Motion for Judgment on the Pleadings (Judge Ross Klein)

Case Number: TC028049??? Hearing Date: May 23, 2017??? Dept: S27

INTRODUCTION

Defendant Bank of? America N.A. (?Bank?) move for Judgment on the Pleadings on every Cause of Action in Plaintiff Carol Curry?s Second Amended Complaint for:

Fraud;
Financial Elder Abuse;
Breach of the Implied Good Faith Covenant;
Violations of the Homeowner?s Bill of Rights;
Negligence;
Unfair Business Practices;
Unfair Business Practices;
Intentional Infliction of Harm; and
Violation of Probate Code section 859.

REQUEST FOR JUDICIAL NOTICE
The Court grants Defendants? Request for Judicial Notice (?RJN?) in its entirety.? All 13 RJN documents were recorded and constitute public records.

FACTUAL ALLEGATIONS

Plaintiff alleges she is the successor of Alphaeus Springer and Successor Trustee of the Springer Trust dated December 20, 2012 (?The Trust”).

The pleading runs 77 pages and has 393 numbered paragraphs.? The Court necessarily abbreviates its summary to the essential facts.

The allegations discuss two separate loans.? Although a Notice of Default was recorded against the first loan, Exhibits to the Request for Judicial Notice reflect that notice was rescinded and a full reconveyance of the associated deed of trust was recorded. (RJN Exh. 7)

The second loan, a ?reverse mortgage? for $373,500, was taken by Mr. Springer as Trustee of the Trust.? A Deed of Trust was recorded on December 21, 2012. (RJN Exh. 8)

On June 10, 2015, a Notice of Default was recorded (RJN Exh. 10), reflecting a non-monetary default.? Mr. Springer had died and the property was not the principal residence of any surviving borrower.? The property was sold to a third party at a foreclosure sale.? A Trustee?s Deed Upon Sale was recorded November 20, 2015. (RJN Exh. 13)

Other facts will be detailed below as they relate to each Cause of Action.

STANDING
Bank contends that Plaintiff lacks standing to pursue any claim in the Second Amended Complaint.? It is axiomatic that litigation may only be maintained by the real party in interest.

To the extent that the pleading pertains to the first loan, Judicial Notice Exhibit 1 reflects that the loan was taken by Mr. Springer in his individual capacity.? Plaintiff was not a party to the contract.? Plaintiff has not made the necessary allegations to show she is the successor in interest to Mr. Springer.? Plaintiff has sued in her individual capacity and as Trustee of the Springer Trust, and there are no facts that she is a representative of the Springer estate.

Defendants fail to show that this is fatal to any of the Causes of Action ? i.e. that all Causes of Action depend on the first loan for viability.? The Court will not sustain the demurrer on this ground alone, but for purposes of this analysis, the Court concludes that Plaintiff has no standing to make claims based on the first loan or in her individual capacity and the demurrer will be sustained as to any Cause of Action where it appears the gravamen concerns the first loan.

In her opposition Plaintiff argues that Bank lacks standing to sue.? Her argument is difficult to understand.? Bank does not move as an intervenor but as a Defendant.? It has standing to move for Judgment on the Pleadings.

FRAUD

After a review of the First Cause of Action, the Court concludes that all allegations of fraud pertain to misrepresentation made to Mr. Springer with respect to the first loan and an associated application for loan modification.

The Court finds that the allegations are, in some respects, unintelligible and conclusory.? The allegations are insufficient as to corporate defendants.? The names, capacities, and authority of those making the alleged misrepresentations are absent.

The demurrer is sustained without leave to amend.

FINANCIAL ELDER ABUSE

Defendants argue that Welfare and Institutions Code section 15657.5 is only a statement of remedies and does not support a Cause of Action in itself.? This is true, but such a defect would be easily curable because the correct statute imposing liability could be substituted.

There is a deeper flaw, however.? The allegations that Defendants took, hid or secreted Mr. Springer?s property are factually unsupported .? The facts alleged show only that the money ?taken? was for payments for a delinquent loan.

The demurrer is sustained without leave to amend.

GOOD FAITH COVENANT

The implied covenant is that no party will take actions to deprive another party of the benefit of the bargain.? It does not give rise to any new or different contractual terms.? None of the allegations are sufficient to establish breach of the implied covenant.? The covenant does not give rise to a duty to extend negotiated deadlines in order to facilitate alternate financing of the property.? ?It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.? (Guz v. Bechtl Nat?l Inc. (2000) 24 Cal. 4^th 317, 349)