Request Judicial Notice

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

Law Offices of Ronald H. Freshman 3040 Skycrest Drive Fallbrook, CA 92028 Tel. (858) 756-8288 ©00fl0\Ul-I>UJN>-t NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-Ar-Ar-A OONOMJ>WNHO©OOQCNUI¥UJNHO 19CV353062 Santa Clara - Civil Ronald H. Freshman Esq. (SBN 225136) LAW OFFICES OF RONALD H. FRESHMAN 3040 Skycrest Drive Fallbrook, CA 92028 Telephone: (858) 756-8288 Facsimile: (858) 964-1728 Attorneys for Plaintiffs Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/9/2021 10:22 PM Reviewed By: F. Miller Case #1 9CV353062 Envelope: 7637413 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DIRK HARTOGS; LINDA E. KEILERS, PLAINTIFFS, VS. CITIMORTGAGE, INC.; US BANK N.A. F/K/A FIRST TRUST NATIONAL ASSOCIATION AS TRUSTEE; CREDIT BASED ASSET SERVICING AND SECURITIZATION, LLC; THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK AS SUCCESSOR IN INTEREST TO JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR C-BASS MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-R01; OCWEN LOAN SERVICING LLC; ALL PERSONS UNKNOW, CLAIMING ANY LEGAL OR EQUITABLE RIGHT, TITLE, ESTATE, LIEN, OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFFS’ TITLE, OR ANY CLOUD ON PLAINTIFFS’ TITLE THERETO; and Does 1 through 5, inclusive, DEFENDANTS. Plaintiffs, Dirk Hartogs; and Linda E. Keilers, (hereinafter “Plaintiffs”) hereby and through counsel files this Request for Judicial Notice in support Plaintiffs’ Opposition t0 Defendant’s Demurrer t0 Plaintiffs’ Second Amended Complaint. Court, pursuant t0 California Evidence Code §§ 451 through 453, inclusive, take judicial notice of the following documents. CASE NO.: 19CV353062 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT HEARING DATE: Date: November 23, 2021 Time: 9am Dept.: 2 JURY TRIAL DEMANDED Cmplt.: August 16, 2019 Trial Date: TBD -1- Plaintiffs request that the . Vliller REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT Law Offices of Ronald H. Freshman 3040 Skycrest Drive Fallbrook, CA 92028 Tel. (858) 756-8288 ©00fl0\Ul-I>UJN>-t NNNNNNNNNHr-tr-tr-tr-tr-tr-tr-Ar-Ar-A OONOMJ>WNHO©OOQCNUI¥UJNHO REQUEST FOR JUDICIAL NOTICE NO. 1 Order Re: Demurrer dated October 23, 2020, filed in the Superior Court of Santa Clara in the above-entitled case on October 26, 2020. A true and correct copy is herein attached as Exhibit 1. REQUEST FOR JUDICIAL NOTICE NO. 2 Assignment 0f Deed of Trust dated May 30, 1997, filed in the Santa Clara County Recorder’s Office as Document Number 13870793 on September 24, 1997. A true and correct copy is herein attached as Exhibit 2. LAW OFFICES OF RONALD H. FRESHMAN mfl&_. RONALD H. FRESHMAN Attorney for Plaintiffs Dated: November 9, 2021 -2- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT EXHIBIT 1 EXHIBIT 1 OOONQLJI$UJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 F I L E oc1262020 Clarp of e Court Superior {Egg} A unty of Santa Clara BY 1 DEPUTY EBManJo SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA DIRK HARTOGS, et a1., Case No. 19CV353062 Plaintiffs, ORDER RE: DEMURRER vs. CITIMORTGAGE, INC., et a1., Defendants. The demurrer by Defendants US Bank, N.A., Bank ofNew York Mellon, and the successor to chen Loan Servicing came on for hearing before the Honorable Roberta S. Hayashi on October 20, 2020, at 9:00 a.m. (Via CourtCall) in Department 6. The matter having been submitted, the Court finds and orders as follows: I. Background This is a wrongfill foreclosure action brought by Plaintiffs Dirk Hartogs and Linda Keilers (collectively, “P1aintiffs”) against defendants CitiMortgage, Inc. (“Citi”), US Bank, N.A. (formerly First Trust National Association) (“US Bank”), Credit Based Asset Servicing and Securitization, LLC (“CBASS”), Bank ofNeW York Mellon (formerly Bank ofNew York) (“Mellon”), and chen Loan Servicing (“chen”). 1 a ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT NOOOVOUI-PLNN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs owned a primary residence at 2220 Rolling Hills Drive in Morgan Hill, California (the “Property”). As alleged in the First Amended Complaint (“FAC”), in 1993, Plaintiffs mortgaged the Property to secure a loan from the Prudential Home Mortgage Company. (FAC, fl 22 & Ex. 1 [Deed of Trust].) Following an initial assignment in 1997, in 2004, a second assignment was made. (FAC, 11 23; see also Comp1., Ex. 2 [“Second Assignment”].) According to the Second Assignment, Citi-acting with power of attorney on behalf ofUS Bank-sold Plaintiffs’ 1993 mortgage to 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, 1] 24 & Ex. 2 [“Third Assignment”]; see also Comp1., Ex. 3.) In August 2012, another assignment was made