Notice Entry of OrderCal. Super. - 6th Dist.April 24, 20181 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 NOTICE OF ENTRY OF ORDER Tarokh v. Bayview Loan Servicing, LLC, et al., Case No. 18CV327044 LOCKE LORD LLP Regina J. McClendon (SBN 184669) rmcclendon@lockelord.com James C. Magid (SBN 233043) james.magid@lockelord.com 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 Telephone: (415) 318-8810 Fax: (415) 676-5816 Attorneys for Defendant CitiMortgage, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA CASEY TAROKH, an individual; Plaintiff, vs. BAYVIEW LOAN SERVICING, LLC.; a Delaware Limited Liability Company; CITIMORTGAGE, INC., a New York Corporation; and DOES 1-100, INCLUSIVE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 18CV327044 NOTICE OF ENTRY OF ORDER SUSTAINING IN PART, AND OVERRULING IN PART, CITIMORTGAGE, INC.’S DEMURRER TO PLAINTIFF’S COMPLAINT Complaint Filed: April 24, 2018 TO ALL PARTIES AND THEIR COUNSEL OF RECORD HEREIN: PLEASE TAKE NOTICE that on October 31, 2018, the Court entered the attached Order Sustaining in Part, and Overruling in Part, CitiMortgage, Inc.’s Demurrer to Plaintiff’s Complaint. / / / / / / / / / / / / / / / / / / Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/2/2018 9:12 AM Reviewed By: System System Case #18CV327044 Envelope: 2129779 18CV327044 Santa Clara - Civil System System Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco‘ CA 94104 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A true and correct copy 0f the Court’s Order is attached hcrcto as Exhibit A. Dated: November 1, 201 8 Respectfully submitted, LOCKE LORD LLP By: W/T’M K) (W Regina J. McClendon James C. Magid Attorneys for Defendant CitiMortgage, Inc. 2 NOTICE OF ENTRY OF ORDER Tarokh vv Bavview Loan Servicing. LLC. el al‘. Case No. 18CV327044 EXHIBIT A Exhibit A, Page 1 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 4; \OOOQQU‘I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24‘ 25 26 27 28 [4:23 FAX 408 8822698 _ 10s Gates Facility ‘ I0002/0021 ‘ . 1 Filed 2" O ober31,2018 Cle k of the Court . Superior Court of CALOCKE LORD LLP ‘3 County of Santa ClaraRegina J McClendon (SBN 184069) f' rmcclendon@lockelord. com ; i I 18CV327044 James C. Magid (SBN 233043) : By: afloresca james.mag'd@lockelord.com I ‘ 1! 101 Montgomery Street, Suite 1950 : San Francisco, CA 941 O4 " 5‘9““: “7’3 0‘3 02:05 PM Telephone: (415) 318-8810 ' ‘ O/K‘ Fax: (415) 676-5816 Attorneys for Defendant CitiMortgage, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY‘ OF SANTA CLARA ) Plaintiff, ) )W ORDER SUSTAINING IN PART, AND OVERRULmG 1N PART, CITMORTGAGE, INC.’S DEMURRER TO PLAINTIFF’S COMPLAINT CASEY TAROKH, an individual; ) CASE No.2 18CV327044 l h BAYVIEW LOAN SERVICING, LLC.; a Delawal‘r LImited Liability Company; CITIMORTGAGE, gla‘rée INC, a New York Corporation; and DOES 1-10 INCLUSIVE, Date: October 9, 201 8 Time: 9:00 a.m. Location: Dept. 06 VVVVVVVV Defendants. . Complaint Filed: April 24, 201 8 Currently before the Court is the demurr defendant CitiMortgage, Inc. (“CitiMortgage”) to the complaint ofplaintiff Casey Tarokh (“Plainq ’). Fhétual and Proceiéiural Background This action arises out of a denial 0f a requést for a loan modification. On May 3 1, 2007, Plaintiffobtained a loan on his primary residence (the “Property”) “in the amount of [$828,000.00] (‘Note’) through [CitiMortgage] as the lender of the Note.” (Complaint, 1H 1 and 22.) “The Note‘ was secured by a Deed of Trust.” (Id. at 1] 22 and Ex. A.) In 2012, Plaintiff fell behind on his mortgage payments. (Complaint, 1T 24.) 1 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavview Loan Servicing. LLC. et al.. Case No. 18CV327044 Exhibit A, Page 2 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 Snn Francisco, CA 94104 - \O 00 Q OW U! A w N - NNNNNNNNNv-‘v-AHt-‘Hu-tHr-tu-iw-n OOQQM-hWNHODOOQQM-D-WNHO [4:23 FAX 408 8822698 Los uatos racuuy w uuuuuuuuu g “Sometime thereafter, Piaintiff contacted [bitiMortgage] to inquire about his loss mitigation options and, sometime before 2Q14, he submitted a complete loan modification to [CiliMortgage].” (Complaint, 11 25.) Plaintiff then received a letter informing him that his loan modification application was denied. (Ibid) He subsequently “sent in a letter 0f appeal.” (Ibid.) Plaintiffnever received a response to his letter. (Ibid.) “Starting on or about mid-2014 until the end of 2015, Plaintiff made payments, of at least $4250 per month ..., Which {CitiMortgage] claim; were never made.” (Complaint, 11 26.) Plaintifi‘ asked CitiMofigage for an accounting of the Note; showing a breakdown of the total amount owed, interest rate, charges, and fees. (Ibid) However, Pflaintiffnever received the requested accounting. (Id. at 1m 26 and 40.) : “On or around 20 1 5, the servicing rights of the Note [were] transferred fiom [CitiMortgage] to [defendant Bayview Loan Servicing, LLC (‘Bayview’)].” (Complaint, 1[ 27.) Bayview “purports to be the current servicer/lender ofthe Note.” (Id. at 1T 23.) On November 21, 2016, Plaintiffreceived a letter fiom Bayview stating that his loan modification application was denied because his application was “incomplete.” (Complaint, 1I 30.) “However, Plaintiff submitted every document asked of him and never received a response to his appeal . .. .” (Ibid.) 0n December 2, 201 6, Plaintiff received a letter from Bayview stating that his request for a short sale had been received. (Complaint, 1T 28.) One week later, Plaintiff sent an email to Bayview “stating that he only asked for a loan modification and never asked for a short sale.” (Ibid) That same day, “Plaintiff received a phone call fi'om Robert Steigeman [(‘Stcigeman’)] advising [him] to send a communication t0 [Bayview] conveying [his] intent to cancel the short sale application because [he] ha[d] been approved for a loan modification.” (Ibid) Steigeman also told Plaintiff that he would be put on a payment plan. (Ibid) Plaintiff followed Steigeman’s instructions and sent an email to Bayview’s asset manager cancelling the shon sale. (Complaint, 11 28.) Plaintiff also faxed a letter to Steigeman conveying his intent to cancel the short sale. (Ibid) Thereafier, “Plaintifl never received further communications 2 [PROPOSED] ORDER ON DEMU'RRER T0 COMPLAmT Tarokh v. Bawz'ew Loan Servicing. LLC. et al. . Case No. 18CV327044 Exhibit A, Page 3 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 [\J \OOOVQMAUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [4:24 FAX 408 8822698 los