Hearing: RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al

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                                UIA

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Aug-27-2012 2:32 pm

Case Number: CGC-12-522638
Filing Date: Aug-27-2012 2:28
Filed by: MICHAEL RAYRAY

Juke Box: 001 Image: 03740476
DEMURRER

RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al

001003740476 *.

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Instructions: se
Please place this sheet on top of the document to be scanned.

ALBRYAN Cave LLP

333 MARKET STREET, 25™ Floor
SAN FRANCISCO, CA 94105

BRYAN CAVE LLP

C. Scott Greene, Calif. Bar No. 277445

Andrea M. Hicks, Calif. Bar No. 219836

Jessica T. Ehsanian, Calif. Bar No. 231541

333 Market Street, 25" Floor

San Francisco, CA 94105

Telephone: (415) 675-3400

Facsimile: (415) 675-3434

E-mail: andrea. hicks@bryancave.com
ehsanianj@bryancave.com

Attorneys for Defendants

BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL
ASSOCIATION”), and COUNTRYWIDE HOME LOANS, INC., dba AMERICA’S
WHOLESALE LENDER

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

RODOLFO VELASQUEZ, Case No.: CGC-12-522638
Plaintiff, DEFENDANTS’ NOTICE OF
DEMURRER AND DEMURRER TO
v. PLAINTIFF’S COMPLAINT
BANK OF AMERICA NATIONAL Date: October 11, 2012
ASSOCIATION; AMERICA’S Time: 9:30 a.m.

WHOLESALE LENDER; COUNTRY WIDE Dept.: 501
HOME LOANS, INC.; and DOES 1 through
100, inclusive, [Filed concurrently with Request for

Judicial Notice and [Proposed] Order]
Defendants.

DEFENDANTS’ DEMURRER TO PLAINTIFF’S COMPLAINTBRYAN CAVE LLP

333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105

TO ALL PARTIES, THEIR ATTORNEYS OF RECORD, AND THE CLERK OF THE
ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that the Demurrer of Defendants BANK OF AMERICA, N.A.
(erroneously sued as “BANK OF AMERICA NATIONAL ASSOCIATION”) and
COUNTRYWIDE HOME LOANS, INC., dba AMERICA’S WHOLESALE LENDER
(collectively “Defendants”) to the Complaint of Plaintiff RODOLFO VELASQUEZ (“Plaintiff”)
will be heard on October 11, 2013, at 9:30 a.m., or as soon thereafter as the matter may be heard
in Department Wet the above-entitled court, located at 400 McAllister Street, San Francisco,
CA 94102.

This Demurtrer is brought pursuant to California Code of Civil Procedure Section 430.10(e)

on the grounds that each of the causes of action alleged in the Complaint, namely the First through

Tenth causes of action, fail to state facts sufficient to constitute a cause of action against
Defendants.

The Demurrer is based on this Notice of Demurrer and Demurrer, the attached
Memorandum of Points and Authorities, the Request for Judicial Notice, filed concurrently
herewith, together will all the records and pleadings on file in this case, and any other matters that
the Court may consider, including oral arguments of counsel.

Dated: August 27, 2012 BRYAN CAVE LLP
BANK OF AMERICA, N.A. (erroneously sued
as “BANK OF AMERICA NATIONAL
ASSOCIATION”) and COUNTRY WIDE HOME
LOANS, INC., dba AMERICA’S WHOLESALE
LENDER

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DEFENDANTS’ DEMURRER TO PLAINTIFFS’ COMPLAINTBRYAN Cave LLP

333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105.

BBN

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SPECIAL DEMURRER

Defendants BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA
NATIONAL ASSOCIATION”), BANK OF AMERICA, N.A. (erroneously sued as “BANK OF
AMERICA NATIONAL ASSOCIATION”) and COUNTRY WIDE HOME LOANS, INC., dba
AMERICA’S WHOLESALE LENDER (collectively “Defendants”) specially demur to the
Complaint of Plaintiff RODOLFO VELASQUEZ (“Plaintiff”) pursuant to CCP § 430.10(f) on the
grounds that the Complaint is vague, ambiguous and unintelligible. The Complaint contains
lengthy renditions of statements that do not appear to state a cause of action or allege damages,
and Plaintiff repeatedly fails to differentiate among the named defendants, making it difficult to
determine which allegations are directed to each individually. The Complaint therefore fails to put
Defendants on notice of the claims alleged against it and prevents a meaningful response to the
Complaint.

GENERAL DEMURRER

Defendants generally demur to the Complaint and each purported cause of action as

follows:
FIRST CAUSE OF ACTION

The First Cause of Action for Quiet Title and Cancellation of Note and Deed of Trust fails
to state facts sufficient to constitute a cause of action against Defendants pursuant to California
Code of Civil Procedure (“CCP”) § 430.10(e).

SECOND CAUSE OF ACTION

The Second Cause of Action for Breach of Contract fails to state facts sufficient to

constitute a cause of action against Defendants pursuant to CCP § 430.10(e).
THIRD CAUSE OF ACTION

The Third Cause of Action for Violation of Business & Professions code § 17200 fails to
state facts sufficient to constitute a cause of action against Defendants pursuant to CCP §
430.10(c).

FOURTH CAUSE OF ACTION

The Fourth Cause of Action for Intentional Infliction of Emotional Distress fails to state

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DEFENDANTS’ DEMURRER TO PLAINTIFFS COMPLAINTBRYAN CAVE LLP.
333 MARKET STREET, 25™ FLoor

SAN FRANCISCO, CA 94105

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facts sufficient to constitute a cause of action against Defendants pursuant to CCP § 430.10(e).
FIFTH CAUSE OF ACTION
The Fifth Cause of Action for Slander of Title fails to state facts sufficient to constitute a
cause of action against Defendants pursuant to CCP § 430.10(e).
SIXTH CAUSE OF ACTION
The Sixth Cause of Action for Negligence fails to state facts sufficient to constitute a cause
of action against Defendants pursuant to CCP § 430.10(e).
SEVENTH CAUSE OF ACTION
The Seventh Cause of Action for Expungement of Notice of Default fails to state facts
sufficient to constitute a cause of action against Defendants pursuant to CCP § 430.10(e).
EIGHTH CAUSE OF ACTION
The Eighth Cause of Action for Injunction Against Sale of the Property fails to state facts
sufficient to constitute a cause of action against Defendants pursuant to CCP § 430.10(e).
NINTH CAUSE OF ACTION
The Ninth Cause of Action for Fraud fails to state facts sufficient to constitute a cause of
action against Defendants pursuant to CCP § 430.10(e).
TENTH CAUSE OF ACTION

The Tenth Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing
fails to state facts sufficient to constitute a cause of action against Defendants pursuant to CCP
§ 430.10(€).

