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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Oct-03-2012 11:47 am
Case Number: CGC-12-522638
Filing Date: Oct-03-2012 11:46
Filed by: MICHAEL RAYRAY
Juke Box: 001 Image: 03789596
REPLY
RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al
001003789596
Instructions:
Please place this sheet on top of the document to be scanned.qwnigtd0
BRYAN CAVE LLP
333 MARKET STREET, 25™ FLooR
SAN FRANCISCO, CA 94105
Cj
BRYAN CAVE LLP
C. Scott Greene, Calif. Bar No. 277445
Andrea M. Hicks, Calif. Bar No. 219836
Jessica T. Ehsanian, Calif. Bar No. 231541
333 Market Street, 25" Floor
San Francisco, CA 94105
Telephone: (415) 675-3400
Facsimile: (415) 675-3434
E-mail: andrea. hicks@bryancave.com
ehsanianj@bryancave.com
Attorneys for Defendants
WHOLESALE LENDER
RODOLFO VELASQUEZ,
Plaintiff,
v.
BANK OF AMERICA NATIONAL
ASSOCIATION; AMERICA’S
WHOLESALE LENDER; COUNTRYWIDE
HOME LOANS, INC,; and DOES | through
100, inclusive,
Defendants.
BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL
ASSOCIATION”), and COUNTRY WIDE HOME LOANS, INC., dba AMERICA’S
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
Case No.: CGC-12-522638
DEFENDANTS’ REPLY BRIEF IN
SUPPORT OF DEMURRER TO
PLAINTIFF’S COMPLAINT
[Filed concurrently with Defendant’s
Supplemental Request for Judicial Notice
in Support of Demurrer and Objection to
Plaintiff's Request for Judicial Notice in
Opposition to Defendants’ Demurrer]
Date: October 11, 2012
Time: 9:30a.m.
Dept.: 501
DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP
333 MARKET STREET, 25™ FLoon
SAN FRANCISCO, CA 94105
Defendants Bank of America, N.A. (“Bank of America”) and Countrywide Home Loans,
Inc., (“Countrywide”) dba America’s Wholesale Lender (“AWL”) (collectively “Defendants”)
hereby submit the following reply brief in response to Plaintiff Rodolfo Velasquez’s (“Plaintiff”)
opposition to Defendants’ Demurrer to Plaintiff's Complaint.
IL INTRODUCTION
Plaintiff's opposition is insufficient to rebut any of the points raised in the Demurrer. The
opposition fails to establish that the Complaint sufficiently alleges tender or that Plaintiff should
be excused from properly alleging tender. In addition, Plaintiff fails to establish that any of his
claims could survive demurrer.
In short, the opposition fails to save any of the claims and offers no arguments to show that
Plaintiff could amend the Complaint to establish viable claims. The Court should thus sustain
Defendants’ Demurrer without leave to amend.
I. ARGUMENT
A. America’s Wholesale Lender is a dba of Countrywide and Plaintiff's
Argument That the Deed is Void Fails as a Matter of Law
In the opposition, Plaintiff argues that America’s Wholesale Lender (“AWL”) is not a legal
entity (i.e., not a corporation) and has “no legal existence” and thus Defendants have no rights
under the Deed of Trust and no right to foreclose on Plaintiff's property. (See Compl. fff 15-17,
25; Opp. 3:1-6.) In an apparent attempt to prove the validity of this argument, Plaintiff requests
the Court take judicial notice of a screen shot from the United States Patent and Trademark Office
indicating that America’s Wholesale Lender is a trademarked name. (See Plaintiff's RIN, Exh, 1;
see also Defendants’ Objection to Plaintiff's RIN, filed concurrently herein.) Plaintiff's argument
is entirely without merit.
America’s Wholesale Lender is a fictitious business name of Countrywide Home Loans,
Inc., which is a subsidiary of Bank of America, N.A. (“BANA”). Indeed, America’s Wholesale
Lender is not itself a corporation, but is a dba of Countrywide Home Loans, Inc. Plaintiff's loan
originated in Daly City, California, San Mateo County and the loan documents signed by Plaintiff
indicate a mailing address for AWL in Calabasas, Los Angeles County. Attached to the Request
1
~ DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Cave LLP
333 MARKET STREET, 25™ FLooR
SAN FRANCISCO, CA 94105
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for Judicial Notice filed concurrently with this reply brief are dba certificates in both counties
establishing AWL is a dba of Countrywide, hopefully putting to rest the specious argument that a
dba cannot enter into contracts in California. (See Opp. 3:2-3; see also Supplemental Request for
Judicial Notice, Exhs. I and J.)
Moreover, Plaintiff fails to cite to one single authority to support his argument that “a
fictitious entity creates no rights under the note or deed of trust encumbering the plaintiff's
property, so ncither the note nor the Deed of Trust is a legally valid obligation or encumbrance.”
(Compl. {16.) Indeed, Plaintiff's assertions are belied by the loan documents and California’s
foreclosure statutes.
The California statutory scheme allows the foreclosure process to be conducted by the
“trustee, mortgagee or beneficiary or any of their authorized agents.” Cal. Civ. Code § 2924(a)(1).
The beneficiary under a Deed of Trust, or its authorized agent, is entitled to record the notice of
default in order to initiate non-judicial foreclosure proceedings. Cal. Civ. Code § 2924(a)(1).
On January 17, 2012, “Countrywide Home Loans, Inc. fdba America’s Wholesale Lender”
executed the Assignment of Deed of Trust, assigning and transferring all rights under the Deed of
Trust to BANA as successor by merger to BAC Home Loans Servicing, LP. (See RJN Exh. D.)
On January 18, 2012, BANA executed the Substitution of Trustee designating Quality Loan
Service Corp. as the trustee under the Deed of Trust. (See RJN Exh. E.) The Substitution of
Trustee is “conclusive evidence” of Quality Loan Service Corp,’s authority to act as trustee under
the Deed of Trust from the date of execution of the substitution by BANA, the beneficiary. Cal.
Civ. Code § 2934(d). Quality Loan Service Corp., on behalf of and as agent for the beneficiary
BANA, initiated non-judicial foreclosure proceedings by causing a Notice of Default to be
recorded in the Official Records of San Francisco County on January 18, 2012. (See RJN Exh, F.)
The Note and Deed of Trust establish that Countrywide (dba America’s Wholesale Lender)
was Plaintiff's original lender and had the right to transfer all rights and interest in the Note and
Deed of Trust to BANA. Accordingly, BANA has the right to enforce the terms of the original
loan documents, including the right to initiate a foreclosure sale. Cal. Civ. Code § 2924(a)(1), (2),
(3). Plaintiff does not offer any allegations to support a claim that Defendants failed to comply
2
DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'See
with California’s foreclosure statutes. To the extent that Plaintiff is claiming that Countrywide is
e
not his lender, not entitled to payment, and not entitled to foreclose, the loan documents contradict
these allegations and clearly establish Defendants’ right to foreclose.
