Preview
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
Gloria Estillore vs Quality Loan Service Corporation et al Hearing start Time: 9:00 AM
18CV329335 Hearing Type: Hearing: Demurrer
Date of Hearing: 03/28/2019 Comments: Line 2
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:
Exhibits:
-
James J. Ramos appears as counsel For: Defendant(s), Select Portfolio Servicing, via Courtcall.
No one called to contest the Tentative Ruling.
The tentative ruling isadopted. See below for ruling.
Case Name: Gloria Alcordo Estillore v. Select Portfolio Servicing, |nc., et al.
Case No.2 2018-CV-329335
Demurrer to the First Amended Complaint by Defendants Select Portfolio Servicing, Inc. and US Bank N.A., as
Trustee, on Behalf of the Holders of J.P. Morgan Alternative Loan Trust 2007-A2 Mortgage Pass-Through
Certificates
Factual and Procedural Background
This is a wrongful foreclosure action. On January 17, 2007, a promissory note was executed by loan
borrowers Martha N. Sabug and Alexander Sabug (collectively, the Sabugs) in the principal amount of
$328,000. (First Amended Complaint [ FAC] at 16, 102.) The indebtedness was owed to Online Financial
Group, a Nevada Corporation as payee. (Id. at 16.) The indebtedness under the note was secured by a Deed
of Trust recorded against real property located at 4014 Shanj Court in San Jose, California (Subject Property ).
(Id.at 1, 16.)
In February 2009 and October 2012, the Sabugs defaulted on their loan obligations thereby resulting in the
issuance of Notices of Default and Election to Sell Under the Deed of Trust. (FAC at 17, 44.) Having failed to
cure the default, Notices of Trustee s Sale thereafter were recorded against the Subject Property. (Id.at 35,
36, 46.)
3/28/2019
Printed: —
18CV329335
03/28/2019 Hearing: Demurrer Page 1 of 5
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
On December 9, 2014, the Sabugs, for valuable consideration, executed a Quitclaim Deed to plaintiff Gloria
Alcordo with
Estillore ( Plaintiff) respect to the Subject Property. (FAC at 48.) The Quitclaim Deed was
recorded against the Subject Property on February 27, 2015 in Santa Clara County. (|bid.) Plaintiff alleges
neither she, nor the Sabugs, were in default to defendants despite the various Notices of Default against the
borrowers. (Id. at 65, 90, 91, 92.) Nevertheless, Plaintiff claims defendants continue to pursue foreclosure
proceedings on the Subject Property without the legal authority to do so. (Id. at 86, 107.)
On October 24, 2018, Plaintiff filed the operative FAC against defendants, alleging causes of action for
wrongful foreclosure, unfair business practices, and fraud and deceit.
Demurrer to the FAC
On December 3, 2018, defendants Select Portfolio Servicing, Inc. and US Bank N.A., as Trustee, on Behalf of
the Holders of J.P. Morgan Alternative Loan Trust 2007-A2 Mortgage Pass-Through Certificates (collectively,
Defendants )
filed the instant demurrer to the FAC on the ground that each claims fails to state a cause of
action and uncertainty. (See Code Civ. Proc., 430.10, subds. (e), (f).) Defendants filed a request forjudicial
notice inconjunction with the motion. Plaintiff filedwritten opposition.
Defendants Request forJudicial Notice
In support of the motion, Defendants request judicial notice of the following documents recorded in Santa
Clara County: (1) Deed of Trust recorded on January 26, 2007 (Exhibit A); (2) Assignment of Deed of Trust
recorded on March 30, 2009 (Exhibit B);(3) Notice of Default recorded on October 23, 2012 (Exhibit C); (4)
Notice of Trustee s Sale recorded on January 24, 2013 (Exhibit D); (5) Notice of Trustee s Sale recorded on
October 4, 2017 (Exhibit E); and (6) Quitclaim Deed recorded on February 27, 2015 (Exhibit F).
Here, the Court may take judicial notice of Exhibits A through F as real property documents recorded in Santa
Clara County. (See Evid. Code, 452, subd. (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198
Cal.App.4th 256, 264-265 [disapproved on other grounds in Yvanova v. New Century Morg. Corp. (2016) 62
Ca|.4th 919 (Yvanova)] [court may take judicial notice of the existence and recordation of real property
records]; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [court may take judicial notice
of recorded deeds].) The recorded documents are also relevant in addressing issues raised on 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].)
