Souzan Baaj vs. Nationstar Mortgage, LLC

Demurrer to Complaint

Cal. Super. - 4th Dist.August 17, 2017

© 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Edward A. Treder (State Bar No. 116307) Chris C. Chapman (State Bar No. 234738) BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP 20955 Pathfinder Road, Suite 300 Diamond Bar, California 91765 Telephone: 626-915-5714 Facsimile: 626-915-0289 Email: chrisch@ bdfgroup.com Attorneys for Defendant, NATIONSTAR MORTGAGE LLC (erroneously sued as “NATIONSTAR MORTGAGE, LLC") SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE-CENTRAL JUSTICE CENTER SOUZAN BAA], Case No.: 30-2017-00938273-CU-OR-CJC Plaintiff, V. HON.RONALD L.BAUER NATIONSTAR MORTGAGE, LLC, a NOTICE OF DEMURRER AND DEMURRER Delaware Limited Liability Company, TO COMPLAINT; DECLARATION RE: UNION BANK, N.A. formerly known as MEET AND CONFER PER CCP UNION BANK of CALIFORNIA akaMUFG [8430.41(a)(3)(B); MEMORANDUM OF UNION BANK FOUNDATION, aCalifornia [POINTSAND AUTHORITIES IN SUPPORT Corporation and DOES 1 through 50, ] inclusive, [Code Civ. Proc. §§ 430.10(d) and (e)] Defendants. [Request for Judicial Notice Filed Concurrently Herewith] Date: November 13, 2017 Time: 9:00 a.m. Ctrm: CX 103 TO THE COURT,ALL PARTIESAND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Monday, November 13, 2017 at 9:00 a.m. in Courtroom CX 103 of the above entitled Court located at 700 Civic Center Drive West, Santa Ana, CA 92701, Defendant NATIONSTAR MORTGAGE LLC (“NATIONSTAR" or “Defendant”), will demurrer to the Complaint filed by Plaintiff SOUZAN BAA] (“Plaintiff”) as follows: 1 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o DEMURRER TO THE COMPLAINT Defendant Nationstar demurs generally to the entire Complaint because the pleading does not state facts sufficient to constitute a cause of action against defendant. Code Civ. Proc. (“CCP”) § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant N ationstar demurs specially to the entire Complaint because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. DEMURRER TO THE FIRST CAUSE OF ACTION Defendant Nationstar demurs generally to the first cause of action for “Quiet Title" because the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant N ationstar demurs specially to the first cause of action for “Quiet Title” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. DEMURRER TO THE SECOND CAUSE OF ACTION Defendant Nationstar demurs generally to the second cause of action for “Declaratory Relief” because the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the second cause of action for “Declaratory Relief” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. DEMURRERTO THE THIRD CAUSE OF ACTION Defendant Nationstar demurs generally to the third cause of action for “Temporary Restraining Order, Preliminary Injunction and Permanent Injunction” because the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the third cause of action for “Temporary Restraining Order, Preliminary Injunction and Permanent Injunction” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. 2 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o DEMURRER TO THE FOURTH CAUSE OF ACTION Defendant Nationstar demurs generally to the fourth cause of action for “Unfair Business Practices” because the pleading does notstate facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the fourth cause of action for “Unfair Business Practices” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP §430.50(a); CCP § 430.70. DEMURRER TO THE FIFTH CAUSE OF ACTION Defendant Nationstar demurs generally to the fifth cause of action for “Breach of the Covenant of Good Faith and Fair Dealing” because the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the fifth cause of action for “Breach of the Covenant of Good Faith and Fair Dealing” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. DEMURRER TO THE SIXTH CAUSE OF ACTION Defendant Nationstar demurs generally to the sixth cause of action for “Breach of Contract” because the pleading does notstate facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the sixth cause of action for “Breach of Contract” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP §430.50(a); CCP § 430.70. DEMURRER TO THE SEVENTH CAUSE OF ACTION Defendant Nationstar demurs generally to the seventh cause of action for “Reformation” because the pleading does not state facts sufficient to constitute a cause of action. CCP § 430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the seventh cause of action for “Reformation” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. 3 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o DEMURRERTO THE EIGHTH CAUSE OF ACTION Defendant Nationstar demurs generally to the eighth cause of action for “Wrongful Foreclosure” because the pleading does not state facts sufficient to constitute a cause of action. CCP §430.10(e); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. Defendant Nationstar demurs specially to the eighth cause of action for “Wrongful Foreclosure” because there is a defect or misjoinder of parties. CCP § 430.10(d); CCP § 430.30(a); CCP § 430.50(a); CCP § 430.70. The demurrer is based on this Notice, the Memorandum of Points and Authorities, the Request for Judicial Notice, any reply thereto, the pleadings and records on file in this action, the matters of which the Court may take judicial notice, and such additional grounds and argument as may be presented at or prior to the hearing. Dated: October 12, 2017 BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP By: Chrie Chapman Chris C. Chapman Attorneys for Defendant, NATIONSTAR MORTGAGE LLC 4 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o DECLARATION OF COMPLIANCE WITH CCP §8430.41(a)(3)(B) | Chris C. Chapman, declare as follows: 1. | am an attorney with Barrett Daffin Frappier Treder & Weiss, LLP (“BDFTW'), counsel of record for defendant NATIONSTAR MORTGAGE LLC (“NATIONSTAR"). | have personal knowledge of the facts set forth in this declaration and if called as a witness | could and would competently testify as to those facts. 2. Prior to filing this demurrer, | attempted to telephonically meet and confer with Plaintiffs’ counsel Lawrence Hoodack more than five days prior to filing this demurrer. Mr. Hoodack failed to respond to my meet and confer request. As a result, | proceeded with the filing of this demurrer without any further delay. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 12th day of October, 2017 at Mission Viejo, California. ChieChapman CHRIS C.CHAPMAN 5 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o MEMORANDUM OF POINTSAND AUTHORITIES: 1. INTRODUCTION Plaintiff Souzan Baaj (“Plaintiff”) has again® sued defendant, Nationstar Mortgage LLC (“Nationstar”), the loan servicer for the loan obtained by Plaintiff's former husband Samer K urd- Misto which is secured by certain real property seeking to quiet title and reform a Promissory Note. Plaintiff seeks to quiettitle to the property free and clear because Plaintiff claims Nationstar has failed to communicate with her about the loan. Plaintiff admits in the Complaint she did not sign the Promissory Note which resulted in an alleged lack of authorization for Plaintiff to speak to Nationstar about the loan. Plaintiff also admits in a July 28, 2015 letter attached to the complaint as Exhibit 10 that Mr. Misto refused to provide Plaintiff authorization to speak to Nationstar which further impaired Plaintiff's ability to speak to Nationstar about the Misto loan. As a result, Plaintiff filed this lawsuit to reform the Promissory Note to add her name but has failed to even name Mr. Misto who signed the Promissory Note. Plaintiff is also seeking to quiet title to the property free and clear without any legal basis solely due to