Case Name: Melva D. Douglas v. Clear Recon Corp., et al.
Case No.: 2016-CV-301615

Motion for Judgment on the Pleadings to the Complaint by Defendants Nationstar Mortgage LLC, Mortgage Electronic Registration Systems, Inc. and HSBC Bank USA, National Association, as Trustee for the Holders of the Ellington Loan Acquisition Trust 2007-1, Mortgage – Pass Through Certificates, Series 2007-1

Factual and Procedural Background

This is a wrongful foreclosure action. Plaintiff Melva D. Douglas (“Plaintiff”) (self-represented) is the owner of real property located at 3610 Safe Haven Court in San Jose, California (“Subject Property”). (Complaint at ¶ 15.) On November 9, 2006, Plaintiff executed a written loan agreement with defendant Fremont Investment & Loan and obtained a loan in the amount of $624,750. (Id. at ¶ 18.) To secure repayment of the mortgage loan, Plaintiff executed a written deed of trust transferring the Subject Property in trust to a trustee. (Ibid.; Exhibit A.)

On September 19, 2011, defendant Mortgage Electronic Registration Systems, Inc. (“MERS”) issued an assignment of deed of trust transferring all beneficial interests under the Note and deed of trust to defendant HSBC Bank USA, National Association, as Trustee of the Holders of the Ellington Loan Acquisition Trust 2007-1, Mortgage-Pass Through Certificates, Series 2007-1 (“HSBC Bank”). (Complaint at ¶ 19; Exhibit B.) Thereafter, on May 5, 2016, defendants HSBC Bank and Nationstar Mortgage LLC (“Nationstar”) issued a substitution of trustee which allegedly unlawfully substituted defendant Clear Recon Corp (“CRC”) as the trustee under the deed of trust. (Id. at ¶ 20.)

On May 13, 2016, CRC recorded a Notice of Default to sell the Subject Property. (Complaint at ¶ 24; Exhibit D.) Plaintiff alleges that the Notice of Default is false as it fails to credit her for payments made towards the mortgage and thus overstates the amount of the default. (Ibid.) Plaintiff further alleges that, prior to recording the Notice of Default, neither the loan servicer nor the lender contacted her in person or by telephone to discuss options for avoiding foreclosure as required by the California Homeowner Bill of Rights (“HBOR”). (Ibid.)

On August 18, 2016, CRC recorded a Notice of Trustee’s Sale. (Complaint at ¶ 25; Exhibit F.) Plaintiff alleges that the Notice of Trustee’s Sale is false as it fails to credit her for payments made towards the mortgage and thus overstates the amount of the default. (Ibid.) Plaintiff further alleges that, prior to recording the Notice of Default, neither the loan servicer nor the lender contacted her in person or by telephone to discuss options of avoiding foreclosure as required by the HBOR. (Ibid.) Plaintiff asserts that defendants cannot show proper receipt, possession, transfer, negotiations, assignment and ownership of the original promissory note and deed of trust, resulting in imperfect security interests and claims. (Id. at ¶ 26.)
On October 25, 2016, Plaintiff filed the operative complaint setting forth causes of action for: (1) violation of the HBOR; (2) violation of Civil Code § 2923.5; (3) negligence; (4) constructive fraud; (5) intentional infliction of emotional distress; (6) slander of title; (7) quiet title; (8) declaratory relief; (9) violation of California Business and Professions Code § 17200 et seq.; and (10) fraud in the concealment.

On December 22, 2016, defendants Nationstar, MERS, and HSBC Bank (collectively, “Defendants”) filed an answer to the complaint alleging various affirmative defenses.

Currently before the Court is Defendants’ motion for judgment on the pleadings to the complaint on the ground that each claim fails to state a cause of action. (Code Civ. Proc., § 438.) Defendants submitted a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Defendants filed reply papers. No trial date has been set.

Motion for Judgment on the Pleadings

Defendants argue that the first through tenth causes of action fail to state a claim.

Untimely Opposition

In reply, Defendants argue that the Court should strike Plaintiff’s opposition as it was untimely served. Code of Civil Procedure 1005, subdivision (b) requires all opposing papers to be filed and served at least nine court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing. (Cal. Rules of Court, rule 3.1300(d).) If the Court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate. (Ibid.)

