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  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
  • EXPOSE, LINDA ROSE vs FAY SERVICING LLCDeclaratory Relief: Unlimited  document preview
						
                                

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Electronically Filed 8/24/2020 12:22 PM 1 Jana Logan (SBN 171152) Matthew H. Aguirre (SBN 270388) Superior Court of California 2 KIRBY & McGUINN, A P.C. County of Stanislaus 707 Broadway, Suite 1750 Clerk of the Court 3 San Diego, California 92101 By: Mouang Saechao, Deputy Telephone: (619) 398-3354 4 Facsimile: (619) 398-3355 $90 PAID E-mail: jlogan@kirbymac.com 5 E-mail: maguirre@kirbymac.com 6 Attorneys for Defendants Fay Servicing, LLC 7 U.S. Bank, National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust 8 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF STANISLAUS 10 MAIN COURTHOUSE 11 12 LINDA ROSE EXPOSE CASE NO. CV19005329 13 Plaintiff, FAY SERVICING, LLC AND U.S. BANK, 14 NATIONAL ASSOCIATION, AS LEGAL v. TITLE TRUSTEE FOR TRUMAN 2016 15 SC6 TITLE TRUST'S NOTICE OF FAY SERVICING, U.S. BANK NATIONAL HEARING ON DEMURRER AND 16 ASSOCIATION, ATTORNEY LENDER DEMURRER TO THE FIRST AMENDED SERVICE, INC and DOES 1-5, inclusive COMPLAINT; MEMORANDUM OF 17 POINTS AND AUTHORITIES IN Defendants. SUPPORT 18 [TELEPHONIC APPEARANCE] 19 Date: September 25, 2020 20 Time: 8:30 a.m. Dept.: 22 21 Judge: Hon. Stacy P. Speiller 22 Date Action Filed: September 5, 2019 23 TO PLAINTIFF IN PRO PER: 24 PLEASE TAKE NOTICE THAT on September 25, 2020 at 8:30 a.m., or as soon 25 thereafter as the matter may be heard in Department 22 of the above-entitled court, located at 801 26 10th Street, 6th Floor, Modesto, California 95354, Defendants Fay Servicing, LLC and U.S. Bank, 27 National Association, as Legal Title Trustee for Truman 2016 SC6 Title Trust (together 28 1 NOTICE OF HEARING ON DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT BY FAY SERVICING, LLC AND U.S. BANK, NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST 1 “Defendants”) will, and hereby do, demur to the First Amended Complaint filed by Linda Rose 2 Expose (“Plaintiff”), and each cause of action alleged therein. 3 This demurrer is based on this Notice of Demurrer and Demurrer, the accompanying 4 Memorandum of Points and Authorities in support thereof, Request to Take Judicial Notice, the 5 pleadings and papers on file in this action, and such further matters as may be considered by the 6 Court at the hearing on this demurrer. 7 Tentative rulings will be issued on Law and Motion matters the court day prior to the hearing 8 date. Tentative rulings can be accessed on the Internet at www.stanct.org after 1:30 p.m. The 9 tentative ruling will be the order of the court unless a hearing is requested prior to 4:00 p.m. on the 10 court day preceding the hearing. If you would like to request a hearing call (209) 530-3162 or (209) 11 558-6000 between 1:30 p.m. - 4:00 p.m. Each party requesting a hearing shall notify the other side 12 no later than 4:30 p.m. of the same day. 13 DATED: August 24, 2020 KIRBY & McGUINN, A P.C. 14 BY: 15 JANA LOGAN 16 MATTHEW H. AGUIRRE Attorneys for Defendants 17 Fay Servicing, LLC U.S. Bank, National Association, as Legal 18 Title Trustee for Truman 2016 SC6 Title Trust 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF HEARING ON DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT BY FAY SERVICING, LLC AND U.S. BANK, NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST 1 DEMURRER 2 Defendants Fay Servicing, LLC and U.S. Bank, National Association, as Legal Title Trustee 3 for Truman 2016 SC6 Title Trust will, and hereby do, demur to the Complaint filed by Plaintiff in 4 this matter, and to the causes of action asserted against it, as set forth below: 5 1. The first cause of action for Negligence fails to allege sufficient facts to state a cause 6 of action upon which relief can be granted. Cal. Civ. Proc. Code § 430.10(e). 7 2. The second cause of action for Fraud fails to allege sufficient facts to state a cause of 8 action upon which relief can be granted because injunctive relief is not a cause of action. Cal. Civ. 9 Proc. Code § 430.10(e). 10 3. The third cause of action for Cancellation of a Voidable Contract Under Rev & Tax 11 Code §§ 23304-1, 23305A and Violation of Cal. Corp. Code §§ 191(C)(7) fails to allege sufficient 12 facts to state a cause of action upon which relief can be granted. Cal. Civ. Proc. Code § 430.10(e). 