Case Number: 19LBCV00309 Hearing Date: February 06, 2020 Dept: S27

TENTATIVE RULING

Defendants’ demurrer to the FAC is SUSTAINED with 20 days’ leave to amend as to the First through Twelfth Causes of Action, and Fourteenth Cause of Action. The demurrer to the Thirteenth and Fifteenth Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND.

INTRODUCTION

Defendants Bank of America, N.A. (“BANA”), ReconTrust Company, N.A. (“ReconTrust”), PHH Mortgage Corporation, successor by merger to Ocwen Loan Servicing, LLC, erroneously sued as “Ocwen Loan Servicing, LLC” and “PHH Mortgage services” (“PHH”), Mortgage Electronic Registration Systems, Inc. (“MERS”), and U.S. Bank National Association, as Trustee for Lehman XS Trust, Series 2006-GP4, erroneously sued as “U.S. Bank, National Association, as Trustee for Lehman XS Trust, Series-GPA” (“U.S. Bank”)(collectively, “Defendants”) demur to Plaintiff’s First Amended Complaint (“FAC”) on that grounds that the FAC, nor any of its causes of action, state facts sufficient to constitute a cause of action against Defendants.

BACKGROUND

Plaintiff Mack Brown, self-represented, commenced this lawsuit on May 16, 2019. A First Amended Complaint (“FAC”) was filed on May 16, 2019 against Western Progressive, LLC; PHH Mortgage Services; Ocwen Loan Servicing, LLC; Mortgage Electronic Registration Systems, Inc.; U.S. Bank, National Association, as Trustee for Lehman XS Trust, Series-GPA; Bank of America, N.A.; and Recontrust Company, N.A. Plaintiff alleges the following causes of action in the FAC: (1) intentional misrepresentation; (2) violation of California Civil Code section 2924.12 and 2924.17(a)-(b); (3) violation of California Civil Code section 3294(c)(3); (4) cancellation of a voidable contract under Revenue & Tax Code sections 23304.1, 23305A, and violation of California Corporations Code section 191(C)(7); (5) violation of California Homeowner Bill of Rights (“HBOR”); (6) to void or cancel assignment of deed of trust; (7) quiet title; (8) violation of California Business & Professions Code sections 17200, et seq.; (9) cancellation of written instruments; (10) slander of title; (11) declaratory relief; (12) intentional infliction of emotional distress; (13) injunctive relief; (14) constructive fraud; and (15) treble damages.

Deed of Trust Allegations

On May 10, 2006, Plaintiff executed a written loan agreement with Defendant Greenpoint Mortgage Funding, Inc. (“Greenpoint”), secured by a deed of trust recorded against Plaintiff’s real property at 26351 Hillcrest Avenue, Lomita, CA 90717 (the “Subject Property”) for a loan in the sum of $765,600.00. The beneficiary listed in the deed of trust was MERS, as nominee for Greenpoint, its successors, and assigns. (FAC, Exh. A.)

On October 17, 2012, MERS assigned the deed of trust to US Bank via an assignment recorded on October 23, 2012. (FAC, Exh. B.) On August 12, 2013, a substitution of trustee was recorded, showing that Sage Point Lender Services (“Sage Point”) was substituted as trustee of record for the deed of trust. (FAC, Exh. D.)

On August 12, 2013, Sage Point recorded a notice of default, reflecting as of August 6, 2013, the loan was approximately $21,306.46 in arrears. (FAC, Exh. E.)

On August 27, 2018, a substitution of trustee was recorded, reflecting Western Progressive, LLC (“WP”) was substituted as trustee of record for the deed of trust. (FAC, Exh. F.) On September 17, 2018, a notice of default was recorded by WP, reflecting that as of October 5, 2018, the loan was approximately $20,792.96 in arrears. (FAC, Exh. G.) On December 28, 2018, a notice of trustee’s sale was recorded. (FAC, Exh. H.)

