Case Number: TC029035 Hearing Date: March 20, 2018 Dept: A

# 12. Melvin Burrows v. Sam Chandra, et al.

Case No.: TC029035

Matter on calendar for: Unopposed motion for judgment on the pleadings

Tentative ruling:

I. Background

Self-represented Plaintiff Melvin Burrows has filed a “Complaint for Preliminary and Permanent Injunctions to Quiet Title of Wrongful Foreclosure; Violation of Penal Code section 487(a) Grant Theft $28,000 in Damages and Stay of Unlawful Detainer.” Plaintiff alleges two Causes of Action in the body of the Complaint, both for “Injunctive Relief.”

Plaintiff alleges that:

· He is the former owner of property that was sold to Defendants at a trustee’s sale;

· Defendants are now seeking to evict Plaintiff via Unlawful Detainer action;

· The UD action is being wrongfully prosecuted;

· Defendants (unspecified who) ordered a “gang of men” to commit grand theft at the property;

· The foreclosure was wrongful; and

· An attorney advised Plaintiff that he could rescind the foreclosure and obtain title to the Property.

Defendants Sam Chandra, Breckenridge Property Fund 2016, LLC, Olivia Reyes, and Wedgwood filed an Answer to the Complaint on February 14, 2018. These Defendants now move unopposed for judgment on the pleadings.

II. Analysis

A defendant may move for judgment on the pleadings on the ground that the entire complaint (or any of its causes of action) does not state facts sufficient to constitute a cause of action. (CCP § 438(c)(1)(B)(ii).)

The Court grants Defendants’ Request for Judicial Notice (“RJN”) under Evidence Code § 452.

Defendants’ motion is meritorious because:

· Defendant Breckenridge appears to hold title to the property as a bona fide purchaser and is invulnerable to Plaintiff’s challenge to title. (RJN, Exh. 1; Melendrez v. D&I, Inv., Inc. (2005) 127 Cal.App.4th 1238, 1251-1255.)

· The Complaint is uncertain. Plaintiff fails to specify which Defendant committed which wrong.

· Plaintiff has failed to allege tender of the amount of the secured debt. This is a prerequisite to setting aside any foreclosure sale. (See Shuster v. BAC Home Loans Servicing, LP (2012) 211 Cal.App.4th 505, 512.)

· With respect to the Conversion claim, the mere act of taking possession of a building and locking it does not constitute conversion of the personal property inside. (Zaflow v. Kroenert (1946) 29 Cal.2d 541, 550-51.) Plaintiff has also failed to allege damages for recovery of the property or damages based on the value of the property. (Taylor v. Forte Hotels International (1991) 235 Cal.App.3d 1119, 1124.)

· The IIED claim fails because all the other causes of action fail. (Flynn v. Highan (1983) 149 Cal.App.3d 677, 681.)

· The First Cause of Action for Injunctive Relief, to the extent it is based on wrongful eviction, fails because Plaintiff fails to plead that he was evicted. (Ginsberg v. Gamson (2012) 205 Cal.App.4th 873, 900.)

· The Second Cause of Action for Injunctive Relief appears to be based on Penal Code § 487(a), grand theft, but “grand theft is a criminal cause of action, which cannot be brought by a private individual, such as Plaintiff.” (Elliott v. Benefits Management Corp. (N.D. Cal. Nov. 1, 2013) 2013 WL 6921279 at *3, citing Ellis v. City of San Diego (9th Cir. 1999) 176 F.3d 1183, 1189 (stating that the California Penal Code “do[es] not create enforceable individual rights”).)

The Court grants Defendant’s motion for judgment on the pleadings with 20 days’ leave to amend.