CALIFORNIAWHAT THE COURTS ARE DOING For week of 10/17/2011 * TENTATIVE RULING: * Demurer -- Overrule The Complaint is for

unlawful detainer. Plaintiff alleges it purchased the property at a trustees sale. The Defendant is unlawfully detaining the property because he has refused to deliver possession of the property after receiving a notice to quit. This hearing concerns the Defendants demurrer to the complaint. The Defendants argue that there are grounds for a demurrer because the pleadings are uncertain and the complaint does not plead sufficient facts to show that the Plaintiff has standing or capacity. 1. Uncertainty A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures. Khoury v. Maly's of California Inc. (1993) 14 Cal.App.4th 612, 616. Accordingly, a demurrer for uncertainty will be sustained only when the complaint is so bad that the defendant cannot reasonably respond because the defendant cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against the defendant. Id. Here, the Defendant can reasonably respond because the Defendant can reasonably determine that the Plaintiff claims that it has title to the real property and that the Defendant is improperly in possession of the property. Since the Defendant can reasonably determine whether to admit or deny that he is unlawfully detaining the real property, there are no grounds for a demurrer based on uncertainty. 2. Standing and Capacity The Defendant argues that the complaint lacks sufficient facts to demonstrate that the property was sold properly or that the Plaintiff has standing. In ruling on a demurrer based on the failure to state sufficient facts, the Court examines the allegations in order to determine whether they contain the essential facts necessary to plead a valid cause of action. Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 38-39. The Court assumes the truth of all material facts properly pleaded and gives the complaint a reasonable interpretation, reading it as a whole and its parts

in their context. Id. If a complaint does not state a cause of action, but there is a reasonable possibility that the defect can be cured by amendment, leave to amend must be granted. Id. There is a difference between the capacity to sue, which is the right to come into court, and the standing to sue, which is the right to relief in court. Color-Vue, Inc. v. Abrams (1996) 44 Cal. App. 4th 1599, 1603-1605. Lack of capacity is merely a legal disability, such as infancy, insanity, or the failure to pay corporate taxes, which deprives a party of the right to come into court. A plaintiff's capacity to sue is not an element of a cause of action. Id. Standing and the right to relief, on the other hand, goes to the existence of a cause of action. Id. With regards to capacity, the Defendant does not offer any basis to find that the Plaintiff has no right to come into Court. The Defendant does not identify any legal disability and demonstrate that the Plaintiff has no right to come into Court due to this legal disability. Further, the Plaintiff alleges in paragraph 1 that it is qualified to commence this action. Since this is assumed true for the purposes of the demurrer, the Defendants argument based on lack of capacity does not demonstrate any grounds for a demurrer. With regards to standing, California law provides that upon sale under a trust deed the purchaser has an immediate right to possession. Farris v. Pacific States Auxiliary Corp. (1935) 4 Cal. 2d 103, 105. Under CCP section 1161a(b)(3), after a sale upon a trust deed, the purchaser may bring an unlawful detainer action against any person who remains in possession after a three day notice to quit has been served. The Plaintiffs complaint for unlawful detainer must allege the following: 1) the property was sold in accordance with Civil Code section 2924; and 2) a three-day notice to quit was served on the Defendant. CCP section 1161a(b)(3); Evans v. Superior Court (1977) 67 Cal. App. 3d 162, 169-171. The Plaintiff alleges facts in paragraph 4 to demonstrate that the Plaintiff is the owner of the property because it purchased the property in a sale held in accordance with Civil Code section 2924. This allegation is assumed true for the purposes of ruling on the demurrer and demonstrates that the Plaintiff has standing to bring these claims because it is the owner of the property and it is the real party in interest. Therefore, the Court overrules the Defendants demurrer because the complaint is not uncertain and because it pleads sufficient facts.

* TENTATIVE RULING: * SUSTAIN demurrers to first, second, third, fourth, and sixth causes of action with 10 days leave to amend. TAKE OFF CALENDAR motion to strike. The Plaintiff alleges she was fraudulently induced into a loan agreement in which she received over $551,500. The loan agreement was secured by a deed of trust on her property. The Plaintiff seeks an order declaring the contract and the deed of trust void. The gravamen of her claim is that the Note did not contain all the terms of her payment obligations, the Deed of Trust improperly contained terms that should be in the Note and fails to contain a beneficiary, and that MERS could not be the beneficiary so could not appoint a trustee to enforce the terms of the Note. In addition, the Plaintiff seeks to set aside the trustees sale under which her property was sold in 2009. The Complaint contains eight causes of action. These are: 1) Fraud; 2) Void Contract; 3) Void and Cancel Deed of Trust; 4) Violation of Business and Professions Code section 17200; 5) Injunctive Relief; 6) Restitution (Unjust Enrichment); 7) Set Aside Trustees Sale; 8) Void or Cancel Trustees Deed upon Sale Before the Court is Defendant Metrocities Mortgages Demurrer to the first, second, third, fourth, and sixth causes of action and its Motion to Strike portions of Plaintiffs complaint seeking an award of special damages and punitive damages. 1. Demurrer a. First Cause of Action for Fraud Defendant argues that this cause of action lack sufficient, particular facts. Facts constituting each element of fraud must be alleged with particularity; the claim cannot be saved by referring to the policy favoring liberal construction of pleadings. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. The first cause of action for fraud includes the following elements: 1) a representation, usually of fact, which is false; 2) knowledge of its falsity; 3) intent to defraud;

4) justifiable reliance upon the misrepresentation; and 5) damage resulting from that justifiable reliance Stansfield v. Starkey (1990) 220 Cal. App. 3d 59, 72-73. Since fraud must be pleaded with particularity, the complaint must allege facts showing how, when, where, to whom, and by what means the representations were tendered. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. In addition, fraud pleadings against a corporation must allege the names of the persons who made the misrepresentations, their authority to speak for the corporation, to whom they spoke, what they said or wrote, and when it was said or written. Tarmann v. State Farm Mutual Automobile Insurance Co. (1991) 2 Cal.App.4th 153, 157. A review of the first cause of action reveals that it does not contain sufficient particular facts regarding the nature of the fraud and Defendant. The Plaintiff alleges in paragraphs 21 and 22 that she was instructed by a Doe Defendant, a notary, to sign the document and that, based on the representations of the Doe Defendant, she believed the documents contained the terms and conditions of the loan that she had been told that she was receiving. The Plaintiff does not identify the name of the person who made representation or the persons authority to speak for the Defendant, Prospect Mortgage, LLC. The Plaintiff does not identify when the representations were made. The Plaintiff does not allege where the representations were made. The Plaintiff does not allege how or by what means the representations were tendered. The Plaintiff does not allege with particularity the representations, i.e., the terms and conditions that the Doe Defendant falsely represented were in the loan agreement. The Plaintiff does not allege that the moving Defendant had an intent to defraud the Plaintiff. This is not sufficient to plead a fraud claim. Therefore, the Court sustains the demurrer to the first cause of action. Since it is reasonably possible for the Plaintiff to add allegations to correct these defects, the Court grants 10 days leave to amend. b. Second Cause of Action for Void Contract and Third Cause of Action to Void and Cancel the Deed of Trust Defendant argues that the Plaintiff does not allege any facts identifying any grounds to find that the contract or the deed of trust is void. California law provides that contracts opposed to law or public policy are not enforceable. Sistare-Meyer v. Young Men's Christian Ass'n (1997) 58 Cal. App. 4th 10, 16. However, public policy requires and encourages the making of contracts by competent parties upon all valid and lawful considerations and courts allow parties the widest latitude in this regard. Id. Accordingly, a Court will

not declare a contract void unless it is plain that the contract violates public policy. Id. Plaintiff alleges in the second cause of action that the note was void because it was not, in fact, a note. The Plaintiff alleges in the third cause of action that the deed of trust is void because the Plaintiff was fraudulent induced into the loan. However, there are no allegations identifying any law or public policy that makes the contract and the deed of trust void. Further, as noted above, the Plaintiff has not pleaded sufficient facts to state a cause of action for fraud, which could have been the basis for rescinding the contract. Also, the Plaintiffs opposition does not cite to any legal authority under which the Court could find that the contract or the deed of trust are void. Finally, Plaintiff does not allege that she has done equity by restoring or offering to restore the amounts that she received under the contract. The Plaintiff is seeking an order that would rescind the contract. Under Civil Code section 1691, to obtain a rescission of a contract, the party must give notice and restore or offer to restore everything of value which the party has received under the contract. The Plaintiff does not allege any facts demonstrating that she has offered to restore the benefits that she received under the contract, which was the $551,000 loan that was secured by the deed of trust on her property. Therefore, the Court sustains the demurrers to the second and third causes of action because the Plaintiff does not plead any facts showing that the contract and deed of trust are void and because Plaintiff has not plead facts showing that she restored or offered to restore the $551,000 that she received under the loan agreement. c. Fourth Cause of Action for Violation of Business and Professions Code section 17200 Defendant argues that Plaintiff has not pleaded the particular facts needed to state this statutory cause of action for the violation of Business and Professions Code section 17200. This section broadly prohibits any unlawful, unfair, or fraudulent business act or practice. In order to plead a claim under Business and Professions Code section 17200, there must be allegations showing an unlawful, unfair, or fraudulent business act or practice. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 676-677. This includes anything that can properly be called a business practice and that at the same time is forbidden by law. Id. An unlawful business act or practice is one that is prohibited by law, where possible sources of law are defined broadly. Cel-Tech Comms., Inc. v. Los Angeles Cellular Tel. Co. (1999) 20 Cal. 4th 163, 180 (holding that section 17200 borrows violations of other