13 4. The fourth cause of action to Set Aside Trustee’s Sale fails to allege sufficient facts to 14 state a cause of action upon which relief can be granted. Cal. Civ. Proc. Code § 430.10(e). 15 5. The fifth cause of action to Void or Cancel Trustee’s Deed Upon Sale fails to allege 16 sufficient facts to state a cause of action upon which relief can be granted. Cal. Civ. Proc. Code § 17 430.10(e). 18 6. The sixth cause of action to Void or Cancel Assignment of Deed of Trust fails to 19 allege sufficient facts to state a cause of action upon which relief can be granted. Cal. Civ. Proc. 20 Code § 430.10(e). 21 7. The seventh cause of action for Wrongful Foreclosure fails to allege sufficient facts 22 to state a cause of action upon which relief can be granted. Cal. Civ. Proc. Code § 430.10(e). 23 8. The eighth cause of action for Breach of the Implied Covenant of Good Faith and 24 Fair Dealing fails to allege sufficient facts to state a cause of action upon which relief can be 25 granted. Cal. Civ. Proc. Code § 430.10(e). 26 9. The tenth cause of action for Unjust Enrichment fails to allege sufficient facts to state 27 a cause of action upon which relief can be granted. Cal. Civ. Proc. Code § 430.10(e). 28 3 NOTICE OF HEARING ON DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT BY FAY SERVICING, LLC AND U.S. BANK, NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST 1 10. The eleventh cause of action for Violation of California Business and Professions 2 Code Sections 17200 et seq. fails to allege sufficient facts to state a cause of action upon which 3 relief can be granted. Cal. Civ. Proc. Code § 430.10(e). 4 11. The twelvth cause of action for Quiet Title and Slander of Title fails to allege 5 sufficient facts to state a cause of action upon which relief can be granted. Cal. Civ. Proc. Code § 6 430.10(e). 7 DATED: August 24, 2020 KIRBY & McGUINN, A P.C. 8 BY: 9 JANA LOGAN MATTHEW H. AGUIRRE 10 Attorneys for Defendants 11 Fay Servicing, LLC U.S. Bank, National Association, as Legal 12 Title Trustee for Truman 2016 SC6 Title Trust 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 NOTICE OF HEARING ON DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT BY FAY SERVICING, LLC AND U.S. BANK, NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE FOR TRUMAN 2016 SC6 TITLE TRUST 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff Linda Rose Expose (“Plaintiff”) filed this pro per action to stop the foreclosure sale 4 of her house. However, the First Amended Complaint contains no facts necessary to state any valid 5 cause of action against defendants Fay Servicing, LLC or U.S. Bank, National Association, as Legal 6 Title Trustee for Truman 2016 SC6 Title Trust (together, “Defendants”). 7 Even with all the latitude duly afforded to a pro per litigant, it is clear that Plaintiff has no 8 basis—factual or legal—to maintain any cause of action against Defendants. Accordingly, the 9 demurrer should be sustained. 10 II. BACKGROUND FACTS 11 Plaintiff obtained a mortgage loan from Downey Savings and Loan Association for 12 $368,000.00 on or about August 7, 2006. The mortgage loan is secured by a deed of trust against the 13 real property located at 5413 Pountsmonth Drive, Salida, California 95368 (the “Property”) (the note 14 and deed of trust are collectively referred to as the “Loan”). (Request to Take Judicial Notice 15 [“RJN”], Ex. 1.) The Loan was assigned by the Federal Deposit Insurance Corporation as Receiver 16 of Downey Savings and Loan Association to U.S. Bank, National Association by Assignment of 17 Deed of Trust dated May 23, 2012 effective November 21, 2008. (RJN, Ex. 2.) The Loan was then 18 assigned by U.S. Bank, National Association to U.S. Bank, National Association, as Legal Title 19 Trustee for Truman 2016 SC6 Title Trust by Assignment of Deed of Trust dated January 31, 2019. 20 The current beneficiary of the mortgage Loan is U.S. Bank, National Association, as Legal Title 21 Trustee for Truman 2016 SC6 Title Trust (“Truman Trust”). (RJN, Ex. 3.) 