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Bruce Williams vs Bayview Serviceing Loan, LLC et al Hearing Start Time: 9:00 AM
18CV328516 Hearing Type: Hearing: Demurrer
Date of Hearing: 06/27/2019 Comments: Line 10
Heard By: Arand, Mary E Location Department 9
Courtroom Reporter: - No Court Reporter Courtroom Clerk: Catherine Pham
Court Interpreter:
Court Investigator:
Parties Present: Future Hearings:
Williams, Bruce C. Plaintiff
Exhibits:
- to the First Amended Complaint by Defendant Bayview Servicing, LLC (Samathan MacLeod) *C/F 6/13/19
per 6/13/19 MO*
-
The following attorney(s) appear via Court Call:
Josette D. Johnson For: Defendant(s), FNTIC
Matthew S. Vesterdahl for Defendant(s), BAYVIEW LOAN SERVICING LLC AND INTERBAY FUNDING LLC
Matter is heard/argued.
The Tentative Ruling is adopted. See below.
Case Name: Bruce C. Williams v. Bayview Servicing Loan, LLC, et al.
Case No.: 2018-CV-328516
Demurrer to the First Amended Complaint by Defendant Bayview Loan Servicing, LLC
Factual and Procedural Background
This is a wrongful foreclosure action. Plaintiff Bruce C. Williams ( Plaintiff) (self-represented) and Jane
Williams hold title in joint tenancy to real property located at 12892 Green Valley Circle in Groveland,
California. (First Amended Complaint [FAC] at 6.) On April 16, 2003, Plaintiff executed a promissory note in
the amount of $50,000 in favor of Katherine Brown ( Brown). (Id. at 7.) Plaintiff thereafter executed a deed
of trust in favor of Brown to secure the promissory note. (Id. at 8.) Since then the deed of trust has been
assigned to various defendants without giving notice to Plaintiff. (Id. at 11.) The final assignment was
recorded on November 14, 2011 to defendant Bayview Loan Servicing, LLC ( Bayview ). (Id. at 13.)
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Defendant Bayview advertised that it had a mortgage assistance program where borrowers could participate
to avoid foreclosure through its loan modification program. (FAC at 14.) In March 2010, Plaintiff entered
into a loan modification agreement with defendant Bayview. (Id. at 15.) As a result, a new promissory note
was entered in favor of Bayview ( Loan Modification Agreement ). (Id. at 18, 26.) In August 2018, Bayview
foreclosed on the deed of trust and sold the interest to itself for $100,000. (Id. at 22.) Plaintiff alleges the
foreclosure of the property was invalid because he was not given an opportunity to cure, the original deed of
trust was defective or invalid as it was forged or modified without his consent, and the Loan Modification
Agreement was procured by fraud. (Id.at 23.)
On May 22, 2018, Plaintiff filed a Complaint against defendants alleging a single cause of action under Civil
Code section 1788.17. Defendant Bayview filed a demurrer to the Complaint which was sustained by the
Court with 45 days leave to amend.
On January 25, 2019, Plaintiff filed the operative FAC setting forth causes of action for: (1) fraud and
misrepresentation; (2) breach of contract; (3) breach of good faith and fair dealing; (4) defective foreclosure;
(5) unfair business practices; (6) abuse of elderly persons; and (7) quiet title.
Currently before the Court is the demurrer to the FAC by defendant Bayview. Bayview has filed a request for
judicial notice in conjunction with the motion. Plaintiff filed written opposition. Bayview filed reply papers.
Demurrer to the FAC
Defendant Bayview demurs to each cause of action on the ground that they fail to state a valid claim. (Code
Civ. Proc., 430.10, subd. (e).) Bayview demurs on the additional ground that Plaintiff fails to join an
indispensable party. (Code Civ. Proc., 430.10, subd. (d).)
Request for Judicial Notice
In support of the motion, defendant Bayview requests judicial notice of various real property recorded
documents and records from the U.S. Bankruptcy Court. (See Request for Judicial Notice at Exhibits 1-17.)
