Request,Application: JENNY PEREZ VS. FORD MOTOR COMPANY ET AL

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                                Benjeman R. Beck (SBN 268617)
bbeck@slpattorney.com

Tina Farazian (SBN 281166)
tfarazian@slpattorney.com
Strategic Legal Practices, APC
1840 Century Park East, Suite 430
Los Angeles, CA 90067
Telephone: (310) 929-4900
Facsimile: (310) 943-3838

Attorneys for Plaintiff JENNY PEREZ

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

03/01/2017
Clerk of the Court
BY:VANESSA WU

Deputy Clerk

SUPERIOR COURT OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

JENNY PEREZ,

Plaintiff,

vs.

Case Nos.: CGC-16-555638
Hon. Harold E. Kahn

REQUEST FOR JUDICIAL NOTICE IN

FORD MOTOR COMPANY; FUTURE FORD, OPPOSITION TO DEFENDANT'S

INC.; and DOES | through 10, inclusive,

Defendants.

SUPPORT OF PLAINTIFF’S
MOTION TO STRIKE

Date: March 14, 2017

Time: 9:30 a.m.

Location: 302

Page 1

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION TO STRIKETO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

Plaintiff JENNY PEREZ, through her attorneys of record, requests that the Court take
judicial notice of the following documents in support of Plaintiff's Opposition to Defendant’s
Motion to Strike. This request is being made pursuant to California Evidence Code sections 452
and 453.

1. Attached as Exhibit 1 is a true and correct copy of Susilo v. Wells Fargo Bank NA,
796 F.Supp.2d 1177 (C.D. Cal. 2011).

Dated: March 1, 2017 STRATEGIC LEGAL PRACTICES, APC

Tina Farazian
Attorney for Plaintiff JENNY PEREZ

Page 2

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION TO STRIKEEXHIBIT 1Susilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

796 F.Supp.2d 1177
United States District Court,
C.D. California.

Franciska SUSILO
v.
WELLS FARGO BANK, N.A.; et al.

No. CV 11-1814 CAS.
|

June 21, 2011.

Synopsis
Background: Borrower brought state court action against
lenders and debt servicer, stemming from default on loan
secured by deed of trust and foreclosure upon her real
property. Action was removed. Defendants moved for
dismissal and to strike.

Holdings: The District Court, Christina A. Snyder, J.,
held that:

1 borrower’s state-law claims were not preempted by
Home Owners’ Loan Act (HOLA);

"] borrower adequately alleged lender’s breach of duty to
disclose reinstatement amount;

©] borrower adequately alleged lender’s breach of deed of
trust;

(1 fraud-based claims were alleged with sufficient
particularity;

(51 borrower adequately alleged trespass and conversion;

(6 borrower adequately alleged wrongful

foreclosure-based claims;

borrower had standing to bring California unfair
competition law (UCL) claim; and

1 claims seeking punitive damages in connection with
purported fraud would not be stricken.

Motions granted in part and denied in part.

Attorneys and Law Firms

*1181 Roger A.S. Manlin, Roger A.S. Manlin Law
Offices, Los Angeles, CA, for Franciska Susilo.

Jeremy E. Shulman, Anglin Flewelling Rasmussen
Campbell & Trytten LLP, Pasadena, CA, Stephen Craig
Chuck, Tiffany Morgan Birkett, Victoria Jane Tsoong,
Foley and Mansfield PLLP, Los Angeles, CA, for Wells
Fargo Bank, N.A. et al.

(IN CHAMBERS); WACHOVIA’S MOTION TO.
DISMISS (filed 04/15/11)

WACHOVIA’S MOTION TO STRIKE PORTIONS
OF PLAINTIFF’S FIRST AMENDED COMPLAINT
(filed 04/15/11)

ETS SERVICES, LLC MOTION TO DISMISS
PLAINTIFF’S FIRST AMENDED COMPLAINT
(filed 04/08/11)

CHRISTINA A. SNYDER, Judge.

The Court finds this motion appropriate for decision
without oral argument. Fed.R.Civ.P. 78; Local Rule 7-15.

I. INTRODUCTION

On January 21, 2011, plaintiff Franciska Susilo filed the
instant action in Los Angeles County Superior Court
against Wells Fargo Bank, N.A. (“Wells Fargo”);
Wachovia Mortgage FSB (“Wachovia”); ETS Services,
LLC (“ETS”); and Does 1 to 50, inclusive (collectively,
“defendants”).

On February 17, 2011, plaintiff filed a first amended
complaint (“FAC”) against defendants alleging claims for
(1) negligence; (2) breach of contract; (3) negligent
misrepresentation; (4) fraud; (5) promissory fraud; (6)
trespass and conversion; (7) set aside trustee sale; (8) set
aside Trustee’s Deed; (9) wrongful foreclosure; (10)
breach of the Implied Covenant *1182 of Good Faith and
Fair Dealing; and (11) violation of Bus. & Prof.Code §
17200 et seg. On March 2, 2011, Wachovia removed the
action to this Court based on diversity jurisdiction
pursuant to 28 U.S.C. § 1332(a)(2).Susilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

On April 8, 2011, defendant ETS filed a motion to
dismiss plaintiff's FAC (“ETS Mot.”). On April 15, 2011,
defendant Wells Fargo filed a motion to dismiss
plaintiff's FAC (“WFB Mot.”) and motion to strike
portions of plaintiff's FAC (“WEB Mot. to Strike”). On
April 18, 2011, plaintiff filed her opposition to ETS’s
motion (“Opp. to ETS”). ETS filed its reply in support of
its motion (“ETS Reply”) on April 28, 2011. On May 16,
2011, plaintiff filed her opposition to Wells Fargo’s
motion to dismiss (“Opp. to WFB”) and opposition to
Wells Fargo’s motion to strike (“Opp. to WFB Mot. to
Strike”). Wells Fargo filed its reply in support of its
motion to dismiss (“WEB Reply”) and reply in support of
its motion to strike (“WFB Reply to Mot. to Strike”) on
May 23, 2011. After carefully considering the arguments
set forth by the parties, the Court finds and concludes as
follows.