Here, the motion for judgment on the pleadings is scheduled for hearing on April 13, 2017. Thus, any opposition papers must be filed and served no later than March 30, 2017. According to the proof of service, Plaintiff timely served her opposition papers by mail on March 23, 2017. In reply, Defendants contend that the opposition papers were served on April 3, 2017. In support, Defendants attach a photocopy of the front of an envelope marked “Priority Mail” with a postage date of April 3, 2017. (See Exhibit A to the Reply.) However, in reviewing the envelope, the Court cannot determine if it is connected with the service of Plaintiff’s opposition. For example, the envelope does not even identify Plaintiff or include her return address. Thus, based on the proof of service, the Court finds that the opposition was timely served.

Even if the opposition was untimely, Defendants did not suffer any prejudice as they timely filed and served reply papers addressing the opposition. Therefore, the Court will consider the moving papers, the opposition, and the reply brief in addressing the motion for judgment on the pleadings.

Request for Judicial Notice

In support of the motion, Defendants request judicial notice of the following recorded documents: (1) Notice of Default recorded on May 7, 2015 as document number 22943487 (Exhibit 1); (2) Rescission of Notice of Default recorded on November 9, 2015 as document number 2318282 (Exhibit 2); and (3) Notice of Default recorded on May 18, 2016 as document number 23308383 (Exhibit 3).

“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.) For example, judicial notice may be taken of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subd. (h).)

“[C]ourts have taken judicial notice of the existence and recordation of real property records, including deeds of trust, when the authenticity of the documents is not challenged. [Citations.] The official act of recordation and the common use of a notary public in the execution of such documents assure their reliability, and the maintenance of the documents in the recorder’s office makes their existence and text capable of ready confirmation, thereby placing such documents beyond reasonable dispute.” (See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [disapproved on other grounds in Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919].) Thus, “a court may take judicial notice of the fact of a document’s recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity.” (Id. at p. 265.)

Here, Exhibits 1 through 3 constitute real property documents recorded in Santa Clara County and appear reasonably relevant to issues raised by the motion.

Therefore, the request for judicial notice is GRANTED.

Legal Standard

“Judgment on the pleadings is akin to a demurrer and is properly granted only if the complaint does not state facts sufficient to state a cause of action against that defendant. The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254 [internal citations omitted].)

First Cause of Action: Violation of HBOR

The first cause of action is identified as a violation of the HBOR and appears to be based on violations of Civil Code sections 2923.55 and 2923.5.

Civil Code section 2923.55 requires the foreclosing entity to attempt to contact a borrower to discuss foreclosure prevention alternatives before recording a notice of default. (Civ. Code, § 2923.55, subds. (a)-(b).) If the party pursuing foreclosure thereafter records a notice of default, the notice must be accompanied by a declaration of compliance confirming it first attempted to contact the borrower in compliance with the statute. (Civ. Code, § 2923.55, subd. (c).) Similarly, Civil Code section 2923.5 requires a “mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent” to “contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure” before recording a notice of default. (Civ. Code, § 2923.5.)

Plaintiff alleges that Defendants violated Civil Code sections 2923.55 and 2923.5 by failing to contact her and discuss foreclosure alternatives prior to filing a Notice of Default. (See Complaint at ¶¶ 1, 2, 9, 10, 24, 25, 29, 31, 33, 34, 35, 36, and 37.) To rebut these allegations, Defendants provide the Notice of Default and accompanying declaration establishing compliance with Civil Code section 2923.55. (See Request for Judicial Notice at Exhibit 3.) Defendants did not submit a declaration showing compliance with Civil Code section 2923.5. Despite these documents, the Court must accept the truth of Plaintiff’s allegations for purposes of this motion. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515 [“A trial court’s determination of a motion for judgment on the pleadings accepts as true the factual allegations that the plaintiff makes.”].) The allegations here raise a factual issue as to whether Defendants complied with sections 2923.55 and 2923.5 which cannot be resolved on a motion for judgment on the pleadings. (See Skov v. U.S. Bank (2012) 207 Cal.App.4th 690, 696-697 [assuming the truth of the plaintiff’s allegations, a disputed issue of compliance with Civ. Code, § 2923.5 cannot be resolved at the demurrer stage]; see also Barrionuevo v. Chase Bank, N.A. (N.D. Cal. 2012) 885 F.Supp.2d 964, 976-977 [borrower’s allegation that bank did not contact them before filing the notice of default was sufficient to state a violation of Civ. Code, § 2923.5, despite judicial notice taken of declaration in notice of default that asserted statutory compliance]; Argueta v. J.P. Morgan Chase (E.D. Cal. 2011) 787 F.Supp.2d 1099, 1107 [despite judicial notice of Notice of Default including declaration of compliance with Civ. Code, § 2923.5, plaintiff’s allegations were sufficient to preclude dismissal where plaintiffs alleged that they did not receive phone calls, phone messages, or letters before the Notice of Default was recorded].)