ANALYSIS

Overview of Relevant Law

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc. §§ 430.30, 430.70.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . .” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) “When a court evaluates a complaint, the plaintiff is entitled to reasonable inferences from the facts pled.” (Duval v. Board of Trustees (2001) 93 Cal.App.4th 902, 906.)

Requests for Judicial Notice

Moving Defendants request the court take judicial notice of the following documents: (1) Assignment of Deed of Trust, dated October 17, 2012, and recorded in the Official Records of the Los Angeles County Recorder’s Office on October 23, 2012 as Instrument Number 20121603681; (2) Notice of Rescission of Declaration of Default and Demand for Sale and Notice of Default and Election to Sell, dated September 27, 2013, and recorded in the Official Records of the Los Angeles County Recorder’s Office on September 30, 2013 as Instrument Number 20131409829; (3) Short form Deed of Trust (Equity Maximizer Account), dated August 3, 2007, and recorded in the Official Records of the Los Angeles County Recorder’s Office on September 5, 2007 as Instrument Number 20072062451; and (4) Substitution of Trustee and Full Reconveyance, dated November 16, 2012, and recorded in the Official Records of the Los Angeles County Recorder’s Office on November 19, 2012, as Instrument Number 20121759628.

Moving Defendants’ unopposed requests for judicial notice are GRANTED pursuant to Evidence Code Section 452, subdivision (h).

Discussion

Meet and Confer

A party filing a demurrer “shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) Here, Defendants’ counsel attests to having sent Plaintiff an email informing him of Counsel’s intention to file a demurrer. (Figueroa Decl., ¶ 2.) Because the FAC does not provide a phone number where Counsel could contact Plaintiff, Counsel requested that Plaintiff contact her to discuss the FAC’s allegations, but Plaintiff did not call Counsel. (Figueroa Decl., ¶¶ 2-3.)

Although the parties did not meet and confer in person or telephonically, the court finds that Defendants’ counsel attempted to meet and confer in good faith. Because a determination that the meet and confer process was insufficient cannot be grounds to overrule or sustain a demurrer, the court will consider the merits of the motion. (See Code Civ. Proc. § 430.41, subd. (a)(4).)

Causes of Action Against BANA and ReconTrust

BANA and ReconTrust (collectively, the “HELOC Defendants”) argue that Plaintiff does not allege any actions taken by the HELOC Defendants related to the subject loan and/or the deed of trust, and that the complaint is therefore devoid of allegations as to why the HELOC Defendants are liable for any causes of action alleged in the complaint. (See FAC, generally.) The court is inclined to agree that Plaintiff’s blanket factual allegations referring to the collective conduct of all “defendants” alleged in the complaint, without specifically alleging the wrongful conduct of the HELOC Defendants, fails to allege that the HELOC Defendants committed any of the actions forming the basis of each of Plaintiff’s claims.

Plaintiff obtained a Home Equity Line of Credit (“HELOC”) from BANA in the amount of $100,000, secured against the subject property by a Short Form Deed of Trust recorded on September 5, 2007. (See RJN, Exh. 3.) The HELOC deed of trust beneficiary was BANA. (Id.) On November 19, 2012, a full reconveyance was recorded, reflecting that BANA’s interest in the HELOC deed of trust had been fully reconveyed. (FAC, Exh. C; RJN, Exh. 4.)

Plaintiff alleges in the FAC that ReconTrust is not a duly appointed trustee. (FAC, ¶ 17.) Plaintiff alleges that none of the Defendants can show proper receipt, possession, transfer, negotiations, assignment, and ownership of Plaintiff’s original Promissory Note and Deed of Trust, resulting in imperfect security interests and claims. (FAC, ¶ 23.) Plaintiff further alleges that the Notice of Default and the subsequent notice of trustee’s sale failed to credit Plaintiff on the moneys Plaintiff made towards the mortgage. (FAC, ¶ 25.)

