Minute Order

Cal. Super. - 6th Dist.August 16, 2019

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Dirk Hartogs et al vs CitiMortgage Inc. et al Hearing Start Time: 9:00 AM 19CV353062 Hearing Type: Hearing: Demurrer Date 0f Hearing: 10/20/2020 Comments: Heard By: Hayashi, Roberta S Location: Department 6 Courtroom Reporter: - N0 Court Reporter Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Exhibits: - No appearance. Tentative ruling is not contested. Tentative ruling is adopted as follows; I. Background This is a wrongful foreclosure action brought by plaintiffs Dirk Hartogs and Linda Keilers (collectively, Plaintiffs ) against defendants CitiMortgage, Inc. ( Citi ), US Bank, NA (formerly First Trust National Association) ( US Bank ), Credit Based Asset Servicing and Securitization, LLC ( CBASS ), Bank of New York Mellon (formerly Bank 0f New York) ( Mellon ), and chen Loan Servicing ( chen ). Plaintiffs owned a primary residence at 2220 Rolling Hills Drive in Morgan Hill, California (the Property ). According t0 the first amended complaint ( FAC ), in 1993, Plaintiffs mortgaged the Property t0 secure a loan from the Prudential Home Mortgage Company. (FAC, 22 & Ex. 1 [Deed ofTrust].) Following an initial assignment in 1997, in 2004, a second assignment was made. (FAC, 23; see also Compl., Ex. 2 [Second Assignment ].) According to the Second Assignment, Citi acting with power 0f attorney 0n behalf of US Bank sold Plaintiffs 1993 mortgage t0 CBASS. In 2007, the mortgage was transferred again. According to the Third Assignment, CBASS sold the mortgage to its trustee, namely Mellon s predecessor. (FAC, 24 & Ex. 2 [Third Assignment ]; see also Comp|., Ex. 3.) In August 2012, another assignment was made from Mellon s predecessor, the Bank of New York, to Mellon, which assignment appears to document the merger-and-acquisition activity through which Mellon s predecessor became Mellon. (FAC, 27 & Ex. 3 [ Fourth Assignment”]; see also Compl., Ex. 4.) Subsequently, the Fifth Assignment was recorded on behalf of CBASS for the stated purpose 0f correcting the Second Assignment by adding recording book and page information. (FAC, 30 & Ex. 4 [ Fifth Assignment ]; see also Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 1 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER C0mp|., Ex. 5.) In 2018, yet another assignment was made, which was described as a gap assignment. (FAC, Ex. 5 [Sixth Assignment ].) The terms 0f the Sixth Assignment state Plaintiffs mortgage was transferred as follows: For Value Received, US Bank National Association as Trustee, Successor in interest t0 First Trust National Association As Trustee for PHMSC hereby grants, assigns and transfers t0 U.S. Bank NA F/K/A FIRST TRUST NATIONAL ASSOCIATION, AS TRUSTEE at C/O OCWEN LOAN SERVICING, LLC, 1661 WORTHINGTON ROAD, STE 100, WEST PALM BEACH, FL 33409. (FAC, 33 & Ex. 5 [Sixth Assignment]; see also Compl., Ex. 6.) In October 2018, a notice 0f default was recorded. (FAC, 36 37 & Ex. 6; see also C0mp|., Ex. 7.) Thereafter, Plaintiffs received a notice 0f trustee s sale with a sale date 0f August 21, 2019. (FAC, 41.) Plaintiffs dispute the validity and propriety 0f the assignments described above as well as the foreclosure proceedings. Plaintiffs assert the following causes 0f action against the defendants: (1) declaratory and injunctive relief (against all defendants); (2) cancellation 0f instruments (against Citi, Mellon, US Bank, and chen); (3) violation 0f Civil Code section 2924 (against Mellon and chen); (4) violation 0f California s unfair competition law (the UCL) (against all defendants); (5) violation 0f the California Homeowner Bill 0f Rights ( CHBOR ) (against Mellon, US Bank, and chen); (6) slander 0f title (against US Bank and chen); (7) quiet title (against Mellon and chen); (8) financial elder abuse (against Mellon, US Bank, and chen); and (9) breach 0f contract (against Mellon and US Bank). 1 Currently before the Court is a demurrer by US Bank, Mellon and chenZ (collectively, Defendants ) t0 the first, second, fourth, sixth, seventh, eighth, and ninth causes 0f action 0n the ground offailure t0 state facts sufficient t0 constitute a cause 0f action. Plaintiffs oppose the demurrer. Both Plaintiffs and Defendants filed requests forjudicial notice. ||. Requests for Judicial Notice Defendants request judicial notice 0f recorded instruments, many 0f which are attached t0 Plaintiffs original and amended complaints. The instruments encompassed by Defendants request consist 0f the assignments summarized above including the very first assignment in 1997 as well as the notice 0f default and notice 0f trustee s sale. A court may take judicial notice 0f