laws and makes them independently actionable). In addition, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619. This includes the particular section of a statutory scheme that was violated and the particular facts showing that the statute was violated. Id. The Plaintiff alleges in paragraphs 41 to 43 that the Defendants made false representations to the Plaintiff as part of a scheme to qualify mortgage loan borrowers for loans to help inflate the demand for and price of housing in California. The Plaintiff does not identify any statutory scheme and does not plead any particular facts showing the manner in which the identified statute was violated. This is not sufficient to plead a cause of action for the violation of Business and Professions Code section 17200. In addition, in paragraph 45, the Plaintiff alleges that the Defendants deceptive practices included material misrepresentations of the facts of the transaction when they were negotiating with the Plaintiff. An action under Business and Professions Code section 17200 is not an all-purpose substitute for a tort or contract action. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 676-677. Here, the Plaintiff appears to be pleading an unfair business practices claim as a result of alleged fraud by defendants and unknown parties. But the elements of the fraud claim are not specific and particularized. Therefore, the Court sustains the demurrer to the fourth cause of action. The Court grants the Plaintiff 10 days leave to amend to articulate a manner in which she can plead this as a claim for the violation of Business and Professions Code section 17200. e. Sixth Cause of Action for Restitution (Unjust Enrichment) The Defendant argues that this cause of action does not allege any facts demonstrating that the Defendant obtained benefits unjustly. In order to plead a claim for unjust enrichment, the Plaintiff must allege the following: 1) the Defendant received a benefit from the Plaintiffs; 2) it would be unjust for the Defendant to retain the benefit Lucky Auto Supply v. Turner (1966) 244 Cal. App. 2d 872, 885. The Plaintiff alleges in paragraphs 52 and 53 that the Defendants were enriched by the contract and that they received payments and fees from the Plaintiff. However, there are no allegations demonstrating that it would be

unjust for the Defendant to retain these payments and fees because the Plaintiff made these payments under a loan agreement with the Defendant. A review of the deed of trust attached within untabbed exhibit A to the Plaintiffs First Amended Complaint reveals that she owed $551,500 under the loan agreement. The Plaintiff does not allege any facts demonstrating that she did not receive the loan. This is not sufficient because it does not demonstrate that it would be unjust for the Defendant to retain the payments and fees that were made under the loan agreement. Therefore, the Court sustains the demurrer to the sixth cause of action. The Court grants 10 days leave to amend to correct this defect. 2. Motion to Strike The Defendant requests that the Court strike the requests for special damages and for punitive damages from the First Amended Complaint. In light of the tentative ruled to sustain the demurrer to each cause of action directed at this Defendant, this request is moot because these portions of the complaint will be removed by the Courts order on the demurrer. Therefore, the Court takes the motion to strike off calendar as moot. * TENTATIVE RULING: * Motion seeking: 1. Order imposing terminating sanctions on the Defendant by striking his answer and entering a default against him. 2. Order imposing monetary sanctions of $1,540 on the Defendant. Grant motion for terminating sanctions Deny request for monetary sanctions. This case arises from the Plaintiffs claim that the Defendant breached an agreement to purchase a boat. The Plaintiff repossessed the boat and sold it. The Plaintiff brought this action to seek the amount that remains unpaid after the proceeds from the sale are subtracted. Trial is set for November 21, 2011. This hearing concerns the Plaintiffs request for an order imposing terminating and monetary sanctions on the Defendant. CCP section 2023.030 permits the Court to impose terminating sanctions for discovery misuses, which are defined by CCP section 2023.010 to include the failure to respond to discovery and the failure to comply with a Court discovery order. Under California law, a discovery order cannot go further than is necessary

to accomplish the purpose of discovery. Newland v. Superior Court (1995) 40 Cal. App. 4th 608, 613. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. McGinty v. Superior Court (1994) 26 Cal. App. 4th 204, 210. In addition, an order imposing terminating sanctions must be preceded by the disobedience of an order compelling a party to do that which the party should have done in the first instance. Kravitz v. Superior Court (2001) 91 Cal. App. 4th 1015, 1021. The Plaintiffs motion includes facts in the declaration of its attorney, Karel Rocha, to demonstrate that the Defendant has misused discovery by failing to comply with his discovery obligations in the following manner: 1) the Defendant failed to serve any responses to the form interrogatories and requests for admissions that the Plaintiff served on October 1, 2010; and 2) the Defendant failed to comply with the Courts January 14, 2011 order directing the Defendant to serve responses to the form interrogatories. These facts demonstrate that the Defendant has misused discovery by failing to serve responses to the Plaintiffs form interrogatories and requests for admissions and by failing to comply with the Court's January 14, 2011 discovery order. The Defendant has not filed any opposition papers to demonstrate that he is willing to correct his past discovery misuse and to comply with future discovery. Accordingly, it appears necessary to impose terminating sanctions because no sanction less than terminating sanctions will accomplish the purpose of discovery. Since the Defendant has failed to show any willingness to comply with his discovery obligations, it does not appear that any sanctions other than terminating sanctions will correct the problem presented by his continuing failure to engage in discovery. In addition, since the Defendant failed to comply with the Courts January 14, 2011 discovery order, terminating sanctions may be imposed under California law. Therefore, the Court imposes terminating sanctions on the Defendant by striking his answer and by entering a default against him. Finally, the Plaintiff requests that the Court award monetary sanctions for this discovery misuse. Since the Court should impose terminating sanctions on the Defendant, an order imposing monetary sanctions would go further than is necessary to correct the problem presented by the Defendants continuing failure to engage in discovery. Therefore, the Court denies the Plaintiffs request for monetary sanctions.

* TENTATIVE RULING: * Motion for Judgment on the Pleadings -- Denied. The Complaint alleges that the Plaintiff entered into a purchase agreement with Defendant, Sovereign Properties, under which the Plaintiff agreed to purchase a condominium from the Defendant. Under the purchase agreement, the Plaintiff had the option to demand that the Defendant repurchase the unit at the same price that the buyer paid plus the price for seller installed options or upgrades less 6%. The Defendant breached the agreement by refusing to repurchase the condominium. In addition, Defendant, Cardiff Equities, Inc., is liable for the breach of contract because Sovereign Properties was its alter ego. The Complaint alleges causes of action for: 1) Breach of Contract; 2) Specific Performance; 3) Intentional Misrepresentation; and 4) Negligent Misrepresentation This hearing concerns the motion for a judgment on the pleadings filed by Defendant, Cardiff Equities, Inc. A motion for judgment on the pleadings has the purpose and effect of a general demurrer and is filed because the time to file a demurrer has expired. Smiley v. Citibank (S.D.), N.A. (1995) 11 Cal. 4th 138, 145-146. Just as on a demurrer, the Court examines the allegations in order to determine whether they contain the essential facts necessary to plead a valid cause of action and accepts as true all material facts alleged therein. Id. The Defendant argues that the Plaintiff's first and second causes of action do not state sufficient facts. The Defendant argues that there are insufficient facts to plead the alter ego doctrine or that the Plaintiff can seek specific performance because it has no adequate legal remedy. The Court has already considered these arguments when it heard and overruled the demurrers brought by Defendants, Sovereign Properties and Cardiff Equities, Inc., on November 5, 2010. 1. First Cause of Action for Breach of Contract The Defendant argues that the pleadings do not allege that a contractual relationship existed with the Plaintiff and that the allegations are insufficient to plead the alter ego doctrine. The Court has already rejected this argument when it overruled the Defendant's demurrer on November 5, 2010. The Defendant offers no explanation for raising the issue again in what should be considered an untimely motion for reconsideration of the Court's prior order.

The Plaintiff alleges in paragraph 10 that it entered into a purchase agreement with Defendant, Sovereign Properties II. However, the Plaintiff alleges in paragraph 6 that the Defendant, Cardiff Equities, was using Sovereign Properties II as an alter ego. Under the alter ego doctrine, when the corporate form is used to perpetrate a fraud, circumvent a statute, or accomplish some other wrongful or inequitable purpose, the Courts will ignore the corporate entity and deem the corporation's acts to be those of the persons actually controlling the corporation. Sonora Diamond Corp. v. Superior Court (2000) 83 Cal. App. 4th 523, 538. The alter ego doctrine prevents individuals from misusing the corporate laws by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds. Id. Accordingly, if the Plaintiff establishes that the alter ego doctrine should be applied, the Defendant, Cardiff Equities, could be liable under the contract with Sovereign Properties II because the acts of Sovereign Properties II will be deemed to be the acts of Cardiff Equities. Courts liberally apply the alter ego doctrine when the equities and justice of the situation call for it rather than restricting it to technical requirements of pleading and procedure. First Western Bank & Trust Co. v. Bookasta (1968) 267 Cal. App. 2d 910, 915. It is essential principally that a showing be made that there is a unity of interest and that permitting the fiction of corporate separate existence is unjust. Id. The Plaintiff alleges in paragraphs 6 facts demonstrating that there was a unity of interest between the Defendants, Cardiff Equities, Faruq Jurjis, and Clyde Lane, and Sovereign Properties II because they were the only shareholders, directors, officers, and persons in control. Further, the Plaintiff alleges that it would be unjust to recognize the separate existence of Sovereign Properties II because it was inadequately capitalized when it failed to repurchase the Plaintiff's condominium. These allegations are sufficient to demonstrate the existence of a contract with Defendant, Cardiff Equities, because under the doctrine of alter ego, it can be deemed to be parties to the contract if the separate existence of Sovereign Properties II is ignored. Accordingly, the Court denies the motion with respect to the first cause of action. 2. Second Cause of Action for Specific Performance The Defendant argues that this cause of action lacks sufficient facts because the pleadings demonstrate that the Plaintiff has an adequate remedy in law. Specific performance is a remedy for the breach of a contract that may be

awarded in the alternative to damages for the breach of a contract. Mycogen Corp. v. Monsanto Co. (2002) 28 Cal. 4th 888, 905-906 (holding that a party cannot be awarded both damages and specific performance for the same breach). A claim for specific performance must include allegations showing that the plaintiff cannot adequately be compensated in money. Sheppard v. Banner Food Products, Inc. (1947) 78 Cal. App. 2d 808, 813. The Plaintiff alleges that in paragraph 28 that he has no adequate remedy at law because the contract was for the sale of real property. Civil Code section 3387 provides the following: It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation. In the case of a single-family dwelling which the party seeking performance intends to occupy, this presumption is conclusive. In all other cases, this presumption is a presumption affecting the burden of proof. Here the Plaintiff wants to sell the property to the Defendant. Under California law, he may sue for specific performance or treat the contract as breached and sue for damages resulting from the breach. BD Inns v. Pooley (1990) 218 Cal. App. 3d 289, 296 (holding that a seller of real property may sue for specific performance or damages from breach of contract). Since Plaintiff, as the seller of real property, may sue for specific performance or damages from the breach of contract, the Plaintiff may bring this cause of action for specific performance. The Defendant argues that the Plaintiff cannot bring the first cause of action for breach of contract and the second cause of action for specific performance because they are different remedies for the same breach. However, case law permits plaintiffs to plead inconsistent or alternative counts. Rader Co. v. Stone (1986) 178 Cal. App. 3d 10, 29. Here, the Plaintiff may seek damages in its first cause of action and then seek specific performance in its second cause of action as an alternative count. Accordingly, the Plaintiff has pleaded sufficient facts to show that he has no adequate remedy at law and the Court should deny the Defendants motion for a judgment on the pleadings with regards to the second cause of action. Therefore, the Court denies the Defendants motion for a judgment on the pleadings in its entirety. * TENTATIVE RULING: *