22 Plaintiff was already given a HAMP (Home Affordable Modification Program) loan 23 modification in 2015. The HAMP loan modification lowered Plaintiff’s interest rate to 2.0% for five 24 (5) years and deferred $144,900.00 of her defaulted principal balance to non-interest bearing. (RJN, 25 Ex. 11.) The first payment under the HAMP loan modification was due April 1, 2015. (RJN, Ex. 11, 26 page 4 of 11, para. C.) 27 To delay foreclosure over the course of the past seven years, Plaintiff filed a series of seven 28 (7) bankruptcies, shown below in table format for convenience of the reader. (RJN, Ex. 4–10.) 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 In re Linda Rose Expose, Filed 01/31/2012 Dismissed 05/01/14 RJN, Ex. 4 Petition #: 12-90283 2 3 In re Linda Expose, Filed 01/12/15 Discharged 06/18/15 RJN, Ex. 5 Petition #: 15-90024 4 In re Linda Rose Expose, Filed 01/26/16 Dismissed 02/17/16 RJN, Ex. 6 5 Petition #: 16-90057 6 In re Linda Rose Expose, Filed 03/01/16 Dismissed 05/24/16 RJN, Ex. 7 7 Petition #: 16-90161 (NOD recorded 12/11/18) 8 In re Linda Rose Expose, Filed 01/30/19 Dismissed 04/09/19 RJN, Ex. 8 [Doc 34] 9 Petition #: 19-90079 10 In re Linda Rose Expose, Filed 04/09/19 Dismissed 06/26/19 RJN, Ex. 9 [Doc 48] 11 Petition #: 19-90314 12 In re Linda Rose Expose, Filed 07/01/19 Dismissed 10/24/19 RJN, Ex. 10 Petition #: 19-90599 (NOTS recorded 13 8/15/19) -NO STAY 14 15 16 The prior owner of the Loan, U.S. Bank, National Association, recorded the operative Notice 17 of Default (“NOD”) against the Property (in between bankruptcies number 4 and 5) on December 18 13, 2018. (RJN, Ex. 12.) The operative Notice of Trustee’s Sale (“NOTS”) was recorded over 8 19 months later on August 15, 2019. (RJN, Ex. 14.) Due to the fact that Plaintiff has filed three 20 bankruptcies in the past one (1) year, Plaintiff was not entitled to an automatic stay in her current 21 bankruptcy filed on July 1, 2019. (See, 11 U.S.C. § 362(c)(4)(A)(i); and see, RJN, Ex. 8–10 22 [bankruptcies filed 01/30/19, 04/09/19 and 07/01/19].) As no automatic stay was in effect, the 23 foreclosure sale was held on September 30, 2019 and a Trustee’s Deed Upon Sale (“TDUS”) was 24 recorded on October 2, 2019. (RJN, Ex. 15.) 25 Plaintiff also filed an action in the Eastern District of California after this Court denied her an 26 injunction. The District Court also denied Plaintiff’s application for a temporary restraining order 27 (twice). (RJN, Ex. 16–18.) 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 III. LEGAL STANDARD FOR DEMURRER 2 A demurrer tests the legal sufficiency of the pleadings in the complaint. (Code Civ. Proc. § 3 430.40.) The demurrer’s function is not to challenge the truthfulness of the complaint, and therefore 4 all the facts pleaded in the complaint are assumed to be true. (Donabedian v. Mercury Ins. Co. 5 (2004) 116 Cal.App.4th 968, 994.) However, the court does not take conclusions, deductions, or 6 contentions into account when ruling on a demurrer. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) 7 Accordingly, a demurrer can only be used to challenge defects that appear on the face of the 8 complaint and is appropriately sustained when: (1) the pleading does not state facts sufficient to 9 constitute a cause of action; or (2) the pleading is uncertain. (Code Civ. Proc. § 430.10(e) and (f); 10 Donabedian v. Mercury Ins. Co., 116 Cal.App.4th at 964.) A complaint must be clear and concise 11 enough to “set forth the essential facts of the case with reasonable precision and with sufficient 12 particularity to acquaint the defendant with the nature, source and extent of his cause of action.” 13 (Modica v. Crist (1954) 129 Cal.App.2d 144, 149.) The absence of any material fact essential to the 14 cause of action makes the complaint vulnerable to demurrer. (5 B.E. Witkin, California Procedure § 15 905 (4th ed. 1997).) 16 IV. ARGUMENT 17 The First Amended Complaint (“FAC”) alleges eleven causes of action which cannot 18 withstand the instant challenge 1. The Court should sustain Defendants’ demurrer without leave to 19 amend. 20 A. PLAINTIFF CANNOT STATE A CLAIM FOR AGAINST DEFENDANTS 21 The basis of all of the causes of action Plaintiff alleges in her FAC are based on the 22 following facts: 23 1. Plaintiffs [sic] made 2 other payment [sic] which was sent Back. (FAC ¶ 12.) 24 2. MERS was never entitled to receive payments from Plaintiffs [sic] and MERS was 25 never qualified to conduct business in the State of California, and MERS did not have 26 standing to substitute the trustee under the Deed of Trust. (FAC ¶¶ 15 and 19.) 27 1 The FAC mis numbers the causes of action in the caption and in the body of the FAC. 28 (Specifically, there is no ninth cause of action.) The demurrer is the causes of action numbered on the face page of the FAC. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 3. The Notice was wrongfully recorded as Plaintiffs were not in default with their 2 payment obligations as they made (and provided proof of payment) for the May 2019. 3 [sic] (FAC ¶ 16.) 4 4. Attorney Lender Services, Inc. did not have the legal right to act as trustee under the 5 Deed of Trust. (FAC ¶ 16.) 6 5. Prior to the Notice of Default, Plaintiffs received no communication or contact from 7 anyone. (FAC ¶ 18.) 8 6. There was no assignment of the Note and Deed of Trust. (FAC ¶ 20.) 9 7. The foreclosure was invalid because no one gave the foreclosure trustee the original 10 note, deed of trust and valid assignment. (FAC ¶ 21.) 11 Based on these facts, Plaintiffs brings her laundry list amended complaint. None of the 12 causes of action are viable. 13 B. PLAINTIFF CANNOT SUPPORT A CAUSE OF ACTION FOR 14 NEGLIGENCE OR FOR FRAUD 15 In order to state a cause of action for negligence, Plaintiff must be more specific as to what 16 constituted the negligence, what was the duty to do what and how was that duty breached. The only 17 allegations are that the Defendants had a duty to exercise reasonable care and failed to properly cried 18 payments made by Plaintiffs [sic]. There are simply no allegations other that that found in 19 paragraph 12 of the FAC wherein there is a vague allegation that 2 payments were sent back. This is 20 insufficient to state a cause of action for negligence. 21 Plaintiff bases her second cause of action for fraud on the same payment application theory. 22 Fraud is even a higher pleading standard which is missing from the FAC. The elements of fraud are 23 a misrepresentation, knowledge of its falsity, intent to defraud, justifiable reliance, and resulting 24 damage. [Citation.] Fraud causes of action must be pled with specificity in order to give notice to the 25 defendant and to furnish him or her with definite charges. [Citation.] In drafting the complaint, “ ‘(a) 26 [g]eneral pleading of the legal conclusion of ‘fraud’ is insufficient; the facts constituting the fraud 27 must be alleged. (b) Every element of the cause of action for fraud must be alleged in the proper 28 manner (i.e., factually and specifically), and the policy of liberal construction of the pleadings ... will 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 not ordinarily be invoked to sustain a pleading defective in any material respect.” [Citations.]’ 2 [Citation.]” (Gil v. Bank of America, N.A. (2006) 138 Cal.App.4th 1371, 1381.) The FAC is 3 woefully deficient in the first two causes of action and the demurrer should be sustained. 4 C. PLAINTIFF DOES NOT STATE FACTS TO SUPPORT ANY WRONGFUL 5 FORECLOSURE CAUSE OF ACTION 6 Plaintiff sets forth various causes of action all based on her theories that the foreclosure sale 7 was improper. The third, fourth, fifth, sixth, seventh, eleventh (quiet title) and twelfth (slander of 8 title) causes of action all stem from Plaintiff’s theory that MERS was not authorized to substitute a 9 trustee or otherwise act, and the assignment of the loan was improper. None of the theories are 10 supported by law or the actual facts. 11 First off, MERS is not named on the subject deed of trust. (See, RJN, Ex. “1” – the Lender is 12 Downey Savings and Loan Association.) All of the MERS allegations are simply misplaced. 13 The elements of a cause of action for wrongful foreclosure are “ ‘(1) the trustee or mortgagee 14 caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale 15 in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or 16 mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the 17 sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from 18 tendering.’ [Citation.]” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 19 408.) 20 The FAC allegations are insufficient to prove any of these elements; plaintiff did not allege 21 that there was a foreclosure sale of her property, that she tendered the amount of her debt or was 22 excused from doing so, or that she has suffered actual harm or prejudice. 