Preview
LOCKE LORD LLP
Regina J.McClendon (SBN 184669)
rmcclendon@lockelord.com ir I L E D
Xiyi Fu (SBN 278274) Superior Court of California
jackie.fu@lockelord.com Cannty 92 Bisemy
101 Montgomery Street, Suite 1950
San Francisco, CA 94104 APR 23 2019
Telephone: (415) 318-8810 Jake Chatters
x@cutive Officer & Clerk
Fax: (415) 676-5816 By: O. Lucatuorto, Deputy
Attorneys for Defendant
The Bank of New York Mellon fka The Bank of New York as Trustee for the Benefit of the
Certificate Holders of the CWALT, Inc., Alternative Loan Trust 2004-15, Mortgage Pass Through
Certificates, Series 2004-15 (incorrectly sued as Bank of New York Mellon (FKA Bank of NY
Series 2004-15), dba, BNY Mellon)
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 FOR THE COUNTY OF PLACER
13 W1 HOLDINGS; an undeclared business entity; ) CASE NO.: SCV0041493
1950
14 ANNE TAYLOR, an individual and bona fide _)
FAX
94104
tenant, ) Assigned for allpurposes to:
Suite
LLP
15 Plaintiffs, ) Hon. Charles Wachob, Dept. 42
Street,
CA
)
Lord
16 vs. ) REPLY IN SUPPORT OF DEMURRER TO
Francisco,
Montgomery
BY
17 ) COMPLAINT
Locke
BANK OF NEW YORK MELLON (FKA )
18 BANK OF NY SERIES 2004-15), dba, BNY —)_~—_Date:April 30, 2019
San
MELLON; STONE CANYON ESTATES ) Time: 8:30 a.m.
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19 HOMEOWNERS ASSOCIATION, a California ) Dept.: 40
corporation; JOHN FREDERICK TIDGEWELL, )
20 and individual and President of the Stone Canyon) Complaint Filed: July 18, 2018
21 Estates Homeowners Association; KELLER )
WILLIAMS REALTY, an undeclared business _ )
22 entity; REO MANAGEMENT SOLUTIONS, _ )
LLC, a foreign limited liability company; )
23 EXECUTIVE REPRESENTATION, a California)
corporation; SEAN WORK, an individual, )
24 California Real Estate Broker and agent to )
25 Executive Representation; MEGAN )
TEEGARDEN, an individual and agent to )
26 Executive Representation; and, DOES |through )
50 inclusive, )
27 Defendants. )
28 )
REPLY IN SUPPORT OF DEMURRER
W1 Holdings. etal.v. Bank of New YorkMellon. etal..Case No. SCV0041493
i. INTRODUCTION
Defendant The Bank of New York Mellon fka The Bank of New York as Trustee for the
Benefit of the Certificate Holders of the CWALT, Inc., Alternative Loan Trust 2004-15, Mortgage
Pass Through Certificates, Series 2004-15 (incorrectly sued as Bank of New York Mellon (FKA
Bank of NY Series 2004-15), dba, BNY Mellon)(“BNY Mellon”) submits this Reply in support of
itsDemurrer to the First Amended Complaint (“FAC”) filed by plaintiff Anne Taylor (“Plaintiff”).
Il. LEGAL ARGUMENT
A. Plaintiff’s second, third, fourth, fifth,sixth, seventh, and eighth causes of action
continue to failas Plaintiff does not have a valid ground to occupy the Property.
Plaintiff claims that BNY Mellon’s challenge to her right to occupy the Property isbased on
10
the false assumption that the HOA foreclosure was valid. She is incorrect. Plaintiffs right of
il
possession is predicated on two purported lease agreements between her and W1 Holdings. As to
12
the March 31, 2017 lease, this Court previously found that itwas invalid because W1 Holdings had
13
no possessory or ownership interest in the Property atthe time the purported lease was entered into.
1950
14
FAX
94104
Suite
Ruling on Submitted Matter dated January 17, 2019, pp. 3-4.