the existence and facial contents 0f recorded instruments. (Yvanova v. New Century Mortgage Corp. (2016) 62 Ca|.4th 919, 924, fn. 1, citing Evid. Code, 452, subds. (c) & (h).) This includes the fact 0f the document s recordation, the parties t0 the transaction, the date the parties executed and recorded the document, and legally operative language but not disputed Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 2 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER statements. (Yvanova, supra, 62 Ca|.4th at p. 924, fn. 1, citing Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 265.) A court may then rely upon the legal effect 0f the document as deduced from these facts. (See Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 18.) While Plaintiffs purport t0 oppose Defendants request forjudicial notice, they d0 not actually dispute the facial contents enumerated above that come within the proper scope ofjudicial notice. Plaintiffs state they d0 not dispute that these documents were recorded in the Santa Clara County Recorder s Office, the date they were recorded, that these documents were given the Instrument Numbers 0n their face and listed Within Defendant s Request for Judicial Notice, 0r that they are exact replicas 0f what the County Recorder has in its records. (Pl. Opp. t0 RJN at p. 3:22 25.) In other words, Plaintiffs d0 not dispute that the documents say what they say; they dispute whether some statements are true and the interpretation 0f these statements. Accordingly, the undisputed facial contents 0f the recorded instruments, nearly all 0f which Plaintiffs have already placed in the record through their pleadings, are subject t0 judicial notice. The Court does not take judicial notice 0f disputed questions 0f fact 0r interpretation that g0 beyond the proper matters described above. Based 0n the foregoing, Defendants request forjudicial notice is GRANTED. Plaintiffs request judicial notice 0f a 1982 quitclaim deed showing they owned the Property at that time, which deed appears t0 be the same as the deed appended t0 the original complaint that has now been superseded by the FAC. While the relevance and materiality 0f 1 Plaintiffs also purport t0 assert the third and fifth causes 0f action against Western Progressive, which is presumably a reference t0 Western Progressive, LLC, identified in the notice 0f default as a point 0f contact and the party who prepared the notice 0f default 0n behalf 0f CBASS as beneficiary and Mellon as trustee. But Western Progressive, LLC is not otherwise identified as a defendant in the caption 0r prefatory statement 0f facts in the pleading. And, there is no proof of service in the Court s file for Western Progressive, LLC. And so, the inclusion of Western Progressive in the title above these claims appears t0 be a clerical error. 2 As a result 0f a merger, the real party in interest demurring to the claims against chen is its successor in interest PHH Mortgage Corporation. With that said, the Court refers to chen herein because the Court must discuss the allegations pleaded in ruling on the demurrer. The Court notes this change in corporate identity t0 ensure clarity in the record. this quitclaim deed are not obvious, the Court may take judicial notice of the facial contents of this recorded instrument for the same reasons set forth above. Next, Plaintiffs also request Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 3 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER judicial notice 0f a lien report. The origin and nature 0f the lien report are fundamentally unclear. Also, it is not apparent the report is a public record 0r document prepared by a public agency. And so, there is n0 obvious and proper basis for takingjudicial notice 0f the lien report. Thus, the lien report is not subject tojudicial notice. Plaintiffs request is therefore GRANTED IN PART and DENIED IN PART. |||. Demurrer In general, a complaint must contain [a] statement 0f the facts constituting the cause 0f action, in ordinary and concise language. (Davaloo v. State Farm Insurance C0. (2005) 135 Cal.App.4th 409, 415, quoting Code Civ. Proc., 425.10, subd. (a)(l).) This factpleading requirement obligates the plaintiff t0 allege ultimate facts that as a whole apprise[] the adversary 0f the factual basis 0f the claim. (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations 0mitted].) A demurrer tests whether the plaintiff alleges each fact essential t0 the cause 0f action asserted. (CA. v. William S. Hart Union High School Dist. (2012) 53 Ca|.4th 861, 873.) A. First Cause 0f Action Declaratory and Injunctive Relief A party may seek declaratory relief in cases 0f actual controversy relating t0 the