It appears from the allegations and the documents attached to the complaint that HELOC Defendants are named in this action because of the Reconveyance recorded on the subject property on November 19, 2012, reconveying the HELOC deed of trust. (See FAC, ¶ 17, Exh. C; see also RJN, Exh. 4.) In opposition, Plaintiff argues that he has alleged facts necessary to demonstrate the liability of each defendant due to their causing “notice of default of Plaintiff[‘s] real property to be recorded and participated with others to permanently deprive Plaintiff of his . . . real property.” Plaintiff fails, however, to clarify why the HELOC Defendants specifically may be liable for their conduct in this action.

Furthermore, Defendants contend that even if Plaintiff were to attempt to plead a claim based on the servicing of the HELOC, he would be barred from doing so because the allegations in the FAC admits that the HELOC Defendants’ role regarding the subject property was ceased no later than November 2012, when the HELOC deed of trust was fully reconveyed. (FAC, Exh. C.) The statute of limitations for fraud is three years. (Civ. Code § 338, subd. (d).) The statute of limitations for the Home Owners Bill of Rights and violations of Civil Code Sections 2924.12, 2924.17, and 3294, subdivision (c)(3) is three years. (Civ. Code § 338, subd. (a).) The statute of limitations for a violation of Business & Professions Code section 17200, et seq. is four years. (Bus. & Prof. Code § 17208.) The statute of limitations for slander of title is three years. (Civ. Code § 338, subd. (g).) The statute of limitations for intentional infliction of emotional distress is two years. (Code Civ. Proc. § 335.1.) Therefore, on the face of the complaint, Plaintiff’s causes of action against the HELOC Defendants would be barred by the applicable statute of limitations.

Although not addressed by the parties in its moving and opposition papers, the court notes that Plaintiff alleges in the FAC that “any applicable statutes of limitations have been tolled by the Defendants’ continuing, knowing, and active concealment of the facts alleged,” and that “Plaintiff could not have discovered, did not discover, and was prevented from discovering, the wrongdoing complained of herein.” (FAC, ¶¶ 17-18, 21.) Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that his injury was caused by wrongdoing. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) “In order to rely on the discovery rule for delayed accrual of a cause of action, ‘[a] plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.’ [Citation.] In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to ‘show diligence’; ‘conclusory allegations will not withstand demurrer.’” [Citation.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808.) Here, Plaintiff has not alleged specific facts establishing (1) the time and manner of discovery, (2) the inability to have made earlier discovery, or (3) acts of reasonable diligence on the part of Plaintiff to discover the alleged wrongdoing within the statute of limitations period. To the extent that Plaintiff attempts to rely on the fraudulent concealment doctrine in tolling any applicable statute of limitations, fraudulent concealment also requires the same elements. (See Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460-61 (plaintiff must establish “fraudulent conduct by the defendant resulting in concealment of the operative facts, failure of the plaintiff to discover the operative facts that are the basis of its cause of action within the limitations period, and due diligence by the plaintiff under discovery of those facts.”).)

For the foregoing reasons, the demurrer is SUSTAINED as to Defendants BANA and ReconTrust. Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given. (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) As this is the first time that the issues have been challenged on demurrer, Plaintiff is granted 20 days leave to amend.

Causes of Action Against PHH, MERS, and US Bank

Defendants PHH, MERS, and US Bank (collectively, the “DOT Defendants”) contend that Plaintiff’s underlying theories of liability forming the basis for all of his claims fail as a matter of law.

First, the DOT Defendants argue that Plaintiff’s first theory that MERS did “not have standing or the legal authority to record or cause the purported Corporate Assignment of Deed of Trust” (FAC, ¶¶ 16, 20-27)to US Bank is unavailing because California courts have universally held that MERS, when it is a named beneficiary under a deed of trust executed by the borrower, has the power to assign its interest under a deed of trust. Indeed, in Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, the court stated that a trustor who agreed under the terms of the deed of trust that MERS, as the lender’s nominee, has the authority to exercise all of the rights and interests of the lender, including the right to foreclose, is precluded from maintaining a cause of action based on the allegation that MERS has no authority to exercise those rights. (Siliga, 219 Cal.App.4th at 83, disapproved on other grounds by Yvanova v. New Century Mortgage (2016) 62 Cal.4th 919.) The authority to exercise all of the rights and interest of the lender necessarily includes the authority to assign the deed of trust. (Id. at 84.) Like the plaintiff in Siliga, Plaintiff here fails to allege facts supporting its conclusion that MERS lacked authority to assign the deed of trust. (See id. at 84-85.)