As to those causes of action predicated on this argument, specifically the first, third, fifth,
and seventh causes of action, Defendants request this Court sustain Defendants’ demurrer, without
leave to amend.
B Without Tender of the Entire Amount Due, All of Plaintiff's Claims
Challenging the Foreclosure Fail
Despite Plaintiff's arguments to the contrary, the law is clear on the issue of tender —a
eo eB YN DAHA A WN
debtor cannot challenge the foreclosure proceedings without first alleging tender: In fact, “[w]hen
°
a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken
place, the debtor must allege a credible tender of the amount of the secured debt to maintain any
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cause of action for wrongful foreclosure.” Alicea v. GE Money Bank, Case No. C 09-00091 SBA,
2009 WL 2136969, at *3 (N.D. Cal. July 16, 2009) (Emphasis added.) Here, the foreclosure of
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SAN FRANCISCO, CA 94105
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Plaintiff's mortgage loan is, in fact, pending. Thus, without tendering his obligations under the
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BRYAN Cave LLP
339 MARKET STREET, 25™ FLooR
loan, his causes of action fail.
a
Plaintiff's first cause of action for Quiet Title, fifth cause of action for Slander of Title, and
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seventh cause of action for Expungement of Notice of. Default! are implicitly integrated with the
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foreclosure because they are all based on Plaintiff's challenge of Defendants’ right to foreclose.
—
The tender rules apply in this case and Plaintiff has not demonstrated otherwise. Without alleging
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tender, Plaintiff lacks standing to assert these claims, Moreover, Plaintiff's opposition does
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nothing to address the issues raised on demurrer on the issue of tender. Therefore, the demurrer as
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to the first, fifth, and seventh causes of action should be sustained without leave to amend.
Cc. The First Cause of Action for Quiet Title Still Fails
Plaintiff has failed to state a cause of action to quiet title because he has not tendered and
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because the Complaint does not properly plead a quiet title cause of action. Nothing in Plaintiffs
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Although, arguably, Expungement of the Notice of Default is not a valid cause of action.
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DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINTBRYAN CAVE LLP
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94105
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opposition remedies these issues. Instead, Plaintiff raises the specious argument that AWL is not a
legal entity and thus the Deed of Trust is void. (See Opp. 2:8-3:8.) This argument fails (see sec.
IL. A, supra.), and so does his quiet title cause of action.
The first cause of action for quiet title alleges only that “[t]he acts of defendants have
interfered with [Plaintiff's] ownership.” (Compl { 17.) However, the Complaint fails to allege
tender, a necessary allegation for this claim. See Shimpones v. Stickney, 219 Cal. 637, 649 (1934)
(stating that “[i]t is settled in California that a mortgagor cannot quiet his title against the
mortgagee without paying the debt secured”); sce also Aguilar v. Bocci, 39 Cal. App. 3d 475, 477
(1974). Moreover, Plaintiff's opposition does nothing to address the deficiencies raised in the
demurrer as to the Complaint’s failure to properly state a cause of action for quiet title. (See
Demurrer pp. 3:7-4:16.)
For these reasons, the demurrer to the first cause of action in the Complaint should be
sustained without leave to amend.
D. Plaintiff's Opposition Fails to Cure the Breach of Contract and Implied
Covenant Claims’ Defects
Plaintiff's opposition does not address the defects raised on demurrer as to these two
claims. (See Demurrer pp. 4:20-6:3; see also Opp. pp. 3:10-4:10.) Plaintiff concedes the contract
at issue is the Note and Deed of Trust, which was attached as Exhibit 1 to his Complaint. (Compl.
'{ 3; see also Opp. 3:10-12.) However, Plaintiff's Complaint fails to adequately plead Plaintiff's
performance or excuse for his nonperformance, the terms Defendants are alleged to have
breached, or Plaintiffs claimed damages. Instead, the opposition alleges that Defendants entered
into an “implied in fact modification of the existing contract.” (Opp. 3:15-17.) However, Plaintiff|
fails to allege any facts establishing the existence of an implied agreement.
Plaintiff's opposition concedes the elements of an implied contract are: (1) mutual
agreement, (2) intent to promise, and (3) failure to perform. (See Opp. pp. 3:16-4:1.) Neither
Plaintiff's Complaint nor the opposition alleges facts to establish any mutual agreement or an
intent to promise. Specifically, Plaintiff does not, and cannot, allege the existence of any mutual
agreement by Countrywide or Bank of America allowing Plaintiff to pay his property taxes in one
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DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT.BRYAN CAVE LLP
333 MARKET STREET, 25 Floor
SAN FRANCISCO, CA 94105
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Jump sum or pay them late in violation of the terms set forth in the original agreement, There is
no such agreement and there certainly is no intent to promise. Plaintiff fails to allege any facts to
support his allegation.
Moreover, Plaintiff's opposition cites Varni Bros. Corp. v. Wine World, Inc., 35 Cal. App.
Ath 880, 888-89 (1995), for the proposition that Plaintiff and Defendants entered into an implied
agreement which constituted “an implied in fact modification of the existing contract.” (Opp.
3:15-17.) Contrary to Plaintiff's assertions, Varni Bros. is irrelevant to this case. The Varni
Bros. Court found an implied-in-fact contract based on prior usage and custom in a distribution
agreement. Jd. at 889-90. Here, Plaintiff obtained a loan, and in exchange for that loan, he gave
Defendants a security interest in the property. There are no terms left undefined here. Plaintiff's
Promissory Note and Deed of Trust explicitly state the rights and obligations of all parties under
the agreement, including Defendants’ right to impound funds to pay property taxes and insurance
at any time necessary to protect their security interest. (Id.; see also RJN Exh. A.) Plaintiff now
attempts to allege a further “implied agreement” to modify the terms of this contract. However,
Plaintiff alleges no facts to establish any assent on the part of either Defendant to enter into any
other agreement, let alone an “implied agreement.”
Finally, the statute of frauds defeats Plaintiffs’ claim of an “implied in fact modification of
the agreement.” Cal. Civ. Code § 1624(a)(6). “An agreement for the sale of real property or an
interest in real property comes within the statute of frauds. A mortgage or deed of trust also
comes within the statute of frauds.” Secrest v. Sec. Nat’l Mortg. Loan Trust 2002-2, 167 Cal.