Gatos Facility .0004/0021 w fiom [Bayview] conceming the short sale, the promised loan modification, or the promised payment plan.” (Ibid) ‘ On May 4, 2017, Bayview recorded a Notice ofDefault (“NOD”) against the Property. (Complaint, 11 32‘) In the Declaration of Compliance attached to the NOD, Bayview stated that it “ ‘exercised due diligence to contact the borrower pursuant to California Civil Code § 2923.550 to “assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure” ’ ” and “{t}hirty (30) days, or more, have passed since these due diligence efforts were satisfied.” (Id. at 11 33.) These statements were false because “Plaintiffwas never informed of his n'ght to request a meeting to discuss his financial situation” and “it was Plaintiff who contacted [Bayview] to ask for help, while [Bayview] stonewalled Plaintiff’s attempts to seek foreclosure alternatives, ignored his pleas for help, and purposefully prolonged Plaintiffs loss mitigation requests to force him into default.” (Ibid) From apfiroximately July 201 7 until March 29, 201 8, Plaintiffmade monthly payments of at least $2,901 to Bayview. (Complaint, 1i 34.) However, Bayview claims the payments were never made. (Ibid) Plaintiff asked Bayview for an accounting 0fthe Note, “including a breakdown of the total amount owed, interest rate, charges and fees, but Plaintiff . . . never received this accounting.” (Ibid) On October 17, 2017, Plaintiffreceived a letter from Bayview informing him that his loan modification application was denied. (Complaint, fl 35.) Plaintiff alleges that “the monthly income amount, mortgage payment amount, and other information on which [Bayview] based its denial was incorrect.” (Ibid) Plaintiff further alleges that he “never received a response to his appea .” (Ibid) Additionally, “Plaintiff was never assigied a Single Point of Contact (‘SPOC’) t0 help him with his loss mitigation requests.” (Complaint, 1H 36 and 43.) Although he was assigned asset managers, “anytime Plaintiff called to ask questions, these representatives were not available and the [Bayview] representatives he spoke to gave him the runaround, as his calls were constantly transfelred fiom one individual to another, which made it more difficult for Plaintiff to receive updates about his application or seek additional information.” (Id. at 1] 36.) 3 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bawiew Loan Servicing. LLC. et 01.. Case No. 18CV327044 Exhibit A, Page 4 of 20 10/31/2018 Locke Lord LLP 10] Montgomery Street, Suite 1950 San Francisco, CA 94104 \OOOflQUI-bUJNH NNNNNNNNNHp-Ip-II-Ay-AHr-Ap-Ap-IH OOVO‘Ul-bUJNF-‘OOWQQUIAWNHO l 4:25 FAX 408 8822698 los Gatos Fgcility .0005/0021 On March 26, 2018, Plaintifftelephoned Bayview about its March 22 letter, which informed Plaintiff that his loss mitigation application was incomplete. (Complaint, 1] 39.) “[T]he representative placed Plaintiff on hold before returning and informing Plaintiff that his application was denied, [he needed to] pay $300,000, and [he would] receive a rej ection letter in the mail.” (Ibid.) Plaintiff never received the rejection letter. (Ibid) Based on the foregoing allegations, Plaintiff filed a complaint against Bayview and CitiMortgage on April 24, 2018, alleging causes of action for: (1) violation of Civil Code section 2923.7; (2) violation of Civil Code section 2923.6; (3) violation of Civil Code section 2923.55; (4) breach of implied covenant of good faith and fair dealing; (5) accounting; (6) negligence; (7) intentional misrepresentation; (8) negligent misrepresentation; and (9) unfair business practices.m On June 5, 2018, CitiMortgage filed the instant demurrer to the complaint. Plaintiff filed papers in opposition to the demurrer on September 25, 201 8. Discussion I. Request for Judicial Notice CitiMortgage asks the Court to take judicial notice of: (1) a corporate assigament 0f deed 0f IIust recorded with the Santa Clara County Recorder on March 3, 2015; (2) the docket in the case of In re Casey Kazem Tarokh (United States Bankruptcy Court, Noxthem District of California, Case No. 13-56394); and (3) various documents filed in In re Casey Kazem Tarokh (United States Bankruptcy Court, Northern District of California, Case No. 13-56394) and In re Casey Kazem Tarokh (United States Bankruptcy Court, Northern District of California, Case No. 17-51380). As a preliminary matter, the docket and court records from Plaintiff’s bankruptcy cases are not proper subjects ofjudicial notice. A precondition t0 judicial notice is that the matter to be noticed must be relevant to a material issue befo're the reviewing court. (People ex rel. Lockyer v. Shamrock Foods C0. (2000) 24 Cal.4th 415, 422, fil. 2.) Here, the documents related to Plaintist bankruptcy proceedings are not relevant t0 a material issue before the Court. CitiMortgage does not actually rely m The caption of the complaint erroneously states that Plainfifl‘ alleges a ninth cause of action for “Elderly Financial Abuse” and a tenth cause of action for unfair business pracfices. The complaint does not contain a claim for financial elder abuse. Additionally, the complaint does not allege a tenth cause of action. Instead, the final claim alleged in the complaint is the ninth cause of action for unfair business pragtices. [PROPOSED] ORDER ON DEMURRER TO COMPLAJNT Tarokh v. Bawiew Loan Servicing. LLC. et 4].. Case No. 18CV327044 Exhibit A, Page 5 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 QWN \DOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14:25 FAX 408 8822698 lOS Gatos Facility .0006/0021 on the bankruptcy records to suppon any substantive argument; instead, it mentions thve records as part ofthe background of this lawsuit. The remaining document at issue~the comorate assignment of deed of trust-is a proper subject ofjudicial notice as it is a recorded real property document relevant to a material issue before the Court. (See Evid. Code, § 452, subd. (h); see also Fontenot v. Wells Fargo Bank, N.A. (201 1) 198 Ca1.App.4th 256, 264-265, disapproved on other grounds in Yvanova v. New Century Morg. Corp. (2016) 62 Cal.4th 919 [court may take judicial notice of the existence and recordation 0f real property records]; Evans v. California Trailer Court, Inc. (1994) 28 Ca1.App.4th 540, 549 [coun may take judicial notice of recorded deeds].) Accordingly, CitiMortgage’s request for judicial notice is DENIED IN PART and GRANTED IN PART. The request is DENIED as to the docket and court records from Plaintiffs bankruptcy cases. The request is GRANTED as to the corporate assignment of deed of trust. II. Legal Standard The function of a demurrer is to test the legal sufficiency of a pleading. (Trs. OfCapital Wholesale Elec. Etc. Fund v‘ Shearson Lehman Bros. (1990) 221 Ca1.App.3d 617, 621.) Consequently, “[a] demurrer reaches only to the contents ofthe pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see Code Civ. Proc., § 430.30, subd. (a).) “It is not the ordinaJy function of a demurrer to test the truth of the [ ] allegations [in the challenged pleading] or the accuracy with which [the plaintifi] describes the defendant’s conduct. [ ] Thus, [ ] the facts alleged in the pleading are deemed to be hue, however improbable they may be.” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, intemal citations and quotations omitted.) However, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions or conclusions 0f law or fact.” (George v. Automobile Club ofSouthern California (201 1) 201 Cal.App.4th 1112, 1120.) III. Merits of the Demurrer ‘ 5 [PROPOSED] ORDER ON DEMURRER TO COWLAINT Tarokh v. Bavview Loan Servicing. LLC. et a1. . Case No. 18CV3 27044 Exhibit A, Page 6 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 N OOOQOM-hw 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 [4:26 FAX 408 8822698 los Gatos Facility .0007/0021 CitiMortgage demurs to each and every cause of action of the complaint 0n the ground of failure to allege facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e)-) A. Statute of Limitations As an initial matter, CitiMortgage generally argues that the first cause of action for violation of Civil Code section 2923.7, the second cause of action for violation of Civil Code section 2923.6, the third cause of action for violation of Ciw'l Code section 2923.55, the sixth cause of action for negligence, the seventh cause of action for intentional misrepresentation, and the eighth cause Of action for negligent misrepresentation are time-barred by the applicable statutes of limitations. CitiMortgage begins its argument by stating that “an action upon a liability created by statute, other than penalty or forfeiture[,] must be brought Within three years” under Code of Civil Procedure section 338, subdivision (a); “[a] cause of action for intentional misrepresentation is also governed by a three-year statute of limitation[s]” under Code 0f Civil Procedure section 338, subdivision (d); and the claims “for negligent misrepresentation and negligence are both limited by a two-year statute of limitations.” (Dem., pp. 2226-314.) CitiMortgage then points out that the complaint contains the following allegations: Plaintiff submitted a loan modification application “sometime before 2014”; CitiMortgage never responded; CitiMortgage did not correctly credit payments to his account in 2014 and 2015; and CitiMortgage “transferred” the Note to Bayview in 2015. (Dem., p. 3:5-10.) CitiMortgage also asserts that the judicially noticeable documents show that the “assiglment was recorded on March 3, 201 5.” (Ibid) CitiMortgage concludes, “Given that this action was filed on April 24, 201 8, more than three years after CitiMortage assigled the deed of trust to Bayview, and over four years afier the allegations related to any loan modification application (or representations regarding that application) submitted ‘sometime before 2014,’ Plaintiffs causes of action brought under Civil Code [s]ections 2923.6, 2923.33, and 2923.7, as well as his common law causes of action for intentional misrepresentation, negligent misrepresentation, and negligence are all barred .” (Dem., p. 3:1 1- 16.) 6 [PROPOSED] ORDER ON DEMURRER TO COMPLAWT Tarokh v. Bavview Loan Servicing. LLC. 2t aL. Case N0. 18CV327044 Exhibit A, Page 7 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 \OOOfimLh-hWNH NNNNNNNNNt-IHHHHHHr-awp-I OOQQUI-RUJNv-IOWOOQOUIAUJNHO 14:27 FAX 408 8822698 los Gatos Facility .0008/0021 “ ‘The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action.’ [Citations] There is an important qualification, however: ‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ [Citations.]” (E-Fab., Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316.) In assessing whether a claim is time-barrcd, two fundamental questions dn've the analysis: (a) What statute of limitations governs the plaintifl’s cause 0f action? (b) When did the cause of action accrue? (Id. at p. l3 1 6.) Here, CitiMOItgage fails to demonstrate that the first, second, third, sixth, seventh, and eighth causes of action are time-barred by the applicable statutes of limitations. Although CitiMortgage’s argument addresses what statutes of limitations govern Plaintiff’s causes of action, CitiMortgage does not adequately address when the causes of action accrued. CitiMortgage does not identify the date on which each individual cause of action accrued or provide reasoned argument explaining why the causes of action accrued on a particular date. Notably, the claims may have different accrual dates depending on their particular nature. (See e.g., Code Civ. Proc., § 338, subd. (d) [claims for fi'aud accrue once the aggieved party discovers the facts constituting the fraud]; see also Shamsz‘an v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979-80 [“With respect to torts, generally speaking, a claim accrues and the statute of limitations begins to run upon the occurrence of the last event essential to the cause of action.”].) Fulthermore, CitiMortgage does not explain why the claims are time-barred simply because the complaint was filed “more than three years after CitiMortgage assigned the deed of trust to Bayview, and over four years afler the allegations related t0 any loan modification application (or representations regarding that application) submitted ‘sometime before 2014.’ ” CitiMortgage does not present any legal authon'ty or reasoned argument indicating that the claims at issue must have accrued as of the date of execution ofthe corporate assignment of deed of trust or at the time Plaintiff s loan modification application was submitted in 20 14. Consequently, CitiMortgage’s statute of limitations argument fails t0 dispose of the first, second, third, sixth, seventh, and eighth causes of action. 