Mr. Misto’s failure to provide Plaintiff the necessary authorization to speak to Nationstar. Plaintiff is also alleging a breach of contract and breach of covenant of good faith and fair dealing as to a contract Plaintiff admittedly did not sign and is not a party. There is no basis for the claims alleged in the Complaint. There is a severe defect or misjoinder of parties as the complaint fails to name the party on the Note and Deed of Trust, Samer Kurd-M isto. For this reason alone, the demurrer must be sustained. I. FACTUAL BACKGROUND On April 28, 2008, borrowers Samer Kurd-M isto and Souzan Baaj (“Plaintiff”) obtained an adjustable rate rider mortgage loan in the amount of $417,000.00 from lender Flagstar Bank, FSB with respect to real property located at 2 Chaparral Court, Rancho Santa Margarita, California 92688-5553 (the “Property”) and secured by a Promissory Note and recorded Deed of Trust. (Exhibit 2 to Complaint (“Cplt”), Deed of Trust.) However, only Samer K urd-M isto signed the Promissory Note. (Cplt 9 63, Exhibit 7 [“This note is ONLY signed by Samer K urd-M isto.”). On February 18, 2015, Richard A. M arshack, acting solely in his capacity as the chapter 7 trustee ! Plaintiff filed an almost identical lawsuit against Nationstar on February 14, 2017 before this same Court. Nationstar removed the prior lawsuit to Federal Court and it was dismissed without prejudice on June 9, 2017. (Exhibits D and E to Request for Judicial Notice (“RJN").) 1 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o of the bankruptcy estate of Samer Kurd-M isto, executed a Quitclaim Deed to Plaintiff and it was recorded on May 21, 2015. (E xhibit 6 to Cplt.) On February 22, 2017 a Corporate Assignment of Deed of Trust was recorded wherein Nationstar was assigned as the beneficiary to the Deed of Trust. (Exhibit A to RJN.) On February 24, 2017, Barrett Daffin Frappier Treder & Weiss, LLP was substituted in as trustee under the Deed of Trust. (Exhibit B to RJN.) On February 24, 2017, Plaintiff filed an almost identical complaint against N ationstar with the only significant difference being the prior lawsuit did not name defendant Union Bank. (Exhibit D to RJN.) Nationstar removed the case to Federal Court and filed a motion to dismiss. (Exhibit F to RN.) Plaintiff did not oppose the motion but the Federal Court dismissed the prior lawsuit without prejudice on June 9, 2017. (Exhibit G to RJN.) On June 28, 2017, a Notice of Default (“NOD") was recorded indicating Samer Kurd-M isto was in arrears on the mortgage loan in the amount of $58,406.34 as of June 26, 2017. (Exhibit C to RN.) Il. THERE IS A DEFECT OR NON-JOINDER OF PARTIES BECAUSE PLAINTIFF'S CAUSES OF ACTION TO QUIET TITLE AND REFORM THE DEED OF TRUST REQUIRE PLAINTIFF TO NAME SAMER-KURD MISTO AS A PARTY FOR THE RELIEF REQUESTED IN AT LEAST THOSE TWO CAUSES OF ACTION IF NOT THE OTHERSAS WELL A complaint is subject to demurrer due to a defect (nonjoinder) or misjoinder of parties pursuant to CCP §430.10(d). Plaintiff must join as parties to the action all persons whose interests are so directly involved that the court cannot render a fair adjudication in their absence. Code Civ. Proc. §389. “The current compulsory joinder Code provisions (CCP § 389) are derived from Rule 19 of the Federal Rules of Civil Procedure.” The Rutter Group California Practice Guide: Civil Procedure Before Trial, Chapter 2:155 (2017). Federal precedents therefore may be pertinent in resolving compulsory joinder disputes. Id., citing to Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of America (2015) 234 Cal.App.4™ 1168, 1174. A person must be joined as a party if that person is a “necessary” or “indispensable” party to the action. Fed. R. Civ. Proc. 19(a)(1)(A). Plaintiff is required to join as parties to the action any person whose interest is such that: (1) In the person's absence, complete relief cannot be accorded among those already parties to the action; or (2) Any judgment rendered in the person's absence might either (a) prejudice the person's ability to protect his or her interest in later litigation; or (b) leave any of the parties before the court exposed to a risk of additional liability or inconsistent obligations. CCP §389(a); see Olszewski v. 2 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Scripps Health (2003) 30 Cal.4™ 798, 808-809 (“a person is an indispensable party... when the judgment to be rendered necessarily must affect his rights”; Morrical v. Rogers (2013) 220 Cal.App.4" 438, 460-464. Here, there is a defect (non-joinder) in the complaint because Plaintiff has not named Samer Kurd-Misto as a party to many if not all of the claims pled which impact Samer Kurd- Misto’'s interest and rights. For example, Plaintiff's seventh cause of action is seeking to reform the Promissory Note signed by Samer Kurd-M isto. Plaintiff was not a party to that Note. Samer Kurd-Misto should be joined in that cause of action since Plaintiff is seeking to reform an instrument Samer Kurd-Misto executed. Samer Kurd-Misto’s credit is being affected by any failure to pay the loan, not Plaintiffs. Samer Kurd-M isto has an interest into whether or not the Promissory Note is to be reformed; whether that means removing Samer Kurd-M isto and adding Plaintiff or simply adding Plaintiff. In addition, Plaintiff is seeking to quiettitle to the Property free and clear of Nationstar's lien. Samer Kurd-Misto’s ownership interest in the property was quitclaimed to Plaintiff (Exhibit 6 to Cplt) but Samer Kurd-M isto is still the borrower on the loan and recorded lien (i.e. Deed of Trust) and has a pecuniary interest in whether Plaintiff can quiet title to the Property. The other claims for Breach of Contract, Breach of Covenant, Declaratory Relief, and Unfair Business Practices may also ultimately impact Samer Kurd-Misto and any rights he may still have as to the loan. For these reasons, the special demurrer to the Complaint for defect (non-joinder) of party Samer Kurd-Misto and Plaintiff should be ordered to name Samer Kurd-Misto as a party to any necessary claims where Plaintiff seeks relief but the “Court cannot accord complete relief among existing parties.” CCP §389; Fed. R. Civ. Proc. 19(a)(1)(A). IV. PLAINTIFF'S FIRST CAUSE OF ACTION FOR QUIET TITLE FAILS BECAUSE THERE IS NO ADVERSE CLAIM TO TITLE BY DEFENDANT NATIONSTAR SUFFICIENT TO QUIET TITLE AND LACK OF TENDER Plaintiff's first cause of action is for quiet title. (Cplt 19 1-21.) This claim fails for lack of tender and failing to allege an adverse claim to title by defendant Nationstar. Plaintiff has failed to allege an adverse claim beyond Nationstar simply exercising its right to title by a foreclosure pursuant to a Deed of Trust. In addition, Plaintiff has failed to name Samer Kurd-Misto in this claim. Mr. Misto still has the Promissory Note and lien evidenced by the Deed of Trust secured by the Property and should be named. 