Accordingly, Defendants request forjudicial notice isGRANTED.
Legal Standard
In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules.
We treat the demurrer as admitting all material facts properly pleaded, but not 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. |tadmits the truth of
3/28/2019
Printed: —
18CV329335
03/28/2019 Hearing: Demurrer Page 2 of 5
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
allmaterial 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. [|]t 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: Wrongful Foreclosure
The firstcause of action is a claim for wrongful foreclosure. Wrongful foreclosure isa 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 alleges defendants have initiated foreclosure proceedings without the valid authority to do so and
that she, and the Sabugs, are not in default to any of the named defendants. (FAC at 107.) This is because
the foreclosure trustee has not been validly substituted in as successor trustee by the actual valid beneficiary,
nor by an agent of the actual beneficiary. (|bid.) Plaintiff claims that only the true owner or beneficial
holder of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law. (|bid.)
Defendants argue that Plaintiff lacksstanding to bring a pre-foreclosure action to challenge their authority to
foreclose.
Standing isa threshold issue, because without itno justiciable controversy exists. Standing goes to the
existence of a cause of action. Pursuant to Code of CivilProcedure section 367, [e]very action must be
prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Saterbak v.
JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 813 (Saterbak) [internal citations and quotation
marks omitted].)
|n situations where a foreclosure has already occurred, the California Supreme Court held in a seminal case
Yvanova, supra, 62 Ca|.4th 919 that a borrower has standing to sue for wrongful foreclosure based on an
allegedly void assignment of his or her mortgage. However, in cases where a foreclosure sale has not taken
3/28/2019
Printed: —
18CV329335
03/28/2019 Hearing: Demurrer Page 3 of 5
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
place, the Yvanova court deliberately left open the question of whether a borrower may preemptively
challenge a foreclosing party s right to proceed with the foreclosure. (Yvanova, supra, 62 Ca|.4th at p. 924.)
Yvanova thus left intact an appellate court decision in Gomes v. Countrywide Home Loans, Inc. (2011) 192
Cal.App.4th 1149 (Gomes), which held that courts may not interject themselves into California s
comprehensive nonjudicial foreclosure scheme by entertaining speculative suit[s] regarding the lack of
authority by the foreclosing entity to foreclose. (Gomes, supra, 192 Cal.App.4th at p. 1156.) After Yvanova,
the Court of Appeal in Saterbak relied on Gomes to reaffirm that, in a pre-foreclosure context, borrowers lack
standing to pursue claims that amount to preemptive attempts to determine if the defendant can initiate
foreclosure. (Saterbak, supra, 245 Cal.App.4th at p. 814.) Citing language from Gomes, the Saterbak court
stated that permitting such actions would result in the imposition of an additional requirement that [the
defendant] demonstrate in court that it is authorized to initiate a foreclosure... [which] would be
inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient
remedy. (Id. at pp. 814-815, citing Gomes, supra, 192 Cal.App.4th at p. 1154, fn. 5 [internal citations and
quotation marks omitted].)
The undisputed facts here demonstrate that the foreclosure of the Subject Property has not yet occurred.
This isconfirmed by Plaintiff who alleges she is attacking the proposed sale of her Subject Property in
paragraph 108 of the FAC. Accordingly, based on the case law in this area, Plaintiff lacks standing to pursue
her claim for wrongful foreclosure.
In opposition, Plaintiff argues she has standing to bring a foreclosure cause of action as a result of a void
assignment of a deed of trust, whether pre-foreclosure or post-foreclosure. Plaintiff relies in part on Pfeifer
v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250 for the proposition that a homeowner has
standing to allege a wrongful foreclosure claim based on a pre-sale/pre-foreclosure situation. This argument
lacks merit as this decision does not even consider the issue of standing with respect to a wrongful
foreclosure cause of action. Plaintiff also cites three federal district court cases two of which are
unpublished in support of her argument that she has standing to bring a pre—foreclosure cause of action.
These federal decisions are not binding authority and Plaintiff does not otherwise explain why the holdings in
cases like Gomes or Saterbak should not apply to this action.