Dated: August 27, 2012 BRYAN CAVE LLP

Attorneys for Defendants

BANK OF AMERICA, N.A. (erroneously sued as
“BANK OF AMERICA NATIONAL
ASSOCIATION”) and COUNTRY WIDE HOME
LOANS, INC., dba AMERICA’S WHOLESALE
LENDER

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DEFENDANTS’ DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Cave LLP
333 MARKET STREET, 25™ FLoor

SAN FRANCISCO, CA 94105

TABLE OF CONTENTS

Page|

INTRODUCTION uu. cecsssessssssesssssecssseescssnssecssnssesessnscesssusssssusesssesssvecssssecsssecsavueresseessnvecsesnecss 1
PACTUAL SUMMARY ......occcscsesesssscssseecssscasesssnseessssusessnsesessessssssssisetsssersavecsusveesusneesranees 1
LEGAL STANDARD FOR DEMURRER ......sesssssssesssssesssseeessecesssecssuesssnesssssesasvecenvevsessneee 2
LEGAL ARGUMENT wueecsssssssssssssssssccssssscsssnesssesnsssessnssssssusessssessuesssssesssueetsssesssvtessnneteessevers 2|
A. Plaintiffs Failure to Allege Tender is Fatal to All of His Claims .....ccccccsessssseseseene 2
B. Plaintiff's First Cause of Action for Quiet Title Fails.....ccccssssssssssesesssseessssseee 3
Cc. Plaintiff's Second Cause of Action for Breach of Contract and His Tenth

Cause of Action for Breach of the Implied Covenant Both Fail ........0..c0ccseceseene 5

1. Plaintiff fails to plead a breach of contract. ......:csssscsssssecssesssssesssssescssseesessness 5

2. Plaintiff fails to plead breach of the implied covenant.........ssscssssseesesesssesee 6
D. Plaintiff's Third Cause of Action for Violation of Bus. & Prof. Code

17200 Fails

1. Plaintiff lacks standing, .....0..sccsssesseecsseessessnessneeseesseesseesseessesssesssessseeseersuee 7

2. Plaintiff fails to plead any “fraudulent” business practices........ccceeseeene 8

3. Plaintiff fails to plead any “unfair” business practices. ........cscseeesseseeseeees 8

E. Plaintiff's Fourth Cause of Action for Intentional Infliction of Emotional
Distress Fails as a Matter of Law...

F. Plaintiff's Fifth Cause of Action For Slander of Title Fails

1, Fraud must be pled with specificity. ..0.0.....cscessessscsesseseeesnsecneecseeeeneesnee 11

2. Defendants’ notices were privileged.

Plaintiff's Sixth Cause of Action for Negligence Fails.........ceccssssssscssesssseesessseees 13

The Seventh Cause of Action Entitled “Expungement of Notice of

Default” Fails for Failure to State a Claim.......t.ssecsesesssccessscssessscecsesnsecessesessnetess 14
L The Eighth Cause of Action for Injunction Fails as a Matter of Law.....sssseceoe 14
J. The Ninth Cause of Action for Fraud Fails For Lack of Specificity.........ccccce0 14

1. Plaintiff must allege reasonable reliance... ..ceesceeseecseessessseeneecneesneeesneesee 15

2. Fraud must be pled with specificity. 0... eccessesssseeseesseessecsseesneessesssees 15

3. Plaintiff must plead damages. ..........csscesssesssseessseesssesesseessuueessneeesneeteesees 16
CONCLUSION ....ecssessssesssseeseesssecessssersssessssecessnessuesssesssseessncsunessecsusssseceressusanseseeecneenneesenee 16|

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3 | Cases

TABLE OF AUTHORITIES

Aguilar v. Boci,
39 Cal. App. 34 475 (1974) caccccsssssesssssssssssessessnnseeeessusssssenssussnssssessnsnsassassnsseutusssssssssscssnaneee 5

Arnolds Mgmt. Corp. v. Eischen,
158 Cal. App. 3d 575 (1984) o...ccccccceessssssesssmeestssssssssssssssssssssuettusassussssntensastasiasssssasssssssssssassasesecee 3

Berger v. Home Depot U.S.A., Inc.,
476 F. Supp. 2d 1174 (C.D. Cal. 2007) ..scsscsssssessssessssssssssssessescsnsssenssesesesesasasssssssssvassassesseneses 6

Blank v. Kirwan,
39 Cal. 3d 311 (1985)

Cantu v. Resolution Trust Corp.
4 Cal. App. 4th 857 (1992)

Cel-Tech Comme’ns, Inc. v. L.A. Cellular Tel. Co.,
20 Cal. 4th 163 (1999).

Conroy v. Regents of Univ. of Cal.,
AS Cal. 4th 1244 (2009) ...c.sseccscssessssssssssssssssssessssessesssnvnsssssesasssessessssssssssessassarseesssseseeceeee 12, 15

Cooper v. Equity General Ins. Co.,

219 Cal. App. 3d 1252 (1990) v.csccccsssssssssssesssssseseesessesessunsssssssnssssssssanaseessersensasessscesesasecsesseenee 16}
Davidson v. City of Westminster,

32 Cal. 3d 197 (1982) vrscccsssssssssssssssssssessssseesesssssesustassssssassneesssssesssssascesersereeeeestesteeesecereyessses 10

Dore v. Arnold Worldwide, Inc.,
39 Cal.4th 384 (2006)

Engalla v. Permanente Medical Group,
15 Cal. 4th 951 (1997)

Gabana Gulf Distrib., Ltd. v. GAP Int’l Sales, Inc.,
No. C 06-02584 CRB, 2008 WL 111223 (N.D. Cal. 2008) cacccccesssssssssssssssssssssssssssssssssesssessssesese 7

Gil v. Bank of America, N.A.,
138 Cal. App. 4th 1371 (2006)

Guz v. Bechtel Nat. Inc.,
24 Cal. 4th 317 (2000)...........