3 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o A quiet title claim complaint must be verified and allege the following: (a) a description of the property, including its legal description and street address, (b) the type of title sought by Plaintiff and the basis of such title, (c) the adverse claims to the title of plaintiff against which a determination is sought, (d) the date of which the determination of such title is sought, and (e) a prayer of the determination of title against the adverse claims. Cal. Code Civ. Proc. § 761.020; Yaghoubian v. Lehman Bros. Bank (C.D. Cal. Feb. 3, 2016) 2016 WL 447792, at *3. The purpose of a quiet title action is to determine “all conflicting claims to the property in controversy and to decree to each such interest or estate therein as he may be entitled to.” Newman v. Cornelius, 3 Cal.Ap.3d 279, 284 (1970) (internal quotation marks omitted). Here, Plaintiff has failed to allege the adverse claim by Nationstar to the title of Plaintiff. Cal. Code Civ. Proc. § 761.020(c). Plaintiff does not allege how Nationstar is threating to take title away from Plaintiff. Any right exercised by Nationstar to foreclose with a power of sale is through a security interest in the Deed of Trust, not through independenttitle to the property. McGuire v. Recontrust Co., N.A., 2012 WL 4510675, * 5 (E.D.Cal.2012) [“A right to foreclose based on a [deed of trust] is an insufficient foundation for an action to quiet title.”]; see also Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1120-21(E.D.Cal.2009) [holding that plaintiff could not bring a quiet title claim because the defendants “held a security interest in the [deed of trust], not an adverse claim in the property”]; see also Yaghoubiam, supra, 2016 WL 447792 *3 (“Accordingly, while the Deed of Trust encumbers the Property to secure the underlying loan, it does not give MERS any other incidents of ownership, and therefore is not an adverse claim against title.”). Plaintiff has failed to allege an adverse claim to title by Nationstar. Id.; Cal. Code Civ. Proc. § 761.020(c). For this reason alone, Plaintiff's quite title claim fails. Plaintiffs’ quiet title claim also fails due to Plaintiff's failure to allege a tender of the debt on the Loan that originated in the amount of $417,000. (Exhibit 2 to Cplt.); Shimpones v. Stickney, 219 Cal. 637, 649, 28 P.2d 673 (1934) (“a mortgagor cannot quiet his title against the mortgagee without paying the debt secured.”).) A plaintiff must plead in his complaint that he has tendered or able to tender the debt due on the property. Briosos v. Wells Fargo Bank, 2010 WL 3341043, at *12 (N.D.Cal. August 25, 2010) (“to maintain a quiet title claim, a plaintiff is required to allege tender of the proceeds of the loan at the pleading stage” [internal quotes and citation omitted]); Kozhayev v. America's Wholesale Lender, 2010 WL 3036001, at *5 (E.D.Cal. August 2, 4 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 2010) (“plaintiff's complaint does not allege that they have tendered, or are able to tender, the debt secured by the subject property. As such, plaintiff cannotstate a cognizable claim for quiet title.”). Quiettitle is an equitable claim, and a plaintiff in equity must do equity in order to obtain relief. Chavez v. Bank of America, N.A., (E.D.Cal., 2010) 2010 WL 1854087, *16. In the circumstances involving an attempt by the borrowerto quiettitle against the beneficiary, this means repaying the money borrowed before voiding the security for the loan. Id. “A basic requirement of an action to quiet title is an allegation that plaintiffs ‘are the rightful owners of the property, i.e., that they have satisfied their obligations under the Deed of Trust.” Santos v. Countrywide Home Loans, 2009 WL 3756337, at *4 (E.D.Cal. Nov.6, 2009) [internal citations omitted.] “[A] mortgagor cannot quiet his title against the mortgagee without paying the debt secured.” Watson v. MTC Financial, Inc., 2009 WL 2151782 (E.D.Cal., 2009) “A basic requirement of an action to quiet title is an allegation that plaintiffs ‘are the rightful owners of the property, i.e., that they have satisfied their obligations under the deed of trust.'” Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F.Supp.2d 952, 975 (N.D.Cal.2010) [quoting Kelley v. Mort. Elec. Registration Sys., 642 F.Supp.2d 1048, 1057 (N.D.Cal.2009).] The demurrerto the second cause of action for quiet title should be sustained. V. PLAINTIFF'S SECOND CAUSE OF ACTION FOR DECLARATORY RELIEF FAILS BECAUSE PLAINTIFF HAS FAILED TO ALLEGE ANY FACTS AGAINST NATIONSTAR TO SUPPORT A JUDICIAL DECLARATION OF THE RIGHTS OF THE PARTIES AND THE CLAIM IS DERIVATIVE AND DUPLICATIVE OF THE OTHER FAILED CLAIMS Plaintiff's second cause of action is for Declaratory Relief. (Cplt 99 22-26.) This claim fails because Plaintiff has failed to allege any facts requiring a judicial declaration as to the rights of the parties and the declaratory relief claim is duplicative of the other failed claims so there is no other substantive basis for liability. Declaratory relief “operates prospectively, and not merely for the redress of past wrongs.” Babb v. Superior Court, (1971) 3 Cal.3d 841, 848; County of San Diego v. California, (2008) 164 Cal.App.4™ 580, 607. Courts have recognized that where “a party has a fully matured cause of action for money, the party must seek the remedy of damages, and not pursue a declaratory relief claim.” Canova v. Trs. of Imperial Irrigation Dist. Employee Pension Plan, (2007) 150 Cal.App.4™ 1487, 1497; Gafcon, Inc. v. Ponsor & Assocs., (2002) 98 Cal.App.4™ 1388, 1404. 5 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Similarly, where a plaintiff has alleged a substantive cause of action, a declaratory relief claim should not be used as a superfluous “second cause of action for the determination of identical issues” subsumed within the first. Hood v. Superior Court, (1995) 33 Cal.App.4" 319, 324 (internal quotation marks omitted); see also Gen. of Am. Ins. Co. v. Lilly, (2009) 258 Cal.A pp.2d 465, 470; Camilo v. Wash. Mut. Bank, F.A., (E.D. Cal. Oct. 27, 2009) WL 3614793, *13 [declaratory relief claim dismissed as redundant where there was no reason to believe it would “resolve any issues aside from those already addressed by the substantive claims” in this case) (internal quotation marks omitted).) “A claim for declaratory relief is not a stand-alone claim but rather depends upon whether or not Plaintiff states some other substantive basis for liability.” Nguyen v. |P Morgan Chase Bank (C.D. Cal. Feb. 1, 2012) 2012 WL 294936, at *4 (citing Glue- Fold, Inc. v. Slautterback Corp. (Cal. Ct. App. 2000) 82 Cal.A pp. 4" 1018, 1023.). Here, Plaintiff has failed to allege a judicial declaration is required with respect to the parties’ rights to the loan account and pending foreclosure. Plaintiff has failed to allege some other substantive basis for liability as detailed in the quiet title and cancellation claims. Nguyen, supra, 2012 WL 294936, at *4. Plaintiff's declaratory relief claim is derivative and/or duplicative of Plaintiff's other failed causes of action. Kimball v. Flagstar Bank F.S.B., (5.D.Cal.2012) 881 F.Supp.2d 1209, 1220 (motion to dismiss declaratory relief claim granted because claim was duplicative of other invalid claims), citing to Permpoon v. Wells Fargo Bank Nat'l Ass'n, (S.D.Cal.2009) WL 3214321, at *5; Ball v. FleetBoston Financial Corp. (2008) 164 Cal.A pp.4" 794, 800 (demurreris properly sustained as to declaratory relief which is “totally derivative” of the statutory claim). Plaintiff is not the borrower on the loan that is being foreclosed upon. Plaintiff has no basis for any declaration of rights between the parties. Plaintiff seeks declaratory relief as to Defendants’ right to foreclose on the Property. A resolution of any of these other causes of action would also determine this separate claim for declaratory relief. Hood, 33 Cal.App.4™ at 324; Gen. of Am. Ins. Co., 258 Cal.App.2d at 470; Camilo, 2009 WL 3614793 at*13. Plaintiff has failed to allege any dispute between the respective parties that needs any judicial declaration. The demurrer to the second cause of action for declaratory relief should be sustained. 