LLP
15
Street,
CA
The purported lease dated March 13, 3017 isinvalid for the same reason. Plaintiff alleges
Lord
16
Francisco,
W1 Holdings obtained ownership of the Property from Sheena George and G4 Capital inFebruary
Montgomery
BY
17
Locke
2017. FAC, § 18. As BNY Mellon explained in the Demurrer, the court inAction 2 (G4 Capital
18
San
Partners, LLC, et al. v.Bank of New York Mellon, et al.) held that neither Sheena George nor G4
101
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Capital had interest in the Property to convey to W1 Holdings. RJN, 17, p. 14 of 18; RJN, Exh. 5.
20
This is ajudicially noticeable fact which the Court can consider on a demurrer. Fontenot v. Wells
21
Fargo Bank, N.A., 198 Cal.App.4th 256, 265-66 (2011). As Plaintiff does not have a valid basis to
29
occupy the Property, the Court should sustain BNY Mellon’s demurrer to the second, third, fourth,
23
fifth,sixth, seventh, and eighth causes of action for trespass, invasion of privacy, slander per se,
24
violation of Government Code § 12955.7, negligence per se, negligent infliction of emotional
25
distress, and intentional infliction of emotional distress.
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REPLY IN SUPPORT OF DEMURRER
W1 Holdings. etal.v.Bank of New York Mellon, etal..Case No. SCV0041493
B. Plaintiff has not sufficiently allege facts to impute the intentional tort allegedly
committed by co-defendants to BNY Mellon.
Plaintiff argues that she has specifically alleged the actions by KELLER WILLIAMS, REO
MGMT, EXEC REP, WORK, and Megan Teegarden to impute them to BNY Mellon. Her argument
misses the point. As explained in the Demurrer, aprincipal isnot liable for intentional tort
committed by itsagent if the tort did not have a causal nexus to the agent’s work. Dem., 5:15-16;
CUD
ocmlUlUMNUOlUmUlCUCUCOOUMN
Lisa M. v.Henry Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 297 (1995). Plaintiff does not allege
what the scope of work of the aforementioned co-defendant or whether the alleged conduct stemmed
from personal malice. Thus, even though the Court found that Plaintiff has sufficiently alleged an
agency relationship between these co-defendants and BNY Mellon, Plaintiff has failed to allege facts
to show that the alleged actions by them were engendered by their purported employment with BNY
11
Mellon. Accordingly, Plaintiff has failed to allege facts to impute the alleged actions to BNY
12
Mellon, and her entire FAC failsto statea claim against BNY Mellon.
13
1950
C. Plaintiff’s first and fifth causes of action for “Violation of Unruh Civil Rights
14 Act” and “Violation of Government Code § 12955.7” continue to fail.
FAX
94104
Suite
LLP
15
Plaintiff claims that she has alleged sufficient facts to state a claim under the Unruh Act
Street,
CA
Lord
16
Francisco,
because BNY Mellon’s alleged agent uttered racial slurs at her. As explained in the Demurrer, this
Montgomery
BY
17
Locke
allegation alone is insufficient to state a claim under the Unruh Act. Plaintiff fails to allege that her
San
18
race or national origin was a motivating factor for BNY Mellon’s purported conduct. In other
101
19
words, she fails to allege that BNY Mellon would have treated a similarly situated person (i.e. a
20
trespasser or someone else occupying the Property without a valid lease) any differently. Wilkins-
al
Jones v. Cty. ofAlameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012)(dismissing plaintiff's claim
22
under the Unruh Act because plaintiff failed to allege how her disability was a motivating factor in
Zo
her disparate treatment and how she was denied full and equal accommodation.). She cannot cure
24
this deficiency with further amendment, as she claims in the unlawful detainer action that BNY
25
Mellon attempted to evict her in retaliation of her participation in the two civilactions filed by W1
26
Holdings and G4 Capital. RJN, Exhs. 21. Retaliation claims are not actionable under the Unruh
a
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2
REPLY IN SUPPORT OF DEMURRER
W1 Holdings. etal.v.Bank of New York Mellon, etal..Case No. SCV0041493
Act. Scripps Clinic v.Superior Court, 108 Cal. App. 4th 917 (2003), review denied, (Sept. 17,
2003).