App. 4th 544, 552 (2008). Any such contract that is not in writing is invalid. See Jd A writing
“satisfies the statute of frauds if it identifies the subject of the parties’ agreement, shows that they
made a contract, and states the essential contract terms with reasonable certainty.” Sterling v.
Taylor, 40 Cal. 4th 757, 766 (2007). “An agreement to modify a contract that is subject to the
statute of frauds is also subject to the statute of frauds.” Secrest, 167 Cal. App. 4th at 553 (citing
Civ. Code section 1698(a)).
Plaintiff fails to state a claim for breach of contract or breach of the implied covenant and
Defendants’ demurrer should be sustained as to these causes of action. —
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DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS COMPLAINTBRYAN CAVE LLP
333 MARKET STREET, 25™ FLooR
SAN FRANCISCO, CA 94105
E Plaintiff's Opposition Fails to Cure the Defects Raised on Demurrer as to the
Third Cause of Action for Violation of Bus, Prof. Code §17200
Plaintiff's opposition does not address the issues raised on demurrer as to the failure of this
cause of action. (See Demurrer pp. 6:6-8:4; see also Opp. 4: 11-21.) Instead, Plaintiff makes the
argument that his damages lie in the fact that he is being asked to pay more than his original
mortgage loan amount, his house is encumbered by a “patently void trust deed”, and he has
suffered “emotional distress” as a result. (Opp. 4:12-15,) The opposition fails to site any case law
that supports the contention that these alleged damages are appropriate for a Section 17200 cause
of action. In fact, the demurrer clearly sets forth case law establishing that in order for a plaintiff
to have standing under a 17200 cause of action, a private plaintiff must demonstrate injury in fact
and a loss of money or property caused by unfair competition. Peterson v. Cellco P’ship, 164
Cal. App. 4" 1583, 1590 (2008). Again, Plaintiff's Complaint does not allege any facts to
demonstrate that he has suffered injury in fact or a loss of money or property as a result of any
conduct by Defendants, nor does his opposition make any attempt to cure this clearly-stated
defect.
Moreover, Plaintiff's claim under the fraudulent prong fails because it is based on
conclusory statements that Bank of America “falsely raise[d] [Plaintiff's] note payments” and an
alleged “patently void trust deed.” (Compl. 24; Opp. 4:15.) However, an imposition of fees
pursuant to the terms of the contract and unsupported claims of a void deed fail and cannot serve
as a predicate for Plaintiff's UCL claim.
Plaintiff's claim also fails under the fraudulent prong because he does not allege reliance.
The California Supreme Court’s 2009 decision in In re Tobacco II Cases, 46 Cal. 4th 298, 326
(2009) confirms that Section 17200 “imposes an actual reliance requirement” under the
fraudulent prong. To satisfy the actual reliance requirement, private plaintiffs must allege that
the defendants’ actions were an “immediate cause of the injury producing conduct.” Jd. Here,
Plaintiff does not allege that he actually relied on any fraudulent statements or that any members
of the public.actually relied on any fraudulent statements. Thus, Plaintiff's claim fails under the
fraudulent prong.
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DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP
333 MARKET STREET, 25™ Floor
SAN FRANCISCO, CA 94105,
The demurrer further noted that the 17200 claim fails because Plaintiff does not plead.
fraud against the corporate defendants with specificity. Plaintiff's opposition does not address
this deficiency.
Finally, as detailed in the demurrer Plaintiff's claim fails under the unlawful and unfair
prongs because it is not tethered to a violation of any Jaw. The opposition does not address this
deficiency either. Accordingly, this Court should sustained the demurrer as to Plaintiff's claim
‘under Section 17200, without leave to amend.
F, Plaintiff's Opposition Does Not Address the Argument Raised on Demurrer as
to His Fourth Cause of Action for Intentional Tort
Plaintiff's opposition fails to address the intentional infliction of emotional distress claim
at all. Thus, Plaintiff concedes to the fact that this cause of action fails. As discussed in
Defendants’ demurrer, this claim fails because Plaintiff is unable to plead any facts that would
amount to “outrageous conduct” by Defendants. (See demurrer pp. 8:7-9:13.) For these reasons,
Defendants request the Court sustain the demurrer as to Plaintiff's intentional infliction of
emotional distress claim, without leave to amend.
G. The Fifth Cause of Action for Slander of Title Still Fails
Plaintiff's claim for slander of title fails because the foreclosure notices are privileged
communications, Plaintiff has not alleged a willingness or ability to tender, and the allegations
are not specifically pled as required in slander claims. Moreover, Plaintiff's opposition does
nothing to address the fact that there is nothing false, fraudulent, or otherwise illegal about the
recorded documents. The judicially noticeable documents set forth in the Request for Judicial
Notice filed concurrently with the demurrer clearly strikes down Plaintiff's “false publication”
allegations. ©
The foreclosure notices published by Defendants are privileged communications that are
immune to a claim for slander of title as a matter of law. California Civil Code § 2924 provides
that “[t]he mailing, publication and delivery of notices as required by this section” and the
“[p]erformance of the procedures set forth in this article” both “constitute privileged
communications pursuant to [Civil Code §] 47.” Cal. Civ. Code § 2924(d)(1), (2). Further, the
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‘DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER ‘TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP
333 MARKET STREET, 25" FLoon
SAN FRANCISCO, CA 94105
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privilege in Civil Code § 47 “bars all tort causes of action except malicious prosecution.” Jacob
B. v. County of Shasta, 40 Cal. 4th 948, 960 (2007). In particular, the privilege bars a slander of
title claim based on the recordation of a-privileged document. Albertson v, Raboff, 46 Cal, 2d
375, 378-81 (1956). This privilege is “absolute,” and cannot be defeated by alleging malice or
other wrongful intent or acts. Bouyer v. Countrywide Bank, FSB, 2009 U.S. Dist. Lexis 53940,
*19 (N.D. Cal. June 25, 2009); Flatley v. Mauro, 39 Cal. 4th 299, 322 (2006); Silberg v:
Anderson, 50 Cal. 3d 205, 215-16 (1990). Accordingly, “plaintiffs cannot state a claim for
slander of title based on the recordation of the Notice of Default and Election to sell Under Deed
of Trust.” Bouyer, 2009 U.S. Dist. Lexis 53940 at *19. Indeed, it is precisely the recording of
the Notice of Default which Plaintiff bases his slander of title claim. (See Opp. pp. 4:23-5:27.)
Thus, the “gravamen” of Plaintiff's slander of title claim fails and the defect cannot be cured.
