Case Number: BC536746    Hearing Date: July 18, 2014    Dept: 46

Posted 7-16-2014 at 4:10 p.m.
Hearing date 7-18-2014, Calendar Matter #5

Case Number: BC536746
OMEGA ROSETTA HUGHES VS WELLS FARGO BANK N A ET AL
Filing Date: 02/18/2014
Case Type: Mortgage Foreclosure (General Jurisdiction)

07/18/2014
Conference-Case Management
& Demurrer to Complaint

CMC is ordered continued to 12/16/2014 at 8:30 a.m. or to the next demurrer date, whichever is later.

Demurrer is sustained as to all causes of action with 20 days leave to amend. Moving party to give notice.

The court grants all of the moving party’s requests for judicial notice [“RJN”]. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265.

Lack of standing. Plaintiff Omega Paula Hughes has not pled facts showing that she/he has standing to bring this suit. Plaintiff has not shown that he/she is the real party in interest with respect to the claim sued upon. The court takes judicial notice of the deed of trust (RJN Exhibit “B”] shows that Omega Rosetta Hughes is the borrower and there is no pleading that Omega Paula Hughes assumed the obligations undertaken by Omega Rosetta Hugs. Although Omega Paula Hughes signed the Adjustable Rate Mortgage, she did so only in a representative capacity as “attorney in fact” for Omega Rosetta Hughes. Gantman v. United Pac. Ins. Co (1991) 232 Cal.App.3d 1560, 1566 [“Generally the real party in interest is the person who has the right to sue under the substantive law It is the person who owns or holds title to the claim or property involved as opposed to others who may be interested or benefited by the litigation.”]

No allegations of tender. In order to state any cause of action in the present action, Plaintiffs must allege that they paid or offer to pay (“tender”) the full amount due under the deed of trust. Karlsen v. American Savings & Loan Assn. (1971) 15 Cal.App.3d 112; Abdallah v. United Sav. Bank (1996) 43 Cal.App. 4th 1101, 1109.

The first cause of action under B&P Code Sections 17200 et. seq. is defective and fails to state facts sufficient to state a cause of action and is therefore the demurrer to this cause of action is sustained pursuant to CCP Section 430.10(e) since Plaintiffs have not identified any unlawful, fraudulent, or unfair business practice committed by Defendants [Khoury v. Macy’s of Calif. (1993) 14 Cal.App.4th 612, 619] and because Plaintiffs have not shown that they have standing to assert such cause of action.[ B&P Code Sections 17204 – no pleading that Plaintiffs “suffered injury in fact and …lost money or property as a result of the unfair competition.’]

The second cause of action for breach of covenant of good faith and fair dealing is defective and fails to state facts sufficient to state a cause of action and is therefore the demurrer to this cause of action is sustained pursuant to CCP Section 430.10(e) since Plaintiffs have not alleged their own performance under the note and deed of trust or an excuse for non-performance. Harm v. Frasher (1960) 181 Cal.App.2d 405, 417. Plaintiffs have also failed to allege any facts showing how any particular provision of the loan documents was frustrated, or how Defendants’ conduct prevented plaintiffs from receiving the benefits in the deed of trust. Defendants’ exercise of its foreclosure rights under the deed of trust cannot constitute a breach of the implied covenant of good faith and fair dealing. Tanner v. Title Ins. & Trust Co. (1942) 20 Cal.2d 814, 824.

Because the first and second causes of action fail to state facts sufficient to state a cause of action, the third cause of action for injunctive relief is also defective and therefore the demurrer to this cause of action is sustained pursuant to CCP Section 430.10(e). Injunctive relief is a remedy and not a cause of action – thus a cause of action must exist before the right to injunctive relief can be shown. Shell Oil Co. v. Richter (1942) 52 Cal.App.2d 164, 168.

The fourth and fifth causes of action for violation of Civil Code section 1572 and Fraud and Forgery are not adequately pled with the required specificity. The allegations are defective and therefore the demurrer to this cause of action is sustained pursuant to CCP Section 430.10(e). There is no allegation of false representation, knowledge, or reliance, all necessary elements of the cause of action. 1 Witkin, Summary 10th Edition (2005) Contracts, Section 266, page 315. Furthermore there are additional facts required when fraud is alleged against a corporation including names of the rpesons who made the fraudulent representations, authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. Archuletta v. Grand Lodge etc. (1968) 262 Cal.app. 2d 202, 208-209.

The sixth cause of action fails since, due to the comprehensive nature of the nonjudicial foreclosure statutory framework the cause of action for declaratory relief is not available. Moeller v. Lien (1994) 25 Cal.App.4th 822, 830. As such the demurrer to this cause of action is sustained pursuant to CCP Section 430.10(e).

It appears that there is a seventh cause of action in the complaint although the caption of the complaint does not mention it. This cause of action is apparently a claim of violation of the Federal Debt Collection Practices Act. The act does not apply to a foreclosure action and as such the demurrer to this cause of action is sustained pursuant to CCP Section 430.10(e). Izenberg v. ETS Services, LLC (2008) 589 F. Supp.2d 1193, 1199.