Case Number: KC066740 Hearing Date: June 23, 2014 Dept: J

Re: Ella M. Anderson, et al. v. U.S. Bank National Association, etc., et al. (KC066740)

(1) DEMURRER TO COMPLAINT; (2) MOTION TO STRIKE DEMURRER TO PLAINTIFFS’ COMPLAINT

Moving Parties: (1) Defendant U.S. Bank National Association; (2) Plaintiffs Ella M. Anderson and Willie Anderson

Respondents: (1) No timely opposition filed; (2) Defendant U.S. Bank National Association

POS: (1) Moving OK; (2) Moving served on insufficient notice per CCP § 1005(b); Opposing served and filed just 7 court days prior to the hearing due to the lateness of the moving papers

Plaintiffs’ Complaint, filed 3/20/14, asserts causes of action for:

1. Quiet Title
2. Wrongful Foreclosure

(1) DEMURRER TO COMPLAINT:

On 3/20/14, Plaintiffs filed a Complaint against Defendants alleging (1) Quiet Title; and (2) Wrongful Foreclosure. The first seven pages consist of unnumbered paragraphs, many of them mere recitations of law. Plaintiffs allege that they own real property at 2201 Logan Street, Pomona, CA 91767, which is encumbered by a deed of trust (“DOT”) securing a promissory note (“Note”) in favor of Encore Credit (¶3); that the DOT was assigned to other Defendants, who are not in possession of the Note (¶10); and that therefore Defendants violated Civil Code 2932.5.

Defendant U.S. Bank, N.A. demurrers to both causes of action on grounds that it fails to state a cause of action pursuant to CCP Section 430.10(e).

REQUEST FOR JUDICIAL NOTICE:

Defendant requests the court take judicial notice of the documents recorded with the Los Angeles County Recorder’s Office attached to Defendant’s Request for Judicial Notice (“RJN”), Exhs. 1-5. (Evid. Code § 452(c); Lockhart v. MVM, Inc. (2009) 175 Cal.App.4th 1452, 1460.) Plaintiffs have been served with copies of these documents, and have failed to oppose it. Thus, Defendant’s RJN is granted.

Plaintiffs have also filed an RJN as to: (1) a Property Securitization Analysis Report; (2) a U.S. Bank Brochure entitled “Role of the Corporate Trustee”; and (3) a Report from American Bankers Association entitled “The Trustee’s Role in Asset-Backed Securities.” Evidence Code §453(b) requires that the party requesting judicial notice “furnish the court with sufficient information to enable it to take judicial notice of the matter.” Here, Defendant objects on two grounds: (1) the RJN fails to indicate which subdivision of section 452 is the basis for the RJN; and (2) no facts or arguments are presented showing how the proposed documents qualify under any of the subdivisions. Plaintiffs have failed to file an Opposition to the Demurrer, and the RJN alone is insufficient to constitute an opposing brief. The objections are sustained, and Plaintiffs’ RJN is denied.

FIRST CAUSE OF ACTION FOR QUIET TITLE:

CCP § 761.020 sets forth the requirements for a claim of quiet title. The plaintiff must allege: (1) a description of the property; (2) plaintiff’s title or interest and the basis; (3) defendant’s assertion of an adverse claim or antagonistic property interest; (4) the date as of which the determination is sought; and (5) a prayer for determination of title. Further, the pleading must be verified. Lewis v. Sup. Ct. (1994) 30 Cal. App. 4th 1850, 1866. Here, Defendant holds a secured interest in the property, and Plaintiffs fail to allege tender. There are no facts alleged to show that the DOT is invalid due to its assignment. The demurrer is sustained.

SECOND CAUSE OF ACTION FOR WRONGFUL FORECLOSURE:

Foreclosure sales are a means of enforcing a claim secured by a deed of trust or mortgage. Non-judicial foreclosures are governed by Civil Code §§ 2924 through 2924k. Garretson v. Post (2007) 156 Cal. App. 4th 1508, 1515-1516. In this case, Plaintiffs have not alleged that a foreclosure sale has occurred, so this claim fails. Even if Plaintiffs allege that a foreclosure sale took place, their claim would fail because they must allege tender of the amount of the secured indebtedness as a prerequisite to challenging a trustee’s sale. Abdallah v. United Sav. Bank, 43 Cal.App.4th 1101, 1109 (1996). Further, Civil Code § 2932.5 does not apply to trust deeds. Calvo v. HSBC Bank USA, N.A. 199 Cal.App.4th 118, 122 (2011). The demurrer is sustained.

The court will hear from Plaintiffs as to whether leave to amend is requested, and as to which cause(s) of action, and will require an offer of proof as to what additional facts can be alleged if so.

(2) MOTION TO STRIKE DEMURRER TO PLAINTIFFS’ COMPLAINT:

Plaintiffs Ella M. Anderson and Willie Anderson move to strike the Demurrer on grounds that it was set for hearing more than 35 days following the filing of the Demurrer on 4/21/14, which is a violation of CRC Rule 3.1320(c). That rule states in relevant part, “Demurrers must be set for hearing not more than 35 days following the filing of the demurrer or on the first date available to the court thereafter.” Here, Defendant contacted the court and obtained the first available date for hearing on the demurrer (Declaration of Sean B. Cooney, ¶2). The demurrer was set for the date given by the court, 6/23/14. The motion to strike is therefore denied.