Case Management Conference The Complaint alleges that the Defendants are improperly attempting to foreclose on the Plaintiffs property because the Defendants do not have the right to foreclose. Further, the Defendants failed to attempt to contact the Plaintiffs before they began to initiate the foreclosure proceeding. The Complaint alleges causes of action for: 1) Breach of Contract (against OneWest and MERS); 2) Declaratory Relief (against all Defendants); 3) Breach of Covenant of Good Faith and Fair Dealing (against OneWest and MERS); 4) Unlawful, Unfair, and Fraudulent Business Practice (against OneWest and MERS); 5) Quiet Title (against OneWest and MERS); 6) Accounting (against OneWest and MERS). The Plaintiffs filed their complaint on October 15, 2010. The Plaintiffs then filed on October 18, 2010 an ex parte application for a temporary restraining order and an OSC regarding a preliminary injunction to prevent the sale of the Plaintiffs property. The Defendants had set the sale date for October 19, 2010. On October 18, 2010, the Court issued a temporary restraining order to prevent the sale of the property. On November 19, 2010, the Court issued a preliminary injunction and ordered the Plaintiff to pay a $5,000 undertaking plus make monthly payments of $1,268.21 to One West Bank, commencing on December 1, 2010. This hearing concerns the demurrer of Defendants, Onewest Bank, FSB and MERS, to each of the causes of action in the complaint. 1. Tender Rule To plead any cause of action for irregularity in the sale procedure, there must be allegations showing that the plaintiff tendered the amount of the secured indebtedness to the Defendant. Abdallah v. United Sav. Bank (1996) 43 Cal. App. 4th 1101, 1109 (affirming an order sustaining a demurrer without leave to amend in a case claiming that the foreclosure and sale of a home was improper). There are federal cases interpreting California law that find that plaintiffs must plead that they tendered their debt to enjoin a pending foreclosure. In Anaya v. Advisors Lending Group, 2009 U.S. Dist. LEXIS 68373 (E.D. Cal. Aug. 3, 2009), the plaintiff sought to halt a pending foreclosure sale and to quiet title in her property. The Court found that the complaint's absence of allegations of a tender to cure defaults made it defective and subject to

dismissal. Further, the Court found that the plaintiff had offered nothing to indicate that she is able to tender her debt to warrant disruption of nonjudicial foreclosure. Accordingly, the Court dismissed the plaintiffs complaint. In Alicea v. GE Money Bank, 2009 U.S. Dist. LEXIS 60813, 7-8 (N.D. Cal. July 15, 2009), the Court held when a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure. Since the plaintiff had not pleaded tender, the Court dismissed her claims. A review of the pleadings reveals that the Plaintiffs allege in paragraphs 27, 36, and 45 that they offer to tender any amounts due on the note. This is insufficient to plead tender because a valid tender must be nothing short of the full amount due the creditor. Gaffney v. Downey Sav. & Loan Ass'n (1988) 200 Cal. App. 3d 1154, 1165. The Court of Appeal found that the following summary of the tender rule describes this requirement: The rules which govern tenders are strict and are strictly applied, and where the rules are prescribed by statute or rules of court, the tender must be in such form as to comply therewith. The tenderer must do and offer everything that is necessary on his part to complete the transaction, and must fairly make known his purpose without ambiguity, and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction. Id. The Plaintiffs allegation is not a tender of the full amount due without ambiguity. The Plaintiff does not identify the amount and then plead that that she tendered this amount to the Defendant. Without such details, it is not possible for the Defendant to accept the tender because it cannot determine what, if anything, the Plaintiff has tendered. Further, the Plaintiff does not allege that they had the ability to tender the full amount due. The Plaintiff cannot circumvent the tender rule with a conclusory allegation that they offer to tender the full amount due because the act of tender must be such that it needs only acceptance by the Defendant to complete the transaction. Accordingly, the Plaintiffs have not satisfied the tender rule. Therefore, the Plaintiffs failure to satisfy the tender rule is grounds for a demurrer to the first, third and fifth cause of action to the complaint.

2. Second Cause of Action for Declaratory Relief (against all Defendants) The Defendants argue that the cause of action does not plead sufficient facts to identify an actual controversy. It is general rule that in an action for declaratory relief, the complaint is sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a contract or to property and requests that the rights and duties be adjudged. City Of Tiburon v. Northwestern Pac. R.R. Co. (1970) 4 Cal. App. 3d 160, 170. If these requirements are met, the Court must declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to a favorable declaration. Declaratory relief is a broad remedy, and the rule that a complaint is to be liberally construed is particularly applicable to one for declaratory relief. Further, a demurrer is a procedurally inappropriate method for disposing of a complaint for declaratory relief. Lockheed Martin Corp. v. Continental Ins. Co. (2005) 134 Cal. App. 4th 187, 221. This is based on the reasoning that an order sustaining the demurrer would leave the parties where they were, with no binding determination of their rights, to await an actual breach and ensuing litigation. This would defeat a fundamental purpose of declaratory relief, which is to remove uncertainties as to legal rights and duties before breach and without the risks and delays that it involves. The object of declaratory relief is not necessarily a beneficial judgment; instead, it is a determination, favorable or unfavorable, that enables the plaintiff to act with safety. This reasoning has established the rule that the defendant cannot, on demurrer, attack the merits of the plaintiff's claim. Thus, a complaint is sufficient if it shows an actual controversy; it need not show that plaintiff is in the right. In paragraph 25, the Plaintiff alleges that an actual controversy exists between the Plaintiffs and Defendants regarding the subject property. This controversy is based on allegations regarding the Plaintiffs payments on the note and whether the foreclosure proceedings are proper. In paragraph 26, the Plaintiff requests that the Court adjudge the rights and duties of the parties to the property. This is sufficient to plead the cause of action because, as noted above, the complaint need not show that the Plaintiff is in the right. Therefore, the Court overrules the demurrer to the second cause of action. 3. Fourth Cause of Action for Unlawful, Unfair, and Fraudulent Business Practice (against OneWest and MERS)

The Defendant argues that this cause of action lacks allegations identifying a statute that was violated. The Plaintiffs seek relief under Business and Professions Code section 17200, which defines unfair competition to be any unlawful, unfair, or fraudulent business practice. In order to plead a claim under Business and Professions Code section 17200, there must be allegations showing an unlawful, unfair, or fraudulent business act or practice. Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal. App. 4th 659, 676677. This includes anything that can properly be called a business practice and that at the same time is forbidden by law. Id. Finally, the pleadings must state with reasonable particularity the facts supporting the statutory elements of the violation. Khoury v. Maly's of California, Inc. (1993) 14 Cal. App. 4th 612, 619. This includes the particular section of a statutory scheme that was violated and the particular facts showing that the statute was violated. Id. The Plaintiff alleges in paragraph 33 that the acts that violated section 17200 were the following: 1) the Defendants failure to comply with Civil Code section 2923.5; 2) the Defendants act of continuing to engage in foreclosure proceedings after accepting monies from the Plaintiffs in violation of Civil Code section 2924 et seq. First, the Plaintiffs cannot rely upon Civil Code section 2923.5 because subsection (i) provides that section 2923.5 shall apply only to mortgages or deeds of trust recorded from January 1, 2003, to December 31, 2007, inclusive. A review of the deed of trust in exhibit 3 of the pleadings reveals that it is dated January 23, 2008. Accordingly, the Defendants were not required to comply with this section. Second, a review of Civil Code section 2924 et seq. reveals no code section that prevents the Defendants from continue to engage in foreclosure proceedings after accepting monies from the Plaintiffs. Civil Code section 2924c provides that a trustor has a right to cure a default and reinstate a loan at any time within the period commencing with the date of recordation of the notice of default until five business days prior to the date of sale set forth in the initial recorded notice of sale. The Plaintiffs, however, do not plead that they cured the default. Acceptance of a partial payment after declaration of acceleration does not preclude the completion of a pending foreclosure. Bisno v. Sax (1959) 175 Cal. App. 2d 714, 724. Since the Plaintiffs do not plead that they cured the default, the payment of monies to the Defendants did not preclude them from completing the pending foreclosure. Accordingly, the Plaintiffs fourth

cause of action fails to state sufficient facts because they do not identify a code section that the Defendants violated. Therefore, the Court sustains the demurrer to the fourth cause of action because the Plaintiffs do not plead any particular facts identifying a statute and the manner in which the Defendants violated the statute. The Plaintiffs did not file any opposition papers to demonstrate that they can correct these defects by amendment 4. Sixth Cause of Action for Accounting (against OneWest and MERS) The Defendants argue that there is no basis for an accounting in this action. The sixth cause of action for accounting claims that the amount that the Plaintiffs owed to the Defendants is unknown. It identifies no other basis for an accounting. Under California law, a request for an accounting may be dispensed with unless the right to an accounting is established. Baxter v. Krieger (1958) 157 Cal. App. 2d 730, 732. . In order to plead a cause of action for accounting, the pleadings must state facts showing the existence of the relationship which requires an accounting and the statement that some balance is due the plaintiff. Raymond v. Independent Growers, Inc. (1955) 133 Cal. App. 2d 154, 160. The Plaintiffs cause of action does not identify any relationship that requires an accounting. Further, it does not plead that some balance is due to the Plaintiffs. Instead, the Plaintiffs allege that the amount that the Plaintiffs owe to the Defendants is unknown and that the Defendants owe the Plaintiffs is unknown. Since there are no allegations identifying any basis to find that the Defendants owe money to the Plaintiffs in circumstances in which the Defendants are foreclosing on the Plaintiffs property because the Plaintiffs failed to pay all amounts due, the Plaintiffs have failed to state sufficient facts to support their cause of action for an accounting. Therefore, the Court sustains the demurrer to the sixth cause of action because the Plaintiffs do not plead any facts demonstrating that they had a relationship with the Defendants that required an accounting or that some balance is due to the Plaintiffs. The Court will grant 10 days leave to amend this cause of action. * TENTATIVE RULING: * Demurrer to the first cause of action for violation of Civil Code sections 2923.5 and 2934a is overruled. Plaintiff has adequately alleged that the

