On November 12, 2019 a
Motion,Ex Parte
was filed
involving a dispute between
Pacumio,,
Pacumio, Josefina,
and
Catamount Properties 2018, Llc A Business Entity,
Clear Recon Corp,
Clear Recon Corp A Business Entity,
Does 1 To 10,
Wells Fargo Bank, N.A.,
Wells Fargo Bank, N.A A Business Entity,
for QUIET TITLE - REAL PROPERTY
in the District Court of San Francisco County.
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1 Yaw-Jiun (Gene) Wu (#228240)
gwu@afrct.com
2 ANGLIN FLEWELLING & RASMUSSEN LLP ELECTRONICALLY
301 N. Lake Avenue, Suite 1100
3 Pasadena, California 91101-4158 F I L E D
Superior Court of California,
Telephone: (626) 535-1900 County of San Francisco
4 Facsimile: (626) 577-7764
12/09/2020
5 Clerk of the Court
Attorneys for Defendant BY: JUDITH NUNEZ
WELLS FARGO BANK, N.A. successor by Deputy Clerk
6 merger to Wells Fargo Bank Southwest,
N.A., f/k/a Wachovia Mortgage, FSB and
7 World Savings Bank, FSB
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
A NGLIN F LEWELLING & R ASMUSSEN LLP
10
11 JOSEFINA PACUMIO, an individual, Case No.: CGC-19-580703
12 Plaintiff, STATEMENT OF DEMURRERS IN
SUPPORT OF DEFENDANT WELLS
13 v. FARGO’S DEMURRER TO FIRST
14 AMENDED COMPLAINT
WELLS FARGO BANK, N.A; a business
entity; CLEAR RECON CORP., a business
15 entity; CATAMOUNT PROPERTIES 2018, Date: January 22, 2021
LLC, a business entity; and Does 1-10, Time: 9:30 a.m.
16 inclusive, Dept.: 501
17 Defendants.
Trial Date: None Set
18 Action Filed: November 12, 2019
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94000/HR1861/02535448-1 1
WELLS FARGO’S STATEMENT OF DEMURRERS
1 STATEMENT OF DEMURRERS
2 Grounds for Wells Fargo’s demurrer are:
3 1. First Cause of Action: Violation of Civil Code Section 2923.7.
4 Plaintiff fails to state a cause of action for violation of Civil Code § 2923.7 because:
5 (i) this statutory claim is not pled with specificity; and (ii) Wells Fargo had no obligation to
6 appoint a “single point of contract” because a regular sale of real property is not a foreclosure
7 prevention alternative “offered by or through” the loan servicer. Civ. Proc. Code § 430.10(e).
8 2. Second Cause of Action: Violation of Civil Code Section 2924.17.
9 Plaintiff fails to state a cause of action for violation of Civil Code § 2924.17 because this
A NGLIN F LEWELLING & R ASMUSSEN LLP
10 claim entirely rests on a misplaced theory that limits the principal balance for the subject loan to
11 125% of the original loan amount. Civ. Proc. Code § 430.10(e).
12 3. Third Cause of Action: Wrongful Foreclosure.
13 Plaintiff fails to state a cause of action for wrongful foreclosure because this claim
14 entirely rests on a misplaced theory that limits the principal balance for the subject loan to 125%
15 of the original loan amount. Civ. Proc. Code § 430.10(e).
16 4. Fourth Cause of Action: Fraud.
17 Plaintiff fails to state a cause of action for fraud because: (i) a portion of this claim rests
18 on plaintiff’s mistaken theory concerning a 125% cap on the original loan amount; (ii) the fraud
19 claim is not pled with specificity; (iii) the operative complaint is devoid of facts to suggest a
20 false misrepresentation by Wells Fargo; (iv) the complaint fails to plead the element of scienter;
21 and (v) despite amendment of the pleadings, plaintiff still fails to articulate the element of
22 justifiable reliance. Civ. Proc. Code § 430.10(e).
23 5. Fifth Cause of Action: Conversion.
24 Plaintiff fails to state a cause of action for conversion because: (i) the conversion theory
25 is entirely predicated on the erroneous assumption that the loan balance was capped at 125% of
26 the original loan amount; and (ii) a dispute over funds is rarely the basis for the tort of
27 conversion. Civ. Proc. Code § 430.10(e).