from Mellon’s predecessor, the Bank of New York, to Mellon, which assignment appears t0 document the merger-and-acquisition activity through Which Mellon’s predecessor became Mellon. (FAC, TI 27 & Ex. 3 [“Fourth Assignment"]; see also Compl., Ex. 4.) Subsequently, the Fifth Assignment was recorded on behalf 0fCBASS for the stated purpose of correcting the Second Assignment by adding recording book and page information. (FAC, 11 30 & Ex. 4 [“Fifth Assignment”]; see also Compl., Ex. 5.) In 2018, yet another assignment was made, which was described as a “gap assignment.” (FAC, Ex. 5 [“Sixth Assignment”].) The terms of the Sixth Assignment state Plaintiffs’ mortgage was transferred as follows: “For Value Received, US Bank National Association as Trustee, Successor in interest to First Trust National Association As Trustee for PHMSC hereby grants, assigns and transfers to U.S. Bank N.A. F/IQA FIRST TRUST NATIONAL ASSOCIATION, AS TRUSTEE at C/O OCWEN LOAN SERVICING, LLC, 1661 WORTHINGTON ROAD, STE 100, WEST PALM BEACH, FL 33409. . (FAC, ‘fl 33 & Ex. 5 [Sixth Assignment]; see also Compl. Ex. 6.) In October 2018, a notice of default was recorded. (FAC, 1H] 36-37 & Ex. 6; see also Compl. Ex. 7.) Thereafter, Plaintiffs received a notice of trustee’s sale with a sale date of August 21, 2019. (FAC, 11 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 Defendants: (1) declaratory and injunctive relief (against all defendants); (2) cancellation 2 fl ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT QOOQONUI-PL'JNH N NNNNNNNI-‘r-tp-nb-Ir-dr-tr-tp-Ar-dr-A OOBONM-tht-‘OCOONONMhWNHO of instruments (against Citi, Mellon, US Bank, and chen); (3) Violation of Civil Code section 2924 (against Mellon and chen); (4) violation of California’s unfair competition law (the “UCL”) (against all defendants); (5) violation of the California Homeowner Bill of Rights (“CHBOR”) (against Mellon, US Bank, and chen); (6) slander of 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 of contract (against Mellon and US Bank).‘ Currently before the Court is a demurrer by US Bank, Mellon and chenz (collectively, “Defendants”) to the first, second, fourth, sixth, seventh, eighth, and ninth causes of action on the ground of failure to state facts sufficient to constitute a cause of action. Plaintiffs oppose the demurrer. Both Plaintiffs and Defendants filed requests for judicial notice. II. Requests for Judicial Notice Defendants request judicial notice 0f recorded instruments, many ofWhich are attached to Plaintiffs’ original and amended complaints. The instruments encompassed by Defendants’ request consist of the assignments summarized above-including the very first assignment in 1997-as well as the notice of default and notice 0f trustee’s sale. A court may take judicial notice of the existence and facial contents of recorded instruments. (Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1, citing Evid. Code, § 452, subds. (c) & (h).) This includes the fact of 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 statements. (Yvanova, supra, 62 Cal.4th at p. 924, fn. l, citing Fontenot v. Wells Fargo Bank, N.A. (201 1) 198 Cal.App.4th 256, 265.) A court may then rely upon the legal effect of the 1 Plaintiffs also purport to assert the third and fifih causes of action against “Western Progressive,” which is presumably a reference to Western Progressive, LLC, identified in the notice of default as a point 0f contact and the party who prepared the notice of default on behalf ofCBASS as beneficiary and Mellon as trustee. But Western Progressive, LLC is not otherwise identified as a defendant in the caption or prefatory statement of facts in the pleading. And, there is no proof of service in the Court’s file for Western Progressive, LLC. Thus, the inclusion 0f Western Progressive in the title above these claims appears to be a clerical error. 2 As a result of 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 to ensure clarity in the record. 3 fl ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT \OOO\IO\Ul-PUJNr-A NNNNNNNNNr-tr-Iwr-Ir-Ar-tr-‘r-tr-IH OONQLAJ>WNHO®OONQLIIJ>UJNHO 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 for judicial notice, they do not actually dispute the facial contents enumerated above that come within the proper scope ofjudicial notice. Plaintiffs state they “do 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 on their face and listed Within Defendant’s Request for Judicial Notice, or that they are exact replicas of What the County Recorder has in its records.” (P1. Opp. to RJN at p. 3:22-25.) In other words, Plaintiffs do not dispute that the documents say what they say; they dispute whether some statements are true