John S. Chew vs. Nationstar Mortgage LLC

Demurrer to Amended Complaint

Cal. Super. - 4th Dist.July 17, 2015

10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 EDWARD A. TREDER State Bar No. 116307 JAMES T. LEE State Bar No. 110838 BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP 20955 Pathfinder Road, Suite 300 Diamond Bar, California 91765 (626) 915-5714 - Phone (626) 915-0289 - Fax jamesL@bdfgroup.com File No. 5526462 Attorneys for Defendant, BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE JOHN CHEW,an individual, Plaintiff, VS. NATIONSTAR MORTGAGE LLC; BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP; U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE BEAR STEARNS ARM TRUST, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-2; and DOES 1 - 10, inclusive, Defendants. CASE NO. 30-2015-00799117-CU-OR-CJC UNLIMITED CIVIL JURISDICTION Assigned to Honorable James Di Cesare; C-16 NOTICE OF GENERAL DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT AND TO EACH PURPORTED CAUSE OF ACTION THEREIN; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Appendix of Exhibits and Requestfor Judicial Notice in Support Concurrently Filed Herewith] RESERVATION # 72428596 Date: Time: Dept. October 27, 2016 1:30 p.m. C-16 Action Filed: July 17, 2015 Trial Date: None Set Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff's First Amended Complaint 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL INTERESTED PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 27, 2016, at 1:30 p.m. in Department C-16 of the above-entitled Court located at 700 W. Civic Center Drive, Santa Ana, California 92701, Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP (“BDFTW” or “Defendant”) will and does hereby demur to Plaintiff JOHN CHEW’s (“Plaintiff” or “Plaintiff Chew”) First Amended Complaint (FAC) and to each purported cause of action therein. The demurrer is and will be made under California Code of Civil Procedure § 430.10(c) on the grounds that Plaintiffs” First Amended Complaint and each purported cause of action fail to alleged facts sufficient to constitute a cause of action against Defendant BDFTW; and Under California Code of Civil Procedure § 430.10(e) on the grounds that Plaintiffs’ First Amended Complaint and each purported cause of action fail to alleged facts sufficient to constitute a cause of action against Defendant BDFTW; and Under California Code of Civil Procedure § 430.10(f) on the grounds that the allegations in Plaintiffs’ First Amended Complaint and each purported cause of action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. [11 [11 111 111 111 [1] 111 111 [11 Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff’s First Amended Complaint 23 10 11 12 13 14 15 16 17 18 19 20 21 7 23 24 25 26 27 28 This demurrer is and will be based upon this Notice, the Statement of Demurrers, Appendix of Exhibits and Request for Judicial Notice, and Memorandum of Points and Authorities filed concurrently herewith, the documents and pleadings on file herein, the arguments presented at the hearing and upon such other oral and/or documentary evidence as the Court may admit or judicially notice at the hearing. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP Date: August 16, 2016 By: ttorneys for Defendant, BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff’s First Amended Complaint -3- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATEMENT OF DEMURRERS 1. First Cause of Action: Violation of Homeowner Bill of Rights Plaintiffs fail to state a cause of action because: (i) as Plaintiff's” First Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's First Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. 2, Second Cause of Action: Cancellation of Instruments Plaintiffs fail to state a cause of action because: (i) as Plaintiff's” Second Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's Second Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. 3. Third Cause of Action: Negligent/Intentional Misrepresentation Plaintiffs fail to state a cause of action because:(i) as Plaintiff's’ Third Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's Third Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. 4. Fourth Cause of Action: Violation of Duty of Good Faith And Fair Dealing Plaintiffs fail to state a cause of action because: (i) as Plaintiff's” Fourth Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's Fourth Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. 5. Fifth Cause of Action: Civil Conspiracy Plaintiffs fail to state a cause of action because: (i) as Plaintiff's” Fifth Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's Fifth Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. Il] Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff's First Amended Complaint A= O o 0 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Sixth Cause of Action: Violation of Cal. Bus. & Prof. Code §§ 17200 et seq. Plaintiffs fail to state a cause of action because: (i) as Plaintiff's” Sixth Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's Sixth Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. 7: Seventh Cause of Action: Violation of Civil Code § 2923.55 Plaintiffs fail to state a cause of action because: (i) as Plaintiff's” Seventh Cause of Action fails to plead facts sufficient to state a cause of action, CCP § 430.10(e); and (ii) the allegations in Plaintiff's Seventh Cause of Action are uncertain, ambiguous, and unintelligible as to Defendant BDFTW. # BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP Dated: August 16, 2016 By: JAKIES T.TEE orneys for Defendant, BARRETT DAFFIN FRAPPIER TREDER & WEISS. LLP Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff’s First Amended Complaint 5. II. III. IV. VL VIL VIII IX. XI. XII. XIIL Table of Contents TEUETOATUICHON «eee eee eeeee e eee eee eee ease ee eeeeeeessenesaseeeemaes sesamiae eennnanesesnnnnes 1 StaNAATd ON DEINIUTTET ceeeeeeeeee eee eee e eee ee eases eeeeeee esses aaeeteeee ses esmnnanaeeseeens 3 ALL OF BDFTW’S ACTIONS ARE LEGALLY PRIVILEGED.....ccooiiiiiiiiiiieiaiieiieeieen. 4 AS A MATTER OF LAW THERE ARE NO ALLEGATIONS IN THE COMPLAINT THAT ESTABLISH ANY LIABILITY AS TO BIETIN ssmsssesssmmssmssummssnsrsene sss msssins 6 FIRST CAUSE OF ACTION IS FATALLY FLAWED AS TO BDETW --eeeveeiiieiiniinnnnn. 