2015-00184797-CU-FR

Kevin E. King vs. One West Bank, N.A.

Nature of Proceeding: Hearing on Demurrer

Filed By: Franco, Nancy

Defendant Federal National Mortgage Association’s (“Fannie Mae”) (erroneously sued as “Federal National Mortgage”) demurrer to the First Amended Complaint (“FAC”) is unopposed and is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

The Court notes that on December 20, 2018 the clerk rejected plaintiff’s “Motion for Extension of Time” on the basis he had not followed the rules for filing of motions.

The Requests for Judicial Notice are unopposed and are granted. (See Poseidon Devel., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117-18; see also Stratford Irrig. Dist. v. Empire Water Co. (1941) 44 Cal.App.2d 61, 68 [recorded land documents, not contracts, are the subject of judicial notice on demurrer].) The court, however, does not accept the truth of any facts within the judicially noticed documents except to the extent such facts are beyond reasonable dispute. (See Poseidon Devel., 152 Cal.App.4th at 1117-18.) see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 265 (“[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 the recorded document, and the document’s legally operative language, assuming there is no genuine dispute regarding the document’s authenticity.”)

In this action, Plaintiff alleged in the Complaint causes of action for Quiet Title, Breach of Contract and for violations of Business & Professions Code § 17200. Plaintiff alleges that he is the son of Eugenia King who is deceased and was apparently the

owner of the subject property. He alleges that he “wants to take

possession” of the subject property. He alleges that some unnamed defendants “illegally” transferred the property deed” to Defendant and foreclosed without notifying him. On October 23, 2018, the Court sustained the demurrer with leave to amend on the grounds of uncertainty and failure to state facts sufficient to constitute a cause of action. (See Minute Order October 23, 2018)

The First Amended Complaint (“FAC”) fails to cure the numerous defects identified in the demurrer to the original Complaint and the Court’s order sustaining that Demurrer. Despite the opportunity to amend the pleading, the FAC is unintelligible and does not state sufficient facts to state a cause of action against Defendant Federal National Mortgage Association (“Fannie Mae”)
(erroneously sued as “Federal National Mortgage”).

Plaintiff appears to bring causes of action for quiet title, breach of contract, wrongful foreclosure, and violation of Business and Professions Code section 17200. The FAC is devoid of facts to support any cause of action and instead consists of a mishmash of pages numbered one through five; a conformed copy of an Order Dismissing Adversary Proceeding issued by the United States

Bankruptcy Court, Eastern District of California, Case No. 17-27766-C-13; a conformed copy of an Order issued by the United State District Court, Eastern District of California, Case No. 2:18-mc- 00049-WBS-AC; the docket for King i). Federal National Mortgage Association, Case No. 2:18-mc-00049- WBS-AC; pages numbered ten and eleven which are labeled “Affirmative Defenses” and “Causes of Action”; and documents labeled Exhibits A through F. See FAC.

Plaintiff alleges that his mother, Eugenia T. King, passed away on January

26, 2014 and Plaintiff has a “dream to become the owner of his mother’s home.” Id. at p. 4, ¶ 3. In conclusory fashion, Plaintiff alleges the “property and taxes were changed over to Plaintiff Kevin E. King on October 17, 2014.” Id. at p. 11, ¶ 4. In addition, Plaintiff alleges that he “had more of a right that [sic] anyone claiming a trustee’s deed or deed of trust.” Id. p. 4, ¶ 3. Plaintiff baldly alleges a “breach of contract that is owed to Plaintiff on the home” (id. at p. 11, ¶ 8) and “illegal foreclosure, due to Plaintiff not being served a notice” (id. at p. 10, ¶ 1). But plaintiff never appears as a record owner of the property, nor does he allege such.