28 ///
94000/HR1861/02535448-1 2
STATEMENT OF DEMURRERS
1 6. Sixth Cause of Action: Intentional Interference with Contractual Relations.
2 Plaintiff fails to state a cause of action for intentional interference with contractual
3 relations because: (i) plaintiff does not plead facts that sufficiently identify a contract with a third
4 party to sell the subject property; and (ii) the causal nexus between Wells Fargo’s pursuit of its
5 right to foreclose on the property and damages sustained by plaintiff is far too attenuated. Civ.
6 Proc. Code § 430.10(e).
7 7. Seventh Cause of Action: Unfair Competition.
8 Plaintiff fails to state a cause of action for unfair competition because: (i) the UCL claim
9 is entirely derivative in nature, predicated on prior causes of action which are fatally flawed;
A NGLIN F LEWELLING & R ASMUSSEN LLP
10 (ii) plaintiff lacks standing to maintain a UCL claim; and (iii) plaintiff has not articulated an
11 entitlement to injunctive relief or restitution, which are the only remedies available to a private
12 litigant under the UCL. Civ. Proc. Code § 430.10(e).
13 8. Eighth Cause of Action: Violation of Civil Code §1788.17.
14 Plaintiff fails to state a cause of action for violation of Civil Code § 1788.17 because:
15 (i) this statutory claim is entirely predicated on the misplaced theory that the principal balance
16 was capped at 125% of the original loan amount; and (ii) conduct associated with a non-judicial
17 foreclosure is not covered by the Rosenthal Fair Debt Collection Practices Act. Civ. Proc. Code
18 § 430.10(e).
19 9. Ninth Cause of Action: Unjust Enrichment.
20 Plaintiff fails to state a cause of action for unjust enrichment because: (i) plaintiff’s
21 request for restitution is predicated on the erroneous assumption that the loan balance was
22 capped at 125% of the original loan amount; and (ii) an overwhelming majority of courts hold
23 that unjust enrichment is not a cause of action under California law. Civ. Proc. Code § 430.10(e).
24 Respectfully submitted,
25 Dated: December 8, 2020 ANGLIN FLEWELLING & RASMUSSEN LLP
26
By: /s/ Yaw-Jiun (Gene) Wu
27 Yaw-Jiun (Gene) Wu
Attorneys for Defendant
28 WELLS FARGO BANK, N.A.
94000/HR1861/02535448-1 3
STATEMENT OF DEMURRERS
1
PROOF OF SERVICE
2
3 STATE OF CALIFORNIA )
) ss.
4 COUNTY OF LOS ANGELES )
5 I am employed in the County of Los Angeles, State of California. I am over the age of 18
years and not a party to the within action. My business address is 301 North Lake Avenue,
6 Suite 1100, Pasadena, California 91101-4158.
7
On the date below, I served the foregoing document(s) described as:
8
STATEMENT OF DEMURRERS IN SUPPORT OF DEFENDANT
9 WELLS FARGO’S DEMURRER TO FIRST AMENDED COMPLAINT
on the interested parties in this action by placing a true and correct copy enclosed in a sealed
ANGLIN FLEWELLING & RASMUSSEN LLP
10
envelope as follows:
11
Attorneys for Plaintiff Attorneys for Defendant
12 Clear Recon Corp.
Matthew Mellen, Esq.
13 Brenna Wood Fitzpatrick, Esq. Fred T. Winters, Esq.
Rachel Norby, Esq.
14 MELLEN LAW FIRM Casper J. Rankin, Esq.
1050 Marina Village Parkway, Suite 102 ALDRIDGE | PITE, LLP
15 Alameda, CA 94501 4375 Jutland Drive
P.O. Box 17935
16 Tel: (510) 263-9638 / Fax: (415) 276-1902 San Diego, CA 92117
Email: email@mellenlawfirm.com
17
Tel: (858) 750-7600 / Fax: (619) 590-1385
18 email: fwinters@aldridgepite.com
19
BY OVERNIGHT MAIL SERVICE: I am readily familiar with the firm’s practice of
20 collection and processing of correspondence by Golden State Overnight (GSO) delivery
service. Under that same practice it would be deposited on the same day in a Golden State
21 Overnight (GSO) delivery service collection receptacle at Pasadena, California, with
instructions to bill sender on the label.