legal rights and duties 0f the respective parties. (Code Civ. Proc., 1060.) T0 state a claim for declaratory relief, the plaintiff must allege facts showing the existence 0f an actual controversy that is ripe for resolution. (Otay Land C0. v. Royal Indemnity C0. (2008) 169 Cal.App.4th 556, 562 63.) T0 state a claim for declaratory relief, a plaintiff must simply allege facts showing there is an actual controversy; he 0r she need not allege facts showing entitlement t0 a favorable declaration. (Centex Homes v. St. Paul Fire and Marine Insurance C0. (2015) 237 Cal.App.4th 23, 29.) Strictly speaking, therefore, a demurrer is not the appropriate weapon with which t0 attack the merits 0f a claim for declaratory relief. (Siciliano v. Fireman s Fund Insurance C0. (1976) 62 Cal.App.3d 745, 755.) As for injunctive relief, it is true that an injunction is a remedy, not a cause 0f action. (Allen v. City 0f Sacramento (2015) 234 Cal.App.4th 41, 65.) Nevertheless, irrespective 0f how a plaintiff artfully 0r inartfully labels a claim, a plaintiff may obtain an injunction if he 0r she is otherwise entitled t0 such relief 0n the merits. (|bid.) Despite acknowledging some 0f these principles, Defendants d0 not advance a clear argument establishing Plaintiffs fail t0 adequately plead entitlement t0 declaratory 0r injunctive relief. In Defendants supporting memorandum, they focus 0n whether Plaintiffs plead facts affirmatively establishing their liability for the underlying claims discussed below. But Plaintiffs need not plead facts showing they will obtain a favorable declaratory judgment Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 4 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER establishing their title t0 the property t0 state a claim for declaratory relief. Similarly, Defendants d0 not establish that Plaintiffs fail t0 plead any cognizable basis for injunctive relief. And, as set forth below, the Court does not sustain the demurrer as t0 each and every cause 0f action at issue. Also, Defendants demurrer is not directed t0 all 0f the causes 0f action pleaded. Thus, it cannot be said at this juncture that the FAC is devoid 0f any possible basis for injunctive relief. For these reasons, Defendants d0 not establish that the first cause 0f action in its entirety is subject t0 demurrer due t0 the absence 0f an alleged controversy over the parties rights and obligations and absence 0f a basis for injunctive relief. The demurrer t0 the first cause 0f action is, therefore, OVERRULED. B. Second Cause 0f Action Cancellation 0f Instruments After providing a brief statement 0f broad legal principles, Defendants argue that Plaintiffs still have not tendered 0r even alleged a capacity t0 tender, so their cancellation 0f instruments claim fails as a matter 0f law. (Mem. 0f Pts. & Auth. at p. 5:19 20.) Plaintiffs d0 not clearly and directly respond t0 this argument in opposition. Because a demurrer does not test the truth 0f the factual allegations (Nguyen v. Western Digital Corp. (2014) 229 Cal.App.4th 1522, 1536 37), Defendants contention that Plaintiffs have not, in fact, tendered their loan balance is immaterial. The Court, thus, turns t0 the remainder 0f Defendants argument. The implicit premise 0f Defendants argument is that a plaintiff must always allege tender 0f the loan balance t0 state a claim for cancellation 0f instruments. Defendants d0 not cite any authority t0 support this legal premise. The Court first clarifies that the elements 0f a claim for cancellation 0f instrument are: (1) the instrument is void 0r voidable due t0, for example, fraud; and (2) there is a reasonable apprehension 0f serious injury including pecuniary loss 0r the prejudicial alteration ofone s position. [Citation] (Thompson v. loane (2017) 11 Cal.App.5th 1180, 1193 1194.) Such a claim is considered t0 be equitable in nature. (Saterbak v. JPMorgan Chase Bank, NA (2016) 245 Cal.App.4th 808, 819.) And, as a claim sounding in equity, courts have applied general equitable principles like those cited by Defendants in evaluating claims like the second cause 0f action here. (|bid.) Even so, courts have not applied these principles categorically. (|bid.) This is t0 say that contrary t0 the implicit premise 0f Defendants argument a tender allegation is not always required. (|bid.) As described by the Fourth District: The tender rule is not absolute; tender is not required t0 cancel a written instrument that is void and not merely voidable. (|bid.) But Defendants d0 not address the tender rule as applied by modern courts in wrongful foreclosure actions. They d0 not acknowledge the distinction between void 0r voidable instruments and articulate why Plaintiffs allegations