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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
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: 10/02/2018 Comments: 2
Heard By: Arand, Mary E Location: Department 9
Courtroom Reporter: -
No Court Reporter Courtroom Clerk: Julie Nashed
Court Interpreter:
Court Investigator:
Parties Present: Future Hearings:
MacLeod, Samantha Attorney
Williams, Bruce C. Plaintiff
Exhibits:
-
Per the Tentative Ruling, appearance isrequired.
No one called to contest the Tentative Ruling.
Mr. Williams appeared in court and was provided a copy of the tentative ruling.
After reviewing the tentative ruling, Mr. Williams advised the court that he contests the ruling.
Arguments are held.
The tentative ruling isadopted with modifications. See below for ruling.
Case Name: Bruce C. Williams v. Bayview Serviceing Loan LLC, etal.
Case No.: 18CV328516
I.Background
This action initiated by Bruce C. Williams ( Plaintiff),who isself-represented, arises from the sale of certain
property located at 12892 Green Valley Circle in Groveland, California through non-judicial foreclosure. The
defendants are Bayview Loan Servicing, LLC ( Bayview ), Fidelity National Title and Insurance, Interbay
Funding, and Diversified Investment Service.
The allegations inthe complaint are sparse and unclear. Plaintiff initially asserts heseeks relief of Defendents
[sic]mis use ofa defective
[sic] Deed of Trust that is defective and hense [sic] can not [sic] be used to
forclosure [sic]on [his]property or can it be used to reclaim advanced funds[,] and he seeks relief from
improper claims. (Complaint, pp. 1:23-25 to 2:2-3.)
Then, in a section entitled Jurisdiction and Venue, he characterizes the action as asserting violations of
California state law, brought as a result of Defendants [sic] misconduct relating to the on going [sic]
mortgage relationship and Defendant has filed a number of law suits [sic] against [him] for a number of years
(Complaint, p. 2:7-12.) Plaintiff goes on to state that venue is proper in Santa Clara County because the
defendants misconduct occurred there, including the signing of note.a result [sic] of Defendants misconduct
relating to ongoing mortgage relationships with Defendants for [his] propertythis [sic] court to set aside the
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MINUTE ORDER
Trustee Sale on the 17th day of August the year of 2016, vacating and canceling and rescinding the property
(Complaint, p. 2:12-22.) Plaintiff concludes this section by stating [t]he defendants used a slandered title and
deed, of which one of all said Group altered the deed it in pencil making it a fraud and illegal document.
(Complaint, p. 2:22-25.)
Next, Plaintiff asserts a single cause of action labeled Second Cause of Action for violation of Civil Code
section 1788.17, which he characterizes as require[ing] a debt collector to comply with the provisions of 15
U.S.C. 692J. (Complaint, p. 3:2-7.) He then alleges Bayview is a debt collector as defined by Civil Code
5517882 because defendant regularly on behalf of themselves engages in debt collection of the laon [sic],
which is money that is due or owning [sic] to the Defendant, defendant is adebt [sic] collector pursuant to the
Rosenthal Act. (Complaint, p. 327-12.) There are no further allegations or prayer for relief. While the caption
of the complaint identifies three causes of action for breach of contract, breach of covenant, and violation of
Business and Professions Code sections 17200, et seq. no such claims are actually set forth in the body of the
pleading.
Currently before the Court is Bayview s demurrer to the complaint, which isaccompanied by a request for
judicial notice. Plaintiffopposes the demurrer.
II.Request for Judicial Notice
Bayview requests judicial notice of ten recorded real property records related to the subject property under
Evidence Code section 452, subdivision (h), which permits judicial notice of [flacts and propositions that are
not reasonably subject to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.
