FOX V. LITTON LOAN SERVICING, LP, ET AL.

CASE NO. 19CV344177

Case Name: Fox v. Litton Loan Servicing, LP, et al.

Case No.: 19CV344177

Defendants Ocwen Loan Servicing, LLC (“Ocwen”), U.S. Bank as Trustee for GSAA Home Equity Trust 2006-9, Asset-Backed Certificates, Series 2006-9 (U.S. Bank”) and Litton Loan Servicing, LP (“Litton”) (collectively, “Defendants”) demur to the complaint (“Complaint”) filed by plaintiff Zailey Fox (“Plaintiff”).

I. Factual and Procedural Background
II.

In January 2006, Plaintiff purchased a real property located in Campbell (the “Property”) with a loan (the “Loan”) from Plaza Home Mortgage, Inc. that was secured by a deed of trust (“DOT”) on the Property. (Complaint, ¶¶ 17-18; Defendants’ Request for Judicial Notice (“RJN”), Exhibit 1.) On October 13, 2009, trustee the Wolf Law Firm filed a Notice of Default (“NOD”) against the Property. (Complaint, ¶ 20.) The Loan was subsequently assigned to IndyMac Bank F.S.B, followed by defendant Litton and defendant Ocwen. (Id. at ¶¶ 21, 24.) Prior to the assignment to Ocwen, Litton filed a Notice of Trustee Sale on January 15, 2010. (Id. at ¶ 22.) No sale ultimately took place.

On February 2009, Plaintiff requested to apply for a loan modification. (Complaint, ¶ 37.) Litton advised Plaintiff of the documents she was required to submit in order to apply. (Id.) Plaintiff subsequently provided Litton with all of the requested documents, but Litton claimed on multiple occasions that it had not received such documents or had lost them. (Id., ¶ 38.) Litton also allegedly failed to assign Plaintiff with a single point of contact (“SPOC”) as required by the California Homeowners’ Bill of Rights (the “HBOR”). (Id., ¶ 40.)

In order to save the Property from foreclosure, Plaintiff filed for Chapter 13 bankruptcy in February 2010. (Complaint, ¶ 51.) She sought loan modification during that time, and in July 2010, was approved for a HAMP modification with new payments effective August 2010. (Id., ¶¶ 52-53.)

Plaintiff alleges that at various times Litton improperly assessed late fees on her account, as well as charges for insurance despite that fact that she maintained the requisite homeowners’ insurance on the Property. (Complaint, ¶¶ 26-35.) Plaintiff further alleges that she made her mortgage payments on a continual basis until February 2012, when health issues that had begun to affect her several years prior made it difficult to do so. (Complaint, ¶ 25.) Plaintiff maintains that she attempted to modify her loan and correct charges on her account with Litton over twenty times. (Id. at ¶ 39.) Additionally, she maintains that Litton denied her modification application for reasons that were not supported by financial factors and that it was motivated to foreclose so as realize a benefit from the equity in the Property. (Id., ¶ 41.) Litton also engaged in impermissible “dual-tracking,” i.e., it continued to proceed with foreclosure while her application for a loan modification was under review. (Id., ¶ 43.)

Further efforts to obtain a modification once the Loan was assigned to Ocwen were unsuccessful, with Ocwen also failing to comply with the HBOR. (Complaint, ¶¶ 71, 73-74.) Ocwen also unnecessarily placed insurance on the Property, resulting in penalties and higher premiums, and failed to pay property taxes from an escrow account set up with Plaintiff’s mortgage payments, resulting in further penalties. (Id., ¶ 69.)

Based on the foregoing, Plaintiff filed the instant action on March 6, 2019, asserting the following causes of action: (1) declaratory relief; (2) fraud; (3) breach of contract; (4) violation of HBOR; (5) intentional misrepresentation; (6) negligent misrepresentation; (7) intentional infliction of emotional distress; (8) negligent infliction of emotional distress; and (9) violation of Business & Professions Code § 17200. On May 20, 2019, Defendants filed the instant demurrer to each of the nine causes of action asserted in the Complaint on the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff opposes the motion.