More importantly, the Unruh Act does not confer any right or privilege that is otherwise
limited by law. The Court found that the purported March 31, 2017 lease agreement was invalid.
Thus, BNY Mellon was not obligated to ratify the invalid lease agreement. As such, even though
Plaintiff alleges that BNY Mellon uttered racial slurs at her, her claim under the Unruh Act remains
deficient. The Court should sustain BNY Mellon’s demurrer to the first cause of action.
Plaintiff did not meaningfully oppose BNY Mellon’s demurrer to her claim under
Government Code § 12955.7. She only alleges that “the court did not dismiss Plaintiff's claims but
10 sustained the demurrer to these causes of action with leave to amend.” Opp., 5:6-10. Her failure to
11 oppose BNY Mellon’s demurrer is a concession that its defense is meritorious, and the Court should
12 sustain BNY Mellon’s demurrer to the fifth cause of action. Herzberg v. County of Plumas, 133 Cal.
13 App 4th 1, 20 (2005)(“Plaintiffs did not oppose the County's demurrer to this portion of their seventh
1950
FAX
14 cause of action and have submitted no argument on the issue intheir briefs on appeal. Accordingly,
94104
Suite
LLP
15 we deem plaintiffs to have abandoned the issue.”).
Street,
CA
Lord
16 D. Plaintiffs sixth and seventh causes of action for “negligence per se” and
Francisco,
Montgomery
“negligent infliction of emotional distress” continue to fail
BY
17
Locke
Plaintiff first claims that BNY Mellon’s arguments to her “negligence per se” claim are
18
San
misplaced because “[a]lthough the caption of the firstamended complaint states the sixth cause of
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action as Negligence Per Se in the body of the complaint the sixth cause of action ispled as
20
Negligence.” Opp., 5:16-18. Itis Plaintiff's responsibility to properly label her causes of action. As
21
Plaintiff seems to have abandoned her “negligence per se” claim against BNY Mellon, the Court
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should dismiss this cause of action without leave to amend.
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Plaintiff next argues that BNY Mellon owed her a duty by operation of law. The only statue
24
she cited in the FAC was Civil Code § 1940.2. FAC, §§ 111 and 147. The Court previously
25
dismissed her section 1940.2 claim without leave to amend. Ruling on Submitted Matter dated
26
January 17, 2019, p. 4. Thus, Plaintiff cannot re-allege and disguise her section 1940.2 claim as a
27
negligence claim. And to be clear, section 1940.2 prohibits a landlord from unlawfully influencing a
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3
REPLY IN SUPPORT OF DEMURRER
W1 Holdings. etal.v.Bank of New York Mellon, et al..
Case No. SCV0041493
tenant to vacate the dwelling. Cal. Civ. Code § 1940.2. As the Court found that the March 31, 2017
lease agreement was invalid, there was no landlord-tenant relationship between Plaintiff and BNY
Mellon and section 1940.2 isinapplicable. As BNY Mellon did not owe a duty to Plaintiff, her
“negligence per se” and negligent infliction of emotional distress fails. The Court should sustain
BNY Mellon’s demurrer to the sixth and seventh causes of action.
E. Plaintiff’s eighth cause of action for “intentional infliction of emotional distress”
continues to fail.
Plaintiff's opposition does not address BNY Mellon’s arguments, but makes the blanket
assertion that she has sufficiently alleged facts to support her intentional infliction of emotional
distress claim. However, the same conduct that was alleged in the FAC was alleged in the
10
Complaint, and the Court found Plaintiff failed to allege conduct that was “so extreme as to exceed
11
all bounds of that usually tolerated in a civilized community.” Ruling on Submitted Matter dated
12
January 17, 2019, p. 5. Plaintiff fails to allege any relationship between her and BNY Mellon that
13
1950
would support her allegation of “outrageous conduct.” Plaintiff also failsto allege any facts to show
14
FAX
94104
Suite
that BNY Mellon knew she was susceptible to mental distress and injuries or intended the conduct to
LLP
15
Street,
CA
result in mental or physical injuries. Moreover, Plaintiff only generically asserts that she suffered
Lord
16
Francisco,
Montgomery
BY
from “extreme emotional distress”. FAC, § 185 (“Plaintiff has suffered and continues to suffer
17
Locke
severe emotional distress.”). This does not rise to the level of severe distress as she is required to
18
San
plead. Wong v. Jing, 189 Cal.App.4th 1354, 1376 (2010)(“California Supreme Court has set a ‘high
101
19
bar’ for what can constitute severe distress.”). Likewise, Plaintiff generically asserts that BNY
20
Mellon was the actual and proximate cause of her injuries (FAC, §] 184), and the Court need not
21
consider this conclusion of facts. Richelle L. vy.Roman Catholic Archbishop of San Francisco, 106
22
Cal.App.4th 257, 266 (2003).