Second, the DOT Defendants contend that Plaintiff’s alternative “holder of the note” theory is without merit because courts have rejected this theory. In the FAC, Plaintiff alleges that “Defendants, and each of them, are not the holder of Plaintiff’s Note in due course and had no standing to file or caused to be filed, the notice of default under Plaintiff’s note and Deed of trust.” (FAC, ¶ 22.) Further, Plaintiff alleges that Defendants “cannot show proper receipt, possession, transfer, negotiations, assignment and ownership of the Plaintiff’s original Promissory Note and Deed of Trust, resulting in imperfect security interests and claims.” (FAC, ¶ 27.) A notice of default may be recorded by a “trustee, mortgagee, or beneficiary, or any of their authorized agents.” (Civ. Code § 2924, subd. (a)(1).) Indeed, in the cases cited by Defendant, courts have held that the procedures to be followed in a nonjudicial foreclosure, governed by sections 2924 through 2924k, do not require that the note (including the original promissory note) be in the possession of the party initiating the foreclosure. (See Debrunner v. Deutsche Bank National Trust Co. (2012) 204 Cal.App.4th 433, 440; see also Kalnoki v. First Am. Trustee Serv. Solutions, LLC (2017) 8 Cal.App.5th 23, 42.) Accordingly, the court finds that the relevant allegations of the FAC do not establish a cause of action against the DOT Defendants.

In opposition, Plaintiff fails to cite relevant authorities supporting the theories upon which he bases his causes of action. Rather, Plaintiff reiterates that his claims are based on his contentions that Defendants have no right or legal standing to foreclose on the Subject Property. (Opp., 11:10-13.) Plaintiff contends that assigning of the deed of trust to US Bank is invalid and no force and effect, because MERS did not have standing or legal authority to record or cause the Corporate Assignment of Deed of Trust. (Opp., 7:10-14.) Plaintiff also asserts that the “holder of the note” allegations are sufficient to support the causes of action. However, Plaintiff fails to cite legal authority supporting these contentions, and the terms of the deed of trust, attached to the FAC, contradict Plaintiff’s assertions. (See FAC, Exh. A.)

The court finds that Plaintiff fails to state a cause of action to the extent that each cause of action relies upon the alleged misconduct of Defendants. However, the court will consider each cause of action alleged, and will rule on Defendant’s demurrer on that basis.

Fraud Causes of Action (First, Third, and Fourteenth Causes of Action)

The First, Third, and Fourteenth Causes of Action are for intentional misrepresentation, violation of Civil Code Section 3294, subdivision (c)(3), and constructive fraud. The elements of fraud are (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or “scienter”); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Fraud must be pleaded with specificity rather than with “general and conclusory allegations.” (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) This means that the allegations in an action for fraud need not be liberally construed, general pleading of the legal conclusion of fraud is insufficient, and every element of the cause of action for fraud must be alleged fully, factually, and specifically. (Willhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1331.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to who, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representation. (Lazar, supra, 12 Cal.4th at 645.)

First, for the reasons discussed above, Plaintiff’s fraud claim fails to the extent they are premised on Plaintiff’s challenges to the DOT Defendants’ authority to foreclose. (FAC, ¶¶ 34-37.)

Second, the court finds that Plaintiff has not pleaded specific facts sufficient to constitute a cause of action for fraud. As Defendants point out, Plaintiff has not pleaded specific facts establishing the who, what, when, where, or how with regard to the purported fraud by Defendants. (FAC, ¶¶ 30-37.)

