Demurrer (Judge Theodore C. Zayner)


Case Name: ?? Kwong, et al. v. Bank of America, N.A., et al.

Case No.:??????? 16CV290078

This is a wrongful foreclosure action for damages. In the complaint, plaintiffs Suzanne Kwong and Simon Kwong (collectively, ?Plaintiffs?) assert causes of action against defendants Bank of America, N.A. (?BANA?), Recontrust Company, N.A. (?Recontrust?), and Wells Fargo Bank, N.A., As Trustee for Banc of America Funding Corporation Mortgage Pass-Through Certificates Series 2007E (?Wells Fargo?), and Does 1 through 10 (collectively, ?Defendants?) for: (1)?breach of contract; (2)?conversion; (3)?unjust enrichment; (4)?wrongful foreclosure; (5)?quiet title; (6) violation of Business and Professions Code section 17200 et seq.; and (7)?negligence. Plaintiffs allege that the court has jurisdiction because real property that is the subject of this action is located in this county. (Compl., ??7.) They further allege that BANA, Recontrust, and Wells Fargo are not natural persons, and Does 1 through 10 are persons whose capacities are unknown to Plaintiffs. (Id., ??4 & Attach.?4c.) Otherwise, Plaintiffs? complaint?which is a Judicial Council form complaint?does not contain supporting factual allegations.

BANA and Recontrust demur to the complaint as a whole and to each cause of action on the grounds of uncertainty and failure to state a claim. (See Code Civ. Proc. [?CCP?], ??430.10, subds.?(e)-(f).)

  1. Meet & Confer

In opposition, Plaintiffs contends that BANA and Recontrust did not meet and confer as required. A demurring party must submit a declaration that either describes the meet and confer efforts or states that the party who filed the subject pleading failed to respond to such efforts or otherwise did not meet and confer in good faith. (CCP, ??431.41, subd.?(a)(3).) BANA and Recontrust?s counsel submit a declaration showing that she attempted to meet and confer on several occasions between April?7,?2016 and April?26, 2016, and on each occasion, Plaintiffs? counsel responded by indicating she was unavailable. This is sufficient to satisfy the meet and confer requirement of CCP section 431.41. The Court will therefore consider the merits of the demurrer.

  1. Demurrer for Uncertainty

BANA and Recontrust argue that the demurrer for uncertainty should be sustained because Plaintiffs have not identified each party against which each cause of action is asserted. This argument lacks merit. ?Although inconvenient, annoying and inconsiderate,? if the lack of labels for causes of action does not substantially impair the defendant?s ability to understand the complaint, then a demurrer for uncertainty should be overruled. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn.2.) Here, the omission of such labels does not impair BANA and Recontrust?s ability to understand the complaint. BANA and Recontrust?s demurrer for uncertainty to the complaint as a whole and to each cause of action is therefore OVERRULED.

III.?????? Demurrer for Failure to State a Claim

In support of the demurrer, BANA and Recontrust contend that the demurrer for failure to state a claim should be sustained because Plaintiffs have not alleged any facts to support their claims.[1] This argument is well-taken. ?A demurrer tests only the legal sufficiency of the pleading.? (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47.) ?If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.? (Id., at p.?38.) ?To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.? (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) Since Plaintiffs have not alleged any facts, they have not pleaded sufficient facts to support any cause of action.

In the opposition papers, Plaintiffs assert various facts that are not set forth in the complaint. For example, Plaintiffs assert that they owned the subject property, and Wells Fargo and Recontrust foreclosed on the subject property based on void or voidable documents. (Plaintiffs? Opp?n, at p.?4:5-10.) On demurrer, courts only consider facts set forth in the complaint or subject to judicial notice. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also Hall v. Great Western Bank (1991) 231 Cal.App.3d 713, 719, fn.7.) The facts set forth in Plaintiffs? opposition are not set forth in the complaint or subject to judicial notice. Therefore, the facts set forth in the opposition cannot be considered on demurrer.

In light of the foregoing, the demurrer for failure to state a claim will be sustained. The remaining issue is whether to grant Plaintiffs? request for leave to amend to file the first amended complaint. ?If the plaintiff has not had an opportunity to amend the complaint in response to the demurrer, leave to amend is liberally allowed as a matter of fairness, unless the complaint shows on its face that it is incapable of amendment.?? (City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747.) Since Plaintiffs have not previously had an opportunity to amend the complaint in response to a demurrer and the face of the complaint does not show that it is incapable of amendment, leave to amend will be granted in this instance.

Accordingly, BANA and Recontrust?s demurrer to the complaint as a whole and each cause of action for failure to state a claim is SUSTAINED WITH 10 DAYS? LEAVE TO AMEND.

[1] Additionally, with the reply, BANA and Recontrust raise new arguments. The Court will not consider these arguments because Plaintiffs have not had the opportunity to respond to them. (See, e.g., American Indian Model Schools v. Oakland Unified School District (2014) 227 Cal.App.4th 258, 275-276.)