Il, BACKGROUND

In April 2008, plaintiff obtained a $620,750 loan from
Wachovia, secured by a deed of trust recorded against the
real property located at 1100 Wilshire Blvd., Unit 3108,
Los Angeles, CA 90017 (“the Property”). See FAC § 1;
ETS Mot. at 1, WFB Mot. at 5. On November 1, 2009,
Wachovia Mortgage was converted to a national bank and
merged into Wells Fargo Bank, N.A.' WFB RIN, Exh. E.
‘The deed of trust grants the beneficiary the right to
proceed with a nonjudicial foreclosure sale in the event of
a default under the terms of the trust or the note secured
by the deed of trust. FAC § 9; WFB RIN, Exh. B.

7 The Court GRANTS Wells Fargo’s request for judicial
notice with respect to Exhibits B, C, D, E, F, G, I, and
J. See defendant Wells Fargo’s Request for Judicial
Notice (“WFB RJN”) at 2.

On July 21, 2010, Wells Fargo caused a notice of default
(“NOD”) to be recorded with the Los Angeles County
Recorder’s Office. FAC ¥ 11; ETS Mot. at 5: WFB Mot.
at 1, The NOD states that plaintiff was $37,515.31 in
arrears as of July 20, 2010. FAC, Exh. A. A Substitution
of Trustee was executed on July 23, 2010, and recorded
on October 21, 2010 with the Los Angeles County
Recorder’s Office, whereby Wachovia Mortgage
substituted Golden West Savings Association Service Co.
for ETS as the trustee under the deed of trust at issue.’
ETS Mot. at 5; ETS RJN, Exh. 3. Plaintiff alleges that
none of the documents pertaining to the foreclosure,
including the NOD, was properly served on plaintiff in
compliance with applicable law or delivered to plaintiff at
her address in Singapore, which she alleges defendants

knew at all times, FAC § 12. Plaintiff alleges that she did
not receive the NOD until September 2010, and that the
NOD was incomplete and contained false and misleading
information, such as the incorrect identification number
for the loan, FAC §f| 13, 15. Plaintiff claims that upon
receipt of the NOD, she immediately telephoned an ETS
representative and learned that the amount neces
cure the default and reinstate the loan was le:
$46,800 as of October 11, 2011. FAC { 15. Pla
further alleges that a letter from Shanon De’Arman on
behalf of ETS and Wachovia, dated September 28, 2010,
confirmed this amount. FAC 4 15; see WFB RJN, Exh. G,

7 The Court GRANTS ETS’s request for judicial notice
with respect to Exhibits 1, 2, 3, 4, and 5. See defendant
ETS’s Request for Judicial Notice (“ETS RIN”) at 2.

*1183 Plaintiff alleges that on October 7, 2010, she
caused a check in the amount of $46,800 issued by Bank
of America to be delivered to Wachovia (“the October
check”), and that the check was accepted and endorsed for
deposit by Wachovia and Wells Fargo. FAC § 16.
Plaintiff alleges that at some time after October 11, 2010,
defendants refused to reinstate the loan, cancelled the
lender’s deposit endorsement, and proceeded to schedule
a foreclosure sale of the Property. FAC 4 17. On October
21, 2010, a Notice of Trustee’s Sale was recorded in the
Office of the Los Angeles County Recorder noticing a
sale date of November 12, 2010. WFB Mot. at 2. Plaintiff
alleges that on November 4, 2010, she received a letter
from the foreclosure department of Wachovia Mortgage,
which she claims was backdated to October 12, 2010,
stating that Wachovia would not accept the October check
because it was received during the initiation of a
foreclosure action and was not enough to reinstate the
loan. FAC 4 17. Plaintiff alleges this statement was false,
that she received no notice of the scheduled sale as
required by law, and that defendants concealed such
notice for the purpose of foreclosing on the Property.
FAC 4917-18.

Plaintiff alleges that on November 4, 2010, Gary Pollack
(“Pollack”), plaintiffs accountant in Los Angeles,
contacted ETS to discuss reinstatement of plaintiff's loan,
and that ETS representatives informed him that ETS
could not provide such information without an
authorization letter from plaintiff acceptable to lender.
FAC 4 20-21. Pollack received the authorization letter
from plaintiff on November 6, 2010, and delivered the
same to the ETS representatives on November 7, 2010,
along with a request for any reinstatement amount and
instructions on where to deliver such funds. FAC 421. On
November 8, 2010, ETS representative Monique DoeSusilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

informed Pollack that ETS had sent the lender plaintiff's
request for a letter confirming the reinstatement of the
loan, but the lender had ignored the request. FAC 4 21.
ETS representatives also informed Pollack that a
foreclosure sale had been scheduled for November 12,
2010, and that Pollack would have to contact Wachovia
directly to resolve the issue. FAC 4 21.

Also on November 8, 2010, Pollack sent Wachovia a
copy of the power of attorney and telephoned Wachovia
to arrange for reinstatement of the loan and to cancel or
extend the foreclosure sale scheduled for November 12,
2010. FAC 4 22. Pollack and Wachovia representatives
exchanged numerous phone calls on November 8, and
during the last one, plaintiff alleges, a representative of
Wachovia informed Pollack that Wachovia would cancel
or delay the foreclosure if Pollack could provide a
statement of funds available to pay the reinstatement
amount. FAC § 23. However, plaintiff alleges, Wachovia
would not disclose the amount in arrears. FAC {[ 23.

Plaintiff all that on November 10, 2010, Pollack
delivered a copy of plaintiffs account statement
reflecting available funds in excess of $250,000. FAC
24, Plaintiff further alleges that during a telephone
conference also on November 10, a representative from
the Wachovia foreclosure department told both plaintiff
and Pollack that Wachovia had received the correct
reinstatement amount back in October through the
October check, as well as plaintiff's letter verifying her
current availability of funds. FAC § 25. Additionally,
plaintiff alleges that the representative advised plaintiff
and Pollack that upon receipt of a letter from plaintiff
disputing the sale, the foreclosure sale would be delayed
pending resolution of the loan reinstatement. FAC 4) 25.
This representative, plaintiff alleges, refused to disclose
the reinstatement amount on the ground that the loan
should have been reinstated upon receipt of the October
check. FAC *1184 § 25. Plaintiff alleges that she
delivered the requested dispute letter by fax. FAC | 25.
Plaintiff also alleges that Pollack delivered proof a
$52,000 cashier’s check payable to Wachovia, which a
Wachovia representative had promised would delay the
foreclosure sale pending resolution of the loan
reinstatement. FAC { 25. Plaintiff alleges that without
further notice, defendants proceeded with the November
12, 2010 foreclosure, removing and converting all of
plaintiff's personal furnishings, furniture and belongings
in the Property. FAC § 26, 28.

