Preview
Electronically Filed
3/9/2021 3:25 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
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
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF STANISLAUS
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MAIN COURTHOUSE
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LINDA ROSE EXPOSE CASE NO. CV19005329
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Plaintiff, REPLY BRIEF IN SUPPORT OF
14 DEMURRER TO SECOND AMENDED
v. COMPLAINT BY FAY SERVICING, LLC
15 AND U.S. BANK, NATIONAL
FAY SERVICING, U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE
16 ASSOCIATION, ATTORNEY LENDER TRUSTEE FOR TRUMAN 2016 SC6
SERVICE, INC and DOES 1-5, inclusive TITLE TRUST;
17 MEMORANDUM OF POINTS
Defendants. AUTHORITIES IN SUPPORT
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[TELEPHONIC APPEARANCE]
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Date: March 18, 2021
20 Time: 8:30 a.m.
Dept.: 22
21 Judge: Hon. Stacy P. Speiller
22 Date Action Filed: September 5, 2019
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24 COMES NOW Defendants Fay Servicing, LLC and U.S. Bank, National Association, as
25 Legal Title Trustee for Truman 2016 SC6 Title Trust (together “Defendants”) to reply to the
26 Opposition filed against their demurrer to the SAC. The demurrer is essentially unopposed and
27 therefore should be sustained.
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REPLY IN SUPPORT OF DEMURRER TO SECOND 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. THE DEMURRER IS SUBSTANTIVELY UNOPPOSED
3 Despite the various complaints filed in this action, it is clear that Plaintiff has no basis—
4 factual or legal—to maintain any cause of action against Defendants. Plaintiff’s short-term attorneys
5 filed a limited opposition to the demurrer claiming that if they had been properly retained, they
6 could have developed the facts needed to allege the causes of action in the Second Amended
7 Complaint. Plaintiff’s attorneys have since been substituted out of this Action and Plaintiff is again
8 pro per. The demurrer should be sustained, and this action dismissed.
9 II. THE COURT SHOULD NOT GRANT FURTHER LEAVE TO AMEND
10 A. PLAINTIFF CANNOT ALLEGE A CAUSE OF ACTION FOR NEGLIGENCE
11 OR FOR FRAUD
12 The only allegations to support negligence and fraud in the SAC are that the Defendants had
13 a duty to exercise reasonable care. (SAC, ¶¶ 1-2.) The amended complaints filed by Plaintiff
14 simply makes absolutely no factual allegations against Defendants and appears to just continue to be
15 filed with the same allegations to appease the Court’s ruling allowing amendment in the prior
16 demurrer rulings. Despite having now filed four operative complaints, this demurrer should be
17 sustained without leave to amend.
18 B. PLAINTIFF CANNOT ALLEGE A WRONGFUL FORECLOSURE CAUSE
19 OF ACTION
20 The third, fourth, fifth, and eighth (quiet title) and ninth (slander of title) causes of action all
21 stem from Plaintiff’s theory that defendants were not authorized to substitute a trustee or otherwise
22 act, and the assignment of the loan was improper. None of the theories are supported by law or the
23 actual facts. Further, Plaintiff did not allege that she tendered the amount of her debt or was excused
24 from doing so, or that she has suffered actual harm or prejudice. The SAC alleges no facts to
25 support its allegation that the note was not assigned together with the deeds of trust and there is no
26 requirement to hold the original note and deed of trust in order to foreclose. Under California law,
27 there is no requirement for the production of an original promissory note prior to initiation of a
28 nonjudicial foreclosure. Plaintiff continues to be devoid of factual allegations to support the
1
REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND
AMENDED COMPLAINT
1 wrongful foreclosure-based causes of action and the demurrer should be sustained without leave to
2 amend.
3 C. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS
4 To the extent the UCL relies on the wrongful foreclosure theories, the UCL claim is
5 derivative of the wrongful foreclosure and rescission causes of action and stands or falls with the
6 underlying claims. (See Korea Supply Co. v. Lockheed Martin Corp.(2003) 29 Cal.4th 1134, 1143
7 [UCL “ ‘borrows' violations from other laws by making them independently actionable as unfair
8 competitive practices”].)
