1) Demurrer to 2nd Amended Complaint ? SUSTAINED WITHOUT LEAVE TO AMEND
2) Motion to Strike Portions of 2nd Amended Complaint
The Court sustains the Demurrer by Defendants Wells Fargo Bank N.A., Mortgage Electronic Registration Systems Inc., and Deutsche Bank National Trust Company as trustee for Soundview Home Loan Trust 2006-WF2 to the Second Amended Complaint without leave to amend. ?In light of that ruling, the Motion to Strike is moot.
The Court grants Defendants? unopposed Request for Judicial Notice per Evid. Code ?? 452(h) and 452(d).
First Cause of Action for Negligence
The court previously found that no duty of care was alleged, the statute of limitations had run, and the conduct alleged is privileged.? The court finds that Plaintiffs still have not alleged a duty of care.? Further, Plaintiffs allegation that they ?did not become aware until on or about August 1, 2015 that Defendant Wells Fargo recorded a loan modification on April 2, 2008?? (SAC ? 52) is insufficient.
A plaintiff whose complaint shows on its face that its claim would be barred without the benefit of the discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. The burden is on the plaintiff to show diligence, and conclusory allegations will not withstand demurrer. E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1319; Cansino v Bank of America 224 Cal.App.4th 1462 (2014) (homeowners? allegation that they ?plaintiffs [now] realized,? or ?sometime in 2010? discovered the events is not sufficient for pleading).? The proper legal inquiry is not limited to when the discovery was made, but instead includes an analysis of when it should have been made with the exercise of reasonable diligence.? Plaintiffs have alleged no facts toshow inability to discover the recorded document prior to 2015.
In their Opposition, Plaintiffs argue that the negligent acts are ?continuing? because the improper accounting carried over.? Plaintiffs made this same unpersuasive argument in opposition to the Demurrer to the FAC.? The Court again finds that the alleged negligent act of recording the 2008 modification does not somehow repeat itself because the accounting in that modification was incorrect.
The burden is on Plaintiffs in their opposition to explain how they can amend to save this claim.? The plaintiff must show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. Medina v. Safe-Guard Products (2008) 164 CA4th 105, 112; Heritage Pac. Fin’l, LLC v. Monroy (2013) 215 CA4th 972, 994?court did not abuse discretion in denying leave to amend where, despite ample opportunity, plaintiff failed to demonstrate it could cure defect]
Here, Plaintiffs have not met their burden to show how they could amend to avoid the statute of limitations.? Plaintiffs again fail to plead facts showing reasonable diligence and the inability to discover the recorded document prior to 2015.
Further, with regard to the foreclosure sale in 2011 and the posting of a Notice to Vacate in connection with that sale, the litigation privilege immunizes defendants in any tort action, with the exception of malicious prosecution.? Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 211.? Further, the notice itself is dated June 24, 2011 and was posted at or near the time of the foreclosure in mid-2011.? Therefore, any claim based on that notice is time-barred.? Further, the bankruptcy court rescinded the sale by order dated November 2011 which lists counsel for Plaintiff. (The sale itself happened several months earlier in March 2011 (RJN, Ex. 11).? These events happened in 2011 and, again, are time-barred.? Plaintiffs have not met their burden to show how leave to amend could cure these defects.
Second Cause of Action for Breach of Contract
Plaintiffs allege that a breach occurred in 2008, when Defendants recorded a loan modification, but they did not ?become aware of it until they began to prepare for a lawsuit against Defendants in the fall of 2015?.? (SAC ?59.)? There are no facts alleged to show that Plaintiffs, with the exercise of reasonable diligence, could not have discovered the alleged breach ? especially because it was a recorded document. And Plaintiffs have been involved in litigation directly surrounding their home at least since 2011.
Further, Plaintiffs allege another breach in 2009, when Defendants received $5,330 from the City and misapplied the funds in the wrong order towards the loan. (SAC ?60).? In the body of the pleading, however, it is alleged that Mrs. Eriksson complained to Wells Fargo about this and got a call from the President in June 2009. (SAC ?26, see also Ex. C.) In their Opposition, Plaintiffs argue that the breach was ?continuing? because the running accounting kept indicating the incorrect amounts owed.? Therefore, they argue that there was an ?ongoing breach?.? The court finds this argument unpersuasive. A continued recitation of an incorrect accounting does not create a continuing breach of contact.
Moreover, Plaintiffs are unable to allege their performance of the contract because they missed loan payments in 2006 (SAC, ?16), before any alleged improperly filed loan modification agreement.? Finally, Plaintiffs still have not alleged tender.
Third Cause of Action for Wrongful Foreclosure ?Civ. Code ?2934(a)(2)(D) and 2924c
The Court previously held that Plaintiffs? conclusory statement that the sale was void is not enough to sustain a cause of action.? Plaintiffs? further attempt to allege that the assignment of the Deed of Trust is void is also insufficient.? This court rejects any reliance on Glaski v. Bank of America NA (2013) 218 Cal.App.4th 1079 here.
Moreover, Defendants argue that the assignment was in 2008, and Plaintiff offer no explanation as to why this is raised for the first time in 2015.? Plaintiffs fail to address this ?limitation argument in their Opposition.
Defendants are ordered to give notice of this ruling.
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3) Case Management Conference ?