Isaacson v. Cal. Ins. Guarantee Assn.
44 Cal. 3d 775 (1988).

Kachlon v. Markowitz,
168 Cal. App. 4th 316 (2008)

Karlsen v. Am. Sav. & Loan Ass'n,
15 Cal. App. 3d 112 (1971)

Kelley v. Mortg. Elec. Regis.,
642 F. Supp. 2d 1048 (N.D. Cal. 2009) scsosssssssssssessesssssssssnsssssesstansssanssnssssssassnasassesssseeseee 5

Klein v. Earth Elements,
59 Cal. App. 4th 965 (1997) .ssssessssesseessssscssssessssnsssunnesssssssssssssscceseessssssunsnssessessessrssssasasassceseasseeea 8

Kransco v. Am. Empire Surplus Lines Ins. Co.,
23 Cal. 4th 390 (2000)...

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Leeper v, Beltrami,
53 Cal. 2d 195 (1959)

Manhattan Loft, LLC v. Mercury Liquors, f
173 Cal. App. 4th 1040 (2009) ..ssssssessssesssssssessssssnessseecesssessssssseesssiesssaessuecsssueeesiecenteessnetessnees 12)

Marlin y. AIMCO Venezia, LLC,
154 Cal. App. 4th 154 (2007)

Metcalf v. Drexel Lending Group,
2008 U.S. Dist. LEXIS 87420 (S.D. Cal. 2008)

Nichols v. Greenpoint Mortg. Funding, Inc.,
2008 U.S. Dist. LEXIS 87644 (C.D. Cal. Aug. 19, 2008)... .csecssesessesesseseesesstesesseeseesessnesneesnes 6

Nymark v. Heart Fed. Sav. & Loan Ass'n,
231 Cal. App. 3d 1089 (1991)...

Ortiz v. Accredited Home Lenders, Inc.,
639 F. Supp. 2d 1159 (S.D. Cal. 2009)..ccsesssssssesssssessssssscssssessassessssssssecussssssssansetesuasseseneseee 4

Otworth v. S. Pac. Transp. Co.,
166 Cal. App. 3d 452 (1985)

Pasadena Live, LLC v. City of Pasadena,
114 Cal. App. 4th 1089 (2004)

Pedersen v. Greenpoint Mortg. Funding, Inc.,
2011 WL 3818560 (E.D, Cal. Aug. 29, 2011) ...ecsseessseessessseerseecssecsseessiessessssscsssssssssssessseesneeese 5

People ex rel. Bill Lockyer v. Fremont Life Ins. Co.,
128 Cal. Rptr. 2d 463 (2002)

Peterson v, Cellco P’ship,
164 Cal, App. 4th 1583 (2008) ....sssseccssesssessssecsssenssecesesesnesssecssnsessecessesseeseeesessanecseesseessstssessanass 7

Philipson Simon vy, Gulsvig,
154 Cal. App. 4th 347 (2007)

Poway Royal Mobilehome Owners Ass'n v. City of Poway,
149 Cal. App. 4th 1460 (2007)

RD. Reeder Lathing Co., Inc., v. Cypress Ins. Co.,
3 Cal. App. 3d 995 (1970)...

Ross v. Creel Printing & Publ’g Co.,
100 Cal. App. 4th 736 (2002) ...cscsscscsssssecsssessssssecssssseessussusssssesssstessssssessesnssnsnussensessesesee 10

Scripps Clinic v. Superior Court,
108 Cal. App. 4th 917 (2003)

Shamsian v. All. Richfield Co.,
107 Cal. App. 4th 967 (2003)

Singh y. Litton Loan Servicing LP,
2011 U.S. Dist. LEXIS 49145 (E.D. Cal. 2011)..

Spiegler v. Home Depot U.S.A., Inc.,
552 F. Supp. 2d 1036 (C.D. Cal. 2008).

Stansfield v. Starkey,
220 Cal. App. 3d 59 (1990) w..cecececessessssneessseesssseessssssssessseesssneesssesssnsesasessansesssesssnesesissnensenssesees 12

Tarmamnn vy. State Farm Mut. Auto Ins. Co.,
2 Cal. App. 4th 153 (1991)

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BRYAN Cave LLP
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333 MARKET STREET,

Trerice v. Blue Cross of Cal.,
209 Cal. App. 3d 878 (1989)

U.S. Cold Storage v. Great W. Sav. & Loan Ass’
165 Cal. App. 3d 1214 (1985)

Wagner v. Benson,
101 Cal. App. 3d 27 (1980)

Wall St. Network, Ltd. v. New York Times Co.,
164 Cal. App. 4th 1171 (2008)......

Wallis v. Farmers Group, Inc.,

220 Cal. App. 3d 718 (1990) vesseccsssescssecsssesssssesssecssuecasesaseesssssssecssucssueesnecsueessueeneessnessnensessseceneee 16)
Wilhelm v. Pray, Price, Williams Russell,

186 Cal. App. 3d 1324 (1986) ..ccsssessssecesecsssseecseesssecsseeesseesssssssessssesssesssseessecsseesseesuessuessnecsaneeseees 15
Wright y. City of Morro Bay,

144 Cal. App. 4th 767 (2006) .....ecsssecsssesssessssesssecsssecsssesssvessscssecssneesusessnessecsnseaneenaiesneeseesnneesnees 4
Statutes
Cal. Bus. & Prof. Code § 17200... ccccseecsssssesesesescseesnssseessesseesnsssesreseneasecseecessatseeeasessesneeneenieanennees 6,7

Cal. Civ. Code § 1572(1).
Cal. Civ. Code § 47(c)..
Cal. Civ. Proc. Code § 430.70.
Cal. Civ. Proc. Code § 760.010 .....c.scccccesssesseessecssssessnsssesssecsnssseeseesssesecsssssessnenrsseesesvstsssaesseesneenceneeey 3
Cal. Civ. Proc. Code § 761.020(a)-(e)
Cal. Civ. Proc. Code § 762.010.......
Other Authorities

5 Witkin, California Procedure § 663 (Sth ed. 2008).....cccecscssssssseessseesceeesesnessseeessessseseasescsseesessnes 3

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MEMORANDUM OF POINTS AND AUTHORITIES

I INTRODUCTION

Plaintiff Rodolfo Velasquez (“Plaintiff”) has filed this lawsuit in which he asserts ten
causes of action against Defendants Bank of America, N.A. and Countrywide Home Loans, Inc.
dba America’s Wholesale Lender (collectively “Defendants”) for enforcing rights under the Deed
of Trust and attempting to foreclose on his home located in San Francisco (“Property”).