7 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavview Loan Servicing. LLC. et al.. Case No. 18CV327044 Exhibit A, Page 8 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 QGNUI#UJN 00 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14:28 FAX 408 8822698 los Gatos Facility .0009/0021 B. First Cause of Action CitiMortgage argues, among other things, that the first cause of action for violation of Civil Code section 2923.7 fails to state facts sufficient to censtitute a cause of action because the statute only requires a servicer to provide a borrower with a single point 0f contact upon an explicit request fi'om the borrower and Plaintiff does not allege that he requested a single point of contact. Civil Code section 2923.7 requires a mortgage servicer to provide a single point of contact for their communications regarding their loans. (Civ. Code, § 2923.7, subd. (3).) The statute provides that “[u]pon request fiom a borrower who requests a foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact and provide to the borrower one or more direct means of communication With the single point of contact.” (Civ. Code, § 2923.7, subd. (a).) As stated above, CitiMortgage contends that the plain language of the statute provides that a borrower must expressly request a single point of contact. Conversely, Plaintiff contends that the statute does not require homeowners to expressly request a single point of contact. In his view, merely requesting a loan modification implicitly triggers the single point of contact requirement ‘in the statute. Although there do not appear to be any reported decisions of a California court on this issue, federal distn'ct courts in Califomia have come to conflicting conclusions as to whether a borrower must make an affirmative request to trigger the single point of contact requirement. (See Green v. Cent. Mortg. Co. (ND. Cal. 2015) 148 F.Supp.3d 852, 874 [collecting conflicting decisions by federal disuict courts].) Upon review of the statute, the Court concludes that the plain meaning of the language employed by subdivision (a) of section 2923.7 is that borrowers must make an express request for a single point Qf contact to trigger the requirement. The Legislature requires the appointment 0f a single point of contact only “[u]pon request fiom a borrower.” (Civ. Code, § 2923.7, subd. (a).) If the single point of contact requirement were automatically triggered by the loan modification process, there would be no need to condition the requirement 0n a “request fiom the borr0wer.” Instead, the statute would more simply and concisely be written, “Whenever a borrower applies for a 8 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavview Loan Servicing. LLC. et al.. Case No. 18CV327044 Exhibit A, Page 9 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 \OOOQONUIhUJNn-I NNNNNNNNNr-Iy-IHr-twr-tp-Iu-Ifl.‘ ooqompwmwowooxlo‘mhmmv-o 4:28 FAX 408 8822698 los Gatos Facility .0010/0021 foreclosure prevention alternative, the mortgage servicer shall promptly establish a single point of contact .” The federal cases cited by Plaintifi‘ in opposition take the position that the language, “[u]pon request fiom a bonower” pertains to a request-not for a single point of contact-but for a loan modification or other foreclosure prevention alternative. The flaw in this argument is that it iglores the fact the language of subdivision (a) uses the word “requests” twice when it states: “Upon request fi'om a borrower who requests a foreclosure prevention alternative .” (Civ. Code, § 2923.7, subd. (a), italics added.) The second use of the term “requests” is to identify the borrower as a borrower Who is pursuing a loan modification or other alternative to foreclosure. If the first use of the term “request” means the same thing by merely referring to a borrower who requests a foreclosure alternative, then the first use 0f the term “request” is redundant and constitutes mere surplusage. The Court declines to adopt a reading that renders part of silbdivision (a) mere surplusage. (See Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, 1037 [“Interpretations that lead to absurd results or render words surplusage are to be avoided.”], quoting Peqple v‘ Loeun (1997) 17 Ca1.4th 1, 9.) Given the Court’s interpretation 0f the statute, Plaintiff was required to allege that he made an express request for a single point of contact in order to state a claim under Civil Code section 2923.7. However, there are no allegations in the complaint that Plaintiff asked CitiMortgage to appoint a single point of contact. Instead, Plaintiff simply asserts that he “was never assigaed a SPOC to help him with his loss mitigation requests . . . in direct violation of section 2923.7 of the California Civil Code.” (Complaint, 11 48.) Consequently, Plaintiff fails to allege sufficient facts to state a claim. Accordingly, CitiMortgage’s demurrer to the first cause of action is SUSTAINED, with 10 days’ leave t0 amendm C. Second Cause of Action [Z] The Coun does not address CitiMoxtgage’s other arguments because its argument regarding the absence of a request for a single point of contact is dispositive. 9 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tamkh v. Bawiew Loan Servicing. LLC. 2t al,‘ Case No. 18CV327044 Exhibit A, Page 10 of 20 10/31/2018 1 Locke Lord LLP 101 Montgomery Street, Suite [950 San Francisco, CA 94104 N \OOO\IO\U\-hla~l 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 wUULL/ uua; [:29 FAX 408 8822698 los Gatos Facility CitiMortgage argues, among other things, that the second cause of action for violation of Civil Code section 2923.6 fails to state é claim because: (1) there are no allegations in the complaint that it recorded a notice of default, recorded a notice of trustee’s sale, or conducted a trustee’s sale; and (2) the alleged failure to respond to Plaintiffs appeal of the denial of his loan modification application does not constitute a violation of Civil Code section 2923.6, subdivision (f). As is relevant here, the version of Civil Code section 2923.6 in effect fiom January l, 2013 to December 31, 3017 provided the following: (c) If a borrower submits a complete application for a first lien loan modification ..., a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee’s sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, 01' authorized agent shall not record a notice 0f default or notice of sale or conduct a trustee’s sale until any of the f0110wing occurs: (1) The mortgage servicer makes a wn'tten detennination that the borrower is not elig'ble for a first lien loan modification, and any appeal period pursuant t0 subdivision (d) has expired. (2) The borrower does not accept an offered first lien loan modification Within 14 days of the offer. (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower’s obligations under, the first lien loan modification. (d) Ifthe borrower’s application for a first lien loan modification is denied, the borrower shall have at least 3O days fiom the date of the wn'tten denial to appeal the denial and to provide evidence that the mortgage servicer's determination was in error. (e) If the bonower’s application for a first lien loan modification is denied, the mongage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or, if a notice of default has already been recorded, record a notice of sale or conduct a trustee’s sale until the later of: (1) Thirty-one days afier the borrower is notified in writing of the denial. 