Legal Document: RICHARD NATHANSON vs LIL WAVE FINANCIAL, INC., et al

On January 24, 2024 a Nathanson_Demurrer to 2nd Case_FINAL was filed involving a dispute between Nathanson, Richard, and Equity Trust Company Cust Fbo Ron Meyer Roth Ira, Lil Wave Financial, Inc., for (26) Unlimited Other Real Property in the District Court of Santa Cruz County.

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1 LAW OFFICES OF EDWARD T. WEBER
Edward T. Weber, Esq. #194963
2 Post Office Box 9893
3 Fountain Valley, Calif. 92728
Telephone: (657) 235-8359
4 Facsimile: (714) 459-7853
Email: ed@eweberlegal.com
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6 Attorneys for all Defendants
LIL’ WAVE FINANCIAL, INC. DBA SUPERIOR LOAN SERVICING and EQUITY TRUST
7 COMPANY CUST FBO RON MEYER ROTH IRA
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CRUZ
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RICHARD NATHANSON, Case No.: 24CV00224
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Plaintiff,
13 DEFENDANTS’ DEMURRER TO
v.
COMPLAINT AND DECLARATION OF
14 KRISTI M. WELLS IN SUPPORT
LIL’ WAVE FINANCIAL, INC D.B.A.
THEREOF
15 SUPERIOR LOAN SERVICING; EQUITY
TRUST COMPANY CUST FBO RON
16 HEARING:
MEYER ROTH IRA; and DOES 1-10,
Date: April 29, 2024
17 inclusive
Time: 8:30 AM
Place: Dept. 5
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Defendants.
19 Complaint filed: 7/17/2023
Trial Date: None
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21 TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
22 PLEASE TAKE NOTICE that on April 29, 2024 at 8:30 a.m. in Department 5 of the
23 Superior Court of California, County of Santa Cruz located at 701 Ocean Street, Santa Cruz, CA
24 95060, Defendants, LIL’ WAVE FINANCIAL, INC. D.B.A. SUPERIOR LOAN SERVICING
25 (hereinafter “SUPERIOR”) and EQUITY TRUST COMPANY CUST FBO RON MEYER ROTH
26 IRA (hereinafter “EQUITY TRUST”) (hereinafter, collectively “Defendants”), by and through their
27 counsel, will and hereby does demurrer to Plaintiff’s Complaint.
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1
DEMURRER TO COMPLAINT
1 This Demurrer is based on the grounds that the Complaint, and each cause of action therein,
2 fails to state facts sufficient to constitute any cause of action against these demurring defendants
3 pursuant to Code of Civil Procedure section 430.10(e).
4 This Demurrer will be based on this notice of hearing, the Demurrer set forth below, the
5 attached memorandum of points and authorities, the complaint and all exhibits attached thereto, all
6 pleadings and records on file with the court, any matters which the court must or may take judicial
7 notice of, and any other papers on file herein and upon such additional law and argument as the
8 court may consider at the time of hearing on the Demurrer.
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11 DATED: February 22, 2024 LAW OFFICES OF EDWARD T. WEBER
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13 By: __________________________________
14 Edward T. Weber, Esq.
Attorney for Defendants
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DEMURRER TO COMPLAINT
1 DEMURRER TO COMPLAINT
2 Defendant Demurrer to the First through Seventh Causes of Action of Plaintiff on the
3 following grounds:
4 DEMURRER TO THE FIRST CAUSE OF ACTION
5 (Violation of California Civil Code § 2923.5)
6 1. The First Cause of Action fails to state facts sufficient to constitute a Cause of Action.
7 Code Civ. Proc. § 430.10(e).
8 DEMURRER TO THE SECOND CAUSE OF ACTION
9 (Violation of California Civil Code § 2923.6(c))
10 2. The Second Cause of Action fails to state facts sufficient to constitute a Cause of Action.
11 Code Civ. Proc. § 430.10(e).
12 DEMURRER TO THE THIRD CAUSE OF ACTION
13 (Violation of California Civil Code § 2923.7)
14 3. The Third Cause of Action fails to state facts sufficient to constitute a Cause of Action.
15 Code Civ. Proc. § 430.10(e).
16 DEMURRER TO THE FOURTH CAUSE OF ACTION
17 (Violation of California Civil Code § 2924.9)
18 4. The Fourth Cause of Action fails to state facts sufficient to constitute a Cause of Action.
19 Code Civ. Proc. § 430.10(e).
20 DEMURRER TO THE FIFTH CAUSE OF ACTION
21 (Violation of California Civil Code §2924.10)
22 5. The Fifth Cause of Action fails to state facts sufficient to constitute a Cause of Action.
23 Code Civ. Proc. § 430.10(e).
24 DEMURRER TO THE SIXTH CAUSE OF ACTION
25 (Negligence)
26 6. The Sixth Cause of Action fails to state facts sufficient to constitute a Cause of Action.
27 Code Civ. Proc. § 430.10(e).
28 ///