Recorded real property records are subject to judicial notice under Evidence Code section 452, subdivision
(h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 266.) Courts can takejudicial notice
of the existence, content and authenticity of public records and other specified documents, but do not take
judicial notice of the truth of the factual matters asserted in those documents. (Glaski v. Bank of America
(2013) 218 Cal.App.4th 1079, 1090.) Here, Bayview is essentially requesting judicial notice of the truth of the
facts within the records, which is not proper. Moreover, the subject records are not necessary for resolving
the issues raised by the demurrer in Bayview s favor. (See Jordache Enterprises, Inc. v. Brobeck, Phleger &
Harrison (1998) 18 Ca|.4th 739, 748, fn. 6 [declining to take judicial notice of matters not necessary, helpful or
relevant].)
Accordingly, Bayview s request for judicial notice is DENIED in itsentirety.
|||.Merits of the Motion
Bayview demurs to the complaint on the grounds of failure to state sufficient facts to constitute a cause of
action and uncertainty. (See Code of Civ. Proc. 430.10, subds. (e), (f).)
Preliminarily, the Court observes that Plaintiff sarguments in opposition simply are not responsive to the
issues raised by Bayview.
A. Standard of Review
black letter law that a demurrer tests the legal sufficiency of the allegations
|t is in a complaint. (Lewis v.
Safeway, Inc.(2015) 235 Cal.App.4th 385, 388.) Therefore, allfacts pleaded are accepted as true even those
that seem unlikely or implausible. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.) However,
contentions, deductions or conclusions of law or fact will not be deemed admitted. (Adelman v. Associated
Internat. Ins. Co. (2001) 90 Cal.App.4th 352, 359.)
A. Uncertainty
A pleading is subject to a demurrer uncertain. (Code of Civ.
if it is Proc., 430.10, subd. (f).)For purposes of
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
demurrer, the term uncertain includes ambiguous and unintelligible. (|bid.) [D]emurrers for uncertainty
are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot
reasonably respond. (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.) To
avoid a demurrer for uncertainty, a pleading merely needs to set forth the essential facts of [the] case with
reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and
extent of [the] cause of action. [Citations.] (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)
Here, Bayview contends that Plaintiffs entire complaint isuncertain because impossible to understand
it is
what claims Plaintiff isasserting. This argument ismeritorious. There isa litany of issues with Plaintiff s
complaint that make itvague and ambiguous.
First,as pointed out by Bayview, to comply with California
Plaintiff fails Rules of Court, rule 2.112, which
requires that each cause of action be separately stated and identify itsnumber, nature, which party is
asserting it,and the party it isdirected against. A complaint that fails to comply with rule 2.112 presumably
renders a complaint subject to a special demurrer for uncertainty. (Grappo v. McMilIis (2017) 11 Cal.App.5th
996, 1014.)
Here, the caption of Plaintiff s complaint identifies three causes of action that are not stated inthe body of
the pleading. The only labeled cause of action in the body of the complaint is a claim for violation of Civil
Code section 1788.17, which is numbered as the second cause of action. Further, the allegations in the
pleading are otherwise vague and disjointed. Thus, it is unclear whether Plaintiff intended to state the claims
identified in the caption and neglected to do so in violation of rule 2.112, or if he only intended to assert the
cause of action for violation of Civil Code section 1788.17. This uncertainty in the pleading is exacerbated by
the lack of any prayer for relief, which must be included in a complaint (Code of Civ. Proc., 425.10, subd.
(a)(2)), as well as the unintelligible header at the beginning of the pleading stating the document is an
Exparte [sic] Application to Vacate Trustee Sale, Order to Show Cause: Temporary Restraining Order CCP
415.10 and 416.10: Recind [sic] Foreclosed Property to Plaintiff.
For the foregoing reasons, Bayview s demurrer to the complaint on the ground of uncertainty isSUSTAINED
with 20 days leave to amend after notice of the signed order.
B. Failure to State Facts Sufficient to Constitute a Cause of Action
A party may demur to a cause of action if [t]he pleading does not state facts sufficient to constitute a cause
of action. (Code Civ. Proc., 430.10, subd. (e).)