Such documents are proper subjects of judicial notice under Evidence Code section 452, subdivisions (d) and
(h). The Court however does not need to rely on these exhibits to fully address the issues raised on this
demurrer. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters
which are relevant to the issue at hand].)
Consequently, the request for judicial notice is DENIED.
Legal Standard
In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules.
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We treat the demurrer as admitting all material facts properly pleaded, but nat contentions, deductions or
conclusions of fact or law. We also consider matters which may be judicially noticed. (Blank v. Kirwan
(1985) 39 Cal.3d 311, 318.) A demurrer tests only the legal sufficiency of the pleading. It admits the truth of
all material factual allegations in the complaint; the question of plaintiff s ability to prove these allegations, or
the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children s
Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 214.)
The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all
material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions
or conclusions of law. [It is error for a trial court to sustain a demurrer when the plaintiff has stated a
cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without
leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant
can be cured by amendment. (Gregory v. Albertson s, Inc. (2002) 104 Cal.App.4th 845, 850.)
First Cause of Action: Fraud and Misrepresentation
The first cause of action is a claim for fraud and misrepresentation. The elements of fraud are (1)
misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4)
justifiable reliance on the misrepresentation, and (5) resulting damages. (Cansino v. Bank of America (2014)
224 Cal.App.4th 1462, 1469.)
Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity
requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means
the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the
names of the persons who made the representations, their authority to speak on behalf of the corporation,
to whom they spoke, what they said or wrote, and when the representation was made. (West v. JPMorgan
Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 [citation and quotation marks omitted] (West).)
Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214
Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges
that the defendant can meet them. (Ibic.) The second is to permit a court to weed out meritless fraud claims
on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine
whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)
Defendant Bayview persuasively argues that the fraud claim has not been pled with the required specificity to
state a cause of action. For example, Plaintiff does not identify any specific false representation from
Bayview that he relied upon to his detriment. Instead, Plaintiff alleges in very general terms that Bayview
falsely advertised and made false representations to customers or borrowers. (FAC at 34-36.) Nor does
Plaintiff identify when any such representations were made or the names of any persons acting on behalf of
defendant Bayview who made these representations. Finally, Plaintiffs opposition fails to address the
arguments on demurrer with respect to the fraud claim.
Accordingly, the demurrer to the first cause of action is SUSTAINED for failure to state a claim.
Second Cause of Action: Breach of Contract
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The second cause of action is a claim for breach of contract. To state a cause of action for breach of contract,
a party must plead the existence of a contract, his or her performance of the contract or excuse for
nonperformance, the defendant s breach and resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286,
290.)
Defendant Bayview argues the breach of contract claim is barred by the statute of frauds.
The statute of frauds requires any contract subject to its provisions to be memorialized in a writing
subscribed by the party to be charged or by the party s agent. [Citations.] An agreement for the sale of real
property or an interest in real property comes within the statute of frauds. That includes a promissory note
and a deed of trust securing performance under the note. [Citation.] An agreement to modify a contract
that is subject to the statute of frauds is also subject to the statute of frauds. [Citation.] (Rossberg v. Bank
of America, N.A. (2013) 219 Cal. App.4th 1481, 1503.)
Plaintiff here alleges he entered into an agreement with Bayview and other defendants for the purpose of
modifying an existing loan agreement secured by real property. (FAC at 47.) Such an agreement therefore is
subject to the statute of frauds. The Loan Modification Agreement is attached to the FAC as Exhibit C. As the
document has not been signed by defendant Bayview, it does not satisfy the statute of frauds and thus the
demurrer is sustainable on this ground.
In addition, the demurrer persuasively argues that Plaintiff fails to allege facts demonstrating how defendant
Bayview breached the agreement. (See Memo of PS& A Sat p. 18.) In opposition, Plaintiff states simply
that he has alleged a valid cause of action for breach of contract but fails to directly address the arguments
raised on demurrer. (See OPP at pp. 4-5.)
Consequently, the demurrer to the second cause of action is SUSTAINED for failure to state a claim.