and the interpretation of these statements. Accordingly, the undisputed facial contents of the recorded instruments, nearly all of which Plaintiffs have already placed in the record through their pleadings, are subject to judicial notice. The Court does not take judicial notice of disputed questions of fact or interpretation that g0 beyond the proper matters described above. Based on the foregoing, Defendants’ request for judicial notice is GRANTED. Plaintiffs request judicial notice of a 1982 quitclaim deed showing they owned the Property at that time, which deed appears to be the same as the deed appended to the original complaint that has now been superseded by the FAC. While the relevance and materiality of 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 judicial notice 0f a lien report. The origin and nature of the lien report are fundamentally unclear. Also, it is not apparent the report is a public record or document prepared by a public agency. And so, there is no obvious and proper basis for taking judicial notice 0f the lien report. Thus, the lien report is not subject t0 judicial notice. Plaintiffs’ request is therefore GRANTED IN PART and DENIED 1N PART. III. Demurrer In general, “a complaint must contain ‘[a] statement of the facts constituting the cause of 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 fact-pleading 4 ORDER RE: DEMURRER T0 FIRST AMENDED COMPLAINT fl \DOONONUI-DUJN 1o 11 12 13 14 15 16 17 1s 19 20 21 22 23 24 25 26 27 28 requirement obligates the plaintiff to allege ultimate facts that as a whole apprise[] the adversary of the factual basis 0f the claim.” (Davaloo, supra, 135 Cal.App.4th at p. 415 [internal quotation marks and citations omitted].) A demurrer tests Whether the plaintiff alleges each fact essential t0 the cause of action asserted. (CA. v. William S. Hart Union High School Dist. (2012) 53 Ca1.4th 861, 873.) A. First Cause of Action-Declaratory and Injunctive Relief A party may seek declaratory relief “in cases of actual controversy relating to 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 of an actual controversy that is ripe for resolution. (Otay Land C0. v. Royal Indemnity C0. (2008) 169 Cal.App.4th 556, 562-63.) To 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 to 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 to 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 of action. (Allen v. City ofSacramento (2015) 234 Cal.App.4th 41, 65.) Nevertheless, irrespective ofhow a plaintiff artfully 0r inartfully labels a claim, a plaintiffmay obtain an injunction if he or she is otherwise entitled to such relief on the merits. (Ibid.) Despite acknowledging some of these principles, Defendants d0 not advance a clear argument establishing Plaintiffs fail to adequately plead entitlement t0 declaratory or injunctive relief. In Defendants’ supporting memorandum, they focus on 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 declaratoryjudgment establishing their title to the property to state a claim for declaratory relief. Similarly, Defendants do not establish that Plaintiffs fail to plead any cognizable basis for injunctive relief. And, as set forth below, the Court does not sustain the demurrer as to each and every cause 0f action at issue. Also, fl/ 5 ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT \OOONQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendants demurrer is not directed t0 all of the causes of action pleaded. Thus, it cannot be said at this juncture that the FAC is devoid of any possible basis for injunctive relief. For these reasons, Defendants do not establish that the first cause of action in its entirety is subj ect to demurrer due to the absence of an alleged controversy over the parties’ rights and obligations and absence of a basis for injunctive relief. The demurrer to the first cause of action is, therefore, OVERRULED. B. Second Cause of Action-Cancellation of Instruments After providing a brief statement 0f broad legal principles, Defendants argue that “Plaintiffs still have not tendered or even alleged a capacity to tender, so their cancellation of instruments claim fails as a matter of law.” (Mem. of Pts. & Auth. at p. 5: 19-20.) Plaintiffs do not clearly and directly respond to 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 implicit premise of Defendants’ argument is that a plaintiff must always allege tender of the loan balance to state a claim for cancellation of instruments. Defendants do not cite any authority to support this legal premise. The Court first clarifies that the elements of a claim (LC for cancellation of instrument are: (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension 0f serious injury including pecuniary loss or the prejudicial alteration of one’s position.’ [Citation.]” (Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1193-1 194.) Such a claim is considered to be equitable in nature. (Saterbak v. JPMorgan Chase Bank, N.A. (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 of action here. (Ibid) Even s0, courts have not applied these principles categorically. (Ibid.) This is to say that-contrary t0 the implicit premise of Defendants’ argument-a tender allegation is not always required. (Ibid) As described by the Fourth District: “The tender rule is not absolute; tender is not required to cancel a written instrument that is void and not merely voidable.” (Ibid) 6 fi/ ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT KOOONOUI-RWNH NNNNNNNNNr-tr-tr-dHr-Ir-Ir-tt-It-It-I OONQKII-hLHNr-‘OKOOONOUIJ>WNHO Defendants do not address the tender rule as applied by modern courts in wrongful foreclosure actions. They do not acknowledge the distinction between void 0r voidable instruments and articulate why Plaintiffs’ allegations properly fall into one category or the other. And Defendants d0 not thereafter explain Why Plaintiffs’ allegations are deficient in light of the nature and basis for Plaintiffs’ cancellation claim. Accordingly, Defendants fail to substantiate an argument based on the tender rule, and the demurrer is not sustainable on that basis. Defendants do not advance any other argument with respect to the second cause of action. Thus, the demurrer to the second cause of action is OVERRULED. C. Fourth Cause 0f Action-UCL Defendants argue Plaintiffs fail to state a UCL claim because they do not allege facts showing they have standing and that Defendants’ conduct caused their injuries as compared to their own default. In opposition, Plaintiffs focus on a number of 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 or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by [Section 17500].” (Hansen v. Newegg.com Americas, Inc. (2018) 25 Cal.App.5th 714, 722, quoting Bus. & Prof. Code, § 17200.) “‘The UCL’s 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 Cal.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 ofCalifornia, Inc. (1993) 14 Cal.App.4th 612, 619.) Standing is an essential prerequisite for asserting a UCL claim. (Hansen, supra, 25 Ca1.App.5th at p. 723, citing Kwikset, supra, 51 Ca1.4th at pp. 320-21.) To properly plead standing, a plaintiff must allege he or she suffered an injury in fact, particularly a loss or deprivation of money or property, as a result of the unlawful, unfair, or fraudulent conduct. (Hansen, supra, 25 Cal.App.5th at pp. 724-25.) For example, a plaintiff suffers an economic 7 ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT fi/ N \OOONONUI-lkw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 injury sufficient to confer standing when he or she pays more in the course 0f a transaction than he or she would have or when a present or future interest in property is diminished. (Kwikset, supra, 5 1 Cal.4th at pp. 323-24.) As another example, loss of customers and increased business costs may qualify as an injury in fact. (Law Ofices ofMathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544, 560.) Here, Plaintiffs fail to plead sufficient facts to support their claim, including the element of standing. In paragraph 88 of the FAC, Plaintiffs vaguely allege they have “been harmed monetarily as described herein and to be proven at trial, for wrongful payments of principal and interest to parties not entitled, cloud placed 0n title to the Subject Property, legal fees, etc. in amounts detailed herein, to be proven at trial.” It is fundamentally unclear from the pleading what monetary harm “described herein” Plaintiffs are referring to. The prefatory allegations that precede each cause of action do 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. Courts have held that the loss 0f a home due to a completed foreclosure sale is a loss 0f property sufficient to 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 Ioss-the foreclosure sale-and the alleged UCL Violation, the allegations are deficient. (Ibid) Here, in addition to the lack of clarity in Plaintiffs’ basic allegations of loss, it is not apparent how their alleged monetary losses correlate to each defendant’s allegedly unfair, unlawful, and fraudulent business practices. For example, it is unclear in the pleadings to whom Plaintiffs allegedly made mistaken payments and that these payments have a connection to their default or the allegedly improper foreclosure proceedings. Further, as Defendants point out, because there is no allegation of a completed foreclosure sale, Plaintiffs claim cannot be based on the loss 0f their home at this juncture. For these reasons, Plaintiffs must plead more facts-in a clear and reasonably particular manner--sh0wing what each defendant did in violation of the UCL and that each Violation caused an articulable loss ofmoney or property. For these reasons, the demurrer to the fourth cause 0f action is SUSTAINED with 20 days’ leave to amend. 