9 D. PLAINTIFF CANNOT CURE THE PLEADING DEFICIENCY TO ALLEGE
10 VIOLATION OF CALIFORNIA CIVIL CODES § 2923.5 AND §2924
11 As set forth in the demurrer, this cause of action only appears in the caption page of the SAC
12 filed on November 6, 2020 and the SAC is devoid of any allegations to support this cause of action.
13 Civil Code § 2923.5 requires prior contact before foreclosing. However, Civil Code section
14 2923.5 does not provide for damages, or for setting aside a foreclosure sale. As to a violation of
15 Civil Code § 2924, that code section is so broad and detailed that this cause of action fails. Plaintiff
16 generally alleges that the foreclosure documents were forged or irregular. Plaintiff alleges there was
17 no substitution of trustee when the recorded documents clearly show that there was a Substitution of
18 Trustee recorded. (RJN, Ex. 13.) All of the foreclosure documents were properly recorded and in
19 compliance with the foreclosure laws.
20 III. CONCLUSION
21 Plaintiff has been unable to articulate a cause of action against Defendants despite numerous
22 opportunities to do so. Plaintiff’s latest hodgepodge of a second amended complaint suffers as well.
23 But “[p]ro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court
24 (2009) 175 Cal.App.4th 536, 543.) Pro. per. litigants therefore are “treated like any other party and
25 [are] entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v.
26 New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND
AMENDED COMPLAINT
1 For the foregoing reasons, Defendants respectfully request that the Court sustain the
2 demurrer without leave to amend.
3 DATED: March 9, 2021 KIRBY & McGUINN, A P.C.
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BY:
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JANA LOGAN
6 MATTHEW H. AGUIRRE
Attorneys for Defendants
7 Fay Servicing, LLC
U.S. Bank, National Association, as Legal
8 Title Trustee for Truman 2016 SC6 Title Trust
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND
AMENDED COMPLAINT
Preview
Electronically Filed 3/9/2021 3:25 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 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, REPLY BRIEF IN SUPPORT OF 14 DEMURRER TO SECOND AMENDED v. COMPLAINT BY FAY SERVICING, LLC 15 AND U.S. BANK, NATIONAL FAY SERVICING, U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE 16 ASSOCIATION, ATTORNEY LENDER TRUSTEE FOR TRUMAN 2016 SC6 SERVICE, INC and DOES 1-5, inclusive TITLE TRUST; 17 MEMORANDUM OF POINTS Defendants. AUTHORITIES IN SUPPORT 18 [TELEPHONIC APPEARANCE] 19 Date: March 18, 2021 20 Time: 8:30 a.m. Dept.: 22 21 Judge: Hon. Stacy P. Speiller 22 Date Action Filed: September 5, 2019 23 24 COMES NOW Defendants Fay Servicing, LLC and U.S. Bank, National Association, as 25 Legal Title Trustee for Truman 2016 SC6 Title Trust (together “Defendants”) to reply to the 26 Opposition filed against their demurrer to the SAC. The demurrer is essentially unopposed and 27 therefore should be sustained. 28 1 REPLY IN SUPPORT OF DEMURRER TO SECOND 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. THE DEMURRER IS SUBSTANTIVELY UNOPPOSED 3 Despite the various complaints filed in this action, it is clear that Plaintiff has no basis— 4 factual or legal—to maintain any cause of action against Defendants. Plaintiff’s short-term attorneys 5 filed a limited opposition to the demurrer claiming that if they had been properly retained, they 6 could have developed the facts needed to allege the causes of action in the Second Amended 7 Complaint. Plaintiff’s attorneys have since been substituted out of this Action and Plaintiff is again 8 pro per. The demurrer should be sustained, and this action dismissed. 