‘The gravamen of the FAC is that defendants wrongfully
initiated foreclosure proceedings on the Property and that
the trustee’s sale is invalid because defendants violated an
agreement with plaintiff to cure the default and reinstate

the loan, refused to communicate with plaintiff and her
authorized representative regarding the foreclosure sale
and the reinstatement amount, and executed the
foreclosure through fraud and bad faith. FAC fj 31, 35,
61,71.

Ill. LEGAL STANDARD

A Rule 12(b)(6) motion tests the legal sufficiency of the
claims asserted in a complaint. “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations, a plaintiff's obligation to
provide the ‘grounds’ of his ‘entitlement to relief
requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
“Factual allegations must be enough to raise a right to
relief above the speculative level.” /d. Stated differently,
only a complaint that states a claim for relief that is
“plausible on its face” survives a motion to dismiss.
Ashcroft v. Igbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50,
173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at
570, 127 S.Ct. 1955). “The plausibility standard is not
akin to the ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” /d.

In considering a motion pursuant to Fed.R.Civ.P.
12(6\(6), a court must accept as true all material
allegations in the complaint, as well as all reasonable
inferences to be drawn from them. Pareto v. F.D.I.C., 139
F.3d 696, 699 (9th Cir.1998). The complaint must be read
in the light most favorable to the nonmoving party.
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir.2001); Parks Sch. of Bus., Inc. v. Symington, 51
F.3d 1480, 1484 (9th Cir.1995). However, a court need
not accept as true unreasonable inferences or conclusory
legal allegations cast in the form of factual allegations.
Sprewell, 266 F.3d at 988; W. Mining Council v. Watt,
643 F.2d 618, 624 (9th Cir.1981).

Dismissal pursuant to Rule 12(b)(6) is proper only where
there is either a “lack of a cognizable legal theory or the
absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pac. Police Dept, 901 F.2d
696, 699 (9th Cir.1990).

Furthermore, unless a court converts a Rule 12(b)(6)
motion into a motion for summary judgment, a court
cannot consider material outside of the complaint (e.g.,
facts presented in briefs, affidavits, or discovery
materials). Jn re American Cont’! Corp./Lincoln Sav. &
Loan See. Litig., 102 F.3d 1524, 1537 (9th Cir.1996),Susilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

rev'd on other grounds sub nom. Lexecon, Inc. v. Milberg
Weiss Bershad Hynes & Lerach, 523 U.S. 26, 118 S.Ct.
956, 140 L.Ed.2d 62 (1998), A court may, however,
consider exhibits submitted with or alleged in the
complaint and matters that may be judicially noticed
pursuant to Federal Rule of Evidence 201. *1185 In re
Silicon Graphics Ine. Sec. Litig., 183 F.3d 970, 986 (9th
Cir.1999); Lee v. City of Los Angeles, 250 F.3d 668, 689
(9th Cir.2001).

For all of these reasons, it is only under extraordinary
circumstances that dismi is proper under Rule
12(b)(6). United States v, City of Redwood City, 640 F.2d
963, 966 (9th Cir.1981).

As a general rule, leave to amend a complaint which has
been dismissed should be freely granted. Fed.R.Civ.P.
15(a). However, leave to amend may be denied when “the
court determines that the allegation of other fe
consistent with the challenged pleading could not possibly
cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well
Furniture Co., 806 F.2d 1393, 1401 (9th Cir.1986); see
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000).

IV. DISCUSSION

A. Preemption under the Home Owners’ Loan Act
Wells Fargo Bank contends that, as a preliminary matter,
plaintiff's state law claims are preempted by the Home
Owners’ Loan Act (“HOLA”) of 1933, 12 U.S.C. § 1461
et seq., and the regulations promulgated thereunder by the
Office of Thrift Supervision (“OTS”). WFB Mot. at
13-17. Wachovia Mortgage, now a division of Wells
Fargo Bank, N.A., was a federal savings bank regulated
by the OTS at the time the loan originated in 2008. WFB
Mot. at 11; see WFB RIN. Exh. C. Wells Fargo claims
that it is therefore proper to apply preemption under
HOLA, and that plaintiff's state claims are premised upon
allegations that fall within HOLA’s preemptive scope. /d.
at 12. Plaintiff agrees that HOLA is applicable in this
case, and contends that the state law claims asserted in the
FAC are not preempted by HOLA. Opp. to WFB at 17.

Through HOLA, OTS is “authorized to promulgate
regulations that preempt state laws affecting the
operations of federal savings associations when deemed
appropriate to facilitate the safe and sound operations of
federal savings associations.” 12 C.F.R. § 560.2. OTS’s
authority to regulate aspects of the operations of federal
savings associations “occupies the entire field of lending
regulation for federal savings associations.” /d. OTS
Regulation 560.2(b) expressly preempts state regulation
of federal thrift activities including, inter alia, terms of

credit, loan-related activit
and advertising, loan processing, loan origination, and
servicing of mortgages. 12 C.F.R. § 560.2(b). However,
state laws of general applicability, such as contract, tort,
and real property law, are not preempted “to the extent
that they only incidentally affect the lending operations of
Federal savings associations.” 12 C.F.R. § 560.2(c).