3
DEMURRER TO COMPLAINT
1 DEMURRER TO THE SEVENTH CAUSE OF ACTION
2 (Violation of Business and Professions Code § 17200)
3 7. The Seventh Cause of Action fails to state facts sufficient to constitute a Cause of
4 Action. Code Civ. Proc. § 430.10(e).
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6 LAW OFFICES OF EDWARD T. WEBER
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8 Dated: February 22, 2024 By: __________________________________
9 Edward T. Weber, Esq.
Attorney for Defendants
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DEMURRER TO COMPLAINT
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 Defendants respectfully submits the following memorandum of points and authorities in
3 support of their demurrer to the Complaint.
4 I. SUMMARY OF CASE AND RELEVANT FACTS
5 This is the second civil case filed by Plaintiff. The prior case, Case Number 23CV01935
6 (hereinafter “prior case”) is still active before Hon. Timothy Volkmann. The prior case involves
7 identical circumstances and Defendant SUPERIOR’s demurrers were each sustained and Plaintiff
8 failed to timely file an Amended Complaint. SUPERIOR filed a Declaration of counsel and Order
9 in support of Dismissal of SUPERIOR pursuant to California Code of Civil Procedure § 581(f)(2).
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In addition to the two civil cases filed by Plaintiff, Plaintiff also caused to be filed two
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bankruptcy cases in an attempt to delay the pending foreclosure on the property located at 150 Red
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Dog Ridge, Watsonville, CA 95076 (hereinafter “PROPERTY”). The first case was filed on April
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3, 2023 and was dismissed on October 18, 2023. The second case was filed on November 7, 2023
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immediately following dismissal of the first case. There was no motion to extend the stay as to the
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second bankruptcy and on February 6, 2024 the Bankruptcy court signed an order confirming no
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stay as to the second Bankruptcy case.
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On February 1, 2024 Plaintiff filed an Ex Parte Application for a Temporary Restraining
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Order which was denied. Plaintiff has gone to great lengths to attempt to disrupt the foreclosure,
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20 without success as there is no merit, no support and no likelihood of success as to the allegations in

21 the operative Complaint.

22 On or about June 20, 2022, Plaintiff sought to obtain a loan against the PROPERTY.

23 Plaintiff is the borrower of the loan that is the subject of this litigation. As evidenced by the

24 attached loan documents, EQUITY TRUST is the lender and SUPERIOR is the servicer. The loan
25 was taken as a non-owner occupied, business purpose loan, as evidenced in the loan documents
26 and affirmed by Plaintiff in his Complaint. The subject loan was in the amount of $129,000.00,
27 constituting 24 monthly payments in the amount of $1,404.42 due on the first day of each month
28 starting on August 1, 2022 with a final payment due on July 1, 2024 (hereinafter the “loan”).

