed to state facts to establish the existence of an actual and existing controversy. Further, plaintiff fails to establish that declaratory relief is necessary and proper. Code of Civil Procedure § 1061.

As to the fourth cause of action for Accounting against defendant First Choice Bank, only, the demurrer is sustained without leave to amend.
A right to an accounting is derivative and based on other underlying causes of action. See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 593-94.
Further, plaintiff has failed to allege the existence of a fiduciary or special relationship that would give rise to a duty to account. See Id.; See also In re Niles 106 F.3d 1456, 1462 (9th Cir. 1997).

First Choice Bank, Evergreen International Bank, and Stewart Default Services’s Motion to Strike Portions of Second Amended Complaint is moot upon the sustaining of the demurrer.