Plaintiff bases much of his Complaint on the allegation that Defendants have no authority
to foreclose on his home, that an escrow impound was wrongfully imposed and Defendants

allegedly breached the Deed of Trust. However, Defendants contend that the escrow impound was|

allowed under the terms of the Deed of Trust. Plaintiff's Complaint fails as a matter of law
because Plaintiff signed the Deed of Trust which, by its terms, granted the lender the authority to
impound the property taxes if not timely paid by Plaintiff. Moreover, Plaintiff fails to properly
plead any of his ten causes of action against Defendants.

Finally, Plaintiff does not allege the required tender of the full amount of the debt owed,
and thus cannot sustain any of his causes of action to set aside the foreclosure proceedings.
Defendants’ therefore request this Court sustain the demurrer without leave to amend.

Il. FACTUAL SUMMARY

In February 1999, Plaintiff borrowed $150,000 to refinance his home. In connection with
that loan Plaintiff executed a Promissory Note and Deed of Trust. (See Deed of Trust , RJN Exh.
A.) On June 6, 2003, Plaintiff took out a second mortgage in the amount of $50,000 (RJN Exh.
B), which was later modified and increased to $77,000 in March 2004. (RJN Exh, C.)

The original Deed of Trust names America’s Wholesale Lender as the Beneficiary, and
empowers Countrywide Title Corporation to foreclose and sell the Property as the Trustee. The
Deed of Trust states that “[t]he Note or a partial interest in the Note (together with the Security
Instrument) can be sold one or more times without prior notice to Borrower.” (Id. at 419.) The
Deed of Trust also states that “Lender, at its option, may from time to time appoint a successor

trustee to any Trustee appointed” under the Deed of Trust. (Id. at 23.)

An Assignment Deed of Trust was recorded on January 17, 2012 (“Assignment”) naming

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Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, LP as the
beneficiary under the February 1999 Deed of Trust. (RJN Exh. D.) On January 18, 2012, a
Substitution of Trustee was recorded and appointed Quality Loan Service Corporation as the new
Trustee. (RJN Exh. E.)

Also on January 18, 2012, Quality Loan Service Corporation recorded a Notice of Default
indicating that as of January 16, 2012, Plaintiff owed $18,295.89 in arrearages. (RJN Exh. F.) A
Notice of Rescission was recorded on April 26, 2012, rescinding the January 18, 2012 Notice of
Default. (RIN Exh. G.) On April 27, 2012, Quality Loan Service Corporation recorded a new
Notice of Default indicating that as of April 24, 2012, Plaintiff owed $21,610.92 in arrearages.
Wil. LEGAL STANDARD FOR DEMURRER

A demurrer challenges the sufficiency of a complaint based on defects that appear on the
face of the complaint, or from matters that are subject to judicial notice. Blank v. Kirwan, 39
Cal. 3d 311, 318 (1985); Cal. Civ. Proc. Code § 430.70. All material facts that are properly
pleaded are treated as true, but the Court need not accept conclusions, contentions, or deductions
of law or fact. Id. To survive demurrer, a complaint must plead facts to establish every element
of a cause of action. Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857, 879 (1992).

IV. LEGAL ARGUMENT

A. Plaintiffs Failure to Allege Tender is Fatal to All of His Claims

Plaintiff must allege a credible and unconditional tender of the entire unpaid balance of
the Joan to maintain any action challenging a foreclosure sale or seeking damages based
thereupon. See Karlsen v, Am. Sav. & Loan Ass'n, 15 Cal. App. 3d 112, 121 (1971). “The law
is long-established that a trustor or his successor must tender the obligation in full as a
prerequisite to challenge of the foreclosure sale.” U.S. Cold Storage v. Great W. Sav. & Loan
Assn, 165 Cal. App. 3d 1214, 1222 (1985).

Here, each cause of action in the Complaint seeks damages, injunctive, and declaratory
relief based upon the foreclosure sale and process. Each cause of action is therefore “implicitly
integrated” with the foreclosure sale. See Arnolds Mgmt. Corp. v. Eischen, 158 Cal. App. 3d
575, 579 (1984). However, the Complaint fails to allege any facts to establish: (1) that Plaintiff

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has the ability to tender the requisite amount; or (2) that Plaintiff agrees that he will tender said
amount. (See generally Compl). Accordingly, the tender rule bars each of the Complaint’s ten
(10) causes of action. Equity cannot be invoked for an idle purpose. No leave to amend should
be granted unless Plaintiff posts an undertaking of not less than $227,000! as a prerequisite of an
amendment.

B. Plaintiff's First Cause of Action for Quiet Title Fails

Plaintiff's first cause of action for quiet title fails, not only because it is improperly pled,
but because the allegations fail to state a claim for relief. This claim is based on the (patently
false) argument that the beneficiary of the Deed of Trust and Note “is not a natural person or a
corporation” and “has no legal existence and cannot sue or defend any action”, thereby
concluding that because of this lack of “legal existence”, “neither the note nor the Deed of Trust
is a legally valid obligation or encumbrance.” (Compl. §¥] 15-16.) Not only does Plaintiff fail to
cite to one legal authority in support this argument, but this cause of action for Quiet Title and
Cancellation of Note and Deed of Trust fails to state a claim against Defendants.

First, quieting title is not itself an independent cause of action, but rather is “the relief
granted once a court determines that title belongs to plaintiff.” Leeper v. Beltrami, 53 Cal. 2d
195, 216 (1959) (emphasis added). “In other words, in such a case, the plaintiff must show he
has a substantive right to relief before he can be granted any relief at all.” Jd.

