Hearing Demurrer

Cal. Super. - 6th Dist.June 7, 2021

SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Ron Ronen et al vs First American Title Insurance Co. et Hearing Start Time; 9:00 AM al 21CV382740 Hearing Type: Hearing: Demurrer Date of Hearing: 10/12/2021 Comments: Heard By: Takaichi, Drew C Location: Department 2 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Maggie Castellon Court Interpreter: Court Investigator: Parties Present: Future Hearings: Ada-Saucedo, Alexa Plaintiff Ronen, Ron V. Plaintiff Exhibits: - Frederick A. Haist for: Defendant(s), JP Morgan Chase Bank via courtcall. Katalina Baumann for: Defendant(s), Nationstar Mortgage LLC via courtcall. Christine Hehir for: Defendant(s), Bank of America via courtcall. Jackson Stogner for Defendant(s), Rinconada Hills Association via courtcall. Jonathan Cahill for: Defendant(s), Wilmington via courtcall. Nicholas D. Karkazis for defendant(s), Select Portfolio Servicing and ABS REO Trust V via courtcall. Tentative ruling is not contested. Tentative ruling is adopted as follows; Demurrer to the Complaint by Defendant Bank of America. Factual and Procedural Background This appears to be an action for fraud and wrongful foreclosure. According to the operative complaint, plaintiffs Ron V. Ronen ( Ronen ) and Alexa Ada-Saucedo (collectively, Plaintiffs ) (seIf-represented), husband and wife, reside at real property located at 121 Vista Del Lago in Los Gatos, California. (Complaint at 6, 31.) Plaintiff Ronen purchased the subject property on January 28, 1994. (Id. at 31.) While difficult to determine, Plaintiffs allege multiple defendants, including mostly banks and other financial institutions, intentionally conned, tricked, and maliciously deceived plaintiff Ronen into signing fraudulent documents and instruments in connection with the subject property. (Complaint at 35.) In particular, Plaintiffs allege defendants misrepresented material facts in the origination and servicing of a loan and intentionally presented and recorded false fraudulent instruments. (Id. at 119-120.) Plaintiffs contend such unlawful actions will ultimately conclude with foreclosure of the subject property. Finally, plaintiff Ronen alleges he was intentionally attacked on his own property and outside several times resulting in physical injuries by defendants so he would not discover the fraud. (Complaint at 42.) On June 7, 2021, Plaintiffs filed a complaint alleging causes of action for: (1) quiet title; (2) damages for Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 1 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER financial harm; (3) injunctive relief; and (4) declaratory relief. On July 20, 2021, defendant Bank of America, N.A. ( Bank ) filed the motion presently before the court, a demurrer to the complaint. Bank submitted a request forjudicial notice in conjunction with the motion. Plaintiffs filed written opposition. A case management conference is set for October 19, 2021. Demurrer to the Complaint Defendant Bank argues the first, second, third, and fourth causes of action are subject to demurrer on the following grounds: (1) failure to state a claim; (2) uncertainty; (3) res judicata; and (4) statute of limitations. (Code Civ. Proc., 430.10, subds. (e), (f).) Procedural Issue As a preliminary matter, the court notes Plaintiffs opposition is procedurally defective because it is 44 pages in length and, thus, exceeds the mandated page limit. (See Cal. Rules of Court, rule 3.1113(d) [no opening or responding memorandum may exceed 15 pages, except in a summaryjudgment or adjudication motion].) Because it is an oversized memorandum, it is considered in the same manner as a Iate-filed paper. (Cal. Rules of Court, rule 3.1113(g).) The court has discretion to refuse to consider a Iate-filed paper. (Cal. Rules of Court, rule 3.1300(d).) As stated above, an opposing memorandum in response to a demurrer shall not exceed 15 pages in length. Thus, the fact that Plaintiffs filed a memorandum of approximately 44 pages is undoubtedly a violation of the rules of court. Nor are Plaintiffs excused from complying with court rules and procedures because of their seIf-representation status. Under the law, a party may choose to act as his or her own attorney. (Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898; Gray v. Justice s Court (1937) 18 Cal.App.2d 420, 423.) [S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Therefore, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [seIf-represented party held to the same restrictive procedural rules as an attorney ].) That said, in deference to the policy that matters should be decided on their merits, the court, in its discretion, will consider the opposition despite the aforementioned defect. (See Fasuyi v Permatex, |nc.. (2008) 167 Cal.App.4th 681, 696 [policy of the law is to have every litigated case tried upon its merits].) The court however admonishes Plaintiffs to comply with court rules and procedures with respect to future filings. Any future non-compliance and the court will consider treating Plaintiffs filings as a late filed paper and disregard them in their entirety. Also, if Plaintiffs desire to file a memorandum in excess of the mandated page limit, they should comply with California Rules of Court, rule 3.113(e). Meet and Confer Requirement In opposition, Plaintiffs argue defendant Bank did not meet and confer on issues regarding the demurrer before filing the motion.Before filing a demurrer, a demurring party must meet and confer in person or by telephone with the opposing party to determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. (Code of Civ. Proc., 430.41, subd. (a).) This conference should Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 2 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER occur at least five days before the deadline to file. (Code Civ. Proc, 430.41, subd. (a)(2).) When