III. Defendants’ Request for Judicial Notice
IV.

In support of their demurrer to the Complaint, Defendants request that the Court take judicial notice of the following items: (1) the DOT recorded on the Property (Exhibit 1); (2) the NOD recorded on February 27, 2018 (Exhibit 2); (3) a Notice of Trustee’s Sale recorded on January 7, 2019 (Exhibit 3); (4) the complaint filed by Plaintiff against Ocwen and other parties in her Chapter 13 case filed in U.S. Bankruptcy court on January 4, 2015 (Exhibit 4); and (5) the dismissal of the foregoing complaint on August 5, 2015 (Exhibit 5). These materials are all proper subjects of judicial notice as publicly recorded documents or court records. (Evid. Code, § 452, subds. (d) and (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [taking judicial notice of property records, including deeds of trust and foreclosure-related documents] [disapproved on other grounds in Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919].) However, the Court only takes judicial notice of the existence of these items, and not the truth of their contents. With the foregoing qualification, Defendants’ request for judicial notice is GRANTED.

V. Defendants’ Demurrer
VI.

A. Statute of Limitations
B.

In support of their demurrer, Defendants first make an argument that they contend applies with equal force to nearly all of the claims asserted in the Complaint and operates to bar them- namely, that they are time-barred by the various applicable statutes of limitation.

As a general matter, a demurrer lies where the dates alleged in the complaint show “clearly and affirmatively” that the action is barred by the statute of limitations, and “it is not enough that the complaint shows that the action may be barred.” (Geneva Towers Ltd. Partnership v. City & County of San Francisco (2003) 29 Cal.4th 769, 781 [emphasis added].) Defendants explain that the allegations in the Complaint exclusively address purported events that occurred from 2008 through 2016, and the instant action was not filed until March 6, 2019, over three years after the time period covered by the factual allegations ended, rendering all of the claims based on those events untimely. Defendants maintain that this is the case based on the following applicable statute of limitations:

 Declaratory relief: the same statute of limitations as that applicable to the ordinary action based on the same claim (Mangini v. Aerojet- General Corp. (1991) 230 Cal.App.3d 1125, 1155);

 Fraud: three years (Code Civ. Proc., § 338, subd. (d));

 Breach of contract: four years (Code Civ. Proc., § 337);

 Violation of the HBOR: three years (Code Civ. Proc., § 338, subd. (a); Benefielf v. Bryco Funding, Inc. (N.D. Cal. 2014) 2014 WL 2604363, *3);

 Intentional misrepresentation: three years (Code Civ. Proc., § 338, subd. (d));

 Negligent misrepresentation: two years (Code Civ. Proc., § 335.1);

 Intentional infliction of emotional distress: two years (Code Civ. Proc., § 335.1);

 Negligent infliction of emotional distress: two years (Code Civ. Proc., § 335.1);

 Violation of Business & Professions Code § 17200 (the “UCL”): four years (Bus. & Prof. Code, § 17208)


The statute of limitations begins to run when the particular cause of action “accrues.” (Code Civ. Proc., § 312.) Generally, a cause of action accrues when, under the substantive law, the wrongful act is done or the wrongful result occurs, and the consequent liability arises. (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) Accrual has also been described as taking place “upon the occurrence of the last element essential to the cause of action.” (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 815.) An exception to the foregoing standard is the so-called “discovery rule,” which postpones accrual of certain causes of action until the plaintiff discovers, or has reason to discover, the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) The rule assumes the existence of all of the elements of the cause of action, including injury, and “protects those who are ignorant of their cause of action through no fault of their own.” (April Enterprises, Inc. v. KTTV (1983) 147 Cal.App.3d 805, 832.) Of the claims asserted by Plaintiff in the action at bar, fraud is the only in which the discovery rule has expressly been applied to its accrual via statute. (Code Civ. Proc., § 338, subd. (d).) While the discovery rule operates to protect prospective plaintiffs, it is their burden, where their claim otherwise appears to be time-barred, to establish its applicability to their claim; this requires specifically pleading facts showing “(1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (Fox, supra, 35 Cal.4th at 808.)