Bayview firstcontends the purported causes of action identified in the caption are inadequately pled. As
previously discussed, it is not apparent in the first instance that Plaintiff intended to state such claims. With
that said, assuming he did intend as such, there can be no debate he failed to state any viable claim. There
are simply no allegations in the complaint setting forth the requisite elements for breach of contract, breach
of the covenant of good faith and fair dealing, or violation of Business and Professions Code section 17200 et
seq.
As for the cause of action for violation of Civil Code section 1788.17, Bayview argues Plaintiff does not allege
facts to support his conclusion it is a debt collector for purposes of the statute. This argument is well-taken.
Section 1788.17 ispart of the Rosenthal Fair Debt Collection Practices Act ( Rosenthal Act ). That statute
provides that debt collectors in California must comply with the federal Fair Debt Collection Practices Act.
(Civ. Code, 1788.17.) For purposes of the Rosenthal Act, a debt collector means any person who, in the
ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.
(Civ. Code, 1788.2, subd. (c).) The term debt collection is in turn defined as any act or practice in
connection with the collection of consumer debts. (Civ. Code, 1788.2, subd. (b).)
Here, Plaintiff alleges in a conclusory manner that Bayview is a debt collector, and only vaguely refers to the
parties as having an on going [sic] mortgage relationship[] (Complaint, p. 2:8—10). But the general rule is that
statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32
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MINUTE ORDER
Cal.4th 771, 790.) This requires a plaintiff to plead every fact material to the existence of the defendant s
statutory (See
liability. Lopez v. Southern Cal. Rapid Transit Dist. (1985) 4O Ca|.3d 780, 795.) Plaintiff does not
comply with that pleading standard. Additionally, he states he wants to rescind and set aside the foreclosure
sale, thereby suggesting his claim actually emanates from that sale and not debt collection activities within
the meaning of section 1788.17. [F]orec|osure does not constitute debt collection under the [Rosenthal Act]
(Izenberg v. ETS Services, LLC (C.D. Cal. 2008) 589 F.Supp.2d 1193, 1199.) Thus, Plaintiff fails to state a claim
for violation of section 1788.17.
In consideration of the foregoing, the demurrer to the complaint for failure to state sufficient facts to
constitute a cause of action isSUSTAINED with 45 days leave to amend after notice of the signed order.
The Court willprepare the Order.
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 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: 10/02/2018 Comments: 2 Heard By: Arand, Mary E Location: Department 9 Courtroom Reporter: - No Court Reporter Courtroom Clerk: Julie Nashed Court Interpreter: Court Investigator: Parties Present: Future Hearings: MacLeod, Samantha Attorney Williams, Bruce C. Plaintiff Exhibits: - Per the Tentative Ruling, appearance isrequired. No one called to contest the Tentative Ruling. Mr. Williams appeared in court and was provided a copy of the tentative ruling. After reviewing the tentative ruling, Mr. Williams advised the court that he contests the ruling. Arguments are held. The tentative ruling isadopted with modifications. See below for ruling. Case Name: Bruce C. Williams v. Bayview Serviceing Loan LLC, etal. Case No.: 18CV328516 I.Background This action initiated by Bruce C. Williams ( Plaintiff),who isself-represented, arises from the sale of certain property located at 12892 Green Valley Circle in Groveland, California through non-judicial foreclosure. The defendants are Bayview Loan Servicing, LLC ( Bayview ), Fidelity National Title and Insurance, Interbay Funding, and Diversified Investment Service. The allegations inthe complaint are sparse and unclear. Plaintiff initially asserts heseeks relief of Defendents [sic]mis use ofa defective [sic] Deed of Trust that is defective and hense [sic] can not [sic] be used to forclosure [sic]on [his]property or can it be used to reclaim advanced funds[,] and he seeks relief from improper claims. (Complaint, pp. 1:23-25 to 2:2-3.) Then, in a section entitled Jurisdiction and Venue, he characterizes the action as asserting violations of California state law, brought as a result of Defendants [sic] misconduct relating to the on going [sic] mortgage relationship and Defendant has filed a number of law suits [sic] against [him] for a number of years (Complaint, p. 2:7-12.) Plaintiff goes on to state that venue is proper in Santa