5
DEMURRER TO COMPLAINT
1 Plaintiff at all times represented and affirmed that the purpose of the loan was for a non-
2 consumer, business purpose. Plaintiff signed and caused to be delivered to Defendant, a document
3 titled “PROMISSORY NOTE SECURED BY DEED OF TRUST (This Note Contains an
4 Acceleration Clause) PARTIALLY AMORTIZED BALLOON PAYMENT NOTE 1-4
5 RESIDENTIAL NON-OWNER OCCUPIED PROPERTY BUSINESS PURPOSE LOAN”,
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attached hereto as Exhibit 1.
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Plaintiff also caused to be signed and delivered to Defendant a DEED OF TRUST AND
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ASSIGNMENT OF RENTS which represented that his mailing address 1085 Summit Road,
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Watsonville, CA 95076 (hereinafter “Plaintiff’s address”), attached hereto as Exhibit 2.
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Plaintiff also caused to be signed and delivered to Defendant a document titled
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“CERTIFICATE OF BUSINESS PURPOSE LOAN” in which Plaintiff/ borrower affirmed that:
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“2. Mortgage Loan Originator has stressed to me the importance of knowing the primary
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purpose of the Loan. I know the duties and obligations of the Mortgage Loan Originator vary
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considerably depending upon whether the Loan is a “Consumer Loan” (for personal, household or
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16 family purposes), or the Loan is a “Business Purpose Loan”….

17 3. I have represented to Mortgage Loan Originator that all the proceeds of the Loan,

18 exclusive of commissions, fees, costs, expenses incurred to obtain the Loan, are for the following

19 purposes … Remodel, New construction, Business purpose…

20 5. No part of the Loan proceeds are intended to be used for nonbusiness (i.e. consumer)
21 purpose except [none listed].
22 The Lender(s), MLB/MLO, assignees and successors of the Lender(s) or of the Mortgage
23 Loan Originator (MLB/MLO), as applicable, may rely upon this certificate. I declare under penalty
24 of perjury under the laws of the State of California that the foregoing Certificate is true and
25 correct.”, attached hereto as Exhibit 3.
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Plaintiff also caused to be signed and delivered to Defendant a document titled AFFIDAVIT
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REGARDING LOAN PURPOSE which represented to Defendant the following facts:
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DEMURRER TO COMPLAINT
1 “1. This Loan for Borrower shall be secured by that real property located at 150 Red Dog
Ridge, Watsonville, CA 95076 and including SANTA CRUZ County APN: 106-101-22, (the
2 “Collateral”). The Collateral is a dwelling held for investment purposes and is not currently or
3 intended to be occupied by Borrower;
2. The proceeds of the Loan shall be for either business, commercial or investment
4 purposes;
3. The proceeds of the Loan shall not be used primarily for agricultural, farming, personal,
5 family, household or other consumer purposes;
6 4. Any debts, mortgages or costs, which may be paid from such other loan proceeds, shall be
solely in connection with such business, commercial or investment purposes and not in connection
7 with any agricultural, farming, personal, family, household or other consumer purpose.
Borrower understands that Broker and lender shall each rely upon and accept as true the
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representations made in this Affidavit and each such representation shall be conclusively presumed
9 to have been relied on by Broker and lender, regardless of any investigation made or information
possessed by Broker and/ or lender. Each warranty, representation and agreement contained in this
10 Affidavit is true and correct on the date hereof and shall be automatically deemed repeated and
reaffirmed on the closing and funding of the secured loan. The warranties, representations and
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agreements set forth herein shall be cumulative and in addition to any and all other warranties,
12 representations and agreements which Borrower shall five, or cause to be given, to Broker and/ or
lender, either now or hereafter.
13 BORROWER IS AWARE OF THE PENALTIES OF PERJURY, WHICH
14 INCLUDE THE EXECUTION OF A FALSE AFFIDAVIT, PURSUANT TO 18 U.S.C. SECTION
1621, AND THAT THE EXECUTION OF A FALSE AFFIDAVIT IS A CRIMINAL ACT
15 PURSUANT TO APPLICABLE LAW”, attached hereto as Exhibit 4.
Plaintiff also caused to be signed and delivered to Defendant a document titled
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DECLARATION OF NON-OWNER OCCUPANCY which provides:
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“… 2. Originator has stressed to me the importance of knowing whether I occupy or intend
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to occupy the Property as my principal residence.
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3. I have represented to Originator and again represent to Originator that:
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A. My true and only principal residence is located at: 1085 SUMMIT ROAD,
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WATSONVILLE, CA 95076.
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B. The Property that will secure this loan is not my principal residence.
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C. I have no intention of ever making the Property securing the loan my principal residence.
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The lender, broker, assignees and successor of the Originator may rely upon this certificate.
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I declare under penalty of perjury under the laws of the State of California that the foregoing
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Certificate is true and correct” attached hereto as Exhibit 5.
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Plaintiff also caused to be signed and delivered to Defendant a Uniform Residential Loan
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Application which provided that his address was Plaintiff’s address and that he owned that property