23
For these reasons, the Court should sustain BNY Mellon’s demurrer to the eighth cause of
24
action.
25
Ill. CONCLUSION
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The repeated allegations in the FAC demonstrate that Plaintiff cannot cure the deficiencies in
27
her claims against BNY Mellon. Granting leave to amend would be futile under the circumstances.
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4
REPLY IN SUPPORT OF DEMURRER
W1 Holdings. etal.y.Bank of New York Mellon. etal..Case No. SCV0041493
For allof the reasons stated herein and in the Demurrer, BNY Mellon respectfully requests that the
Court sustain itsDemurrer to the FAC in itsentirety without leave to amend.
Dated: April 23, 2019 Respectfully submitted,
LOCKE LORD LLP
By “WO 4 ——,
Regina J.Mc@l¢ndon
Xiyi Fu
Attorneys for Defendant The Bank of New York Mellon fka The
Bank of New York as Trustee for the Benefit of the Certificate
Holders of the CWALT, Inc., Alternative Loan Trust 2004-15,
Mortgage Pass Through Certificates, Series 2004-15 (incorrectly
10 sued as Bank of New York Mellon, (FKA Bank of NY Series
11 2004-15), dba, BNY Mellon)
12
13
1950
14
FAX
94104
Suite
LLP
15
Street,
CA
Lord
16
Francisco,
Montgomery
BY
17
Locke
18
San
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REPLY IN SUPPORT OF DEMURRER
WI Holdings. etal.v.Bank of New York Mellon, etal..Case No. SCV0041493
STATE OF CALIFORNIA ) PROOF OF SERVICE
COUNTY OF SAN FRANCISCO ) ss,
W1 Holdings, etal. vy.Bank of New York Mellon, etal.
Placer County Superior Court Case No. SCV0041493
1am employed in the County of San Francisco, State of California. I am over the age of 18
and not a party to the within action. My business address is: 101 Montgomery Street, Suite 1950,
San Francisco, CA 94104. On April 23, 2019, I served the foregoing document described as:
REPLY IN SUPPORT OF DEMURRER TO COMPLAINT
on the parties or attorneys for parties in this action who are identified below, using the following
means of service. (If more than one means of service is checked, the means of service used for each
party isindicated below).
LYLE D. SOLOMON, ESQ. Attorney for Plaintiffs W1 Holdings and Anne Taylor
PO Box 1411
10 Rocklin, CA 95677
Tel: (916) 532-2726
11 Email: lyledsS6@yahoo.com
12 M BY EXPRESS MAIL. I placed __ the original or VY_a true copy of the foregoing
document in a sealed enveloped individually addressed to each of the parties listed above, and
13 caused each such envelope to be deposited in the mail at 101 Montgomery Street, Suite 1950,
1950
San Francisco, CA 94104. Each envelope was mailed with Express Mail postage thereon
14 fully prepaid. I am readily familiar with this firm’s practice of collection and processing of
FAX
94104
Suite
correspondence for mailing. Under that practice, mail is deposited with the United States
15
LLP
Postal Service the same day that it iscollected in the ordinary course of business.
Street,
CA
Lord
16
Francisca.
Mj (State) I declare under penalty of perjury under the laws of the State of California that the
Montgomery
foregoing is true and correct.