Second, in order to state of cause of action for quiet title, a plaintiff must include: (1) a
description of the subject property; (2) the title of the plaintiff as to which determination is
sought and the basis of the title; (3) the claims adverse to the title of the plaintiff against which a
determination is sought; (4) the date as of which the determination is sought; and (5) a prayer for
determination of the title of the plaintiff against adverse claims. Cal. Code Civ. Proc. § 760.010,
at § 761.020(a)-(e); see generally 5 Witkin, California Procedure § 663, p. 90 (Sth ed. 2008).
“(If the plaintiff fails to show any legal interest in the property in controversy, and as to which

he asserts title, he must fail altogether...” Wright v. City of Morro Bay, 144 Cal. App. 4th

' This number represents the amount of the first loan of $150,000, and the second mortgage loan of $77,000.

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767, 775 (2006). Moreover, the plaintiff must also name as defendants “the persons having
adverse claims to the title of the plaintiff against which a determination is sought.” Cal. Civ.
Proc. Code § 762.010. Where there are multiple defendants, a plaintiff must allege which
defendant asserts an adverse claim to the subject property. Metcalf v. Drexel Lending Group,
2008 U.S. Dist. LEXIS 87420, *14 (S.D. Cal. 2008).

Moreover, Plaintiff is unable to establish a competing claim to title. By Plaintiff's own
allegations, the foreclosure process has yet to be completed and title remains in his name. (See
Compl. § 12.) See Ortiz v. Accredited Home Lenders, Inc., 639 F. Supp. 2d 1159, 1168 (S.D.
Cal. 2009) (holding that “recorded foreclosure Notices do not affect Plaintiffs’ title, ownership,
or possession in the Property”). Because Plaintiff does not plead anything other the enforcement
of a lien right, Plaintiff does not plead a completing claim to title, and thus the claim fails.

Finally, “[t]ender of the indebtedness is required to quiet title in California.” Pedersen v.
Greenpoint Mortg. Funding, Inc., 2011 WL 3818560, at *13 (E.D. Cal. Aug. 29, 2011) (citing
Aguilar v. Boci, 39 Cal. App. 3d 475, 477 (1974)); Kelley v. Mortg. Elec. Regis., 642 F. Supp. 2d
1048, 1057 (N.D. Cal. 2009). For these reasons, Plaintiffs claim for quiet title fails as a matter
of law.

Cc. Plaintiff's Second Cause of Action for Breach of Contract and His Tenth

Cause of Action for Breach of the Implied Covenant Both Fail

1. Plaintiff fails to plead a breach of contract.

Plaintiff's second cause of action consists of three brief paragraphs setting forth the
alleged loan terms. (Compl. ff 19-21.) Plaintiff concludes that Defendants “without
justification, have increased the monthly payments, in direct violation of the terms of plaintiff's
note.” (Id. | 20.) Not only is this conclusory statement false given the fact that any alleged
action taken by the Bank was done so pursuant to the terms of the Deed of Trust and Note (see
RJN Exh. A, Deed of Trust at p. 2, 2), Plaintiff fails to properly plead a cause of action for
breach of contract.

The standard elements of a claim for breach of contract are: “(1) the contract,

(2) plaintiff's performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage

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to plaintiff therefrom.” Wall St. Network, Ltd. v. New York Times Co., 164 Cal. App. 4th 1171,
1178 (2008) (internal quotes omitted). Further, “if the action is based on an alleged breach of a
written contract, the terms must be set out verbatim in the body of the complaint or a copy of the
written instrument must be attached and incorporated by reference.” Orworth v, S. Pac. Transp.
Co., 166 Cal. App. 3d 452, 459 (1985); see also Nichols v. Greenpoint Mortg. Funding, Inc.,
2008 U.S. Dist. LEXIS 87644, *10 (C.D. Cal. Aug. 19, 2008) (dismissing breach of contract
claim where “Plaintiff fails to set forth any provisions of the Notes that were breached”). Here,
although Plaintiff attaches to his Complaint as Exhibit 1 the Note and Deed of Trust, he fails to
set forth the terms Defendants allegedly breached. Therefore, the breach of contract cause of
action fails as a matter of law.

2. Plaintiff fails to plead breach of the implied covenant.

Every contract contains an implied covenant of good faith and fair dealing that “neither
party will do anything which will injure the right of the other to receive the benefits of the
agreement.” Kransco v. Am. Empire Surplus Lines Ins, Co., 23 Cal. 4th 390, 400 (2000)
(quotations omitted). The implied covenant, however, “does not extend beyond the terms of the
contract at issue.” Poway Royal Mobilehome Owners Ass'n v. City of Poway, 149 Cal. App. 4th
1460, 1477 (2007). Instead, the “implied covenant of good faith and fair dealing is limited to
assuring compliance with the express terms of the contract.” Pasadena Live, LLC v. City of
Pasadena, 114 Cal. App. 4th 1089, 1094 (2004); see also Berger v. Home Depot U.S.A., Inc.,
476 F, Supp. 2d 1174, 1177 (C.D. Cal. 2007) (The implied covenant will not apply where “no
express term exists on which to hinge an implied duty, and where there has been compliance
with the contract’s express terms.”), Here, Plaintiff has not alleged what terms of the contract,
presumably the Deed of Trust, have been breached by Defendants. (See Compl. 51, 52.)

Moreover, Plaintiff's breach of implied covenant of good faith and fair dealing claim is
duplicative to his breach of contract claim. “Where breach of an actual [contract] term is
alleged, a separate implied covenant claim, based on the same breach, is superfluous.” Guz v.
Bechtel Nat. Inc., 24 Cal. 4th 317, 327 (2000); see also Gabana Gulf Distrib., Ltd. v. GAP Int'l
Sales, Inc., No. C 06-02584 CRB, 2008 WL 111223, at *12 (N.D. Cal. 2008) (dismissing

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duplicative implied covenant claim with prejudice). Plaintiff's cause of action for breach of the
implied covenant relies on the same acts, and seeks the same damages, as Plaintiff's second
cause of action for breach of contract, It is duplicative, and thus fails.

D. Plaintiff’s Third Cause of Action for Violation of Bus. & Prof. Code 17200

Fails

California’s Business and Professions Code section 17200 (“UCL”) prohibits unlawful,
fraudulent, or unfair business practices. Bus. & Prof. Code § 17200. “Written in the disjunctive,
this language ‘establishes three varieties of unfair competition.” People ex rel. Bill Lockyer v.
Fremont Life Ins. Co., 128 Cal. Rptr. 2d 463, 469 (2002) (citation omitted).