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DEMURRER TO COMPLAINT
1 for fifteen (15) years. Plaintiff represented in this document that the Property was an investment
2 property and that she received $3,800.00 gross rental income from the Property.
3 Plaintiff ultimately became delinquent on the loan.
4 II. LEGAL STANDARD
5 Code of Civil Procedure section 430.10(e) states in pertinent part that a party may demur to
6 a complaint when "the pleading does not state facts sufficient to constitute a cause of action."
7 Section 430.10(f) states that a party may demurrer to a pleading that is uncertain, including one
8 that is ambiguous and unintelligible. To overcome a demurrer, a plaintiff must plead facts to
9 establish every element of the causes of action. (See Cantu v. Resolution Trust Corp. (1992) 4
10 Cal.App.4th 857, 879.)
11 A party against whom a complaint or cross-complaint has been filed may object, by
12 demurrer, to the pleading, or to any of the causes of action stated therein, if the pleading does not
13 state facts sufficient to constitute a cause of action. C.C.P. §430.10(e). Such a demurrer may arise
14 from the face of the complaint or from any matter of which the court is required to or may take
15 judicial notice of. C.C.P. §430.30(a). A demurrer admits the truth of all material facts properly
16 pleaded. Aubry v. Tri City Hosp. Dist. (1992) 2 Cal.4th 962, 966 967. Furthermore, the purpose of
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a demurrer is to test the sufficiency of a complaint by raising questions of law. Siedler v.
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Municipal Court (1993) 12 Cal.App.4th 1229, 1233.
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Where apparent that the essential defects of the complaint cannot be cured by amendment,
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the demurrer should be sustained without leave to amend. Sackwett v. Wyatt (1970) 32 Cal.App.2d
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592. Furthermore, the absence of an essential element of a cause of action makes the cause of
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action subject to demurrer. Banerian v. O’Malley, (1974) 42 Cal.App.3d 604, 610. Additionally, a
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demurred should be sustained without leave to amend when, to allow the amendment would not
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alter the outcome. (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436.)
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26 Pursuant to these standards, it is evident the demurrer herein should be sustained.

27 III. ARGUMENT

28 The First through Fifth Causes of Action for Violation of Civil Code §§ 2923.5,
2923.6(c), 2923.7, 2924.9, and 2924.10 Fail to State a Cause of Action and Lack Sufficient