Third Cause of Action: Breach of Good Faith and Fair Dealing
The third cause of action is a claim for breach of the covenant of good faith and fair dealing.
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. (Wolfv. Walt Disney Pictures
& Television (2008) 162 Cal.App.4th 1107, 1120.) A plaintiff asserting a claim for breach of the implied
covenant of good faith and fair dealing must plead and prove the following elements: (1) the existence ofa
contract; (2) the plaintiff did all, or substantially all of the significant things the contract required; (3) the
conditions required for the defendant s performance had occurred; (4) the defendant unfairly interfered with
the plaintiff s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant s
conduct. (CACI No, 325.)
The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the
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existence of a contractual relationship between the parties, since the covenant is an implied term in the
contract. (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49; see Racine & Laramie, Ltd.
v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032 [there is no obligation to deal fairly or
in good faith absent an existing contract].) As stated above, Plaintiff failed to plead a valid claim for breach of
contract. Thus, there is no contractual relationship between the parties to support a claim for breach of the
implied covenant of good faith and fair dealing.
Accordingly, the demurrer to the third cause of action is SUSTAINED for failure to state a claim.
Fourth Cause of Action: Defective Foreclosure
The fourth cause of action is a claim for wrongful foreclosure. Wrongful foreclosure is a common law tort
claim taking the form of either an equitable action to set aside a foreclosure sale, or an action for damages
resulting from the sale, on the basis that the foreclosure was improper. [Citation.] (Sciarratta v. U.S. Bank
National Association (2016) 247 Cal.App.4th 552, 561.) The elements of such a claim whether it is an
equitable set-aside action or an action for damages consist of the following: (1) the defendants caused an
illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or
deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff tendered the amount of the
secured indebtedness or was excused from tendering. [Citation.] (Chavez v. Indymac Mortgage Services
(2013) 219 Cal.App.4th 1052, 1062.)
Plaintiff here alleges the foreclosure sale was defective or invalid because: (1) he dic not have an opportunity
to cure the default; (2) the original deed of trust was defective or invalid due to forgery; (3) the original deed
of trust was defective or invalid as the joint tenancy prevents or invalidates any encumbrance thereon
without the consent of all other joint tenants; and (4) the Loan Modification Agreement was procured by
fraud. (FAC at 63.)
As stated above, a plaintiff must plead facts showing prejudice or harm to state a claim for wrongful
foreclosure. (See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 86, fn. 4 [a nonjudicial foreclosure sale is
presumed to have been conducted regularly and fairly; one attacking the sale must overcome this common
law presumption by pleading and proving an improper procedure and the resulting prejudice]; see also Angell
v. Super. Ct. (1999) 73 Cal App.4th 691, 700 [failure to comply with procedural requirements must cause
prejudice to plaintiff].) As pointed out on demurrer, Plaintiff fails to allege facts establishing prejudice to
state a claim for wrongful foreclosure. Nor does Plaintiff address the prejudice argument in his opposition to
the motion.
Therefore, the demurrer to the fourth cause of action is SUSTAINED for failure to state a claim. Having
sustained the demurrer on the prejudice ground, the Court declines to address the argument based on the
tender rule.
Fifth Cause of Action: Unfair Business Practices
The demurrer to the fifth cause of action [unfair business practices] is SUSTAINED for failure to state a claim.
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The UCL claim is based on defendant Bayview s alleged misconduct in the prior causes of action. (See FAC at
65-67.) Since Plaintiffs other claims fail to state a cause of action, the UCL claim also fails. (See Krantz v. BT
Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a UCL claim stands or falls with the
antecedent substantive causes of action].)
Sixth Cause of Action: Abuse of Elderly Persons
The sixth cause of action is a claim for financial elder abuse. (See FAC at 77.)
The elements of a cause of action for financial elder abuse are statutory. Welfare and Institutions Code
section 15610.30, subdivision (a) provides: Financial abuse of an elder or dependent adult occurs when a
person or entity does any of the following: [] (1) Takes, secretes, appropriates, obtains, or retains real or
personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [] (2)
Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or
dependent adult for a wrongful use or with intent to defraud, or both. [] (3) Takes, secretes, appropriates,
obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal
property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code.
