Gerald David Moushey vs. America'S Servicing Company

Reply to Motion

Cal. Super. - 4th Dist.December 21, 2016

1 Jeffrey S. Gerardo #146508 Steven M. Dailey #163857 2 KUTAK ROCK LLP Suite 1500 3 5 Park Plaza Irvine, CA 92614-8595 4 Telephone: (949) 417-0999 Facsimile: (949) 417-5394 5 Email: jeffrey.gerardo@kutakrock.com Email: steven.dailey@kutakrock.com 6 Attorneys for Defendants 7 WELLS FARGO BANK, N.A. DBA AMERICA’S SERVICING COMPANY [erroneously sued as “AMERICA’S SERVICING COMPANY”] and BANK OF AMERICA NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL 10 ASSOCIATION, AS TRUSTEE UNDER THE TRUST AGREEMENT FOR THE STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 1 2004-7 [erroneously sued as “BANK OF 12 AMERICA, N.A.”] 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF ORANGE - CENTRAL JUSTICE CENTER 15 GERALD DAVID MOUSHEY, an Case No. 30-2016-00893738-CU-OR-CJC 16 Individual, JUDGE: Hon, Geoffrey T. Glass 17 Plaintiff, DEPT: C32 18 VS. REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF'S 19 AMERICA’S SERVICING COMPANY; SECOND AMENDED COMPLAINT BANK OF AMERICA, N.A., a National 20 Association; QUALITY LOAN SERVICE Filed concurrently with Reply in Support of CORPORATION, a California Demurrer 21 Corporation; and DOES 1 through 100, inclusive, 22 Date: September 18, 2017 Defendants. Time: 1:30 p.m. 23 Dept: C32 24 Date filed: December 21, 2016 Trial date: None set 25 26 27 28 KUTAK ROCK LLP 4835-7889-9023. 1 -1- ATTORNEYS AT LAW frye REPLY IN SUPPORT OF MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kutaxk Rock LLP ATTORNEYS AT LAW IRVINE Defendants WELLS FARGO BANK, N.A. DBA AMERICA’S SERVICING COMPANY and BANK OF AMERICA NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE TRUST AGREEMENT FOR THE STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2004-7, [collectively “Lender Defendants], hereby submit their Reply in Support of Motion to Strike Portions of Plaintiff's Second Amended Complaint. 1. INTRODUCTION. Plaintiffs Opposition to Lender Defendants’ Motion to Strike [“Opposition”] does not rebut the legal authority or argument set forth in the Motion to Strike. Plaintiff has not adequately argued why he should be permitted to add two new causes of action without first seeking leave of court to do so. Plaintiff, who has only pleaded economic loss, does not demonstrate that he satisfies any of the narrow exceptions under which emotional distress damages can be made available absent allegations of physical impact or injury, and thus all references to emotional distress damages in the SAC must be stricken. Plaintiff does not identify any basis for restitution under Business & Professions Code sections 17200 and 17203, and, therefore, allegations as to general damages under the Section 17200 claim must be stricken. Plaintiff concedes that the references to punitive damages should be stricken. Plaintiff has had now three opportunities to state his causes of action in such a way as to protect against any motion to strike, and has failed to do so. As such, further leave to amend should be denied. 2. THE THIRD AND FOURTH CAUSES OF ACTION MUST BE STRICKEN. Plaintiff argues in his Opposition that, even though he was not granted leave to amend to add any new causes of action after the Demurrer to the original complaint was sustained, that he should nonetheless be permitted to add new causes of action to his Second Amended Complaint kh because “they are based on the same legal contentions...” and cites to the case Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4™ 1018. [Opposition. Page 3, Lines 18-23] However,this case does not support Plaintiff’s position - in it, the plaintiffs were not given leave to add new causes of action, did not seek leave of court to do so, tried to do so anyway, and their additional causes of action were not permitted by the Court precisely because they had not been 4835-7889-9023.1 -2- REPLY IN SUPPORT OF MOTION TO STRIKE P N ~ ~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTaX ROCK LLP ATTORNEYS AT LAW IRVINE given leave to bring them. [/d.] Where a court grants leave to amend, the scope of permissible amendment is limited to the causes of action to which the demurrer has been sustained. [Motion to Strike, Page 5, Line 21- Page 6, Line 13.] Plaintiff improperly amended the Second Amended Complaint beyond the scope of leave to amend granted by the Court when it sustained Lender Defendants” Demurrer to the First Amended Complaint. The newly alleged causes of action for Negligent Misrepresentation and for Fraud should therefore be stricken. 3. PLAINTIFF'S OPPOSITION DOES NOT ADDRESS THAT PLAINTIFF FAILED TO ALLEGE PHYSICAL IMPACT OR INJURY IN ORDER TO SUPPORT ANY CLAIM TO ENTITLEMENT TO EMOTIONAL DISTRESS DAMAGES. In his Opposition, Plaintiff does not address the central argument by Lender Defendants as to why all references to emotional distress damages should be stricken - ie., that he cannot recover emotional distress related damages because Plaintiff claims only economic loss - he does not allege any physical impact or physical injury due to any alleged emotional distress. [SAC, passim.] In Erlich v. Menezes (1999) 21 Cal. 4th 543, the California Supreme Court definitively ruled that, except in certain narrow classes of cases, emotional distress is not available without a showing of physical impact or injury. [Motion to Strike, Page 6, Lines 23- Page 7, Line 26.] None of the narrow exceptions apply to Plaintiff. [Motion to Strike, Page 7, Lines 7- 17.] 