8 ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT fi/ ©00\lO\Ul-PU)N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Sixth Cause of Action-Slander 0f Title “The thrust 0f the tort 0f disparagement or slander of title is protection from injury to the salability 0f property.” (Truck Insurance Exchange v. Bennett (1977) 53 Cal.App.4th 75, 84.) “To state a claim for slander of title, a plaintiff must allege ‘(1) a publication, (2) Which is without privilege or justification,’ (3) which is false, and (4) which ‘causes direct and immediate pecuniary loss.’ [Citati0n.]” (Schep v. Capital One, NA. (2017) 12 Cal.App.5th 1331, 1336.) Defendants primarily argue Plaintiffs do not adequately plead these elements because their allegations as to the falsity or impropriety of the assignments are insufficient and, thus, do 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 do not clearly and directly respond to each argument. While Defendants focus on the notice of default and notice of trustee’s sale, Plaintiffs’ claim appears to be based on the assignments. It is unclear why Defendants take this approach. While the Court located one federal case in which a court held recorded assignments could give rise to a claim of slander of title, California courts have reasoned that it is the act of defaulting, not the recordation of an assignment, that arguably causes harm in the foreclosure context. (Compare Ghuman v. Wells Fargo Bank, N.A. (ED. Cal. 2013) 989 F.Supp.2d 994, 1000, With Saterbak, supra, 245 Cal.App.4th at p. 8 19.) Based on this case authority and in thq absence of an explanation or citation from Defendants, it does not appear that Plaintiffs are categorically precluded from pleading slander of title based 0n recorded assignments such that it is appropriate to focus 0n the notice of default and notice of trustee’s sale. And, it is not apparent from the facts pleaded why Defendants focus on the foreclosure documents as compared to 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 to ensure clarity going forward. The Court agrees Plaintiffs’ allegations of 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 or supporting an 9 aORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT \OOONONKIIAUJN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inference that any 0f the recorded documents-from the assignments to the notice of trustee’s sale-contain false, injurious statements. In other words, Plaintiffs’ challenge to the chain of title is asserted as conclusion without pleading a factual foundation. In Games v. Countrywide Home Loans, Ina, (201 1) 192 Cal.App.4th 1149, the court addressed similarly vague allegations made Without a factual foundation and based, instead, on unspecified “information and belief.” The Games court rej ected as insufficient the allegations of impropriety in deeds of trust and lack 0f authority t0 foreclose that were improperly made on information and belief and, thus, devoid of a factual basis. (Ibid) Here too, Plaintiffs’ disputation of the chain of title upon which they base their claim of slander of title, is insufficient. In light 0f the foregoing and because of the conclusory nature in which it is presented, Defendants’ second argument as to this cause of action, about the absence of malice, is not material for purposes 0f this demurrer. It is true that a statutory privilege ordinarily applies to the recordation of foreclosure notices, which privilege may be overcome by a showing of malice. (Schep, supra, 12 Ca1.App.5th at pp. 1336-37.) Also, appellate courts have affirmed orders sustaining demurrers without leave to amend when a judicially-noticed, unbroken chain of 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 do not provide additional justification for sustaining the demurrer at this time, particularly given the limited briefing presented here. As Plaintiffs do not adequately allege the false publications upon which their claim is based, the demurrer to the sixth cause of action is SUSTAINED with twenty days’ leave to amend. E. Seventh Cause 0f Action-Quiet Title Quiet title claims are governed by Code of Civil Procedure section 761.020, which requires a plaintiff to plead the following: (a) A description of the property that is the subject of the action. In the case 0f tangible personal