Preview
F Superior Court of California F
Raymond L. Sandelman SBN 078020
County of Butte
Attorney at Law | |
196 Cohasset Road, Suite 225 L 2/19/2021 L
Chico, CA 95926-2284 E
(530) 343-5090 / (530) 343-5091 (FAX)
Email:Raymond@sandelmanlaw.com
D ly Fleneg Clerk D
By Deputy
Electronically FILED
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF BUTTE
11
12 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
13 NOTICE OF HEARING OF DEMURRER TO
TRUST DATED 12/29/98,
AMENDED ANSWER TO COMPLAINT
14 Plaintiff,
Hearing Date: 3/17/2021
15
Hearing Time: 9:00 a.m.
16 Department: 1
Judge: Tamara Mosbarger
17 EDWARD F. NIDEROST, et. al., Date of Complaint: 4/22/2020
18 Trial Date: 3/29/2021
Defendants.
19 /
20 AND RELATED CROSS COMPLAINTS
21 /
22
23 TO JOHN DENTON, CONSERVATOR OF THE ESTATE OF EDWARD F. NIDEROST
24 AND AS SUCCESSOR TRUSTEE OF THE EDWARD F. NIDEROST REVOCABLE LIVING
25 TRUST, AND THEIR ATTORNEY LELAND, MORRISSEY & KNOWLES LLP, AND ALL
26 OTHER PARTIES:
27 NOTICE IS HEREBY GIVEN that Wayne A. Cook, Trustee of The Wayne A. Cook 1998
28 Family Trust Dated 12/29/98’s demurrer to the First, Third, and Fourth Affirmative Defenses to
1
NOTICE OF HEARING ON DEMURRER TO AMENDED ANSWER TO COMPLAINT
the Amended Answer by John Denton, Conservator Of The Estate Of Edward F. Niderost and as
Successor Trustee Of The Edward F. Niderost Revocable Living Trust has been set for hearing on
March 17, 2021 at 9:00 a.m. or as soon thereafter as the matter can be heard in Department 1 of
the above-entitled court located at 1775 Concord Avenue, Chico, California.
The Court follows the tentative ruling procedure set forth in California Rules of Court Rule
3.1308 subdivision (a)(1): tentative rulings on law and motion matters will be available on the Court’s
website at www. buttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day
preceding the hearing.
10
11
Dated: Febyueq (V,20r GRE
Raymond L. Sandelman
12 Attorney for Wayne A Cook,
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NOTICE OF HEARING ON DEMURRER TO AMENDED ANSWER TO COMPLAINT
Raymond L. Sandelman SBN 078020
Attorney at Law
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090 / (530) 343-5091 (FAX)
Email:Raymond@sandelmanlaw.com
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF BUTTE
1
12 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
13 TRUST DATED 12/29/98, DEMURRER TO AMENDED ANSWER TO
COMPLAINT
14 Plaintiff,
Hearing Date: 3/17/2021
1S
Hearing Time: 9:00 a.m.
16 Department: 1
Judge: Tamara Mosbarger
17 EDWARD F. NIDEROST, et. al., Date of Complaint 4/22/2020
18 Defendants.
Trial Date: 3/29/2021
19 /
20 AND RELATED CROSS COMPLAINTS
21 /
22
23 Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 demurs
24 to John Denton, Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of
25 The Edward F. Niderost Revocable Living Trust’s Amended Answer to the Complaint on the
26 following grounds:
27 (a) The First Affirmative Defense in the Amended Answer fails to state facts sufficient to
28 constitute an affirmative defense against Wayne A. Cook, Trustee of The Wayne A. Cook 1998
3
DEMURRER TO AMENDED ANSWER TO COMPLAINT
Family Trust Dated 12/29/98.
(b) The Third Affirmative Defense in the Amended Answer fails to state facts sufficient to
constitute an affirmative defense against Wayne A. Cook, Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98.
(c) The Fourth Affirmative Defense in the Amended Answer fails to state facts sufficient to
constitute an affirmative defense against Wayne A. Cook, Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98.
WHEREFORE, Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated
12/29/98 prays that the demurrer be sustained without leave to amend, that John Denton,
10 Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of The Edward F.
