Case Number: BC529583 Hearing Date: May 12, 2014 Dept: 40

CHRISTOPHER OLIVER v. BANK OF AMERICA, et.al.
DEMURRER TO THE COMPLAINT (x2)
MOTION TO STRIKE

Case No: BC529583
Date: May 12, 2014

Tentative Ruling: The demurrer of Bank of America, N.A. is SUSTAINED with 10 days leave to amend. The demurrer of Miles, Bauer, Bergstrom & Winters, LLP is SUSTAINED with 10 days leave to amend. The motion to strike is MOOT.

BANK OF AMERICA, N.A.’S DEMURRER TO THE COMPLAINT

Challenge to Complaint in its Entirety
BOA challenges the complaint, in its entirety, on grounds (1) Plaintiff has conceded that he executed the grant deed and (2) Plaintiff failed to name Countrywide in the earlier quiet title action. The Court finds that it is not clear at this point that the factual allegations in the verified quiet title complaint would bar this action as the allegation is not key to the claims asserted in Plaintiff’s complaint. As to the second argument, Plaintiff argues that on February 7, 2008, he filed a lis pendens, putting Defendant on notice that the Court had already adjudicated the issue of the validity of the Diaz grant deed, on which the Countrywide loan was based. Countrywide/BOA asserts that its interest was of record before the lis pendens. The Court finds that this is not an issue resolvable on demurrer.

First Cause of Action – Malicious Prosecution
Plaintiff’s malicious prosecution claim is premised an eviction action filed by BOA/Countrywide on December 6, 2011. (¶23.) Plaintiff alleges this proceeding was resolved in his favor, having obtained a Writ of Possession on June 12, 2012. (¶25.) Plaintiff alleges Defendants acted with malice because on or about May 2009 and again in October 2011, they were put on notice that Plaintiff had successfully adjudicated the quiet title action and was not a party to the loan obtained by Diaz. (¶¶26-27.)

To plead a cause of action for malicious prosecution, one must allege (1) an action commenced by or at the direction of defendant; (2) pursued to a legal termination favorable to the plaintiff; (3) brought without probable cause; and (4) initiated with malice. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018, 1031.) BOA challenges this cause of action on three grounds – (1) Plaintiff fails to plead that the prior action was concluded in his favor; (2) Plaintiff fails to plead sufficient facts establishing lack of probable cause; and (3) Plaintiff fails to plead malice.

Plaintiff’s allegations do not actually indicate that he succeeded in the second eviction action. More clarity is necessary. After the second unlawful detainer, Plaintiff alleges he was evicted from his home and did not regain possession until he filed a quiet title action in 2012. (¶21.) Thus, based on Plaintiff’s allegations, the second unlawful detainer action (the first initiated against him) was not adjudicated in his favor. (Webb v. Youmans (1967) 248 Cal. App. 2d 851 (“One of the essential elements of a cause of action for malicious prosecution is that the complaint set forth allegations of ultimate fact necessary to a finding that the offending action was terminated favorably to defendants.”).)

Further, Plaintiff has not alleged a lack of probable cause because the Countrywide was well within the purview of the first DOT executed by Diaz to initiate a non-judicial foreclosure. “Probable cause is a low threshold designed to protect a litigant’s right to assert arguable legal claims even if the claims are extremely unlikely to succeed.” (Plumley v. Mockett (2008) 164 Cal.App.4th 1031, 1047.) Assuming Countrywide was not on notice of the earlier quiet title proceeding, this argument may be well taken. As noted in the demurrer, BOA was not a party to the initial quiet title action filed by Plaintiff and that action was likely not binding on Countrywide as its lien was of record before the filing of the lis pendens in Plaintiff’s quiet title action. Further, Plaintiff has not adequately alleged malice.

Second Cause of Action – Abuse of Process
To plead a cause of action for abuse of process, one must allege (1) an ulterior purpose in commencing a process; and (2) a willful act in an unauthorized use of the process. (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057.) Here, Plaintiff alleges nothing more than the filing of the eviction actions. This is insufficient to support a claim for abuse of process. (See also JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 (“the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”).)

Third Cause of Action – Slander of Title
Plaintiff alleges Countrywide/BOA is liable for slander of title by “intentionally engaging in the purported transfer of title to the property, by changing records with the LA County Assessor’s Office, and thereafter evicting Plaintiff. (¶43.) To plead a cause of action for slander of title, one must allege (1) publication; (2) without privilege or justification; (3) which is false; and (4) causes direct and immediate pecuniary loss. (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.) Here, BOA argues that to the extent Plaintiff is alleging slander of title premised on the filing of the Notice of Default and Notice of Trustee’s Sale, these acts are privileged. (See CCP §2924(d)(1).) The allegations are somewhat unclear as Plaintiff refers generally to “changing records” and seeking to record documents. Presumably, the NOD and NOTS are what Plaintiff is referring to. Further, Plaintiff has not alleged that the documents published were false, as it is alleged Diaz obtained a loan from Countrywide and Countrywide was not a party to the quiet title action.

The Court should sustain the demurrer with leave to amend.

Fourth Cause of Action – Conversion
To plead a cause of action for conversion, one must allege (1) the plaintiff’s ownership or right to possession of personal property; (2) defendant’s disposition of the property inconsistent with plaintiff’s rights; and (3) resulting damages. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) It is well taken that insofar as Plaintiff alleges conversion is based on Bank of America’s alleged violation of the quiet title order, Plaintiff’s pleadings do not set forth sufficient facts to show Bank of America was on notice of or bound by the quiet title.