property, the description shall include its usual location. In the case of real property, the description shall 10 fl ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT L114>UJN OOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 include both its legal description and its street address or common designation, if any. (b) The title 0f the plaintiff as to which a determination under this chapter is sought and the basis of 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 to the title of the plaintiff against which a determination is sought. (d) The date as of Which the determination is sought. If the determination is sought as of a date other than the date the complaint is filed, the complaint shall include a statement of the reasons why a determination as of that date is sought. (e) A prayer for the determination of the title of the plaintiff against the adverse claims. Defendants argue Plaintiffs fail to state a claim for quiet title because they do not allege tender or the ability to tender the balance of their loan. In opposition, Plaintiffs argue an allegation of tender is not required When an adverse claim of 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 or deed of trust is based.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 86.) A contrary rule would allow for a party to obtain a greater, unencumbered interest in property than that Which was acquired through the original transaction. With that said, as discussed above, the requirement of tender depends on the nature of the claim asserted. For example, in Lueras, the court discussed the distinct circumstances in which the tender rule might not apply, such as when a challenge is made t0 the validity of the underlying debt. (Lueras, supra, 221 Ca1.App.4th at pp. 86-87.) As with Plaintiffs’ second cause of action, Defendants’ argument regarding tender is conclusory and does not rest on analysis of the theory of invalidity as to each of the Defendants. In reaching this conclusion, the Court notes that Plaintiffs’ opposition is also problematic. Whether an instrument is void or voidable is a determination 0f law, and the Court need not accept a plaintiff’s conclusory allegation 0r characterization of an alleged defect as void. (See generally Sciarratta v. US Bank, N.A. (2016) 247 Cal.App.4th 552, 564 [distinguishing legal 11 aORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT \OOONQLIIALNNH NNNNNNHHHHHHt-r-tr-‘v- concepts 0f void and voidable].) Also, Plaintiffs do not appear to dispute the validity of the underlying debt. And so, although not especially clear, to the extent they take the position that they may extinguish any adverse claim by the true owner of 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 do not substantiate their application of the tender rule in the first instance. Consequently, the demurrer to the seventh cause of action is OVERRULED. F. Eighth Cause 0f Action-Financial Elder Abuse Plaintiffs’ eighth cause of action is based on the Elder Abuse and Dependent Adult Protection Act (the “Act”). (See Welf. & Inst. Code, § 15657.) The “Act makes certain enhanced remedies available t0 a plaintiffWho proves abuse 0f an elder, i.e., a ‘person residing in this state, 65 years of age or older.”’ (Carter v. Prime Healthcare Paradise Valley, LLC (201 1) 198 Cal.App.4th 396, 404, quoting Welf. & Inst. Code, § 15610.27.) “In particular, a plaintiffwho proves ‘by clear and convincing evidence’ both that a defendant is liable for physical abuse, neglect or financial abuse (as these terms are defined in the Act) and that the defendant is guilty of ‘recklessness, oppression, fraud, or malice’ in the commission of 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 or she was an elder at the time of his or her injury; (2) the defendant took, secreted, appropriated or retained, or assisted another in taking, secreting, appropriating or retaining, real or personal property; and (3) the defendant took the property for a wrongfill use or 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, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to 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.) 