Defendant Bayview raises two arguments on demurrer with respect to the elder abuse claim: (1) Plaintiff fails
to allege any relevant facts to state a claim for elder abuse; and (2) the claim is barred by the four-year
statute of limitations. The financial elder abuse claim appears to be defective as it contains only conclusions
rather than specific facts to state a valid cause of action. Furthermore, Plaintiff apparently concedes these
arguments as he fails to address them in his opposition. Indeed, the only claim even mentioned by name in
the opposition is the cause of action for breach of contract.
Accordingly, the demurrer to the sixth cause of action is SUSTAINED for failure to state a claim.
Seventh Cause of Action: Quiet Title
The seventh cause of action is a claim for quiet title. Quiet title claims are governed by California Code of Civil
Procedure 761.020, which states that a plaintiff must set forth the following five elements ina verified
complaint: (1) a description of the property, both legal description and street address; (2) the title of the
plaintiff, and the basis for that title; (3) the adverse claims to the plaintiffs title; (4) the date as of which the
determination is sought; and (5) a prayer for the determination of the plaintiffs title against the adverse
claims. (Code Civ. Proc., 761.020(a)-(e).)
Defendant Bayview persuasively argues there is no claim for quiet title as the FAC has not been verified nor
does Plaintiff allege facts in support of the statutory elements to state a valid cause of action. Finally, Plaintiff
does not address these arguments in his opposition to the mation.
Consequently, the demurrer to the seventh cause of action is SUSTAINED for failure to state a claim.
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Demurrer for Failure to Join Indispensable Party
Defendant Bayview also specially demurs on the ground that Plaintiff failed to join an indispensable party to
this lawsuit.
If it appears on the face of the complaint that some person with a material interest in the subject of the
action has not been joined, a defendant may object by special demurrer on this ground. (See Code Civ. Proc.,
430.10, subd. (d).)
Code of Civil Procedure section 389 governs the joinder of parties and provides, in pertinent part: (a) A
person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over
the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief
cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the
action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair
or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a
substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed
interest. If he has not been so joined, the court shall order that he be made a party. (Code Civ. Proc., 389,
subd. (a).)
Where the plaintiff seeks some type of affirmative relief, which if granted, would injure or affect the interest
ofa third person not joined, that third person is an indispensable party. (Sierra Club, Inc. v. California Coastal
Com. (1979) 95 Cal.App.3d 495, 501.)
Defendant Bayview here argues that non-party Jane Williams remains an owner of the subject property as
she holds an interest as a joint tenant. (See FAC at 6.) Thus, whether defendants had a right to foreclose
will clearly affect her interest in the property along with Plaintiff. Bayview therefore contends that Jane
Williams is an indispensable party and the failure to join her renders the pleading defective. This argument
appears to be well-taken and it is not addressed by Plaintiff in his opposition to the motion.
Accordingly, the demurrer to the FAC on the ground that Plaintiff failed to join an indispensable party is
SUSTAINED.
Leave to Amend
Should the Court sustain the demurrer, Plaintiff requests leave to amend in his opposition. (See OPP at p. 8.)
The plaintiff bears the burden of proving there is a reasonable possibility of amendment. (Rakestraw v.
California Physicians Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff
must show in what manner he can amend his complaint and how that amendment will change the legal effect
of his pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiff must clearly and specifically set
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forth the applicable substantive law [citation] and the legal basis for amendment, i.e., the elements of the
cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state
all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague
orconclusionary. (Rakestraw, supra, at pp. 43-44.)
Here, the Court previously granted defendant Bayview s demurrer to the Complaint giving Plaintiff leave to
file an amended pleading. Plaintiff thereafter filed the FAC but has not alleged any valid cause of action. Nor
does the opposition provide any guidance on how Plaintiff intends to amend his pleading to state a valid
claim. In fact, as stated above, the opposition fails in large part to address the substantive arguments raised
by defendant Bayview on this demurrer. Plaintiff therefore has not satisfied his burden in demonstrating to
this Court how he can properly amend his pleading to state a cause of action.