Finally, as was raised on demurrer and was not addressed in the opposition, Plaintiff's
slander of title claim is a fraud-based cause of action that must be alleged with sufficient
specificity. (See Demurrer 9:23-10:13.) Since the allegations in the Complaint as to this claim
are scant at best (Compl. {J 12, 31), Plaintiff has not satisfied the heightened pleading burden
associated with slander of title claims.
Therefore, Plaintiff's claim for slander of title fails and Defendants respectfully request
this cause of action be sustained on demurrer, without leave to amend.
i The Sixth Cause of Action for Negligence Still Fails
Plaintiff's opposition is predicated on the foreseeability argument (see Opp. 6:2-24),
however, such an argument is rendered moot if he is unable to first allege a duty of care owed to
him by Defendants. Plaintiff still has not, and cannot, plead a duty of care was owed by
Defendants.
As was set forth in the demurrer, a lender owes no duty of care to a borrower unless “the
lender actively participates in the financed enterprise beyond the domain of the usual money
lender.” Wagner v. Benson, 101 Cal. App. 3d 27, 35 (1980); accord Nymark v. Heart Fed. Sav. &
Loan Ass’n, 231 Cal. App. 3d 1089, 1095 (1991) (“[A] financial institution owes no duty of care
to a borrower when the institution’s involvement in the loan transaction does not exceed the scope
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DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP.
333 MARKET STREET, 25™ FLOOR
SAN FRANCISCO, CA 94108
of its conventional role as a mere lender of money.”) Neither the allegations in the Complaint, nor
the opposition, sets forth any duty of care owed to Plaintiff by Defendants. Therefore, his claim
fails.
L The Seventh Cause of Action for “Expungement of Notice of Default” is
Incurable
Plaintiff's seventh cause of action fails because the Complaint, as pled, fails to state a valid’
cause of action. Indeed, other than citing to irrelevant and outdated case law, Plaintiff's
opposition fails to substantively respond to the issue raised on demurrer as to this claim. Put
simply, the allegations in the Complaint which Plaintiff contends supports the cause of action for
“Expungement of Notice of Default” are insufficient to state a valid claim against Defendants.
(See Compl. { 38.) Defendants should not have to make inferences as to the claims against them.
Therefore, based on grounds of a complete lack of pleading in the Complaint, this cause of action
fails.
J The Eighth Cause of Action Requesting Injunctive Relief Fails
Plaintiff's opposition (as well as his Supplemental Points and Authorities in Opposition)
fails to substantively respond to the demurrer as to the eighth cause of action for injunctive relief.
Instead, Plaintiff argues that injunctive relief is a separate and distinct cause of action. (See Supp.
Opp. p. 1.) .
In his “Supplemental Points and Authorities in Opposition to Defendants’ Demurrer”,
Plaintiff cites several cases in support of his assertion that injunctive relief is a separate and
distinct cause of action. (Id.) However, none of those cases arise in the context of foreclosure
related proceedings. Few even discuss injunctions at length, other than to grant or deny them.
Additionally, in Art Movers, Inc. v. Ni West, Inc., cited by Plaintiff in support of his argument that
injunctive relief is a cause of action, the court explains “[an] . . injunction is a determination on
the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a
defendant and that equitable relief is appropriate.” 3 Cal. App. 4th 640, 646 (1992). Merely
titling an injunction a cause of action, does not make it so. Moreover, Plaintiff's opposition
concedes that the cause of action is moot because preliminary injunctive relief has already been
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DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Cave LLP
333 MARKET STREET, 25™ FLoor
SAN FRANCISCO, CA 94105.
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granted Plaintiff in this case. (See Opp. 7:13-14.)
Plaintiff's cause of action is improperly pled and the issue before this Court is moot as
injunctive relief has already been granted. Therefore, the cause of actions fails and demurrer
should be sustained without leave to amend.
K. Plaintiff's Opposition Fails to Cure the Fraud Claim’s Defects
Plaintiff's ninth cause of action still fails for its lack of specificity in pleading, Plaintiff's
reference to unspecified allegations in the Complaint and vague allegations that Bank of America
“knew to a certainty that plaintiff did not owe it any money” does not establish the pleading
requirement for fraud. (See Opp. 7:16-23.) The opposition fails to address the deficiencies
raised in the demutrer as to Plaintiffs’ lack of specificity in pleading his fraud claim, nor does the
opposition address how the defects can be cured by amendment.
For the reasons set forth in the demurrer, Plaintiff's fraud claim fails and Defendants
request the demurrer as to this cause of action be sustained without leave to amend,
WW. CONCLUSION
For the reasons stated above, Defendants respectfully request that the Court sustain their
demurrer to Plaintiff’s Complaint without leave to amend.
Dated: October 3, 2012 BRYAN CAVE LLP
Attorneys for Defendants
BANK OF AMERICA, N.A. (erroneously sued
as “BANK OF AMERICA NATIONAL
ASSOCIATION”) and COUNTRY WIDE HOME
LOANS, INC., dba AMERICA’S WHOLESALE
LENDER,
10
DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Gave LLP
333 MARKET STREET, 25™ FLoor
SAN FRANCISCO, CA 94105,
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CERTIFICATE OF SERVICE
Tam employed in the aforesaid County, State of California; I am over the age of eighteen
years and not a party to the within entitled action; my business address is: 333 Market Street, 25"
Floor, San Francisco, California 94105 and my email address is novakr@bryancave.com.
DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEMURRER TO PLAINTIFF’S
COMPLAINT
On the interested parties in this action by placing a true copy thereof on October 3, 2012,
enclosed in a sealed envelope, addressed as follows:
Law Offices of Russell Davis
Russell Davis
29 Lakewood Avenue
San Francisco CA 94019
Tel: 415.409.5627
Fax: 415.520.2666
| Attorney for Plaintiff
[ iJ BY MAIL: I caused such envelope to be deposited in the mail at San Francisco,
I" California. The envelope was mailed with postage thereon fully prepaid. As follows: I
am "readily familiar" with the firm's practice of collection and processing correspondence
for mailing. Under that practice, it would be deposited with U.S. postal service on that
same day with postage thereon fully prepaid at San Francisco, California in the ordinary
course of business, I am aware that on motion of the party served, service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of
deposit for mailing in affidavit.
Nov OVERNIGHT DELIVERY) Depositing the above document(s) in a box or other facility
. regularly maintained by FedEx in an envelope or package designated by FedEx with delivery fees
paid or provided for.
{J VIA FACSIMILE: I caused such document(s) to be transmitted from facsimile number
(415) 675-3664 to the facsimile machine(s) of the above-listed party(ies) on the date
specified above. The transmission(s) was/were reported as complete and without error.