Third, as discussed above, Plaintiff’s fraud claims appear to be barred by the statute of limitations on the face of the FAC. The statute of limitations for fraud is three years. (Civ. Code § 338, subd. (d).) A cause of action for fraud accrues upon the discover of the facts constituting the fraud or mistake. (Id.) Here, the Corporate Assignment of Deed of Trust was recorded in 2012. (FAC, ¶ 14, Exh. B.) The FAC is devoid of any allegations as to Plaintiff’s discovery or reasonable diligence in discovering the facts constituting fraud. (See Sagehorn v. Engle (2006) 141 Cal.App.4th 452, 460-61.)

Accordingly, the demurrer to the First, Third, and Fourteenth Causes of Action is SUSTAINED with 20 days’ leave to amend.

HBOR Causes of Action (Second, Fifth, and Fifteenth Causes of Action)

The Second Cause of Action for violations of Civil Code Sections 2924.12 and 2924.17(a)(b) and Fifteenth Causes of Action for treble damages are based on Plaintiff’s allegations that MERS lacked authority to assign the deed of trust and Plaintiff’s “holder of the note” theory, discussed previously. (FAC, ¶¶ 38-44, 165-170.)

As an initial matter, Plaintiff’s Fifteenth Cause of Action for treble damages is a remedy for treble damages for violations under Civil Code section 2924.12. (See Civ. Code § 2924,12.) Treble damages do not create an independent cause of action, and the Fifteenth Cause of Action is therefore duplicative of Plaintiff’s Second Cause of Action.

The demurrer to the Fifteenth Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND.

Additionally, as discussed previously, Plaintiff’s contention that the DOT Defendants did not have ownership interest in the loan and deed of trust has been rejected by California courts.

Furthermore, Defendants contend that Civil Code Section 2924.17 cannot apply to the assignment of deed of trust. Section 2924.17 was enacted as part of the Homeowner’s Bill of Rights, and does not apply to retroactively to instruments recorded before 2013. (See Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 818 (Plaintiff failed to show that Homeowner’s Bill of Rights did not apply retroactively.) Here, the Assignment of Deed of Trust was recorded on October 17, 2012. (FAC, ¶ 14, Exh. B.) Plaintiff does not cite any legal authority to rebut Defendants’ contention in his opposition.

Accordingly, the demurrer to the Second Cause of Action is SUSTAINED with 20 days’ leave to amend.

The Fifth Cause of Action is for Violations of the Homeowners Bill of Rights. Specifically, Plaintiff alleges that the DOT Defendants failed to perform proper notification requirements prior to recording the Notice of Default. (FAC ¶¶ 64-71.) Civil Code section 2923.55 requires a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent to contact a borrower in person or by telephone to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure 30 days prior to the recording of a notice of default. (Civ. Code § 2923.55, subd. (b)(1)-(2).) Civil Code Section 2923.5 prohibits a mortgagee, trustee, beneficiary, or authorized agent from filing a notice of default pursuant to section 2924 “until thirty days after contact is made [with the borrower], or 30 days after satisfying the due diligence requirements.” (Civ. Code § 2923.5, subds. (a)(1)-(b).)

Defendants contend that Plaintiff’s cause of action fails because the HBOR does not apply in this case. Civil Code section 2924.15 provides that Section 2923.5 applies only “to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units.” (Civ. Code § 2924.15.) “Owner occupied” means the property is the personal residence of the borrower and is security for a loan made for personal, family or household purposes. (Id.) Plaintiff has not alleged that the Subject Property was owner-occupied or that it is less than four dwelling units.

Accordingly, the demurrer to the Fifth Cause of Action is SUSTAINED with 20 days’ leave to amend.

Revenue and Taxation Code Violations (Fourth Cause of Action)

Plaintiff’s Fourth Cause of Action against PHH is for cancellation of voidable contract under Revenue and Taxation Code Sections 23304.1 and 23305A, and California Corporations Code Section 191(C)(7).

