17-CIV-05657 MELE M. UPERESA VS. WORLD SAVINGS BANK, ET AL

MELE M. UPERESA WORLD SAVINGS BANK
JONATHAN MATTHEWS AMELIA VALENZUELA

DEFENDANT BRECKENRIDGE PROPERTY FUND 2016, LLC’S MOTION FOR JUDGMENT ON THE PLEADINGS TENTATIVE RULING:

Defendant BRECKENRIDGE PROPERTY FUND 2016, LLC’s Motion for Judgment on the Pleadings is GRANTED WITHOUT LEAVE TO AMEND in its entirety. Plaintiff’s First Amended Complaint fails to state facts sufficient to constitute a cause of action against this Defendant. Code Civ. Proc. § 438(c).

Plaintiff only offers arguments in Opposition to Defendant’s motion as to the Fifth cause of action for unfair business practices. Courts have described an unfair business practice as one that “offends an established public policy or when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to customers.” Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1170. To state a claim for unfair business practices, a plaintiff must allege that defendant engaged in business conduct that was unfair, unlawful or fraudulent. See Bus. & Prof. Code § 17200. In doing so, plaintiff “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.

Here, Plaintiff’s unfair business practices claim against Defendant fails to state facts sufficient to constitute a cause of action. The FAC alleges that the other Defendants in this action engaged in deceptive practices and violated the California Homeowners’ Bill of Rights by initiating foreclosure proceedings while purportedly considering Plaintiff for a loan modification. However, there are no allegations whatsoever that this moving Defendant had any knowledge of or involvement in this conduct. The FAC asserts (and Plaintiff’s Opposition acknowledges) that Defendant’s only role is that of a bona fide purchaser for value (“BFP”) at the Trustee’s Sale. Plaintiff does not challenge Defendant’s BFP status in any way, and Defendant is correct in asserting that a BFP who acquires an interest in real property without notice of another’s asserted rights in the property takes the property free of such unknown rights. Melendrez v. D&I Inv., Inc. (2005) 127 Cal.App.4th 1238, 1251.

Plaintiff argues in her Opposition that after Defendant purchased the Property at the Trustee’s Sale, Defendant somehow owed Plaintiff a duty to respond to her offers to buy back the property. This is not alleged in the FAC, nor does Plaintiff offer any legal authority supporting her contention that such a duty exists.

Plaintiff does not oppose the motion as to the First cause of action for declaratory relief or Second cause of action for quiet title, and thus appears to have abandoned these claims. Declaratory relief is proper only in cases of “actual controversy” relating to the legal rights and duties of the respective parties. Code Civ. Proc. § 1060. As the FAC does not allege any wrongful conduct on the part of Defendant, Plaintiff fails to allege an “actual controversy” for which declaratory relief is appropriate.

In order to assert a cause of action for quiet title, Plaintiff must allege tender. However, Plaintiff makes no allegation in the FAC nor argument in her Opposition that she is ready, willing, and able to tender the full amount that was due and owing on her mortgage loan. A valid and viable tender is a prerequisite to stating any equitable cause of action challenging a foreclosure sale. Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578-79. The plaintiff must (1) demonstrate a willingness to pay and (2) show the ability to pay. In re Worcester (9th Cir. 1987) 811 F.2d 1224, 1231. While there are certain limited exceptions to the “tender rule”, Plaintiff proffers none and does not explain how the FAC might be amended to assert any exception.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to CRC Rule 3.1308(a)(1), adopted by Local Rule 3.10. If the tentative ruling is uncontested, moving party is directed to prepare, circulate, and submit a written order reflecting this Court’s ruling verbatim for the Court’s signature, consistent with the requirements of CRC Rule 3.1312. The proposed order is to be submitted directly to Judge Richard H. DuBois, Department 16.