Defendants argue that seven of the nine claims asserted by Plaintiff in the Complaint are governed by a three year (or less) limitations period, and with the Complaint being filed more than three years after the last date alleged by Plaintiff (January 22, 2016), these claims (i.e., declaratory relief, fraud, intentional/negligent misrepresentation, violation of the HBOR and intentional/negligent infliction of emotional distress) are clearly time-barred. As these claims are currently pleaded, the Court agrees with Defendants. All of the conduct upon which these causes of action are predicated precedes January 22, 2016; thus, to the extent that Plaintiff desired to pursue timely claims based upon said events, she would have needed to have filed suit well before March 6, 2019, when she actually did.

In her opposition, Plaintiff maintains that Defendants committed additional wrongful acts last year that support her claims, but none of these acts are actually pleaded in the Complaint. Additionally, while she makes mention of the discovery rule and suggests that she is entitled to rely on it, she fails to plead the necessary facts establishing the time and manner of discovery and the inability to have made earlier discovery despite reasonable diligence. Thus, Plaintiff has not successfully rebutted Defendants’ showing that seven of the nine claims pleaded in the Complaint are untimely and the demurrer to these causes of action is therefore sustainable on this basis. In additional to the issue of timeliness, Defendants argue that Plaintiff’s claims suffer from further deficiencies that warrant the sustaining of the demurrer. These arguments will be addressed in turn below.

C. Specific Claims
D.

1. Declaratory Relief (First Cause of Action)
2.

In the first cause of action, Plaintiff alleges that an actual controversy exists between herself and Defendants regarding their respective rights and duties to the Property, and she requests a declaration from the Court as to who owns the Property and whether Defendants have a right to continue with the foreclosure sale. Defendants argue that in addition to being untimely, this claim fails because: (1) Plaintiff’s allegations are insufficient to establish the existence of an actual controversy between the parties because there has been full compliance with all of the relevant foreclosure statutes; and (2) a declaratory action does not lie to determine the same issues raised in other claims, as is the case here.

Defendants’ assertion that the claim is deficient because it has complied with all applicable laws can be disposed of quite readily as whether or not it actually did so is a factual issue that cannot be resolved on demurrer. The same cannot be said of the second argument, which the Court finds persuasive because “the object of the [declaratory relief] statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues” (see California Ins. Guar. Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623-1624 [emphasis added]), and it is clear that this cause of action introduces no issue that is not addressed by the other eight causes of action. Consequently, Defendants’ demurrer to the first cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

3. Fraud (Second Cause of Action)
4.

Plaintiff’s second cause of action for fraud is predicated on allegations that Defendants engaged in a variety of wrongful acts (including many that actual do not qualify as fraudulent within the meaning of the applicable statute) including, but not limited to: not maintaining an accurate accounting of Plaintiff’s Loan; failing to respond to Plaintiff’s requests to rectify improper charges on her account; imposing improper penalties and insurance costs on her account; failing to assign a SPOC; and falsely representing to Plaintiff that assignment of the Note was recorded, and that Defendants were the true holders of the Note, that Litton contacted Plaintiff as required by Civil Code section 2923.5 prior to initiating foreclosure proceedings; and engaging in dual tracking. (Complaint, ¶ 83.)

Defendants maintain that this claim is deficient because Plaintiff has not pleaded all of the necessary elements or met the requisite level of specificity. These assertions are well taken.

The elements of a claim for fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or “scienter”); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Moreover, fraud must be plead with specificity; this standard is met by pleading facts which “show how, when, where, to whom, and by what means the representations were tendered. (See Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) In the case of a corporate defendant, as is the case here, 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., supra, 214 Cal.App.4th at p. 793 [citation and quotation marks omitted].) Here, Plaintiff fails to set forth specific misrepresentations made to her, who made the misrepresentations and how, when those misrepresentations were made, and the authority of the speaker to do so on behalf of the corporation. Further, Plaintiff has not articulated how she suffered damages (and the nature of those damages) as a result of Defendants’ alleged misrepresentations as opposed to her own actions, specifically her default, which preceded Defendants’ purported misdeeds. (See Complaint, ¶ 25.)