The party(ies) has/have agreed in writing to service of the document(s) listed above by
facsimile.
I declare that I am employed within the office of a member of the bar of this Court at whose
direction the service was made,
Executed on October 3, 2012, at San Francisco, California.
_SFOIDOCS\99866.1
PROOF OF SERVICE
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IOUT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Oct-03-2012 11:47 am Case Number: CGC-12-522638 Filing Date: Oct-03-2012 11:46 Filed by: MICHAEL RAYRAY Juke Box: 001 Image: 03789596 REPLY RODOLFO VELASQUEZ VS. BANK OF AMERICA NATIONAL ASSOCIATION et al 001003789596 Instructions: Please place this sheet on top of the document to be scanned.qwnigtd0 BRYAN CAVE LLP 333 MARKET STREET, 25™ FLooR SAN FRANCISCO, CA 94105 Cj BRYAN CAVE LLP C. Scott Greene, Calif. Bar No. 277445 Andrea M. Hicks, Calif. Bar No. 219836 Jessica T. Ehsanian, Calif. Bar No. 231541 333 Market Street, 25" Floor San Francisco, CA 94105 Telephone: (415) 675-3400 Facsimile: (415) 675-3434 E-mail: andrea. hicks@bryancave.com ehsanianj@bryancave.com Attorneys for Defendants WHOLESALE LENDER RODOLFO VELASQUEZ, Plaintiff, v. BANK OF AMERICA NATIONAL ASSOCIATION; AMERICA’S WHOLESALE LENDER; COUNTRYWIDE HOME LOANS, INC,; and DOES | through 100, inclusive, Defendants. BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL ASSOCIATION”), and COUNTRY WIDE HOME LOANS, INC., dba AMERICA’S SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO Case No.: CGC-12-522638 DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT [Filed concurrently with Defendant’s Supplemental Request for Judicial Notice in Support of Demurrer and Objection to Plaintiff's Request for Judicial Notice in Opposition to Defendants’ Demurrer] Date: October 11, 2012 Time: 9:30a.m. Dept.: 501 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP 333 MARKET STREET, 25™ FLoon SAN FRANCISCO, CA 94105 Defendants Bank of America, N.A. (“Bank of America”) and Countrywide Home Loans, Inc., (“Countrywide”) dba America’s Wholesale Lender (“AWL”) (collectively “Defendants”) hereby submit the following reply brief in response to Plaintiff Rodolfo Velasquez’s (“Plaintiff”) opposition to Defendants’ Demurrer to Plaintiff's Complaint. IL INTRODUCTION Plaintiff's opposition is insufficient to rebut any of the points raised in the Demurrer. The opposition fails to establish that the Complaint sufficiently alleges tender or that Plaintiff should be excused from properly alleging tender. In addition, Plaintiff fails to establish that any of his claims could survive demurrer. In short, the opposition fails to save any of the claims and offers no arguments to show that Plaintiff could amend the Complaint to establish viable claims. The Court should thus sustain Defendants’ Demurrer without leave to amend. I. ARGUMENT A. America’s Wholesale Lender is a dba of Countrywide and Plaintiff's Argument That the Deed is Void Fails as a Matter of Law In the opposition, Plaintiff argues that America’s Wholesale Lender (“AWL”) is not a legal entity (i.e., not a corporation) and has “no legal existence” and thus Defendants have no rights under the Deed of Trust and no right to foreclose on Plaintiff's property. (See Compl. fff 15-17, 25; Opp. 3:1-6.) In an apparent attempt to prove the validity of this argument, Plaintiff requests the Court take judicial notice of a screen shot from the United States Patent and Trademark Office indicating that America’s Wholesale Lender is a trademarked name. (See Plaintiff's RIN, Exh, 1; see also Defendants’ Objection to Plaintiff's RIN, filed concurrently herein.) Plaintiff's argument is entirely without merit. America’s Wholesale Lender is a fictitious business name of Countrywide Home Loans, Inc., which is a subsidiary of Bank of America, N.A. (“BANA”). Indeed, America’s Wholesale Lender is not itself a corporation, but is a dba of Countrywide Home Loans, Inc. Plaintiff's loan originated in Daly City, California, San Mateo County and the loan documents signed by Plaintiff indicate a mailing address for AWL in Calabasas, Los Angeles County. Attached to the Request 1 ~ DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Cave LLP 333 MARKET STREET, 25™ FLooR SAN FRANCISCO, CA 94105 - NbN Bw YY NN DN eae ® Yara ®F BREBSERSUARARAEBHBAS COP YAH Bw N for Judicial Notice filed concurrently with this reply brief are dba certificates in both counties establishing AWL is a dba of Countrywide, hopefully putting to rest the specious argument that a dba cannot enter into contracts in California. (See Opp. 3:2-3; see also Supplemental Request for Judicial Notice, Exhs. I and J.) Moreover, Plaintiff fails to cite to one single authority to support his argument that “a fictitious entity creates no rights under the note or deed of trust encumbering the plaintiff's property, so ncither the note nor the Deed of Trust is a legally valid obligation or encumbrance.” (Compl. {16.) Indeed, Plaintiff's assertions are belied by the loan documents and California’s foreclosure statutes. The California statutory scheme allows the foreclosure process to be conducted by the “trustee, mortgagee or beneficiary or any of their authorized agents.” Cal. Civ. Code § 2924(a)(1). The beneficiary under a Deed of Trust, or its authorized agent, is entitled to record the notice of default in order to initiate non-judicial foreclosure proceedings. Cal. Civ. Code § 2924(a)(1). On January 17, 2012, “Countrywide Home Loans, Inc. fdba America’s Wholesale Lender” executed the Assignment of Deed of Trust, assigning and transferring all rights under the Deed of Trust to BANA as successor by merger to BAC Home Loans Servicing, LP. (See RJN Exh. D.) On January 18, 2012, BANA executed the Substitution of Trustee designating Quality Loan Service Corp. as the trustee under the Deed of Trust. (See RJN Exh. E.) The Substitution of Trustee is “conclusive evidence” of Quality Loan Service Corp,’s authority to act as trustee under the Deed of Trust from the date of execution of the substitution by BANA, the beneficiary. Cal. Civ. Code § 2934(d). Quality Loan Service Corp., on behalf of and as agent for the beneficiary BANA, initiated non-judicial foreclosure proceedings by causing a Notice of Default to be recorded in the Official Records of San Francisco County on January 18, 2012. (See RJN Exh, F.) The Note and Deed of Trust establish that Countrywide (dba America’s Wholesale Lender) was Plaintiff's original lender and had the right to transfer all rights and interest in the Note and Deed of Trust to BANA. Accordingly, BANA has the right to enforce the terms of the original loan documents, including the right to initiate a foreclosure sale. Cal. Civ. Code § 2924(a)(1), (2), (3). Plaintiff does not offer any allegations to support a claim that Defendants failed to comply 2 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'See with California’s foreclosure statutes. To the extent that