requirements of those statutes were not met and the court, on demurrer, is required to assume the truth of the allegations. Demurrer to the second cause of action for fraud is sustained. There are no allegations of misrepresentations or false promises made to plaintiff, upon which plaintiff justifiably relied. Nor does the complaint plead how, what, where, to whom and by what means (orally or in writing) that defendants made the misrepresentations. In addition, as to the corporate defendants, the complaint fails to allege the name of the person who made the misrepresentation and his or her authority to speak for the corporation. See generally, Lazar v. Superior Court (1996) 12 Cal.4th 631. Demurrer to the third cause of action for violation of Business & Professions Code section 17200 is sustained for failure to allege that plaintiff has suffered injury in fact due to the alleged unfair practice. Ten days leave to amend. CRC Rule 3.1320(g). * TENTATIVE RULING: * The hearing on the motion of Defendant County of Los Angeles to compel appearance at deposition by custodian of records for R. Rex Parris Law Firm per deposition subpoena is CONTINUED to ______________________________ at 8:30 a.m. in Department A-11. The hearing on the motion of defendant County of Los Angeles to compel production of documents per deposition subpoena from nonparty witness XXXXXXXX is CONTINUED to ____________________________ at 8:30 a.m. in Department A-11. The Court orders the R. Rex Parris Law Firm, through one of its custodians of records, to produce any and all correspondence from R. Rex Parris Law Firm to plaintiff XXXXXXXXXXXXXX and/or third party YYYYYYYYY during the months of April 2007 and May 2007 for an in camera review by the Court on ___________________________ at 8:30 a.m. in Department A-11. Should the Court find all or part of the information contained in such correspondence, if any, to be relevant and discoverable, such information shall be disclosed in the course of the litigation with the Court conducting further proceedings as necessary and appropriate. STATEMENT OF DECISION: 1. On December 13, 2010,Plaintiff filed her first amended complaint against

defendants County of Los Angeles and Does 1 to 100, asserting one cause of action in negligence with counts sounding in negligent roadway design, dangerous condition of public property and failure to inspect. Plaintiff alleged the defendants negligently designed, constructed and maintained a stretch of roadway near the intersection of Palmdale Boulevard and 230th Street East in the Antelope Valley, causing Plaintiffs vehicle to overturn after she lost control of the vehicle while traveling on the roadway on April 21, 2007. 2. On September 14, 2011, Defendant County of Los Angeles (Defendant) filed a motion to compel production of documents per deposition subpoena from non-party witness Celina XXXXXXX (XXXXXXX), Plaintiffs mother. 3. On September 20, 2011, Defendant filed a motion to compel appearance at a deposition by the custodian of records for the R. Rex Parris Law Firm (the Parris firm) per deposition subpoena. 4. On October 06, 2011, Plaintiff filed her oppositions to Defendants motions to compel production of documents per deposition subpoena from non-party witness Celina XXXXXXX and to compel appearance at deposition by custodian of records for the Parris firm per deposition subpoena. 5. On October 06, 2011, the Parris firm filed its opposition to Defendants motion to compel appearance at deposition by custodian of records for the Parris firm per deposition subpoena. 6. Discussion Code of Civil Procedure 2025.480 provides: (a) If a deponent fails to answer any question or to produce any document or tangible thing under the deponents control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production. [] (b) This motion shall be made no later than 60 days after the completion of the record of the deposition . . . . [] (c) Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing . . . . [] (d) Not less than five days prior to the hearing on this motion, the moving party shall lodge with the court a certified copy of any parts of the stenographic transcript of the deposition that are relevant to the motion . . . . In particular, Defendant requests that XXXXXXX be ordered to produce correspondence from the Parris firm in which the firm, pursuant to a consultation with XXXXXXX, declined to represent Plaintiff. 7. Defendant concedes the attorney-client privilege attaches to an attorneys communications with a prospective client when the clients dominant purpose in attempting to retain the attorney was to obtain a legal opinion or legal advice (see Evid. Code 952, 954), but argues the privilege has been

waived. Plaintiff and the Parris firm assert the correspondence sought is absolutely privileged and that no waiver has occurred here. Having reviewed the record and all competent and admissible evidence submitted, the Court is compelled to agree with Defendant. 8. As a threshold matter, Defendant contends XXXXXXX waived the privilege by testifying at her deposition that she had consulted with the Parris firm regarding her daughters accident. Not necessarily. Evidence Code 912 provides in pertinent part, (a) Except as otherwise provided in this section, the right of any person to claim a privilege provided by Section 954 (lawyerclient privilege) . . . is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has the legal standing and opportunity to claim the privilege. (Emphasis added.) While the evidence clearly shows XXXXXX communicated with the Parris firm, there is no evidence in the record that XXXXXXX or Plaintiff consented to disclosure of a significant part of those communications, and nothing in the portion of the transcript submitted as evidence by Defendant suggests XXXXXXX disclosed a significant part of those communications at her deposition. (The Court is confident that if some portion of the transcript had evidenced such a disclosure, Defendant would have provided it.) Therefore, inasmuch as XXXXXXs deposition testimony is concerned, the Court finds XXXXXXX has waived the privilege only to the extent of the portions of the subject correspondence referencing the Parris firms refusal to represent Plaintiff, but not to any portions of the correspondence relating to legal opinions or legal advice the firm may have given to Plaintiff or XXXXXXX. 9. However, Plaintiff waived the privilege as to the entirety of the correspondence by filing a petition for relief from the Tort Claims Act filing requirement. 10. Plaintiff filed her petition for relief in Department 85 (the Honorable James C. Chalfant, presiding) on July 17, 2008, arguing her failure to present a timely claim was due to excusable neglect and/or incapacity under Government Code 946.6. Judge Chalfant denied the petition and the Court of Appeal reversed. XXXXXX v. County of Los Angeles, 184 Cal.App.4th 1373 (2010). 11. One of the questions presented to the XXXXXX court was whether a bright-line rule applies barring a finding of excusable neglect if the claimant

did not attempt to contact an attorney within the six-month [limitations] period [of Government Code 911.2, subdivision (a)]. XXXXXX, supra, 184 Cal.App.4th at 1381. Distinguishing People ex rel. Dept. of Transportation v. Superior Court, 105 Cal.App.4th 39 (2003) (Isenhower), which held that a relatively short stay in the hospital and cursory, unsubstantiated allusions to self-diagnosed post-accident depression by an injured plaintiff were insufficient to warrant relief on ground of excusable neglect (id. at 46), the XXXXXXX court concluded there was not: [T]here is no absolute rule barring excusable neglect when the claimant has failed to obtain counsel during the six-month period. If a claimant can establish that physical and/or mental disability so limited the claimants ability to function and seek out counsel such that the failure to seek counsel could itself be considered the act of a reasonably prudent person under the same or similar circumstances, excusable neglect is established. We recognize, however, that every claimant is likely to be suffering from some degree of emotional upset, and it takes an exceptional showing for a claimant to establish that his or her disability reasonably prevented the taking of necessary steps. XXXXXXX, supra, 184 Cal.App.4th at 1385. From this the court reasoned: XXXXXXX spent the first three months in the hospital, and the remainder of the sixmonth period confined to her bed at home. Depressed, in pain, and under the influence of medication, XXXXXXXs attention was directed toward relearning the basic tasks of everyday life, such as eating, holding a toothbrush, and controlling her elimination of waste. During that six-month period, she was unable to even sit up without assistance, and did not so much as leave her bedroom to watch television . . . . We therefore conclude that excusable neglect has been established. Id. at 1385-86. 12. Problematically for Plaintiff, the recitation of facts in the Second Districts opinion suggests that the record on appeal did not contain evidence of the April/May 2007 communications between XXXXXXX and the Parris firm, most likely because such evidence was never presented to Judge Chalfant. (Exhibits submitted by Defendant suggest the communications were first disclosed in declarations executed by XXXXXXX and Robert Parris of the Parris Firm on February 10, 2010 and submitted as part of Plaintiffs motion for limited remand on February 16, 2010 well after the record on appeal was filed on September 25, 2009.) Indeed, the language of the opinion suggests the Second District was operating under the impression that Plaintiff decided to contact an attorney about her accident only after seeing a commercial for attorneys in February 2008. XXXXXXX, supra, 184 Cal.App.4th at 1379. Plaintiffs failure to disclose evidence of her mothers communications with the Parris firm with her petition for relief and appeal of the trial courts denial of that petition could be construed as a fraud on the courts and, depending on what the Parris firm told XXXXXXX, is potentially a basis for reconsideration of Judge Chalfants order granting relief on remand.

13. A person or entity seeking to discover privileged information can show [an implied] waiver by demonstrating that the client has put the otherwise privileged communication directly at issue and that disclosure is essential for a fair adjudication of the action. Southern Cal. Gas Co. v. Public Utilities Com., 50 Cal.3d 31, 40 (1990). In her first amended complaint, Plaintiff asserted that Defendant was negligent, and one of the allegations supporting her claim for damages was that she complied with the claims notice provisions of Government Code, s. 954.4, by presenting a claim to the County and having that claim rejected by the County prior to filing this action. (While Defendant asserts the claim filing requirement may be raised as an affirmative statute of limitations defense, the requirement is actually a condition precedent to maintaining a cause of action and is therefore an element of a plaintiffs cause of action. K.J. v. Arcadia Unified School Dist., 172 Cal.App.4th 1229, 1238 (2009).) Plaintiff then filed a petition for relief from the claim filing requirement on ground of excusable neglect and incapacity, arguing she was ignorant of the filing requirement, had no reason to suspect she had a claim against Defendant and that her physical and mental condition were so significant as to preclude her from filing a claim or authorizing someone to file a claim on her behalf until April 2008. 14. However, the evidence now shows XXXXXXXX communicated with the Parris firm regarding Plaintiffs accident as early as April 2007. Under these circumstances, disclosure of the substance of these communications is essential to a fair adjudication of the action because if, for example, the evidence showed Plaintiff was able to authorize XXXXXXX to contact attorneys on her behalf, and that such attorneys had informed XXXXXXX or Plaintiff of any impending claim filing deadlines with which they were required to comply, Plaintiff could not have justifiably claimed excusable neglect or incapacity in her petition for relief. It is difficult for this Court to envision how Plaintiffs assertions would have been consistent with a claim of excusable neglect (or even ignorance) if the Parris firm had informed her or other mother they had to file a timely claim in order to preserve any causes of action they may have had against Defendant. Therefore, having put the circumstances surrounding her petition for relief at issue, including what she or XXXXXXX may have been told by the Parris firm attorneys (i.e., the attorneys mental states), Plaintiff has waived any privilege with respect to the subject correspondence. See Merritt v. Superior Court, 9 Cal.App.3d 721, 730 (1970); see also Chicago Title Ins. Co. v. Superior Court, 174 Cal.App.3d 1142, 1150 (1985)(doctrine of implied waiver is applicable to the situation in which a client has placed in issue the decisions, conclusions, and mental state of the attorney who will be called as a witness to prove such matters).

