Case Number: VC066289 Hearing Date: August 22, 2017 Dept: SEC

OIFOH v. BARRETT DAFFIN FRAPPIER TRADER & WEISS, LLP

CASE NO.: VC066289

HEARING: 08/22/17

JUDGE: RAUL A. SAHAGUN

#9

TENTATIVE ORDER

Defendant BANK OF AMERICA, N.A.’s demurrer to Plaintiffs OIFOH’s complaint is SUSTAINED without leave to amend. CCP §430.10(e).

Moving Party to give notice.

No Opposition filed as of August 21, 2017.

Defendant BANK OF AMERICA, N.A.’s request for judicial notice is GRANTED. Cal. Ev. Code §452.

This wrongful foreclosure action was filed on May 4, 2017. Plaintiff alleges that the non-judicial foreclosure sale of his residential property should be enjoined where Plaintiff’s loan servicer (Defendant NATIONSTAR) committed a number of HBOR violations prior to recordation of the NOD by Defendant BARRETT DAFFIN. Demurring Defendant herein, BANK OF AMERICA, N.A. (“BOFA”) challenges Plaintiffs’ entire Complaint by arguing that Plaintiff fails to allege any facts against it pursuant to CCP §430.10(e). BOFA has not serviced the loan since 2013.

Plaintiff’s Complaint, filed on May 4, 2017, asserts the following causes of action: (1) Constructive Fraud; (2) Violation of Cal. Bus. & Prof. Code §17200 et seq; (3) HBOR Violations; (4) Violation of Cal. Civ. Code §2923.5; (5) Negligence; (6) Intentional Infliction of Emotional Distress; (7) Slander of Title; (8) Quiet Title; (9) Declaratory Relief; and (10) Fraud in the Concealment.

First and Tenth Causes of Action – Constructive Fraud and Fraud in the Concealment

Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.)

Here, Plaintiff fails to allege the first cause of action with the requisite amount of specificity necessary against Defendant BOFA. Plaintiff must allege charging facts against each Defendant with the level of specificity required to maintain this cause of action. If Plaintiff is unable to allege specific facts or theories against a Defendant/Defendants, then that Defendant should be dismissed form the claim. The demurrer to the first cause of action is sustained.

Second Cause of Action – Violation of Business and Professions Code §17200 et seq.

To state a claim under §17200, Plaintiff must allege whether the conduct complained of is a fraudulent, unlawful or an unfair business practice. To bring a claim under the fraud prong, Plaintiffs must allege an affirmative misrepresentation, conduct or business practice on the part of a defendant; or an omission in violation of defendant’s duty to disclose; and that is likely to deceive members of the public. (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986.) To state a claim under the unfairness prong, Plaintiff must allege that on or more of Defendants’ business practices are unfair, unlawful or fraudulent; and the remedy sought is authorized by law. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337.) To state a claim under the unlawful prong, Plaintiffs must allege a violation of law and cite that law. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to allege violation of a law was properly sustained without leave to amend].)

In this case, Plaintiff relies on the alleged unlawful, unfair and fraudulent conduct set forth throughout his Complaint. In light of the Court’s findings herein, the demurer to the second cause of action is sustained.

Third Cause of Action and Fourth Causes of Action – HBOR Violations and Violation of Cal. Civ. Code §2923.5

Where a trustee’s sale has not occurred, a borrower can only seek injunctive relief under the HBOR, not damages. HBOR provides for injunctive relief for statutory violations that occur prior to foreclosure, and monetary damages when the borrower seeks relief for violations after the foreclosure sale has occurred. (Cal. Civ. Code §2924.12(a)-(b).) Defendant BOFA, however, is not a proper target for injunctive relief because it is no longer servicing the loan. (See Complaint ¶8.)

Therefore, there is no legal basis to assert the third and fourth causes of action against the demurring Defendant herein. BOFA’s demurrer to the third and fourth causes of action is sustained.

Fifth Cause of Action – Negligence

The statute of limitations for negligence is two years. (CCP §335.1.) Despite BOFA’s contention that Plaintiff’s negligence claim is time-barred since BOFA has not serviced the loan since 2013, Plaintiff alleges that “any applicable states of limitations have been tolled by the Defendants’ continuing, knowing, and active concealment….” (Complain ¶23.) Therefore, the demurrer to the fifth cause of action is not sustained pursuant to the statute of limitations.