1. Plaintiff lacks standing.

Plaintiff's cause of action for Unfair Business Practices fails because he lacks standing to
assert violations of Business & Professions Code section 17200. As amended by Proposition 64,
“[a] private plaintiff must make a twofold showing: he or she must demonstrate injury in fact
and a loss of money or property caused by unfair competition.” Peterson v. Cellco P’ship, 164
Cal. App. 4th 1583, 1590 (2008) (citations omitted) (emphasis added). Here, Plaintiff has not
alleged any facts to demonstrate that he has suffered injury in fact or a loss of money or property
as a result of any conduct by any Defendant. Therefore, Plaintiff has failed to demonstrate that
he has standing to bring a 17200 claim.

2. Plaintiff fails to plead any “fraudulent” business practices.

Business and Professions Code § 17200 prohibits unlawful, unfair, and fraudulent
business acts. Plaintiff's claim is apparently made pursuant to the “fraudulent” prong of 17200.
(See Compl. 24.) Allegations of fraud made pursuant to § 17200 are distinguishable from
common law fraud claims in that actual reliance need not be shown in order to state a claim
under § 17200. Under § 17200, a plaintiff need only allege that the public is likely to be
deceived. Klein v. Earth Elements, 59 Cal. App. 4th 965, 969-970 (1997). However, this does
not affect the rule that where allegations of fraud are made against corporate defendants, “The
requirement of specificity ... requires the plaintiff to allege the names of the persons who made

the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they

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said or wrote, and when it was said or written.” Tarmann v. State Farm Mut. Auto Ins. Co., 2
Cal. App. 4th 153, 157 (1991).

Here, Plaintiff fails to allege that Defendants made a fraudulent representation and, in
turn, also fails to plead his claim with the requisite degree of specificity. Instead, Plaintiff
alleges conclusory statements that Bank of America “falsely raise[d] [Plaintiffs] note payments
and “falsely foreclosed” on Plaintiff's property (Compl. § 24) but makes these allegations
without any further explanation. Defendants cannot be liable for fraud under § 17200 absent an
allegation that they made an untrue or misleading statement. Plaintiff's claim fails on this
ground alone.

3. Plaintiff fails to plead any “unfair” business practices.

“Unfair” conduct under the UCL has been commonly defined as conduct that “offends an
established public policy or . . . is immoral, unethical, oppressive, unscrupulous or substantially
injurious to consumers.” Scripps Clinic v. Superior Court, 108 Cal. App. 4th 917, 939 (2003).
When “determining whether the challenged conduct is unfair within the meaning of the unfair
competition law ... , courts may not apply purely subjective notions of fairness.” Id. at 941.
Rather, a plaintiff’s claim of UCL, if based on some public policy, must be “tethered” to a specific
constitutional, statutory, or regulatory provision to find an objective basis for determining whether
the alleged conduct is unfair. See id. at 940 (citing Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel.
Co., 20 Cal. 4th 163 (1999)). It is not unfair or deceptive to follow the clearly disclosed and
agreed upon terms of the parties’ written contract. See, e.g., Spiegler v. Home Depot U.S.A., Inc.,
552 F. Supp. 2d 1036, 1045-47 (C.D. Cal. 2008) (finding no unfair or deceptive business practices
where the defendants complied with the express terms of the parties’ contracts).

Nowhere in Plaintiff's Complaint does he allege conduct by any Defendant that is
“unfair”. Forcing Defendants to read into Plaintiff's allegations, the only conceivable conduct
which Plaintiff could be claiming is “unfair” would be the act of raising Plaintiff's monthly
mortgage payments for failure to timely pay his property taxes. (See Compl. {| 5-8.) However,
the Deed of Trust which was signed by Plaintiff and attached to the Complaint clearly sets forth

the right to impound Plaintiff's taxes into a monthly escrow account, thus raising his monthly

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payment. (See Compl., Exh. 1, pp. 2 at 2.) Therefore, it cannot be reasonably argued that
foreclosing on Plaintiff's property for Plaintiff's own failure to make his full, and contractually-
obligated, mortgage payments in accordance with the terms of the Deed of Trust, was “unfair”
conduct. For these reasons, the cause of action fails.

E. Plaintiff's Fourth Cause of Action for Intentional Infliction of Emotional

Distress Fails as a Matter of Law

“The elements of a cause of action for intentional infliction of emotional distress are well
settled. A plaintiff must allege that (1) the defendant engaged in extreme and outrageous conduct
with the intention of causing, or reckless disregard of the probability of causing, severe emotional
distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme emotional distress; and
(3) the outrageous conduct was the actual and proximate cause of the emotional distress.” Ross v.
Creel Printing & Publ’g Co., 100 Cal. App. 4th 736, 744-45 (2002) (affirming demurrer).

The question of whether a pleaded set of facts meets the “outrageous conduct” standard has|
often been resolved as a question of law at the pleading stage. See, e.g., id. at 883, Isaacson v.
Cal. Ins. Guarantee Assn., 44 Cal. 3d 775, 789 (1988) (trial court could find on demurrer that
alleged facts were insufficient to establish outrageous conduct), Davidson v. City of Westminster,
32 Cal. 3d 197, 210 (1982) (same). To constitute “outrageous conduct” the defendants actions
“must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.”
Trerice v. Blue Cross of Cal., 209 Cal. App. 3d 878 (1989). Lenders acting within the scope of
their regular duties does not constitute “outrageous conduct” as a matter of law. Singh v. Litton
Loan Servicing LP, 2011 U.S. Dist. LEXIS 49145, *29 (E.D. Cal. 2011) (“The complaint points to
no conduct of Litton outside that generally accepted in loan servicing, debt collection and/or the
foreclosure process, which is inherently stressful for debtors.”); Ross v. Creel Printing &
Publishing Co., Inc., 100 Cal. App. 4th 736 (2002) (sustaining demurrer to emotional distress
claim without leave to amend and recognizing that though a creditor may cause a debtor to
experience some distress in its attempt to collect a debt, this does not constitute actionable

“outrageous” conduct).