Locke
17
BY
San
18 Executed on April 23, 2019, at San Francisco, California.
101
19
20 /
ie CE
Taylor Warren
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PROOF OF SERVICE
W1 Holdings, etal.y.Bank of New York Mellon, et al.,Case No. SCV0041493
Preview
LOCKE LORD LLP Regina J.McClendon (SBN 184669) rmcclendon@lockelord.com ir I L E D Xiyi Fu (SBN 278274) Superior Court of California jackie.fu@lockelord.com Cannty 92 Bisemy 101 Montgomery Street, Suite 1950 San Francisco, CA 94104 APR 23 2019 Telephone: (415) 318-8810 Jake Chatters x@cutive Officer & Clerk Fax: (415) 676-5816 By: O. Lucatuorto, Deputy Attorneys for Defendant The Bank of New York Mellon fka The Bank of New York as Trustee for the Benefit of the Certificate Holders of the CWALT, Inc., Alternative Loan Trust 2004-15, Mortgage Pass Through Certificates, Series 2004-15 (incorrectly sued as Bank of New York Mellon (FKA Bank of NY Series 2004-15), dba, BNY Mellon) 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 FOR THE COUNTY OF PLACER 13 W1 HOLDINGS; an undeclared business entity; ) CASE NO.: SCV0041493 1950 14 ANNE TAYLOR, an individual and bona fide _) FAX 94104 tenant, ) Assigned for allpurposes to: Suite LLP 15 Plaintiffs, ) Hon. Charles Wachob, Dept. 42 Street, CA ) Lord 16 vs. ) REPLY IN SUPPORT OF DEMURRER TO Francisco, Montgomery BY 17 ) COMPLAINT Locke BANK OF NEW YORK MELLON (FKA ) 18 BANK OF NY SERIES 2004-15), dba, BNY —)_~—_Date:April 30, 2019 San MELLON; STONE CANYON ESTATES ) Time: 8:30 a.m. 101 19 HOMEOWNERS ASSOCIATION, a California ) Dept.: 40 corporation; JOHN FREDERICK TIDGEWELL, ) 20 and individual and President of the Stone Canyon) Complaint Filed: July 18, 2018 21 Estates Homeowners Association; KELLER ) WILLIAMS REALTY, an undeclared business _ ) 22 entity; REO MANAGEMENT SOLUTIONS, _ ) LLC, a foreign limited liability company; ) 23 EXECUTIVE REPRESENTATION, a California) corporation; SEAN WORK, an individual, ) 24 California Real Estate Broker and agent to ) 25 Executive Representation; MEGAN ) TEEGARDEN, an individual and agent to ) 26 Executive Representation; and, DOES |through ) 50 inclusive, ) 27 Defendants. ) 28 ) REPLY IN SUPPORT OF DEMURRER W1 Holdings. etal.v. Bank of New YorkMellon. etal..Case No. SCV0041493 i. INTRODUCTION Defendant The Bank of New York Mellon fka The Bank of New York as Trustee for the Benefit of the Certificate Holders of the CWALT, Inc., Alternative Loan Trust 2004-15, Mortgage Pass Through Certificates, Series 2004-15 (incorrectly sued as Bank of New York Mellon (FKA Bank of NY Series 2004-15), dba, BNY Mellon)(“BNY Mellon”) submits this Reply in support of itsDemurrer to the First Amended Complaint (“FAC”) filed by plaintiff Anne Taylor (“Plaintiff”). Il. LEGAL ARGUMENT A. Plaintiff’s second, third, fourth, fifth,sixth, seventh, and eighth causes of action continue to failas Plaintiff does not have a valid ground to occupy the Property. Plaintiff claims that BNY Mellon’s challenge to her right to occupy the Property isbased on 10 the false assumption that the HOA foreclosure was valid. She is incorrect. Plaintiffs right of il possession is predicated on two purported lease agreements between her and W1 Holdings. As to 12 the March 31, 2017 lease, this Court previously found that itwas invalid because W1 Holdings had 13 no possessory or ownership interest in the Property atthe time the purported lease was entered into. 1950 14 FAX 94104 Suite Ruling on Submitted Matter dated January 17, 2019, pp. 3-4. LLP 15 Street, CA The purported lease dated March 13, 3017 isinvalid for the same reason. Plaintiff alleges Lord 16 Francisco, W1 Holdings obtained ownership of the Property from Sheena George and G4 Capital inFebruary Montgomery BY 17 Locke 2017. FAC, § 18. As BNY Mellon explained in the Demurrer, the court inAction 2 (G4 Capital 18 San Partners, LLC, et al. v.Bank of New York Mellon, et al.) held that neither Sheena George nor G4 101 19 Capital had interest in the Property to convey to W1 Holdings. RJN, 17, p. 14 of 18; RJN, Exh. 5. 