Given the foregoing failures, which Plaintiff fails to persuasively rebut in her opposition, as well as the untimeliness of the claim, Defendants’ demurrer to the second cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

5. Breach of Contract (Third Cause of Action)
6.

In the third cause of action, Plaintiff alleges that Defendants breached the written agreement that she entered into to purchase the Property in February 2006 in a variety of ways, including by failing to comply with all applicable state and federal laws relative to the extension of credit and mortgages and the foreclosure process. (Complaint, ¶¶ 96-99.) Plaintiff additionally alleges that Defendants breached an oral agreement and/or implied in fact contract with her to review her loan modification applications in good faith. (Id., ¶¶ 100-114.) Defendants argue that this claim is deficient because she fails to plead all of the necessary elements of the cause of action and she cannot state a claim based on an oral/implied in fact agreement.

In order to state a claim for breach of contract, a plaintiff must plead facts establishing the following elements: (1) the existence of a contract; (2) the plaintiff’s performance or excuse for nonperformance; (3) the defendant’s breach; and (4) damages to the plaintiff as a result of the breach. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) Here, Defendants persuasively assert that Plaintiff has not stated a claim for breach of contract based on the written agreement because she has not and cannot plead her own performance given her default, and also cannot plead damages (the potential loss of the Property and related emotional distress) as a result of Defendants’ actions rather than her own default.

With respect to the purported oral/implied in fact agreement between the parties, the Court also finds persuasive Defendants’ contentions that a claim based on such an agreement has not been stated because (1) an oral agreement to consider modifying an agreement regarding an interest in land must be in writing or it would violation the statute of frauds (see, e.g., Secrest v. Security Nat.l Mortg. Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552; Civ. Code, §§ 1624, subd. (a)(3) and 2922) and (2) no additional consideration is alleged to have supported the formation of such an agreement. In an action on an oral agreement, the essential element of consideration must normally be alleged. (Acheson v. Western Union Tel. Co. (1892) 96 Cal. 641, 644.) “[A] commitment to perform a preexisting contractual obligation has no value. In contractual parlance, for example, doing or promising to do something one is already legally bound to do cannot do something one is already legally bound to do cannot constitute the consideration needed to support a binding contract.” (Auerbach v. Great Western Bank (1999) 74 Cal.App.4th 1172, 1185.) Here, Plaintiff fails to plead a promise to do anything additional that she was not already obligated to do so as to meet the requirement of consideration.

In her opposition, Plaintiff impliedly concedes the merits of the foregoing arguments by simply failing to address them in any capacity. Consequently, given these deficiencies, Defendants’ demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

7. Violation of Homeowners’ Bill of Rights (Fourth Cause of Action)
8.

In the fourth cause of action, Plaintiff alleges that Defendants breached the HBOR by engaging in dual tracking, recording an NOD without attempting to contact her to discuss foreclosure alternatives, and failing to provide her with a SPOC as required. (Complaint, ¶¶ 118-128.)

As a general matter, the HBOR is a series of statutes drafted by the California Legislature to “address more pointedly the foreclosure crises in … [the] state” and to place specific limitations on the nonjudicial foreclosures of owner-occupied residential real property, such as Plaintiff. (Monterossa v. Superior Court (2015) 237 Cal.App.4th 747, 752.) As relevant here and among other things, the HBOR requires servicers to provide borrowers with a “single point of contact” to enhance communication (Civ. Code § 2923.7), and prohibits dual tracking, which occurs when a servicer continues with a foreclosure while the borrower’s application for a loan modification is under review, or within 30 days of the application’s denial. (Civ. Code, § 2923.6; Lueras v. BAC Home Loan Servicing, LP (2013) 221 Cal.App.4th49, 86, fn. 14.) Further, Civil Code section 2923.5 of the HBOR requires a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent to contract the borrower in person or by telephone to assess his or her financial situation and explore options to avoid foreclosure before recording a notice of default. (Civ. Code, § 2923.5, subd. (a).) The notice of default must include a declaration stating that the mortgage servicer contacted the borrower or tried to contact him or her in accordance with the statute. (Civ. Code, § 2923.5, subd. (b).)