9 II. THE COURT SHOULD NOT GRANT FURTHER LEAVE TO AMEND 10 A. PLAINTIFF CANNOT ALLEGE A CAUSE OF ACTION FOR NEGLIGENCE 11 OR FOR FRAUD 12 The only allegations to support negligence and fraud in the SAC are that the Defendants had 13 a duty to exercise reasonable care. (SAC, ¶¶ 1-2.) The amended complaints filed by Plaintiff 14 simply makes absolutely no factual allegations against Defendants and appears to just continue to be 15 filed with the same allegations to appease the Court’s ruling allowing amendment in the prior 16 demurrer rulings. Despite having now filed four operative complaints, this demurrer should be 17 sustained without leave to amend. 18 B. PLAINTIFF CANNOT ALLEGE A WRONGFUL FORECLOSURE CAUSE 19 OF ACTION 20 The third, fourth, fifth, and eighth (quiet title) and ninth (slander of title) causes of action all 21 stem from Plaintiff’s theory that defendants were not authorized to substitute a trustee or otherwise 22 act, and the assignment of the loan was improper. None of the theories are supported by law or the 23 actual facts. Further, Plaintiff did not allege that she tendered the amount of her debt or was excused 24 from doing so, or that she has suffered actual harm or prejudice. The SAC alleges no facts to 25 support its allegation that the note was not assigned together with the deeds of trust and there is no 26 requirement to hold the original note and deed of trust in order to foreclose. Under California law, 27 there is no requirement for the production of an original promissory note prior to initiation of a 28 nonjudicial foreclosure. Plaintiff continues to be devoid of factual allegations to support the 1 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT 1 wrongful foreclosure-based causes of action and the demurrer should be sustained without leave to 2 amend. 3 C. THE UCL CLAIM FAILS WITH ALL THE OTHER CLAIMS 4 To the extent the UCL relies on the wrongful foreclosure theories, the UCL claim is 5 derivative of the wrongful foreclosure and rescission causes of action and stands or falls with the 6 underlying claims. (See Korea Supply Co. v. Lockheed Martin Corp.(2003) 29 Cal.4th 1134, 1143 7 [UCL “ ‘borrows' violations from other laws by making them independently actionable as unfair 8 competitive practices”].) 9 D. PLAINTIFF CANNOT CURE THE PLEADING DEFICIENCY TO ALLEGE 10 VIOLATION OF CALIFORNIA CIVIL CODES § 2923.5 AND §2924 11 As set forth in the demurrer, this cause of action only appears in the caption page of the SAC 12 filed on November 6, 2020 and the SAC is devoid of any allegations to support this cause of action. 13 Civil Code § 2923.5 requires prior contact before foreclosing. However, Civil Code section 14 2923.5 does not provide for damages, or for setting aside a foreclosure sale. As to a violation of 15 Civil Code § 2924, that code section is so broad and detailed that this cause of action fails. Plaintiff 16 generally alleges that the foreclosure documents were forged or irregular. Plaintiff alleges there was 17 no substitution of trustee when the recorded documents clearly show that there was a Substitution of 18 Trustee recorded. (RJN, Ex. 13.) All of the foreclosure documents were properly recorded and in 19 compliance with the foreclosure laws. 20 III. CONCLUSION 21 Plaintiff has been unable to articulate a cause of action against Defendants despite numerous 22 opportunities to do so. Plaintiff’s latest hodgepodge of a second amended complaint suffers as well. 23 But “[p]ro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court 24 (2009) 175 Cal.App.4th 536, 543.) Pro. per. litigants therefore are “treated like any other party and 25 [are] entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. 26 New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) 27 28 2 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT 1 For the foregoing reasons, Defendants respectfully request that the Court sustain the 2 demurrer without leave to amend. 3 DATED: March 9, 2021 KIRBY & McGUINN, A P.C. 4 BY: 5 JANA LOGAN 6 MATTHEW H. AGUIRRE Attorneys for Defendants 7 Fay Servicing, LLC U.S. Bank, National Association, as Legal 8 Title Trustee for Truman 2016 SC6 Title Trust 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO SECOND AMENDED COMPLAINT