15. Based on the foregoing, the hearing on the motion of defendant County of Los Angeles to compel appearance at deposition by custodian of records for R. Rex Parris Law Firm per deposition subpoena is CONTINUED to ______________________________ at 8:30 a.m. in Department A-11. 16. The hearing on the motion of defendant County of Los Angeles to compel production of documents per deposition subpoena from nonparty witness Celina XXXXXXX is CONTINUED to ____________________________ at 8:30 a.m. in Department A-11. 17. The Court orders the R. Rex Parris Law Firm, through one of its custodians of records, to produce any and all correspondence from R. Rex Parris Law Firm to plaintiff Veronica XXXXXXX and/or third party Celina XXXXXXX during the months of April 2007 and May 2007 for an in camera review by the Court on ___________________________ at 8:30 a.m. in Department A-11. 18. Should the Court find all or part of the information contained in such correspondence, if any, to be relevant and discoverable, such information shall be disclosed in the course of the litigation with the Court conducting further proceedings as necessary and appropriate. * TENTATIVE RULING: * The motion of plaintiff Capital One Bank (USA), N.A., for summary judgment is GRANTED. STATEMENT OF DECISION: 1. On February 04, 2011, plaintiff Capital One Bank (USA), N.A. (hereinafter referred to as Plaintiff), filed its complaint for money against Defendant and Does 1 through 5, inclusive. 2. On August 10, 2011, Plaintiff filed a motion for summary judgment. 3. On October 11, 2011, Defendant filed his opposition to Plaintiffs motion for summary judgment. 4. Standard for summary judgment A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. Code Civ. Proc., 437c(a). To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

Code Civ. Proc., 437c(c). In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute. For purposes of motions for summary judgment and summary adjudication: [] (1) A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on that cause of action. Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The defendant or cross-defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. Code Civ. Proc., 437c(p)(1). 5. [H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial. Again, in Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, we held to the effect that the placement and quantum of the burden of proof at trial were crucial for purposes of summary judgment. [Citation.] . . . Thus, if a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact. Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 851 (2001). Summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action . . . . All that the plaintiff need do is to prove[ ] each element of the cause of action[.] Id. at 841. 6. The burden of persuasion remains with the party moving for summary judgment. Aguilar, supra, 25 Cal.4th at 850, 861. When the defendant moves for summary judgment in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must accomplish at least one of two things. First, the defendant must present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that the material fact was true. Id. at 851. In the alternative, the defendant must demonstrate that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain needed evidence. Id. To obtain summary judgment, a defendant may conclusively negate an essential element of plaintiffs causes of action. However, a defendant is not

required to do so. Aguilar, supra, 25 Cal.4th at 853. Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff's cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial. Biscotti v. Yuba City Unified School Dist., 158 Cal.App.4th 554, 557-58 (2007). 7. When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving partys evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. Murillo v. Rite Stuff Food Inc., 65 Cal.App.4th 833, 841 (1998). In determining whether the facts give rise to a triable issue of material fact, [a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment . . . . Gold v. Weissman, 114 Cal.App.4th 1195, 1198-99 (2004). In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true. Jackson v. County of Los Angeles, 60 Cal.App.4th 171, 179 (1997). 8. Having reviewed the moving and opposing papers and all competent and admissible evidence submitted, the Court finds there are no triable issues of material fact and Plaintiff is entitled to judgment as a matter of law. The Court bases its ruling on Plaintiffs separate statement of undisputed facts, nos. 1 through 11 and the evidence referred to therein. 9. Based on the foregoing, the motion of plaintiff Capital One Bank (USA), N.A., for summary judgment is GRANTED. * TENTATIVE RULING: * Defendant DEUTSCHE BANK NATIONAL TRUST COMPANY as trustee etc.'s demurrer is ORDERED OFF CALENDAR. The right to dismiss with or without prejudice exists "at any time before the actual commencement of the trial". CCP 581(b)(1). Plaintiff requested dismissal without prejudice on October 20, 2011. Even though an unopposed dispositive motion was pending, the ruling had not been made. Plaintiff retains the right to dismiss until the trial court rules on a pending motion. Kyle v. Cannon (1999) 71 Cal. App. 4th 901, 915 (referring to the Supreme Court's comment in Wells v. Marina City Properties, Inc. (1986) 29 Cal. 3d 781, 789, that the right of voluntary dismissal "would also not be impaired prior to a decision sustaining a demurrer.")

* TENTATIVE RULING: * Demurring Party: Defendants Bank of America, ReconTrust Company, N.A., and U.S. Bank, N.A. Responding Party: None on File (Due by October 11, 2011 to be timely) SUSTAIN DEMURRER ANALYSIS Defendants Bank of America N.A., in its own right and as successor by merger to BAC Home Loans Servicing, LP, ReconTrust Company, N.A and U.S. Bank, National Association as Trustee for the Benefit of Harborview 2005-12 Trust Fund (collectively defendants) demur to the complaint filed in this action against defendants by plaintiff Aruna Sharma, and to each causes of action asserted therein against defendants. The demurrer is brought pursuant to CCP 430.10(e) on the grounds that the complaint fails to state facts sufficient to constitute any cause of action against defendants. Demurrer based on Uncertainty: Defendants demur to the complaint and each of the causes of action therein on the ground that the pleading is uncertain. The complaint herein asserts five causes of action against all four defendants named in the complaint, but the allegations are general, without any specific factual allegations to demonstrate how each defendant is responsible for the causes of action asserted. The complaint is so uncertain that defendants cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against defendants. (Khoury v. Maly's of Calif., Inc. (1993) 14 Cal.App.4th 612, 616. Thus, demurrer based on uncertainty is sustained. First Cause of Action for Violation of CC 2923.5: CC 2923.5, requires a lender or its agent to attempt to contact a defaulted borrower prior to foreclosure. Section 2923.5(a)(2) requires a mortgagee, beneficiary or authorized agent to contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. Section 2923.5(b) requires a default notice to include a declaration from the mortgagee, beneficiary, or authorized agent of compliance with section 2923.5, including attempt with due diligence to contact the borrower as required by this section. The complaint herein fails to adequately allege facts demonstrating that

defendants violated the CC 2923.5. While the complaint alleges that defendants have used deceitful measures and have not worked diligently on the loan modification within the last year, CC 2923.5 does not require defendants to modify plaintiffs loan. Thus, the demurrer to the first cause of action is sustained. Second Cause of Action for Misrepresentation/Fraud: The elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) damages. (See CC 1709.) Fraud actions are subject to strict requirements of particularity in pleading. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) A plaintiff must allege what was said, by whom, in what manner (i.e. oral or in writing), when, and, in the case of a corporate defendant, under what authority to bind the corporation. (See Goldrich v. Natural Y Surgical Specialties, Inc. (1994) 25 Cal.App.4th 772, 782.) The complaint fails to adequately allege fraud with the required specificity. The complaint fails to identify what was said, by whom, when, and under what authority to bind the corporation. The complaint also fails to adequately allege an actionable misrepresentation, plaintiffs reliance and damages. Thus, the demurrer to the second cause of action is sustained. Third Cause of Action for Validity of Loan: Plaintiff appears to allege that the subject loan is invalid as a result of the beneficial interest to U.S. Bank. However, the judicially noticed documents demonstrate that the proper procedures for non-judicial foreclosure were followed. (RJN, Exhibits 1-4.) Plaintiff also alleges that MERS is prohibited by Law. However, California courts have repeatedly upheld the ability of MERS to institute non-judicial foreclosures. The authority of the lender's (beneficiary's) nominee to initiate nonjudicial foreclosure proceedings is beyond judicial challenge notwithstanding the fact the nominee merely holds legal title to the subject property and is not the owner of the underlying promissory note. (Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1154authority of lender's nominee (MERS) to initiate foreclosure proceedings could not be challenged where trust deed named lender's nominee and granted it foreclosure rights; see also Ferguson v. Avelo Mortgage, LLC (2011) 195 Cal.App.4th 1618, 16261627not only may lender's nominee initiate foreclosure without possessing note, nominee may invoke tender rule against any defaulting borrower who challenges proceeding (i.e., require borrower to make unconditional offer to fully

perform with intent to extinguish obligation); Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 271trust deed beneficiary (MERS), acting as lender's nominee, had authority to assign lender's interest in both trust deed and underlying note, thereby empowering assignee to initiate foreclosure proceeding.) Thus, the demurrer to the third cause of action is sustained. Fourth Cause of Action for Extortion of Loan and Property: Plaintiffs forth cause of action appears to be derivative of her other claims and thus, fails for the same reasons. Accordingly, the demurrer to the fourth cause of action is sustained. Fifth Cause of Action for Injunctive Relief: Injunctive relief requires a wrongful act stating a cause of action and basis for equitable relief (e.g., ordinarily irreparable harm must be threatened, or a remedy at law is inadequate). (Brownfield v. Daniel Freeman Marina Hosp. (1989) 208 Cal. App. 3d 405, 410.) The complaint fails to adequately allege a wrongful act by defendants as a basis for the injunction. Thus, the demurrer to the fifth cause of action is sustained. Based on the above, plaintiff shall have 10 days leave to amend causes of action one, two, three, four and five. * TENTATIVE RULING: * MOVING PARTY: Defendant JP Morgan Chase Bank N.A. as Successor in Interest to EMC Mortgage Company RESPONDING: Plaintiff Defendants demurrer is overruled. I. Discussion Chase demurs primarily that Plaintiff cannot prevail on his complaint because Plaintiff alleges that he conveyed the property to Fadila Spahi in April 5, 2007 (Complaint, 8), and according to the deed of trust, In the event the herein described property or any part thereof, or any interest therein is sold, agreed to be sold, conveyed or alienated by the Trustor, or by the operation of law or otherwise, all obligations secured by this instrument, irrespective of the maturity dates expressed therein, at the option of the Beneficiary hereof and without demand or notice shall immediately become due and payable. RJN, Exh. 1, at 1. Chase argues that there is no actual controversy and that Plaintiff fails to seek adjudication of