20 This is ajudicially noticeable fact which the Court can consider on a demurrer. Fontenot v. Wells 21 Fargo Bank, N.A., 198 Cal.App.4th 256, 265-66 (2011). As Plaintiff does not have a valid basis to 29 occupy the Property, the Court should sustain BNY Mellon’s demurrer to the second, third, fourth, 23 fifth,sixth, seventh, and eighth causes of action for trespass, invasion of privacy, slander per se, 24 violation of Government Code § 12955.7, negligence per se, negligent infliction of emotional 25 distress, and intentional infliction of emotional distress. 26 27 28 1 REPLY IN SUPPORT OF DEMURRER W1 Holdings. etal.v.Bank of New York Mellon, etal..Case No. SCV0041493 B. Plaintiff has not sufficiently allege facts to impute the intentional tort allegedly committed by co-defendants to BNY Mellon. Plaintiff argues that she has specifically alleged the actions by KELLER WILLIAMS, REO MGMT, EXEC REP, WORK, and Megan Teegarden to impute them to BNY Mellon. Her argument misses the point. As explained in the Demurrer, aprincipal isnot liable for intentional tort committed by itsagent if the tort did not have a causal nexus to the agent’s work. Dem., 5:15-16; CUD ocmlUlUMNUOlUmUlCUCUCOOUMN Lisa M. v.Henry Mayo Newhall Mem'l Hosp., 12 Cal. 4th 291, 297 (1995). Plaintiff does not allege what the scope of work of the aforementioned co-defendant or whether the alleged conduct stemmed from personal malice. Thus, even though the Court found that Plaintiff has sufficiently alleged an agency relationship between these co-defendants and BNY Mellon, Plaintiff has failed to allege facts to show that the alleged actions by them were engendered by their purported employment with BNY 11 Mellon. Accordingly, Plaintiff has failed to allege facts to impute the alleged actions to BNY 12 Mellon, and her entire FAC failsto statea claim against BNY Mellon. 13 1950 C. Plaintiff’s first and fifth causes of action for “Violation of Unruh Civil Rights 14 Act” and “Violation of Government Code § 12955.7” continue to fail. FAX 94104 Suite LLP 15 Plaintiff claims that she has alleged sufficient facts to state a claim under the Unruh Act Street, CA Lord 16 Francisco, because BNY Mellon’s alleged agent uttered racial slurs at her. As explained in the Demurrer, this Montgomery BY 17 Locke allegation alone is insufficient to state a claim under the Unruh Act. Plaintiff fails to allege that her San 18 race or national origin was a motivating factor for BNY Mellon’s purported conduct. In other 101 19 words, she fails to allege that BNY Mellon would have treated a similarly situated person (i.e. a 20 trespasser or someone else occupying the Property without a valid lease) any differently. Wilkins- al Jones v. Cty. ofAlameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012)(dismissing plaintiff's claim 22 under the Unruh Act because plaintiff failed to allege how her disability was a motivating factor in Zo her disparate treatment and how she was denied full and equal accommodation.). She cannot cure 24 this deficiency with further amendment, as she claims in the unlawful detainer action that BNY 25 Mellon attempted to evict her in retaliation of her participation in the two civilactions filed by W1 26 Holdings and G4 Capital. RJN, Exhs. 21. Retaliation claims are not actionable under the Unruh a 28 2 REPLY IN SUPPORT OF DEMURRER W1 Holdings. etal.v.Bank of New York Mellon, etal..Case No. SCV0041493 Act. Scripps Clinic v.Superior Court, 108 Cal. App. 4th 917 (2003), review denied, (Sept. 17, 2003). More importantly, the Unruh Act does not confer any right or privilege that is otherwise limited by law. The Court found that the purported March 