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DEMURRER TO COMPLAINT
1 Specificity and are Fatally Uncertain.
2 Specifically, Plaintiff does not address how these causes of action are applicable to the
3 subject loan. California Civil Code § 2924.15 provides that:
4 (a) Unless otherwise provided, paragraph (5) of subdivision (a) of Section 2924 and
5 Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall
apply only to a first lien mortgage or deed of trust that meets either of the following
6 conditions:
7 (1)
8 (A) The first lien mortgage or deed of trust is secured by owner-occupied residential
real property containing no more than four dwelling units.
9 (B) For purposes of this paragraph, "owner-occupied" means that the property is the
principal residence of the borrower and is security for a loan made for personal,
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family, or household purposes.
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(2) The first lien mortgage or deed of trust is secured by residential real property that is
12 occupied by a tenant and that contains no more than four dwelling units and meets all
of the conditions described in subparagraph (B) and one of the conditions described in
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subparagraph (C).
14 (A) For purposes of this paragraph:
(i) "Applicable lease" means a lease entered pursuant to an arm's length transaction
15 before, and in effect on, March 4, 2020.
16 (ii) "Arm's length transaction" means a lease entered into in good faith and for
valuable consideration that reflects the fair market value in the open market between
17 informed and willing parties.
(iii) "Occupied by a tenant" means that the property is the principal residence of a
18 tenant.
19 (B) To meet the conditions of this paragraph, a first lien mortgage or deed of trust shall
have all of the following characteristics:
20 (i) The property is owned by an individual who owns no more than three residential real
properties, each of which contains no more than four dwelling units.
21 (ii) The property shall have been occupied by a tenant pursuant to an applicable lease.
22 (iii) A tenant occupying the property shall have been unable to pay rent due to a
reduction in income resulting from COVID-19.
23 (C) For a first lien mortgage or deed of trust to meet the conditions of this paragraph, the
borrower shall satisfy either of the following characteristics:
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(i) The borrower has been approved in writing for a first lien loan modification or other
25 foreclosure prevention alternative before January 1, 2023.
(ii) The borrower submits a completed application for a first lien loan modification
26 before January 1, 2023, and, as of January 1, 2023, either the mortgage servicer has not
yet determined whether the applicant is eligible for a first lien loan modification, or the
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appeal period for the mortgage servicer's denial of the application has not yet expired.
28 (D) Relief shall be available pursuant to subdivision (a) of Section 2924 and
Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 for

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DEMURRER TO COMPLAINT
1 so long as the property remains occupied by a tenant pursuant to a lease entered into an
arm's length transaction.
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3 (b) This section shall become operative on January 1, 2023.

4 In this case, it is unequivocal that the loan that is the subject of this litigation is not
5 applicable to the above referenced code provisions in that it does not fall into any of the applicable
6 categories. As expressly provided by Plaintiff in all of the loan documentation he signed, that the
7 Property was not secured by an “owner-occupied residential real property” and the loan was not
8 made for “personal, family or household purposes.” Moreover, Plaintiff intentionally and
9 deliberately signed numerous documents stating the same and stating that his address was 1085
10 SUMMIT ROAD, WATSONVILLE, CA 95076, not the subject Property.
11 Here, § 2924 is not applicable because (1) Plaintiff is not a first lien mortgage on an owner
12 occupied dwelling with the proceeds being used for personal, family or household purposes and (2)
13 there is no reference to an arm’s length lease entered into on or before March 4, 2020 or that the
14 tenant was unable to pay rent due to a reduction in income resulting from COVID-19.
15 These causes of action are pled in a conclusory fashion, failing to provide the facts or
16 allegations necessary to support them. Additionally, there are no facts and no allegations that
17 render these causes of action subject to the referenced code provisions. In fact, the only facts that
18 exist specifically and unequivocally establish that the loan at issue is not applicable to these code
19 provisions. Therefore, the demurrer to these causes of action should be sustained.
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The Causes of Action for Negligence Fails to State Causes of Action and Lack Sufficient
21 Specificity and is Fatally Uncertain.

22 To be actionable, a claim for negligence must be specifically pled. Elements of a cause of
23 action for negligence are: (1) legal duty to use due care, (2) breach of that duty, (3) reasonably close
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causal connection between that breach and the resulting injury, and (4) actual loss or damage. Wylie
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v. Gresch (1987) 191 Cal.App.3d 412, 416. Plaintiff’s Complaint does not plead any of these
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elements and does not provide facts to support them. Instead, this cause of action is comprised of
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mere conclusory statements in a brief, unintelligible fashion. Plaintiff never identifies how
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Defendants owed a duty owed to Plaintiff.