11 Niderost Revocable Living Trust’s First, Third, and Fourth Affirmative Defenses in their Amended
12 Answer to the Complaint be stricken, and for all other proper relief.
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Gilliam, Trustee of Lou Easter Ross Revocable Trust v. Levine, Trustee of
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GS Joel Sherman Revocable Trust
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(9th Cir. 2020) 955 F.3d 1117 14
20
Green v. Palmer
21
(1860) 15 Cal. 411 12
22
Hawkins v. TACA Internat. Airlines, S.A.
23
(2014) 223 Cal. App.4th 466 13
24
Kendall-Jackson Winery, Ltd. V. Superior Court
25
(1999) 76 Cal.App.4th 970 21, 22
26
McCabe vy. City of Eureka Mo.
27
(8th Cir. 1981) 664 F.2d 680 : 12
28
TABLE OF AUTHORITIES
Odorizzi v. Bloomfield School Dist.
(1966) 246 Cal.App.2d 123 : tee eeesnaeeeseeaeeeetees cee eeteeneeeeee eres : 18
Paslay v. State Farm General Ins. Co.
(2016) 248 Cal. App.4th 639 : sees : : . wees 19
Spencer v. DHI Mortg. Co., Ltd.
(E.D. Cal. 2009) 642 F.Supp.2d 1153 deeeeeeeseeeeeeeee teaeeeeenee te tetteeee enna 19
Universal Land Co. v. All Persons
(1959) 172 Cal. App.2d 739 .. deeteeeeeeeeeae eters tee eeeeeeeeeesaeeeeeeseetieeeeee tens 12
Waters v. Weyerhaeuser Mort. Co.
10 (9th Cir. 1978) 582 F.2d 503 Wee ee eee ee nn Eee FUE ES EEA HELA GAH EE EAA EEE ETHEL EAHA EEE AO DEES OGE EEE DEE OC EEO DoEEE 15
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B Regulation Z implements the Truth And Lending Act (12 C.F.R. § 226.1 and §1026.1) The regulations are
set forth at 12 C.F.R. § 226.1-226.59, and §1026.1-1026.61)
27 ‘ The Real Estate Settlement Procedures Act is codified at 12 U.S.C.A. § 2601 et seq.
> The Amended Answer states at Page 2 lines 1-3 that references to “Defendant” are to Edward F. Niderost
28 individually and as trustee of the Edward F. Niderost Revocable Living Trust.
6 The Fine $500,000 Note is described at Paragraph 2 and Exhibit 1 to the Complaint.
13
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED ANSWER
different dwelling). The absence of an allegation of ultimate fact, with particularity, that the
transaction was a residential mortgage transaction and a consumer credit transaction, means that
prima facia elements of the statutory claims are missing:
(a) Only a creditor involved in a residential mortgage transaction is statutorily required to
make a determination that the consumer has a reasonable ability to repay the loan (15 U.S.C.A.
§1639c) because the remedies of the Truth in Lending Act are available only in “consumer credit
transactions.” Extensions of credit for non-consumer purposes, such as loans for a business purpose,
even when that loan is obtained by a natural person are outside the scope of the statutes. (Gilliam,
Trustee of Lou Easter Ross Revocable Trust v. Levine, Trustee of Joel Sherman Revocable Trust (9th
10 Cir. 2020) 955 F.3d 1117, 1120; Floyd v. PNC Mortgage (D.D.C. 2016) 216 F.Supp.3d 63, 66).
Be
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24 would be a good investment because we could rent the
17 25 property out for weddings and graduations?
18 Page 15 line 1 A. It was after she came to this country I told her.
2 Q. Yeah, I understand. But it was about two weeks before
19 3 escrow closed, correct?
4 A. Yes.
20 5 Q. But did you tell her words to the effect that,
21 6 Mr. Culley thinks that the property is a good investment
7 because it could be rented out for weddings and
22 8 graduations?
9 A. Yes,Idid....
23
21 Q. Gotcha. In that conversation before escrow closed, did
24 22. you ever tell your wife that you planned on living at the
23 Miller Mansion?
25 24 A. No. Yeah, I told her I would never live there anyway.