Clara County because the defendants misconduct occurred there, including the signing of note.a result [sic] of Defendants misconduct relating to ongoing mortgage relationships with Defendants for [his] propertythis [sic] court to set aside the Printed:10/2/2018 — 18CV328516 10/02/2018 Hearing: Demurrer Page 1 of4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Trustee Sale on the 17th day of August the year of 2016, vacating and canceling and rescinding the property (Complaint, p. 2:12-22.) Plaintiff concludes this section by stating [t]he defendants used a slandered title and deed, of which one of all said Group altered the deed it in pencil making it a fraud and illegal document. (Complaint, p. 2:22-25.) Next, Plaintiff asserts a single cause of action labeled Second Cause of Action for violation of Civil Code section 1788.17, which he characterizes as require[ing] a debt collector to comply with the provisions of 15 U.S.C. 692J. (Complaint, p. 3:2-7.) He then alleges Bayview is a debt collector as defined by Civil Code 5517882 because defendant regularly on behalf of themselves engages in debt collection of the laon [sic], which is money that is due or owning [sic] to the Defendant, defendant is adebt [sic] collector pursuant to the Rosenthal Act. (Complaint, p. 327-12.) There are no further allegations or prayer for relief. While the caption of the complaint identifies three causes of action for breach of contract, breach of covenant, and violation of Business and Professions Code sections 17200, et seq. no such claims are actually set forth in the body of the pleading. Currently before the Court is Bayview s demurrer to the complaint, which isaccompanied by a request for judicial notice. Plaintiffopposes the demurrer. II.Request for Judicial Notice Bayview requests judicial notice of ten recorded real property records related to the subject property under Evidence Code section 452, subdivision (h), which permits judicial notice of [flacts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Recorded real property records are subject to judicial notice under Evidence Code section 452, subdivision (h). (Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 266.) Courts can takejudicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents. (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090.) Here, Bayview is essentially requesting judicial notice of the truth of the facts within the records, which is not proper. Moreover, the subject records are not necessary for resolving the issues raised by the demurrer in Bayview s favor. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Ca|.4th 739, 748, fn. 6 [declining to take judicial notice of matters not necessary, helpful or relevant].) Accordingly, Bayview s request for judicial notice is DENIED in itsentirety. |||.Merits of the Motion Bayview demurs to the complaint on the grounds of failure to state sufficient facts to constitute a cause of action and uncertainty. (See Code of Civ. Proc. 430.10, subds. (e), (f).) Preliminarily, the Court observes that Plaintiff sarguments in opposition simply are not responsive to the issues raised by Bayview. A. Standard of Review black letter law that a demurrer tests the legal sufficiency of the allegations |t is in a complaint. (Lewis v. Safeway, Inc.(2015) 235 Cal.App.4th 385, 388.) Therefore, allfacts pleaded are accepted as true even those that seem unlikely or implausible. (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.) However, contentions, deductions or conclusions of law or fact will not be deemed admitted. (Adelman v. Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 352, 359.) A. Uncertainty A pleading is subject to a demurrer uncertain. (Code of Civ. if it is Proc., 430.10, subd. (f).)For purposes of Printed:10/2/2018 — 18CV328516 10/02/2018 Hearing: Demurrer Page 2 of4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER demurrer, the term uncertain includes ambiguous and unintelligible. (|bid.) [D]emurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond. (Lickiss v. Financial Industry Reg. Authority (2012) 208 Cal.App.4th 1125, 1135.) To avoid a demurrer for uncertainty, a pleading merely needs to set forth the essential facts of [the] case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of [the] cause of action. [Citations.] (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.) Here, Bayview contends that Plaintiffs entire complaint isuncertain because impossible to understand it is what claims Plaintiff isasserting. This argument ismeritorious. There isa litany of issues with Plaintiff s complaint that make itvague and