future rights and liabilities (as opposed to past wrongs) as required to state a cause of action for declaratory relief here because Plaintiff sold the Subject Property to Fadila Spahi in 200[7] but failed to inform the lender of the sale and failed to inform the lender of the assignment to Fadila Spahi and further, that Plaintiff had no right to assign his rights without the lender[s] approval and that Plaintiff failed to obtain that approval. See Demurrer, 6:8-8:5. The demurrer is overruled for two reasons. The first reason is that Plaintiff seeks declaratory relief on more than just the sole issue of whether the promissory note is enforceable against him, though the court agrees that that is the main issue presented. Complaint, 12-19, 24-26; see also Opposition, 4:1-9. Plaintiff also seeks declaratory relief, however, on whether the loan is voidable because EMC failed to comply with Corporations Code section 2011, as well as whether EMC engaged in activities requiring a real estate brokers license, and therefore whether the notice of default against Plaintiff is proper. Complaint, 20, 26. A demurrer does not lie to a portion of a cause of action. PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682. Second, a demurrer is limited to objections appearing on the face of the complaint, or from any matter of which the court is required to or may take judicial notice. CCP 430.30. It is not the appropriate procedure for determining the truth of disputed facts. Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 364-65 (quoting Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113). Plaintiff does allege that after he purchased the property in 2005, he assigned his interest in Unit 1103B at 201 Ocean to nonparty Fadila Spahi as Trustee of the Cacciatori Trust on April 5, 2007, with Spahi agreeing to assume the obligation incurred by Joseph Plaintiff . . . . Complaint, 8. Plaintiff also alleges that when Fadila Spahi passed on December 22, 2007, Omar Spahi became the successor trustee to the Cacciatori Trust. Id., 9. And that Omar Spahi eventually transferred the property to himself, as an individual on November 20, 2009. Id., 11. Plaintiff does not allege or admit, however, that he did not inform the lender of the sale or inform the lender of the assignment to Fadila Spahi or that Plaintiff did not obtain approval from defendant for the sale/assignment. Cf. Demurrer, 6:8-8:5. These are facts that Chase is introducing, for the first time in this action, by demurrer. When, however, any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer, not by demurrer which is limited to the face of the pleading. CCP 430.30. Furthermore, Plaintiff alleges that defendant ratified the sale/assignment after the fact. Complaint, 12-18, 24-26. So even if Plaintiffs promissory note because due and payable per the deed of trust provision cited upon sale, Plaintiff has alleged adequate facts to show that there is an actual and justiciable controversy under the promissory note

and securing deed of trust which will affect the future rights and liabilities between the parties. Chase fails to cite or discuss authority where a court, faced with a provision like the one in the deed of trust here (RJN, Exh. 1, at 1) and a competing ratification/estoppel claim, refused to consider the ratification claim based on the parties subsequent conduct and dismissed the complaint on demurrer. On reply, Chase argues that if there was an oral agreement to modify the promissory note it is not enforceable. See Civ. Code 1698(a). It is unclear from the complaint, however, whether plaintiff is alleging the written promissory note was modified by an oral agreement. Further, assuming plaintiff is alleging an oral modification, written contracts may be modified by an oral agreement to the extent the oral agreement is executed. Civ. Code 1698(b). Plaintiff alleges that the parties performed the oral modification, as evidenced substantively by defendants acceptance of continuing payments from the assignee, and failure to object at the assignees bankruptcy. Chase does not cite or discuss authority justifying the relief it seeks under the circumstances. Chase also moves to strike paragraph 6 of the plaintiffs prayer for relief, seeking attorneys fees. Plaintiff has not filed an opposition to the motion to strike to offer any contractual or other legal basis for such recovery. CCP 1021, 1033.5(a)(10). Chases motion to strike the reference to the recovery of attorneys fees in paragraph 6 of the prayer is unopposed and granted. * TENTATIVE RULING: * TRUST HOLDING v CHASE The demurrer of defendants JP Morgan Chase Bank N.A. and California Reconveyance Company to the complaint is SUSTAINED without leave to amend. Defense counsel is ordered to give notice. A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust. (Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112,117.) When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for foreclosure. (Alicea v. GE Money Bank (N.D.Cal. 2009) 2009 U.S. Dist. LEXIS 60813, 2009 WL 2136969.) Under California law, the tender rule requires that as a precondition to challenging a foreclosure sale, or any cause of action implicitly integrated to the sale, the borrower must make a valid and viable tender of payment of the secured debt. The application of the tender rule prevents a court from uselessly setting aside a foreclosure sale on a technical ground when the party making the challenge has not established

his ability to purchase the property. (Williams v. Countrywide Home Loans (N.D.Cal. 1999) 1999 U.S. Dist. LEXIS 14550, 1999 WL 740375.) The main relief sought by plaintiff is an order enjoining the non-judicial trustees sale of the property and an order declaring plaintiff the rightful owner of the property. Plaintiff has not opposed the demurrer and, as such, has cited no authority to show that tender of the indebtedness is not required in order to obtain such relief. Allegations that plaintiff was willing and able to tender funds and was prepared to make that tender if necessary to stop a foreclosure sale is not enough. Each of the four causes of action is based upon CHASEs alleged agreement with previous owner Shin to postpone the foreclosure sale upon plaintiffs submission of a complete Short Sale Offer. Plaintiff alleges that it performed all terms and conditions of the agreement, but CHASE has failed to honor the contract. Issues may arise as to whether a lender entered into a sufficiently ascertainable agreement to modify loan terms, or to forebear as to a loan, as opposed to preliminary negotiations or an incomplete agreement. Unless a so-called forbearance agreement embodies definite terms, capable of enforcement, it is not a legally valid contract. Preliminary negotiations or an agreement for future negotiations are not the functional equivalent of a valid, subsisting agreement. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 483; accord Keen v. Amer. Home Mortg. Servicing, Inc. (E.D.Cal. 2009) 664 F.Supp.2d 1086, 1099-1100.) A gratuitous oral promise to postpone a sale of property is unenforceable under the statute of frauds (Civil Code section 1698) in the absence of consideration. (Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 673, citing Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112, 121.) Moreover, there is nothing to show that plaintiff suffered actual damages, as a matter of law, from any oral promise of postponement. Misrepresentation, even maliciously committed, does not support a cause of action unless the plaintiff suffered consequential damages. (Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 159.) Any preliminary negotiations between previous owner Han Shin and CHASE only resulted in a Conditional Approval of Sales Contract. There is no allegation of a contract between CHASE and the Trust or that CHASE was ever notified that Ms. Shin had transferred the property to the Trust in June 2010. Plaintiffs claimed damages all relate to Shins inability to repay the loan, rather than any detriment caused by CHASEs agreement to the short sale if numerous conditions precedent were met. [I]f plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damage to the plaintiffs. (FPCI REHAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1022.) Plaintiff has not alleged any definite terms capable of enforcement, only that CHASE would not proceed or continue with the foreclosure process while the

previous owner Shin was attempting to comply with the conditions precedent for a short sale. The allegations demonstrate that the parties were in negotiations to avoid foreclosure, not that there are enforceable contractual obligations on either side. Second, there are no facts demonstrating the type of detrimental reliance needed to support promissory estoppel i.e., that plaintiff substantially changed its position either by act or forbearance in reliance on CHASEs alleged promise(s). Plaintiff alleges that it found two different short sale buyers, the first which was apparently rejected by CHASE after the Conditional Approval of Sales Contract letter was sent by CHASE on November 1, 2010. (Complaint, Exhibit C.) There is nothing to show that CHASE was somehow obligated to accept either short sale offer. There is also nothing to show that CHASE had any contract with plaintiff, that CHASE was notified of Ms. SHINs transfer of the property to plaintiff or that the conditional approval of the first alleged short sale applied to the subsequent short sale submitted in January 2011. These deficiencies result in a failure of each cause of action alleged in the complaint. Therefore, the demurrer is SUSTAINED without leave to amend. It is not up to the Court to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349; Hendy v. Losse (1991) 54 Cal.3d 723, 742.) Plaintiff has not opposed the demurrer and, as such, has failed to show what additional facts can be alleged to state proper causes of action.

MORE CALIFORNIA TENTATIVE RULINGS UD AND FORECLOSURES For the week of 10/17/2011 --

* TENTATIVE RULING: * The court sustains defendant Bank of America, N.A.s demurrer to all eight causes of action in plaintiffs second amended complaint, without leave to amend. Second Amended Complaint (SAC) Plaintiff is the owner of real property located in Carpinteria. Defendant Bank of America, N.A. (BOA) is the originator and current servicer of a loan secured by a first deed of trust (DOT) on the property. Defendant Chase Home Finance, LLC, is the originated and current servicer of a loan secured by second deed of trust. Defendant Recontrust Company is the trustee under the 1st DOT. It is unclear why plaintiff continues to name Chase as a defendant in the SAC. Plaintiff dismissed Chase on June 26, 2011, and has not filed any proof of service indicating that the court has regained personal jurisdiction over Chase. There is not a single substantive allegation in the SAC regarding any conduct by Chase. The causes of action in the SAC are 1) fraud, 2) unfair business practices, 3) breach of contract DOT/Note, 4) breach of the implied covenant of good faith and fair dealing, 5) quiet title, 6) declaratory relief, 7) lack of standing, and 8) violations of the Rostenthal Fair Debt Collection Practices Act. Plaintiff alleges that the DOT was improperly assigned to a nominee called Mortgage Electronic Registration Systems, Inc. (MERS). [SAC 9] In her individual causes of action, plaintiff alleges: 1) Fraud: BOA concealed from plaintiff the disastrous terms of the loan it recommended, lured plaintiff into a loan she could not afford, under variable terms that are nothing less than loan sharking, and on more unfavorable terms than should have been required for a conforming loan. BOA made sub-prime, no doc, stated income loans, that no borrower, including plaintiff, would hold through maturity. BOA engaged in this practice because high-yielding loans were actively sought on the secondary market. [SAC 14-16] Plaintiff was placed in a subprime loan despite credit scores that would have qualified her for a higher loan. The predatory nature of the loan forced plaintiff to attempt to refinance or face very large adjusted payments. [SAC 17] Plaintiff was told the loan could be easily refinanced by the originator but that turned out to be false. [SAC 19] The originator lured plaintiff into the loan with false assurances that she could afford the loan payments for 30 years. [SAC 20] BOA knew plaintiffs income would be insufficient to pay the loan payments after the fixed period of the loan expired. [SAC 22] The lender engaged in this activity so as to supply a steady pool of