A Notice of Default was recorded against the Property on or about May 19, 2014. See RJN, Exhibit 2. The Notice of Default indicates the Deed of Trust “became all due and payable on January 26, 2014 for one or more of the following breaches: (1) within 30 days of the date of death of the last surviving borrower. . . (2) all of a borrower’s title in the property. . . is sold or transferred. … (3) the property ceases to be the principal residence of a borrower… [or] (4) an obligation of the borrower

under said Note and Deed of Trust was not performed.” Id. $290,818.50 was due and owing as of May 15, 2014. Id

A Notice of Trustee’s Sale [Eugenia T. King is noted as the sole “borrower”] was recorded on or about September 22, 2014 against the Property and a foreclosure sale was scheduled for October 24, 2014. See RJN, Exhibit 3. A Trustee’s Deed Upon Sale was recorded against the Property on or about October 29, 2014. See RJN, Exhibit 4. Pursuant to the Trustee’s Deed Upon Sale, the Grantee was the foreclosing beneficiary; the amount of the unpaid debt was $296,097.04; and the amount paid by the Grantee at the sale was $176,000. Id. Plaintiff does not reside in the Property. See

FAC, p. 10, ¶ 11.

A demurrer tests the legal sufficiency of the pleadings, raising issues of law, not fact, regarding the form or content of the opposing party’s pleading. (Code of Civil Procedure sections 422.10 and 589.) A demurrer is used to challenge defects that appear on the face of the pleading under attack. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer can be utilized where a complaint itself is incomplete or

discloses some defense that would bar recovery. (Guardian North Bay, Inc. v. Superior Court (Myers) (2001) 94 Cal.App.4th 963, 971-972.)

A demurrer to an alleged cause of action must be sustained where “[the pleading does not state facts sufficient to constitute a cause of action”, (C.CP. § 430.10, subd. (e)), or is “uncertain,” i.e., ambiguous or unintelligible. (C.CP. § 430.10, subs, (f).) Only well-pled facts suffice to state a cause of action under California law, and conclusory assertions are disregarded in ruling on a demurrer. (Serrano v. Priest (1 971) 5 Cal.3d 584, 591.) While the Court must accept as true all material allegations properly pled in the complaint in evaluating a demurrer, the Court need not accept legal conclusions, contentions or deductions. (Buller v. Sutter Health (2008) 160 Cal.App. 4th 951, 986 (on demurrer, “[we do not assume the truth of contentions, the deductions or conclusions of fact or law.”) [internal quotations marks omitted]. See also Freeman v. San Diego Ass ‘n of Realtors (1999) 77 Cal.App.4th 171, 144, fn.11; Aubry v. Tri-City Hospital (1992) 2 Cal.4th 962, 966-67.) Plaintiff bears the burden of pleading facts sufficient to state a claim; courts will not supply essential elements of a claim that were not initially pled. (See Richards v. Harper (9th Cir. 1988) 864 F.2d 85, 88.) And, to survive dismissal, the complaint’s “[factual allegations must be enough to raise a right to relief above the speculative level.” (Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544, 555.)

The facts alleged as well as matters judicially noticed reveal that plaintiff is not the borrower under the Deed of Trust. See RJN. Therefore, Plaintiff is not the real party in interest and lacks standing to prosecute this lawsuit. See Gantman v. United Pac. Ins. Co. (1991) 232 Cal. App. 3d 1560, 1566. Plaintiff cannot prosecute the action on behalf his mother’s estate because he did not file the requisite declaration stating that he is his mother’s successor in interest. See Cal Civ. Proc. Code § 377.32.

1st cause of action Quiet Title

The demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

To quiet title, a plaintiff must allege: (1) a description of the subject property; (2) “[t]he title of the plaintiff as to which a determination is sought. . . and the basis of the title”;

(3) “[t]he adverse claims to the title of the plaintiff against which a determination is sought”; (4) “[t]he date as of which the determination is sought” and “a statement of the reasons why a determination as of that date is
sought”; and (5) “[a] prayer for the determination of the title of the plaintiff against the adverse claims.” Cal. Civ. Proc. Code § 761.020(a)-(e). “Few principles of our law are more ‘fundamental (than) that a party who would quiet his title must prevail, if at all, on the strength of his own title and not on the weakness of the claims of an adversary'”

Kunza v. Gaskell (1979) 91 Cal. App. 3d 201, 207.

Plaintiff lacks standing to quiet title to the Property because his alleged interest in the

Property is contradicted by the recorded documents. See Thompson v. loane (2017) 11 Cal App. 5th 1180, 1193. Additionally, Plaintiff does not allege that Fannie Mae claims an adverse interest in the Property or that any deed of tmst or note remains as an improper cloud on tide. See FAC. Plaintiff further does not allege the date as of which the determination is sought or the requisite explanation of why a determination as of that date is requested. See Cal. Civ. Proc. Code § 761.020.

