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LAW & MOTION CALENDAR
LAW & MOTION CALENDAR
Wednesday, December 4, 2013, 3:00 p.m.
Courtroom 17 – Hon. Gary Nadler
3035 Cleveland Avenue, Suite 200, Santa Rosa
PLEASE NOTE: Any party that timely requests oral argument by 4:00 p.m. on Tuesday, December 3, or if the tentative ruling requires appearances, those matters will be heard on Friday, December 6, 2013 at 2:00 p.m. Telephonic appearances will be permitted.
CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances. Please contact CourtCall directly at (888) 882-6878.
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, December 3, 2013. Parties in small claims cases and motions for claims of exemption are exempt from this requirement.
1. MCV-181759, Workmen’s Auto Insurance Company v. Banuelos
Appearance required on Fri., Dec. 6, 2013, at 2:00 p.m.
2. MCV-223572, Main Street Acquisition Corp v. Velasquez
Defendant’s motion to quash service of summons and to set aside default and default judgment is granted. The evidence presented, in conjunction with Plaintiff’s proof of service, indicate that Defendant was not actually served with a summons and complaint and that she did not know of the lawsuit in time to defend it.
3. MCV-225215, BH Financial Services, Inc. v. Milleryoust
Plaintiff’s motion for judgment on the pleadings is granted. Here, based upon the judicially noticeable requests for admissions and the court order deeming these admitted, moving party has achieved its burden.
4. SCV-252122, Iniguez v. Citimortgage, Inc.
CONTINUED to Wed., Jan. 15, 2014, 3:00 p.m., Courtroom 16, per agreement of the parties.
5. SCV-253303, American Express Bank v. Pappas
Plaintiff’s motion for summary judgment is denied. Although Plaintiff meets its burden in establishing the elements of the cause of action, Defendant raises triable material issues by demonstrating that he never entered into an agreement with Plaintiff, never received billing statements, and has no record of receiving goods or services. Pappas Dec.; Facts 1-20.
6. SCV-253672, Godina v. Bank of America
Defendants’ demurrer to Plaintiff’s first amended complaint is sustained without leave to amend.
The court grants Defendants’ request for judicial notice.
A key basis for the complaint is Plaintiff’s claim that Defendants lack authority to foreclose because the Note has been sold off and are “strangers” to the transaction. Defendants argue that courts have rejected this claim and it is inapplicable.
Plaintiff may be able to bring such a claim, but Defendants correctly argue that Plaintiff’s allegations here are insufficient. A foreclosing entity need not show actual authorization, and the burden is on Plaintiff to allege something that actually negates authority to foreclose. Also, courts have generally found that securitization of a Note does not in of itself invalidate a foreclosure. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 267.
This does not mean that a plaintiff cannot allege lack of ownership, but plaintiff must do more than claim ignorance or suspicion. Plaintiff must allege actual facts showing lack of authority or interest allowing defendant to foreclose. Gomes v. Countrywide Home Loans (2001) 192 Cal.App.4th 1149; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256.
Here, Plaintiff’s allegations are exceedingly vague and conclusory. He repeatedly claims lack of authority due to the Note being sold off or securitized, and MERS being only the nominee of the beneficiary rather than the true beneficiary. Plaintiff, however, makes only a jumbled and unclear, a very vague, string of conclusory allegations. This is insufficient to demonstrate any actual lack of authority. This issue affects all of Plaintiff’s causes of action.
The first cause of action for unfair business practices survives only if any other cause of action survives.
Defendants argue that Plaintiff’s fraud causes of action both fail because Plaintiff alleges no misrepresentation or other fraudulent conduct on which Plaintiff relied to his detriment. Despite the different titles in the complaint, this covers both the second and third causes of action since the former, for violation of Civ. Code § 1572, is just another way of claiming fraud. The court disagrees with Defendants’ position. There is no misrepresentation, concealment, or false promise whatsoever towards Plaintiff, much less any inducing reliance by Plaintiff and his allegations about relying on misrepresentations do nothing more than make that vague, conclusory assertions without stating what the misrepresentation or reliance was.
With regard to the second cause of action for cancellation of a voidable contract, Plaintiff seeks to cancel the entire loan transaction because the entity which prepared the assignment of the deed of trust, MERS, was not registered in California and did not comply with Cal. Rev. & Tax. Code §§ 23304.1 or 23305a, and because of the same unspecified “misrepresentations” originally alleged.
As for the misrepresentations, although Plaintiff claims that Defendants made a misrepresentation on which he relied, there exists only one in the pleading – the alleged misrepresentation that the Notice of Breach that the beneficiary has executed a written Declaration of Default and Demand and deposited with its agent a deed of trust and all documents evidencing obligations secured thereby and demands the sums immediately due and payable. First Amended Complaint, ¶¶ 61-68. The court sees no apparent misrepresentation inducing Plaintiff to rely to his detriment, much less one that actually led to the problems claimed.
Beyond stating that “MERS was not registered in California,” Plaintiff here alleges only vague, conclusory statements that MERS has failed to comply with these statutes. Plaintiff’s allegation of failing to register in California is not alone sufficient if it is, for example, filed a tax return.
Notably, moreover, these statutes only render void any contract with the “taxpayer” corporation, in this case MERS. Plaintiff’s own allegations make it very clear that he has not entered into any contract with MERS. All that MERS allegedly did was prepare or record documents. It did not enter into a contract with Plaintiff and thus even MERS’ violation of these statutes would appear to have no bearing on any contract at issue here.
As for the third cause of action alleging violation of Civ. Code §§ 2923.5 and 2924, Plaintiff’s allegations here also fail. He alleges that the declaration is not under oath, but this is, as noted above, not necessary. He also claims that the declaration is “false” but does not explain why or give any facts showing that it is false or in what way.
The demurrer is sustained without leave to amend. This amended complaint is nearly identical to the original complaint as to which a demurrer was sustained.
7. SCV-254359, Lanz v. Goldstone
Plaintiff’s motion for order allowing Plaintiff to conduct deposition of Defendant is granted.
Defendant opposes this motion, arguing that he has a “fundamental right” not to be “dragged” through discovery and that Plaintiff has failed to meet the good cause standard. While the filing of the special motion to strike (“SLAPP”) automatically stays discovery, discovery may proceed pursuant to court order for good cause shown. This good cause would require the plaintiff to make a prima facie showing of a viable claim in this instance. Here, Plaintiff alleges malicious prosecution. There is a sufficient showing that the cross-complaint asserted against Plaintiff lacked probable cause and terminated in favor of Plaintiff.