Accordingly, leave to amend is DENIED.
Disposition
The request for judicial notice by defendant Bayview is DENIED.
The demurrer to the FAC by defendant Bayview is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state
a valid claim and failure to join an indispensable party. This ruling applies also to the supplement to the FAC
filed by Plaintiff on February 7, 2019.
The Court will prepare the Order.
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ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER Bruce Williams vs Bayview Serviceing Loan, LLC et al Hearing Start Time: 9:00 AM 18CV328516 Hearing Type: Hearing: Demurrer Date of Hearing: 06/27/2019 Comments: Line 10 Heard By: Arand, Mary E Location Department 9 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Catherine Pham Court Interpreter: Court Investigator: Parties Present: Future Hearings: Williams, Bruce C. Plaintiff Exhibits: - to the First Amended Complaint by Defendant Bayview Servicing, LLC (Samathan MacLeod) *C/F 6/13/19 per 6/13/19 MO* - The following attorney(s) appear via Court Call: Josette D. Johnson For: Defendant(s), FNTIC Matthew S. Vesterdahl for Defendant(s), BAYVIEW LOAN SERVICING LLC AND INTERBAY FUNDING LLC Matter is heard/argued. The Tentative Ruling is adopted. See below. Case Name: Bruce C. Williams v. Bayview Servicing Loan, LLC, et al. Case No.: 2018-CV-328516 Demurrer to the First Amended Complaint by Defendant Bayview Loan Servicing, LLC Factual and Procedural Background This is a wrongful foreclosure action. Plaintiff Bruce C. Williams ( Plaintiff) (self-represented) and Jane Williams hold title in joint tenancy to real property located at 12892 Green Valley Circle in Groveland, California. (First Amended Complaint [FAC] at 6.) On April 16, 2003, Plaintiff executed a promissory note in the amount of $50,000 in favor of Katherine Brown ( Brown). (Id. at 7.) Plaintiff thereafter executed a deed of trust in favor of Brown to secure the promissory note. (Id. at 8.) Since then the deed of trust has been assigned to various defendants without giving notice to Plaintiff. (Id. at 11.) The final assignment was recorded on November 14, 2011 to defendant Bayview Loan Servicing, LLC ( Bayview ). (Id. at 13.) Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 1 of 8 ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER Defendant Bayview advertised that it had a mortgage assistance program where borrowers could participate to avoid foreclosure through its loan modification program. (FAC at 14.) In March 2010, Plaintiff entered into a loan modification agreement with defendant Bayview. (Id. at 15.) As a result, a new promissory note was entered in favor of Bayview ( Loan Modification Agreement ). (Id. at 18, 26.) In August 2018, Bayview foreclosed on the deed of trust and sold the interest to itself for $100,000. (Id. at 22.) Plaintiff alleges the foreclosure of the property was invalid because he was not given an opportunity to cure, the original deed of trust was defective or invalid as it was forged or modified without his consent, and the Loan Modification Agreement was procured by fraud. (Id.at 23.) On May 22, 2018, Plaintiff filed a Complaint against defendants alleging a single cause of action under Civil Code section 1788.17. Defendant Bayview filed a demurrer to the Complaint which was sustained by the Court with 45 days leave to amend. On January 25, 2019, Plaintiff filed the operative FAC setting forth causes of action for: (1) fraud and misrepresentation; (2) breach of contract; (3) breach of good faith and fair dealing; (4) defective foreclosure; (5) unfair business practices; (6) abuse of elderly persons; and (7) quiet title. Currently before the Court is the demurrer to the FAC by defendant Bayview. Bayview has filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. Bayview filed reply papers. Demurrer to the FAC Defendant Bayview demurs to each cause of action on the ground that they fail to state a valid claim. (Code Civ. Proc., 430.10, subd. (e).) Bayview demurs on the additional ground that Plaintiff fails to join an indispensable party. (Code Civ. Proc., 430.10, subd. (d).) Request for Judicial Notice In support of the motion, defendant Bayview requests judicial notice of various real property recorded documents and records from the U.S. Bankruptcy Court. (See Request for Judicial Notice at Exhibits 1-17.) Such documents are proper subjects of judicial notice under Evidence Code section 452, subdivisions (d) and (h). The Court however does not need to rely on these exhibits to fully address the issues raised on this demurrer. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].) Consequently, the request for judicial notice is DENIED. Legal Standard In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 2 of 8 aS Ge SUPERIOR COURT OF CALIFORNIA ae COUNTY OF SANTA CLARA = MINUTE ORDER We treat the demurrer as admitting all material facts properly pleaded, but nat contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. (Committee on Children s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213 214.) The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. [It is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Gregory v. Albertson s, Inc. (2002) 104 Cal.App.4th 845, 850.) First Cause of Action: Fraud and Misrepresentation The first cause of action is a claim for fraud and misrepresentation. The elements of fraud are (1) misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.) Fraud must be pleaded with specificity rather than with general and conclusory allegations. The specificity requirement means a plaintiff must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793 [citation and quotation marks omitted] (West).) Courts enforce the specificity requirement in consideration of its two purposes. (West, supra, 214 Cal.App.4th at p. 793.) The first purpose is to give notice to the defendant with sufficiently definite charges that the defendant can meet them. (Ibic.) The second is to permit a court to weed out meritless fraud claims on the basis of the pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.) Defendant Bayview persuasively argues that the fraud claim has not been pled with the required specificity to state a cause of action. For example, Plaintiff does not identify any specific false representation from Bayview that he relied upon to his detriment. Instead, Plaintiff alleges in very general terms that Bayview falsely advertised and made false representations to customers or borrowers. (FAC at 34-36.) Nor does Plaintiff identify when any such representations were made or the names of any persons acting on behalf of defendant Bayview who made these representations. Finally, Plaintiffs opposition fails to address the arguments on demurrer with respect to the fraud claim. Accordingly, the demurrer to the first cause of action is SUSTAINED for failure to state a claim. Second Cause of Action: Breach of Contract Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 3 of 8 ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER The second cause of action is a claim for breach of contract. To state a cause of action for breach of contract, a party must plead the existence of a contract, his or her performance of the contract or excuse for nonperformance, the defendant s breach and resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290.) Defendant Bayview argues the breach of contract claim is barred by the statute of frauds. The statute of frauds requires any contract subject to its provisions to be memorialized in a writing subscribed by the party to be charged or by the party s agent. [Citations.] An agreement for the sale of real property or an interest in real property comes within the statute of frauds. That includes a promissory note and a deed of trust securing performance under the note. [Citation.] An agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds. [Citation.] (Rossberg v. Bank of America, N.A. (2013) 219 Cal. App.4th 1481, 1503.) Plaintiff here alleges he entered into an agreement with Bayview and other defendants for the purpose of modifying an existing loan agreement secured by real property. (FAC at 47.) Such an agreement therefore is subject to the statute of frauds. The Loan Modification Agreement is attached to the FAC as Exhibit C. As the document has not been signed by defendant Bayview, it does not satisfy the statute of frauds and thus the demurrer is sustainable on this ground. In addition, the demurrer persuasively argues that Plaintiff fails to allege facts demonstrating how defendant Bayview breached the agreement. (See Memo of PS& A Sat p. 18.) In opposition, Plaintiff states simply that he has alleged a valid cause of action for breach of contract but fails to directly address the arguments raised on demurrer. (See OPP at pp. 4-5.) Consequently, the demurrer to the second cause of action is SUSTAINED for failure to state a claim. Third Cause of Action: Breach of Good Faith and Fair Dealing The third cause of action is a claim for breach of the covenant of good faith and fair dealing. 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. (Wolfv. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1120.) A plaintiff asserting a claim for breach of the implied covenant of good faith and fair dealing must plead and prove the following elements: (1) the existence ofa contract; (2) the plaintiff did all, or substantially all of the significant things the contract required; (3) the conditions required for the defendant s performance had occurred; (4) the defendant unfairly interfered with the plaintiff s right to receive the benefits of the contract; and (5) the plaintiff was harmed by the defendant s conduct. (CACI No, 325.) The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 4 of 8 aS Ge SUPERIOR COURT OF CALIFORNIA ae COUNTY OF SANTA CLARA = MINUTE ORDER existence of a contractual relationship between the parties, since the covenant is an implied term in the contract. (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49; see Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1032 [there is no obligation to deal fairly or in good faith absent an existing contract].) As stated above, Plaintiff failed to plead a valid claim for breach of contract. Thus, there is no contractual relationship between the parties to support a claim for breach of the implied covenant of good faith and fair dealing. Accordingly, the demurrer to the third cause of action is SUSTAINED for failure to state a claim. Fourth Cause of Action: Defective Foreclosure The fourth cause of action is a claim for wrongful foreclosure. Wrongful foreclosure is a common law tort claim taking the form of either an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on the basis that the foreclosure was improper. [Citation.] (Sciarratta v. U.S. Bank National Association (2016) 247 Cal.App.4th 552, 561.) The elements of such a claim whether it is an equitable set-aside action or an action for damages consist of the following: (1) the defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff tendered the amount of the secured indebtedness or was excused from tendering. [Citation.] (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.) Plaintiff here alleges the foreclosure sale was defective or invalid because: (1) he dic not have an opportunity to cure the default; (2) the original deed of trust was defective or invalid due to forgery; (3) the original deed of trust was defective or invalid as the joint tenancy prevents or invalidates any encumbrance thereon without the consent of all other joint tenants; and (4) the Loan Modification Agreement was procured by fraud. (FAC at 63.) As stated above, a plaintiff must plead facts showing prejudice or harm to state a claim for wrongful foreclosure. (See Knapp v. Doherty (2004) 123 Cal.App.4th 76, 86, fn. 4 [a nonjudicial foreclosure sale is presumed to have been conducted regularly and fairly; one attacking the sale must overcome this common law presumption by pleading and proving an improper procedure and the resulting prejudice]; see also Angell v. Super. Ct. (1999) 73 Cal App.4th 691, 700 [failure to comply with procedural requirements must cause prejudice to plaintiff].) As pointed out on demurrer, Plaintiff fails to allege facts establishing prejudice to state a claim for wrongful foreclosure. Nor does Plaintiff address the prejudice argument in his opposition to the motion. Therefore, the demurrer to the fourth cause of action is SUSTAINED for failure to state a claim. Having sustained the demurrer on the prejudice ground, the Court declines to address the argument based on the tender rule. Fifth Cause of Action: Unfair Business Practices The demurrer to the fifth cause of action [unfair business practices] is SUSTAINED for failure to state a claim. Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 5 of 8 aS Ge SUPERIOR COURT OF CALIFORNIA ae COUNTY OF SANTA CLARA = MINUTE ORDER The UCL claim is based on defendant Bayview s alleged misconduct in the prior causes of action. (See FAC at 65-67.) Since Plaintiffs other claims fail to state a cause of action, the UCL claim also fails. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a UCL claim stands or falls with the antecedent substantive causes of action].) Sixth Cause of Action: Abuse of Elderly Persons The sixth cause of action is a claim for financial elder abuse. (See FAC at 77.) The elements of a cause of action for financial elder abuse are statutory. Welfare and Institutions Code section 15610.30, subdivision (a) provides: Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following: [] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [] (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code. Defendant Bayview raises two arguments on demurrer with respect to the elder abuse claim: (1) Plaintiff fails to allege any relevant facts to state a claim for elder abuse; and (2) the claim is barred by the four-year statute of limitations. The financial elder abuse claim appears to be defective as it contains only conclusions rather than