26 25 Q. You told your wife that you would never personally live
Page 16 line 1 at the Miller Mansion, right?
27 2 A. Right...
9 Q. Would it be a correct statement to say that you never
28 10 planned on living at the Miller Mansion?
17
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED ANSWER
ll A. Right.
12 Q. Did you ever tell anybody that you planned on living at
13 the Miller Mansion?
14 A. Nope. I told Gene Culley I wouldn't live there, but --
15 Q. Did you just now say that you told Gene Culley that you
16 would not live at the Miller Mansion?
17 A. Gene Culley asked me, would you live there, and I said
18 no.
5. The Fourth Affirmative Defense Fails To State Facts Constituting An Affirmative Defense
“It is not sufficient for the pleader to merely allege the legal conclusion of undue influence,
but facts must be pleaded from which the court may determine as a matter of law whether the facts
so pleaded constitute the claimed undue influence.” (/n re Bixler's Estate (1924) 194 Cal. 585, 589)
10 Because Elder Abuse is a statutory claim, each of the requirements of the statute must be specifically
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17 in the Amended Answer. Spencer v. DHI Mortg. Co., Ltd. (E.D. Cal. 2009) 642 F.Supp.2d 1153,
18 1168 construing California law held that no claim for undue influence was stated against a mortgage
19 lender without allegations of a pattern of activity. The affirmative defense does not contain any
20 allegations of ultimate facts that show persuasion which tends to be coercive in nature, or high
21 pressure.
22 There are no allegation of misappropriation of real or personal property of an elder or
23 dependent adult for a wrongful use (Welf. & Inst. Code, § 15610.30 subd. (a)(2)). Paslay v. State
24 Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657 explains that there must be allegations of
25 ultimate facts that establish (i) an elder has a contract right, (ii) there was a breach of the contract,
26 or other improper conduct (which cannot be shown if a lender properly exercises its rights to
27 foreclose even though that conduct is financially disadvantageous to an elder), and (iii) the person
28 or entity knew or should have known that this conduct is likely to be harmful to the elder. None of
19
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED ANSWER
these elements have been alleged.
The Fourth Affirmative Defense alleges at Page 6 lines 14 the following “Financing
Scheme”: after the foreclosure of the deed of trust securing the Fine $500,000 Note, Wayne Cook,
12»
Trustee will have the ability to attempt to recover the funds allegedly due him as a “sold out junior.
This claim shows a serious misunderstanding of the provisions of Code of Civil Procedure section
580b even after it was explained in the successful Motion for Judgment on the Pleadings. Code of
Civil Procedure section 580b provides that no deficiency is owed by or may be collected from, and
no deficiency judgment can be obtained against, the principal obligor after any sale (whether judicial,
nonjudicial or short) under a “purchase money” loan (California Practice Guide Real Property
10 Transactions § 6:563). 5 Miller and Starr California Real Estate (4th ed 2020) § 13:285 explain the
a5
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17 Procedure section 580d," not section 580b (5 Miller and Starr California Real Estate (4th ed 2019)
18 § 13:261)."