Alternatively, Defendants contend that Plaintiff fails to allege that she suffered any prejudice as a result of violations under Civil Code sections 2923.55 and 2923.5. (See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 94 [procedural irregularity in service of the sale notice did not cause any injury to the borrowers]; see also Coburn v. Bank of New York Mellon, N.A. (E.D. Cal. 2011) 2011 WL 1103470 at p. *6 [district court dismissed section 2923.5 claim in part because plaintiff failed to allege prejudice or how foreclosure would have been averted but for alleged deficiencies].) Plaintiff fails to address the merits of this argument and the legal authorities in her opposition.

Therefore, the motion for judgment on the pleadings to the first cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim. (See Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852 [on a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action].)

Second Cause of Action: Violation of Civil Code § 2923.5

The second cause of action is a claim for violation of Civil Code section 2923.5. The Court already considered this claim in addressing the first cause of action for violation of the HBOR. For the reasons stated above, the motion for judgment on the pleadings to the second cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Third Cause of Action: Negligence

With respect to the third cause of action, Defendants argue that Plaintiff fails to allege a duty of care, causation, or damages to support negligence.

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff’s damages or injuries. [Citation.] Whether a duty of care exists is a question of law to be determined on a case-by-case basis.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) “[A]s a general rule, a financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope of its conventional role as a mere lender of money.” (Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089, 1096 (Nymark).) “The principle that a financial institution owes no duty to a borrower has been extended to loan servicers as well.” (Griffin v. Green Tree Servicing, LLC (C.D. Cal. 2015) 166 F.Supp.3d 1030, 1049.)

Here, Plaintiff alleges that Defendants, acting as Plaintiff’s lender/or loan servicers, had a duty to exercise reasonable care and skill to maintain proper and accurate loan records and to discharge and fulfill the other incidents attendant to the maintenance, accounting and servicing of loan records, including, but not limited to, accurate crediting of payments made by Plaintiff. (Complaint at ¶ 50.) These activities are sufficiently connected with money lending that they do not give rise to a duty of care. (See Nymark, supra, 231 Cal.App.3d at p. 1096; see also Wagner v. Benson (1980) 101 Cal.App.3d 27, 34-35 [lender’s liability to a borrower for negligence arises only when the lender actively participates in the financed enterprise beyond the domain of the usual money lender].) Even if there was a duty of care, Defendants claim that there are no allegations establishing causation or damages. Plaintiff fails to substantively address the merits of these arguments in her opposition.

Therefore, the motion for judgment on the pleadings to the third cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Fourth Cause of Action: Constructive Fraud

The fourth cause of action is a claim for constructive fraud. “The elements of the cause of action for constructive fraud are: (1) fiduciary relationship; (2) nondisclosure (breach of fiduciary duty); (3) intent to deceive, and (4) reliance and resulting injury (causation).” (Younan v. Equifax Inc. (1980) 111 Cal.App.3d 498, 516, fn. 14.) Constructive fraud depends on the existence of a fiduciary relationship of some kind, and this must be alleged. (Id. at pp. 516-517.)

“Fraud must be pleaded with specificity rather than with general and conclusory allegations. 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 [citation and quotation marks omitted] (West).)

Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214 Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.) “Constructive fraud, like actual fraud, must be pleaded with specificity.” (Knox v. Dean (2012) 205 Cal.App.4th 417, 434.)