Defendants contend that Plaintiff fails to allege a violation of Revenue and Taxation Code Section 23304.1 because Plaintiff does not allege sufficient facts establishing that PHH is or was a suspended corporation. Nor does Plaintiff allege he was a party to transactions assigning the deed of trust.

“If a foreign taxpayer that neither is qualified to do business nor has an account number from the Franchise Tax Board, fails to file a tax return required under this part, any contract made in this state by that taxpayer during the applicable period specified in subdivision (c) shall, subject to Section 23304.5, be voidable at the request of any party to the contract other than the taxpayer.” (Rev. & Tax Code § 23304.1.)

Plaintiff alleges that at all relevant times to the allegations in the FAC, PHH was a foreign corporation not registered with the Secretary of state, and that PHH failed to comply with the California franchise tax laws. (FAC, ¶¶ 55-57,59-60.) Nevertheless, the court notes that Plaintiff alleges that PHH contracts with Ocwen Loan Servicing, LLC, Defendants, or entities to record foreclosing instruments in return for annual fees. (FAC, ¶ 55.) The court finds that Plaintiff has not alleged that he was a party to any transaction assigning the deed of trust to properly allege under Revenue and Taxation Code Section 23304.1.

Revenue and Taxation Code Section 23305 states that “[a]ny taxpayer which has suffered the suspension or forfeiture provided for in Section 23301 or 23301.5 may be relieved therefrom upon making application therefor in writing to the Franchise Tax Board and upon the filing of all tax returns required under this part, and the payment of the tax, additions to tax, penalties, interest, and any other amounts for nonpayment of which the suspension or forfeiture occurred, together with all other taxes, additions to tax, penalties, interest, and any other amounts due under this part, and upon the issuance by the Franchise Tax Board of a certificate or reviver. . . .” Plaintiff does not allege he was a suspended corporation, or that he applied for such relief with the Franchise Tax Board.

Corporations Code Section 191, subdivision (c)(7) states that “a foreign corporation shall not be considered to be transacting intrastate business within the meaning of subdivision (a) solely by reason of” its “[c]reating evidences of debt or mortgages, liens or security interest on real or personal property.” Plaintiff does not allege facts as to how Defendant PHH violated this statute or how this statute provides Plaintiff with any remedy requested.

Accordingly, the demurrer to the Fourth Cause of Action is SUSTAINED with leave to amend.

Cancellation of Instruments (Sixth and Ninth Causes of Action)

The Sixth and Ninth Causes of Action against the DOT Defendants request for a cancellation of the Assignment of Deed of Trust, the 2012 Substitution of Trustee, the 2013 Substitution of Trustee, the 2018 Substitution of Trustee, the Notice of Default, and the Notice of Trustee’s Sale.

First, as discussed previously, Defendants demur to the Sixth and Ninth Causes of Action on the grounds Defendants allegedly having no right or legal standing to foreclose on the Subject Property and Plaintiff’s “holder of the note” theory are without legal support. Plaintiff, in opposition, reiterates its allegations in the complaint, but provides no legal support for such theories.

Additionally, Defendants contend that Plaintiff’s requests to cancel the Assignment of Deed of Trust and Substitution of Trustee are time-barred. Actions for cancellation of an instrument are subject to the four-year statute of limitations period in Code of Civil Procedure Section 343. (Moss v. Moss (1942) 20 Cal.2d 640, 645.) As discussed previously, Plaintiff fails to allege sufficient facts to plead around the statute of limitations defense.

Accordingly, the demurrer to the Sixth and Ninth Causes of Action with leave to amend.

Quiet Title (Seventh Cause of Action)

The elements required to state a cause of action for quiet title are: (1) description of the property; (2) plaintiff’s title or interest and the basis; (3) defendant’s asserting adverse claim or antagonistic property interest; (4) date as of which the determination is sought; and (5) prayer for determination of title. (Code Civ. Proc. § 716.020.) The complaint must be verified. (Id.)