19
2 «
Preview
F Superior Court of California F Raymond L. Sandelman SBN 078020 County of Butte Attorney at Law | | 196 Cohasset Road, Suite 225 L 2/19/2021 L Chico, CA 95926-2284 E (530) 343-5090 / (530) 343-5091 (FAX) Email:Raymond@sandelmanlaw.com D ly Fleneg Clerk D By Deputy Electronically FILED Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF BUTTE 11 12 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 13 NOTICE OF HEARING OF DEMURRER TO TRUST DATED 12/29/98, AMENDED ANSWER TO COMPLAINT 14 Plaintiff, Hearing Date: 3/17/2021 15 Hearing Time: 9:00 a.m. 16 Department: 1 Judge: Tamara Mosbarger 17 EDWARD F. NIDEROST, et. al., Date of Complaint: 4/22/2020 18 Trial Date: 3/29/2021 Defendants. 19 / 20 AND RELATED CROSS COMPLAINTS 21 / 22 23 TO JOHN DENTON, CONSERVATOR OF THE ESTATE OF EDWARD F. NIDEROST 24 AND AS SUCCESSOR TRUSTEE OF THE EDWARD F. NIDEROST REVOCABLE LIVING 25 TRUST, AND THEIR ATTORNEY LELAND, MORRISSEY & KNOWLES LLP, AND ALL 26 OTHER PARTIES: 27 NOTICE IS HEREBY GIVEN that Wayne A. Cook, Trustee of The Wayne A. Cook 1998 28 Family Trust Dated 12/29/98’s demurrer to the First, Third, and Fourth Affirmative Defenses to 1 NOTICE OF HEARING ON DEMURRER TO AMENDED ANSWER TO COMPLAINT the Amended Answer by John Denton, Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of The Edward F. Niderost Revocable Living Trust has been set for hearing on March 17, 2021 at 9:00 a.m. or as soon thereafter as the matter can be heard in Department 1 of the above-entitled court located at 1775 Concord Avenue, Chico, California. The Court follows the tentative ruling procedure set forth in California Rules of Court Rule 3.1308 subdivision (a)(1): tentative rulings on law and motion matters will be available on the Court’s website at www. buttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day preceding the hearing. 10 11 Dated: Febyueq (V,20r GRE Raymond L. Sandelman 12 Attorney for Wayne A Cook, ae ag individually and as Trustee of The <é 6s 13 Wayne A. Cook 1998 Family Trust gs ae oR B= BAO 14 Zen sineaes ZAR j8a8 15 Ze ge ge2a 16 E68 Sa Zo 5S GR 17 Ba gs 18 19 20 21 22 23 24 25 26 27 28 2. NOTICE OF HEARING ON DEMURRER TO AMENDED ANSWER TO COMPLAINT Raymond L. Sandelman SBN 078020 Attorney at Law 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090 / (530) 343-5091 (FAX) Email:Raymond@sandelmanlaw.com Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF BUTTE 1 12 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 13 TRUST DATED 12/29/98, DEMURRER TO AMENDED ANSWER TO COMPLAINT 14 Plaintiff, Hearing Date: 3/17/2021 1S Hearing Time: 9:00 a.m. 16 Department: 1 Judge: Tamara Mosbarger 17 EDWARD F. NIDEROST, et. al., Date of Complaint 4/22/2020 18 Defendants. Trial Date: 3/29/2021 19 / 20 AND RELATED CROSS COMPLAINTS 21 / 22 23 Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 demurs 24 to John Denton, Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of 25 The Edward F. Niderost Revocable Living Trust’s Amended Answer to the Complaint on the 26 following grounds: 27 (a) The First Affirmative Defense in the Amended Answer fails to state facts sufficient to 28 constitute an affirmative defense against Wayne A. Cook, Trustee of The Wayne A. Cook 1998 3 DEMURRER TO AMENDED ANSWER TO COMPLAINT Family Trust Dated 12/29/98. (b) The Third Affirmative Defense in the Amended Answer fails to state facts sufficient to constitute an affirmative defense against Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98. (c) The Fourth Affirmative Defense in the Amended Answer fails to state facts sufficient to constitute an affirmative defense against Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98. WHEREFORE, Wayne A. Cook, Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 prays that the demurrer be sustained without leave to amend, that John Denton, 10 Conservator Of The Estate Of Edward F. Niderost and as Successor Trustee Of The Edward F. 11 Niderost Revocable Living Trust’s First, Third, and Fourth Affirmative Defenses in their Amended 12 Answer to the Complaint be stricken, and for all other proper relief. Bo ae sé oe 13 os 225 Ba og 14 ge Soak axaas Wewe (1991) 231 Cal. App.3d 367 12 Ze Ze> 17 ge2ag B< 6asa