Fifth Cause of Action – Intentional Interference with Prospective Economic Advantage
To plead a cause of action for intentional interference with prospective economic advantage, one must allege (1) an economic relationship existing between the plaintiff and third party; (2) probability of future economic benefit to the plaintiff; (3) defendant’s knowledge of the relationship; (4) defendant’s intentional acts designed to disrupt the relationship; (5) defendant engaged in an independently wrongful act in disrupting the relationship beyond just inducing disruption of economic advantage; (6) actual disruption of the relationship; and (7) economic harm to the plaintiff caused by the acts. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290.) Plaintiff’s allegations are vague and make it unclear on what basis Plaintiff hopes to hold Countrywide liable. Further, regarding the alleged wrongful conduct, Plaintiff must allege an independently wrongful act. (SC Manufactured Homes, Inc. v. Liebert (2008) 162 Cal.App.4th 68, 92 (“‘an act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.’”).) Plaintiff has not alleged such conduct.

Sixth Cause of Action – Intentional Infliction of Emotional Distress
Plaintiff has failed to plead outrageous conduct. (see Trerice v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 (“court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”).) Plaintiff’s allegations are premised on the assertion that Countrywide sought to enforce its right under the Diaz DOT. (See Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 67 (claim for infliction of emotional distress does not lie where a defendant pursued its own economic interests and properly asserted its rights).)

Seventh Cause of Action – Negligence
Plaintiff has failed to plead the existence of/basis for a duty legal duty owed him by Bank of America. “In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.)

For the foregoing reasons, the demurrer is sustained with 10 days leave to amend.

MILES, BAUER, BERGSTROM & WINTERS, LLP, et.al.’s DEMURRER/MOTION TO STRIKE
Statute of Limitations
Defendants first challenge the complaint, in its entirety, on grounds it is barred by the statute of limitations. Defendants, who are alleged to have been Countrywide/Bank of America’s attorneys during the unlawful detainer proceedings, rely on CCP §340.6 to argue that a one year statute of limitations applies. However, this section provides a statute of limitations for attorney malpractice. This is not the basis for Plaintiff’s claim and thus, this statute of limitations does not apply.

First Cause of Action – Malicious Prosecution
To plead a cause of action for malicious prosecution, one must allege (1) an action commenced by or at the direction of defendant; (2) pursued to a legal termination favorable to the plaintiff; (3) brought without probable cause; and (4) initiated with malice. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018, 1031.)

Plaintiff’s allegations do not actually indicate that he succeeded in either second eviction action. Plaintiff alleges that the 2008 unlawful detainer action initiated by Countrywide was filed against Diaz only and concluded with a result in Countrywide’s favor. (¶¶16-19.) The second unlawful detainer proceeding, initiated in 2011, was also allegedly decided in Countrywide’s favor. (¶19.) Plaintiff alleges he was evicted from his home and did not regain possession until he filed a quiet title action in 2012. (¶21.) Thus, based on Plaintiff’s allegations the second unlawful detainer action (the first initiated against him) was not adjudicated in his favor. (RJN Exh. 12, 14; Webb v. Youmans (1967) 248 Cal. App. 2d 851 (“One of the essential elements of a cause of action for malicious prosecution is that the complaint set forth allegations of ultimate fact necessary to a finding that the offending action was terminated favorably to defendants.”).) The elements of probable cause and malice are lacking.

Second Cause of Action – Abuse of Process
To plead a cause of action for abuse of process, one must allege (1) an ulterior purpose in commencing a process; and (2) a willful act in an unauthorized use of the process. (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057.) Regarding the moving Defendants, Plaintiff’s allegations are uncertain as he groups all Defendants together, failing to ascribe motive directly to moving Defendants. Further, Plaintiff alleges nothing more than the filing of the eviction actions. This is insufficient to support a claim for abuse of process. (See also JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523 (“the mere filing or maintenance of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.”).)

Sixth Cause of Action – Intentional Infliction of Emotional Distress
Plaintiff has failed to plead outrageous conduct. (see Trerice v. Blue Cross of California (1989) 209 Cal. App. 3d 878, 883 (“court may determine in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”).) This is well taken as Plaintiff’s allegations are premised on the assertion that Countrywide sought to enforce its right under the Diaz DOT. (See Kruse v. Bank of Am. (1988) 202 Cal. App. 3d 38, 67 (claim for infliction of emotional distress does not lie where a defendant pursued its own economic interests and properly asserted its rights).) Plaintiff does not allege any specific conduct as to moving Defendants.

Seventh Cause of Action – Negligence
Plaintiff has failed to plead the existence of/basis for a duty legal duty owed him by Defendants. “In order to state a cause of action for negligence, the complaint must allege facts sufficient to show a legal duty on the part of the defendant to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (Bellah v. Greenson (1978) 81 Cal.App.3d 614, 619.) Plaintiff pleads no facts establishing any duty owed by Defendants, who served as attorneys for Countrywide, not Plaintiff.

Motion to Strike
The motion to strike seeks an order striking paragraphs 32, 41, 45, 62 and portions of the prayer. All of these allegations address punitive damages. Based on the ruling on the demurrer, this motion is moot.