23 The FAC alleges no facts to support its allegation that the note was not assigned together 24 with the deeds of trust and there is no requirement to hold the original note and deed of trust in order 25 to foreclose. Under California law, there is no requirement for the production of an original 26 promissory note prior to initiation of a nonjudicial foreclosure. California Civil Code § 2924 27 includes several requirements for non-judicial foreclosure, but “[n]othing in [§ 2924] requires the 28 entity initiating foreclosure to have physical possession of the note. [C]ourts have uniformly found 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 that ‘physical possession of the original promissory note is not a prerequisite to initiating foreclosure 2 proceedings.’ ” (Javaheri v. JPMorgan Chase Bank, 2011 WL 1131518 at *2 (C.D.Cal.2011) 3 (quoting Nguyen v. LaSalle Bank Nat'l Ass'n, 2009 WL 3297269 at *3 (C.D.Cal.2009)). Plaintiff’s 4 claims otherwise are invalid. 5 To withstand a demurrer, the complaint must set forth the essential facts to support a claim. 6 (Doheny Park Terrace Homeowners Assn., Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 7 1076, 1099.) While most claims can be supported by ultimate rather than evidentiary facts, legal 8 conclusions are insufficient. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550–551 & fn. 5.) 9 By the same token, the court “assume[s] the truth of the allegations in the complaint but do[es] not 10 assume the truth of contentions, deductions, or conclusions of law. [Citation.]” (California Logistics, 11 Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) The FAC is simply devoid of facts to 12 support the wrongful foreclosure-based causes of action and the demurrer should be sustained. 13 D. THE BREACH OF IMPLIED COVENANCT OF GOOD FAITH AND FAIR 14 DEALING FAILS (EIGHTH CAUSE OF ACTION) 15 “The covenant of good faith and fair dealing is imposed upon each party to a contract. 16 [Citation.] This fundamental covenant prevents the contracting parties from taking actions that will 17 deprive another party of the benefits of the agreement. [Citation.] ... [¶] ‘[T]he scope of conduct 18 prohibited by the covenant of good faith is circumscribed by the purposes and express terms of the 19 contract.’ [Citation.] ... [¶] ...‘[Moreover, a] prerequisite for any action for breach of the implied 20 covenant of good faith and fair dealing is the existence of a contractual relationship between the 21 parties....' ” (Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 524–525.) 22 The allegations to support the eighth cause of action appear to be the refusal to properly 23 apply the August and September 2008 payments to their [sic] loan. This cause of action is barred by 24 the statute of limitations. The statute of limitations for a contract is four years. (Code Civ. Proc. § 25 337, subd. (a).) The demurrer to this cause of action should be sustained without leave to amend. 26 E. UNJUST ENRICHMENT 27 The ninth [sic] cause of action for unjust enrichment also fails. Unjust enrichment is not a 28 cause of action. (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793.) Rather, 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 it is a general principle underlying various doctrines and remedies, including quasi-contract. (Ibid.) 2 ‘The phrase “Unjust Enrichment” does not describe a theory of recovery, but an effect: the result of 3 a failure to make restitution under circumstances where it is equitable to do so.’ (Lauriedale 4 Associates, Ltd. v. Wilson (1992) 7 Cal.App.4th 1439, 1448....) Unjust enrichment is ‘ “a general 5 principle, underlying various legal doctrines and remedies,” ’ rather than a remedy itself. (Dinosaur 6 Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1315 ....) It is synonymous with restitution. 7 (Id. at p. 1314.)” (Melchior v. New Line Productions, Inc., supra, 106 Cal.App.4th at 793 8 However, a court commented has commented “this Appellate District appears split” on 9 whether unjust enrichment stands as an independent cause of action. (O’Grady v. Merchant 10 Exchange Productions, Inc. (2019) 41 Cal.App.5th 771, 791.) The court went on to explain, 11 however, that the nomenclature is essentially irrelevant, as this district, as does every other, equates 12 a claim for “unjust enrichment” as a claim for “restitution.” (Ibid.; see, e.g., Prakashpalan v. 13 Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1132; Melchior, supra, 106 Cal.App.4th 14 at p. 793.) 