12 fi/ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT ®OO\)O\UI-DUJN’-‘ NNNNNNNNNb-lt-r-lr-tv-It-p-tr-dp-nu-t WNONMLWNr-‘OOOONONUI-PUJNV-‘O Plaintiffs’ do not allege any taking or misappropriation of their property-no sale occurred-and do not allege facts showing a taking occurred with the requisite intent. The facts alleged in the prefatory portion of the pleading as well as in the eighth cause of action itself fall far short of the pleading standard above. Plaintiffs do not plead facts with particularity establishing each of the named defendants acted with the requisite intent. Their allegations are conclusory. Additionally, Plaintiffs do not allege their home was taken and do not actually appear to be basing their claim on a taking, secreting, appropriation, or retention of property. (See Stebley v. Litton Loan Servicing, LLP (201 1) 202 Cal.App.4th 522, 527 [plaintiffs subject t0 foreclosure failed to state claim for elder abuse].) Instead, Plaintiffs vaguely allege that the making of false representations and failure to offer a foreclosure alternative constituted elder abuse. (FAC, 11 135.) Such allegations do not describe a takings or misappropriation of property even in broad terms. Plaintiffs d0 not cite authority for the proposition that such conduct comes within the statutory definition above. Accordingly, the demurrer to the eighth cause of action is SUSTAINED With 20 days’ leave to amend. G. Ninth Cause 0f Action-Breach of Contract “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiffs performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Really, LLC v. Goldman (201 1) 51 Ca1.4th 81 1, 821.) Defendants argue Plaintiffs fail to state a claim for breach 0f contract because they do not allege they performed by staying current on the loan. In the ninth cause 0f action, Plaintiffs assert that the choice of law and severability clause in paragraph 15 0f the deed 0f trust (FAC, Ex. 1 at p. 4.) is 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. This assertion is untenable. A choice-of-law clause is plainly a clause whereby the parties to the agreement choose the law that will be used to interpret the agreement and/or resolve disputes over the agreement. (Airs Aromatics, LLC v. CBL Data Recovery Technologies Inc. (2020) 50 Ca1.App.5th 1009, 1014.) A choice-of-law clause 13 flORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT U‘I-DUJN \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 does not incorporate every law of the chosen jurisdiction, into the agreement such that any alleged violation of the law also constitutes an alleged breach of the agreement. Further, Plaintiffs do not allege they performed their obligations of the agreement With Defendants under any theory of the Loan agreement, and thus fail to state a claim for breach of contract. The demurrer to the ninth cause of action is SUSTAINED with 20 days’ leave to amend. Date: 23 nget ,2020 L/M Roberta S. Hayégfi Judge of the Superior Court 14 ORDER RE: DEMURRER TO FIRST AMENDED COMPLAINT SUPERIOR COURT OF CALIFORNIA COUNTY 0F SANTA CLARA DOWNTOWN COURTHOUSE ENDORSED 191 NORTH FIRST STREET (I ISAN JOSE, CALIFORNlA 95 1 13 CIVIL DIVISION OCT 2 6 2020 Clerk of the Court Superior Court of CA County oi Santa Clara BY ”.3 DEPUTY RE: Dirk Hartogs et al vs CitiMortgage Inc. et al - ' Case Number: 190V353062 I PROOF OF SERVICE ORDER RE: DEMURRER was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you. or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act. please contact the Court Administrator’s office at (408) 882-2700, or use the Court's TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: | declare that | served this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose, CA on October 26, 2020. CLERK OF THE COURT. by Farris Bryant, Deputy. cc: Ronald H Freshman Law Offices of Ronald H Freshman 3040 Skycrest Dn've FALLBROOK CA 92028 Christopher Lee Peterson Ducan Peterson LLP 9665 Chesapeake Dr Ste 305 SAN DIEGO CA 92123 Austin Benjamin Kenney Severson & Werson One Embarcadero Center #2600 San Francisco CA 941 11 cw-9027 REV 12/08/16 PROOF OF SERVICE EXHIBIT 2 EXHIBIT 2 Document P|rtinsrcrftii(l set over to PirailTruj*^^^ whoK.n^wls:t?!^!itRmbSfr<(it,Sj>P»w),:M flwtfc-^Hbcrf I>&c^ of^ffl^E, log^cr^it^^^^^ tji'^cfs) described .therein with ati inttrcst, all liens, and any rights due or to b^com^'iuc thereon; Ssid Deed ofTh^t ts> ^cwdey'tn.the Siafe of 6aIirCTrnia . SANTA CLARA County, Officlal'records on; WW I /; / :a$ Dwuhient No.; I221fi463 (n:E^odK^M^ ~ f MPa^'Wl / as Ce-tificate #: OrioinalXwt^Am&Ont ^; :$ 49it»P&9>01& I^nn nmc 1 L'tS/ft.-i '?Uai^l;b^"^ IbHl^ HUi^ES^JlURTOGSAN3E>UNDAE. KEILERS, HUSBANOAND WIFE Originai Beneficiary! The Prudentl*! Honts Mortg-nge Company, Inc. Originftl Trustee: FTDELm'NATIONAL TTTLE INSURANCE COMPANY IN WTTNES5 ^ygREOF; thfi nr^^igned ?6r^ Ks.BAHrd "of-Pi'recfof!: has caused this instrument to be executed by its.du{9:aui(hiSf1^doffipefs. 'fh< F'ritticfitlal HQmc frfortgag*1 Company, Inc. doing bualnm as PHMC, Dated this 05/30/97 Ifw»nd P.H. Mor(jt»g Corponttlbit iheVte^iFfw(t**nt addrtfl? WiiR 74^0 :N1-intit?'utinintand dclilnowlcrfgett fo mti ihat(o)hc executed .y:t9.flft")^ ^! hia/hcr aut.hori^d 'capaqty-and':tha?',&y.Jii^