In addition to a lack of timeliness, Defendants insist that this claim fails because (1) Plaintiff admits, based on what is alleged in the Complaint, that she was in extensive contact with Defendants regarding options to avoid foreclosure, and therefore any purported violations of the contact requirements would not be “material” and (2) the HBOR does not require that a SPOC to Plaintiff’s satisfaction be appointed. With regard to the first argument, the mere fact that Plaintiff was in contact with Defendants does not necessarily mean that Defendants complied with their statutory obligations. However, the Court agrees that given this contact, Plaintiff has not pleaded facts establishing the materiality of Defendants’ alleged noncompliance, i.e., that she suffered any damages as a result of their failure as opposed to her own default.

The Court rejects Defendants’ second argument. A SPOC defined within Civil Code section 2923.7 of the HBOR as an individual or “team of personnel” “each of whom has the ability and authority to perform the responsibilities described in subdivisions (b) to (d).” (Civ. Code, § 2923.7, subd. (e).) In the Complaint, Plaintiff alleges that she was deprived of an SPOC who was able to perform or was able but failed to perform the foregoing responsibilities. In alleging as much, the Court finds that Plaintiff has pleaded a violation of the HBOR because the aforementioned code section not only mandates the assignment of an individual or team of personnel to a borrower, but also mandates that those individuals be qualified as set forth in the statute. Nevertheless, because this claim as currently pleaded is untimely, Defendants’ demurrer to the fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

9. Intentional Misrepresentation (Fifth Cause of Action)
10.

Plaintiff’s fifth cause of action is predicated, among other things, on alleged misrepresentations made by Ocwen and Litton to Plaintiff in her mortgage statements. (Complaint, ¶ 132.) The necessary elements of this claim are described above in connection with the second cause of action for fraud. Defendants similarly argue that this is claim is not pleaded with the requisite specificity, nor are all of the necessarily elements pleaded, assertions that are both well taken. Plaintiff has not separately set forth what specific misrepresentations were made by each particular defendant, when those representations were made, as well as how she relied on such representations to her detriment. Given these deficiencies and the lack of timeliness of the claim, Defendants’ demurrer to the fifth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

11. Negligent Misrepresentation (Sixth Cause of Action)
12.

Plaintiff’s sixth cause of action is essentially identical to the preceding claim for intentional misrepresentation. Defendants assert that this claim fails for the same reasons, an assertion that is well taken because “[t]he elements of negligent misrepresentation are similar to intentional fraud except for the requirement of scienter; in a claim for negligent misrepresentation the plaintiff need not allege the defendant made an intentionally false statement, but simply one as to which he or she lacked any reasonable ground for believing the statement to be true.” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 184.) Both fraud and negligent misrepresentation must be pled specifically, and this particularized pleading standard requires allegations showing how, when, where, to whom, and by what means the representations were tendered. (Lazar v. Super. Ct., supra, 12 Cal.4th, at p. 645; see also Small v. Fritz (2003) 30 Cal. 4th 167, 184.) As stated above, to state a claim based on a company’s employee’s misrepresentations, the plaintiff must allege the names of the persons who made the representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Lazar v. Super. Ct., supra, 12 Cal.4th, at p. 645.)

As with the preceding claim, in the sixth cause of action Plaintiff fails to separately set forth what specific misrepresentations were made by each particular defendant, when those representations were made, as well as how she relied on such representations to her detriment. Consequently, Defendants’ demurrer to the sixth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

13. Intentional Infliction of Emotional Distress (Seventh Cause of Action)
14.

In the seventh cause of action, Plaintiff alleges that Defendants’ conduct was outrageous and caused her to suffer severe emotional distress, resulting in a suicide attempt. (Complaint, ¶¶ 156-158.) Defendants contend that this claim fails because Plaintiff has not pleaded conduct that actually qualifies as “outrageous” so as to support an intentional infliction of emotional distress (“IIED”) cause of action.