10 [PROPOSED] ORDER 0N DEMURRER TO COWLAINT Tarokh v. Bavview Loan Servicing. LLC. et aI.. Case No. 18CV327044 Exhibit A, Page 11 of 20 10/31/2018 14:30 FAX 408 8822698 los Gatos Facility Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 N \OOOQQUI-bw 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I0012/0021 (2) If the borrower appeals the denial pursuant to subdivision (d), the later of 15 days afier the denial ofthe appeal or 14 days afier a first lien loan modification is offered afier appeal but declined by the bérrower, or, if a first lien loan modification is offered and accepted afier appeal, the date on which the borrower fails to timely submit the first payment or otherwise breaches the terms of the offer. (f) Following the denial of a first lien loan modification application, the mortgage servicer shall send a written notice to the borrower identifying the reasons for denial, including the following: (l) The amount of time from the date of the denial letter in which the bonower may request an appeal ofthe denial of the first lien loan modification and instructions regarding how to appeal the denial. (2) If the denial was based on investor disallowance, the specific reasons for the investor disallowance. (3) If the denial is the result 0f a net present value calculation, the monthly gross income and propeny value used to caJCulate the net present value and a statement that the borrower may obtain all of the inputs used in the net present value calculation upon written request to the mortgage servicer. (4) If applicable, a finding that the borrower was previously offered a first lien loan modification and failed to successfully make payments under the terms of the modified loan. (5) If applicable, a description of other foreclosure prevention alternatives for which the borrower may be eligible, and a list ofthe steps the borrower must take in order to be considered for those options. If the mortgage servicer has already approved the borrower for another foreclosure prevention alternative, infoxmation necessary to complete the foreclosure prevention alternative. (Civ. Code, § 2923.6.) As currently pleaded, the second cause 0f action is based on the filing of the NOD and the alleged failure to respond to Plaintiff’s appeal of the denial ofhis loan modification application. The 11 [PROPOSED] ORDER ON DEMURRER T0 COMPLAINT Tarolch v. Bavview Loan Servicing. LLC. et alA . Case No, 18CV327044 Exhibit A, Page 12 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 N \OOOQQUIJAUJ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4:30 FAX 408 8822698 los Gatos Facility .0013/0021 filing of the NOD cannot properly form the basis of a claim against CitiMortgage because Plaintiff alleges that Bayview, not CitiMortgage, filed the NOD. (Complaint, 11 32.) In addition, the alleged failure to respond to Plaintiffs appeal ofthe denial of his loan modification application, in and of itself, cannot properly form the basis of a claim against CitiMortgage because the relevant provisions of Civil Code secfion 2923.6 d0 not require the issuance of a response to an appeal. Accordingly, CitiMongage’s demuxrer to the second cause of action is SUSTAINED, with 10 days’ leave to amendm D. Third Cause of Action CitiMortgage argues that the third cause of action for violation of Civil Code section 2923.55 fails because that statute was repealed; “[t]here is no savings clause written into the repealed section”; there is no “legislation deleting or extending the repeal date”; no final judgment has been entered in this action; the cause of action is based on the recordation of the NOD and “the accompanying declaration”; and it did not record the NOD 0r the accompanying declaration. (Dem., pp. 3:17-4:26, 5:17-26.) CitiMortgage’s arguments are not well-taken. First, with respect to the issue of repeal, Civil Code section 2923.55 was repealed on January 1, 201 8. Generally, where the plaintiff is pursuing a statutory cause of action and the statute is repealed to remove the right to pursue that cause of action While the cause is pending, the claim is no longer viable and the action must be dismissed. (Rankin v. Longs Drugs Stores California, Inc. (2009) 169 Ca1.App.4th 1246, 1256; Governing Board v Mann (1977) 18 Cal.3d 819, 829; Younger v Super. Ct. (1978) 21 Ca1.3d 102, 109; Dept. ofSocial Welfare v Wingo (1946) 77 Ca1.App.2d 3 16, 320.) Despite the default rule that repeal of a statute terminates all pending claims based on that statute, the leg'slature can “save” pending claims in one of two ways. (S. Coast Reg’l Comm ’n v. Gordon (1978) 84 Cal.App3d 612, 618-19 (Gordon); Chapman v. Farr (1982) 132 Cal.App.3d 1021 , 1025.) First, it can include an express savings clause. (Bourquez v. Super. Ct. (2007) 156 Ca1.App.4th 1275, 1284.) Second, it can make its intent to preserve rights under the fonner law [3] The Court does not address Ciu'Mongage’s other arguments because its arguments regarding the absence of allegations of prohibited conduct and its alleged failure to respond to Plaintifi’ s appeal are dispositive. 