However, whether a lender owes a duty of care to a borrower in the loan modification context is unsettled, and there is a split in authority among California courts. (See, e.g., Jolley v. Chase Home Fin., LLC (2013) 213 Cal.App.4th 872, 901 [rejecting sweeping conclusion that a lender never owes a duty of care to a borrower]; Alvarez v. BAC Home Loans Servicing (2014) 228 Cal.App.4th 941, 945 [finding facts sufficient to allege negligence claim based on mishandling of application documents]; compare Lueras v. BAC Home Loans Servicing, LLP (2013) 221 Cal.App.4th 49, 62.) Federal courts have also reached different conclusions on this issue. (Carbajal v. Wells Fargo Bank, N.A. (N.D.Cal. 2015) 2015 WL 2454054, at 4-7 [finding no duty]; compare Rijhwani v. Wells Fargo Home Mortgage, Inc. (N.D.Cal. 2014) 2014 WL 890016, at 17 [finding plaintiffs stated a claim for negligence based on allegations that defendant tricked them into defaulting on a loan and instructed them to ignore notices, while the defendant sold their home at a foreclosure sale].)

Plaintiff must more clearly allege the specific acts committed by BOFA constituting a failure to properly review her loan modification application given the holding in Alvarez and Rijhwani; Plaintiff must also identify the specific damages resulting therefrom. As such, the demurrer to the fifth cause of action is sustained.

Sixth Cause of Action – Intentional Infliction of Emotional Distress

The Court must determine whether sufficient facts have been alleged. First, the complained-of conduct must be outrageous, that is, beyond all bound of reasonable decency. (Cervantez v. J.C. Penney Co. (1979) 24 Cal.3d 579, 593; Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 [“no occasion for the law to intervene in every case where someone’s feelings are hurt”].) Second, the conduct must be “intended to inflict injury or engaged in with the realization that injury will result.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 210.) Third, the plaintiff must demonstrate that s/he suffered severe emotional distress. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946.) A defendant’s conduct is “outrageous” when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. And the defendant must either intend his or her conduct to inflict injury or engaged in it with the realization that injury will result. Liability for intentional infliction of emotional distress does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [citations and quotations omitted].) “With respect to the requirement that a plaintiff show severe emotional distress, this court has set a high bar. ‘Severe emotional distress means “‘“emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” ’ ”’ [Citation.]” (Hughes v. Pair, supra, at p. 1051.)

Again, it is not clear from the face of the Complaint that this cause of action is time-barred as to BOFA. However, Plaintiff’s Complaint is devoid of factual allegations to support this cause of action against Defendant BOFA. Plaintiff has not alleged any actions of any of the defendants which were anything more than pursuing their own economic interest. These allegations are insufficient to allege intentional infliction of emotional distress. The demurrer to the sixth cause of action is sustained.

Seventh Cause of Action – Slander of Title

Plaintiff has failed to allege wrongful conduct on the part of BOFA, and Plaintiff has failed to allege facts that would overcome the privilege applicable to recorded non-judicial foreclosure documents. (See Cal. Civ. Code §2924(d)(1).) Additionally, BOFA is not a foreclosing defendant and this claim contains no allegations of any conduct on the part of BOFA. The demurrer to the seventh cause of action is sustained.

Eighth Cause of Action – Quiet Title

The elements of an action to quiet tile are: (1) “the plaintiff is the owner and in possession of the land”; and (2) “the defendant claims an interest therein adverse to [the plaintiff].” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 740-741.) Generally, a borrower may not quiet tile against a secured lender without first paying the outstanding debt on which the mortgage or deed of trust is based. (Miller v. Provost (1994) 26 Cal.App.4th 1703, 1707.) A cloud of title remains until the debt is paid. (Burns v. Hiatt (1906) 149 Cal. 617, 620-622.)

Plaintiff does not allege that he has tendered the full amount owed on the subject property. The demurrer to the eighth cause of action is sustained.

Ninth Cause of Action – Declaratory Relief

The elements for a declaratory relief cause of action are as follows: (1) a person interested under a written instrument or a contract; or a declaration of his or her rights or duties in respect to, in, over or upon property; and (2) an actual controversy. A plaintiff’s declaratory relief complaint must specifically allege that an actual, present controversy exists, and must state the facts of the respective claims concerning the disputed subject matter. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) The complaint will be found sufficient if it sets forth facts showing the existence of an actual controversy relating to the parties’ legal rights and duties, and requests the court to adjudge these rights and duties. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606; Qualified Patients Ass’n v. City of Anaheim (2010) 187 Cal.App.4th 734, 751.) A declaratory relief claim should not be used to determine issues that are already engaged by other causes of action. (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.)

Here, Plaintiff attempts to utilize a declaratory relief cause of action to obtain relief already sought by other causes of action. Plaintiffs’ cause of action for declaratory relief is duplicative and improper pursuant to CCP §1061. The demurrer to the ninth cause of action is sustained.

Leave to Amend

The Court construes Plaintiff’s failure to oppose the demurrer as an abandonment of his claims, or as an admission that the demurrer has merit. (See Herzberg v. County of Plumas (2005) 133 Cal.App.4th 1, 20.) Where no Opposition has been filed as of August 21, 2017, the Court sustains the instant demurrer without further leave to amend.