filing the demurrer, the demurring party must include a declaration stating either the means by which the demurring party met and conferred with [the other party] and that the party did not reach an agreement resolving the objections raised in the demurrer or [the other party] failed to respond to the meet and confer request of the demurring party or otherwise failed to meet in good faith. (Code Civ. Proc., 430.41, subd. (a)(3).) A court s determination that the meet and confer process was insufficient is not a ground to sustain or overrule a demurrer. (Code Civ. Proc., 430.41, subd. (a)(4).) Here, counsel for defendant Bank submits a judicial council form declaration for meet and confer in support of the demurrer. In doing so, counsel states she met and conferred with Plaintiffs by telephone and email. Defense counsel claims Plaintiffs did not respond to her request to meet and confer or otherwise failed to meet and confer in good faith. In opposition, Plaintiffs contend they never spoke to defense counsel by phone or received any email communication. But, as the declaration was signed under penalty of perjury, the court will take defense counsel at her word. And, even ifthere was a deficient meet and confer, that is not a ground to sustain or overrule a demurrer. The court therefore will consider the merits of the motion. Request for Judicial Notice In support of the demurrer, defendant Bank requests judicial notice of various recorded instruments in Santa Clara County and documents filed with the United States Bankruptcy Court. (See Request for Judicial Notice at Exs. A-G.) The court however declines to consider the request forjudicial notice as such exhibits are not material to the court s ruling on demurrer for reasons stated below. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Ca|.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it is necessary, helpful, or relevant ].) Accordingly, the request forjudicial notice is DENIED. Legal Standard In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Ca|.3d 311, 318.) A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Ca|.3d 197, 213 214.) The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. [|]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Gregory v. Albertson s, Inc. (2002) 104 Cal.App.4th 845, 850.) First Cause of Action Quiet Title To maintain an action to quiet title a plaintiff s complaint must be verified and must include (1) a description Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 3 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER of the property including both its legal description and its street address or common designation; (2) the title of plaintiff as to which determination is sought and the basis of the title; (3) the adverse claims to the title of the plaintiff against which a determination is sought; (4) the date as of which a determination is sought and, if other than the date the complaint is filed, a statement why the determination is sought as of that date; and (5) a prayer for determination of plaintiff s title against the adverse claims. (Bajaras v. Countrywide Home Loans, Inc. (C.D. Cal. 2012) 2012 U.S. Dist. LEXIS 24237 at p. *9; see Code Civ. Proc., 761.020.) The purpose of a quiet title action is to settle all conflicting claims to the property and to declare each interest or estate to which the parties are entitled. (See Newman v. Cornelius (1970) 3 Cal.App.3d 279, 284.) Defendant Bank persuasively argues there are no facts showing an adverse claim to Plaintiffs title to state a valid cause of action for quiet title. As stated above, Plaintiffs filed an opposition of approximately 44 pages consisting of sections identified as factual allegations, legal argument, and conclusion. Plaintiffs however appear to concede this argument as they fail to address it in their opposition. Nevertheless, as this is the first challenge to the sufficiency ofthe pleading, the court will grant Plaintiffs an opportunity for leave to amend. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness].) Therefore, the demurrer to the first cause of action is SUSTAINED WITH LEAVE TO AMEND TO NOVEMBER 8, 2021 for failure to state a claim. Second Cause of Action Damages for Financial Harm The second cause of action is identified as Damages for Financial Harm. Based on the allegations, defendant Bank construes this claim as one for fraud or cancellation of instruments. 1. Fraud The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Robinson Helicopter Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990.) 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 v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 (West), citation and quotation marks omitted.) Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214 Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (|bid.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (|bid.) The second cause of action alleges in part that defendants: (1) misrepresented material facts in the origination and servicing; (2) intentionally presented and recorded false fraudulent instruments; (3) knew or should have known the instruments were fraudulent and void and failed to perform a duty of care; and (4) intended to deceive and exploit Plaintiffs by forging instruments. (See Complaint at 119-122.) Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 4 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Defendant Bank persuasively argues the fraud claim has not been pled with the required specificity to state a cause of action. This is because it is not clear what misrepresentations were made by which defendant that Plaintiffs relied upon and caused them to suffer damages. This is especially important here where at least eleven (11) known defendants are involved in various roles at different times in this action. Plaintiffs fail to address the specificity argument in their opposition. 