servicing fees, disclosure

The Ninth Circuit has stated that, in analyzing preemption
under 12 C.F.R. § 560.2, “the first step will be to
determine whether the type of law in question is listed in
paragraph (b). If so, the analysis will end there; the law is
preempted. If the law is not covered by paragraph (b), the
next question is whether the law affects lending. If it does,
then, in accordance with paragraph (a), the presumption
arises that the law is preempted.” Silvas v. E*Trade
Mortg. Corp., 514 F.3d 1001, 1005 (9th Cir.2008). As the
Ninth Circuit made clear in Silvas, the preemptive effect
of the OTS regulations is ad enough to enc
state laws of general applicability, including tort, contract,
and real property laws, if their enforcement impacts thrifts
in areas listed in paragraph (b). See id. at 1006; see also
Andrade v. Wachovia Mortg., 2009 WL 1111182, at
*2-3, 2009 U.S. Dist. LEXIS 34872, at *7-8 (S.D.Cal.
Apr. 21, 2009) (plaintiffs state law claims for fraud,
negligent infliction of emotion distress, negligence, and
cancellation based on fraud and impossibility preempted
under 12 C.F.R. § 560.2 where they “revolve{d] entirely
around the processing, *1186 origination, and servicing of
the Plaintiff's mortgage ...”) (internal quotations omitted);
Naulty v. GreenPoint Mortg. Funding, Inc., 2009 WL
2870620, at *4, 2009 U.S. Dist. LEXIS 79250, at *12-13
(N.D.Cal. Sept. 2, 2009) (same).

The Silvas court “did not look merely to the abstract
nature of the cause of action allegedly preempted but
rather to the functional effect upon lending operations of
maintaining the cause of action, as required by paragraph
(b).” Naulty, 2009 WL 2870620, at *4, 2009 U.S. Dis
LEXIS 79250, at *12. Pursuant to the Ninth Circuit’s
analysis, courts have found that certain claims of express
deception and breach of contract may survive preemption
under HOLA. See Gibson v. World Sav, & Loan Ass'n,
103 Cal.App4th 1291, 1303-04, 128 Cal.Rptr.2d 19
2002) (concluding that HOLA does not preempt “duties
to comply with contracts and the laws governing them
and to refrain from misrepresentation.”). In general, when
a plaintiff's claim is based on a defendant’s failure to
fulfill the general duty not to misrepresent material facts,
and when application of the law does not regulate lending
activity, California district courts have found that the
claims are not preempted. See Biggins v. Wells Fargo &
Co., 266 F.R.D. 399, 417 (N.D.Cal.2009) (distinguishing
between allegations of inadequate disclosures of loanSusilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

terms and affirmative, material misrepresentations).

Wells Fargo claims that plaintiff's claims are preempted
by HOLA, as they “attempt to attack the mortgage
servicing and foreclosure process” and are concerned with
the processing of plaintiffs mortgage. WFB Mot. at
14-15,

Plaintiff contends that, insofar they arise from
“affirmative ‘epresentations and concealment,”
plaintiff's claims are based on a “general duty not to
misrepresent material facts” rather than “purport[ing] to
regulate lending activity.” Opp. to WFB at 18, Plaintiff
distinguishes the cases cited by Wells Fargo by
contending that plaintiff makes no allegation based on
Civil Code § 2923.5 affecting the servicing of mortgag
by, inter alia, requiring efforts to contact and discuss loan
defaults with the borrower prior to initiating a foreclosure.
Opp. to at 19.

"I The Court finds that plaintiff's state law claims are
based in part on affirmative misrepresentations and
concealment, and only incidentally affect lending activity.
Accordingly, the Court finds that insofar as they do not
impose requirements to provide specific notices or
disclosures during the foreclosure process, plaintiff's
claims are not preempted by HOLA. See Giordano v.
Wachovia Mortg., 2010 WL 5148428, at *3-4 (N.D.Cal.
Dec. 14, 2010); Odinma v. Aurora Loan Servs., 2010 WL
1199886, at *8 (N.D.Cal. Mar. 23, 2010).

B. Claim 1; Negligence

2181 “To prevail on [a] negligence claim, plaintiffs must
show that [defendants] owed them a legal duty, that [they]
breached the duty, and that the breach was a proximate or
legal cause of their injuries.” Merrill v. Navegar, Inc., 26
Cal.4th 465, 477, 110 Cal.Rptr.2d 370, 28 P.3d 116
(2001). It is well-established under California law that a
financial institution owes no duty to borrowers when the
institution’s involvement in the loan transaction does not
exceed the scope of its role as a lender of money. See
Nymark v. Heart Fed. Sav. & Loan Ass'n, 231 Cal.App.3d
1089, 1096, 283 Cal.Rptr. 53 (1991); see also Ou
Mgmt. Corp. v. Superior Court of San Diego Cuty., 145
Cal.App.4th 453, 466, 51 Cal. Rptr.3d 561 (2006) (“a loan
transaction is at arms-length and there is no fiduciary
relationship between the borrower and lender”).
Moreover, “California Courts have refused to impose
duties on *1187 the trustee other than those imposed by
statute or specified in the deed of trust.” Heritage Oaks
Partners v. First Am. Title Ins. Co., 155 Cal.App Ath 339,
66 Cal.Rptr.3d 510, 514 (2007). “The rights and powers
of trustees in nonjudicial foreclosure proceedings have

long been regarded as strictly limited and defined by the
contract of the parties and the statutes.” LE. Assocs. v.
Safeco Title Ins, Co., 39 Cal.3d 281, 287, 216 Cal.Rptr.
438, 702 P.2d 596 (1985)

Plaintiff claims that ETS and ETS representatives, as the
trustee under the deed of trust, and Wells Fargo, acting as
plaintiff's lender and loan servicer, “had a duty to
exercise reasonable care and skill to maintain proper and
accurate loan records and to discharge and fulfill the other
incidents attendant to the maintenance, accounting and
servicing of loan records, including, but not limited [to],
accurate recordkeeping and documentation and
performance of duties and obligations relating to the
foreclosure of the deed of trust.” FAC 4] 30. Plaintiff
claims that defendants breached this duty by, “among
other things, failing to comply with the notice, posting,
and other statutory provisions of Civil Code § 2924 et
seq. in proceeding with the foreclosure; failing to reinstate
the loan and deed of trust; failing to delay, extend, or
cancel the foreclosure sale; failing to communicate with
Plaintiff and Plaintiffs authorized _ representatives
regarding the foreclosure and foreclosure sale: failing to
advise Plaintiff of ‘tement amounts promptly,
properly and accurately; and foreclosing on the Property
without having the legal authority and/or proper
documentation to do so.” FAC § 31.