Plaintiff is claiming that Countrywide is e not his lender, not entitled to payment, and not entitled to foreclose, the loan documents contradict these allegations and clearly establish Defendants’ right to foreclose. As to those causes of action predicated on this argument, specifically the first, third, fifth, and seventh causes of action, Defendants request this Court sustain Defendants’ demurrer, without leave to amend. B Without Tender of the Entire Amount Due, All of Plaintiff's Claims Challenging the Foreclosure Fail Despite Plaintiff's arguments to the contrary, the law is clear on the issue of tender —a eo eB YN DAHA A WN debtor cannot challenge the foreclosure proceedings without first alleging tender: In fact, “[w]hen ° a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any we N cause of action for wrongful foreclosure.” Alicea v. GE Money Bank, Case No. C 09-00091 SBA, 2009 WL 2136969, at *3 (N.D. Cal. July 16, 2009) (Emphasis added.) Here, the foreclosure of B SAN FRANCISCO, CA 94105 o Plaintiff's mortgage loan is, in fact, pending. Thus, without tendering his obligations under the _ wn BRYAN Cave LLP 339 MARKET STREET, 25™ FLooR loan, his causes of action fail. a Plaintiff's first cause of action for Quiet Title, fifth cause of action for Slander of Title, and _ x seventh cause of action for Expungement of Notice of. Default! are implicitly integrated with the oo foreclosure because they are all based on Plaintiff's challenge of Defendants’ right to foreclose. — The tender rules apply in this case and Plaintiff has not demonstrated otherwise. Without alleging wy S tender, Plaintiff lacks standing to assert these claims, Moreover, Plaintiff's opposition does N = nothing to address the issues raised on demurrer on the issue of tender. Therefore, the demurrer as N N to the first, fifth, and seventh causes of action should be sustained without leave to amend. Cc. The First Cause of Action for Quiet Title Still Fails Plaintiff has failed to state a cause of action to quiet title because he has not tendered and Nw oN A RB because the Complaint does not properly plead a quiet title cause of action. Nothing in Plaintiffs N Q 8 Although, arguably, Expungement of the Notice of Default is not a valid cause of action. vy 2 3 a DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINTBRYAN CAVE LLP 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94105 oe NYA He wNY KE Hoe ea Bo YN = SS 15 opposition remedies these issues. Instead, Plaintiff raises the specious argument that AWL is not a legal entity and thus the Deed of Trust is void. (See Opp. 2:8-3:8.) This argument fails (see sec. IL. A, supra.), and so does his quiet title cause of action. The first cause of action for quiet title alleges only that “[t]he acts of defendants have interfered with [Plaintiff's] ownership.” (Compl { 17.) However, the Complaint fails to allege tender, a necessary allegation for this claim. See Shimpones v. Stickney, 219 Cal. 637, 649 (1934) (stating that “[i]t is settled in California that a mortgagor cannot quiet his title against the mortgagee without paying the debt secured”); sce also Aguilar v. Bocci, 39 Cal. App. 3d 475, 477 (1974). Moreover, Plaintiff's opposition does nothing to address the deficiencies raised in the demurrer as to the Complaint’s failure to properly state a cause of action for quiet title. (See Demurrer pp. 3:7-4:16.) For these reasons, the demurrer to the first cause of action in the Complaint should be sustained without leave to amend. D. Plaintiff's Opposition Fails to Cure the Breach of Contract and Implied Covenant Claims’ Defects Plaintiff's opposition does not address the defects raised on demurrer as to these two claims. (See Demurrer pp. 4:20-6:3; see also Opp. pp. 3:10-4:10.) Plaintiff concedes the contract at issue is the Note and Deed of Trust, which was attached as Exhibit 1 to his Complaint. (Compl. '{ 3; see also Opp. 3:10-12.) However, Plaintiff's Complaint fails to adequately plead Plaintiff's performance or excuse for his nonperformance, the terms Defendants are alleged to have breached, or Plaintiffs claimed damages. Instead, the opposition alleges that Defendants entered into an “implied in fact modification of the existing contract.” (Opp. 3:15-17.) However, Plaintiff| fails to allege any facts establishing the existence of an implied agreement. Plaintiff's opposition concedes the elements of an implied contract are: (1) mutual agreement, (2) intent to promise, and (3) failure to perform. (See Opp. pp. 3:16-4:1.) Neither Plaintiff's Complaint nor the opposition alleges facts to establish any mutual agreement or an intent to promise. Specifically, Plaintiff does not, and cannot, allege the existence of any mutual agreement by Countrywide or Bank of America allowing Plaintiff to pay his property taxes in one 4 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINT.BRYAN CAVE LLP 333 MARKET STREET, 25 Floor SAN FRANCISCO, CA 94105 Ce AYN DAH eFwWN mos Jump sum or pay them late in violation of the terms set forth in the original agreement, There is no such agreement and there certainly is no intent to promise. Plaintiff fails to allege any facts to support his allegation. Moreover, Plaintiff's opposition cites Varni Bros. Corp. v. Wine World, Inc., 35 Cal. App. Ath 880, 888-89 (1995), for the proposition that Plaintiff and Defendants entered into an implied agreement which constituted “an implied in fact modification of the existing contract.” (Opp. 3:15-17.) Contrary to Plaintiff's assertions, Varni Bros. is irrelevant to this case. The Varni Bros. Court found an implied-in-fact contract based on prior usage and custom in a distribution agreement. Jd. at 889-90. Here, Plaintiff obtained a loan, and in exchange for that loan, he gave Defendants a security interest in the property. There are no terms left undefined here. Plaintiff's Promissory Note and Deed of Trust explicitly state the rights and obligations of all parties under the agreement, including Defendants’ right to impound funds to pay property taxes and insurance at any time necessary to protect their security interest. (Id.; see also RJN Exh. A.) Plaintiff now attempts to allege a further “implied agreement” to modify the terms of this contract. However, Plaintiff alleges no facts to establish any assent on the part of either Defendant to enter into any other agreement, let alone an “implied agreement.” Finally, the statute of frauds defeats Plaintiffs’ claim of an “implied in fact modification of the agreement.” Cal. Civ. Code § 1624(a)(6). “An agreement for the sale of real property or an interest in real property comes within the statute of frauds. A mortgage or deed of trust also comes within the statute of frauds.” Secrest v. Sec. Nat’l Mortg. Loan Trust 2002-2, 167 Cal. App. 4th 544, 552 (2008). Any such contract that is not in writing is invalid. See Jd A writing “satisfies the statute of frauds if it identifies the subject of