11] 11] 11] 6 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o VI. PLAINTIFF'S THIRD CAUSE OF ACTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION FAILS BECAUSE IT IS A REMEDY NOT A STAND ALONE CLAIM Plaintiff's third cause of action seeks injunctive relief in form of a temporary restraining order, permanent injunction, and permanent injunction. (Cplt 99 27-29.) Injunctive relief is a remedy and not a cause of action. Guessos v. Chrome Hearts, LLC, 179 Cal.App.4th 1177, 1187 (2009). “It is well settled that the proper method to request a TRO or a preliminary injunction is by separate motion.” In Re River Valley Fitness 297 B.R. 354 (Bankr. D.N.H. 2003). The demurrer to the third cause of action(s) should be sustained without leave to amend. Vil. PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR VIOLATIONS OF BUSINESS AND PROFESSIONS CODE § 17200 FAILS BECAUSE IT IS DUPLICATIVE OF THE OTHER FAILED CAUSES OF ACTION AND PLAINTIFF LACKS STANDING Plaintiff's fourth cause of action alleges a violation of unfair business practices under California Business & Professions Code § 17200 (“UCL”). (Cplt 19 30-41.) Plaintiff has failed to allege any facts to support this cause of action against Nationstar. The allegations made in support of this cause of action are the same allegations in support of the other failed causes of action. Plaintiff has failed to allege any violation of a predicate law, unfair or fraudulent conduct by N ationstar, and demonstrate causation of injury to support standing. The UCL prohibits unfair competition including “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200. Any of these three prongs that can be independently violated under the UCL. As to the “unlawful” prong, the UCL incorporates other laws and treats violations of those laws as unlawful business practices independently actionable under state law. Chabner v. United Omaha Life Ins. Co. (9™ Cir. 2000) 225 F.3d 1042, 1048. To state a claim for an “unlawful” business practice under the UCL, a plaintiff must sufficiently allege the violation of any other law. Cel- Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4™ 163, 180. W here a plaintiff cannot state a claim under the “borrowed” law, the plaintiff cannot state a UCL claim either. Smith v. State Farm Mutual Automobile Inc. Co. (2001) 93 Cal.App.4™ 700, 718. As to the “unfair” prong, “[aln unfair business practice is one that either ‘offends an established public policy’ or is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to 7 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o consumers.’ McDonald v. Coldwell Banker (9 Cir. 2008) 543 F.3d 498, 506 [quoting People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530 (1984)]. As to the “fraudulent” prong, “fraudulent acts are ones where members of the public are likely to be deceived.” Sybersound Records, Inc. v. UAV Corp. (9" Cir. 2008) 517 F.3d 1137, 1151-52. For all UCL claims, “[a] plaintiff must state with reasonable particularity the facts supporting the statutory elements ofthe violation. Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4"" 612, 6109. Here, Plaintiff's UCL claim has several deficiencies. First, as detailed herein, Plaintiff has failed to allege an “unlawful” action by Nationstar under the UCL based on a violation of any other law. Cel-Tech, supra, 20 Cal.4™ at 180. Second, to the extent Plaintiff alleges the “unfair” prong, Plaintiff has failed to allege any facts to allege an unfair business practice that ‘offends an established public policy’ or is ‘immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.”” McDonald v. Coldwell Banker (9 Cir. 2008) 543 F.3d 498, 506 [quoting People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 530]. Third, to the extent Plaintiffs asserts a UCL claim that is based on or grounded in fraud, Plaintiff must allege facts that meet the heightened pleading requirements for fraud. Cadlo v. Owens- Illinois, Inc. (2004) 125 Cal.App.4" 513, 519 (“Each element in a cause of action for fraud... must be factually and specifically alleged.”; Lazar v. Superior Court (1996) 12 Cal.App.4™ 631, 645 (in a fraud claim against a corporation, a plaintiff must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written.); Sybersound, supra, 517 F.3d at1151-52. The complaint fails to allege any facts that rise to the level of fraud or misrepresentation. Nor does the complaint allege the who, what, when, where, and how of the alleged fraud such as what roles each of the four defendants played in the fraudulent scheme, when and where the scheme occurred, or details of the specific misrepresentations. Lazar, 12 Cal.App.4" at 645. Plaintiff also lacks standing to allege a UCL violation because she has no damages. “[A] plaintiff must have suffered an ‘injury in fact’ and ‘lost money or property as a result of the unfair competition’ to have standing to pursue either an individual or a representative claim under the California Unfair Competition Law.” Hall v. Time, Inc. (2008) 158 Cal.App.4" 847, 849; see also Cal. Bus. & Prof. Code § 17204. An absence of facts describing the money or property allegedly 8 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o lost is fatal to a plaintiff's UCL claim. Saldate v. Wilshire Credit Corp., 711 F.Supp.2d 1126, 1138 (2010). Further, “a plaintiff fails to establish the causation requirement if he or she would have suffered the same harm whether or not a defendant complied with the law.” Jenkins v. JPMorgan Chase Bank, N.A., 216 Cal. App.4™ 497, 522 (2013); see also DeLeon v. Wells Fargo Bank, N.A., 2011 WL 311376, at *9 (N.D. Cal. Jan. 28, 2011) (holding that false statements regarding postponement of a foreclosure sale had not plausibly caused a plaintiff-borrower to lose her home because “in order to cure the defect and reinstate the loan, plaintiffs would have been required to pay [an amount that] they have not alleged they could have done.”); Duenas v. Ocwen Loan Servicing, LLC (E.D. Cal. Sept. 16, 2014) 2014 WL 4627203 at *14 (“Plaintiff defaulted on the loan . . even before Ocwen was the servicer on the loan. Because her default occurred prior to the alleged unlawful acts, the actions could not be the cause of her economic loss.”); see also Hernandez, supra, 2015 WL 3914741 at *16 (dismissing UCL claim for lack of standing where plaintiff failed to allege she paid any monies to defendants as a result of their allegedly unlawful, unfair, or fraudulent conduct). Courts routinely dismiss UCL claims where the allegedly unfair conduct occurred after the borrower's default. Orrill v. CitiM ortgage, Inc. (Cal. Ct. App. Sept. 28, 2015) 2015 WL 5684840, at *14 (sustaining demurrer where alleged unfair conduct occurred after plaintiffs defaulted); see also Garcia, supra, 2015 WL 534395 at *8 (“W here a borrower claims a violation of the UCL in connection with non-judicial foreclosure activity, there is no standing to sue for alleged conduct that occurred after the plaintiff's default. . . because the borrower cannot satisfy the causation componentof the standing requirement.”). Here, the Complaint lacks facts of Plaintiffs’ money or property allegedly lost to support a claim for standing for damages under the UCL. Plaintiff has not and cannot allege any loss property because Plaintiff is still the owner of the Property because the trustee's sale has not occurred to date. Plaintiff has not and cannot allege any loss of money because Plaintiff was not the one obligated to make payments on the loan, Mr. Misto was. Plaintiff knew the Property would face foreclosure if Mr. Misto failed to meet the obligations under the loan terms. In addition, the Complaint lacks facts to support Plaintiff being entitled to injunctive relief and/or restitution based on the loan payments made by Plaintiffs prior to her default. The “notion of restoring something to a victim of unfair competition includes two separate components. The offending party must have offered something to which it was not entitled and the victim must 9 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o have given up something which he or she was entitled to keep.” Day v. AT&T Corp. (1998) 63 Cal.App.4™ 325, 340. Any alleged injury that could be pled by Plaintiffs is the