Here, in conclusory fashion, Plaintiff merely alleges that Defendants’ (unspecified)

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conduct was “intentional, malicious, wanton, willful and exceeded all socially acceptable norms
and was outrageous under the circumstances” (Compl. § 28) and that as a result, Plaintiff suffered
“injuries to his body, mind, health, strength and activity.” (Compl. § 29.) This is insufficient to
plead an intentional infliction of emotional distress claim. Furthermore, it appears Plaintiff is
alleging that Defendants initiating foreclosure proceedings on Plaintiff constitutes outrageous
conduct. (See Compl. § 28, referencing “conduct described in paragraphs 1-25”.) However,
Plaintiff never challenges that he is in default, but challenges the reason he is in default; and, no
matter who is your lender, the likely result of such a default is a foreclosure. Moreover, there has
been no actual injury as the foreclosure has not even occurred and no sale date is scheduled.
These deficiencies are amplified by the fact that Plaintiff fails to allege any physical injury. Most
importantly, as argued above, Plaintiff cannot even allege that Defendants’ behavior violates the
law, let alone constitutes extreme behavior. For all of these independent reasons, this cause of
action fails.

F. Plaintiff's Fifth Cause of Action For Slander of Title Fails

Plaintiff's slander of title cause of action fails for lack of the requisite specificity and for
failure to state a claim. Indeed, Plaintiff's single allegation for his slander of title claim consists
of two sentences and reads: “Defendants have published falsehoods, without privilege, and
disparaged title to plaintiff's property. Said disparagement has resulted in a loss of the plaintiff's
equity in the property and he is damaged as a result.” (Compl. § 31.) Not only has Plaintiff
failed to state a claim for relief, but the allegations fail for lack of specificity as required in fraud-
based claims.

1. Fraud must be pled with specificity.

Slander of title is a fraud-based causes of action based on the underlying premise that
each of the documents involved in the non-judicial foreclosure was falsely recorded by
Defendants. The elements of causes of action for fraud are: “(1) a misrepresentation, (2) with
knowledge of its falsity, (3) with the intent to induce another’s reliance on the misrepresentation,
(4) justifiable reliance, and (5) resulting damage.” Conroy v. Regents of Univ. of Cal., 45 Cal.
4th 1244, 1254 (2009). “Every element of the cause of action for fraud must be alleged in the

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINTBRYAN Cave LLP
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proper manner and the facts constituting the fraud must be alleged with sufficient specificity.”
Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal. App. 4th 153, 157 (1991). To meet the
specificity requirements, a plaintiff must plead “facts which show how, when, where, to whom,
and by what means the representations were tendered.” Stansfield v. Starkey, 220 Cal. App. 3d
59, 73-74 (1990). Plaintiff's Complaint fails to even set forth the documents he claims are
“published falsehoods”.

Indeed, the Complaint does not satisfy the heightened pleading burden associated with
fraud, failing to set out the necessary specifics. Plaintiff does not identify a representation, allege
why he believes the representation was false, state who made the alleged misrepresentation and
his/her authority to speak, and clarify whether the speaker knew the representation was false and
intended for Plaintiff to rely upon it. Plaintiff has also failed to plead knowledge of falsity,
instead stating that Defendants simply recorded the documents. (See Compl. 31.) This does
not comport with the requirements for pleading fraud.

2. Defendants’ notices were privileged.

To state an action for slander of title, a plaintiff must allege: “(1) a publication, (2) which
is without privilege or justification, (3) which is false, and (4) which causes direct and immediate
pecuniary loss.” Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal. App. 4th 1040, 1051
(2009). Specifically, “the statutorily required mailing, publication, and delivery of notices in
nonjudicial foreclosure, and the performance of statutory nonjudicial foreclosure procedures,
[are] privileged communications under the qualified common interest privilege of [California
Civil Code] section 47, subdivision (c)(1)”). Kachlon v. Markowitz, 168 Cal. App. 4th 316, 333-
34 (2008). Because Defendants’ published documents (presumably Plaintiff is referring to the
Notice of Default) are part and parcel to the non-judicial foreclosure process, they necessarily
qualify as privileged communications under the qualified common interest privilege. Plaintiff
cannot overcome the qualified interest privilege. Pursuant to California Civil Code section 47,
“{a] privileged communication or broadcast is one made: (c) [iJn a communication, without
malice.” Cal. Civ. Code § 47(c). The court in Kachlon found that, as a matter of law, the

defendant trustee did not act with malice, as “[n]o evidence suggested that it acted with ill will or

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with reckless disregard... .” Id, at 344.

Here, Plaintiff's allegation of malice to overcome privilege is based on the underlying
premise that “Defendants have published falsehoods, without privilege...” (Compl. 431.) This
is wholly insufficient for a showing of malice, thus Plaintiff's pleading with respect to the
alleged fraud as against Defendants is fatally deficient. Plaintiff does nothing more than allege
that “falsehoods” were published. Plaintiff has not met his pleading burden as against
Defendants and thus the cause of action fails.

G. Plaintiff’s Sixth Cause of Action for Negligence Fails

Plaintiff will not prevail on his negligence claim as he has not, and cannot, plead a duty
of care was owed by Defendants. The Complaint alleges that Defendants owed Plaintiff a duty
of care to “determine if in fact he was behind in payments, taxes and insurance covering the
subject property” and to disclose “any facts that they deemed such as to have impaired their
security in the plaintiff's property.” (Compl. § 33.) Plaintiff's allegations regarding the duty of
care owed to him is unclear at best.

“The existence of a duty of care owed by a defendant to a plaintiff is a prerequisite to
establishing a claim for negligence.” Nymark v. Heart Fed. Sav. & Loan Ass'n, 231 Cal. App. 3d
1089, 1095 (1991). A lender owes no duty of care to a borrower unless “the lender actively
participates in the financed enterprise beyond the domain of the usual money lender.” Wagner v.
Benson, 101 Cal. App. 3d 27, 35 (1980) (internal quotations and citations omitted); accord
Nymark, 231 Cal. App. 3d at 1096 (“[A] financial institution owes no duty of care to a borrower
when the institution’s involvement in the loan transaction does not exceed the scope of its
conventional role as a mere lender of money.”). As to Plaintiff's first argument, Plaintiff is unable
to establish how Defendants’ act of impounding property taxes into an escrow account, pursuant to]
the terms of the Deed of Trust, is in fact acting beyond its role as Plaintiff's lender.

