Lynette Trevillion v. FCI Lender Services, Inc

Case Name:   Lynette Trevillion v. FCI Lender Services, Inc., et al.

Case No.:       1-12-CV-226862

Currently before the Court are the demurrers of defendant Litton Loan Servicing, LP (“Litton”), Ocwen Loan Servicing, LLP (“Ocwen”) and First Federal Mortgage Bankers (“First Federal”) to the second amended complaint (“SAC”) of plaintiff Lynette Trevillion (“Trevillion”). Litton and Ocwen demur to each cause of action asserted in the SAC on the ground that Trevillion fails to allege facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e).) First Federal demurs to each cause of action in the SAC on the grounds of uncertainty and failure to allege sufficient facts to constitute a cause of action. (See Code Civ. Proc., § 430.10, subds. (e), (f).)

Request for Judicial Notice

 

In support of their demurrer, Litton and Ocwen ask the Court to take judicial notice of the following: (A) a deed of trust, dated March 10, 2006; (B) an assignment of deed of trust, dated May 31, 2006; (C) a deed of trust and assignment of rents for a home equity revolving line of credit, dated June 18, 2008; (D) an assignment of deed of trust, dated June 24, 2008; (E) a substitution of trustee, dated August 17, 2009; (F) an assignment of deed of trust, dated March 23, 2013; and (g) a notice of default and election to sell under deed of trust, dated February 11, 2010.

 

Courts may take judicial notice of the existence and recordation of real property records when the authenticity of the documents is not challenged. (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265.) Here, Trevillion does not challenge the authenticity of these documents. Accordingly, Litton and Ocwen’s request for judicial notice as to these documents is GRANTED.

 

Litton and Ocwen’s Demurrer to the First Cause of Action on the Ground of Failure to State Sufficient Facts

 

            Litton and Ocwen first assert that Trevillion fails to allege any specific fraudulent conduct on their part. “Fraud must be pleaded with specificity rather than with ‘general and conclusory allegations.’ [Citation.] The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.) Here, Trevillion fails to allege any specific misrepresentations on Litton and Ocwen’s part, let alone how, where, to whom and by what means these misrepresentations were made. Thus, Trevillion’s first cause of action is subject to demurrer on this basis alone.

 

Next, Litton and Ocwen claim that Trevillion’s fraud claims are subject to demurrer because her original complaint was not filed until June 19, 2012, more than six years after she signed the 2006 deed of trust and more than four years after she signed the second deed of trust. Given that the statute of limitations for a fraud claim is three years (see Code Civ. Proc., §338, subd. (d)), they argue that this cause of action is time-barred. In opposition, Trevillion contends that the cause of action is not time-barred because she did not discover the fraud until June 19, 2012.

 

Trevillion’s fraud cause of action accrued no later than 2008 at the time she signed the second deed of trust. Thus, absent the application of the discovery rule, this cause of action is time-barred. (See E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319 [“A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.”].) However, Trevillion does not allege any facts indicating the time and manner of discovery or the inability to have made earlier discovery despite reasonable diligence. Therefore, as she fails to allege sufficient facts to invoke the discovery rule, her first cause of action is time-barred.

 

In light of the foregoing, Litton and Ocwen’s demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

Litton and Ocwen’s Demurrer to the Second Cause of Action on the Ground of Failure to State Sufficient Facts

 

Litton and Ocwen first contend that Trevillion does not allege the existence of a fiduciary duty. This argument is persuasive. Trevillion pleads no facts indicating that Litton and Ocwen owed her a fiduciary duty as a matter of law or pursuant to an agreement between the parties. (See GAB Business Services, Inc. v. Lindsay & Newsom Claim Services, Inc. (2000) 83 Cal.App.4th 409, 416 [fiduciary duties imposed by law or undertaken by agreement], disapproved in part on other grounds in Reeves v. Hanlon (2004) 33 Cal.4th 1140.)  Thus, the second cause of action is subject to demurrer on this basis alone.

 

Next, Litton and Ocwen argue that this claim is time barred. The statute of limitations for breach of fiduciary duty is three years when the breach is fraudulent. (See American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1478.) Here, Trevillion’s breach of fiduciary duty cause of action accrued no later than 2008 at the time she signed the second deed of trust. Thus, absent the application of the discovery rule, this cause of action is time-barred. However, Trevillion does not allege any facts indicating the time and manner of discovery or the inability to have made earlier discovery despite reasonable diligence. (See E-Fab, Inc., supra, 153 Cal.App.4th at p. 1319.) Therefore, as she fails to allege sufficient facts to invoke the discovery rule, her second cause of action is time-barred.

 

In light of the foregoing, Litton and Ocwen’s demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

First Federal’s Demurrer on the Ground of Uncertainty

 

First Federal demurs to each cause of action in the SAC on the ground of uncertainty. In particular, it contends that Trevillian’s allegations are vague, ambiguous, unintelligible, and uncertain.

 

“A demurrer for uncertainty is strictly construed, even where a [pleading] is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty will be sustained only where the pleading is so incomprehensible that the opposing party cannot reasonably respond. (See Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)

 

Here, the pleading is not so incomprehensible that First Federal cannot reasonably respond, and any remaining ambiguities can be clarified in discovery. Accordingly, the demurrer on the ground of uncertainty is OVERRULED.

 

First Federal’s Demurrer to the First Cause of Action on the Ground of Failure to State Sufficient Facts

 

First Federal claims that Trevillion fails to allege that it committed any specific, fraudulent conduct. (See West, supra, 214 Cal.App.4th at p. 793 [fraud must be pleaded with specificity rather than with conclusory allegations].) This argument is meritorious. Trevillion does not allege any specific misrepresentation made by First Federal. Therefore, Trevillion fails to allege sufficient facts to state a cause of action for fraud against First Federal and First Federal’s demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

First Federal’s Demurrer to the Second Cause of Action on the Ground of Failure to State Sufficient Facts

 

First Federal argues that Trevillion does not allege facts indicating the existence of a fiduciary relationship. (See GAB Business Services, Inc., supra, at p. 416.) This argument is persuasive. Trevillion pleads no facts indicating that First Federal owed her a fiduciary duty as a matter of law or pursuant to an agreement between the parties. Thus, Trevillion fails to allege sufficient facts to state a cause of action for breach of fiduciary duty. Accordingly, First Federal’s demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.

 

In light of the foregoing, the currently-scheduled hearing Re: Order to Show Cause for Failure to Serve (12-18-14) is VACATED.

 

The matter is set for case management conference on February 3, 2015 at 10:00 a.m. in Department 5.

 

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