7 FAC DOES NOT ADEQUATELY ALLEGE A CAUSE OF ACTION FOR CANCELLATION OF INSTRUMENT-++essesesesesseresesessessesseesesassesesssntasssssssesensssesesessssesens 8 MISREPRESENTATION HAS NOT BEEN ADEQUATELY PLED+t eveesveeniiieniiiiiinnn 9 THE FOURTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIMoooeersteesseseae 11 THE FIFTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM ...cooiiiiiitrieeeneceeeeeieerecta 12 THE SIXTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM ....ooviiieiririeieieieieieisieseeeeeeieeesevesees 12 THE SEVENTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM .onmmussmsmsimmmsiosmsmnmsmnssssssommsmasns 14 THE COURT SHOULD DENY LEAVE TO AMEND. .......ccoceiiiiiiiiiinicireeceeeeee 16 CTCOIDNICTLTTOTUDIN cinmen isimsmnss omssos iosweisssessose6150056 550 SNS 0HF ESA RETR SF 578 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Table ofAuthorities/Cases 6 Angels, supra, 85 Cal.App.4™ 1279, 1284, 102 Cal.Rptr.2d 711 wc ceeeeevmveiseemineiinceiincineiccinns 7 Applied Equipment Corp. v. Litton Saudi Arabia Ltd., (1994) 7 Cal.4* 503, 510 .........ccccccccuvuevcnce. 12 Ashou v. Liberty Mut. Fire Ins. Co. (2006) 188 Cal.App.4™" 748, 755 ........cccoovvevoiiiiiiecciccc. 3 Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 216 Cal. Rptr. 438, 702 P.2d 596 ------------ 5 Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 32. .......cccccovviviieicicccicccnnn 10 Bell v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 153170, at *10 (C.D. Cal. Oct. 28, 2014).. 16 Blank v. Kirwan (1985) 39 Cal.3d 311, 318...eeeeeeeeeeee 4 Cabriales v. Aurora Loan Servs., No. C 10-161, 2010 U.S. Dist. LEXIS 24726, at *6-7 (N.D. Cal. MAF. 2, 2000). +-vveveneneneeseseneeeseneee stes5 Californians for Disability Rights v. Mervyn's, LLC (2006) 39 Cal. 4% 223, 227 ..........cccccevuvucucne. 14 Comm. On Children’s Tel., Inc. v. Gen. Foods Corp (1985) 35 Cal.3d 197, 216 .........cccccvevcucucucunes 9 Coveruard Care, Ine. uv. Superior Court (2004) 32 Cal41h 771, 790 vw ssssnsamummsaswanimpwss 3,8 Crist v. House & Osmonson, Inc. (1936) 7 CaAl.2A 556 .......oceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee, 6 Crummerv. Whitehead (1964) 230 Cal.App.2d 264, 267-268 cuevmssesmmsmnsssnminmsasassavses 6 DeLeon v. Wells Fargo Bank, N.A. 2011 U.S. Dist. LEXIS 8296 (N.D. Cal. 2011).......................... 14 Diediker v. Peele Financial Corp. (1997) 60 CalApp. 4% 288, 205 : conwnesuresmsmsmsrsssmmss 4,11 Droeger v. Friedman, Sloan & Ross (1991) 54 Cal. 3d 26, 35-36; ........cccovovveveicicieiciiciiicccec, 9 Glenn K. Jackson, Inc. v. Roe 273 F.3d 1192, 1203 (9% Circ, 2001). coussmsnsesesssorsnsmssmsssssmnrssss 13 Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.......oovoeoeeeeeieeeeeeee 16 Hamilton ©. Greenwich Investors XXVI, LLC (2011) 195 Cal.AppA™ 1602 .....cceisssonssssusssnssssssssions 14 Heritage Oaks Partners v. First American Title Ins. Co., 155 Cal.App.4™ 339. 345 66 Cal. Rptr. 3d ETE) (FONT) ssoonions.ioc 353.550.5503EOG3RFFENORE 7.54 ESR 0. HFA6 OB48 3 SEEGER 55 6 Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508, 514...........cccccueucueeeeuncnce. 10 Hutchfield v. Wells Fargo Bank, N.A. 471 Fed. App’x 693, 695 (9% Cir. Mar. 12, 2012 ................. 16 LE. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 216 Cal. Rptr. 438, 702 P.2d 59........ 5 Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal.App.4" 1047, 1058 n.4....................... 16 a S ~ N Y D 10 11 12 13 14 15 16 17 18 19 20 21 73 23 24 25 26 27 28 Kuchlon v. Markowitz (2008) 168 cal.App316; 336coorsmasmmnsn scmsessnsossmasssssimmmsmmsesoss 11 Khoury v. Maly's of Calif., Inc., 14 Cal. App. 4th 612, 616, 17 Cal. Rptr. 2d 708, 710 (Cal. Ct. App. TTD) csmiisssisiss ikissS555 0 SSS HPA ABS5HESROS 5.41ESFYFRE SERS AE0 14 Knapp v. Doherty (2004) 123 Cal.App.4% 76, 88......c.cvoviiiiiciiicciiiccccseeceeeseeceee 6 Kroeker 0. Hurlbert (1940) 38 Cal. App. 2d 261... cusssaninssssis ss orasincs sosnis susawsusnss so dvssessassis 8 Lawrence v. Bank ofAmerica (1985) 163 Cal.App.3d 431, 436-437 .......ccoovvvvecieierieecicciciieen 16 Lazer v. Superior Cotrt (1996) 12 Cold631, GAB ....ucouusmmmmmsssnsasssennsnissnaes sis o5 5.0 mvs 053 a Lazzarevich v. Lazzarvich (1952) 39 Cal.2d 48, 50...........eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeteeee 6 Lerner ov. 1iited States (9% Cr. 1982) GBB FZ TILEY ........oc inns isn iiss ait iis sinsiiiinci 56865545550 55 6 Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126..........ccccccccvvveveuevvnnn. 3 Lopez v. So. Ca;. Rapid Tran. Dist. (1985) 40 Cal.3d 780, 795 ..........coeveveveiiieieiciieicieec, 3,8 Lupertine v. Carbahal (1972) 35 CalApp.3d, 742, 746-747romsmswmmmssass 7 Massachusetts Mutual Life Insurance Co. v. Superior Court (2002) 97 Cal.App.4* 1282, 1290...... 13 Merrill w. Novegar, Ire (20015 26 Coli 405, £77 cosemsmmmrnsmsamsnssmmprsammsssse ws 10 Mittenhuber v. City ofRedondo Beach (1983) 142 Cal.App.3d 1, 5......ccccvvvvvvcuiiiiiiiiiccci 15 Moore g. UK. Regents 1990) 51 Cul.38 120, 188 connmmmommpommmsessmasiass sms 3 Navarrete v. Meyer (2015) 237 Cal.App.4" 1276, 1291 ......c.coevveeeieiiicieieieeecceceeeieece s 12 Newman v. Bank ofNew York Mellon 2013 WL 5603316, at *12 (E.D. Cal. Oct. 11, 2013)........... 16 Ostayan v. Serrano Reconveyance Company (2000) 77 Cal.App.4™ 1411, 1419-1420...................... 11 Pasadena Live v. City ofPasadena (2004) 114 Cal.App.4th 1089, 1094 ..........ccouvvvivvvrcnirrnrevieruenes 12 Pro Values Properties, Inc. v. Quality Loan Services Corp., 170 Cal.App.4* 579 (2009)--+--+--+-+-eeee-e 5 Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4* 807, 819, 822, 134 CALRPET.2A 162 -wwrvvreerneeseeeenee e7 Residential Capital, LLC . Cal Western Reconveyance Corporation (2003) 108 Cal.App.4t* 807, 827 OOOO11 Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.......cccccovvivvviircinnncnne. 12 Stansfield v. Starkey (1990) 220 Cal.App.3d 70, 74 .....ccoovemiieiiiieiiciececeecetee, 9 ii 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 State ex rel. Bowen v. Bank ofAmerica Corp. (2005) 126 Cal.App.4t* 225, 239-240............cccccuceec. 3 Swanson v. EMC Mortg. Corp., 2009 U.S. Dist. LEXIS 122216, at *10-*11 (E.D.-+-eererereeieneninnnn. 6 Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4* 150, 157 ........................ 10 Valenzuela v. Wells Fargo Bank Nat. Ass'n (E.D. Cal. 2014) 2014 WL 309438 at *12 ................... 16 Vournas v. Fidelity National Title Ins. Co. (1999) 73 Cal.App.4" 668, 677 86 Cal.Rptr.2d 490....4, 5 Wilhelm v. Pray, Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332 .........cccccucucucue.. 9, 14 Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 ......cccovvvvcuiiiecciiiccie, 9 Wolfe v. Lipsy (1985) 163 Cal. App. 3d 633, 638 .......cucveeeeeiiiieeieceieeteecteteen 9 Statutes California Business & Professions Code § 17200 ef 58. «a cvuvssnisn mwas seswvsvais samen ss awison 12, 14 California Business & Professions Code § 17204 ............cccoveivoiiioieiiieiciccicceicceee14 CaliforCivil Code § 2928DBI2ueoomm0 0 vows sonssn co vwme5m.0050.0053559 57081 05508 7570.50 5 GK58R 5 555-0. 59154 3.63 16 Ci01] COAC §8 2924-29241«evennesseee 7 Coliforein Ctl COTE § 2IDL(B)oorsisossss5.1.55. 