mortgages that could be securitized and sold. [SAC 21] BOA engaged in a scheme to acquire servicing rights to predatory loans of borrowers, including plaintiff. [SAC 22] Plaintiff has attempted to obtain a permanent loan modification from BOA but BOA claimed to have lost information she sent. .BOA told her to stop making payments because she would receive attention once she was behind in payments. [SAC 26] She was not late with a payment until BOAs representations caused her to miss a payment. [SAC 27] Plaintiff vaguely refers to a trial plan but does not describe it. [SAC 29] BOAs fraud and predatory servicing have harmed plaintiff in that she has been making unfair mortgage payments. Had BOA acted promptly in responding to the permanent loan modification request, this would not have been necessary. [SAC 30] 2) Unfair Business Practices: In addition to the fraud allegations, Defendants have engaged in unfair business practices and unfair competition. They have failed to perform loss mitigation efforts, forced homeowners into default status to be considered for loan modifications, refused to recognize authorized agents, failed to process modification submissions, provided inaccurate information about options open to homeowners, refused to send written requests for information, failed to provide written notification of denial and reasons for denial, dual tracked by proceeding with foreclosure while a loan modification application was pending, provided contradictory and confusing information regarding the status of the foreclosure, misrepresented the legal importance of documents regarding foreclosure, engaged the services of robo-signers and default management providers, prioritizing speed over accuracy in the foreclosure process. [SAC 39] 3) Breach of Contract: Defendants breached the Note and DOT by failing to properly apply plaintiffs payments to her account, refusing to accept payments, charging late penalty fees and charges for payments not properly applied and payments defendants efused to accept, initiating and conducting a foreclosure when there was no breach by plaintiff, pyramiding late fees by charging a late fee for each monthly installment subsequent to the first alleged unpaid payment in violation of Civil Code 2954.4(b). [SAC 4952] 4) Breach of the Implied Covenant of Good Faith and Fair Dealing: Defendants manufactured a default by misapplying payments and refusing following payments, misrepresenting the importance and effect of correspondence and legal documents, charging fees not allowed under California law, obstructed plaintiffs ability to perform her obligations, engaged in fraud and predatory lending and servicing. [SAC 62-64] 5) Quiet Title: Based on the foregoing allegations, plaintiff seeks an order quieting her title and holding that defendants have no interest in the property. [SAC 73] 6) Declaratory Relief: The loan agreement is void for fraud, the trustees sale is improper because defendants are not the holders of the original note and

trust deed. Defendants failed to provide plaintiff will full disclosure of the terms of the notes, assignment, servicing and securitization of the loan, which made it impossible for plaintiff to refinance, renegotiate or modify the loans. [SAC 75] Plaintiff seeks a declaration of her rights and duties under the loan agreement, the validity of the loan and the defendants right to proceed with the foreclosure. [SAC 76] 7) Lack of Standing: BOA is not the holder or lawful assignee of the note. [SAC 80] Therefore, BOA has no constitutional standing to foreclose and cannot instruct Recontrust or any trustee to foreclose. [SAC 83] 8) Rosenthal Fair Debt Collection Practices Act: BOA failed to verify the debt after plaintiffs written dispute; failed to conduct a proper investigation of disputed payments and determine that there was no missed payment; proceeded to collect a debt that was not owed, using abusive tactics, including excessive phone calls and contacting plaintiff after 9:00 p.m.; demanded payment of invalid debt while refusing to accept payments; illegally charged late penalty charges for timely payments; and threatened foreclosure when defendants had no right to foreclose. [SAC 88] Plaintiff seeks a constructive trust over and restitution of monies collected by defendants, disgorgement of fees and profits, preliminary and permanent injunctions against the trustees sale and punitive damages. Demurrer BOA demurs on the ground that plaintiff has failed to state facts sufficient to constitute any of the alleged causes of action. The fraud claim is barred by the statute of limitation and is not pled with the requisite specificity. The UCL claim fails because plaintiff lacks standing and there is no predicate violation. The breach of contract claim fails because plaintiff admits she is in default. The breach of the covenant of good faith and fair dealing claim fails because plaintiff fails to allege the breach of any contract. The quiet title claim fails because plaintiff has not alleged tender. The declaratory and lack of standing claims fail because plaintiff does not state facts supporting any underlying actionable claim against BOA or actual controversy. Plaintiff has no private right of action to determine whether BOA is authorized to initiate foreclosure proceedings. In any event, recorded documents demonstrate that BOA has standing to initiate foreclosure. Plaintiffs Rosenthal Act claim fails because BOA is not a debt collector and plaintiff fails to allege any improper debt collection activity. Opposition: None Analysis: 1. Fraud: Most of plaintiffs allegations are conclusory and refer to practices of lenders in general without any specific allegation of conduct by this lender vis a vis this borrower. Plaintiffs less generalized allegations of representations are: BOA concealed from plaintiff the disastrous terms of the loan it recommended, lured plaintiff into a loan she could not afford, under variable terms that are nothing less

than loan sharking, and on more unfavorable terms than should have been required for a conforming loan. [SAC 14] Plaintiff was told the loan could be easily refinanced by the originator but that turned out to be false. [SAC 19] The originator lured plaintiff into the loan with false assurances that she could afford the loan payments for 30 years. [SAC 20] The limitation period for brining an action for fraud is three years. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake. CCP 338(d). Plaintiff alleges concealment and/or representations regarding the terms of the loan, that the loan could be easily refinanced and that she could afford the loan. These all date to the origination of the loan in February 2005. The terms of the loan and its affordability were determinable from the loan documents plaintiff executed. Plaintiff has not alleged that her discovery of the alleged fraud was delayed. She must do so with specificity. The discovery rule assumes that all conditions of accrual of the action -- including harm -- exist, but nevertheless postpones commencement of the limitation period until the plaintiff discovers or should have discovered all facts essential to his cause of action. CAMSI IV v. Hunter Technology Corp., 230 Cal.App.3d 1525, 1536 (1991) [citations omitted]. The word discovery as used in the statute is not synonymous with knowledge. And the court must determine, as a matter of law, when, under the facts pleaded, there was a discovery by the plaintiff, in the legal sense of that term. Consequently, an averment of lack of knowledge within the statutory period is not sufficient; a plaintiff must also show that he had no means of knowledge or notice which followed by inquiry would have shown the circumstances upon which the cause of action is founded. Bainbridge v. Stoner, 16 Cal.2d 423, 430 (1940). The discovery rule only delays accrual until the plaintiff has, or should have, inquiry notice of the cause of action. The discovery rule does not encourage dilatory tactics because plaintiffs are charged with presumptive knowledge of an injury if they have information of circumstances to put [them] on inquiry or if they have the opportunity to obtain knowledge from sources open to [their] investigation. [citation] In other words, plaintiffs are required to conduct a reasonable investigation after becoming aware of an injury, and are charged with knowledge of the information that would have been revealed by such an investigation. Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797, 807-808 (2005). The plaintiffs must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. Id. at 808. Plaintiff has made no effort to plead delayed discovery. Further, for the second consecutive demurrer, plaintiff has not bothered to oppose the demurrer and inform the court how her pleading might be sufficient or how it might be amended.

If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.] Hendy v. Losse, 54 Cal.3d 723, 742 (1991). The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. Lee v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 848, 854 (2003). The court will sustain the demurrer to the fraud cause of action without leave to amend. Even if the fraud cause of action were not time-barred, the court would sustain the demurrer. A party must plead fraud specifically; general and conclusory allegations do not suffice. Lazar v. Superior Court, 12 Cal.4th 631, 645 (1996). This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered. Id. The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure) of material fact; (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979, 990 (2004). Plaintiff has not pled fraud with specificity. She generally alleges conduct and representations, often in the passive voice with no identified person making the representation. To the extent she alleges concealment of loan terms, she must allege a duty to make disclosures. Linear Technology Corp. v. Applied Materials, Inc., 152 Cal.App.4th 115, 131 (2007). There are four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts. [Citation.] LiMandri v. Judkins, 52 Cal.App.4th 326, 336 (1997) [citations omitted]. A A lender is under no duty to determine the borrower's ability to repay the loan. Perlas v. GMAC Mortgage, LLC, 187 Cal.App.4th 429, 436 (2010). For failure to plead facts constituting the alleged fraud with sufficient particularity, the court sustains the demurrer. As noted above, plaintiff has made no effort to inform the court how she could amend her pleading to state this claim. The court will sustain the demurrer to the first cause of action without leave to amend. 2. Unfair Competition (UCL): A cause of action under B&P Code 17200 must allege a

business practice that is unlawful, unfair or fraudulent. This rule does not prohibit an action under the unfair competition law merely because some other statute on the subject does not, itself, provide for the action or prohibit the challenged conduct. Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal.App.4th 700, 720 (2001). The statute is interpreted broadly because unfair or fraudulent business practices may run the gamut of human ingenuity and chicanery. Motors, Inc. v. Times Mirror Co., 102 Cal.App.3d 735, 740 (1980). The test under section 17200 is that a practice merely be unfair. Allied Grape Growers v. Bronco Wine Co., 203 Cal.App.3d 432, 452 (1988). The court has discussed the other claims of fraud and statutory violations and found them wanting. Plaintiff has, therefore, failed to plead any underlying wrongful conduct that would support a UCL claim. A UCL claim can be prosecuted by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. B&P Code 17204. Therefore, to have standing to assert a claim under the UCL, a plaintiff must have suffered injury in fact and [have] lost money or property as a result of such unfair competition. Aron v. U-Haul Co. of California, 143 Cal.App.4th 796, 802 (2006). Plaintiff has not lost her property as the foreclosure has not been completed. Plaintiff alleges only that she has made payments. But payments on an existing obligation cannot constitute tort damages. Auerbach v. Great Western Bank, 74 Cal.App.4th 1172, 1185 (1999). The court will sustain the demurrer to the UCL cause of action without leave to amend. 3. Breach of Contract: To plead a cause of action for breach of contract, a plaintiff must plead the contract, his performance of the contract or excuse for nonperformance, defendants breach and the resulting damage. Otworth v. Southern Pacific. Transp. Co., 166 Cal.App.3d 452, 458 (1985). If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. Id. Plaintiff alleges that BOA breached the note and DOT failing to properly apply plaintiffs payments to her account, refusing to accept payments, charging late penalty fees and charges for payments not properly applied and payments defendants refused to accept, initiating and conducting a foreclosure when there was no breach by plaintiff, pyramiding late fees by charging late fee for each monthly installment subsequent to the first alleged unpaid payment in violation of Civil Code 2954.4(b). [SAC 49-52] But plaintiff does not set forth the material terms of the agreement. Specifically, she does not set forth the contractual provisions allegedly breached by these actions. Moreover, plaintiff has admitted that she did not make all payments due under the note. [SAC 27] As stated above, plaintiff has made no effort to

