Case Name:   Jose E. Leon, et al. v. Wells Fargo Bank, N.A., et al.

Case No.:       1-14-CV-262160

Demurrer to First Amended Complaint by Defendants Wells Fargo Bank, N.A., d/b/a America’s Servicing Company and Hudson City Savings Bank

Defendants Wells Fargo Bank, N.A., d/b/a America’s Servicing Company and Hudson City Savings Bank’s (“Defendants”) demurrer to the first cause of action in plaintiffs Jose E. Leon and Marie T. Pham’s (“Plaintiffs”) first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., it is barred by the statute of limitations, is SUSTAINED with 10 days’ leave to amend. (See Code Civ. Proc., §337(1).)

Defendants’ demurrer to the second cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., it is barred by the statute of limitations, is SUSTAINED with 10 days’ leave to amend. (See Code Civ. Proc., §338, subd. (a).)

Defendants’ demurrer to the third cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for fraud is SUSTAINED with 10 days’ leave to amend. The third cause of action is specifically premised upon an alleged false promise contained in the Forbearance Agreement that “once the payment terms of the FORBEARANCE are met, that [Wells Fargo] will provide loan modification.” (FAC, ¶¶44, 82, and Exh. F.) No such promise can be found in the Forbearance Agreement. “If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence.” (Holland v. Morse Diesel International, Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

Defendants’ demurrer to the fourth cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for accounting is SUSTAINED with 10 days’ leave to amend. “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; emphasis added.) Plaintiffs have not stated facts sufficient to show that some balance is due.

There being no opposition, Defendants’ demurrer to the fifth cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation of Civil Code section 2924.17 is SUSTAINED with 10 days’ leave to amend.

Defendants’ demurrer to the sixth cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation of Business & Professions Code section 17200 et seq. is SUSTAINED with 10 days’ leave to amend. A claim for “relief under the unfair competition law (Bus. & Prof. Code, §17200 et seq.) stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.” (Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178.)

Defendants’ demurrer to the seventh cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., it is barred by the statute of limitations, is SUSTAINED with 10 days’ leave to amend. (See Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 929.)

Defendants’ demurrer to the eighth cause of action in Plaintiffs’ first amended complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for quiet title is SUSTAINED with 10 days’ leave to amend. There has been a long-standing equitable rule that “a mortgagor of real property cannot, without paying his debt, quiet his [or her] title against the mortgagee.” (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707. Accord Lueras v. BAC Home Loan Servicing, LP (2014) 221 Cal.App.4th 49, 86 (“A borrower may not, however, quiet title against a secured lender without first paying the outstanding debt on which the mortgage or deed of trust is based.”); Ferguson v. Avelo Mortgage, LLC (2011) 195 Cal.App.4th 1618, 1623 (“To bring an action to quiet title a plaintiff must allege he or she has paid any debt owed on the property.”); McElroy v. Chase Manhattan Mortg. Corp. (2005) 134 Cal.App.4th 388, 394; Mix v. Sodd (1981) 126 Cal.App.3d 386, 390; Shimpones v. Stickney (1934) 219 Cal. 637, 649.) Plaintiffs have not stated any facts which would exempt or exclude them from application of this rule.

Defendants’ request for judicial notice in support of demurrer to first amended complaint is DENIED. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable.” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (Unruh-Haxton).)  “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable. Judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Unruh-Haxton, supra, 162 Cal.App.4th at p. 365.)

The Demurrer is sustained with 10 days leave to amend and the request for judicial notice is denied.