593508 50 55 5TBR55085hm 8 California Civil Code § 2924.12(D) .....cooveeiiiieeieeeeeeeeeee ee16 Califorrtin Civil Code §8 47 GA 292HL).........ooniueisiissssissiisin mnssssss io 555 50sei5455 £44365issmrsessans 13 California Civil Code §§ 2924 €F SEq.........ccvviuiiieiiiiciiiciceeeee ee4 California Code of Civil Procedure (“CCP”) § 2934a(A) ........coceuveeeiiiiiiiicieeeecceeecceeee 2 California Code of Civil Procedure (“CCP”) § 430.30(a) and Evidence Code § 452........................... 3 CIUIL COA § 2923.55...eeeessia CIOIL COAL §29240)...4 CIULL COA §47eeeeeeeeeeseteense nse nae e nee 4 CIUIL COAL § 2923.5...eeeseteeies e sess 16 Other Authorities 1 Roger Bernhardt et al., California Mortgages, Deeds of Trust and Foreclosure Litigation §2.26 (2009) .10 Within, Cul. Prog, 4h (1997) Pleadings F537, 1. Bossomssasmsiuisinsesssinis smimse stisses swisssnis svn 10 -iv- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L Introduction This action involves the Plaintiff's attempt to challenge the yet, not completed non- judicial foreclosure of his real property commonly known as 4322 Hidden Oaks Drive, Yorba Linda, California. In fact, the scheduled trustee’s sale has been cancelled, a Notice of Trustee's Sale has been rescinded,’ and there is no sale currently scheduled. Furthermore, Plaintiff has gone through a full loan modification review since the filing of this Complaint. The procedural posture of the case is that the operative pleading, the First Amended Complaint, was filed on August 28, 2015, and Defendant Barrett Daffin Frappier Treder & Weiss, LLP (“BDFTW”) filed a Declaration of Non-Monetary Status on November 4, 2015 and Plaintiff filed an Objection thereto on November 5, 2015. On December4, 2015, a Stipulation To Stay Litigation for 120 days, signed by counsel for all the parties was filed and the Court entered an Order consistent with the Stipulation on December 10, 2015. It was during this period of stay, that Defendants Nationstar and U.S. Bank, provided a complete review of Plaintiff's loan modification application. It is Defendant BDFTW’s understanding that the loan modification application was completely and thoroughly reviewed and denied. Subsequently, Plaintiff's counsel has independently met and conferred with Defendants Nationstar Mortgage LLC (“Nationstar” and U.S. Bank National Association (“U.S. Bank”), who are both represented by Akerman, LLP and with counsel for Defendant BDFTW. It is Defendant BDFTW’s understanding that counsel for the parties continue to meet and confer. Nevertheless, the Plaintiff's First Amended Complaint stands as the current, operative pleading and, as is more fully addressed below,its allegations against Defendant Barrett Daffin Frappier Treder & Weiss, LLP are without merit. ! A true and correct copy of the Notice of Rescission OfNotice Of Trustee’s Sale,is attached to Defendant Barrett Daffin Frappier Treder & Weiss, LLP’s (“BDFTW?”) Request for Judicial Notice (“RIN”) as Exhibit 1 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF = 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The FAC makes no specific charging allegations against Defendant BDFTW other than it performed its ministerial duties under California law and the Deed of Trust (“DOT”).2 Plaintiff references as Exhibit F to the FAC a Substitution of Trustee (“SOT”) which was recorded on December 1, 20142 but fails to mention that the recorded document names BDFTW as the substitute trustee under the deed of trust. These specific facts were perhaps omitted because it negates, as a matter of law, Plaintiff's allegation in paragraph 5 of the FAC that “(Barrett”) is the alleged substitute trustee ...” * Plaintiff's FAC goes on to allege facts that document BDFITW discharging its ministerial duties. They include recording Notices of Default (“NOD”)> and Notice of Sale ("NOS”).6 Thereafter, there is no other paragraph of the 99 paragraph FAC that solely references BDFTW. Thereafter, Plaintiff makes a majority of his allegations against Defendants Nationstar and/or U.S. Bank and any further reference as to BDFTW is made in connection with allegations against Nationstar and/or U.S. Bank. The most common allegations are that Defendants Nationstar, Barrett and U.S. Bank did not ensure that it had reliable and competent evidence to substantiate the default,” and that Plaintiff never received a copy of the Notice of Default and/or Notice of Sale.? However, as is more completely addressed later in this Demurrer, Plaintiff, however, cannot allege any viable claim on the facts presented as a matter of law because: (1) BDFTW'’s conduct is privileged; (2) BDFTW did not complete the foreclosure sale; and (3) Plaintiffs otherwise fail to state facts sufficient to constitute a cause of action against Defendant BDFTW,as a matter of law. : Exhibit A to Plaintiff's FAC - which FAC is attached to BDFTW’s Request For Judicial Notice (“RIN”) as Exhibit 2 FAC, {23 * This allegation is negated as a matter of law because once the SOT is recordedit constitutes statutory conclusive evidence of the substitute trustee and its authority to act. California Code ofCivil Procedure (“CCP”) § 2934a(d) FAC, §1 24 & 24, the NODs being Exhibits G and H to the FAC. SFAC. 27 "FAC. 1147, 63, 83, NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Bl 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. Standard on Demurrer “Material facts alleged in the complaint are treated as true ... [hJowever, contentions, deductions or conclusions of fact or law alleged in the complaint are not considered in judging its sufficiency.” The demurrer may be based upon, and the complaint’s allegations contradicted by, matters that judicially noticeable. Any legal contentions, deductions and conclusions of facts or law should not be accepted as true. The court must disregard allegations that are contrary to law or fact and attempt to “give the complaint reasonable interpretation, reading it as a whole and its parts in their context,” to determine whether the complaintstates facts sufficient to constitute a cause of action.” Additionally, to survive an attack by demurrer, a Complaint must state more than just speculative legal conclusions. Rather it must allege ultimate facts, not evidentiary facts or conclusions of law.? Indeed, a plaintiff cannot avoid this duty by simply reciting unfounded “contentions, deductions or conclusions of fact or law.” Furthermore, because Defendant BDFTW’s alleged liability is based upon causes of action that include violations of California statutes, California law is clear that these allegations must be pleaded with particularity.’ “Every fact material to the existence of [defendant's] statutory liability must be pleaded with particularity.” Once sustained, a plaintiff must show the manner in which it can amend and how the proposed amendment will change the legal effect of the pleading; otherwise, the demurrer is properly sustained without leave to amend. In fact, a demurrer may be sustained without leave to amend if it is evident that the plaintiff cannot state a cause of action or where there is no “reasonable probability that the defect can be cured by $FAC,9124, 25, 28, 46, 93, and 99 ® State ex rel. Bowen v. Bank of America Corp. (2005) 126 Cal.App.4™ 225, 239-240 1 California Code ofCivil Procedure (“CCP”) § 430.30(a) and Evidence Code § 452 Moore v. U.C. Regents (1990) 51 Cal.3d 120, 135 "2 Logan v. Southern Cal. Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126 13 Ashou v. Liberty Mut. Fire Ins. Co. (2006) 188 Cal.App.4™ 748, 755 Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 > Lopez v. So. Ca;. Rapid Tran. Dist. (1985) 40 Cal.3d 780, 795 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFE’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF <3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amendment.” III. ALL OF BDFTW’S ACTIONS ARE LEGALLY PRIVILEGED Civil Code § 2924(d) provides: All of the following shall constitute privileged communications pursuant to Civil Code §47: (1) The mailing, publication, and delivery of notices as required by this section. (2) Performance of the procedures set forth in this article. (3) Performance of the functions and procedures set forth in this article if those functions and procedures are necessary to carry out the duties described in Sections 729.040, 729.050, and 729.080 of the Code of Civil Procedure. As previously stated, the only allegations against BDFTW are that they recorded the SOT, NODs and NOS. These actions are entirely privileged pursuant to California Civil Code §§ 47 and 2924(d). There is further authority that BDFTW has no liability for the acts alleged in the FAC. The foreclosure trustee’s rights, powers and duties regarding recording the foreclosure notices such as the Notice of Default, Notice of Trustee's Sale, and Trustee's Deed Upon Sale are strictly defined in California Civil Code Sections 2924 et seq. and limited by the Deed of Trust and governing statutes and these duties cannot be expanded by the Courts and no other common law duties exist.” A trustee’s only duties are: (1) upon default to undertake the steps necessary to foreclose the deed of trust; or (2) upon satisfaction of the secured debt to reconvey the deed of trust.”’8 Consistent with this view, California courts have refused to impose duties on the trustee other than those imposed by statute or specified in the deed of trust. “The rights and powers of trustees in nonjudicial foreclosure proceedings have long been regarded as strictly limited and defined by the contract of the parties and the statutes ...”"* '° Blank v. Kirwan (1985) 39 Cal.3d 311, 318 ' Diediker v. Peelle Financial Corp. (1997) 60 Cal.App.4™ 288, 295 '® Vournas v. Fidelity National Title Ins. Co. (1999) 73 Cal.App.4™ 668, 677 86 Cal.Rptr.2d 490 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFE’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 4- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BDFTW has no financial interest in the Property and its only involvement was with the foreclosure proceedings, which was strictly within its ministerial role as the substituted trustee under the Deed of Trust to effectuate a non-judicial foreclosure action. See Cabriales v. Aurora Loan Servs., No. C 10-161, 2010 U.S. Dist. LEXIS 24726, at *6-7 (N.D. Cal. Mar. 2, 2010). As the explained in Pro Values Properties, Inc. v. Quality Loan Services Corp., 170 Cal.App.4™ 579 (2009), a trustee’s role is extremely limited: The trustee in a non-judicial foreclosure is not a true trustee with fiduciary duties, but rather a common agentfor the trustor and beneficiary. The scope and nature of the trustee’s duties are exclusively defined by the deed of trust and the governing statutes. No other common law duties exist. In short, the trustee ... performs ministerial acts which, when properly executed, result in the transfer oftitle to the [trustee’s sale] purchaser. Pro Value Properties, Inc., 170 Cal.App.4* 579, at 583 (citations omitted). Another district court decision provides a more detailed explanation concerning a deed oftrust trustee’s limited authority: The trustee under a deed oftrust “is not a true trustee, and owes no fiduciary obligations; [it] merely acts as a common agentfor the trustor and beneficiary ofthe trustor and beneficiary of the deed of trust. [The trustee’s] only duties are: (1) upon default to undertake the steps necessary to fedlose the deed of trust; or (2) upon satisfaction of the secured debt to reconvey the deed of trust.” (Vournas v. Fidelity National Title Ins. Co. (1999) 73 Cal.App.4"™ 668, 677 86 Cal.Rptr.2d 490.) Consistent with this view, California courts have refused to impose duties on the trustee other than those imposed by statute or specified in the deed of trust. As our Supreme Court noted in LE. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 216 Cal. Rptr. 438, 702 P.2d 596, “The rights and powers of LE. Associates v. Safeco Title Ins. Co. (1985) 39 Cal.3d 281, 216 Cal. Rptr. 438, 702 P.2d 596 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFFS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -5- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 trustees in nonjudicial foreclosure proceedings have long been regarded as strictly limited and defined by the contract of the parties and the statutes ... [P] ... [T] here is no authority for the proposition that a trustee under a deed of trust owes any duties with respect to exercise of the power of sale beyond those specified in the deed and the statutes.” (Id. at pp. 287-288, 216 Cal. Rptr. 438, 702 P.2d 596.) Swanson v. EMC Mortg. Corp., 2009 U.S. Dist. LEXIS 122216, at *10-*11 (E.D. Cal. Dec. 9, 2009) (quoting Heritage Oaks Partners v. First American Title Ins. Co., 155 Cal.App.4t™ 339. 345 66 Cal. Rptr. 3d 510 (2007) (emphasis added)). IV. AS A MATTER OF LAW THERE ARE NO ALLEGATIONS IN THE COMPLAINT THAT ESTABLISH ANY LIABILITY AS TO BDFTW As noted before, the Plaintiff alleges that he did not receive the NOD and/or NOS. However, the law in California is clear that the trustee need not “ensure” that the borrower receive the notices that are recorded and mailed in the non-judicial foreclosure process. Courts have held that actual receipt of a notice of default or notice of sale is not required and that actual evidence that there was no actual receipt of the notices “at best, raised an issue of immaterial fact” and therefore did not raise a triable issue of fact to defeat a motion for summary judgment.” There are numerous cases where the Courts have held that actual defective notices do not necessitate a decision of an improperly conducted sale.” The decisions were based upon factors that included the materiality of the defect and resulting prejudice. As is so succinctly stated in Knapp v. Doherty: “As a general rule, there is a common law rebuttable presumption that a foreclosure sale has been conducted regularly and fairly.” [Citations] Accordingly, ‘[a] successful challenge to the sale has requires evidence of a failure to comply with the procedural FAC, 19 24, 25,28, 46, 93, and 99 2! Knapp v. Doherty (2004) 123 Cal.App.4™ 76, 88. 