First, as discussed previously, California courts have held that Plaintiff’s theories of liability based upon the DOT Defendants having no right or legal standing to foreclose on the Subject Property and Plaintiff’s “holder of the note” theory are insufficient to constitute a cause of action. Plaintiff, in opposition, reiterates his allegations in the FAC, but provides no legal support for such theories.

Second, Plaintiff’s claim procedurally fails because the FAC is not verified. (Code Civ. Proc. § 761.020.)

Third, Plaintiff fails to allege that he has discharged his debt. (See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86 (upholding trial court’s sustaining a demurrer to plaintiff’s quiet title action on the grounds that a borrower may not quiet title against secured lender without first paying outstanding debt on which mortgage or deed of trust is based).)

Accordingly, the demurrer to the Seventh Cause of Action is sustained with leave to amend.

UCL (Eighth Cause of Action)

Unfair competition is any unlawful, unfair, or fraudulent business practice or act and unfair, deceptive, untrue, or misleading advertising. (Bus. & Prof. Code § 17200.) “An unlawful business practice or act within the meaning of the UCL is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law.” (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 351 (emphasis in original)(internal quotations omitted).)

First, the court notes that Plaintiff has failed to identify any statutory, regulatory, or decisional law that Defendants violated to support a UCL cause of action. A plaintiff needs to identify statutory, regulatory, or decisional law that the defendant has violated. (Id. at 352.) Unfair competition “borrows” violations of other laws and authorizes a separate action pursuant to unfair competition. (See Farmers Ins. Exch. v. Superior Court (1992) 2 Cal.4th 377, 383.) Unfair conduct in unfair competition actions must be violative of public policy and “tethered to specific constitutional, statutory, or regulatory provisions.” (Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 940.)

Second, Plaintiff alleges in conclusory fashion a wide variety of conduct by the Defendants, including: “Improperly characterizing Plaintiff’s accounts as being in default or delinquent status to generate unwarranted fees; Misapplying of failing to apply Plaintiff’s payments; Failing to provide Plaintiff with adequate monthly statement information to customers regarding the status of their accounts, payments owed, and/or basis for fees assessed; Instituting improper or premature foreclosure proceedings to generate unwarranted fees; Seeking to collect, and collecting, various improper fees, costs and charges, that are not legally due under the mortgage contract or California law, or that are in excess of amounts legally due; Mishandling Plaintiff’s mortgage payments and failing to timely or properly credit payments received, resulting in late charges, delinquencies or default; Failing to disclose the fees, costs and charges allowable under the mortgage contract; Ignoring grace periods; Executing and recording false and misleading documents; and acting as beneficiaries and trustees without the legal authority to do so.” (FAC, ¶ 99.) As a statutory cause of action, allegations of unfair business practices must state with reasonable particularity the facts supporting elements of the violation. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.) The court finds that Plaintiff has not alleges facts supporting the elements of a UCL claim with sufficient particularity.

Accordingly, the demurrer to the Eight Cause of Action is sustained with leave to amend.

Slander of Title (Tenth Cause of Action)

The elements of a cause of action for slander of title are (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. (Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664.)

As discussed previously, California courts have held that Plaintiff’s theories of liability based upon the DOT Defendants having no right or legal standing to foreclose on the Subject Property and Plaintiff’s “holder of the note” theory are insufficient to constitute a cause of action. Accordingly, Plaintiff’s claim, which are premised on such theories, are insufficient to constitute a cause of action.

Furthermore, Plaintiff fails to allege sufficient allegations to plead around the applicable three-year statute of limitations.

Additionally, Plaintiff has not alleged sufficient facts to “plead around” the statute of limitations defense.

As the court is granting plaintiff leave to amend to clarify his allegations against the Defendants, the court’s ruling moots the remaining arguments raised by Defendants as to this cause of action in its demurrer.