Gilliam, Trustee of Lou Easter Ross Revocable Trust v. Levine, Trustee of aa 18 GS Joel Sherman Revocable Trust ga geo 19 (9th Cir. 2020) 955 F.3d 1117 14 20 Green v. Palmer 21 (1860) 15 Cal. 411 12 22 Hawkins v. TACA Internat. Airlines, S.A. 23 (2014) 223 Cal. App.4th 466 13 24 Kendall-Jackson Winery, Ltd. V. Superior Court 25 (1999) 76 Cal.App.4th 970 21, 22 26 McCabe vy. City of Eureka Mo. 27 (8th Cir. 1981) 664 F.2d 680 : 12 28 TABLE OF AUTHORITIES Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123 : tee eeesnaeeeseeaeeeetees cee eeteeneeeeee eres : 18 Paslay v. State Farm General Ins. Co. (2016) 248 Cal. App.4th 639 : sees : : . wees 19 Spencer v. DHI Mortg. Co., Ltd. (E.D. Cal. 2009) 642 F.Supp.2d 1153 deeeeeeeseeeeeeeee teaeeeeenee te tetteeee enna 19 Universal Land Co. v. All Persons (1959) 172 Cal. App.2d 739 .. deeteeeeeeeeeae eters tee eeeeeeeeeesaeeeeeeseetieeeeee tens 12 Waters v. Weyerhaeuser Mort. Co. 10 (9th Cir. 1978) 582 F.2d 503 Wee ee eee ee nn Eee FUE ES EEA HELA GAH EE EAA EEE ETHEL EAHA EEE AO DEES OGE EEE DEE OC EEO DoEEE 15 ao aS MW Statutes sé Soe gs zon 12 Commercial Code B Regulation Z implements the Truth And Lending Act (12 C.F.R. § 226.1 and §1026.1) The regulations are set forth at 12 C.F.R. § 226.1-226.59, and §1026.1-1026.61) 27 ‘ The Real Estate Settlement Procedures Act is codified at 12 U.S.C.A. § 2601 et seq. > The Amended Answer states at Page 2 lines 1-3 that references to “Defendant” are to Edward F. Niderost 28 individually and as trustee of the Edward F. Niderost Revocable Living Trust. 6 The Fine $500,000 Note is described at Paragraph 2 and Exhibit 1 to the Complaint. 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED ANSWER different dwelling). The absence of an allegation of ultimate fact, with particularity, that the transaction was a residential mortgage transaction and a consumer credit transaction, means that prima facia elements of the statutory claims are missing: (a) Only a creditor involved in a residential mortgage transaction is statutorily required to make a determination that the consumer has a reasonable ability to repay the loan (15 U.S.C.A. §1639c) because the remedies of the Truth in Lending Act are available only in “consumer credit transactions.” Extensions of credit for non-consumer purposes, such as loans for a business purpose, even when that loan is obtained by a natural person are outside the scope of the statutes. (Gilliam, Trustee of Lou Easter Ross Revocable Trust v. Levine, Trustee of Joel Sherman Revocable Trust (9th 10 Cir. 2020) 955 F.3d 1117, 1120; Floyd v. PNC Mortgage (D.D.C. 2016) 216 F.Supp.3d 63, 66). Be ag 11 The term “residential mortgage transaction” means a transaction in which the consumer's dwelling <é SE os gs Bos 12 is pledged as collateral (15 U.S.C.A. § 1602(x)). The requirements of Regulation Z concerning a Bea B20 Sean Ax 13 were potential? 6S 14 14 A. Graduations and all that kind of stuff. . . SE £id% Sc 21 Q. Okay. So, Mr. Culley told you the property could be $f am 15 5s 22 used for weddings and graduations. Now, did you tell your BS ga ae 16 23 wife that before escrow closed that Mr. Culley thinks it 24 would be a good investment because we could rent the 17 25 property out for weddings and graduations? 18 Page 15 line 1 A. It was after she came to this country I told her. 2 Q. Yeah, I understand. But it was about two weeks before 19 3 escrow closed, correct? 4 A. Yes. 20 5 Q. But did you tell her words to the effect that, 21 6 Mr. Culley thinks that the property is a good investment 7 because it could be rented out for weddings and 22 8 graduations? 9 A. Yes,Idid.... 23 21 Q. Gotcha. In that conversation before escrow closed, did 24 22. you ever tell your wife that you planned on living at the 23 Miller Mansion? 25 24 A. No. Yeah, I told her I would never live there anyway. 26 25 Q. You told your wife that you would never personally live Page 16 line 1 at the Miller Mansion, right? 27 2 A. Right... 9 Q. Would it be a correct statement to say that you never 28 10 planned on living at the Miller Mansion? 17 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED ANSWER ll A. Right. 12 Q. Did you ever tell anybody that you planned on living at 13 the Miller Mansion? 