31, 2017 lease agreement was invalid. Thus, BNY Mellon was not obligated to ratify the invalid lease agreement. As such, even though Plaintiff alleges that BNY Mellon uttered racial slurs at her, her claim under the Unruh Act remains deficient. The Court should sustain BNY Mellon’s demurrer to the first cause of action. Plaintiff did not meaningfully oppose BNY Mellon’s demurrer to her claim under Government Code § 12955.7. She only alleges that “the court did not dismiss Plaintiff's claims but 10 sustained the demurrer to these causes of action with leave to amend.” Opp., 5:6-10. Her failure to 11 oppose BNY Mellon’s demurrer is a concession that its defense is meritorious, and the Court should 12 sustain BNY Mellon’s demurrer to the fifth cause of action. Herzberg v. County of Plumas, 133 Cal. 13 App 4th 1, 20 (2005)(“Plaintiffs did not oppose the County's demurrer to this portion of their seventh 1950 FAX 14 cause of action and have submitted no argument on the issue intheir briefs on appeal. Accordingly, 94104 Suite LLP 15 we deem plaintiffs to have abandoned the issue.”). Street, CA Lord 16 D. Plaintiffs sixth and seventh causes of action for “negligence per se” and Francisco, Montgomery “negligent infliction of emotional distress” continue to fail BY 17 Locke Plaintiff first claims that BNY Mellon’s arguments to her “negligence per se” claim are 18 San misplaced because “[a]lthough the caption of the firstamended complaint states the sixth cause of 101 19 action as Negligence Per Se in the body of the complaint the sixth cause of action ispled as 20 Negligence.” Opp., 5:16-18. Itis Plaintiff's responsibility to properly label her causes of action. As 21 Plaintiff seems to have abandoned her “negligence per se” claim against BNY Mellon, the Court 22 should dismiss this cause of action without leave to amend. 23 Plaintiff next argues that BNY Mellon owed her a duty by operation of law. The only statue 24 she cited in the FAC was Civil Code § 1940.2. FAC, §§ 111 and 147. The Court previously 25 dismissed her section 1940.2 claim without leave to amend. Ruling on Submitted Matter dated 26 January 17, 2019, p. 4. Thus, Plaintiff cannot re-allege and disguise her section 1940.2 claim as a 27 negligence claim. And to be clear, section 1940.2 prohibits a landlord from unlawfully influencing a 28 3 REPLY IN SUPPORT OF DEMURRER W1 Holdings. etal.v.Bank of New York Mellon, et al.. Case No. SCV0041493 tenant to vacate the dwelling. Cal. Civ. Code § 1940.2. As the Court found that the March 31, 2017 lease agreement was invalid, there was no landlord-tenant relationship between Plaintiff and BNY Mellon and section 1940.2 isinapplicable. As BNY Mellon did not owe a duty to Plaintiff, her “negligence per se” and negligent infliction of emotional distress fails. The Court should sustain BNY Mellon’s demurrer to the sixth and seventh causes of action. E. Plaintiff’s eighth cause of action for “intentional infliction of emotional distress” continues to fail. Plaintiff's opposition does not address BNY Mellon’s arguments, but makes the blanket assertion that she has sufficiently alleged facts to support her intentional infliction of emotional distress claim. However, the same conduct that was alleged in the FAC was alleged in the 10 Complaint, and the Court found Plaintiff failed to allege conduct that was “so extreme as to exceed 11 all bounds of that usually tolerated in a civilized community.” Ruling on Submitted Matter dated 12 January 17, 2019, p. 5. Plaintiff fails to allege any relationship between her and BNY Mellon that 13 1950 would support her allegation of “outrageous conduct.” Plaintiff also failsto allege any facts to show 14 FAX 94104 Suite that BNY Mellon knew she was susceptible to mental distress and injuries or intended the conduct to LLP 15 Street, CA result in mental or physical