direct result of Plaintiffs admitted default on the loan years ago and not as a result of any unfair practices under the UCL by these two defendants. Khan v. CitiM ortgage, Inc., 975 F.Supp.2d 1127, 1144 (UCL claim dismissed due to plaintiffs lack of standing because she has not lost money or property due to the conduct of defendant foreclosing but due to her failure to pay her loan); Hall, supra, 158 Cal.App.4™ at 849 (no causal connection between injury in fact and lost property or money). The foreclosure and power of sale was expressly provided for in Plaintiffs Note and Deed of Trust. (Exhibit 2 to Cplt.) Plaintiff has failed to allege damages directly caused by Nationstar's unlawful, unfair, or fraudulent conduct. The demurrer to the fourth cause of action for unfair business practices should be sustained. Khan, supra, 975 F.Supp.2d at 1144. Vill. THE SIXTH CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS BECAUSE PLAINTIFF ADMITS SHE IS NOT A PARTY TO THE PROMISSORY NOTE ALLEGEDLY BREACHED AND HAS FAILED TO SPECIALLY PLEAD EXCUSES Plaintiff's sixth cause of action alleges a breach of contract against Nationstar. (Cplt 99 54- 60.) To allege a cause of action for breach of contract, Plaintiff must plead (1) the existence of a contract, (2) plaintiff's performance of the contract or excuse for non-performance, (3) defendant's breach of the contract, and (4) the resulting damage to the plaintiff. Troyk v. Farmers Group, Inc. (2009) 171 Cal.Ap.4" 1305, 1352. The plaintiff must allege that she has fulfilled her obligations and complied with any and all conditions and agreements of the contract that he is required to perform. Pry Corp. of America v. Leach, (1960) 117 Cal.App.2d 632, 639-40. To allege the existence of a contract, a plaintiff must plead mutual assent, sufficiently definite contractual terms, and consideration. Civ. Code § 1550. “Facts alleging a breach, like all essential elements of a breach of contract cause of action, must be pleaded with specificity.” Levy v. State Farm Mut. Auto Ins. Co. (2007) 150 Cal.App.4™ 1, 5. Not only must the facts constituting the defendant's breach be stated with certainty, but there must also be an allegation that the damage to plaintiff resulting therefrom is legally actionable. Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305. “[I]t is elementary that one party to a contract cannot compel another to perform while he himself is in default.” Durell v. Sharp Healthcare (2010) 183 Cal.App.4™ 1350, 1367 (citations omitted). “W hile the performance of an allegation can be satisfied in general terms, excuses must -10- NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o be pleaded specifically.” Id. (internal quotations and citations omitted.) “[I]f the action is based on an alleged breach of written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” Otworth v. S. Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 459. The statute of limitations for written contracts with respect to a Promissory Note and/or Deed of Trust is six years. Code Civ. Proc. § 336(a)(2). Here, Plaintiff alleges Nationstar breached the loan contract or Deed of Trust with Plaintiff and that Plaintiff has fully performed all conditions under the contract except those excused. (Cplt 19 55-58.) However, Plaintiff admits the actual contract, the Promissory Note, was an instrument she was not a party to and did not sign. (Cplt § 64, Exhibit 7 [“This note is ONLY signed by Samer Kurd-Misto.”) Plaintiff alleges the breach was with respect to the Promissory Note, not the Deed of Trust-Nationstar “fail[ed] to give notice to Plaintiff under the terms of the Note.” (Cplt 9 57.) Plaintiff fails to allege a breach of the Deed of Trust. Plaintiff cannot allege a breach of contract to a contract(i.e. Promissory Note) she admits she was not a party. Further, the breach(es) alleged of failing to give notice, wrongfully refused to communicate with Plaintiff, refused to recognize insurance obtained by Plaintiff is vague and directly contradicted by Plaintiff's admission she was not a party to the contract. (Cplt 1958, 64, Exhibit 7.) Plaintiff is making allegations of a breach by Nationstar after Mr. Misto would have already defaulted on the loan which is also problematic since “one party to a contract cannot compel another to perform while he himself is in default.”. Durell, supra, 183 Cal.A pp.4™ at 1367. Furthermore, Plaintiff generally alleges she performed or was excused from performing (Cplt 57) but any “excuses must be pleaded specifically.” Id. Plaintiff has also failed to allege how any such breach by Nationstar caused damage to plaintiff resulting therefrom is legally actionable. Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305. The demurrer to the sixth cause of action for breach of contract should be sustained without leave to amend. IX. PLAINTIFF'S FIFTH CAUSE OF ACTION FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING FAILS BECAUSE PLAINTIFF HAS FAILED TO ALLEGE AN UNDERLYING BREACH OF CONTRACT AGAINST NATIONSTAR Plaintiff's fifth cause of action alleges a breach of covenant of good faith and fair dealing but (as detailed above) Plaintiff has failed to allege a breach of contract against Nationstar. (Cplt -11- NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 19 42-53.) “[W ]ith the exception of bad faith insurance cases, a breach of the covenant of good faith and fair dealing permits a recovery solely in contract.’ Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.A pp.4™ 1004, 1054 [quoting from Fairchild v. Park (2001) 90 Cal.App.4™ 919, 927]. A valid contract must be alleged and the implied covenant “cannot be extended to create obligations not contemplated by the contract.” Racine v. Laramie v. D epartment of Parks and Recreation, (1992) 11 Cal.App.4™ 1026, 1031-32. Further, the implied covenant “will not be read into a contract to prohibit a party from doing that which is expressly permitted by the agreementitself.” Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4™" 1107, 1120. Here, as detailed above, Plaintiff has failed to allege a breach of contract against N ationstar. Without an underlying breach of contract, Plaintiff's claim for breach of covenant of good faith and fair dealing fails. Spinks, supra, 171 Cal.A pp.4™" at 1054. The demurrer to the fifth cause of action for breach of covenant of good faith and fair dealing should be sustained without leave to amend. X. PLAINTIFF'S SEVENTH CAUSE OF ACTION FOR REFORMATION FAILS BECAUSE PLAINTIFF HAS NO STANDING TO REFORM A CONTRACT SHE WAS NOT A PARTY TO AND PLAINTIFF HASFAILED TO NAME THE OTHER PARTY TO THE CONTRACT Plaintiff's seventh cause of action seeks to reform the Promissory Note to add Plaintiff to the Promissory Note. (Cplt 19 61-67.) Plaintiff admits only Samer Kurd-Misto signed the Promissory Note. (Cplt 9 64, Exhibit 7 [“This note is ONLY signed by Samer Kurd-Misto.”). Plaintiff cannot reform a contract she was not a party to and Plaintiff has failed to name Samer Kurd-Misto to this claim. In addition, the reformation claim is time barred. “When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value.” Cal. Civ. Code §3399. T he statute of limitations for fraud or mistake is three years. Cal. Code Civ. Proc. § 338(d). To state a claim for reformation, a plaintiff must plead that the language of the writing failed, for some reason, to express intention of the parties. Phillips Med. Capital LLC v. Medical Insights Diagnostics Centers, Inc. (N.D. Cal. Jan. 26, 2007), 471 -12- NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o F.Supp.2d 1035, 1046-47, citing to Pascoe v. Morrison (1933) 210 Cal. 54, 56 (“A complaint for the reformation of a contract should allege what the real agreement was, what the agreement as reduced to writing was, and where the writing fails to embody the real agreement. It is also necessary to aver facts showing how the mistake was made, whose mistake it was, and what brought it about, so that mutuality may appear.”). “Basic to a cause of action for reformation is a showing of a definite intention or agreement on which the minds of the parties had met which pre- existed and conflicted with the instrument in question.” Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 21. “Reformation for unilateral mistake is not available unless the mistake of one party was known or suspected by the other party at the time of the execution of the document.[citation omitted]” Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4" 964, 985; accord, La Mancha Dev. Corp. v. Sheegog (1978) 78 Cal.App.3d 9, 16; Spiegler v. Home Depot U.S.A., Inc. (C.D. Cal. 2008) 552 F.Supp.2d 1036, 1055 (motion to dismiss claim for reformation granted where “defendants did not share plaintiffs’ misconception.”), citing to Bailard v. Marden (1951) 36 Cal.2d 703, 708 (“Courts of equity have no power to make new contracts for the parties,... [Nor] can they reform an instrument according to terms in which one of the parties understood it, unless it appears that the other party also had the same understanding.”) Here, Plaintiff's claim for reformation is barred by the three year statute of limitations for fraud or mistake. Code Civ. Proc. § 338(d). Plaintiff alleges she discovered the mistake on January 8, 2015 but she has failed to allege facts to support equitable tolling. (Cplt 9 67.) Plaintiff was on actual notice when the Deed of Trust and Promissory Note were executed on April 28, 2008. (Exhibit 2 to Cplt.) Thus, Plaintiff had until April 28, 2011 to file this claim for reformation. Code Civ. Proc. §338(d). Further, Plaintiff fails to allege anything that “would reflect this new and different agreement or that would have put [Nationstar] on notice of plaintiff's understanding.” Spiegler, supra, 552 F.Supp.2d at 1055. This is fatal to the reformation claim. Id. Plaintiff has no standing to reform a contract she was not a party to because a third party has no standing to reform a contract. American Homes Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, 969 (Court of Appeal for Second District of California affirmed demurrer sustained without leave to amend by defendant where plaintiff, a third party to contract, sought -13- NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o reformation of the contract between defendant and another party-Court held insurance company plaintiff did not have standing to seek reformation of insurance contract in order to include one of its assureds as an insured under the contract.); Morning Star Packing Co., L.P. v. Crown Cork & Seal Co. (USA), Inc. (9® Cir. Dec. 10, 2008) 303 Fed.A ppx. 399, 401 (“court of equity can neither add additional parties nor substitute other parties for those already appearing upon the face of the writing..."”); see also Mabb v. Merriam (1900) 129 Cal. 663, 664 (California Supreme Court refused to reform a contract to add a new party for one already appearing on the face of the contract.) Here, Plaintiff was not a party to the Promissory Note but is seeking to reform the Promissory Note to add herself as a party. (Cplt § 64.) Plaintiff as a third party has no standing to reform the Promissory Note. American Homes Ins. Co, supra, 122 Cal.App.3d at 969. The demurrer to the seventh cause of action for reformation should be sustained without leave to amend. XI. PLAINTIFF'S EIGHTH CAUSE OF ACTION FOR WRONGUL FORECLOSURE FAILS BECAUSE IT IS NOT RIPE OR PREMATURE BECAUSE THERE HAS BEEN NO FORECLOSURE SALE TO DATE AND IT ALSO FAILSFORLACK OF TENDER Plaintiff's eighth cause of action alleges a wrongful foreclosure. (Cplt 19 68-78.) To assert a claim for wrongful foreclosure, Borrowers must allege that “(1) defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) Borrower suffered prejudice or harm; and (3) Borrower tendered the amount of the secured indebtedness or w[as] excused from tendering.” Chavez v. Indymac Mortg. Servs (2013) 219 Cal.App. 4" 1052, 1062. Here, there has been no sale yet or even a notice of sale, Borrower merely alleges an “attempted” foreclosure, so a claim for wrongful foreclosure without an actual foreclosure (i.e. sale) is premature and not even ripe. Id. Second, Borrower has failed to allege any prejudice or harm due to any failure to comply with the various statutes alleged. Knapp v. Doherty (2004) 123 Cal.App.4™ 76, 86 fn. 4 (A Borrower alleging procedural irregularity under Civil Code 2924 et seq. must “plead[] and prove[] an improper procedure and resulting prejudice.”; premature notice of sale and inaccuracy in date of default did not invalidate foreclosure). Third, Borrower has failed to allege a tender of the debt owed. “When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for -14- NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o wrongful foreclosure.” Alicea v. GE Money Bank (N.D.Cal.2009) 2009 WL 2136969, at *3; Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 579. (the tender rule applies to all causes of action implicitly integrated with the sale.) Fourth, Plaintiff's allegation of a violation of Civil Code § 2923.55 fails as pled. Plaintiff fails to even specify which lender or defendant, Nationstar or Union Bank, violated the statute. Notwithstanding, there is a declaration attached to the NOD that indicates Nationstar did make contact consistent with 2923.55 prior to recording the NOD. (Exhibit C to RJN.) When a Plaintiff fails to provide non-conclusory allegations that contradict the notice of default declaration, dismissal of a 2923.55 claim is warranted. Maguca v. Aurora Loan Servs. (C.D. Cal. Oct. 28, 2009) 2009 WL 3467750 *2 (Borrower's conclusory allegations failed to controvert the statements contained in the defendant's notice of default declaration); Henderson v. Ocwen Loan Services, LLC (N.D. Cal. Oct. 27, 2014) 2014 WL 5461955 *4 (2923.55 claim dismissed because notice of default contains declaration that tracks language of 2923.55.); Major v. Wells Fargo Bank, N.A. (S.D. Cal. Aug. 18, 2014) 2014 WL 4103936 * 3 (2923.55 claim dismissed because Borrowers have asserted no facts that, if proven, would prove the declaration false; declaration sufficient to establish that lender complied with statute). Plaintiff's allegations here are conclusory and provide no facts to dispute the declaration. (Cplt 99 71-72, Exhibit D to RJN.) The demurrer should be sustained. M aguca, supra, at 2009 WL 3467750 *2. Thus, the allegations of an “attempted wrongful foreclosure” in support of the eighth cause of action fail. The demurrer to the eighth cause of action should be sustained without leave to amend. XII. CONCLUSION For all the foregoing reasons, defendant respectfully requests the Court sustain the demurer in its entirety and only allow leave to amend as to those causes of action the Court deems could possibly be cured. Dated: October 12, 2017 BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP By: Chris C. Chapman Attorneys for Defendant, NATIONSTAR MORTGAGE LLC -15- NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o CERTIFICATE OF SERVICE (CCP 1013a, 2015.5, FRCP 5(d)) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES |, Cynthia Barigas, hereby certify that on October 12, 2017, a true and correct copy of NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; DECLARATION RE: MEET AND CONFER PER CCP §430.41(a)(3)(B); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT was filed electronically and is available for viewing and downloading from the ECF system. Unless noted with asterisk (*) below, the following parties are deemed to have consente to electronic service of documents filed through the ECF system: Lawrence Hoodack, Esq. Attorneys for Plaintiff LAW OFFICES OF LAWRENCE HOODACK Souzan Baaj P.O. Box 28514 Anaheim, CA 92809 Telephone: (714) 634-2030 Facsimile: (714) 685-6719 Email: hoodack4@ hotmail.com * VIA U.S. MAIL - PREPAID FIRST CLASS | served the aforesaid listed part(ies) designated with an asterisk (*) with the envelope for collection and mailing following ordinary practices. | am readily familiar with the firm's practice of collection and processing of correspondence for mailing with the United States Postal Service. Under that practice it would be deposited with the United States Postal Service on that same day with postage fully prepaid at Diamond Bar, California in the ordinary course of business. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in this declaration. Executed on October 12, 2017, at Diamond Bar, California. | declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Cynt ES PROOF OF SERVICE 1 d Contents 1. INTRODUCTIONo.ooesseesses sessessesessesnee 1 I. FACTUAL BACKGROUND .........coooiiiiiiiiss1 © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o VI. VII. VIII. THERE ISA DEFECT OR NON-JOINDER OF PARTIES BECAUSE PLAINTIFF'S CAUSE OF ACTION TO QUIET TITLE AND REFORM THE DEED OF TRUST REQUIRE PLAINTIFF TO NAME SAMER-KURD MISTO AS PARTY FOR THE RELIEF REQUESTED IN AT LEAST THESE TWO CLAIMS IF NOT THE OTHERS ASWELLooo2 PLAINTIFF'S FIRST CAUSE OF ACTION FOR QUIET TITLE FAILS BECAUSE THERE ISNO ADVERSE CLAIM TO TITLE BY DEFENDANT NATIONSTAR SUFFICIENT TO QUIET TITLE AND LACK OF TENDER.........cooiii3 PLAINTIFF'S SECOND CAUSE OF ACTION FOR DECLARATORY RELIEF FAILS BECAUSE PLAINTIFF HAS FAILED TO ALLEGE ANY FACTS AGAINST NATIONSTAR TO SUPPORT A JUDICIAL DECLARATION OF THE RIGHTS OF THE PARTIES AND THE CLAIM ISDERIVATIVE AND DUPLICATIVE OF THE OTHER FAILED CLAIMS ..........ccoiiii, 5 PLAINTIFF'STHIRD CAUSE OF ACTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND PERMANENT INJUNCTION FAILSBECAUSE IT ISA REMEDY NOT A STAND ALONE CLAIM .......coiiiiiss1 PLAINTIFFS’ FOURTH CAUSE OF ACTION FOR VIOLATIONS OF BUSINESS AND PROFESSIONS CODE § 17200 FAILS BECAUSE IT ISDUPLICATIVE OF THE OTHER FAILED CAUSES OF ACTION AND PLAINTIFF LACKS STANDING .........coooiniiiiiiis 1 THE SIXTH CAUSE OF ACTION FOR BREACH OF CONTRACT FAILS BECAUSE PLAINTIFF ADMITS SHE ISNOT A PARTY TO THE PROMISSORY NOTE ALLEGEDLY BREACHED AND HAS FAILED TO SPECIALLY PLEAD EXCUSES...10 PLAINTIFF'S FIFTH CAUSE OF ACTION FOR BREACH OF COVENANT OF GOOD FAITH AND FAIR DEALING FAILS BECAUSE PLAINTIFF HAS FAILED TO ALLEGE AN UNDERLYING BREACH OF CONTRACT AGAINST NATIONSTAR c11 PLAINTIFF'SSEVENTH CAUSE OF ACTION FOR REFORMATION FAILS BECAUSE PLAINTIFF HAS NO STANDING TO REFORM A CONTRACT SHE WAS NOT A PARTY TO AND PLAINTIFF HAS FAILED TO NAME THE OTHER PARTY TO THE CONTRACT .....cooiiiiiisre12 © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o XI. PLAINTIFF'SEITH CAUSE OF ACTION FOR WRONGFUL FORECLOSURE FAILS BECAUSE IT ISNOT RIPE OR PREMATURE BECAUSE THRE HAS BEEN NO FORECLOSURE SALE TO DATE AND IT ALSO FAILSFOR LACK OF TENDER..........14 XI. CONCLUSION...14 © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o TABLE OF AUTHORITIES Cases Alicea v. GE Money Bank (N.D.Cal.2009) 2009 WL 2136969 .........ccoeevrieviiereiecnie creer, 14 Alicea v. GE Money Bank (N.D.Cal.2009) 2009 WL 2136969, at *3 .......cccceevvvieeiiircieircie sien, 14 American Homes Ins. Co, supra, 122 Cal.App.3d at969...eis14 American1 omes Ins. Co. v. Travelers Indemnity Co. (1981) 122 Cal.App.3d 951, 13 Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal.App.3d 1, 21 ...cccovvvvvinnnnen, 13 Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 579....cccccvviiivniiniciviinnnnn, 14 A ULhOrity NOL AVAIADIE.ceeeeeeeeree rer 6 Babb v. Superior Court, (1971) 3 Cal.3d 841, 848 ........ccocericeee5 Babb v. Superior Court, (1971) 3 Cal.3d 841, 848 ........ccocericeee5 Bailard v. Marden (1951) 36 Cal.2d 703, 708 ........coiieiiiiiiieiesissteerer sbeebs 13 Ball v. F leetBoston Financial Corp. (2008) 164 Cal.Ap.4" 794, 800 ......cccceevervrerierernrierieenennn, 6 Ball v. F leetBoston Financial Corp. (2008) 164 Cal.App.4™ 794, 800 .......c.cccoevvvrercevernrierreerenne, 6 Briososv. Wells Fargo Bank, 2010 WL 3341043, at *12 (N.D.Cal. August 25, L010) titties r 4 Briosos v. Wells Fargo Bank, 2010 WL 3341043, at *12 (N.D.Cal. August 25, 2000)1.1erent4 Cadlo v. Owens-Illinois, Inc. (2004) 125 Cal.App.4" 513, 519covers,8 Camilo v. Wash. Mut. Bank, F.A., (E.D. Cal. Oct. 27,2009) WL 3614793, *13 ......cccovrvrvrrrrrnnnn. 6 Camilo v. Wash. Mut. Bank, F.A., (E.D. Cal. Oct. 27,2009) WL 3614793, *13 ......cccovrvrvrrrrrnnnn. 6 Canova v. Trs. of Imperial Irrigation Dist. Employee Pension Plan, (2007) 150 CalADDAN TABT, TAT o.ooeevee eses eee eevee reese eee ss sees sees senses ee sees essen anes 5 Canova v. Trs. of Imperial Irrigation Dist. Employee Pension Plan, (2007) 150 CalADDAN TABT, TAT o.ooeevee eses eee eevee reese eee ss sees sees senses ee sees essen anes 5 Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530 (1984)......cccovvivriiirvniiinnnnns 7 Cedars-Sinai Medical Center v. Shewry (2006) 137 Cal.App.4" 964, 985 .......cccovevvvrerierrrrnrenne, 13 Cel-Tech Commc’ns, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal .4™" 103, 180... ceueeeeseses s re7 Cel-Tech, supra, 20 Cal.4™ at 180......ccccuvieerieieei cesses estes setesssestes 8 © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Chabner v. United Omaha Life Ins. Co. (91 Cir. 2000) 225 F.3d 1042, 1048.......ccocoevcveeeeeerernns 7 Chavez v. Bank of America, N.A., (E.D.Cal., 2010) 2010 WL 1854087, *16.......ccececvrrrererrrnrunnes 5 Chavez v. Indymac Mortg. Servs (2013) 219 Cal.App. 411052, 1062........ccccevvrrrervererierrrenrnnnn, 14 Chavez v. Indymac Mortg. Servs., 219 Cal.App. 47 1052, 1062 (2013).....cccevvrvrrrerrererierrrenrennn, 14 Code Civ. Proc. § 338(d) «overeerre13 C0dE CIV. ProC. 8338(0)wrest13 County of San Diego v. California, (2008) 164 Cal.A pp.4" 580, 607 ......cocvvveerrrersieinrceiriienennn, 5 County of San Diego v. California, (2008) 164 Cal.A pp.4" 580, 607 ......cocvvveerrrersieinrceiriienennn, 5 Day v. AT&T Corp. (1998) 63 Cal.APP.4™ 325, 340 ....cvcuieieieiiercesiereeeetenses sessea 9 Del EOhis Fargo Bank, N.A., 2011 WL 311376, at *9 (N.D. Cal. Jan. 28, 5 Dreamweaver Andalusians, LLC v. Prudential Ins. Co. ofAmerica (2015) 234 CalAPP.AT 1168, 1174... co vv coe coe ee ee es ee eee eee ee eee ee ee eee ee ee ee ae arn 022 Duenasv. Ocwen Loan Servicing, LLC (E.D. Cal. Sept. 16, 2014) 2014 WL AB27203 AEX 14 ii9 Durell v. Sharp Healthcare (2010) 183 Cal.App.4™ 1350, 1367 ..c.cccvvvveverereeisieies eee, 10,11 Durell, supra, 183 Cal.APP.AT at 1367 ...cocvieviieiieecessesseesesetesses 11 Fairchild v. Park (2001) 90 Cal.AppP.4™ 919, 927...cesseseresesses 12 Gafcon, Inc. v. Ponsor & Assocs., (2002) 98 Cal.App.4™ 1388, 1404.........cccocvvvvreeesienrieirieeneennn, 5 Gafcon, Inc. v. Ponsor & Assocs., (2002) 98 Cal.App.4™ 1388, 1404.........cccocvvvvreeesienrieirieeneennn, 5 Garcia, supra, 2015 WL 534395 at *8 ......coiiiciiecercescenessreeree rene 9 Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305......ccccviviiiiiiieniiiiesiieinennes 10,11 Gautier v. General Tel. Co., 234 Cal.App.2d 302, 305 (1965) .....ccccvrvrriiiriiniiniiiinsiiennenns 10,11 Gen. of Am. Ins. Co. v. Lilly, (2009) 258 Cal.App.2d 465, 470 .......ccccvieriiiiiiiiiienisin 6 Gen. of Am. Ins. Co. v. Lilly, (2009) 258 Cal.App.2d 465, 470 .......ccccvieriiiiiiiiiienisin 6 Gen. of Am. Ins. Co., 258 CalLAPP.2d GE 470 ....c.iiiciececececesree seers eres ree 6 Glue-Fold, Inc. v. Slautterback Corp. (Cal. Ct. App. 2000) 82 Cal.A pp. 4" 1018, L023e eREEEEEE EE6 Guessosv. Chrome Hearts, LLC, 179 Cal.A pp.4th 1177, 1187 (2009) ......cccccvivriinriniiirinisieinnnns 7 Hall v. Time, Inc. (2008) 158 Cal.AppP.A4™ 847, 849.......covveiieiiriee cesseseesti 8 Hall, supra, 158 CalAPP.AT Gt 849 o.oocessesstents 10 -iv- © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Henderson v. Ocwen Loan Services, LLC (N.D. Cal. Oct. 27, 2014) 2014 WL BABLO5SHA...bbs15 Hernandez, supra, 2015 WL 3914741 at * 10 ...cccoiiieiiiiiiiecercasree 9 Hood v. Superior Court, (1995) 33 Cal.ApPpP.4% 319, 324.....c.ccvvevieeereeeeee eeeessere, 6 Hood v. Superior Court, (1995) 33 Cal.ApPpP.4% 319, 324.....c.ccvvevieeereeeeee eeeessere, 6 H00d, 33 CalLAPP.AT E324...essesestersesses estesestes 6 Hood, 33 Cal.App.4" at 324; Gen. ofAm. Ins. Co., 258 Cal.App.2d at 470.....cccvvvvvvverierrrrernae, 6 In Re River Valley Fitness 297 B.R. 354 (Bankr. D.N.H. 2003) ......ccccceiiiiiiniiiiriecrs 7 Jenkins v. JPMorgan Chase Bank, N.A., 216 Cal. App.4" 497, 522 (2013)....cccevvvrereeierrnrnrnnnne, 8,9 Kelley v. Mort. Elec. Registration Sys., 642 F.Supp.2d 1048, 1057 (N.D.Cal.2009) ......c..ccevenvene. 