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DEMURRER TO COMPLAINT
1 In fact, there is expressly no duty owed by the lender to a borrower. The mortgage
2 transaction between the borrower and the lender is an “arms length” transaction. Establishing a duty
3 of care owed by a defendant to a plaintiff is a prerequisite to establishing a claim for negligence.
4 Beauchamp v. Los Gatos Golf Course, 273 Cal. App.2d 20, 32 (1969). The pleading fails to provide
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any facts or any allegations as to how these individuals owed any duty to Plaintiff.
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Not only so, but the entire cause of action is premised upon the reference to code sections
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that are not appliable to the subject loan and the pleading fails to state any facts that they do. As
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described above, including the loan documents and all relevant documents related to the loan, the
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code sections propping up this cause of action clearly fly in the face of all facts and fail to state why
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those sections would apply.
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Based on the defects in the pleading, the demurrer to this cause of action should be
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13 sustained.

14 The Seventh Cause of Action for Violation of Business and Professions Code §17200
Fails to State a Cause of Action and Lack Sufficient Specificity and is Fatally Uncertain.
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Plaintiff has failed to plead the facts sufficient to challenge the sale or meet the elements of
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each of these causes of action. Here again this cause of action was pled in a conclusory fashion,
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failing to provide the facts or allegations necessary to support it, and therefore, the demurrer to this
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causes of action should be sustained.
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Unfair competition includes “any unlawful, unfair or fraudulent business act or practice and
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unfair, deceptive, untrue or misleading advertising[.] (Bus. & Prof. Code, § 17200.) The UCL
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“provides that an individual may not prosecute a UCL claim unless the individual “has suffered
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injury in fact and has lost money or property as a result of the unfair competition.” (Schwartz.
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Provident Life & Accident Ins. Co. (2013) 216 Cal.App.4 607, 611.)
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For a claim based on “unfair” business practices: “When a plaintiff who claims to have
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suffered injury from a direct competitor’s “unfair” act or practice invokes section 17200, the work
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“unfair” in that section means conduct that threatens an incipient violation of an antitrust law, or
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violates the policy or spirit of one of those laws because it effects are comparable to or the same as
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DEMURRER TO COMPLAINT
1 s violation of the law, or otherwise significantly threatens or harms competition.” (Cel-Tech
2 Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4 163, 187.)
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3 “Section 17200’s ‘unlawful prong’ borrows violations of other laws…and makes those
4 unlawful practices actionable under the UCL.” (Klein v. Chevron U.S.A., Inc. (2021) 202
5 Cal.App.4 1342, 1383, as modified on denial reh’g (Feb. 24, 2021).)
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6 Here, the Complaint cannot maintain the “unlawful” prong because it is based on violations
7 of Civil Code sections 2923.5, 2923.6(c), 2923.7, 2924.9, and 2924.10 are not applicable for
8 reasons explained in detail above.
9 For a UCL claim based on fraudulent practices, as the court held in Morgan v. AT&T
10 Wireless Services, Inc. (2009) 177 Cal.App.4 1235, 1255: “A claim based upon the fraudulent
th

11 business practice prong of the UCL is ‘distinct from common law fraud. ‘A [common law]
12 fraudulent deception must be actually false, known to be false by the perpetrator and reasonably
13 relied upon by a victim who incurs damages. None of these elements are required to state a claim
14 for… relief’ under the UCL. [Citations] This distinction reflects the UCL’s focus on the defendant’s
15 conduct, rather than the public against unscrupulous business practices.’ (Id. at 1255.)
16 The basis of a UCL fraudulent business practices claim is whether such a practice would
17 deceive members of the public. (Id. at 1257) Further, the requirement that fraud must be pleaded
18 with specificity does not apply to claims under the UCL. (Id. at 1256.)
19 In this case, this cause of action is contingent upon the allegations regarding code sections
20 which, as described above, are not appliable to the subject loan. The pleading is silent as to any
21 other facts or allegations that render this cause of action sufficiently pled and applicable to these
22 defendants. Therefore, the demurrer should be sustained without leave.
23 Plaintiff Cannot Escape The Impact of the Terms and Representations In the Loan
Documents He signed.
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25 In addition to the above, after accepting and spending the full benefits of the Loan