Accordingly, the demurrer to the Tenth Cause of Action is sustained.

Intentional Infliction of Emotional Distress (Twelfth Cause of Action)

The elements of a cause of action for intentional infliction of emotional distress (“IIED”) are (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160.) “In order to avoid a demurrer, the plaintiff must allege with ‘great [] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]” (Id. at 160-61.)

Here, Plaintiff alleges that he suffered emotional distress resulting from the DOT Defendants’ attempts to effectuate a foreclosure without right or title to the subject property. (FAC, ¶¶ 134-138.)

As discussed previously, California courts have held that Plaintiff’s theories of liability based upon the DOT Defendants having no right or legal standing to foreclose on the Subject Property and Plaintiff’s “holder of the note” theory are insufficient to constitute a cause of action. Accordingly, Plaintiff’s claim, which are premised on such theories, are insufficient to constitute a cause of action.

Furthermore, the court finds that Plaintiff has not sufficiently alleged conduct that “exceed all bounds of that usually tolerated in a civilized community.” (Yau, supra, 229 at 160-161.) “In the context of debt collection, courts have recognized that the attempted collection of a debt by its very nature often causes the debtor to suffer emotional distress.” (Ross v. Creel Printing & Publishing Co. (2002) 100 Cal.App.4th 736, 745, citing Bundren v. Superior Court (1983) 145 Cal.App.3d 784, 789.) Such conduct is only “outrageous” if it goes beyond all reasonable bounds of decency. (Ross, 100 Cal.App.4th at 745.) The court finds that Plaintiff’s allegation of Defendants “fraudulently attempting to foreclosure or claiming the right to foreclose on a property in which they have no right, title, or interest” (FAC, ¶ 137) is insufficient to constitute outrageous conduct going beyond all reasonable bounds of decency to constitute a cause of action for IIED.

Accordingly, the demurrer is sustained with leave to amend as to the Twelfth Cause of Action.

Declaratory and Injunctive Relief (Eleventh and Thirteenth Causes of Action)

Defendants demur to the Eleventh Cause of Action for declaratory relief and Thirteenth Cause of Action for injunctive relief on the ground that both claims are not stand alone causes of action. Defendants’ argument is well taken as to the Thirteenth Cause of Action for injunctive relief. “Injunctive relief is a remedy, not a cause of action.” (Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187, quoting City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) However, the cases cited by Defendant do not stand for the proposition that plaintiffs may not pursue a cause of action for declaratory relief. (See Batt v. City and County of San Francisco (2007) 155 Cal.App.4th 65, 82 (holding that a constructive trust is not an independent cause of action); see also Glue-Fold, Inc. v. Slautterback Corp. (2000) 82 Cal.App.4th 1018, 1023, n.3 (stating a constructive trust and an accounting are not independent causes of action).)

To state a cause of action for declaratory relief, the plaintiff must plead the following elements: (1) person interested under a written instrument or a contract; or (2) a declaration of his or her rights or duties (a) with respect to another or (b) in respect to, in over upon property; and (3) an actual controversy. (Code Civ. Proc. § 1060; Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 605-06; Bennet v. Hibernia Bank (1956) 47 Cal.2d 540, 549.) “For declaratory relief, the party must show it has either suffered or is about to suffer an injury of ‘sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.” (Stonehouse Homes v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 542.)

Here, in light of the court’s sustaining of Defendants’ demurrer as to the other causes of action, Plaintiff’s declaratory relief also fails.

Accordingly, the demurrer to the Thirteenth Cause of Action is SUSTAINED without leave to amend. The demurrer to the Eleventh Cause of Action is SUSTAINED with leave to amend.

CONCLUSION

For the foregoing reasons, Defendants’ demurrer to the FAC is SUSTAINED with 20 days’ leave to amend as to the First through Twelfth Causes of Action, and Fourteenth Cause of Action. The demurrer to the Thirteenth and Fifteenth Cause of Action is SUSTAINED WITHOUT LEAVE TO AMEND.