22
I declare under penalty of perjury under the laws of the State of California that the
23
foregoing is true and correct.
24 Executed on December 9, 2020, in Pasadena, California.
25
Marianne Mantoen
26 (Type or Print Name) (Signature of Declarant)
27
28
94000/HR1861/02535448-1
PROOF OF SERVICE
Document Filed Date
December 09, 2020
Case Filing Date
November 12, 2019
Category
QUIET TITLE - REAL PROPERTY
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1 Yaw-Jiun (Gene) Wu (#228240) gwu@afrct.com 2 ANGLIN FLEWELLING & RASMUSSEN LLP ELECTRONICALLY 301 N. Lake Avenue, Suite 1100 3 Pasadena, California 91101-4158 F I L E D Superior Court of California, Telephone: (626) 535-1900 County of San Francisco 4 Facsimile: (626) 577-7764 12/09/2020 5 Clerk of the Court Attorneys for Defendant BY: JUDITH NUNEZ WELLS FARGO BANK, N.A. successor by Deputy Clerk 6 merger to Wells Fargo Bank Southwest, N.A., f/k/a Wachovia Mortgage, FSB and 7 World Savings Bank, FSB 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO A NGLIN F LEWELLING & R ASMUSSEN LLP 10 11 JOSEFINA PACUMIO, an individual, Case No.: CGC-19-580703 12 Plaintiff, STATEMENT OF DEMURRERS IN SUPPORT OF DEFENDANT WELLS 13 v. FARGO’S DEMURRER TO FIRST 14 AMENDED COMPLAINT WELLS FARGO BANK, N.A; a business entity; CLEAR RECON CORP., a business 15 entity; CATAMOUNT PROPERTIES 2018, Date: January 22, 2021 LLC, a business entity; and Does 1-10, Time: 9:30 a.m. 16 inclusive, Dept.: 501 17 Defendants. Trial Date: None Set 18 Action Filed: November 12, 2019 19 20 21 22 23 24 25 26 27 28 94000/HR1861/02535448-1 1 WELLS FARGO’S STATEMENT OF DEMURRERS 1 STATEMENT OF DEMURRERS 2 Grounds for Wells Fargo’s demurrer are: 3 1. First Cause of Action: Violation of Civil Code Section 2923.7. 4 Plaintiff fails to state a cause of action for violation of Civil Code § 2923.7 because: 5 (i) this statutory claim is not pled with specificity; and (ii) Wells Fargo had no obligation to 6 appoint a “single point of contract” because a regular sale of real property is not a foreclosure 7 prevention alternative “offered by or through” the loan servicer. Civ. Proc. Code § 430.10(e). 8 2. Second Cause of Action: Violation of Civil Code Section 2924.17. 9 Plaintiff fails to state a cause of action for violation of Civil Code § 2924.17 because this A NGLIN F LEWELLING & R ASMUSSEN LLP 10 claim entirely rests on a misplaced theory that limits the principal balance for the subject loan to 11 125% of the original loan amount. Civ. Proc. Code § 430.10(e). 12 3. Third Cause of Action: Wrongful Foreclosure. 13 Plaintiff fails to state a cause of action for wrongful foreclosure because this claim 14 entirely rests on a misplaced theory that limits the principal balance for the subject loan to 125% 15 of the original loan amount. Civ. Proc. Code § 430.10(e). 16 4. Fourth Cause of Action: Fraud. 17 Plaintiff fails to state a cause of action for fraud because: (i) a portion of this claim rests 18 on plaintiff’s mistaken theory concerning a 125% cap on the original loan amount; (ii) the fraud 19 claim is not pled with specificity; (iii) the operative complaint is devoid of facts to suggest a 20 false misrepresentation by Wells Fargo; (iv) the complaint fails to plead the element of scienter; 21 and (v) despite amendment of the pleadings, plaintiff still fails to articulate the element of 22 justifiable reliance. Civ. Proc. Code § 430.10(e). 23 5. Fifth Cause of Action: Conversion. 24 Plaintiff fails to state a cause of action for conversion because: (i) the conversion theory 25 is entirely predicated on the erroneous assumption that the loan balance was capped at 125% of 26 the original loan amount; and (ii) a dispute over funds is rarely the basis for the tort of 27 conversion. Civ. Proc. Code § 430.10(e). 28 /// 94000/HR1861/02535448-1 2 STATEMENT OF DEMURRERS 1 6. Sixth Cause of Action: Intentional Interference with Contractual Relations. 