Finally,Plaintiff attempts to bolster her position by citing to Keshtgar v. U.S. Bank (2016) 368 P.3d 921
(Keshtgar). In Keshtgar, the California Supreme Court de-published an appellate decision which held that a
homeowner lacked standing to assert pre-foreclosure challenges and ordered the appellate court to
reconsider the issue in light of its holding in Yvanova. Plaintiff asserts the high court s decision to de-publish
Keshtgar can be construed as an approval of a borrower s right to bring a preemptive attack. Plaintiff does
not, however, cite any authority supporting the proposition that the California Supreme Court s decision to
vacate an appellate court decision amounts to an affirmative holding regarding a specific issue of substantive
law. Therefore, her position is unsupported.
Consequently, the demurrer to the first cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND after
service of this signed order on the ground it fails to state a claim. Having sustained the demurrer on the
ground of standing, the Court declines to address the remaining arguments raised on demurrer to the first
cause of action.
Second Cause of Action: Unfair Business Practices
3/28/2019
Printed: —
18CV329335
03/28/2019 Hearing: Demurrer Page 4 of 5
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
MINUTE ORDER
The demurrer to the second cause of action [unfair business practices] isSUSTAINED WITH 20 DAYS LEAVE
TO AMEND after service ofthis signed order for failure to state a claim. The UCL claim is based on
Defendants alleged misconduct in the first cause of action. (See FAC at 107.) Since Plaintiff s first cause of
action failsto state a claim, the UCL cause of action also fails. (See Krantz v. BT Visual Images, LLC (2001) 89
Cal.App.4th 164, 178 [the viability of aUCL claim stands or falls with the antecedent substantive causes of
action].)
Third and Fourth Causes of Action: Fraud and Deceit
The third and fourth causes of action are claims for fraud and deceit alleged against Defendants. 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. (|bid.)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. (|bid.)
The Court acknowledges firstthat the allegations for fraud and deceit are difficult todetermine with respect
to this pleading. That said, the Court finds the fraud claims have not been pled with the required specificity
to state a cause of action. For example, it isnot entirely clear which misrepresentations, if any, were
communicated toand reliedupon by Plaintiffto support the fraud claims. Furthermore, as Defendants argue,
Plaintiff does not allege facts regarding the element ofjustifiable reliance to state a valid cause of action.
Accordingly, the demurrer to the third and fourth causes isSUSTAINED WITH 20 DAYS LEAVE TO AMEND
after service of this signed order for failure to state a claim.
Having sustained the demurrer to each cause of action for failure to state a valid claim, the Court declines to
address the demurrer for uncertainty.
The Court willprepare the Order.
3/28/2019
Printed: —
18CV329335
03/28/2019 Hearing: Demurrer Page 5 of 5
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER Gloria Estillore vs Quality Loan Service Corporation et al Hearing start Time: 9:00 AM 18CV329335 Hearing Type: Hearing: Demurrer Date of Hearing: 03/28/2019 Comments: Line 2 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: Exhibits: - James J. Ramos appears as counsel For: Defendant(s), Select Portfolio Servicing, via Courtcall. No one called to contest the Tentative Ruling. The tentative ruling isadopted. See below for ruling. Case Name: Gloria Alcordo Estillore v. Select Portfolio Servicing, |nc., et al. Case No.2 2018-CV-329335 Demurrer to the First Amended Complaint by Defendants Select Portfolio Servicing, Inc. and US Bank N.A., as Trustee, on Behalf of the Holders of J.P. Morgan Alternative Loan Trust 2007-A2 Mortgage Pass-Through Certificates Factual and Procedural Background This is a wrongful foreclosure action. On January 17, 2007, a promissory note was executed by loan borrowers Martha N. Sabug and Alexander Sabug (collectively, the Sabugs) in the principal amount of $328,000. (First Amended Complaint [ FAC] at 16, 102.) The indebtedness was owed to Online Financial Group, a Nevada Corporation as payee. (Id. at 16.) The indebtedness under the note was secured by a Deed of Trust recorded against real property located at 4014 Shanj Court in San Jose, California (Subject Property ). (Id.at 1, 16.) In February 2009 and October 2012, the Sabugs defaulted on their loan obligations thereby resulting in the issuance of Notices of Default and Election to Sell Under the Deed of Trust. (FAC at 17, 44.) Having failed to cure the default, Notices of Trustee s Sale thereafter were recorded against the Subject Property. (Id.at 35, 36, 46.) 