4. PLAINTIFF HAS NOT ALLEGED ANY VESTED INTEREST IN MONEY OR PROPERTY THAT CAN SERVE AS “RESTITUTION” UNDER BUSINESS & PROFESSIONS CODE SECTION 17203. In his Opposition, Plaintiff cites to the case Cortez v. Puralator Air Filtration Products Co. (2003) 23 Cal.App.4™ 163 to argue that he is entitled to monetary damages under California Business & Professions Code section 17203 because he is allowed to seek restitution of any money or property in which he has a vested interest, even if it is unrelated to the subject property or loan, [Opposition, Page 5, Lines 6-15.] Cortez is inapplicable here. In the Cortez case, a plaintiff whose lawsuit against her employer was based on the employer’s failure to pay her earned overtime wages, the plaintiff was entitled to restitution in the form of money in the amount 4835-7889-9023.1 -3- REPLY IN SUPPORT OF MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KUTAK ROCK LLP ATTORNEYS AT Law IRVINE of the overtime pay she had not been paid. In the matter at hand, Plaintiff does not identify any money or property in which he had a vested interest. He admits defaulting on the loan and not repaying it. Plaintiff does not allege any facts to show any money is owed to him or that any property is owed to him by Lender Defendants. As damages are not available under the Unfair Business Practices Act, allegations of entitlement to damages should be stricken. [Bank of the West v. Sup. Ct. (1992) 2 Cal.4™ 1254, 1266; see also, Heller v. Norcal Mut. Ins. Co. (1994) 8 Cal.4™ 30, 45; Cel-Tech Communications, Inc. v. Los Angeles Cellular Tel. Co (1999) 20 Cal4" 163, 179.] 5. PLAINTIFF CONCEDES IN HIS OPPOSITION THAT REFERENCES TO PUNITIVE DAMAGES SHOULD BE STRICKEN. Plaintiff concedes in his Opposition that references to punitive damages should be stricken. [Opposition, Page 5, Lines 18-21.] Where a plaintiff does not oppose a portion of a demurrer, he or she is deemed to have abandoned the issue, and that portion of the demurrer should be considered unopposed. [Herzberg v. County ofPlumas (2005) 133 Cal.App.4th 1, 20.] As Lender Defendants’ request to strike references to punitive damages is unopposed,it should be granted. 6. FURTHER LEAVE TO AMEND SHOULD BE DENIED. The burden is on Plaintiff to show in what manner she can amend the First Amended Complaint to state a cause of action that would potentially entitle him to maintain the Third and Fourth Causes of Action (brought without leave of Court), emotional distress damages, general damages under Business & Professions Code section 17200 and how that amendment will change the legal effect of the pleading. [Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.] “Courts should deny leave to amend where the plaintiff has alleged facts which preclude the relief sought in the original pleading. [Mercury Cas. Co. v. Sup. Ct. (Garcia) (1986) 179 Cal.App.3d 1027, 1035.] Plaintiff has had ample opportunity to state her claims and has failed to do so. Therefore, Lender Defendants respectfully request that no further leave to amend be granted in this case. 1" 4835-7889-9023.1 -4 - REPLY IN SUPPORT OF MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KuTak Rock LLP ATTORNEYS AT LAW IRVINE 7. CONCLUSION. For the foregoing reasons, Lender Defendants request the Court grant their Motion to Strike the Third and Fourth Causes of Action, all references to emotional distress damages, all references to general damages under Business & Professions Code section 17203, and punitive damages. Dated: September 11, 2017 4835-7889-9023.1 KUTAK ROCK LLP By: (Co bean, L. IAA Jeffrey S. Gerardo Steven M. Dailey Rebecca L. Wilson Attorneys for Defendants WELLS FARGO BANK, N.A. DBA AMERICA’S SERVICING COMPANY and BANK OF AMERICA NATIONAL ASSOCIATION AS SUCCESSOR BY MERGER TO LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE UNDER THE TRUST AGREEMENT FOR THE STRUCTURED ASSET INVESTMENT LOAN TRUST SERIES 2004-7 -5- REPLY IN SUPPORT OF MOTION TO STRIKE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kurak Rock LLP ATTORNEYS AT LAW IRVINE PROOF OF SERVICE MOUSHEY v WELLS FARGO BANK, N.A. ORANGE COUNTY SUPERIOR COURT CASE NO. 30-2016-00893738-CU-OR-CJC STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the City of Irvine in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 5 Park Plaza, Suite 1500, Irvine, California 92614-8595. On September 11, 2017, I served on all interested parties as identified on the below mailing list the following document(s) described as: REPLY IN SUPPORT OF MOTION TO STRIKE PORTIONS OF PLAINTIFF’S SECOND AMENDED COMPLAINT [X] (BY NOTICE OF ELECTRONIC FILING) Counsel who have consented to electronic service have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document(s) was(were) filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [1] (BY OVERNIGHT DELIVERY/COURIER) I delivered an envelope or package to a courier or driver authorized by the express service carrier; or deposited such envelope or package to a regularly maintained drop box or facility to receive documents by the express service carrier with delivery fees provided for. SERVICE LIST Timothy G. McFarlin, Esq. Attorneys for Plaintiff Jarrod Y. Nakano, Esq. Gerald David Moushey Gary T. Dote, Esq. McFarlin LLP Phone: (949) 544-2640 4 Park Plaza, Suite 1025 Fax: (949) 336-7612 Irvine, CA 92614 Email: gary@mcfarlinlaw.com Quality Loan Service Corporation Attorneys for Quality Loan Service Corporation Email: jmolteni@qualityloan.com (STATE) 1 declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 11, 2017, at Irvine, California. “Hed Kathy Powell ]Iv = 4828-3536-2115.1 -6- 14617-964 REPLY IN SUPPORT OF MOTION TO STRIKE