As a threshold matter, the Court notes that Plaintiff has not alleged facts establishing a fiduciary relationship with Defendants to support constructive fraud. Furthermore, Defendants correctly point out that Plaintiff has not pled constructive fraud with the required specificity to state a cause of action. Instead, Plaintiff vaguely alleges that Defendants made false representations, concealments, and non-disclosures which Plaintiff relied upon causing her to suffer damage. (Complaint at ¶ 49.) Such allegations do not satisfy the heightened pleading standard for a fraud claim. Nor does Plaintiff address the specificity argument in her opposition to the motion.

Accordingly, the motion for judgment on the pleadings to the fourth cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Fifth Cause of Action: Intentional Infliction of Emotional Distress

The fifth cause of action is a claim for intentional infliction of emotional distress (“IIED”). To state a claim for IIED, a plaintiff must allege: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)

Defendants argue that Plaintiff fails to allege facts showing that they caused her extreme and outrageous conduct. Recovery for emotional distress requires a showing of outrageous conduct which is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Yu v. Signet Bank/Virginia (1999) 69 Cal.App.4th 1377, 1397-1398 (Yu).) The defendant must have engaged in ‘conduct intended to inflict injury or engaged in with the realization that injury will result.’ [Citation.]” (Christensen v. Super. Ct. (1991) 54 Cal.3d 868, 903.) While the outrageousness of a defendant’s conduct normally presents an issue of fact to be determined by the trier of fact, the 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. (Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883 (Trerice).)

Here, Plaintiff alleges that Defendants’ allegedly fraudulent attempt to foreclose on the Subject Property was “so outrageous and extreme that it exceeds all bounds which is usually tolerated in a civilized society.” (Complaint at ¶ 58.) Yet, Plaintiff alleges no facts, aside from the foreclosure itself, as the basis for this claim. The act of foreclosure, absent other circumstances, is not the kind of extreme conduct that supports an intentional infliction of emotional distress claim. (Quinteros v. Aurora Loan Services (E.D. Cal. 2010) 740 F.Supp.2d 1163, 1172.) Also, as the moving papers point out, Defendants cannot be subject to liability when they have merely pursued their own economic interests in the context of asserting their rights. (Yu, supra, at p. 1398; Trerice, supra, 209 Cal.App.3d at p. 885.) Furthermore, Plaintiff does not allege Defendants threatened, insulted or harassed her. (See Kruse v. Bank of America (1988) 201 Cal.App.3d 38, 67-68 [collecting examples of outrageous conduct].) Plaintiff fails to address this argument in opposition and thus fails to state a viable claim for IIED.

Therefore, the motion for judgment on the pleadings to the fifth cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Sixth Cause of Action: Slander of Title

The sixth cause of action is a claim for slander of title. Slander of title occurs when there is an unprivileged publication of a false statement which disparages title to the property and causes pecuniary loss. (Stalberg v. Western Title Ins. Co. (1994) 27 Cal.App.4th 925, 929.) Elements of slander of title are: (1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.)

Defendants argue that the slander of title claim is barred by the common interest privilege. Civil Code section 2924, subdivision (d) provides in pertinent part: “All of the following shall constitute privileged communications pursuant to Section 47: [¶] (1) The mailing, publication, and delivery of notices as required by this section. [¶] (2) Performance of the procedures set forth in this article.” The privilege afforded under Civil Code section 2924 is the qualified common interest privilege of Civil Code section 47, subdivision (c), and applies to “the statutorily required mailing, publication, and delivery of notices in nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures…” (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 333.) The common interest privilege does not apply if the defendant acted with actual malice, i.e., motivated by hatred or ill will, or in reckless disregard of the plaintiff’s rights. (Id. at p. 336.) The privilege applies to all torts except malicious prosecution. (Ibid.)

Here, Plaintiff’s slander of title claim is based in part on the recording of foreclosure notices including the Notice of Default, Notice of Trustee’s Sale, and Trustee’s Deed. (Complaint at ¶ 62.) Such notices are subject to the common interest privilege unless Plaintiff can allege facts establishing actual malice. Plaintiff has alleged only conclusions but not facts demonstrating actual malice to overcome the privilege.

Plaintiff also alleges that Defendants have not perfected any claim of title or security interest in the Subject Property. (Complaint at ¶ 60.) However, this allegation is immaterial as it fails to establish the elements for a slander of title cause of action.