the parties’ agreement, shows that they made a contract, and states the essential contract terms with reasonable certainty.” Sterling v. Taylor, 40 Cal. 4th 757, 766 (2007). “An agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds.” Secrest, 167 Cal. App. 4th at 553 (citing Civ. Code section 1698(a)). Plaintiff fails to state a claim for breach of contract or breach of the implied covenant and Defendants’ demurrer should be sustained as to these causes of action. — 5 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFFS COMPLAINTBRYAN CAVE LLP 333 MARKET STREET, 25™ FLooR SAN FRANCISCO, CA 94105 E Plaintiff's Opposition Fails to Cure the Defects Raised on Demurrer as to the Third Cause of Action for Violation of Bus, Prof. Code §17200 Plaintiff's opposition does not address the issues raised on demurrer as to the failure of this cause of action. (See Demurrer pp. 6:6-8:4; see also Opp. 4: 11-21.) Instead, Plaintiff makes the argument that his damages lie in the fact that he is being asked to pay more than his original mortgage loan amount, his house is encumbered by a “patently void trust deed”, and he has suffered “emotional distress” as a result. (Opp. 4:12-15,) The opposition fails to site any case law that supports the contention that these alleged damages are appropriate for a Section 17200 cause of action. In fact, the demurrer clearly sets forth case law establishing that in order for a plaintiff to have standing under a 17200 cause of action, a private plaintiff must demonstrate injury in fact and a loss of money or property caused by unfair competition. Peterson v. Cellco P’ship, 164 Cal. App. 4" 1583, 1590 (2008). Again, Plaintiff's Complaint does not allege any facts to demonstrate that he has suffered injury in fact or a loss of money or property as a result of any conduct by Defendants, nor does his opposition make any attempt to cure this clearly-stated defect. Moreover, Plaintiff's claim under the fraudulent prong fails because it is based on conclusory statements that Bank of America “falsely raise[d] [Plaintiff's] note payments” and an alleged “patently void trust deed.” (Compl. 24; Opp. 4:15.) However, an imposition of fees pursuant to the terms of the contract and unsupported claims of a void deed fail and cannot serve as a predicate for Plaintiff's UCL claim. Plaintiff's claim also fails under the fraudulent prong because he does not allege reliance. The California Supreme Court’s 2009 decision in In re Tobacco II Cases, 46 Cal. 4th 298, 326 (2009) confirms that Section 17200 “imposes an actual reliance requirement” under the fraudulent prong. To satisfy the actual reliance requirement, private plaintiffs must allege that the defendants’ actions were an “immediate cause of the injury producing conduct.” Jd. Here, Plaintiff does not allege that he actually relied on any fraudulent statements or that any members of the public.actually relied on any fraudulent statements. Thus, Plaintiff's claim fails under the fraudulent prong. 6 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP 333 MARKET STREET, 25™ Floor SAN FRANCISCO, CA 94105, The demurrer further noted that the 17200 claim fails because Plaintiff does not plead. fraud against the corporate defendants with specificity. Plaintiff's opposition does not address this deficiency. Finally, as detailed in the demurrer Plaintiff's claim fails under the unlawful and unfair prongs because it is not tethered to a violation of any Jaw. The opposition does not address this deficiency either. Accordingly, this Court should sustained the demurrer as to Plaintiff's claim ‘under Section 17200, without leave to amend. F, Plaintiff's Opposition Does Not Address the Argument Raised on Demurrer as to His Fourth Cause of Action for Intentional Tort Plaintiff's opposition fails to address the intentional infliction of emotional distress claim at all. Thus, Plaintiff concedes to the fact that this cause of action fails. As discussed in Defendants’ demurrer, this claim fails because Plaintiff is unable to plead any facts that would amount to “outrageous conduct” by Defendants. (See demurrer pp. 8:7-9:13.) For these reasons, Defendants request the Court sustain the demurrer as to Plaintiff's intentional infliction of emotional distress claim, without leave to amend. G. The Fifth Cause of Action for Slander of Title Still Fails Plaintiff's claim for slander of title fails because the foreclosure notices are privileged communications, Plaintiff has not alleged a willingness or ability to tender, and the allegations are not specifically pled as required in slander claims. Moreover, Plaintiff's opposition does nothing to address the fact that there is nothing false, fraudulent, or otherwise illegal about the recorded documents. The judicially noticeable documents set forth in the Request for Judicial Notice filed concurrently with the demurrer clearly strikes down Plaintiff's “false publication” allegations. © The foreclosure notices published by Defendants are privileged communications that are immune to a claim for slander of title as a matter of law. California Civil Code § 2924 provides that “[t]he mailing, publication and delivery of notices as required by this section” and the “[p]erformance of the procedures set forth in this article” both “constitute privileged communications pursuant to [Civil Code §] 47.” Cal. Civ. Code § 2924(d)(1), (2). Further, the 7 ‘DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER ‘TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP 333 MARKET STREET, 25" FLoon SAN FRANCISCO, CA 94105 om NAH BF WwW NY He NYoN YN Y NN WN i te = > eur dt RB BSBERBR SRC BEUWACESBHR TS privilege in Civil Code § 47 “bars all tort causes of action except malicious prosecution.” Jacob B. v. County of Shasta, 40 Cal. 4th 948, 960 (2007). In particular, the privilege bars a slander of title claim based on the recordation of a-privileged document. Albertson v, Raboff, 46 Cal, 2d 375, 378-81 (1956). This privilege is “absolute,” and cannot be defeated by alleging malice or other wrongful intent or acts. Bouyer v. Countrywide Bank, FSB, 2009 U.S. Dist. Lexis 53940, *19 (N.D. Cal. June 25, 2009); Flatley v. Mauro, 39 Cal. 4th 299, 322 (2006); Silberg v: Anderson, 50 Cal. 3d 205, 215-16 (1990). Accordingly, “plaintiffs cannot state a claim for slander of title based on the recordation of the Notice of Default and Election to sell Under Deed of Trust.” Bouyer, 2009 U.S. Dist. Lexis 53940 at *19. Indeed, it is precisely the recording of the Notice of Default which Plaintiff bases his slander of title claim. (See Opp. pp. 4:23-5:27.) Thus, the “gravamen” of Plaintiff's slander of title claim fails and the defect cannot be cured. Finally, as was raised on demurrer and was not addressed in the opposition, Plaintiff's slander of title claim is a fraud-based cause of action that must be alleged with sufficient specificity. (See Demurrer 9:23-10:13.) Since the allegations