Defendants move to dismiss plaintiff's negligence claim
on the grounds that they owed plaintiff no duty of care.
WFB Mot. at 17; ETS Mot. at 8. Additionally, ETS
alleges that the FAC “failfed] to place ETS on notice of
the claims being asserted against them” and to indicate
whether the duty “arose out contract, statute, or some
other special relationship.” ETS Mot. at 8. Further, ETS
contends that ETS was not the party in charge of
reinstating plaintiff's loan, and that therefore plaintiff's
allegations against ETS with respect to failure to reinstate
the loan must fail. /d.

Plaintiff replics that the FAC expressly alleges that
defendants breached their duties arising under the
California statutory scheme regulating the foreclosure
sales, Cal.Civ.Code § 2924 et seq., the deed of trust, and
the NOD. Opp. to ETS at 7; Opp. to WEB at 22.

441 15! The Court finds that defendants do not owe plaintiff
any common law duty. “The trustee of a deed of trust is
not a true trustee, and owes no fiduciary obligations; he
merely acts as a common agent for the trustor and the
beneficiary of the deed of trust. His only duties are: (1)
upon default to undertake the steps necessary to foreclose
the deed of trust; or (2) upon satisfaction of the secured
debt to reconvey the deed of trust.” Vournas v. FidelitySusilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

Nat. Title Ins. Co. 73 Cal.App.Ath 668, 677, 86
Cal.Rptr.2d 490 (1999) (citations omitted). The Court
finds that ETS, as a trustee, owed no duty to plaintiff to
reinstate plaintiff's loan, and plaintiff cannot maintain a
negligence cause of action against ETS. See ETS Mot. at
8-9.

is 171 It With respect to Wells Fargo, the Court finds that
plaintiff adequately alleges that Wells Fargo owed her a
duty, under Cal.Civ.Code § 2924 et seq. and under the
deed of trust, to disclose the reinstatement amount. Article
28 of the deed of trust states that the foreclosure sale must
comply with “applicable law,” which in this case is
: Yode § 2924 et seg. WFB RJN, Exh. B. “The
obligation of the beneficiary to provide the trustor with an
*1188 accurate accounting of the amounts due to cure a
default is governed by statute.” Anderson v. Heart Fed.
Sav. & Loan Ass'n, 208 Cal.App.3d 202, 215, 256
Cal.Rptr. 180 (1989). Section 2924¢ specifies that trustor
may have “the legal right to bring [her] account in good
standing by paying all of [her] past due payments plus

c s within the time
“Compliance with this pro’
ly requires that the beneficiary provide accurate
information in response to an inquiry by the trustor.”
Anderson, 208 Cal.App.3d at 216, 256 Cal-Rptr. 180. In
Anderson, the court found that “the burden is placed on
[the beneficiary] by sections 2924 and 2924c to inform
{the trustor] correctly about the amounts ‘then due’ on the
obligations properly noticed in the notice of default and
the foreclosure costs. This information is in the
possession of the beneficiary. [The trustor] is under no
obligation to second—guess the amount.” fd.

The Court finds that the FAC sufficiently alleges that
Wells Fargo breached this duty. See FAC § 22-23, 25.
The FAC also alleges that as a result of the breach,
plaintiff suffered financially. FAC | 32. The Court finds
that these allegations sufficiently state a claim of
negligence with respect to Wells Fargo. See Bojorquez v.
Gutierrez, 2010 WL 1223144, at *11 (N.D.Cal. Mar. 25,
2010).

Accordingly, the Court DENIES Wells Fargo’s motion to
dismiss plaintiff's claim for negligence and GRANTS
ETS’s motion to dismiss plaintiff's claim for negligence
with prejudice.

C. Claim 2 and 10: Breach of Contract, Breach of the
Implied Covenant of Good Faith and Fair Dealing

#1 Hel 11 The essential elements of a contract claim are:
(1) the existence of a valid contract between the parties,
(2) plaintiff's performance or excuse for nonperformance,

(3) defendants’ unjustified or unexcused failure to
perform, and (4) damages to plaintiff caused by the
breach. See Lortz v. Connell, 273 App.2d 286, 290, 78
Cal.Rptr. 6 (1969), “[E]very contract imposes upon the
contracting parties the duty of good faith and fair
dealing.” Price v. Wells Fargo Bank, 213 Cal.App.3d 465,
478, 261 Cal.Rptr. 735 (1989). “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, 212 Cal.Rptr, 743 (1985).

Defendants assert that plaintiffs contract claim is
deficient because plaintiff's default on her loan payments
shows her failure to perform under the deed of trust. WFB
Mot. at 18; ETS Mot. at 9, Wells Fargo further contends
that pk i

fails to show how Wachovia breached any contractual

n. fd. ETS contends that the foreclosure S
authorized by the power of sale clause in the deed of trust,
and that plaintiff therefore cannot allege a breach with
respect to the deed of trust. ETS Mot. at 9. Finally, ETS
claims that ETS was merely the messenger in regards to
the quoted reinstatement amount, and “had no
involvement in determining the sufficiency of [pJlaintiff’s
tender.” ETS Mot. at 17.

With respect to plaintiff's oral contract claims, defendants
maintain that plaintiff's claims are deficient because no
contract exists. WFB Mot. at 9; ETS Mot. at 10. ETS
contends that any alleged oral agreement to postpone the
sale is barred under *1189 the statute of frauds. WFB
Mot. at 8; ETS Mot. at 10, Likewise, defendants argue,
under Civil Code § 1698, any contract in writing can only
be modified by writing and execution by the parties, or
new consideration. WFB Mot. at 8; ETS Mot. at 10. Wells
Fargo also claims that an oral modification is barred by
Article 23 of the deed of trust. WFB Mot. at 9. ETS
contends that “any purported performance by plaintiff
under the alleged oral agreement was merely payment of
the debt already owed by [p]laintiff under the loan,” and
not new consideration. ETS Mot. at 10.

