Case Number: SC120670    Hearing Date: August 28, 2014    Dept: P

TENTATIVE RULING – DEPT. P

AUG. 28, 2014 CALENDAR No: 3

SC120670— COSTELLO v. BANK OF AMER., et al.

DEMURRER TO FIRST AMENDED COMPLAINT

Evidentiary matters

Defendants’ request for Judicial Notice is granted as to Exhibits 1-4, but only as to existence and recordation.

Merits

This is an action against, inter alia, Bank of America and MERS (collectively, “Defendants”) based on a threatened (but not, apparently, pending) foreclosure sale of a residence. Plaintiff alleges fraud in the loan origination process, lack of proper securitization, and what she terms “loan modification fraud.” Opp., 1:16. Her FAC asserts claims against defendants for cancellation of void contract/breach of contract, “actual fraud,” breach of fiduciary duty, violation of B & P 17200, and violation of the covenant of good faith and fair dealing. Defendants have demurred to Plaintiff’s FAC in its entirety. The Court will sustain the demurrers to all five claims, and dismiss the action.

The well-written moving brief explained, in detail, why each of Plaintiff’s claims against Defendants fail to state a cause of action for several reasons. Plaintiff’s opposition brief failed to meaningfully respond to those arguments.

Indeed, as is pointed out in the reply brief, the opposition consists largely of “a recitation of the … allegations asserted in the FAC” and “entirely fails to address any of the legal authority cited in” the demurrer. Reply, 1:4-6. By failing to properly oppose Defendants’ facially-valid arguments, Plaintiff has, whether or not she intended to do so, conceded their merits. See, e.g., Gagosian v. Burdick’s Television and Appliances(1967) 254 Cal.App.2d 316, 318 (“The state is under no duty to provide counsel for private litigants in civil cases. There is neither reason nor justification for compelling a trial judge to act as a sort of advisory or ‘backup’ counsel”).

Plaintiff has not shown that she can validly amend the complaint to allege any of her claims. It is her burden to do so. Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”); Hendy v. Losse (1991) 54 Cal.3d 723, 742. In fact, Plaintiff has not even attempted to do so. Accordingly, sustaining the demurrer to her claims without leave to amend is appropriate.

The Court notes that dismissal of the claims against Defendants does not leave Plaintiff without a remedy – her claims remain pending against their co-defendant, Impac Funding, the loan originator.

Defendants’ request for a “blanket” order expunging a lis pendens which may or may not exist is inappropriate and is denied.

Demurrers to all causes of action are sustained without leave to amend. Defendants are to serve and lodge a revised proposed order pursuant to CRC 3.1312. They are to concurrently serve and lodge a proposed judgment of dismissal as to the action in its entirety.

CASE MANAGEMENT CONFERENCE

What is the status of defendant Impac Funding?

Case Management Conference date to be set.

NOTICE

Defendants shall give notice of today’s rulings and orders and timely file proof of service thereof, pursuant to CCP 1019.5 and CRC 3.1312.