2 Plaintiff fails to state a cause of action for intentional interference with contractual 3 relations because: (i) plaintiff does not plead facts that sufficiently identify a contract with a third 4 party to sell the subject property; and (ii) the causal nexus between Wells Fargo’s pursuit of its 5 right to foreclose on the property and damages sustained by plaintiff is far too attenuated. Civ. 6 Proc. Code § 430.10(e). 7 7. Seventh Cause of Action: Unfair Competition. 8 Plaintiff fails to state a cause of action for unfair competition because: (i) the UCL claim 9 is entirely derivative in nature, predicated on prior causes of action which are fatally flawed; A NGLIN F LEWELLING & R ASMUSSEN LLP 10 (ii) plaintiff lacks standing to maintain a UCL claim; and (iii) plaintiff has not articulated an 11 entitlement to injunctive relief or restitution, which are the only remedies available to a private 12 litigant under the UCL. Civ. Proc. Code § 430.10(e). 13 8. Eighth Cause of Action: Violation of Civil Code §1788.17. 14 Plaintiff fails to state a cause of action for violation of Civil Code § 1788.17 because: 15 (i) this statutory claim is entirely predicated on the misplaced theory that the principal balance 16 was capped at 125% of the original loan amount; and (ii) conduct associated with a non-judicial 17 foreclosure is not covered by the Rosenthal Fair Debt Collection Practices Act. Civ. Proc. Code 18 § 430.10(e). 19 9. Ninth Cause of Action: Unjust Enrichment. 20 Plaintiff fails to state a cause of action for unjust enrichment because: (i) plaintiff’s 21 request for restitution is predicated on the erroneous assumption that the loan balance was 22 capped at 125% of the original loan amount; and (ii) an overwhelming majority of courts hold 23 that unjust enrichment is not a cause of action under California law. Civ. Proc. Code § 430.10(e). 24 Respectfully submitted, 25 Dated: December 8, 2020 ANGLIN FLEWELLING & RASMUSSEN LLP 26 By: /s/ Yaw-Jiun (Gene) Wu 27 Yaw-Jiun (Gene) Wu Attorneys for Defendant 28 WELLS FARGO BANK, N.A. 94000/HR1861/02535448-1 3 STATEMENT OF DEMURRERS 1 PROOF OF SERVICE 2 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF LOS ANGELES ) 5 I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action. My business address is 301 North Lake Avenue, 6 Suite 1100, Pasadena, California 91101-4158. 7 On the date below, I served the foregoing document(s) described as: 8 STATEMENT OF DEMURRERS IN SUPPORT OF DEFENDANT 9 WELLS FARGO’S DEMURRER TO FIRST AMENDED COMPLAINT on the interested parties in this action by placing a true and correct copy enclosed in a sealed ANGLIN FLEWELLING & RASMUSSEN LLP 10 envelope as follows: 11 Attorneys for Plaintiff Attorneys for Defendant 12 Clear Recon Corp. Matthew Mellen, Esq. 13 Brenna Wood Fitzpatrick, Esq. Fred T. Winters, Esq. Rachel Norby, Esq. 14 MELLEN LAW FIRM Casper J. Rankin, Esq. 1050 Marina Village Parkway, Suite 102 ALDRIDGE | PITE, LLP 15 Alameda, CA 94501 4375 Jutland Drive P.O. Box 17935 16 Tel: (510) 263-9638 / Fax: (415) 276-1902 San Diego, CA 92117 Email: email@mellenlawfirm.com 17 Tel: (858) 750-7600 / Fax: (619) 590-1385 18 email: fwinters@aldridgepite.com 19 BY OVERNIGHT MAIL SERVICE: I am readily familiar with the firm’s practice of 20 collection and processing of correspondence by Golden State Overnight (GSO) delivery service. Under that same practice it would be deposited on the same day in a Golden State 21 Overnight (GSO) delivery service collection receptacle at Pasadena, California, with instructions to bill sender on the label. 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 Executed on December 9, 2020, in Pasadena, California. 25 Marianne Mantoen 26 (Type or Print Name) (Signature of Declarant) 27 28 94000/HR1861/02535448-1 PROOF OF SERVICE