Plaintiff, in response, contends that the oral agreements
were not gratuitous, since defendants conditioned the
reinstatement of the loan and postponement of the
foreclosure on the tender of the redemption fee as
provided by the NOD and defendants. Opp. to WEB at 12.
Furthermore, plaintiff contends that the alleged oral
agreements were not modifications to a written contract
but rather agreements supported by consideration, whichSusilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

would even validate oral modifications to a written
contract. /d, at 12-13; Opp. to ETS at 8. Plaintiff contends
that she supplied such consideration in the form of the
$46,800 paid by plaintiff per ETS’s instructions, the
account statement reflecting plaintiff's available funds,
and the $52,000 cashier’s check tendered by Pollack. /d.
at 14; Opp. to ETS at 9.

Plaintiff further notes that ETS is in error in stating that
the contract plaintiff seeks to enforce is the deed of trust
and note. Opp. to ETS at 8. Rather, plaintiff argues, the
contractual agreements defendants breached were the
“provisions of the deed of trust relating to nonjudicial
foreclosure and procedures for reinstatement and the
specific terms of the NOD implementing those
procedut and the oral agreements of ETS and lender
to reinstate the loan and delay or cancel the foreclosure
sale. Id. at 7-8. Plaintiff further alleges that she has
complied with performing her part of the terms of the
NOD, the deed of trust, and the oral agreement of ETS
and lender to reinstate the loan and delay or cancel the
wrongfully scheduled foreclosure sale, “except those
terms for which performance was excused and/or waived
by the conduct of [dJefendants.” FAC 4 34. Plaintiff
argues that by “[sceking] to foreclose on the [P]roperty
and refusing] to reinstate the loan,” defendants breached
covenant of good faith and fair dealing and
|], destroyfed], or injurfed] [her] rights ... to
receive the benefits of their agreement.” FAC { 70.

#21 131 “Breach of contract is a state cause of action, and is
therefore governed by California law.” Hummer v. EMC
Mortg. Corp., 2011 WL 2079609, at *4, 2011 U.S. Dist.
LEXIS 55838, at *10-11 (E.D.Cal. May 23, 2011). While
the Court finds that the NOD is not a contract, the Court
agrees with plaintiff that Wells Fargo’s refusal to disclose
to plaintiff the reinstatement amount may constitute a
breach of the deed of trust. “The deed of trust constitutes
a contract between the trustor and the beneficiary, with
the trustee acting as agent for both and acting pursuant to
the terms of the instrument and their instructions.” Hatch
v. Collins, 225 Cal.App.3d 1104, 1111, 275 Cal._Rptr. 476
(1990). It is a term of Article 28 of the deed of trust that
the foreclosure sale must comply with “applicable law,”
which in this case is Cal.Civ.Code § 2924 et seg. WFB
RJN, Exh. B. As discussed above, a beneficiary under a
deed of trust has a statutory obligation to “provide the
trustor with an accurate accounting of the amounts due to
cure a default.” Anderson, 208 Cal.App.3d at 215, 256
Cal.Rptr. 180. Compliance with the statutory scheme
“requires that the beneficiary provide *1190 accurate
information in response to an inquiry by the trustor.” Id.
at 216, 256 Cal.Rptr. 180. With respect to ETS, the Court
agrees that as a trustee, ETS was merely a messenger for

Wells Fargo, and did not breach any term of the deed of
trust by failing to disclose to plaintiff the amount in
arrears.

"4! The Court agrees with defendants that plaintiff's
contract claims based on plaintiff and defendants’ oral
agreements are barred by the statute of frauds and the
terms of the deed of trust itself. The Court finds that,
contrary to plaintiffs allegations, the oral agreements
between plaintiff and defendants were modifications to
the existing deed of trust rather than new agreements
supported by consideration. In California, an existing
written contract may be modified by an oral agreement
supported by new consideration “/ujnless the contract
otherwise expressly provides.” Cal.Civ.Code § 1698(c)
(emphasis added). Article 23 of the deed of trust expressly
provides that the deed of trust may be “modified or
amended only by an agreement in writing signed by
Borrower and Lender.” WFB RJN, Exh. B. Moreover,
“the statute of frauds (Section 1624) is required to be
satisfied if the contract as modified is within its
provisions.” Cal.Civ.Code § 1698(c). The statute of
frauds states that an sale of real
property, or of an intere: id{ ] unles

[it], or some note or memorandum thereof, [is] in writing
and subscribed by the party to be charged or by the

party’s agent.” Cal.Civ.Code § 1624(a)(3).

Accordingly, the Court DENIES Wells Fargo’s motion to
dismiss plaintiff's claims for breach of contract and
breach of the implied covenant of good faith and fair
dealing, and GRANTS ETS’s motion to dismiss
plaintiff's claims for breach of contract and breach of the
implied covenant of good faith and fair dealing without
prejudice.

D. Claims 3, 4, and 5: Negligent Misrepresentation,
Fraud, Promissory Fraud

Three of plaintiff's claims sound in fraud: (1) negligent
misrepresentation; (2) fraud; and (3) promissory fraud.
See FAC §§ 38-53. Plaintiff alleges that defendants
defrauded her by “falsely representing and concealing
material facts relating to the reinstatement of plaintiff's
loan and foreclosure of the Property, with knowledge of
their falsity and without intention to perform the
promises, duties, and obligations of defendants.” FAC §
40. The gravamen of plaintiff's claim is that defendants
made promises about curing plaintiffs default, reinstating
her loan, and delaying the foreclosure sale of the Property
without intending to adhere to them, and concealed the
amount necessary to reinstate her loan with the purpose of
foreclosing on the Property.Susilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

"5! A plaintiff asserting fraud must allege facts supporting
the following elements: (1) a misrepresentation, (2)
knowledge of falsity (or scienter), (3) intent to defraud,
ie. to induce reliance, (4) justifiable reliance, and (5)
resulting damage. In re Estate of Young, 160 Cal.App.4th
62, 79, 72 Cal.Rptr.3d 520 (2008). In addition to stating
facts for each element, Federal Rule of Civil Procedure
9(b) requires that the circumstances constituting a claim
for fraud be pled with particularity, See Fed.R.Civ.P. 9(b)
(“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or
mistake.”); see also Lancaster Cmty. Hosp. v. Antelope
Valley Hosp. Dist, 940 F.2d 397, 405 (9th Cir.1991)
(finding that the standard “requires a pleader of fraud to
detail with particularity the time, place, *1191 and
manner of each act of fraud, plus the role of each
defendant in each scheme”).