2. Cancellation of Instruments Civil Code section 3412 provides that [a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or canceled. To prevail on a claim to cancel an instrument, a plaintiff must plead and prove (1) the instrument is void or voidable due to, for example, fraud, and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one s position. (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.) For cancellation, the plaintiff must allege, inter alia, facts showing actual invalidity of the apparently valid instrument or piece of evidence. (Wolfe v. Lipsy (1985) 163 Cal.App.3d 633, 638, disapproved on other grounds in Droeger v. Friedman, Sloan & Ross (1991) 54 Ca|.3d 26, 35-36.) Plaintiffs allege the written instruments affecting their real property are null and void as a matter of law, due to the forgery of the alleged notes, lack of consideration, and fraud in origination. (Complaint at 123.) To the extent the second cause of action is based on cancellation of instruments arising from fraud, defendant Bank persuasively argues there is no claim stated as fraud has not been pled with the required specificity as stated above. Again, Plaintiffs appear to concede this point as they do not offer any substantive argument in their opposition. Consequently, the demurrer to the second cause of action is SUSTAINED WITH LEAVE TO AMEND TO NOVEMBER 8, 2021 for failure to state a claim. Third Cause of Action Injunctive Relief Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief. (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.) In the third cause of action for injunctive relief, Plaintiffs request an order from the court preventing defendants from engaging in foreclosure proceedings against them. (Complaint at 132.) As stated above, Plaintiffs fail to state any cause of action to support a remedy for injunctive relief. Accordingly, the demurrer to the third cause of action is SUSTAINED WITH LEAVE TO AMEND TO NOVEMBER 8, 2021. Fourth Cause of Action Declaratory Relief Code of Civil Procedure section 1060, which governs actions for declaratory relief, provides: Any person interested under a written instrument , or under a contract, or who desires a declaration of his or her rights or duties with respect to another may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 5 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER OF contract. Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed. Thus the remedy is to be used to advance preventive justice, to declare rather than execute rights. (Kirkwood v. California State Auto. Assn. Inter- Insurance Bureau (2011) 193 Cal.App.4th 49, 59.) Plaintiffs seek a judicial declaration that the legal and equitable title to the subject property is vested in their name only and the defendants be declared to have no legal or equitable interest in the subject property, no interest in estate, no rights to title or any interest in the subject property. (Complaint at 138.) As a threshold matter, there is no underlying cause of action to support declaratory relief. (See Shaterian v. Wells Fargo Bank, N.A. (N.D. Cal. 2011) 829 F. Supp.2d 873, 888 [request for declaratory relief is unavailable absent a viable underlying c|aim].) Also, as pointed out by defendant Bank, the declaratory relief claim is duplicative of prior causes of action which have been rejected on demurrer. (See Concorde Equity II, LLC v. Miller (9th Cir. 2010) 732 F.Supp.2d 990, 1002 [ Declaratory relief may be unnecessary where an adequate remedy exists under some other cause of action. ]; see also Cal. Ins. Guar. Ass n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1624 [The availability of another form of relief that is adequate will usuallyjustify refusal to grant declaratory relief. ].) Therefore, the demurrer to the fourth cause of action is SUSTAINED LEAVE TO AMEND TO NOVEMBER 8, 2021 for failure to state a claim. Uncertainty Defendant Bank also demurs to each cause of action in the complaint on the ground of uncertainty. Uncertainty is a disfavored ground for demurrer; it is typically sustained only where the pleading is so unintelligible and uncertain that the responding party cannot reasonably respond to or recognize the claims alleged against it. (See Khoury v. Maly s of Ca|., Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. (|bid.) [U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) The operative complaint here is far from a model of clarity. The pleading consists of 43 pages with approximately 142 paragraphs alleged against eleven (11) total defendants. Yet, as the moving papers point out, it is unclear which factual allegations are connected with each defendant as the complaint, at times, appears to ramble on from one thing to another. Nor do Plaintiffs identify which causes of action pertain to each defendant. And, while uncertainty is considered a disfavored ground for demurrer, it is readily apparent from this pleading that defendant Bank cannot reasonably respond to any claims alleged against it. That said, the court will allow Plaintiffs an opportunity for leave to amend. Accordingly, the demurrer to each cause of action in the complaint on the ground of uncertainty is SUSTAINED WITH LEAVE TO AMEND TO NOVEMBER 8, 2021. Res Judicata/Statute of Limitations Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 6 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Defendant Bank also demurs to the complaint on the grounds of res judicata and statute of limitations. Having sustained the demurrer for reasons stated above, the court declines to consider these alternative grounds. Disposition The demurrer to the first, second, third, and fourth causes of action is SUSTAINED WITH LEAVE TO AMEND TO NOVEMBER 8, 2021 on the grounds of failure to state a valid claim and uncertainty. The court will prepare the Order. - 00000 - Printed: 10/12/2021 10/12/2021 Hearing: Demurrer - 21CV382740 Page 7 of 7