12 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavview Loan Servicing. LLC. et al.. Case No. 18CV327044 Exhibit A, Page 13 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 Qmmhww \DOO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4:31 FAX 408 8822698 los Gatos Facility .0014/0021 “clearly apparent.” (Ibid.) “[I]f it can be gathered fiom any act on the same subject passed by the [L]egislature at the same session that it was the legslative intent that pending proceedings should be saved, it will be sufficient to effect that purpose.” (Ibid, citation and internal quotation marks omitted.) This second method is sometimes termed the rule of statutory continuity. (See e.g., Gordon, supra, 84 Cal.App.3d at pp. 61 8-1 9.) Under the rule of statutory continuity, “when a statute is repealed without a saving clause and as a part of the same act it is simultaneously re-enacted in Substantially the same form and substance, all rights and liabilities which accrued under the former act Will be preserved and enforced.” (Chambers v. Davis (1933) 131 Cal.App. 500, 506; Cort v, Steen (1950) 36 Cal.2d 437, 440.) Here, former Civil Code section 2923.55 was reenacted as section 2923.5 (effective January ‘ 1, 2018), word-for-Word, as to all provisions relevant to this case. (Civ. Code, § 2923.5; see Travis v. Nationstar Mortgage, LLC (9th Cir. 2018) 733 Fed.Appx. 371, 373; see also Chanel] S. Watkins v. Ditech Financial LLC (ED. Cal, Sept. 26, 2018, No. 217CV02247MCEEFB) 2018 WL 461 1361, at p. *3.) Thus, under the rule of statutory continuity, Plaintiff may still pursue his claim under former section 2923.55. Second, CitiMortgage’s remaining argument is predicated on the purported fact that the cause of action is based on the recordation of the NOD and “the accompanying declaration.” However, the third cause 0f action is not based solely on the recordation of the NOD and the accompanying declaration. The claim, as pleaded, is also based on CitiMortgage’s alleged failure to advise Plaintiff that he had the right t0 request a meeting to assess his financial situation and discuss options for him to avoid foreclosure. (Complaint, 1H] 70, 74, 76.) CitiMongage’s argument does not address this additional basis for the claim. Consequently, CitiMortgagc fails to dispose 0f the cause of action in its entirety and the demurrer is not sustainable. (See PHI], Inc. V v. Super. Ct. (1995) 33 Ca1.App.4th 1680, 1682 [a demurrer does not lie to only a portion of a claim].) Accordingly, CitiMoxtgage’s demurrer to the third cause of action is OVERRULED. E. Fourth Cause of Action CitiMortgage argues that the fourth cause of action for breach of implied covenant of good faith and fair dealing fails to state a claim because Plaintiff does not identify the specific contractual 13 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bawiew Loan Servicing. LLC. 2t al.. Case No. 18CV327044 Exhibit A, Page 14 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 Snn Francisco, CA 94104 OOQQUIhUJN \D 10 117 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [4:32 FAX 408 8822698 los Gatos Facility .0015/0021 obligation that g’ves rise t0 the duties allegedly imposed by the covenant of good faith and fair dealing; Plaintiff stopped making payments on the Note in 2012 and is in default; and Plaintiff cannot compel it to perform under the contract as he is in default. In his opposition papers, Plaintiff does not address CitiMortgage’s arguments. As Plaintiff does not oppose the demurrer to the fomth cause of action, he implicitly concedes CitiMoxtgage’s arguments are well-taken. Accordingly, CitiMottgage’s demurrer to the fourth cause of action is SUSTAINED, With 10 days’ leave to amend. F. Fifth Cause of Action CitiMortgage argues, among other things, that the fifih cause of action for accounting fails to state a claim because Plaintifi' does not allege that some balance is due to him. This argument is well-taken. “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle v. McLaughlin (2009) 173 Cal.App.4th 156, 179; St. James Church ofChrist Holiness v. Super. Ct. (1955) 135 Ca1.App.2d 352, 359 [to state a cause 0f action for an accounting, only the simplest pleading is required: (1) the fiduciary relationship or other circumstances appropriate to the remedy; and (2) a balance due fiom the defendant to the plaintiff that can only be ascertained by an accounting].) “An action for an accounting may be brought to compel the defendant to account to the plaintiff for money 0r property (1) Where a fiduciary relationship exists between the paxties, 0r (2) where, even though no fiduciary relationship exists, the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable. [Citation.]” (Jolley v. Chase Home Finance, LLC (201 3) 213 Ca1.App.4th 872, 910; 4 Witkin, Cal. Proc. (5th ed. 2008) § 819.) Here, Plaintiff does not allege that some balance is due to him that can only be ascertained by an accounting. Rather, Plaintiff merely allcges that he demanded an accounting and CitiMortgage refixsed to provide an accounting. (Complaint, fl.) Consequently, Plaintiff has not adequately pleaded a claim for an accounfing. l 4 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavview Loan Servicing. LLC. e: aL. Case No. 18CV327044 Exhibit A, Page 15 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 Snn Francisco, CA 94104 hUJN \OOOQQUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14:32 FAX 408 8822698 los Gatos Facility .0016/0021 In opposition, Plaintifi' suggests that Civil Code section 2943 somehow creates a cause of action for an accounting that does not require a showing that there is some balance due to Plaintiff.[4] Plaintiff does not cite any legal authority, and the Court is aware of none, supporting such a propésition. Absent legal authority providing otherwise, the Court declines to find that Civil Code section 2943 creates a cause of action for an accounting. Accordingly, CitiMortgage’s demurrer to the fifth cause of action is SUSTAINED, with 10 days’ leave to amendp] G. Sixth Cause of Action CitiMortgage argues that the sixth cause 0f action for negligence fails to state a claim because Plaintiff cannot establish that it owed him a duty of care. CitiMortgage acknowledges that some California decisions have “found that a loan servicer did owe a duty of care to a borrower when reviewing the borrower for a loan modification in certain limited situations.” (Dem, p. 8:6-8.) However, CitiMortgage contends that those case afe distinguishable because the‘ plaintiffs in those cases “asserted specific allegations related to the mishandling of documents submitted by a boxrower in support of a loan modification .” (Id. at p. 8:10-19.) CitiMortgage also asserts that “Plaintiff seeks to establish the legal existence of a duty of care solely on one allegation: that CitiMortgage did not respond to an appeal ofhjs loan modification denial sometime in 2014.” (Id. at p. 8:23-25.) CitiMortgage further argues that Plaintiff cannot establish any injury caused by the alleged negligence. These arguments lack merit. First, Plaintiff’s sixth cause of action and his allegations regarding legal duty are not based solely on the allegation that CitiMortgage did not respond to his appeal. The sixth cause of action alleges, in pan, that CitiMortgage, acting as Plaintiff s lender and/or servicer, undertook a review of Plaintiffs loss mitigation requests; having done so, CitiMortgage owed Plaintiff a duty to exercise reasonable care in processing and reviewing his [4] Notably, as currently pleaded, the fifth cause of acfion does not attempt to allege a claim for violation of Civil Code section 2943. - [5] The Court does not addxess CitiMortgage’s other argument because its argument regarding the absence of an allegation regarding a balance due and owing to Plaintifi‘ is disposilive. 