15 And regardless of whether a separate “claim” can be made for restitution, “restitution is a 16 remedy and not a freestanding cause of action” (Reid v. City of San Diego (2018) 24 Cal.App.5th 17 343, 362; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387, and must be sought in connection 18 with a legally cognizable theory that can support restitutionary relief. (McBride, at p. 387 [whether 19 amended complaint claiming unjust enrichment and seeking restitutionary relief “was properly 20 sustained depends ... not on the nature of the damages [the plaintiff] seeks, but rather on the viability 21 of the causes of action he has attempted to plead].) This FAC is simply devoid of facts supporting 22 any restitution claim and the demurrer should be sustained without leave to amend. 23 F. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS 24 Finally, Plaintiff brings an unfair and deceptive practices act (“UCL”) claim under § 17200. 25 Although the FAC appears to list a laundry list of alleged misdeeds, the FAC does not support the 26 claims with factual allegations. (See, FAC ¶ 74 (a) through (j). There are no allegations of any late 27 fees charges, no premature foreclosures to “generate fees”, failed in disclose fees under the contract, 28 etc. 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 The UCL prohibits “any unlawful, unfair or fraudulent business act or practice and unfair, 2 deceptive, untrue or misleading advertising...” (Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th 3 Cir. 2013), as amended on denial of reh’g and reh’g en banc (July 8, 2013). “Because Business & 4 Professions Code § 17200 is written in the disjunctive, it establishes three varieties of unfair 5 competition—acts or practices which are unlawful, or unfair, or fraudulent.” (Cel-Tech Commc’ns, 6 Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 180.) 7 With respect to the UCL’s “unlawful” prong, Plaintiff does not viably allege an unlawful 8 business practice, i.e., anything that can be called a business practice and that is forbidden by law. 9 (Ticconi v. Blue Shield of Cal. Life & Health Ins. (2008) 160 Cal. App. 4th 528, 539.) And, absent 10 any predicate violation of statute or common law, there is no basis for invoking the UCL’s 11 “unlawful” prong. (Wasjutin v. Bank of Am., N.A., 732 F. App’x 513, 517 (9th Cir. 2018). Here, 12 Plaintiffs state that, “Defendants’ violations of California Civil Code §§ 2923.6 and 2923.7 13 constitute unfair business practices in violation of California Business and Professions Code § 17200 14 et seq.” (FAC at ¶ 74.) 15 To the extent the UCL relies on the wrongful foreclosure theories, the UCL claim is 16 derivative of the wrongful foreclosure and rescission causes of action and stands or falls with the 17 underlying claims. (See Korea Supply Co. v. Lockheed Martin Corp.(2003) 29 Cal.4th 1134, 1143 18 [UCL “ ‘borrows' violations from other laws by making them independently actionable as unfair 19 competitive practices”].) The UCL cause of action fails. 20 Finally, as Plaintiff‘s property was subject to nonjudicial foreclosure because of Plaintiff‘s 21 default on her loan, which occurred before Defendants‘ alleged wrongful acts, Plaintiff cannot assert 22 the impending foreclosure of her home (i.e., her alleged economic injury) was caused by 23 Defendants‘ wrongful actions. Plaintiff‘s FAC cannot show any of the alleged violations have a 24 causal link to her economic injury. (See, e.g., DeLeon v. Wells Fargo Bank, N.A., No. 10-CV-01390- 25 LHK, 2011 U.S. Dist. LEXIS 8296, at *19–21, 2011 WL 311376 (N.D. Cal. 2011) (“Without some 26 factual basis suggesting that Plaintiffs could have cured the default in the fall of 2009, the Court 27 cannot reasonably infer that Wells Fargo‘s alleged misrepresentations resulted in the loss of 28 Plaintiffs‘ home. Rather, the facts alleged suggest that Plaintiffs lost their home because they 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT 1 became unable to keep up with monthly payments and lacked the financial resources to cure the 2 default.”). In short, the UCL claim fails and the demurrer should be sustained without leave to 3 amend. 4 V. CONCLUSION 5 For the foregoing reasons, Defendants respectfully request that the Court sustain the 6 demurrer. 7 DATED: August 24, 2020 KIRBY & McGUINN, A P.C. 8 BY: 9 JANA LOGAN 10 MATTHEW H. AGUIRRE Attorneys for Defendants 11 Fay Servicing, LLC U.S. Bank, National Association, as Legal 12 Title Trustee for Truman 2016 SC6 Title Trust 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO COMPLAINT