Case Number: BC511792 Hearing Date: May 08, 2014 Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Thursday, May 8, 2014
Calendar No: 8
Case Name: Navarro v. FCI Lender Services Inc., et al.
Case No.: BC511792
Motion: (1) Demurrer
(2) Motion to Depose Defendant William Patterson in Jail
Moving Party: (1) Defendants Siringoringo Law Firm and Stephen Siringoringo
(2)-(3) Plaintiff Ruben Navarro
Responding Party: (1) Plaintiff Ruben Navarro
(2) No oppositions filed
Notice: OK

Tentative Ruling: (1) Demurrer is overruled. Defendants Siringoringo Law Firm and Stephen Siringoringo to answer within 10 days.

(2) Motion to depose Defendant William Patterson in jail is granted. The Court will discuss the details of the deposition at the hearing.
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Background –
On 6/11/13, Plaintiff Ruben Navarro filed this action against Defendants FCI Lender Services, Inc.; Strategic Acquisitions, Inc.; Pro Value Properties, Inc.; Alex Juarez; Siringoringo Law Firm; and William Patterson arising out of the non-judicial foreclosure sale of real property. The Complaint asserted causes of action for (1) declaratory relief, (2) quiet title, (3) civil conspiracy, (4) civil RICO, (5) set aside illegal trustee sale, (6) negligence per se, (7) breach of the implied covenant of good faith and fair dealing, (8) violation of Bus. & Prof. Code § 17200, (9) wrongful foreclosure, (10) slander of title, (11) fraud by concealment, and (12) punitive damages.

On 10/4/13, the Court sustained demurrers filed by Strategic Acquisitions, Pro Value, and FCI to the Complaint with leave to amend. On 11/5/13, Plaintiff filed a First Amended Complaint which added BDR, Inc., Peter Baer, Stephen Siringoringo, Federal Housing Bureau, Shannon Richee, and Kirk Beard as defendants. The FAC asserts causes of action for (1) fraud and intentional deceit, (2) fraud by false promise, (3) fraud by concealment, (4) constructive fraud, (5) breach of fiduciary duty, (6) breach of contract, (7) breach of implied covenant of good faith and fair dealing, (8) conversion, (9) replevin, (10) violation of Civil Code § 2945 et seq., (11) violation of Bus. & Prof. Code § 17200 et seq., and (12) negligence and negligence per se. On 1/6/14, Plaintiff voluntarily dismissed Shannon Richee without prejudice.

On 1/28/14, the Court overruled demurrers by Strategic Acquisitions, Pro Value, Baer, and BDR (collectively “Baer Defendants”) and Juarez. On 3/6/14, default was entered against Patterson. Trial is set for 8/25/14; FSC for 8/14/14.

Demurrer –
The Siringoringo Law Firm and Stephen Siringoringo (collectively “Siringoringo Defendants”) demur to the 3rd and 12th COAs of the FAC.

1. Request for Judicial Notice
Plaintiff requests judicial notice of a disciplinary matter and a news article pertaining to the Siringoringo Defendants. The RJN is denied. These documents are not offered to respond to the demurrer but are instead offered to demonstrate the character of the Siringoringo Defendants which is irrelevant to the demurrer.

2. Merits
Plaintiff alleges that he sought the Siringoringo Defendants’ services to obtain a loan modification whereupon Plaintiff spoke to Juarez, an employee of the Siringoringo Defendants, who informed Plaintiff that an attorney, Patterson, could help at less cost than the Siringoringo Defendants. FAC ¶ 29. The Siringoringo Defendants argue that this is insufficient to allege facts with specificity as to the 3rd COA for fraudulent concealment and to allege facts supporting causation as to the 12th COA for negligence and negligence per se. The Court disagrees.

Plaintiff alleges that after contacting the Siringoringo Defendants, an employee of the Siringoringo Defendants referred Plaintiff to a purported attorney Patterson (FAC ¶ 28) who did not make any efforts to obtain a loan modification and caused Plaintiff to stop making loan payments and execute several deeds which resulted in Plaintiff’s home being sold (id. ¶¶ 30-38). Plaintiff alleges a conspiracy against the Siringoringo Defendants along with the other defendants. Id. ¶¶ 68-73.

The is sufficient to allege conspiracy liability against the Siringoringo Defendants (Arei II Cases (2013) 216 Cal.App.4th 1004, 1023) or vicarious liability based on respondeat superior for the conduct of Juarez (Inter Mountain Mortg., Inc. v. Sulimen (2000) 78 Cal.App.4th 1434, 1440). At the pleading stage, this supports the elements of fraudulent concealment (see Hahn v. Mirda (2007) 147 Cal.App.4th 740, 748) and causation (see Randi W. v. Muroc Joint Unified School Dist. (1997) 14 Cal.4th 1066, 1077-78). The demurrer is overruled.

Motion to Depose Defendant William Patterson in Jail –
Plaintiff seeks to depose Patterson pursuant to CCP § 1995 submitting that Patterson is currently in jail (see Li Decl. ¶¶ 2-5, Exs. A-C). “Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality.” CCP § 1996. Plaintiff’s motion complies with these procedures. See Li Decl. ¶¶ 7-8. No oppositions were filed. Therefore, the motion is granted. The Court will discuss the details of the deposition at the hearing.