Accordingly, the motion for judgment on the pleadings to the sixth cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Seventh Cause of Action: Quiet Title

The seventh cause of action is a claim for quiet title. Quiet title claims are governed by California Code of Civil Procedure § 761.020, which states that a plaintiff must set forth the following five elements in a “verified complaint:” (1) a description of the property, both legal description and street address; (2) the title of the plaintiff, and the basis for that title; (3) the adverse claims to the plaintiff’s title; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the plaintiff’s title against the adverse claims. (Code Civ. Proc., § 761.020(a)-(e).)

Here, Plaintiff has not filed a verified complaint nor has she alleged sufficient facts addressing the elements of a quiet title claim. Furthermore, “[i]t is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured.” (Shimpones v. Stickney (1934) 219 Cal. 637, 649; see also Karlsen v. American Savings & Loan Assn. (1971) 15 Cal.App.3d 112, 117 [stating that “[a] valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust”]; Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 577-582; see also FPCI Re-Hab 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021 [requiring “tender [of] the full amount owing”].) Plaintiff has not alleged facts showing that she tendered the amount due on her loan.

Consequently, the motion for judgment on the pleadings to the seventh cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Eighth Cause of Action: Declaratory Relief

The eighth cause of action is a claim for declaratory relief. “Any person…who desires a declaration of his rights or duties with respect to another…may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action in the superior court…” (Code Civ. Proc., § 1060.) “Thus, declaratory relief is appropriate only where there is an actual controversy, not simply an abstract or academic dispute.” (Newland v. Kizer (1989) 209 Cal.App.3d 647, 657.) For purposes of declaratory relief, an actual controversy is one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. (Ibid.) The judgment must decree, not suggest, what the parties may or may not do. (Ibid.)

Defendants argue that Plaintiff’s claim for declaratory relief is not cognizable because it is wholly derivative of her other claims, which are defective. If a plaintiff fails to state sufficient facts with respect to a claim in his or her pleading and a request for declaratory relief is wholly derivative of that claim, a court may properly sustain a demurrer to the cause of action for declaratory relief. (See Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [citing Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794].)

Here, Plaintiff alleges that an actual controversy exists between herself and Defendants concerning their respective rights and duties under the Note and Trust Deed. (Complaint at ¶ 79.) Thus, Plaintiff seeks a determination of the validity of the Trust Deed and Notice of Default and whether any defendant has authority to foreclose on the Subject Property. (Id. at ¶¶ 83-85.) These allegations are incorporated in Plaintiff’s prior claims which fail to state a cause of action to overcome demurrer. Therefore, the claim for declaratory relief is wholly derivative of these prior claims and thus fails to state a cause of action.

Therefore, the motion for judgment on the pleadings to the eighth cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

Ninth Cause of Action: Violation of Business and Professions Code § 17200 et seq.

The motion for judgment on the pleadings to the ninth cause of action [violation of Business and Professions Code § 17200 et seq.] is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim. The UCL claim is based on Defendants’ alleged misconduct in the prior causes of action. (See Complaint at ¶ 92.) Since Plaintiff’s other claims fail to state a cause of action, the UCL claim also fails. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a UCL claim stands or falls with the antecedent substantive causes of action].)

Tenth Cause of Action: Fraudulent Concealment

The tenth cause of action is a claim for fraudulent concealment. “The required elements for fraudulent concealment are: (1) concealment or suppression of a material fact; (2) by a defendant with a duty to disclose the fact to the plaintiff; (3) the defendant intended to defraud the plaintiff by intentionally concealing or suppressing the fact; (4) the plaintiff was unaware of the fact and would not have acted as he or she did if he or she had known of the concealed or suppressed fact; and (5) plaintiff sustained damage as a result of the concealment or suppression of the fact.” (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 606.)

“To state a cause of action for fraudulent concealment, the defendant must have been under a duty to disclose some fact to the plaintiff.” (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 745.) Defendants persuasively argue that Plaintiff fails to allege facts showing that they owed her a duty to disclose to support a claim for fraudulent concealment. Plaintiff fails to address this argument in her opposition.

Therefore, the motion for judgment on the pleadings to the tenth cause of action is GRANTED WITH 30 DAYS’ LEAVE TO AMEND for failure to state a claim.

The Court will prepare the Order.