3/28/2019 Printed: — 18CV329335 03/28/2019 Hearing: Demurrer Page 1 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER On December 9, 2014, the Sabugs, for valuable consideration, executed a Quitclaim Deed to plaintiff Gloria Alcordo with Estillore ( Plaintiff) respect to the Subject Property. (FAC at 48.) The Quitclaim Deed was recorded against the Subject Property on February 27, 2015 in Santa Clara County. (|bid.) Plaintiff alleges neither she, nor the Sabugs, were in default to defendants despite the various Notices of Default against the borrowers. (Id. at 65, 90, 91, 92.) Nevertheless, Plaintiff claims defendants continue to pursue foreclosure proceedings on the Subject Property without the legal authority to do so. (Id. at 86, 107.) On October 24, 2018, Plaintiff filed the operative FAC against defendants, alleging causes of action for wrongful foreclosure, unfair business practices, and fraud and deceit. Demurrer to the FAC On December 3, 2018, defendants Select Portfolio Servicing, Inc. and US Bank N.A., as Trustee, on Behalf of the Holders of J.P. Morgan Alternative Loan Trust 2007-A2 Mortgage Pass-Through Certificates (collectively, Defendants ) filed the instant demurrer to the FAC on the ground that each claims fails to state a cause of action and uncertainty. (See Code Civ. Proc., 430.10, subds. (e), (f).) Defendants filed a request forjudicial notice inconjunction with the motion. Plaintiff filedwritten opposition. Defendants Request forJudicial Notice In support of the motion, Defendants request judicial notice of the following documents recorded in Santa Clara County: (1) Deed of Trust recorded on January 26, 2007 (Exhibit A); (2) Assignment of Deed of Trust recorded on March 30, 2009 (Exhibit B);(3) Notice of Default recorded on October 23, 2012 (Exhibit C); (4) Notice of Trustee s Sale recorded on January 24, 2013 (Exhibit D); (5) Notice of Trustee s Sale recorded on October 4, 2017 (Exhibit E); and (6) Quitclaim Deed recorded on February 27, 2015 (Exhibit F). Here, the Court may take judicial notice of Exhibits A through F as real property documents recorded in Santa Clara County. (See Evid. Code, 452, subd. (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265 [disapproved on other grounds in Yvanova v. New Century Morg. Corp. (2016) 62 Ca|.4th 919 (Yvanova)] [court may take judicial notice of the existence and recordation of real property records]; Evans v. California Trailer Court, Inc. (1994) 28 Cal.App.4th 540, 549 [court may take judicial notice of recorded deeds].) The recorded documents are also relevant in addressing issues raised on 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].) Accordingly, Defendants request forjudicial notice isGRANTED. Legal Standard In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, but not 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. |tadmits the truth of 3/28/2019 Printed: — 18CV329335 03/28/2019 Hearing: Demurrer Page 2 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER allmaterial 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. [|]t 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: Wrongful Foreclosure The firstcause of action is a claim for wrongful foreclosure. Wrongful foreclosure isa 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 alleges defendants have initiated foreclosure proceedings without the valid authority to do so and that she, and the Sabugs, are not in default to any of the named defendants. (FAC at 107.) This is because the foreclosure trustee has not been validly substituted in as successor trustee by the actual valid beneficiary, nor by an agent of the actual beneficiary. (|bid.) Plaintiff claims that only the true owner or beneficial holder of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law. (|bid.) Defendants argue that Plaintiff lacksstanding to bring a pre-foreclosure action to challenge their authority to foreclose. Standing isa threshold issue, because without itno justiciable controversy exists. Standing goes to the existence of a cause of action. Pursuant to Code of CivilProcedure section 367, [e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute. (Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 813 (Saterbak) [internal citations and quotation marks omitted].) |n situations where a foreclosure has already occurred, the California Supreme Court held in a seminal case Yvanova, supra, 62 Ca|.4th 919 that a borrower has standing to sue for wrongful foreclosure based on an allegedly void assignment of his or her mortgage. However, in cases where a foreclosure sale has not taken 3/28/2019 Printed: — 18CV329335 03/28/2019 Hearing: Demurrer Page 3 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER place, the Yvanova court deliberately left open the question of whether a borrower may preemptively challenge a foreclosing party s right to proceed with the foreclosure. (Yvanova, supra, 62 Ca|.4th at p. 924.) Yvanova thus left intact an appellate court decision in Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes), which held that courts may not interject themselves into California s comprehensive nonjudicial foreclosure scheme by entertaining speculative suit[s] regarding the lack of authority by the foreclosing entity to foreclose. (Gomes, supra, 192 Cal.App.4th at p. 1156.) After Yvanova, the Court of