2nd cause of action Breach of Contract

The demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action.

“The essential elements of a breach of contract claim are: (1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff” Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal App. 4th1602,1614. Facts alleging a breach of contract must be pleaded with specificity. Levy v. State Farm Mut. Auto Ins. Co.(2007) 150 Cal. App. 4th 1, 5. If an action “is based on an alleged breach of a written contract, the

terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Otworth v. S. Pac. Transportation Co.(1985) 166 Cal. App. 3d 452, 459. Despite being given leave to amend, Plaintiff does not identify any written or oral contract; attach any written contract to the FAC; or set out verbatim in the body of the complaint what the alleged terms were.

3rd cause of action Wrongful Foreclosure

The demurrer is sustained without leave to amend.

Generally, Plaintiff may not amend the pleading to add new causes of action absent permission. See Cnty. Water Coal. v. Santa Cruz Cty. Local Agency Formation Com

.(2011) 200 Cal App. 4th 1317,1329, as modified on denial of reh’g (Dec. 9, 2011) (“It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all.”); see also Harris V. Wachovia Mortg., FSB (2010)185 Cal App. 4th 1018, 1023.

Even if the cause of action were within the scope of leave to amend, the cause of action fails to state sufficient facts to constitute a cause of action.

Plaintiff does not allege any purported sale was illegal, fraudulent, or willfully oppressive. See FAC. Without any factual support. Plaintiff concludes an “illegal foreclosure” occurred “due to Plaintiff not being served a notice.” FAC, p. 10, 1. This conclusory allegation is insufficient to overcome demurrer. See Rakestraw, 81 Cal. App. 4th at 43 (“In reviewing the sufficiency of a complaint against a general demurrer, this court treats the demurrer as admitting all material facts

properly pleaded, but not contentions, deductions, or conclusions of fact or law.”). As discussed above, the Property was previously owned by Eugenia T. King, not Plaintiff. See FAC. Therefore, Plaintiff is not the borrower under the Deed of Trust; Plaintiff’s alleged interest in the Property is contradicted by the recorded documents. Plaintiff’s

alleged subjective beliefs and aspirations to own the home are immaterial. Therefore, there are no facts to support plaintiff’s theory that he was entitled to “notice” of the foreclosure. See RJN.

Additionally, plaintiff does not allege a credible tender as required to state a claim for wrongful foreclosure. “When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure.” Alicea v. GE Money Bank, No. C 09-00091 SBA, 2009 WL 2136969, at *3 (N.D. Cal. July 16, 2009). “As a general rule, a debtor cannot set aside the foreclosure based on irregularities in the sale without also alleging tender of the amount of the secured debt.” Ram v. OneWestBank, FSB (2015) 234 Cal App. 4th 1, 18.

4th cause of action Violation of Business & Professions Code section 17200. The demurrer is sustained without leave to amend for failure to state facts sufficient to constitute a cause of action and for uncertainty.

The UCL prohibits unlawful, unfair, and fraudulent business practices. See Cal. Bus. & Prof Code § 17200. While virtually any law-federal, state or local-can serve as a predicate for a UCL action, a plaintiff may not ‘”plead around’ an ‘absolute bar to relief simply ‘by recasting the cause of action as one for unfair competition.'” Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Tel Co.(1999) 20 Cal. 4th 163,182. A claim for violation of the UCL “stand[s] or fall[s] depending on the fate of the antecedent substantive causes of action.” Krantz v BT Visual Images, LLC (2001) 89 Cal.App.4th, 164, 178. As plaintiff has failed to state a cause of action under any asserted theory, the demurrer to this cause of action is sustained as well.

Self-represented litigants are not entitled to special treatment. Nelson v Gaunt (1981) 125 Cal. App.3d 623, 638-639. The Court recognizes that plaintiff is self-represented and no doubt has little or no legal training. However, self-represented litigants required to follow the procedural rules that govern civil litigation. McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523. A party representing himself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210)

As the Court has determined that the defects of the First Amended Complaint cannot be cured despite plaintiff having been given the opportunity to amend, no further leave to amend is granted.

The demurrer to each cause of action is sustained without leave to amend for failure to state facts sufficient to state a cause of action and for uncertainty.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.