specific facts to state a valid cause of action. Furthermore, Plaintiff apparently concedes these arguments as he fails to address them in his opposition. Indeed, the only claim even mentioned by name in the opposition is the cause of action for breach of contract. Accordingly, the demurrer to the sixth cause of action is SUSTAINED for failure to state a claim. Seventh Cause of Action: Quiet Title The seventh cause of action is a claim for quiet title. Quiet title claims are governed by California Code of Civil Procedure 761.020, which states that a plaintiff must set forth the following five elements ina verified complaint: (1) a description of the property, both legal description and street address; (2) the title of the plaintiff, and the basis for that title; (3) the adverse claims to the plaintiffs title; (4) the date as of which the determination is sought; and (5) a prayer for the determination of the plaintiffs title against the adverse claims. (Code Civ. Proc., 761.020(a)-(e).) Defendant Bayview persuasively argues there is no claim for quiet title as the FAC has not been verified nor does Plaintiff allege facts in support of the statutory elements to state a valid cause of action. Finally, Plaintiff does not address these arguments in his opposition to the mation. Consequently, the demurrer to the seventh cause of action is SUSTAINED for failure to state a claim. Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 6 of 8 ie SUPERIOR COURT OF CALIFORNIA RCTS COUNTY OF SANTA CLARA Se MINUTE ORDER Demurrer for Failure to Join Indispensable Party Defendant Bayview also specially demurs on the ground that Plaintiff failed to join an indispensable party to this lawsuit. If it appears on the face of the complaint that some person with a material interest in the subject of the action has not been joined, a defendant may object by special demurrer on this ground. (See Code Civ. Proc., 430.10, subd. (d).) Code of Civil Procedure section 389 governs the joinder of parties and provides, in pertinent part: (a) A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. (Code Civ. Proc., 389, subd. (a).) Where the plaintiff seeks some type of affirmative relief, which if granted, would injure or affect the interest ofa third person not joined, that third person is an indispensable party. (Sierra Club, Inc. v. California Coastal Com. (1979) 95 Cal.App.3d 495, 501.) Defendant Bayview here argues that non-party Jane Williams remains an owner of the subject property as she holds an interest as a joint tenant. (See FAC at 6.) Thus, whether defendants had a right to foreclose will clearly affect her interest in the property along with Plaintiff. Bayview therefore contends that Jane Williams is an indispensable party and the failure to join her renders the pleading defective. This argument appears to be well-taken and it is not addressed by Plaintiff in his opposition to the motion. Accordingly, the demurrer to the FAC on the ground that Plaintiff failed to join an indispensable party is SUSTAINED. Leave to Amend Should the Court sustain the demurrer, Plaintiff requests leave to amend in his opposition. (See OPP at p. 8.) The plaintiff bears the burden of proving there is a reasonable possibility of amendment. (Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiff must clearly and specifically set Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 7 of 8 aS Ge SUPERIOR COURT OF CALIFORNIA ae COUNTY OF SANTA CLARA = MINUTE ORDER forth the applicable substantive law [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague orconclusionary. (Rakestraw, supra, at pp. 43-44.) Here, the Court previously granted defendant Bayview s demurrer to the Complaint giving Plaintiff leave to file an amended pleading. Plaintiff thereafter filed the FAC but has not alleged any valid cause of action. Nor does the opposition provide any guidance on how Plaintiff intends to amend his pleading to state a valid claim. In fact, as stated above, the opposition fails in large part to address the substantive arguments raised by defendant Bayview on this demurrer. Plaintiff therefore has not satisfied his burden in demonstrating to this Court how he can properly amend his pleading to state a cause of action. Accordingly, leave to amend is DENIED. Disposition The request for judicial notice by defendant Bayview is DENIED. The demurrer to the FAC by defendant Bayview is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a valid claim and failure to join an indispensable party. This ruling applies also to the supplement to the FAC filed by Plaintiff on February 7, 2019. The Court will prepare the Order. Printed: 6/28/2019 06/27/2019 Hearing: Demurrer- 18CV328516 Page 8 of 8