5 Khan v. CitiMortgage, Inc., 975 F.Supp.2d 1127, 1144 ......cocoviriieiciececesees 10 Khan, supra, 975 F.SUPP.2d at 1144 .......ccoiiiiieiriiiecessesrerenas 10 Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4" 612, 619.......ccovviivrrrieereieeceric, 8 Kimball v. Flagstar Bank F.S.B., (5.D.Cal.2012) 881 F.Supp.2d 1209, 1220.......ccccvvvrvrirrvrvinnns 6 Kimball v. Flagstar Bank F.S.B., (5.D.Cal.2012) 881 F.Supp.2d 1209, 1220.......ccccvvvrvrirrvrvinnns 6 Knapp v. Doherty (2004) 123 Cal.APP.AT 76, 86 ....c.cuvveveiieeiviiei seerseeeesses 14 Knapp v. Doherty (2004) 123 Cal.AppP.4™ 76, 86 TN. 4....veveiee cesseseresees 14 Kozhayev v. America's Wholesale Lender, 2010 WL 3036001, at *5.....c.cceevviiiiiiciiicie ice, 4 Kozhayev v. America's Wholesale Lender, 2010 WL 3036001, at *5 (E.D.Cal. AUGUSE 2, 2000)viii4,5 La Mancha Dev. Corp. v. Sheegog (1978) 78 CallApp.3d 9, 16 ..oovvvvvveviciiiveins 13 Lazar v. Superior Court (1996) 12 Cal.A pp.4M 631, 645 ....vvvvveeviesrerceeieee eeeesses, 8 Lazar, 12 CalAAPD.AT GE B45...cessesbsssnes 8 Levy v. State Farm Mut. Auto Ins. Co. (2007) 150 Cal.APPA" 1, 5..vevevcieerceees cess eeeeis 10 Levy v. State Farm Mut. Auto Ins. Co., 150 Cal.App.4™ 1, 5 (2007) covvevevererieiieerieisieeseeiesersnns 10 Mabb v. Merriam (1900) 129 Cal. 663, 664 ........ccooivieiieiiiiiieessbeebs 14 Maguca v. Aurora Loan Servs. (C.D. Cal. Oct. 28, 2009) 2009 WL 3467750 *2.....c.cccevevevrnen. 15 Maguca, supra, at 2009 WL 3467750 *2....ccociiiiiiiiicieiee sesseseresreesree 15 Major v. Wells Fargo Bank, N.A. (S.D. Cal. Aug. 18, 2014) 2014 WL 4103936 * 3 .................. 15 © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o McDonald v. Coldwell Banker (9™ Cir. 2008) 543 F.3d 498, 506 .......c.cvocvvvereerreerseieersressrerens 7,8 McGuire v. Recontrust Co., N.A., 2012 WL 4510675, * 5 (E.D.Cal.2012).....ccccevvriennririins 4 Morning Star Packing Co., L.P. v. Crown Cork & Seal Co. (USA), Inc. (9Cir. Dec. 10, 2008) 303 Fed.AppX. 399, 401 .....cooiivi i14 Newman v. Cornelius, 3 Cal.Ap.3d 279, 284 (1970) ....coeieviiiececeees4 Nguyen v. |P Morgan Chase Bank (C.D. Cal. Feb. 1, 2012) 2012 WL 294936, at *4................... 6 Nguyen, supra, 2012 WL 294936, al 4 .....ccooiiiiiiceccerisers6 OrrillAortgage, Inc. (Cal. Ct. App. Sept. 28, 2015) 2015 WL 5684840, at 5 Otworth v. S. Pac. Transp. Co. (1985) 166 Cal.App.3d 452, 459 ......cccvvviiiiiiieiiieisie seein 11 Pascoe v. Morrison (1933) 210 Cal. 54, 56 ......cccoieiiiriiieiericie res12 People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 530........ccccevvevnn. 8 People v. Casa Blanca Convalescent Homes, Inc., 159 Cal.App.3d 509, 530 (1984).......c..cccvevunn. 7 Permpoon v. Wells Fargo Bank Nat'l Ass'n, (5.D.Cal.2009) WL 3214321, at *5......cccccveveivennnne. 6 Permpoon v. Wells Fargo Bank Nat'l Ass'n, (5.D.Cal.2009) WL 3214321, at *5......cccccveveivennnne. 6 Phillips Med. Capital LLC v. Medical Insights Diagnostics Centers, Inc. (N.D. Cal. Jan. 26, 2007), 471 F.SUpp.2d 1035, 1046-47 ......oovvvreeeereeesereeeeeereeseeeesseesese esse eeeses 12 Pry Corp. of America v. Leach, (1960) 117 Cal.App.2d 632, 639-40 ........ccoevvviiviiiiinniiisiinnns 10 Pry Corp. of America v. Leach, 117 Cal.App.2d 632, 639-40 (1960) ........ccoevvvirnriniririsiieinens 10 Racine v. Laramie v. Department of Parks and Recreation, (1992) 11 Cal.A pp.4™" 1026, 1031-32. 1ucuiuiuiririririsesesesesesesasesasesasasasesaseses esas erases erases eres eres eres eraser eRe rarernens 12 Racine v. Laramie v. Department of Parks and Recreation, 11 Cal.A pp.4™ 1026, 1031-32 (1992) 1ovvivieiririresereresesesasasasasasas ares erasers asasas esas esas esas eres s resererannenn 12 Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F.Supp.2d 952, 975 (N.D.Cal.2010).......c..cccvevunn. 5 Saldate v. Wilshire Credit Corp., 711 F.Supp.2d 1126, 1138 (2010) ....cceovvvvviirriiinircise seein 8 Santos v. Countrywide Home Loans, 2009 WL 3756337, at *4 .....ccccecviivcieicieices, 5 Santos v. Countrywide Home Loans, 2009 WL 3756337, at *4 (E.D.Cal. Nov.6, 2009)...rere5 Shimpones v. Stickney, 219 Cal. 637, 649, 28 P.2d 673 (1934)cocoon,4 Smith v. State Farm Mutual Automobile Inc. Co. (2001) 93 Cal.App.4" 700, 718 .....ccoocvvevrrrernnes 7 Spiegler v. Home Depot U.S.A., Inc. (C.D. Cal. 2008) 552 F.Supp.2d 1036, 1055.......c..cocvunee. 13 -Vi- © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o Spiegler, supra, 552 F.SUPP.2d at 1055o.oo13 Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.A pp.4™ 1004, L054eee-----------_-_-_-_ 11,12 Spinks, supra, 171 Cal.ApPP.AT at 1054 ......cvoiiciiecieecessesesetsneer 12 Sybersound Records, Inc. v. UAV Corp. (9Cir. 2008) 517 F.3d 1137, 1151-52....cccevvveriirrrnee. 8 Sybersound, supra, 517 F.3d @tL151-52....ccciiiiicicecccseerre 8 Telesaurus VPC, LLC v. Power (9Cir. 2010) 623 F.3d 998, 1003 .......cccvvrrvrrvrreemerisrienrernnenn, 15 The Rutter Group California Practice Guide: Civil Procedure Before Trial, Chapter 2:155 (2017) ov cre ces ce ct ee ce ct ee ces cet ie erie ee eea ee ees een neean 22 Troyk v. Farmers Group, Inc. (2009) 171 Cal.A p.4™ 1305, 1352 ...cccvieveviiierirsce cesses een, 10 Troyk v. Farmers Group, Inc., 171 Cal.A p.4™ 1305, 1352 (2009) ......cccevvrrervirniceiesieisiee seine, 10 Vega v. |PMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1120-21 (E.D.CAl.2009) ....viieiiiiis 4 Vega v. JPMorgan Chase Bank, N.A., 654 F.Supp.2d 1104, 1120-21(E.D.Cal.2009) .................. 4 Watson v. MTC Financial, Inc., 2009 WL 2151782 (E.D.Cal., 2009) .....ccceoirrirriiiiiiree cei, 5 Wolfv. Walt Disney Pictures & Television (2008) 162 Cal.App.4" 1107, 1120.......ccccervvrrvrerneee. 12 Y aghouplam v. Lehman Brothers Bank (C.D. Cal. Feb. 3, 2016) 2016 WL 447792 . Yaghoubiam, supra, 2016 WL 447792 *3 o.ooceceseensree sree erase erasers 4 Faghoublan v. Lehman Bros. Bank (C.D. Cal. Feb. 3, 2016) 2016 WL 447792, at . Statutes Cal. BUS. & Prof. COAE § 17200 .....cocoovoieriiiiiiieei sess eceeesesesrereeesnenenenes 6, 7 Cal. BUS. & Prof. CoAe § 17204 ......ooieee8 Cal. Code Civ. Proc. § 761.020 ......cccooveririiiiieeenesses2 Cal. Code Civ. Proc. § 761.020(C) cuvvivieiiiiiiie itiessteerersbeebs setae sb esrb eraser rs 2,3 Cal. CIV. COU 83399i i13 Cal. Code Civ. Proc. § 338d) .iocviiiiiciiiiiecriecreererste sbeebs ras sbeebs eben erases 13 CIV. COUE § 1550 .....uiuieiiieieiiisieiieeciseesesses bese h ehh ebbessere 10 Code Civ. Proc. § 338(d) «overeerre14 COE CIV. PTOC. § 389i e2 -Vii- © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P P c o ~ N o o u i A W w W N N F P O O V 0 0 N N o o u l B A W N O- -, o O o (Oo[= OOA Tal TCT[I2 COA CIV. ProC. § 336(0)(2) cvvvevvieiieieiiiie itis eres sites ste es ssbe es sbbe es snb ees sbb ess sbb ees sbbeesnbee estes esses enrseees 11 LaoI ON AV loTal 4)7TR2 LaoIOAV doTal KT)LL T2,3 viii-