in the Complaint as to this claim are scant at best (Compl. {J 12, 31), Plaintiff has not satisfied the heightened pleading burden associated with slander of title claims. Therefore, Plaintiff's claim for slander of title fails and Defendants respectfully request this cause of action be sustained on demurrer, without leave to amend. i The Sixth Cause of Action for Negligence Still Fails Plaintiff's opposition is predicated on the foreseeability argument (see Opp. 6:2-24), however, such an argument is rendered moot if he is unable to first allege a duty of care owed to him by Defendants. Plaintiff still has not, and cannot, plead a duty of care was owed by Defendants. As was set forth in the demurrer, a lender owes no duty of care to a borrower unless “the lender actively participates in the financed enterprise beyond the domain of the usual money lender.” Wagner v. Benson, 101 Cal. App. 3d 27, 35 (1980); accord Nymark v. Heart Fed. Sav. & Loan Ass’n, 231 Cal. App. 3d 1089, 1095 (1991) (“[A] financial institution owes no duty of care to a borrower when the institution’s involvement in the loan transaction does not exceed the scope 8 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN CAVE LLP. 333 MARKET STREET, 25™ FLOOR SAN FRANCISCO, CA 94108 of its conventional role as a mere lender of money.”) Neither the allegations in the Complaint, nor the opposition, sets forth any duty of care owed to Plaintiff by Defendants. Therefore, his claim fails. L The Seventh Cause of Action for “Expungement of Notice of Default” is Incurable Plaintiff's seventh cause of action fails because the Complaint, as pled, fails to state a valid’ cause of action. Indeed, other than citing to irrelevant and outdated case law, Plaintiff's opposition fails to substantively respond to the issue raised on demurrer as to this claim. Put simply, the allegations in the Complaint which Plaintiff contends supports the cause of action for “Expungement of Notice of Default” are insufficient to state a valid claim against Defendants. (See Compl. { 38.) Defendants should not have to make inferences as to the claims against them. Therefore, based on grounds of a complete lack of pleading in the Complaint, this cause of action fails. J The Eighth Cause of Action Requesting Injunctive Relief Fails Plaintiff's opposition (as well as his Supplemental Points and Authorities in Opposition) fails to substantively respond to the demurrer as to the eighth cause of action for injunctive relief. Instead, Plaintiff argues that injunctive relief is a separate and distinct cause of action. (See Supp. Opp. p. 1.) . In his “Supplemental Points and Authorities in Opposition to Defendants’ Demurrer”, Plaintiff cites several cases in support of his assertion that injunctive relief is a separate and distinct cause of action. (Id.) However, none of those cases arise in the context of foreclosure related proceedings. Few even discuss injunctions at length, other than to grant or deny them. Additionally, in Art Movers, Inc. v. Ni West, Inc., cited by Plaintiff in support of his argument that injunctive relief is a cause of action, the court explains “[an] . . injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.” 3 Cal. App. 4th 640, 646 (1992). Merely titling an injunction a cause of action, does not make it so. Moreover, Plaintiff's opposition concedes that the cause of action is moot because preliminary injunctive relief has already been 9 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Cave LLP 333 MARKET STREET, 25™ FLoor SAN FRANCISCO, CA 94105. Ce IN DH Bw Ne Ss 11 granted Plaintiff in this case. (See Opp. 7:13-14.) Plaintiff's cause of action is improperly pled and the issue before this Court is moot as injunctive relief has already been granted. Therefore, the cause of actions fails and demurrer should be sustained without leave to amend. K. Plaintiff's Opposition Fails to Cure the Fraud Claim’s Defects Plaintiff's ninth cause of action still fails for its lack of specificity in pleading, Plaintiff's reference to unspecified allegations in the Complaint and vague allegations that Bank of America “knew to a certainty that plaintiff did not owe it any money” does not establish the pleading requirement for fraud. (See Opp. 7:16-23.) The opposition fails to address the deficiencies raised in the demutrer as to Plaintiffs’ lack of specificity in pleading his fraud claim, nor does the opposition address how the defects can be cured by amendment. For the reasons set forth in the demurrer, Plaintiff's fraud claim fails and Defendants request the demurrer as to this cause of action be sustained without leave to amend, WW. CONCLUSION For the reasons stated above, Defendants respectfully request that the Court sustain their demurrer to Plaintiff’s Complaint without leave to amend. Dated: October 3, 2012 BRYAN CAVE LLP Attorneys for Defendants BANK OF AMERICA, N.A. (erroneously sued as “BANK OF AMERICA NATIONAL ASSOCIATION”) and COUNTRY WIDE HOME LOANS, INC., dba AMERICA’S WHOLESALE LENDER, 10 DEFENDANTS’ REPLY IN SUPPORT OF DEMURRER TO PLAINTIFF'S COMPLAINTBRYAN Gave LLP 333 MARKET STREET, 25™ FLoor SAN FRANCISCO, CA 94105, Cem YN DH BR BW Dw oe — Ss CERTIFICATE OF SERVICE Tam employed in the aforesaid County, State of California; I am over the age of eighteen years and not a party to the within entitled action; my business address is: 333 Market Street, 25" Floor, San Francisco, California 94105 and my email address is novakr@bryancave.com. DEFENDANTS’ REPLY BRIEF IN SUPPORT OF DEMURRER TO PLAINTIFF’S COMPLAINT On the interested parties in this action by placing a true copy thereof on October 3, 2012, enclosed in a sealed envelope, addressed as follows: Law Offices of Russell Davis Russell Davis 29 Lakewood Avenue San Francisco CA 94019 Tel: 415.409.5627 Fax: 415.520.2666 | Attorney for Plaintiff [ iJ BY MAIL: I caused such envelope to be deposited in the mail at San Francisco, I" California. The envelope was mailed with postage thereon fully prepaid. As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at San Francisco, California in the ordinary course of business, I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. Nov OVERNIGHT DELIVERY) Depositing the above document(s) in a box or other facility . regularly maintained by FedEx in an envelope or package designated by FedEx with delivery fees paid or provided for. {J VIA FACSIMILE: I caused such document(s) to be transmitted from facsimile number (415) 675-3664 to the facsimile machine(s) of the above-listed party(ies) on the date specified above. The transmission(s) was/were reported as complete and without error. The party(ies) has/have agreed in writing to service of the document(s) listed above by facsimile. I declare that I am employed within the office of a member of the bar of this Court at whose direction the service was made, Executed on October 3, 2012, at San Francisco, California. _SFOIDOCS\99866.1 PROOF OF SERVICE