161 1171 Federal Rule of Civil Procedure 9(b) applies not
where a complaint specifically alleges fraud as an
ential clement of a claim, but also where the claim is
‘grounded in fraud” or “[sounds] in fraud.” Fess. v.
Ciba-Geigy Corp. U.S.A., 317 F.3d 1097, 1103-04 (9th
Cir.2003). A claim is said to be “grounded in fraud” or “
‘sounds in fraud’ ” where a plaintiff alleges that defendant
engaged in fraudulent conduct and re! ely on that
conduct to prove a claim. /d “In that event, ... the
pleading of that claim as a whole must satisfy the
particularity requirement of [Fed.R.Civ.P.] 9(b).” Id.

Plaintiff contends that the FAC pleads the requisite
elements of fraud with particularity by incorporating by
reference allegations made against Wells Fargo and ETS
throughout the FAC. Opp. to ETS at 9; Opp. to WEB at
23 (citing FAC {4 14, 15, 17, 18, 20-25). Defendants
argue that plaintiff's fraud claims fail for lack of
specificity. ETS Mot. at 11; WFB Mot. at 19. ETS further
argues that plaintiff “has failed to identify the names of
the persons who purportedly made the fraudulent
misrepresentations at issue.” ETS Mot. at 11.

"8 The Court disagrees, and finds that the FAC alleges
fraud with sufficient particularity. See Fed.R.Civ.P. 9(b).
Plaintiff specifically alleges that she and/or Pollack spoke
to defendants’ representatives, defendants’ representatives
made false promises and misrepresentations to reinstate
plaintiff's loan or delay the foreclosure sale, plaintiff
justifiably relied on their statements, and _ plaintiff
sustained damages as a result of her reliance. Plaintiff
further alleges that defendants intended, through their
fraudulent acts, to induce plaintiffs reliance with the
intent to defraud and deceive plaintiff. See FAC §¥ 39, 45,
51; Odom v. Microsoft Corp., 486 F.3d 541, 553-54 (9th
Cir.2007) (“While the factual circumstances of the fraud

itself must be alleged with particularity, the state of
mind-or scienter-of the defendants may be alleged
generally.”).

01 The only arguable deficiency in plaintiffs allegations
of fraud is that the FAC does not state the names of all the
individual representatives of defendants. While the
already heightened pleading standard is further
heightened when a party pleads fraud against a
corporation, as the plaintiff does in this case, Tarmann vy.
State Farm Mut. Auto. Ins. Co., 2 Cal.App.4th 153, 157, 2
Cal.Rptr.2d 861 (1991), the requirement is relaxed where
“the defendant must necessarily possess full information
concerning the facts of the controversy,” Bradley v.
Hartford Acc. & Indem. Co., 30 Cal.App.3d 818, 825, 106
Cal.Rptr. 718 (1973), or “when the facts lie more in the
knowledge of the opposite party[.]” Turner v. Milstein,
103 Cal. App.2d 651, 658, 230 P.2d 25 (1951). Here, it
appears that plaintiff has specifically identified the names
of those representatives employed by defendants of which
she has knowledge.

Accordingly, the Court DENIES defendants’ motions to
dismiss plaintiff's claims of negligent misrepresentation,
fraud, and promissory fraud.

E. Claim 6: Trespass and Conversion

Wells Fargo moves to dismiss plaintiff's trespass claim on
the ground that plaintiff not in possession of the
Property as required for a trespass claim. WFB Mot. at
19. ETS also argues that ETS was authorized by the deed
of trust to enter the Property as the foreclosure trustee,
and that its entry did not amount to trespass. ETS Mot. at
12.

Wells Fargo also contends that plaintiff's conversion
claim is deficient because Wachovia found the Property
vacant, and because plaintiff does not identify the specific
items of personal property or allege *1192 facts
supporting the allegation that Wachovia accessed and
took control of that property. WFB Mot. at 19. ETS, on
the other hand, argues that plaintiff's conversion claim is
deficient because conversion protects against interference
with personal property, not real property. ETS Mot. at 12.

Plaintiff argues that defendants changed the locks,
trespassed, and converted her personal property before the
foreclosure, and the deed of trust does not authorize ETS
to enter the Property prior to the foreclosure. Opp. to ETS
at 11-12; Opp. to WFB at 23.

P29) 211 (221 “The elements of a conversion are the plaintiff's
ownership or right to possession of the property at theSusilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

time of the conversion, the defendant’s conversion by a
wrongful act or disposition of property rights, and
damages.” Oakdale Vill. Group v. Fong, 43 Cal.App.4th
539, 543-44, 50 Cal.Rptr.2d 810 (1996). A showing of
manual taking of the property is unnecessary; a plaintiff
need only show a defendant’s “assumption of control or
ownership over the property, or that the alleged converter
has applied the property to his own use.” Id. The tort of
conversion applies to personal property, not real property.
Salma v. Capon, 161 Cal.App.4th 1275, 1295, 74
Cal.Rptr.3d 873 (2008); 5 Witkin, Summary of Cal. Law
§ 699 (10th ed.2005).

#31 B41 “The cause of action for trespass is designed to
protect possessory—not necessarily ownership—interests
in land from unlawful interference.” Smith vy. Cap
Concrete, Inc., 133 Cal.App.3d 769, 774, 184 Cal.Rptr.
308 (1982). However, “an out-of-possession property
owner may recover for an injury to the land by a
trespasser which damages the ownership interest.” Jd.
While the proper cause of action for a property owner
whose ownership interest is damaged by an intruder is
waste, the pleading of waste in such a case is not crucial.
Hassoldt v. Patrick Media Group, Inc., 84 Cal.App.4th
153, 171, 100 Cal.Rptr.2d 662 (2000) (“if ... an intruder
harms real property in a manner that damages the
ownership interest, the property owner may seek recovery
whether the cause of action be technically labeled trespass
or some other form of action, such as waste.”); 5 Witkin,
Summary of Cal. Law § 695 (10th ed.2005).

"5| The Court finds that plaintiff properly pleads
conversion and trespass. The FAC alleges that defendants
changed the locks prior to the foreclosure, and removed
and converted plaintiff's personal furnishings, furniture,
and belongings in the Property. See FAC { 28.
Accordingly, the Court DENIES defendants’ motions to
dismiss plaintiff’s trespass and conversion claims.