As to Plaintiff's second argument that Defendants have breached an alleged duty to
disclose “any facts that they deemed such as to have impaired their security in the plaintiff's

property”, it is entirely unclear what Plaintiff is actually alleging and thus the claim fails.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PLAINTIFE’S COMPLAINTBRYAN Cave LLP
333 MARKET STREET, 25™ FLooR
SAN FRANCISCO, CA 94105,

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H. The Seventh Cause of Action Entitled “Expungement of Notice of Default”

Fails for Failure to State a Claim

Plaintiff's seventh cause of action for “expungement of notice of default” fails for the
simple fact that it is not a proper cause of action. Plaintiff's sole supporting allegation is that the
“Notice is based on false facts and not even given by any lawful owner of the trust deed secured
by the plaintiff's property.” (Compl. § 38.) This claim will fail because this is not a valid cause of
action but is rather a particular relief sought. Similar to his claim for injunctive relief (infra) as a
cause of action, this is not a proper cause of action in itself.

I. The Eighth Cause of Action for Injunction Fails as a Matter of Law

Plaintiff's request for injunction in the Complaint fails because it is black letter law in
California that injunctive relief is a remedy, not a cause of action. Marlin v. AIMCO Venezia,
LLC, 154 Cal. App. 4th 154, 162 (2007); Shamsian v. Atl. Richfield Co., 107 Cal. App. 4th 967,
984-85 (2003) (“[A] request for injunctive relief is not a cause of action. Therefore, we cannot let
this ‘cause of action’ stand.”). Plaintiff's claim fails and Defendants request the Court sustain the
demurrer as to this cause of action, without leave to amend.

J. The Ninth Cause of Action for Fraud Fails For Lack of Specificity

Plaintiff makes vague allegations that fraud has occurred in issuance of the Notice of
Default. (See Compl. {{ 44-48.) However, Plaintiff has not sufficiently alleged a cause of action
for fraud and has pled no facts in support of this claim.

Fraud is “[t]he suggestion, as a fact, of that which is not true, by one who does not believe
it to be true.” Cal. Civ. Code § 1572(1). The elements of causes of action for fraud are: “(1) a
misrepresentation, (2) with knowledge of its falsity, (3) with the intent to induce another’s reliance
on the misrepresentation, (4) justifiable reliance, and (5) resulting damage.” Conroy v. Regents of
Univ. of California, 45 Cal. 4th 1244, 1255 (2009); Gil v. Bank of America, N.A., 138 Cal. App.
4th 1371, 1381 (2006) (same).

1. Plaintiff must allege reasonable reliance.

In order to allege justifiable reliance, a party must allege that “circumstances were such

to make it reasonable for plaintiff to accept defendant’s statements without an independent

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Co em N DH BF BW NY HY

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inquiry or investigation.” Wilhelm v. Pray, Price, Williams Russell, 186 Cal. App. 3d 1324,
1332 (1986) (emphasis omitted); see also Philipson Simon y. Gulsvig, 154 Cal. App. 4th 347,
363-64 (2007). Further, “[a]ctual reliance occurs when a misrepresentation is ‘an immediate
cause of [a plaintiff's] conduct, which alters his legal relations,’ and when, absent such
representation, "he would not, in all reasonable probability, have entered into the contract or
other transaction.” Engalla y. Permanente Medical Group, 15 Cal. 4th 951, 976 (1997)
(internal citations omitted). Here, Plaintiff's only allegation as to reliance is that “plaintiff
reasonably and justifiably relied on the terms of his original note.” (Compl. { 47.) This is
insufficient to establish reliance.

2. Fraud must be pled with specificity.

As previously set forth above at Sec. IV. F, supra, every element of a fraud claim must be
alleged with specific facts. See Cooper v. Equity General Ins. Co., 219 Cal. App. 3d 1252, 1262
(1990). Moreover, the particularity requirement is heightened when the defendant is a
corporation. Because a corporation speaks and acts only through its agents and servants, plaintiff
must allege the name of the person who spoke, his authority to speak, to whom he spoke, what
was said, and when it was said. See Tarmann v. State Farm Mutual Auto Ins. Co., 2 Cal. App.
4th 153, 157 (1991). Here, Plaintiff pleads no specific facts in support of his claim. (See Compl.
qf 44-48.)

3. Plaintiff must plead damages.

To plead fraud, Plaintiff must allege damages. Wallis v. Farmers Group, Inc., 220 Cal.
App. 3d 718, 734 (1990) disapproved on another ground in Dore v. Arnold Worldwide, Inc., 39
Cal.4th 384, 389 (2006). Plaintiff must show he suffered some monetary loss as a result of a
claimed misrepresentation. See R.D. Reeder Lathing Co., Inc., v. Cypress Ins, Co., 3 Cal. App.
3d 995, 999 (1970). Here, Plaintiff only sets forth that he “has been damaged as a result of
BofA’s acts.” (Compl. { 48.) Plaintiff fails to allege that he has suffered a monetary loss as a
result of Bank of America’s misrepresentations. Therefore, his claim for damages fails.

Indeed, Plaintiff has failed to meet any of the enumerated standards for pleading a fraud

claim. He has not alleged the who, what, where, when and how of the purportedly fraud.

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Plaintiff has not alleged any reasonable reliance, nor has he alleged any damages. In fact,
Plaintiff does not allege any facts at all to support his allegation that Defendants defrauded him.

Therefore, this claim fails. Defendants requests the demurrer be sustained as to Plaintiff's cause

4 |of action for fraud, without leave to amend.

Vv. CONCLUSION
Defendants respectfully request the Court sustain the Demurrer as to all causes of action

without leave to amend as Plaintiff cannot cure the defects contained in the Complaint.

Dated: August 27, 2012 BRYAN CAVE LLP

Attorneys for Defendants

BANK OF AMERICA, N.A. (erroneously sued
as “BANK OF AMERICA NATIONAL
ASSOCIATION”) and COUNTRY WIDE
HOME LOANS, INC., dba AMERICA’S
WHOLESALE LENDER

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