22 Knapp v. Doherty (2004) 123 Cal.App.4™ 76; Lerner v. United States (9™ Cir. 1982) 685 F.2d 1187; Crummerv. Whitehead (1964) 230 Cal.App.2d 264, 267-268;Crist v. House & Osmonson, Inc. (1936) 7 Cal.2d 556; Lazzarevich v. Lazzarvich (1952) 39 Cal.2d 48, 50; NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 6s 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 requirements for the foreclosure sale that caused prejudice to the person attacking the sale.’ [Citation.] ...[T]he presumption must prevail when the record when the record lacks substantial evidence of a procedural irregularity. [Citation.]” (6 Angels, supra, 85 Cal.App.4™ 1279, 1284, 102 Cal.Rptr.2d 711, first italics in the original, second and third italics added; accord, Residential Capital v. Cal-Western Reconveyance Corp. (2003) 108 Cal.App.4* 807, 819, 822, 134 Cal.Rptr.2d 162 [the question is whether “there is a substantial defect in the statutory procedure that is prejudicial to the interests of the trustor and claimants.”].) Importantly, mere non-receipt of foreclosure notices and lack of actual knowledge of the sale date do notaffect the validity of the sale because proof of delivery or receipt is not legally required. In Lupertino v. Carbahal (1974) 35 Cal.App.3d, 742, 746-747, the Third District Court of Appeal made the following pertinent observation with respect to this issue: “We pointedly emphasize, however, that the Civil Code Sections 2924-2924h, inclusive, do not require actual receipt by a trustor of a notice of default or a notice of sale. They simply mandate certain procedural requirements reasonably calculated to inform those who may be affected by a foreclosure sale and who have requested notice in the statutory manner that a default has occurred and a foreclosure sale is imminent.” Therefore, in the event that Plaintiff Chew alleges that he did not receive the notice of default and/or notice of sale, does noteffect the statutory presumptions that the foreclosure sale was properly conducted. In fact, Chew was certainly aware of his default under the loan and that he commenced negotiations for a loan modification in July of 2015.2 V. FIRST CAUSE OF ACTION IS FATALLY FLAWED AS TO BDFTW Plaintiff's First Cause of action is for “Violation of Homeowner Bill of Rights (“HOBR”). FAC, 130 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFFS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF a 10 11 12 13 14, 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In paragraph 47, the Plaintiff alleges that “[d]efendants Nationstar, Barrett and U.S. Bank did not ensure that it had reliable and competent evidence to substantiate the default.” However, the remaining paragraphs particularly target Nationstar.? Additionally, with respect to this specific cause of action, Plaintiff alleges that only “Defendant Nationstar violated rights under the Homeowner Bill of Rights.” BDFTW, as the substitute trustee under the deed of trust, would have no independent knowledge of the specifics of the loan’s monetary default, nor is there an allegation in the FAC that it would have. In fact, there are no allegations that BDFTW was not entitled to rely on the statutory presumption “that the beneficiary actually knew of all unpaid loan payments on the obligation owed to the beneficiary and secured by the deed of trust or mortgage subject to the notice of default.”?® Finally, there are no allegations that a trustee, in performing its ministerial tasks, would have a duty, responsibility or authority to examine the accuracy of the default information that is provided by the beneficiary or servicer. Since this is an alleged violation of statute(s), California law is clear that these allegations must be pleaded with particularity.” “Every fact material to the existence of [defendant's] statutory liability must be pleaded with particularity.” An examination of the first cause of action finds no allegations against BDFTW stated with the requisite specificity. VI. FACDOES NOT ADEQUATELY ALLEGE A CAUSE OF ACTION FOR CANCELLATION OF INSTRUMENT Initially, cancellation of instrumentis an equitable remedy, to which BDFTW has offered to be bound by when it filed its Declaration of Non-Monetary Status on November 4, 2015. 2 FAC, 1949, 50, 51, and 52 FAC, 149 28 California Civil Code § 2924(e) *" Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 2 Lopez v. So. Ca:. Rapid Tran. Dist. (1985) 40 Cal.3d 780, 795 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFE’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -8- c o u N \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Secondly, it appears that the Plaintiff requests that this equitable remedy be applied because of the aforementioned discrepancy from a Notice of Default and a statement from Nationstar. A complaint is subject to demurrer for uncertainty where there are multiple defendants, and the complaint does not specify which defendants committed the acts complained of, or to whom the cause(s) of action are directed.” The cause of action names all Defendants, without distinguishing among any of the Defendants. Furthermore, An action for cancellation cannot be pleaded generally. Plaintiff must specifically allege the facts demonstrating the invalidity of the instrument under attack. For all the foregoing reasons, this cause of action fails to plead the necessary facts to establish a cause of action against BDFTW. VII. MISREPRESENTATION HAS NOT BEEN ADEQUATELY PLED In this third cause of action, we find the repeated, general, conclusory allegations that the Defendants worked in concert and did not ensure that they had reliable and competent evidence to substantiate the default. Therefore, BDFTW will stand on its previous arguments as to the insufficiency of these allegations. In fact, there are no specifically representations that were allegedly made by BDFTW. Furthermore, since the property has not gone to sale, there is insufficient allegations how the Plaintiff has been harmed, especially since it was his failure to timely make his payments that caused the default in the loan. With respect to the allegation of intentional misrepresentations, there certainly is no attempt to meet the heightened pleading standard as to these corporate or business entities required under established California law.*! Pleading fraud requires plaintiff to “allege the 2 Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139. 