14 A. Nope. I told Gene Culley I wouldn't live there, but -- 15 Q. Did you just now say that you told Gene Culley that you 16 would not live at the Miller Mansion? 17 A. Gene Culley asked me, would you live there, and I said 18 no. 5. The Fourth Affirmative Defense Fails To State Facts Constituting An Affirmative Defense “It is not sufficient for the pleader to merely allege the legal conclusion of undue influence, but facts must be pleaded from which the court may determine as a matter of law whether the facts so pleaded constitute the claimed undue influence.” (/n re Bixler's Estate (1924) 194 Cal. 585, 589) 10 Because Elder Abuse is a statutory claim, each of the requirements of the statute must be specifically Bo ae <é 11 pled (Fisher v. San Pedro Peninsula Hospital, supra 214 Cal.App.3d at 604). be 33 Be ss oR 12 The Fourth Affirmative Defense attempts to alleges elder abuse by the conclusory claim of Bs za Bao geen 4 as as 13 iB we eS party, (6) absence of third-party advisers to the servient party, (7) statements that there 6&5 aS 14 is no time to consult financial advisers or attorneys. If a number of these elements are Ba a8 Sa simultaneously present, the persuasion may be characterized as excessive. 5: Za 15 5S Ba ga ge 16 No ultimate facts of persuasion or a pattern with several of the above elements, is set forth 17 in the Amended Answer. Spencer v. DHI Mortg. Co., Ltd. (E.D. Cal. 2009) 642 F.Supp.2d 1153, 18 1168 construing California law held that no claim for undue influence was stated against a mortgage 19 lender without allegations of a pattern of activity. The affirmative defense does not contain any 20 allegations of ultimate facts that show persuasion which tends to be coercive in nature, or high 21 pressure. 22 There are no allegation of misappropriation of real or personal property of an elder or 23 dependent adult for a wrongful use (Welf. & Inst. Code, § 15610.30 subd. (a)(2)). Paslay v. State 24 Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657 explains that there must be allegations of 25 ultimate facts that establish (i) an elder has a contract right, (ii) there was a breach of the contract, 26 or other improper conduct (which cannot be shown if a lender properly exercises its rights to 27 foreclose even though that conduct is financially disadvantageous to an elder), and (iii) the person 28 or entity knew or should have known that this conduct is likely to be harmful to the elder. None of 19 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO AMENDED ANSWER these elements have been alleged. The Fourth Affirmative Defense alleges at Page 6 lines 14 the following “Financing Scheme”: after the foreclosure of the deed of trust securing the Fine $500,000 Note, Wayne Cook, 12» Trustee will have the ability to attempt to recover the funds allegedly due him as a “sold out junior. This claim shows a serious misunderstanding of the provisions of Code of Civil Procedure section 580b even after it was explained in the successful Motion for Judgment on the Pleadings. Code of Civil Procedure section 580b provides that no deficiency is owed by or may be collected from, and no deficiency judgment can be obtained against, the principal obligor after any sale (whether judicial, nonjudicial or short) under a “purchase money” loan (California Practice Guide Real Property 10 Transactions § 6:563). 5 Miller and Starr California Real Estate (4th ed 2020) § 13:285 explain the a5 ag il antideficiency rule for a purchase money loan: if the obligation is secured by the property is sold sé oe oa and the security was given by the vendee to the vendor, by a note secured by a deed of trust, the 63 oR 12 ZEO Ao ne 42x wea ag 13 purchase money antideficiency protections apply, and the holder of the debt is barred from Bes ge> 14 recovering a deficiency judgment. Ze6a8 6&5 Sg Za 15 Paragraph 6 of the Complaint makes clear that the debt owed to Wayne Cook, Trustee is a 5S ga ge 16 purchase money mortgage." The “sold-out junior” principle of law concerns Code of Civil 17 Procedure section 580d," not section 580b (5 Miller and Starr California Real Estate (4th ed 2019) 18 § 13:261)." 19 2 «