26 characterized in documents Plaintiff signed as a business purpose loan secured by non-residential

27 collateral, Plaintiff is estopped from now changing his position for the purpose of supporting their

28 claims for damages in this proceeding. California Evidence Code Section 623 defines estoppel as
follows:

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DEMURRER TO COMPLAINT
1 “Whenever a party has, by his own statement or conduct, intentionally and deliberately
led another to believe a particular thing true and to act upon such belief, he is not, in any
2 litigation arising out of such statement or conduct, permitted to contradict it.”
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“Estoppel is appliable ‘where the conduct of one side has induced the other to take such a
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position that it would be injured if the first should be permitted to repudiate its acts.’” (Brookview
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Condominium Owners’ Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 512…)
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To establish a defense of equitable estoppel, four elements must ordinarily be proved: ‘ “(1) The
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party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or
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must so act that the party asserting the estoppel had the right to believe that it was so intended; (3)
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the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon
10
the conduct of his injury.”…’ (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Café & Takeout III,
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Ltd. (1994) 30 Cal.App.4th 304, 311.) “Estoppel” is an equitable bar to enforcement of a claim
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when claimant’s conduct misleads adverse party to his prejudice. Connor v. Union Auto. Ins. Co.
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(1932) 122 Cal.App. 105, 9 P.2d 863.
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Here, all written documentation by Plaintiff represents that the subject loan was a non-
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consumer, non-owner occupied, business purpose loan and Plaintiff cannot now assert contrary
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facts and representations regarding the subject loan in an attempt to become eligible for code
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sections referenced herein.
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IV. CONCLUSION
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Wherefore, based on the foregoing, and in light of the insufficiency in the pleadings,
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Defendant respectfully requests that the demurrer to the entire Complaint, and each cause of action
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thereto, be sustained, without leave to amend, and for such other and further relief as the Court
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deems just and proper.
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LAW OFFICES OF EDWARD T. WEBER
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Dated: February 22, 2024 By:
27 Edward T. Weber, Esq.
Attorneys for all Defendant
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DEMURRER TO COMPLAINT

Exhibit “1”

Exhibit “2”
Exhibit “3”
Loan No: RMF4034261

CERTIFICATE OF BUSINESS PURPOSE OF LOAN

Borrower certifies to RUSHMYFILE, INC. ("Mortgage Loan Originator") as

follows:

l. I have applied to Mortgage Loan Originator for a trust deed loan of $129,000.00 secured by the real
property at 150 RED DOG RIDGE, WATSONVILLE, CA 95076 (the ''Loan").

2. Mortgage Loan Originator has stressed to me the importance of knowing the primary purpose of the
Loan. I know the duties and obligations of the Mortgage Loan Originator vary considerably depending
upon whether the Loan is a "Consumer Loan" (i.e., the Loan proceeds are primarily for personal, family,
or household purposes), or the Loan is a "Business Purpose Loan".

3. l have represented to Mortgage Loan Originator that all the proceeds of the Loan, exclusive of
commissions, fees, costs, expenses incurred to obtain the Loan, are for the following purposes:

Purpose Approximate Amount

A
R
$

C Refinance Investment Property
$ $129,000

D.
$
$

4. The primary purpose of the Loan is to finance the business enterprise known as
---------------------------, i.e., in the business of

5. No part of the Loan proceeds are intended to be used for the non-business (i.e. consumer) purpose
except

Purpose Approximate Amount

A
R
$
$

The Lender(s), MLB/MLO, assignees and successors of the Lender(s) or of the Mortgage Loan Originator
(MLB/MLO), as applicable, may rely upon this certificate. l declare under penalty of pe1jury under the laws of
g Certificate is true and correct