3% Wolfe v. Lipsy (1985) 163 Cal. App. 3d 633, 638 (disapproved on other grounds in Droeger v. Friedman, Sloan & Ross (1991) 54 Cal. 3d 26, 35-36; see Kroeker v. Hurlbert (1940) 38 Cal. App. 2d 261 (distinguishing quiet title action). Lazer v. Superior Court (1996) 12 Cal.4™ 631, 645; Wilhelm v. Pray. Price, Williams & Russell (1986) 186 Cal.App.3d 1324, 1332; Comm. On Children’s Tel., Inc. v. Gen. Foods Corp (1985) 35 Cal.3d 197, 216; Stansfield v. Starkey (1990) 220 Cal.App.3d 70, 74 31 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -9- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 names of the persons who made the allegedly fraudulent representations, their authority to speak...”2 Again, there are no specific allegations against BDFTW and certainly, the 3 allegations specifically alleged against Defendant Nationstar®® completely fail to allege any actionable misrepresentation, including failing to identify a single individual who allegedly made any misrepresentation. With respect to the Negligence misrepresentation aspect of the cause of action, it is completely devoid of the necessary elements for a negligence cause of action. An action for negligence must allege (1) defendant's legal duty of care toward plaintiff; (2) defendant's breach of that duty; (3) injury to plaintiff as a result of the breach- proximate or legal cause; and (4) damage to plaintiff. The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to establishing a claim for negligence.*> The existence and scope of a legal duty are questions for the court.® BDFTW does not owe a duty to Plaintiff outside the four corners of the Deed of Trust. Plaintiff has not claimed any violation by BDFTW of the Deed of Trust. BDFTW will not repeat its earlier arguments with respect to the limited involvement of a trustee in discharging its ministerial duties and the privileged and legally protected nature of same. There are no facts alleged which support a conclusion that BDFTW did anything more than progress a foreclosure at the lender’s request. This case is not actionable in tort because there are no factual allegations that BDFTW acted with malice.” Accordingly, as a matter of law, Plaintiff's negligence claim must fail because Plaintiff cannot allege that Defendants owed any duty outside those duties imposed by virtue of the Deed of Trust. 32 Tarmann v. State Farm Mutual Auto Insurance Co. (1991) 2 Cal.App.4™ 150, 157 3 FAC, 99 64, 65, and 66 3 Hoyem v. Manhattan Beach City School District (1978) 22 Cal.3d 508, 514; Witkin, Cal. Proc. 4th (1997) Pleadings §537, p. 624 * Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 32. 36 Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477. 7 1 Roger Bernhardt et al., California Mortgages, Deeds of Trust and Foreclosure Litigation § 2.26 (2009) citing Kachlon, 168 Cal. App. 4th 316. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFE’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -10- ~ ~ ~ N O N D n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Moreover, the following decisions have refused to expand the duties of a foreclosure trustee, citing the primary purpose of the foreclosure sale as maximization of the price for the beneficiary and the trustor. Ostayan v. Serrano Reconveyance Company (2000) 77 Cal.App.4™ 1411, 1419-1420; Diediker v. Peele Financial Corp. (1997) 60 Cal.App. 4" 288, 295. The court in Residential Capital, LLC, v Cal-Western Reconveyance Corporation, held that the cause of action for negligence was not actionable because “it would be engaging in a judicial legislation by grafting a tort remedy onto a comprehensive statutory scheme in the absence of a compelling justification for doing so. Plaintiff has not alleged any facts demonstrating that BDFTW owed any duty outside the scope of those duties imposed by statute. Plaintiffs have not asserted any legally viable claims for monetary relief against BDFTW. A foreclosure trustee has no tort liability arising from the performance of its duties without alleging and proving specific facts to support a finding of malice.** On these grounds, the demurrer should be sustained without leave to amend. VIII. THE FOURTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM Plaintiff completely fails to establish how the allegations constitute a cause of action as the FAC hasfailed to allege a contract or the specifics thereof. The FAC does not establish the underlying contract and any allegation against BDFTW thatit failed to act in good faith. More specifically, the Plaintiff's bases this cause of action upon an alleged violation of the California non-judicial foreclosure statutes. “The foreclosure law in California must be strictly followed. None of the Defendants properly followed the procedure to foreclose.” *% Residential Capital, LLC . Cal Western Reconveyance Corporation (2003) 108 Cal.App.4™ 807, 827 *? Kachlon v. Markowitz (2008) 168 cal.App.4t 316, 336 (affirming directed verdict on slanderoftitle claim and judgment notwithstanding the verdict on negligence claim). “FAC, 171 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFFS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -11- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, “the covenant of good faith and fair dealing is, by definition, an implied contract term; it has no relation to any statutory duties that may exist.” Additionally, the implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated by the contract.? Finally, the arguments why no cause of action exists against BDFTW has been previously discussed in the Demurrer and BDFTW incorporates those arguments by reference. IX. THE FIFTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM Initially, there is no cause of action for Civil Conspiracy.® Secondly, there are no specific allegations against any of the defendants with regard to the alleged civil conspiracy. Instead, the Plaintiff makes general, vague and conclusory allegations that the Defendants “conspired together to record improper documents with the ultimate goal of taking title in Plaintiff's property;”# and that “[d]efendants, and each of them, knowingly and willfully conspired, engaged in a common enterprise, and engaged in a common course of conduct to accomplish the wrongs complained of herein.”# Other than these completely vague, intelligible and conclusory allegations, the remaining paragraphs merely attempt to recite the elements of this fictitious cause of action and/or recite vague statements about the law ofcivil conspiracy. X. THE SIXTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM Plaintiffs’ sixth cause of action is based upon an alleged violation of California Business & Professions Code § 17200 et seq. The facts Plaintiff alleges to support this cause of *! Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49. *? Pasadena Live v. City of Pasadena (2004) 114 Cal.App.4th 1089, 1094 “3 Applied Equipment Corp. v. Litton Saudi Arabia Ltd., (1994) 7 Cal.4® 503, 510; Navarrete v. Meyer (2015) 237 Cal.App.4™ 1276, 1291 “FAC, 778 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -12- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action are the same general, conclusory allegations that “[d]efendants acted in concert to wrongfully and falsely recorded documents which they had no authority to record.” As stated above, the act of recording the documents identified in the exhibits to the FAC, which are documents necessary to pursuing a non-judicial foreclosure are privileged under California Civil Code §§ 47 and 2924(d) and therefore the Defendants, and particularly Defendant BDFTW had authority to record the documents. The Plaintiffs continue with their vague, unintelligible, and conclusory allegations in paragraph 85, when it is alleged, “[a]s is more fully described above, Defendants” acts and practices are likely to deceive, constituting a fraudulent business act or practice.” However, there are no preceding paragraphs that provide any specificity to this claim. Nor are there any paragraphs that in any way establish how “Defendants’ misconduct, as alleged herein, gave, and have given, Defendants an unfair competitive advantages over their competitors;” or how the insufficiently described conduct “is designed to defraud California consumers and enrich the Defendants.” This cause of action is based upon the same defective theories alleged in the prior claims, therefore this cause of action fails for the reasons set forth in this Demurrer as to each of the previous predicate claims. Courts have made it clear that the UCL claim cannot be used as an end-run around the requirements of other statutes.” Plaintiffs” claims seem to be based upon the ‘fraud’ component of the UCL. However, as stated above, the FAC completely fails to meet the heightened standard of pleading required when pleading fraud. Moreover, a business practice is considered “fraudulent” within the meaning of the UCL if the “public is likely to be deceived.” Plaintiff's allegations are vague, unintelligible, and conclusory; are pleaded with no particularity and have absolutely nothing to do with the public at large. “FAC, 180 “FAC, {86 “7 Glenn K. Jackson, Inc. v. Roe 273 F.3d 1192, 1203 (9Circ. 2001) “ Massachusetts Mutual Life Insurance Co. v. Superior Court (2002) 97 Cal.App.4™ 1282, 1290 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -13- O o 0 u N A 10 11 12 13 14 15 16 17 18 19 20 21 22 79 24 25 26 27 28 This failure to identify any predicate law that Defendants allegedly violated, omits an essential element of the claim.* Plaintiffs supply no facts to support how BDFTW violated these statutes. This leaves DDFTW to speculate and surmise an adequate defense. In Khoury v. Macy's of Calif., Inc., the Court of Appeal held that conclusory allegations such those made here were insufficient as a matter of law to state a viable claim under Cal. Bus. & Prof. Code § 17200, “a plaintiff alleging unfair business practices ... must state with reasonable particularity the facts supporting the statutory elements of the violation.® All of the allegations of Plaintiff are discredited as discussed supra and they again fail to allege any violation of any unlawful predicate act. As discussed above, any conduct by BDFTW was privileged. Finally, Plaintiffs lack standing to sue under Section 17200 because they have not “suffered injury in fact” and have not “lost money or property as a result of the alleged conduct.”Here, plaintiff fails to plead facts showing that they suffered an actual loss due to BDFTW or any Defendant's alleged conduct. In fact, no foreclosure has taken place and no foreclosure sale is scheduled. Therefore, any loss would be attributed to the failure to satisfy the loan obligations. For each of these reasons, the Court should sustain BDFTW’s Demurrer to this cause of action without leave to amend. XI. THE SEVENTH CAUSE OF ACTION FAILS TO STATE FACTS SUFFICIENT TO CONSTITUTE AN ACTIONABLE CLAIM Plaintiffs” seventh cause of action is based upon an alleged violation of Civil Code § 2923.55. Where-is based upon on a statutory claim, the plaintiff must set forth facts in his [or her] complaint sufficiently detailed and specific to support an inference that 49 Khoury v. Macy's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. 5 William L. Stern, Cal. Prac. Guide, Bus. & Prof. Code § 17200 Practice, § 7:131 (2009). 3! California Business & Professions Code § 17204; Californians for Disability Rights v. Mervyn’s, LLC (2006) 39 Cal. 4% 223227 32 DeLeon v. Wells Fargo Bank, N.A. 2011 U.S. Dist. LEXIS 8296 (N.D. Cal. 2011); Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4™ 1602 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -14- 10 1 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate. [Citations omitted]” The allegations of this cause of action merely challenges the veracity of the Declarations of Stephanie Watts from Nationstar and claims that Plaintiff has never been contacted by Stephanie Watts. Of course, the person who signs the Declaration is not stating that the particular Declarant contacted the borrower. The Declarant is only stating that the statutory requirements were met. Therefore, the allegation that Plaintiff was never contacted by Stephanie Watts is irrelevant in stating a cause of action against BDFTW or Nationstar. Furthermore, for the reasons stated before, the allegation that Plaintiff never received a copy of the Notice of Default is not actionable. Plaintiffs have failed to sufficiently allege any violation against any defendant as they merely allege that they did not receive communication from Stephanie Watts only, and therefore it is unclear as to how the Defendants, including BDFTW purportedly violated the statute. This is especially troublesome since Plaintiffs have pled that they were fully engaged in loss mitigation negotiations with Nationstar. Specifically they allege that “[o]n July 10, 2015, Plaintiff sent Nationstar a complete packet for a loan modification. This was confirmed by Nationstar;”* that on July 13, 2015 and on July 14, 2015 and subsequently, they were in communications with “Ren”, “Nekita”, “Glen”, “Sherolda”, “Jason”, “Tasha”, and “Adam” all at Nationstar.® These very allegations undercut Plaintiff's claim that there was a violation of Civil Code § 2923.55 asthis section has been satisfied so long as there has been an effort to assess the borrower's financial situation and explore options to avoid foreclosure; and that the *3 Mittenhuberv. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5 FAC, 130 FAC, 97 31, 32, 33, 35, and 36 NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -15- 10 11 12 13 14 15 16 17 18 12 20 21 22 23 24 25 26 27 28 only remedy for a violation of section 2923.55, when no trustee sale has occurred yet,is to delay foreclosure until the statute has been complied with. Plaintiff fails to allege that he suffered any prejudice as a result of the alleged violation of § 2923.55 as he did not allege that he would have avoided default if he had received the statutory notices.” Finally, the Court's attention is invited to the fact that Defendant BDFTW filed a Declaration of Non-Monetary Status, in which it essentially acquiesced to any equitable and non-monetary award. This is relevant as to this cause of action as a court can only award economic damages as a remedy if “the violation was not corrected and remedied prior to the recordation of the trustee’s deed upon sale.”® Again, here the Notice of Trustee's Sale has been rescinded and no sale is scheduled. XII. THE COURT SHOULD DENY LEAVE TO AMEND BDFTW acknowledges that leave to amend a defective pleading is granted liberally and denial of leave to amend is an abuse of discretion if there is any reasonable possibility the defect can be cured by amendment” However, the burden rests on Plaintiff to demonstrate in what manner he can amend the FAC and how that amendment will change the legal effect of the pleading.” Where the facts are not in dispute, the nature of the claim is clear, and no liability exists under substantive law, denial of leave to amend is a proper exercise of the court's discretion.®* > California Civil Code § 2923.55(b)(2); Hutchfield v. Wells Fargo Bank, N.A. 471 Fed. App’x 693, 695 (9% Cir. Mar. 12,2012; Newman v. Bank ofNew York Mellon 2013 WL 5603316, at *12 (E.D. Cal. Oct. 11, 2013); Bell v. Wells Fargo Bank, N.A., 2014 U.S. Dist. LEXIS 153170, at *10 (C.D. Cal. Oct. 28, 2014); Intengan v. BAC Home Loans Servicing, LP (2013) 214 Cal.App.4™ 1047, 1058 n.4 (noting “the well-established rule that there is no remedy for violation of Civil Code section 2923.5 except a delay of the foreclosure sale pending compliance with the statute”). %7 Valenzuela v. Wells Fargo Bank Nat. Ass’n (E.D. Cal. 2014) 2014 WL 309438 at *12. 8 California Civil Code § 2924.12(b) % Goodman v. Kennedy (1976) 18 Cal.3d 335, 349. 60 Id. 61 Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436-437. NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFE’S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF -16- 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XIII. CONCLUSION Based on the foregoing, Defendant BDFTW respectfully requests this Court sustain its Demurrer as to the entirety of Plaintiff's First Amended Complaint without leave to amend. / BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP Date: August 16, 2016 By: AMES T: Attoryheys for Defendant ARRETT DAFFIN FRAPPIER REDER & WEISS. T.1.P NOTICE OF DEMURRER AND DEMURRER OF DEFENDANT BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP TO PLAINTIFF'S FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF 175 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE BY U.S. MAIL (C.C.P. 1013a, 2015.5, FRCP 5(d)) I, Kimberly Fontaine, declare as follows: I am employed in Los Angeles County at 20955 Pathfinder Road, Suite 300 Diamond Bar, California 91765. I am over the age of eighteen years and am not a party to this action. On August 16, 2016, I served attached documents on the interested parties in this action, addressed as shown on the ATTACHED SERVICE LIST. Oo BY MESSENGER, SAME DAY DELIVERY - placing the document into an envelope addressed to each person shown on the service list and delivering the sealed envelope to a professional messenger service for personal, same day delivery. BY MAIL - By placing the document into an envelope and depositing the sealed envelope, with postage thereon fully prepaid, addressed to each person shown on the service list, for collection and mailing following ordinary business practices. I am readily familiar with the firm's practice of collection and processing of correspondence for mailing. Under that practice, it would be deposited with the United States Postal Service on that same dav in the ordinarv course of business. BY FEDERAL EXPRESS - By placing the document into an envelope and depositing the sealed envelope, with overnight delivery fees paid, addressed to each person shown on the service list, in a facility regularly maintained by Federal Express or delivering the same to a driver authorized by Federal Express to receive documents. BY FACSIMILE - By sending the document via facsimile from (626) 915-0289 to each person and facsimile number shown on the service list. The transmission was reported as complete and without error. A copy of the activity report(s) generated by the facsimile machine is attached hereto. BY EMAIL - By sending the document via email from kimf@bdfgroup.com to each person and email address shown on the service list STATE -I declare under penalty of perjury under the laws of the State of California that the foregoing facts are true and correct. FEDERAL - I declare underpenalty of perjury under the laws of the United States of America that the foregoing facts are true and correct and that I am employed in the Office of a member of the Bar at whose direction the service was made. Executed on August 16, 2016, at Diamond Bar, California. “= " KimberlyFofftaine ~ Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff’s First Amended Complaint -6- O o 0 N N O N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Chew v. Nationstar Mortgage, et. al. Orange County Superior Court Case No. 30-2015-00799117-CU-OR-CJC Gary S. Saunders Saunders Law Group. LTD 1891 California Avenue, Suite 102 Corona, CA 92881 951-272-9114 Justin D. Balser Robert R. Yap AKERMAN LLP 725 South Figueroa Street, 38% Floor Los Angeles, CA 90017-5433 213-688-9500 Attorneys for Plaintiff, John Chew Attorneys for Defendants, Nationstar Mortgage LLC; U.S. Bank National Association Notice of Demurrer and Demurrer of Defendant BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP to Plaintiff’s First Amended Complaint 7- Kim Fontaine From: Sent: To: Subject: Follow Up Flag: Flag Status: donotreply@occourts.org Tuesday, August 16, 2016 10:19 AM Kim Fontaine Superior Court of Orange County - Motion Reservation Request - CONFIRMATION Follow up Completed eyCourt of California, Gent (o}] Orange RESERVE 3 astiel [BFR ~ Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do not reply to this email. Reservation Number: 72428596 Hearing Date: October 27, 2016 Hearing Time: 1:30 PM Department: C16 Motion Type: Demurrer to Amended Complaint Case Number: 30-2015-00799117-CU-OR-CIC Case Title: John S. Chew vs. Nationstar Mortgage LLC Judicial Officer: Hon. James J. Di Cesare Email: kimf@bdfgroup.com Date of Request: August 16, 2016 Time of Request: 10:04 AM Transaction Number: 113043346 SuperiorCourtofCallfoenta»CountyofOrange