Appeal in Saterbak relied on Gomes to reaffirm that, in a pre-foreclosure context, borrowers lack standing to pursue claims that amount to preemptive attempts to determine if the defendant can initiate foreclosure. (Saterbak, supra, 245 Cal.App.4th at p. 814.) Citing language from Gomes, the Saterbak court stated that permitting such actions would result in the imposition of an additional requirement that [the defendant] demonstrate in court that it is authorized to initiate a foreclosure... [which] would be inconsistent with the policy behind nonjudicial foreclosure of providing a quick, inexpensive and efficient remedy. (Id. at pp. 814-815, citing Gomes, supra, 192 Cal.App.4th at p. 1154, fn. 5 [internal citations and quotation marks omitted].) The undisputed facts here demonstrate that the foreclosure of the Subject Property has not yet occurred. This isconfirmed by Plaintiff who alleges she is attacking the proposed sale of her Subject Property in paragraph 108 of the FAC. Accordingly, based on the case law in this area, Plaintiff lacks standing to pursue her claim for wrongful foreclosure. In opposition, Plaintiff argues she has standing to bring a foreclosure cause of action as a result of a void assignment of a deed of trust, whether pre-foreclosure or post-foreclosure. Plaintiff relies in part on Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250 for the proposition that a homeowner has standing to allege a wrongful foreclosure claim based on a pre-sale/pre-foreclosure situation. This argument lacks merit as this decision does not even consider the issue of standing with respect to a wrongful foreclosure cause of action. Plaintiff also cites three federal district court cases two of which are unpublished in support of her argument that she has standing to bring a pre—foreclosure cause of action. These federal decisions are not binding authority and Plaintiff does not otherwise explain why the holdings in cases like Gomes or Saterbak should not apply to this action. Finally,Plaintiff attempts to bolster her position by citing to Keshtgar v. U.S. Bank (2016) 368 P.3d 921 (Keshtgar). In Keshtgar, the California Supreme Court de-published an appellate decision which held that a homeowner lacked standing to assert pre-foreclosure challenges and ordered the appellate court to reconsider the issue in light of its holding in Yvanova. Plaintiff asserts the high court s decision to de-publish Keshtgar can be construed as an approval of a borrower s right to bring a preemptive attack. Plaintiff does not, however, cite any authority supporting the proposition that the California Supreme Court s decision to vacate an appellate court decision amounts to an affirmative holding regarding a specific issue of substantive law. Therefore, her position is unsupported. Consequently, the demurrer to the first cause of action is SUSTAINED WITH 20 DAYS LEAVE TO AMEND after service of this signed order on the ground it fails to state a claim. Having sustained the demurrer on the ground of standing, the Court declines to address the remaining arguments raised on demurrer to the first cause of action. Second Cause of Action: Unfair Business Practices 3/28/2019 Printed: — 18CV329335 03/28/2019 Hearing: Demurrer Page 4 of 5 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA MINUTE ORDER The demurrer to the second cause of action [unfair business practices] isSUSTAINED WITH 20 DAYS LEAVE TO AMEND after service ofthis signed order for failure to state a claim. The UCL claim is based on Defendants alleged misconduct in the first cause of action. (See FAC at 107.) Since Plaintiff s first cause of action failsto state a claim, the UCL cause of action also fails. (See Krantz v. BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of aUCL claim stands or falls with the antecedent substantive causes of action].) Third and Fourth Causes of Action: Fraud and Deceit The third and fourth causes of action are claims for fraud and deceit alleged against Defendants. 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. (|bid.)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. (|bid.) The Court acknowledges firstthat the allegations for fraud and deceit are difficult todetermine with respect to this pleading. That said, the Court finds the fraud claims have not been pled with the required specificity to state a cause of action. For example, it isnot entirely clear which misrepresentations, if any, were communicated toand reliedupon by Plaintiffto support the fraud claims. Furthermore, as Defendants argue, Plaintiff does not allege facts regarding the element ofjustifiable reliance to state a valid cause of action. Accordingly, the demurrer to the third and fourth causes isSUSTAINED WITH 20 DAYS LEAVE TO AMEND after service of this signed order for failure to state a claim. Having sustained the demurrer to each cause of action for failure to state a valid claim, the Court declines to address the demurrer for uncertainty. The Court willprepare the Order. 3/28/2019 Printed: — 18CV329335 03/28/2019 Hearing: Demurrer Page 5 of 5