2013-00673776
TENTAIVE RULING:
Plaintiff’s and Defendants’ Request for Judicial Notice are GRANTED.
The Demurrer to the Second Amended Complaint on behalf of Defendants Northstar Mortgage LLC, U.S. Bank, N.A. and Reconstrust Co. is SUSTAINED without leave to amend as to the “First to Ninth Causes of Action. On the Tenth Cause of Action for Accounting, the Demurrer is OVERRULED.
The Joinder of Defendants Bank of America and Reconstrust Co. is GRANTED.
The Demurrer to the First Cause of Action for Declaratory Relief is SUSTAINED without leave to amend.
In Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, the court determined the borrower did not state “a valid claim for declaratory relief because she cannot show an actual controversy exists between herself and Defendants.” (Page 513). “As an unrelated third party to the alleged securitization, and any other subsequent transfers of the beneficial interest under the promissory note, Jenkins lacks standing to enforce any agreements, including the investment trust’s pooling and servicing agreement, relating to such transactions.”
Jenkins has been followed in Siliga v. Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 82.
“California courts have refused to allow trustors to delay the nonjudicial foreclosure process by pursuing preemptive judicial actions challenging the authority of a foreclosing ‘beneficiary’ or beneficiary’s ‘agent.’”
The Demurrer to the Second Cause of Action for Deceit is SUSTAINED without leave to amend.
In California, fraud must be pled specifically; general and conclusory allegations do not suffice. . . .A plaintiff’s burden in asserting a fraud claim against a corporate employer is even greater. In such a case, the plaintiff must “allege 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.” Lazar v. Superior Court (1996) 12 Cal.4th 631, 645. Plaintiff failed to state the cause of action with specifically.
The Demurrer to the Third Cause of Action for Constructive Fraud is SUSTAINED without leave to amend. Plaintiff abandoned this cause of action.
The Demurrer to the Fourth Cause of Action for Tortious Interference is SUSTAINED without leave to amend.
“In order to prove intentional or negligent interference with prospective economic advantage, plaintiffs must show defendants engaged in conduct that was wrongful by some legal measure other than the fact of the interference itself.” Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1060. Plaintiff has failed to show that Defendants engaged in wrongful conduct.
The Demurrer to the Fifth Cause of Action for Slander of Title is SUSTAINED without leave to amend.
Civil Code “section 2924 deems the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures, to be privileged communications under the qualified common-interest privilege of section 47, subdivision (c)(1).” Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333-334.
The Demurrer to the Sixth Cause of Action for Negligent Infliction of Emotional Distress is SUSTAINED without leave to amend.
To state a claim for negligent infliction of emotional distress, Plaintiffs must allege the elements for negligence. “[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096. Plaintiff cannot establish the duty of care for negligence.
The Demurrer to the Seventh Cause of Action for Violation of Rosenthal Act is SUSTAINED without leave to amend.
“In order to establish a claim under the FDCPA against Recon, the facts as alleged must show that Recon was a “debt collector” as defined by the Act, that Recon’s challenged conduct constituted ‘debt collection,’ and that the debt collection actions violated a provision of the Act.” Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1262. “[G]iving notice of a foreclosure sale to a consumer as required by the Civil Code does not constitute debt collection activity under the FDCPA.” 211 Cal.App.4th at 1264 (Footnote omitted).
The Demurrer to the Eighth Cause of Action for Violation of Business & Professions Code 17200 is SUSTAINED without leave to amend.
“A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation.” Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.
Plaintiff failed to allege the cause of action with specificity.
The Demurrer to the Ninth Cause of Action for Quasi-Contract is SUSTAINED without leave to amend. “[T]he elements for a claim of unjust enrichment [are] receipt of a benefit and unjust retention of the benefit at the expense of another.” Elder v. Pacific Bell Telephone Co. (2012) 205 Cal.App.4th 841, 857. Plaintiff failed to allege these elements.
The Demurrer to the Tenth Cause of Action for Accounting is OVERRULED. “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 179.
Defendants contend that there must be a fiduciary relationship to state an accounting cause of action. This contention is incorrect. “A fiduciary relationship between the parties is not required to state a cause of action for an accounting. ‘All that is required is that some relationship exists that requires an accounting.’” 5 Witkin California Procedure, Pleadings § 820.
Plaintiff alleged that he is due an amount that exceeds $120,000.00. On a Demurrer, the court is required to accept it as true on a Demurrer.