F. Claim 7, 8, 9: Set Aside Trustee Sale, Set Aside
Trustee’s Deed, Wrongful Foreclosure

1. Defendants’ Claim that Plaintiff's Attempt to
Unwind the Sale Fails Because She Does Not Allege An
Actual Tender of the Indebtedness

Defendants claim that all of plaintiff's wrongful
foreclosure-based claims are deficient because plaintiff
fails to make a valid and viable tender of the full
indebtedness. WFB Mot. at 4; ETS Reply at 3-4. Wells
Fargo namely relies on the argument that the October
check was not in the form of a cashier’s check as required

by Wachovia, and that plaintiff's accountant merely
contacted Wachovia by telephone between November 8
and November 10 without attempting to tender funds
prior to foreclosure. WFB Mot. at 5-6. Wells Fargo also
contends that, since the right to reinstate a loan expires
five business days prior to the date of the foreclosure sale
pursuant to Cal.Civ.Code § 2924c(c), plaintiff's right to
cure her default had expired *1193 by November 5, 2010.
Id. at 6; WFB Reply at 1, 5.

Plaintiff alleges that defendant never provided her with
any reinstatement demand at any time other than the “less
than $46,800” provided over the telephone in September
2010, and that defendants thereafter refused to provide
plaintiff with the reinstatement amount when she was
1m tedly attempting to cure the default. Opp. to WFB at
9-10.

#61 271 While Wells Fargo relies on the argument that
plaintiff's right to cure her default expired five busines
days prior to the day of the foreclosure sale, §
intended to protect the trustor, and does not “[eliminate]
the parties’ ability to enter voluntarily into an agreement
to cure the default and reinstate the loan afier the statutory
period.” Bank of America v. La Jolla Grp. Il, 129
Cal.App.4th 706, 712, 28 Cal.Rptr.3d 825 (2005)
(emphasis added). The Court further finds that plaintiff
makes sufficient allegations that defendants endorsed and
accepted the October check. See FAC 4 16. Moreover, the
FAC also alleges that in its November 4, 2011 letter to
plaintiff, Wells Fargo informed plaintiff that its reason for
rejecting the October check was because it received the
check once the foreclosure proceedings had begun, and
because the amount of the check was insufficient. See
FAC § 17. The FAC alleges that it was not until
December 8, 2010, after the foreclosure sale, that
defendants informed plaintiff that the reason the October
check was rejected was because it was in the form of a
personal check rather than a cashier’s check. See FAC §
27. The FAC sufficiently alleges that plaintiff was unable
to tender the reinstatement amount because defendants
refused to disclose the amount despite plaintiff's repeated
attempts to cure the default. Opp. to WFB at 9-10.

Additionally, the Court finds that the FAC sufficiently
alleges damages as a result of plaintiff's reliance on
defendants’ representations that her default would be
cured, her loan reinstated, and the foreclosure sale of the
Property delayed or extended. See FAC $f 20-25.
Accordingly, the Court does not find plaintiff's wrongful
foreclosure claims barred by plaintiff's failure to tender
the reinstatement amount.Susilo v. Wells Fargo Bank, N.A., 796 F.Supp.2d 1177 (2041)

2. Defendants’ Claim that a Completed Foreclosure is
a Final Adjudication of the Rights of the Borrower
and Lender.

Defendants claim that plaintiff's wrongful foreclosure
claims are further deficient because a trustee’s deed that
states the trustce’s sale complied with all statutory
requirements creates a presumption as to the validity of
the sale, and there is “a common law presumption that a
foreclosure sale has been conducted regularly and fairly.”
WFB Mot at 7; see. ETS Mot. at 13-14. Wells Fargo
further alleges that plaintiff suffered no prejudice because
she received the NOD and Reinstatement Quote and “had
an opportunity to tender the necessary funds by cashier’s
check to avoid foreclosure.” WFB Mot at 8.

Plaintiff contends that the FAC’s allegations of
defendants’ refusal to provide the reinstatement amount
and misrepresentation regarding the October check and its
rejection rebut “[a]ny presumption that the foreclosure in
this case was conducted regularly and fairly arising from
the prima facie evidence of the recital in the trustee’s
deed.” Opp. to WFB at 11.

"81 The Court agrees with plaintiff. In California, “proof
of some element of fraud, unfairness or oppression” can
be grounds for setting aside a legally made trustce’s sale.
Stevens y. Plumas Eureka Annex Mining Co., 2 Cal.2d
493, 496, 41 P.2d 927 (1935). As discussed above, the
*1194 Court finds that plaintiff sufficiently pleads fraud.

Accordingly, the Court does not find plaintiff's wrongful
foreclosure claims barred by a presumption that a
completed foreclosure is a final adjudication of the rights
of the borrower and lender.

3. Defendants’ Claim that Any Damages Claim for
Wrongful Foreclosure is Barred by Privilege

Finally, defendants claim that plaintiff's wrongful
foreclosure claims are barred by the common interest
privilege pursuant to Cal.Civ.Code §§ 47 and 2924(d),
because the allegations involve “(t]he mailing,
publication, and delivery of notices as required by
[section 2924]” and “performance of the procedures set
forth” under § 2924 er seg. WEB Mot. at 10; ETS Reply
at 2.

ETS contends that the “case law is split as to whether
subsection (d) provides for a qualified or absolute
privilege under Section 47,” but that “the public policy
reasoning for affording trustees such immunity flows

directly from trustees being mere common agents for the
trustor and beneficiary, and owning no other common law
duties aside from those defined by the deed of trust and
governing statutes.” ETS Reply at 3. ETS argues that “[a]t
the least, subdivision (d) affords a qualified privilege to
foreclosure proceedings conducted by trustees, which will
only be defeated by a showing of malice.” Id.

Plaintiff contends that her claims are based on defendants’
malicious misrepresentation, and are not subject to the
common interest privilege. Opp. to WFB at 16.

"91 “Logic and the purposes of the statutory scheme
suggest that the common interest privilege (§ 47, subd.
(c)(1)), not the absolute privileges for communications in
judicial or official proceedings ($§ 47,