properly fall into one category 0r the other. And Defendants d0 not Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 5 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER thereafter explain why Plaintiffs allegations are deficient in light 0f the nature and basis for Plaintiffs cancellation claim. Accordingly, Defendants fail t0 substantiate an argument based 0n the tender rule, and the demurrer is not sustainable 0n that basis. Defendants d0 not advance any other argument with respect t0 the second cause 0f action. Thus, the demurrer t0 the second cause 0f action is OVERRULED. C. Fourth Cause 0f Action UCL Defendants argue Plaintiffs fail t0 state a UCL claim because they d0 not allege facts showing they have standing and that Defendants conduct caused their injuries as compared t0 their own default. In opposition, Plaintiffs focus 0n a number 0f points that are not directly responsive before abruptly concluding that they have pleaded an injury-in-fact that confers standing. The UCL prohibits unfair competition, which it defines as any unlawful, unfair 0r fraudulent business act 0r practice and unfair, deceptive, untrue 0r misleading advertising and any act prohibited by [Section 17500]. (Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.Apthh 714, 722, quoting Bus. & Prof. Code, 17200.) The UCLs purpose is t0 protect both consumers and competitors by promoting fair competition in commercial markets for goods and services. (Hansen, supra, 25 Cal.App.5th at p. 722, quoting Kasky v. Nike, Inc. (2002) 27 Ca|.4th 939, 949.) A plaintiff alleging unfair business practices under [Section 17200] must state with reasonable particularity the facts supporting the statutory elements 0f the violation. (Khoury v. Maly s 0f California, Inc. (1993) 14 Cal.App.4th 612, 619.) Standing is an essential prerequisite for asserting a UCL claim. (Hansen, supra, 25 Cal.App.5th at p. 723, citing Kwikset, supra, 51 Ca|.4th at pp. 320 21.) T0 properly plead standing, a plaintiff must allege he 0r she suffered an injury in fact, particularly a loss 0r deprivation 0f money 0r property, as a result 0f the unlawful, unfair, 0r fraudulent conduct. (Hansen, supra, 25 Cal.App.5th at pp. 724 25.) For example, a plaintiff suffers an economic injury sufficient t0 confer standing when he 0r she pays more in the course 0f a transaction than he 0r she would have 0r when a present 0r future interest in property is diminished. (Kwikset, supra, 51 Ca|.4th at pp. 323 24.) As another example, loss 0f customers and increased business costs may qualify as an injury in fact. (Law Offices 0f Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 560.) Here, the Court agrees with Defendants that Plaintiffs fail t0 plead sufficient facts t0 support their claim, including the element 0f standing. In paragraph 88 0f the FAC, Plaintiffs vaguely allege they have been harmed monetarily as described herein and t0 be proven at trial, for wrongful payments 0f principal and interest t0 parties not entitled, cloud placed 0n Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 6 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER title t0 the Subject Property, legal fees, etc. in amounts detailed herein, t0 be proven at trial. It is fundamentally unclear from the pleading what monetary harm described herein Plaintiffs are referring t0. The prefatory allegations that precede each cause 0f action d0 not adequately disclose such harm. Otherwise, as Defendants articulate, there are insufficient allegations providing a causal link between an injury-in-fact that confers standing and the conduct that purportedly violates the UCL. T0 illustrate, courts have held that the loss 0f a home due t0 a completed foreclosure sale is a loss 0f property sufficient t0 confer standing under the UCL. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 82.) Still, where a plaintiff s allegations d0 not disclose a causal link between the loss the foreclosure sale and the alleged UCL violation, the allegations are deficient. (|bid.) Here, in addition t0 the lack 0f clarity in Plaintiffs basic allegations 0f loss, it is not apparent how their alleged monetary losses correlate t0 each defendant s allegedly unfair, unlawful, and fraudulent business practices. For example, it is unclear who Plaintiffs allegedly made mistaken payments t0 and that these payments have a connection t0 their default 0r the allegedly improper foreclosure proceedings. And as Defendants point out, because there is n0 allegation 0f a completed foreclosure sale, Plaintiffs claim cannot be based 0n the loss 0f their home at thisjuncture. For these reasons, Plaintiffs must plead more facts in a clear and reasonably particular