���c

/?-r) �Z-
RICHARD A. NATHANSON-Borrower
kJ/Date

- Co-Borrower /Date
Exhibit “4”
Exhibit “5”
1 DECLARATION OF KRISTI WELLS
2
3 I, Kristi Wells, declare as follows:

4 1. I am an attorney at law, duly licensed to practice before all courts of the State of
5 California, and am a contract attorney for the Law Office of Edward T. Weber (“Weber
6 Firm”), attorney of record for moving defendants in the above-entitled action. I have
7 personal knowledge of the facts set forth below and have become familiar of the facts
8 through reviews of the Weber Firm’s records. If called upon to testify thereto, I could
9 and would competently do so.
10 2. On February 5, 2024 I placed a call to Mr. Cara’s office, attorney for Plaintiff, and while
11 there was no answer I left a voice message advise who I was and the case I was calling
12 on and that the purpose of my call was to meet and confer prior to filing a demurrer. I
13 left my phone number and requested a call back.
14 3. On February 6, 2024 I received an email from Mr. Cara’s office regarding the case and
15 attempted to schedule a meet and confer.
16 4. The parties were able to Meet and Confer via telephone and several discussions
17 regarding the case took place but no resolution was accomplished and this demurrer
18 follows.
19 5. As of the date of the filing of this declaration, there has been no response to my meet
20 and confer attempt.
21 I declare under penalty of perjury that the foregoing is true and correct, and that this
22 Declaration was executed on this 16th day of February, 2024, at Yorba Linda, California.
23
24
25 ______________________________
Kristi M. Wells
26
27
28

14
DEMURRER TO COMPLAINT
1 PROOF OF SERVICE

2 STATE OF CALIFORNIA, COUNTY OF ORANGE

3 I am employed in the County of Orange, State of California. I am over the age of 18 and not
a party to the within action. My business address is: Post Office Box 9893, Fountain Valley,
4
California 92728
5
On the date set forth below, I served the following document described as:
6
DEFENDANTS’ DEMURRER TO COMPLAINT AND DECLARATION OF KRISTI M.
7 WELLS IN SUPPORT THEREOF
8
on all interested parties in this action by placing [X] a true copy [ ] the original thereof enclosed in
9 sealed envelopes addressed as follows:

10 NAME & ADDRESS OF ATTORNEY PHONE NUMBER/EMAIL ATTORNEY
FOR
11
CDLG, PC Phone: (888) 615-6765 Plaintiff
12 Tony Cara, Esq., SBN 170720 Fax: (888) 660-8874
2973 Harbor Boulevard, Suite 594 Litigation.CDLG@gmail.com
13 Costa Mesa, CA 92626-3912
14
15 [X] (BY EMAIL) By transmitting a true copy of the foregoing document(s) to the e-mail
addresses set forth above.
16 [ ] (BY MAIL, 1013a, 2015.5 C.C.P.)
17 [ ] I deposited such envelope in the mail at Fountain Valley, California. The envelope
was mailed with postage thereon fully prepaid.
18 [ ] I am readily familiar with the firm’s practice for collection and processing
correspondence for mailing. Under that practice, this document will be deposited with the U.S.
19 Postal Service on this date with postage thereon fully prepaid at Fountain Valley, California in the
20 ordinary course of business. I am aware that on motion of the party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of deposit
21 for mailing in affidavit.
[X] (STATE) I declare under penalty of perjury under the laws of the State of California that
22 the above is true and correct.
23
Executed on February 22, 2024, in Fountain Valley, California.
24
25
26 Abby Hernandez

27
28

15
DEMURRER TO COMPLAINT

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Cogliati, Syda Kosofsky Track Judge’s New Case

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February 23, 2024

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January 24, 2024

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Document for RICHARD NATHANSON vs LIL WAVE FINANCIAL, INC., et al

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