The elements of a claim for IIED are: “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.” (Davidson v. City of Westminister (1982) 32 Cal.3d 197, 209.) “With respect to the requirement that a plaintiff show severe emotional distress, [the California Supreme C]ourt has set a high bar.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) “Conduct, to be ‘outrageous,’ must be so extreme as to exceed all bounds of that usually tolerated in a civilized society. 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 Cal. (1989) 209 Cal.App.3d 878, 883 [internal citations omitted].)

The Court agrees with Defendants that Plaintiff has failed to plead conduct which qualifies as “outrageous.” Courts have generally found as a matter of law that foreclosing on property and acts normally associated with that process do not amount to the “outrageous” conduct necessary support a claim for IIED. (See, e.g., Aguinaldo v. Ocwen Loan Servicing, LLC (N.D. Cal. 2012) 2012 WL 3835080; Davenport v. Litton Loan Servicing, LP (N.D. Cal. 2010) 725 F.Supp.2d 862, 884; Helmer v. Bank of Am., N.A. (E.D. Cal. 2013) 2013 WL 1192634.) Thus, given this failure and the lack of timeliness of the claim, Defendants’ demurrer to the seventh cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

15. Negligent Infliction of Emotional Distress (Eighth Cause of Action)
16.

Plaintiff’s eighth cause of action for negligent infliction of emotional distress (“NIED”) essentially mirrors the preceding claim. Defendants maintain that their demurrer to this claim should be sustained because the negligent causing of emotional distress is not an independent tort, but rather the tort of negligence, and there is no duty to avoid negligently causing the emotional distress of another.

While Defendant is correct that NIED is in truth essentially a claim for negligence, NIED itself is a recognized cause of action under California law. More specifically, NIED “is a form of the tort of negligence, to which the elements of duty, breach of duty, causation and damages apply.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) A plaintiff may state a claim for NIED as either a bystander or a direct victim. (Wooden v. Raveling (1968) 61 Cal.App.4th 1035, 1037.) Thus, the assertion that no such claim exists as a general matter does not provide a basis on which to sustain the demurrer to this claim. However, given that the claim is untimely as currently pleaded (see above), Defendants’ demurrer to the eighth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

17. Violation of Business & Professions Code § 17200 (Ninth Cause of Action)
18.

In her remaining claim, Plaintiff alleges with all of the aforementioned conduct, Defendants engaged in “unfair competition” within the meaning of the UCL. Defendants argue that no such claim has been stated because (1) Plaintiff lacks standing to pursue such a cause of action and (2) she has not identified any unfair, unlawful, or fraudulent business practice committed by them.

With respect to the first argument, in order to have standing to assert a UCL claim, a plaintiff must plead facts demonstrating that he or she “has lost money or property as a result” of the purportedly wrongful conduct at issue. (In re Tobacco II Cases (2009) 46 Cal.4th298, 325, citing Bus. & Prof. § 17204 [emphasis added].) Plaintiff, Defendants maintain, cannot meet this requirement because any injury she has suffered is a result of her own default and not any wrongful conduct by Defendants and further, she does not allege an actual loss or deprivation of money or property. The “as a result” language of the statute means that there must be a causal connection between the economic injury and the alleged unfair conduct. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 326.) Defendants’ standing argument is well taken as not only has Plaintiff failed to plead facts demonstrating that she lost money or property “as a result” of Defendants’ alleged wrongful conduct, but also to the extent that the potential loss of the Property is a cognizable harm, she fails to plead facts which establish that she incurred such harm as a result of Defendants’ actions as opposed to her own default, the fact of which is not in dispute. Thus, the UCL claim is demurrable on this basis.

As for the second argument, the UCL “borrows” violations from other laws by making them independently actionable as “unfair” business practices. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143.) Defendants maintain that all of Plaintiff’s preceding claims fail and thus it follows that the UCL claim, which is predicated on the same conduct, also fails. While it is true that the underling claims are all demurrable, Defendants’ alleged failure to comply with the HBOR as it relates to the appointment of a qualified SPOC could serve as “unlawful” conduct within the meaning of the UCL. Despite this, given the fact that Plaintiff has failed to plead facts which establish that she has the requisite standing, Defendants’ demurrer to the ninth cause of action on the ground of failure to state facts sufficient to constitute a cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.