ambiguous. First,as pointed out by Bayview, to comply with California Plaintiff fails Rules of Court, rule 2.112, which requires that each cause of action be separately stated and identify itsnumber, nature, which party is asserting it,and the party it isdirected against. A complaint that fails to comply with rule 2.112 presumably renders a complaint subject to a special demurrer for uncertainty. (Grappo v. McMilIis (2017) 11 Cal.App.5th 996, 1014.) Here, the caption of Plaintiff s complaint identifies three causes of action that are not stated inthe body of the pleading. The only labeled cause of action in the body of the complaint is a claim for violation of Civil Code section 1788.17, which is numbered as the second cause of action. Further, the allegations in the pleading are otherwise vague and disjointed. Thus, it is unclear whether Plaintiff intended to state the claims identified in the caption and neglected to do so in violation of rule 2.112, or if he only intended to assert the cause of action for violation of Civil Code section 1788.17. This uncertainty in the pleading is exacerbated by the lack of any prayer for relief, which must be included in a complaint (Code of Civ. Proc., 425.10, subd. (a)(2)), as well as the unintelligible header at the beginning of the pleading stating the document is an Exparte [sic] Application to Vacate Trustee Sale, Order to Show Cause: Temporary Restraining Order CCP 415.10 and 416.10: Recind [sic] Foreclosed Property to Plaintiff. For the foregoing reasons, Bayview s demurrer to the complaint on the ground of uncertainty isSUSTAINED with 20 days leave to amend after notice of the signed order. B. Failure to State Facts Sufficient to Constitute a Cause of Action A party may demur to a cause of action if [t]he pleading does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., 430.10, subd. (e).) Bayview firstcontends the purported causes of action identified in the caption are inadequately pled. As previously discussed, it is not apparent in the first instance that Plaintiff intended to state such claims. With that said, assuming he did intend as such, there can be no debate he failed to state any viable claim. There are simply no allegations in the complaint setting forth the requisite elements for breach of contract, breach of the covenant of good faith and fair dealing, or violation of Business and Professions Code section 17200 et seq. As for the cause of action for violation of Civil Code section 1788.17, Bayview argues Plaintiff does not allege facts to support his conclusion it is a debt collector for purposes of the statute. This argument is well-taken. Section 1788.17 ispart of the Rosenthal Fair Debt Collection Practices Act ( Rosenthal Act ). That statute provides that debt collectors in California must comply with the federal Fair Debt Collection Practices Act. (Civ. Code, 1788.17.) For purposes of the Rosenthal Act, a debt collector means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection. (Civ. Code, 1788.2, subd. (c).) The term debt collection is in turn defined as any act or practice in connection with the collection of consumer debts. (Civ. Code, 1788.2, subd. (b).) Here, Plaintiff alleges in a conclusory manner that Bayview is a debt collector, and only vaguely refers to the parties as having an on going [sic] mortgage relationship[] (Complaint, p. 2:8—10). But the general rule is that statutory causes of action must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32 Printed:10/2/2018 — 18CV328516 10/02/2018 Hearing: Demurrer Page 3 of4 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Cal.4th 771, 790.) This requires a plaintiff to plead every fact material to the existence of the defendant s statutory (See liability. Lopez v. Southern Cal. Rapid Transit Dist. (1985) 4O Ca|.3d 780, 795.) Plaintiff does not comply with that pleading standard. Additionally, he states he wants to rescind and set aside the foreclosure sale, thereby suggesting his claim actually emanates from that sale and not debt collection activities within the meaning of section 1788.17. [F]orec|osure does not constitute debt collection under the [Rosenthal Act] (Izenberg v. ETS Services, LLC (C.D. Cal. 2008) 589 F.Supp.2d 1193, 1199.) Thus, Plaintiff fails to state a claim for violation of section 1788.17. In consideration of the foregoing, the demurrer to the complaint for failure to state sufficient facts to constitute a cause of action isSUSTAINED with 45 days leave to amend after notice of the signed order. The Court willprepare the Order. Printed:10/2/2018 — 18CV328516 10/02/2018 Hearing: Demurrer Page4 of4