injuries. Moreover, Plaintiff only generically asserts that she suffered Lord 16 Francisco, Montgomery BY from “extreme emotional distress”. FAC, § 185 (“Plaintiff has suffered and continues to suffer 17 Locke severe emotional distress.”). This does not rise to the level of severe distress as she is required to 18 San plead. Wong v. Jing, 189 Cal.App.4th 1354, 1376 (2010)(“California Supreme Court has set a ‘high 101 19 bar’ for what can constitute severe distress.”). Likewise, Plaintiff generically asserts that BNY 20 Mellon was the actual and proximate cause of her injuries (FAC, §] 184), and the Court need not 21 consider this conclusion of facts. Richelle L. vy.Roman Catholic Archbishop of San Francisco, 106 22 Cal.App.4th 257, 266 (2003). 23 For these reasons, the Court should sustain BNY Mellon’s demurrer to the eighth cause of 24 action. 25 Ill. CONCLUSION 26 The repeated allegations in the FAC demonstrate that Plaintiff cannot cure the deficiencies in 27 her claims against BNY Mellon. Granting leave to amend would be futile under the circumstances. 28 4 REPLY IN SUPPORT OF DEMURRER W1 Holdings. etal.y.Bank of New York Mellon. etal..Case No. SCV0041493 For allof the reasons stated herein and in the Demurrer, BNY Mellon respectfully requests that the Court sustain itsDemurrer to the FAC in itsentirety without leave to amend. Dated: April 23, 2019 Respectfully submitted, LOCKE LORD LLP By “WO 4 ——, Regina J.Mc@l¢ndon Xiyi Fu Attorneys for Defendant The Bank of New York Mellon fka The Bank of New York as Trustee for the Benefit of the Certificate Holders of the CWALT, Inc., Alternative Loan Trust 2004-15, Mortgage Pass Through Certificates, Series 2004-15 (incorrectly 10 sued as Bank of New York Mellon, (FKA Bank of NY Series 11 2004-15), dba, BNY Mellon) 12 13 1950 14 FAX 94104 Suite LLP 15 Street, CA Lord 16 Francisco, Montgomery BY 17 Locke 18 San 101 19 20 21 22 23 24 25 26 27 28 5 REPLY IN SUPPORT OF DEMURRER WI Holdings. etal.v.Bank of New York Mellon, etal..Case No. SCV0041493 STATE OF CALIFORNIA ) PROOF OF SERVICE COUNTY OF SAN FRANCISCO ) ss, W1 Holdings, etal. vy.Bank of New York Mellon, etal. Placer County Superior Court Case No. SCV0041493 1am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is: 101 Montgomery Street, Suite 1950, San Francisco, CA 94104. On April 23, 2019, I served the foregoing document described as: REPLY IN SUPPORT OF DEMURRER TO COMPLAINT on the parties or attorneys for parties in this action who are identified below, using the following means of service. (If more than one means of service is checked, the means of service used for each party isindicated below). LYLE D. SOLOMON, ESQ. Attorney for Plaintiffs W1 Holdings and Anne Taylor PO Box 1411 10 Rocklin, CA 95677 Tel: (916) 532-2726 11 Email: lyledsS6@yahoo.com 12 M BY EXPRESS MAIL. I placed __ the original or VY_a true copy of the foregoing document in a sealed enveloped individually addressed to each of the parties listed above, and 13 caused each such envelope to be deposited in the mail at 101 Montgomery Street, Suite 1950, 1950 San Francisco, CA 94104. Each envelope was mailed with Express Mail postage thereon 14 fully prepaid. I am readily familiar with this firm’s practice of collection and processing of FAX 94104 Suite correspondence for mailing. Under that practice, mail is deposited with the United States 15 LLP Postal Service the same day that it iscollected in the ordinary course of business. Street, CA Lord 16 Francisca. Mj (State) I declare under penalty of perjury under the laws of the State of California that the Montgomery foregoing is true and correct. Locke 17 BY San 18 Executed on April 23, 2019, at San Francisco, California. 101 19 20 / ie CE Taylor Warren 21 22 23 24 25 26 27 28 PROOF OF SERVICE W1 Holdings, etal.y.Bank of New York Mellon, et al.,Case No. SCV0041493