1 5 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavvz’ew Loan Servicing. LLC. et LIL. Case No. 18CV327044 Exhibit A, Page 16 of 20 10/31/2018 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 \OOOQO'xUl#UJNi-‘ N NM N N N N N NA»: v- H u-I u-I y-A m H H p-d OOVQM-hWNHOOOOMQUI-BWNHO 14:33 FAX 408 8822698 los Gatos Facility .0017/0021 requests; CitiMortgage breached its duty by failing t0 properly process documents Plaintiff submitted in connection with his request for a loan modification; and CitiMongage breached its duty by failing to provide Plaintiff With a good faith review of his loan modification application. (Complaint, W 92-93.) Second, Plaintiffs allegations regarding duty are analogous to the allegations pleaded in cases where courts determined that a loan servicer owed a duty of care to a borrower when revieng the borrower for a loan modification. (See Daniels v. Select Portfolio Servicing, Inc. (201 6) 246 Ca1.App.4th 1150, 1180 (Daniels) [finding that the plaintiffs alleged the existence of a legal duty of care when they alleged that the lender owed them a duty to act reasonably with respect to their loan modification application, accurately account for the documents they submitted, and provide them a fair loan modification evaluation]; see also Alvarez v. BAC Home Loans Servicing, LP. (2014) 228 Ca1.App.4th 941 [finding that mortgage lender entities owed the borrowers a duty to exercise reasonable care in the review of their loan modification applications when the borrowers alleged that the lenders had agreed t0 consider the applications].) Third, Plaintiff adequately alleges that he was injured by CitiMortgage’s failure to properly process his documents and provide him With a good faith review of his loan modification application. Specifically, Plaintiff alleges that the improper review and processing of his loss mitigation requests and loan modification applicatiOn deprived him of the possibility of obtaining loss mitigation assistance. (Complaint, 11 95.) Accordingly, CitiMortgage’s demmrer to the sixth cause of action is OVERRULED. H. Seventh and Eighth Causes of Action CitiMortgage argues, among other things, that the seventh cause of action for intentional misrepresentation and eighth cause of action for negligent misrepresentation fail to state a claim because Plaintiff does not allege the elements of fi‘aud with specificity. The elements of a claim for intentional misrepresentation “are (1) the defendant made a false representation as to a past or existing material fact; (2) the defendant knew the representation was false at the time it was made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the plaintiffjustifiably relied 0n the representation; and (5) the plaintiff suffered 16 [PROPOSED] ORDER ON DEMURRER T0 COMPLAINT Tarokh v. Bawiew Loan Servicing. LLC. et al. . Case No. 18CV327044 Exhibit A, Page 17 of 20 10/31/2018 14:34 FAX 408 8822698 los Gatos Facility .0018/0021 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 \DOOVQUIAUONH NNN N N N [\J N N y-a r-I H H r-I )--l I- b-l'n-I r-I OOQONUIfiU’NP‘OWOOflO‘UIkWN-‘O resulting damages.” (West v. JPMorgan Chase Bank, NA. (2013) 214 Cal.App.4th 780, 792 (West), citation omitted.) Similarly, “[t]he elements of negligent misrepresentation are (1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance 0n the misrepresentation, and (5) resulting damage.” (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Ca1.App.4th 226, 243.) “Fraud must be pleaded with specificity rather than with general and conclusory allegations; The specificity requirement means a plaintiff must allege facts showing how, when, Where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, 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, supra, 214 Ca1.App.4th at p. 793, citation and quotation marks omitted; Daniels, supra, 246 Ca1.App.4th at p. 1166 [“Causes of action for intentional and negligent misrepresentation sound in fraud and, therefore, each element must be pleaded with specificity.”].) In the complaint, Plaifitiff generally asserts that CitiMortgage made van'ous misrepresentations. (Complaint, 1N 103 and 117.) However, for the vast majority of the alleged misrepresentations, Plaintiff does not plead sufficient facts showing how, when, where, to whom, and by what means the representations were made. Additionally, Plaintiff does not allege the names of the persons Who made the representations 0n behalf of CitiMortgage, their authority to speak on V behalf of the CitiMortgage, or to whom they spoke. The only misrepresentations that are pleaded with any specificity are the statements allegedly made by Steigeman on or about December 7, 2016. However, the alleged misrepresentations made by Steigeman cannot properly form the basis of a claim for intentional or negligent misrepresentation against CitiMortgage because Plaintiff fails to allege facts demonstrating that Steigeman was CitiMortgage’s representative and had authority to make representations on CitiMortgage’s behalf. 17 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bavview Loan Servicing. LLC. et al.. Case No. 18CV3 27044 Exhibit A, Page 18 of 20 10/31/2018 14:34 FAX 408 8822698 los Gatos Facility .0019/0021 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 KOmQQm-b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, CitiMOI’tgage’s demurrer to the seventh and eighth causes of action is SUSTAINED, with 10 days’ leave to amend” I. Ninth Cause of Action CitiMortgage argues that the ninth cause of action for unfair business practices fails to state a claim because Plaintiff lacks standing. Specifically, CitiMortgage contends that Plaintiff has not alleged sufficient facts showing that he sufiered an economic injury, such as lost money or property. CitiMortgage further argues that as all other causes of action of the complaint fail, the cause of action for unfair business practices must fail as well. These arguments are not well-taken. First, with respect to the issue of standing, “[a] private party has standing to prosecute a UCL action unless he or she ‘has suffered injury in fact and has lost money 0r property as a result of the unfair competition.’ [Citations.]” (Law Ofices ofMdthew Higbee v. Expungement Assistance Services (2013) 214 Ca1.App.4th 544, 555-556; Clayworth v. Pfizer, Inc. (2010) 49 Ca1.4th 758, 788.) “There are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future propeny interest diminished; (3) be deprived of money or property to Which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.” (Kwikset Corp. v. Super. Ct. (201 1) 51 Cal.4th 310, 323.) Couns have determined that costs and expenses incurred related to litigation regarding the alleged unfair business practices are sufficient to constitute an injury in fact. (See e.g., Sacchi v. Mortgage Electronic Registration Systems, Inc. (C.D. Ca1., June 24, 201 1, No. CV 11-1658 AHM CWX) 2011 WL 2533029, at *9 [“Further, Plaintiffs specifically allege injury in fact, including ‘loss 0f equity in their home, costs and expenses related to protecting themselves, fees and costs, including, without limitation, attorneys’ fees and costs.’ ”1.) Here, Plaintiff alleges that he suffered “substantial irreparable harm, including but not limited to . . . back dues and interest that have accrued to date that would not have accrued but for Defendants’ action” and “the cost and expense of the instant pending [6] The Court does not address CitiMongage’s other arguments because its axgument regarding specificity is dispositive of the claims. 18 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bawiew Loan Servicing. LLC. et al.‘ Case No. 18CV327044 Exhibit A, Page 19 of 20 10/31/2018 14:35 FAX 408 8822698 los Gatos Facility .0020/0021 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 bUJN \OOOQQU‘I 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 litigation .” (Complaint, 11 133.) Thus, Plaintiff alleges sufficient facts showing that he has standing to bring this claim. . Second, CitiMortgage’s remaining argument is predicated oh the assumption that all ofthe preceding causes of action fail and may not fonn the basis of Plaintiff's claim for unfair business practices. However, the third cause of action for violation of Civil Code section 2923.55 survives CitiMortgage’s demuner. Thus, the alleged violation of Civil Code section 2923.55 may properly serve as the unlawful conduct underlying the cause of action for unfair business practices. Accordingly, CitiMortgage’s demurrer to the ninth cause of action is OVERRULED 1T Is so ORDERED. Dated:w- \K ( / // JUDGE OF THE SUPERIOR COURT 19 [PROPOSED] ORDER ON DEMURRER TO COMPLAINT Tarokh v. Bawiew Loan Servicing, LLC. et aL. Case No. 18CV327044 Exhibit A, Page 20 of 20 10/31/20 101 Montgomery Street, Suite 1950 San Francisco. CA 94104 KOOOQQUIh 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18 14:35 FAX 408 8822698 los Gatos Facility .0021/0021 STATE OF CALIFORNIA ) PROOF OF SERVICE COUNTY OF SAN FRANCISCO ) ss. Tarokh v. Bayview Loan Servicing, LL C, et al. Santa Clara County Superior Court Case No. 18CV327044 I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is: 101 Montgomery Street, Suite 1950, San Francisco, CA 94104. On October 15, 2018, I served the foregoing document described as: [PROPOSED] ORDER SUSTAINING IN PART, AND OVERRULING IN PART, CITIMORTGAGE, INC.’S DEMURRER T0 PLAINTIFF’S COMPLAINT 0n the parties or attorneys for parties in this action who are identified below, u‘sing the following means of service. (If more than one means of service is checked, the means of service used for each party is indicated below). Romel Ambarchyan, Esq. Attorneysfor Plaintiff Casey Tarokh Any Moskovian, Esq. Malalai Anbari, Esq. RA & ASSOCIATES, APC 505 N. Brand Blvd, Suite 800 Glendale, CA 91203 Tel: (8 18) 230-3220 Fax: (818) 230-3211 Email: romel@raandassociates.com; any.moskovian@raandassociates.com; malalai@raandassociates‘com; Ian A. Rambarran Attorneysfor Defendant Bayview Loan Klinedinst PC Servicing, LLC 801 K Street, Ste. 2100 Sacramento, CA 95814 Tel: (916) 444-7573 Fax: (916) 444-7544 Email: irambarran@klinedinstlaw.com E BY ELECTRONIC SERVICE. I caused the foregoing document(s) to be transmitted by email to the above-listed parties through First Legal. E (State) I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed on October 15, 2018, at San Francisco, California. / / / Hayli Holmes 1 PROOF OF SERVICE Tarokh v, Bayview Loan Servicing, LLC, et aL, Case No. l8CV327044 Locke Lord LLP 101 Montgomery Street, Suite 1950 San Francisco. CA 94104 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF 0F SERVICE COUNTY OF SAN FRANCISCO ss. STATE 0F CALIFORNIA ) ) Tarokh v. Bayview Loan Servicing, LLC, et a]. Santa Clara County Superior Court Case No. 18CV327044 I am employed in tho County 0f San Francisco, State of California. I am over the age of 18 and not a party t0 the within action. My business address is: 101 Montgomery Street, Suite 1950, San Francisco, CA 94104. On November 2, 2018, I served the foregoing document described as: NOTICE OF ENTRY 0F ORDER SUSTAINING IN PART, AND OVERRULING IN PART, CITIMORTGAGE, INC.’S DEMURRER TO PLAINTIFF’S COMPLAINT 0n the parties 0r attorneys for parties in this action who are identified below, using the following means 0f service. (If more than one means of service is checked, the means of service used for each party is indicated below). Romel Ambarchyan, Esq. Any Moskovian, Esq. Malalai Anbari, Esq. RA & ASSOCIATES, APC 505 N. Brand Blvd, Suite 800 Glendale, CA 91203 Attorneysfar Plaintiff Casey Tarokh Tel: (818) 230-3220 Fax: (818) 230-3211 Email: romel@raandassociates.com; any.moskovian@raandassociates.com; malalai@raandassociates.com; Ian A. Rambarran Attorneysfor Defendant Bayview Loan Klinedinst PC Servicing, LLC 801 K Street, Sts. 2100 Sacramento, CA 95814 Tel: (91 6) 444~7573 Fax: (91 6) 444-7544 Email: irambarran@klinedinstlaw.com M BY ELECTRONIC SERVICE. I caused the foregoing document(s) t0 be transmitted by email t0 the above-listed parties through First Legal. M (State) I declare under penalty 0f perjury under the laws 0f the Stale of California that the foregoing is true and correct. Executed 0n November 2, 2018, at San Francisco, California. é V; g HayliHolmes l PROOF OF SERVICE Tarukh v. Bayview Loan Servicing, LLC, et a1., Case No. 18CV327044