manner showing what each defendant did in violation 0f the UCL and that each violation caused an articulable loss 0f money 0r property. For these reasons, the demurrer t0 the fourth cause 0f action is SUSTAINED with 20 days leave t0 amend. D. Sixth Cause 0f Action Slander 0f Title The thrust 0f the tort 0f disparagement 0r slander 0f title is protection from injury t0 the salability 0f property. (Truck Insurance Exchange v. Bennett (1977) 53 Cal.App.4th 75, 84.) T0 state a claim for slander 0ftitle, a plaintiff must allege (1) a publication, (2) which is without privilege orjustification, (3) which is false, and (4) which causes direct and immediate pecuniary loss. [Citation] (Schep v. Capital One, NA. (2017) 12 Cal.App.5th 1331, 1336.) Defendants primarily argue Plaintiffs d0 not adequately plead these elements because their allegations as t0 the falsity 0r impropriety 0f the assignments are insufficient and, thus, d0 not render the notice 0f default 0r notice 0f trustee s sale improper. Second, Defendants briefly assert that Plaintiffs d0 not allege they acted with malice. In opposition, Plaintiffs d0 not clearly and directly respond t0 each argument. The Court notes at the outset that while Defendants focus 0n the notice 0f default and notice 0f trustee s sale, Plaintiffs claim appears t0 be based 0n the assignments. It is unclear why Defendants take this approach. While the Court located one federal case in which a court Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 7 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER held recorded assignments could give rise t0 a claim 0f slander 0f title, California courts have reasoned that it is the act 0f defaulting, not the recordation 0f an assignment, that arguably causes harm in the foreclosure context. (Compare Ghuman v. Wells Fargo Bank, NA (E.D. Cal. 2013) 989 F.Supp.2d 994, 1000, with Saterbak, supra, 245 Cal.App.4th at p. 819.) Based 0n this caselaw and in the absence 0f an explanation 0r citation from Defendants, it is not apparent Plaintiffs are categorically precluded from pleading slander 0f title based 0n recorded assignments such that it is appropriate t0 focus 0n the notice 0f default and notice 0f trustee s sale. And, it is not apparent from the facts pleaded why Defendants focus 0n the foreclosure documents as compared t0 the preceding assignments referenced in the sixth cause 0f action. Ultimately, because the Court finds below that Plaintiffs d0 not adequately allege facts showing the assignments are false publications, the Court makes these points t0 ensure clarity going forward. The Court agrees Plaintiffs allegations 0f false publication are insufficient. Plaintiffs allege that they are disputing the various assignments and generically characterize the assignments as containing hearsay, but they never allege a factual basis showing 0r supporting an inference that any 0f the recorded documents from the assignments t0 the notice 0f trustee s sale contain false, injurious statements. In other words, Plaintiffs disputation 0f the chain 0f title is without a pleaded factual foundation. This is insufficient. For example, in Gomes v. Countrywide Home Loans, |nc., (2011) 192 Cal.App.4th 1149, the court addressed similarly vague allegations made without a factual foundation and based, instead, 0n unspecified information and belief. The Gomes court rejected as insufficient the allegations 0f impropriety in deeds 0f trust and lack 0f authority t0 foreclose when improperly made 0n information and belief and, thus, in the absence ofa factual basis. (|bid.) Here too, Plaintiffs disputation 0fthe chain 0ftit|e upon which they base their claim is insufficient. In light 0f the foregoing and because 0f the conclusory nature in which Defendants second argument is presented, their second point about the absence 0f malice does not impact the outcome 0f the demurrer. It is true that a statutory privilege ordinarily applies t0 the recordation 0f foreclosure notices, which privilege may be overcome by a showing 0f malice. (Schep, supra, 12 Cal.App.5th at pp. 1336 37.) Also, appellate courts have affirmed orders sustaining demurrers without leave t0 amend when a judicialIy-noticed, unbroken chain 0f title shows a plaintiff cannot reasonably cure a deficient pleading by alleging malice. (Id. at pp. 1137 38.) Nevertheless, for the reasons above, these principles d0 not provide additional justification for sustaining the demurrer at this time, particularly based 0n the limited briefing presented here. Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 3 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER In conclusion, because Plaintiffs d0 not adequately allege the false publications upon which their claim is based, the demurrer t0 the sixth cause 0f action is SUSTAINED with 20 days leave t0 amend. E. Seventh Cause 0f Action Quiet Title Quiet title claims are governed by Code 0f Civil Procedure section 761.020, which requires a plaintiff t0 plead the following: (a) A description 0f the property that is the subject 0f the action. In the case 0f tangible personal property, the description shall include its usual location. In the case 0f real property, the description shall include both its legal description and its street address 0r common designation, if any. (b) The title 0f the plaintiff as t0 which a determination under this chapter is sought and the basis 0f the title. If the title is based upon adverse possession, the complaint shall allege the specific facts constituting the adverse possession. (c) The adverse claims t0 the title 0f the plaintiff against which a determination is sought. (d) The date as 0f which the determination is sought. If the determination is sought as 0f a date other than the date the complaint is filed, the complaint shall include a statement 0f the reasons why a determination as 0f that date is sought. (e) A prayer for the determination 0f the title 0f the plaintiff against the adverse claims. Defendants argue Plaintiffs fail t0 state a claim for quiet title because they d0 not allege tender 0r the ability t0 tender the balance 0f their loan. In opposition, Plaintiffs argue an allegation 0f tender is not required when an adverse claim 0f title is allegedly void. Neither Defendants nor Plaintiffs address this issue with sufficient precision and legal accuracy. Courts have held [a] borrower may not quiet title against a secured lender without first paying the outstanding debt 0n which the mortgage 0r deed 0f trust is based. (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86.) This is unsurprising. A contrary rule would allow for a party t0 obtain a greater, unencumbered interest in property than that which was acquired through the original transaction. With that said, as discussed above, the requirement 0f tender depends 0n the nature 0f the claim asserted. For example, in Lueras, the court discussed the distinct circumstances in which the tender rule might not apply, such as Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 9 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER when a challenge is made t0 the validity 0f the underlying debt. (Lueras, supra, 221 Cal.App.4th at pp. 86 87.) As with Plaintiffs second cause 0f action, Defendants tender argument is too conclusory and does not rest 0n analysis 0f the theory 0f invalidity as t0 each 0f the defendants. And so, Defendants d0 not substantiate their argument. In reaching this conclusion, the Court notes that Plaintiffs opposition is also problematic. Whether an instrument is void 0r voidable is a determination 0f law, and the Court need not accept a plaintiff s conclusory allegation 0r characterization 0f an alleged defect as void. (See generally Sciarratta v. US Bank, N.A. (2016) 247 Cal.App.4th 552, 564 [distinguishing legal concepts 0f void and v0idab|e].) Also, Plaintiffs d0 not appear t0 dispute the validity 0f the underlying debt. And so, although not especially clear, t0 the extent they take the position that they may extinguish any adverse claim by the true owner 0f their mortgage notwithstanding their failure t0 satisfy their debt, they are incorrect. (Lueras, supra, 221 Cal.App.4th at pp. 86 87.) Ultimately, despite the flaw in Plaintiffs approach, Defendants d0 not substantiate their application 0f the tender rule in the first instance. Consequently, the demurrer t0 the seventh cause 0f action is OVERRULED. F. Eighth Cause 0f Action Financial Elder Abuse Plaintiffs eighth cause 0f action is based 0n the Elder Abuse and Dependent Adult Protection Act (the Act ). (See Welf. & Inst. Code, 15657.) The Act makes certain enhanced remedies available t0 a plaintiff who proves abuse 0f an elder, i.e., a person residing in this state, 65 years 0f age 0r older. (Carter v. Prime Healthcare Paradise Valley, LLC (2011) 198 Cal.App.4th 396, 404, quoting Welf. & Inst. Code, 15610.27.) In particular, a plaintiff who proves by clear and convincing evidence both that a defendant is liable for physical abuse, neglect 0r financial abuse (as these terms are defined in the Act) and that the defendant is guilty 0f recklessness, oppression, fraud, 0r malice in the commission 0f such abuse may recover attorney[ s] fees and costs. (Carter, supra, 198 Cal.App.4th at p. 404, quoting Welf. & Inst. Code, 15657.) T0 state a claim for financial elder abuse, a plaintiff must allege: (1) he 0r she was an elder at the time 0f his 0r her injury; (2) the defendant took, secreted, appropriated 0r retained, 0r assisted another in taking, secreting, appropriating 0r retaining, real 0r personal property; and (3) the defendant took the property for a wrongful use 0r with intent t0 defraud the elder plaintiff. (Welf. & Inst. Code, 15610.30, subd. (a).) Taking for a wrongful use occurs if, among other things, the person 0r entity takes, secretes, appropriates, obtains, 0r retains the property and the person 0r entity knew 0r should have known that this conduct is likely t0 be Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 10 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER harmful t0 the elder. (Welf. & Inst. Code, 15610.30, subd. (b).) These facts must be pleaded with particularity. (Carter, supra, 198 Cal.App.4th at p. 407.) Defendants argues Plaintiffs claim fails because they d0 not allege any taking 0r misappropriation 0f their property n0 sale occurred and d0 not allege facts showing a taking occurred with the requisite intent. The Court agrees. The facts alleged in the prefatory portion 0f the pleading as well as in the eighth cause 0f action itself fall far short 0f the pleading standard above. Plaintiffs d0 not plead facts with particularity establishing each 0f the named defendants acted with the requisite intent. Their allegations are conclusory. Additionally, Plaintiffs d0 not allege their home was taken and d0 not actually appear t0 be basing their claim 0n a taking, secreting, appropriation, 0r retention 0f property. (See Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527 [plaintiffs subject t0 foreclosure failed t0 state claim for elder abuse].) Instead, Plaintiffs vaguely allege that the making 0f false representations and failure t0 offer a foreclosure alternative constituted elder abuse. (FAC, 135.) Such allegations d0 not describe a takings 0r misappropriation 0f property even in broad terms. And, Plaintiffs d0 not cite and the Court is not otherwise aware 0f authority for the proposition that such conduct comes within the statutory definition above. Thus, in addition t0 the lack 0f particularity and inadequacy 0f the intent allegations, Plaintiffs claim is deficient for the additional reason that they d0 not allege conduct clearly covered by the Act. Accordingly, the demurrer t0 the eighth cause 0f action is SUSTAINED with 20 days leave t0 amend. G. Ninth Cause 0f Action Breach 0f Contract [T]he elements 0f a cause 0f action for breach 0f contract are (1) the existence 0f the contract, (2) plaintiff s performance 0r excuse for nonperformance, (3) defendant s breach, and (4) the resulting damages t0 the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Ca|.4th 811, 821.) Defendants argue Plaintiffs fail t0 state a claim for breach 0f contract because they d0 not allege they performed by staying current 0n the loan. The Court agrees. In the ninth cause 0f action, Plaintiffs direct the reader t0 the choice 0f law and severability clause in paragraph 15 0f the deed 0f trust (FAC, Ex. lat p. 4.) Plaintiffs contort this clause and interpret it as establishing either a material term 0r condition precedent. Plaintiffs then allege that because Defendants broke the law, they breached the agreement, particularly the choice-of-law clause. The Court observes as a threshold matter and in light 0f the points in Plaintiffs opposition, that this theory is unreasonable. As its name suggests, a choice-of-law clause is just that. It is a clause whereby the parties t0 the agreement choose the law that will be used t0 interpret the agreement and/or resolve disputes over the agreement. Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 11 0f 12 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER (Airs Aromatics, LLC v. CBL Data Recovery Technologies Inc. (2020) 50 Cal.App.5th 1009, 1014.) Due t0 this very nature, a choice-of-law clause does not render every law 0f the chosen jurisdiction a term 0f the agreement such that any violation 0f the law also constitutes a breach 0f the agreement. With that clarification in mind, Plaintiffs d0 not allege they performed either based 0n their unusual theory 0r based 0n a theory rooted in the material terms 0f their loan agreement. This is t0 say that Plaintiffs d0 not allege they complied with the payment terms and, even accepting their strange theory, d0 not allege they performed under the choice-of-law clause they cite in the FAC. Consequently, Plaintiffs fail t0 state a claim for breach 0f contract. The demurrer t0 the ninth cause 0f action is SUSTAINED with 20 days leave t0 amend. The Court will prepare the Order. - 00000 - Printed: 10/20/2020 10/20/2020 Hearing: Demurrer r 19CV353062 Page 12 of 12