inform the court how, after three tries, she could amend her complaint to state a claim for breach of contract. The court will sustain the demurrer to the third cause of action without leave to amend. 4. Breach of the Implied Covenant of Good Faith and Fair Dealing: Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. Carma Developers (Cal.), Inc. v. Marathon Development California, Inc., 2 Cal.4th 342, 371 (1992), quoting Rest.2d Contracts, 205. The implied covenant of good faith and fair dealing is limited to assuring compliance with the express terms of the contract, and cannot be extended to create obligations not contemplated in the contract. Racine & Laramie v. Dep't of Parks & Rec., 11 Cal.App.4th 1026, 1032 (1992). [T]he covenant is implied as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct that frustrates the other party's rights to the benefits of the agreement. Waller v. Truck Ins. Exchange, Inc., 11 Cal.4th 1, 36 (1995). Therefore, absent a contractual right, the implied covenant has nothing upon which to act as a supplement, and should not be endowed with an existence independent of its contractual underpinnings. Id., quoting Love v. Fire Ins. Exchange, 221 Cal.App.3d 1136, 1153 (1990). Since plaintiff has not pled a breach of contract claim, she has not pled a claim for breach of the implied covenant of good faith and fair dealing. 5. Quiet Title: It is an equitable principle that a mortgagor of real property cannot, without paying his debt, quiet his title against the mortgagee. Miller v. Provost, 26 Cal.App.4th 1703, 1707 (1994). The cloud upon his title persists until the debt is paid. Aguilar v. Bocci, 39 Cal.App.3d 475, 477 (1974). Plaintiff has not alleged tender of the amount owed BOA. The court will sustain the demurrer to the Quiet Title cause of action without leave to amend. 6. Declaratory Relief: A cause of action for declaratory relief must fail as a matter of law if it depends upon other causes of action and those causes of action fail. Ratcliff Architects v. Vanir Construction Management, Inc., 88 Cal.App.4th 595, 607 (2001). This cause of action, therefore, must go the way of the preceding causes of action and the next one. The court will sustain the demurrer to the sixth cause of action without leave to amend. 7. Lack of Standing: Plaintiff simply alleges that BOA is not the holder or assignee of the note and has no interest in the note or deed of trust. Plaintiff has alleged that BOA is the lender. [SAC 2] The recorded DOT, of which BOA asks the court to take judicial notice identifies BOA as the lender and beneficiary of the DOT. [RJN Exh. A] Recontrust executed the recorded notice of default as agent for the beneficiary. [RJN Exh. B] BOA substituted

the trustee with Recontrust by a substitution of trustee recorded on April 23, 2010. [RJN Exh. C] Plaintiff alleges that the trustee was improperly assigned to MERS but alleges no evidentiary facts supporting that conclusion. [SAC 9] The conclusory allegation is contradicted by the recorded documents. It appears that plaintiff has assumed MERSs involvement because of its ubiquitous presence in other transactions and litigation. Under California Civil Code section 2924(a)(1), a trustee, mortgagee or beneficiary or any of their authorized agents may conduct the foreclosure process. Under California Civil Code section 2924b(b)(4), a person authorized to record the notice of default or the notice of sale includes an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee. Upon default by the trustor, the beneficiary may declare a default and proceed with a nonjudicial foreclosure sale. [Citation] Under Civil Code section 2924, no party needs to physically possess the promissory note. Gentsch v. Ownit Mortg. Solutions, Inc., supra, 2009 U.S. Dist. LEXIS 45163 at *14-*15 (E.D. Cal. 2009). [California] Civil Code sections 2924 through 2924k provide a comprehensive framework for the regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust. Moeller v. Lien, 25 Cal.App.4th 822, 830 (1994). In such a sale, no party needs to physically possess the promissory note. See Cal. Civ. Code 2924(a)(1) (trustee's sale may be conducted by the trustee, mortgagee, or beneficiary or any of their authorized agents). Because [t]he comprehensive statutory framework established to govern nonjudicial foreclosure sales is intended to be exhaustive, the Court cannot incorporate [the UCC's possession rule] into statutory nonjudicial foreclosure proceedings. Moeller, 25 Cal.App.4th at 834. Christopher v. First Franklin Fin. Corp., 2010 U.S. Dist. LEXIS 42932 *7 (S.D. Cal. 2010). It is clear that BOA has standing to foreclose. The court will sustain the demurrer to the seventh cause of action without leave to amend. 8. Rosenthal Fair Debt Collection Practices Act (RFDCPA): BOA contends that this cause of action fails because plaintiff does not allege that it is a debtor collector and, by law, it is not a debt collector coming within the definition under the Rosenthal Act. The term debt collector means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection. Civil Code 1788.2(c) [italics added]. The definition is materially different from the definition in the federal FDCPA 15 U.S.C. 1692a(6). Under [the Rosenthal Act] definition, and unlike the federal Fair Debt Collection Practices Act (FDCPA), debt collector includes creditors and mortgage servicers. McGrew v. Countrywide Home Loans, Inc., 628 F.Supp.2d 1237, 1242 (S.D. Cal. 2009). Another court has found that a loan

servicer that bills and collects payments on a debtors mortgage loan debt is a debt collector. Walters v. Fid. Mortg. of Cal., Inc., 730 F.Supp.2d 1185, 1203 (E.D. Cal. 2010). Cases on which BOA relies deal with the federal FDCPA. (In Ines v. Countrywide Home Loans, Inc., 2008 U.S.Dist.LEXIS 55245 (S.D. Cal. 2008), the court discussed the term debt collector under federal law and then summarily stated: The RFDCPA incorporates many provisions of the FDCPA. Plaintiff has not demonstrated how the RFDCPA affords Plaintiff more protection than the FDCPA. Id. at *6-*7 n1. The court did not address the Rosenthal definition of debt collector. Likewise, the court in Glover v. Fremont Inv. & Loan, 2009 U.S.Dist.LEXIS 117890, *24*25 (N.D. Cal. 2009), did not address the different definition in the Rosenthal Act.) While plaintiff does not incorporate the magic words debt collector, the substance of the allegation is there. Defendants are lenders and mortgage servicing companies that are in the business of collecting and processing mortgage payments. [SAC 87] One of the allegations threatening foreclosure when there is no right to foreclose appears to be a reiteration of the allegations of improper foreclosure the court found without merit above. BOA did not threaten foreclosure, it did initiate a non-judicial foreclosure. Foreclosing on a deed of trust does not invoke the statutory protections of the Rosenthal Act. Quintero Family Trust v. Onewest Bank, F.S.B., 2010 U.S. Dist. LEXIS 63659, *12-*13 (S.D. Cal. 2010); Ricon v. Recontrust Co., 2009 U.S. Dist. LEXIS 67807, *8 (S.D. Cal. 2009). But when a claim arises out of debt collection activities beyond the scope of the ordinary foreclosure process, a remedy may be available under the Rosenthal Act. Walters v. Fid. Mortg. of Cal., Inc., supra, 730 F.Supp.2d at 1203. Otherwise, plaintiff alleges that Defendants she does not say specifically BOA did these things failed to verify the debt after plaintiffs written dispute; failed to conduct a proper investigation of disputed payments and determine that there was no missed payment; proceeded to collect a debt that was not owed, using abusive tactics, including excessive phone calls and contacting plaintiff after 9:00 p.m.; demanded payment of invalid debt while refusing to accept payments; and illegally charged late penalty charges for timely payments. Plaintiff does not set forth the statutes alleged, but the foregoing conduct would be covered by Civil Code 1788.11 (Communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances.); 15 U.S.C. 1692(c)(1) (communicating after 9:00 p.m.) (federal citations are to those statutes incorporated by Civil Code 1788.17); 15 USCS 1692d(b) (engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number); and 15 U.S.C. 1692f(1) (The collection of any amount

(including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.). The allegations of failure to verify do not apply because they appear to allege violation of 15 U.S.C. 1692g(b). Civil Code 1788.17 section provides that 15 U.S.C. 1692g shall not apply to any person specified in 15 U.S.C. 1692a(6)(A) & (B). Those sub-subsections provide that debt collector does not include: (A) any officer or employee of a creditor while, in the name of the creditor, collecting debts for such creditor; (B) any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of such person is not the collection of debts. So BOAs employees, officers and affiliates cannot be liable under the Rosenthal Act for any violation of 1692g. In any event, plaintiff has not even alleged that she communicated any dispute to BOA. Plaintiff has provided vague and unspecific allegations of violations of the statutes mentioned above. Conclusory statements without factual statements fail to satisfy even liberal pleading standards. Gorman v. Wolpoff & Abramson, LLP, 370 F.Supp.2d 1005, 1013 (N.D. Cal. 2005), finding that the allegation of harassing, threatening, abusive, oppressive, and annoying telephone calls is conclusory and insufficient to state a claim based on 1692d. Allegations of (1) endless annoying and minatory phone calls, (2) endless letters and minatory notices, (3) calls at 4:00 a.m. and ceaseless calls at night, and (4) calls at night and outside their household were too vague to state a claim as found in Arikat v. JP Morgan Chase & Co., 430 F.Supp.2d 1013, 1027 (N.D. Cal. 2006). The court also notes that plaintiff added this cause of action without leave to amend. She did not assert this cause of action in the first amended complaint (FAC). On July 26, 2011, the court sustained the demurrer to the FAC with leave to amend. A courts order sustaining a demurrer to a pleading with leave to amend, must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained. People ex rel. Department of Public Works v. Clausen, 248 Cal.App.2d 770, 785 (1967). For this reason, in addition to those addressed above, the court will sustain the demurrer to the Rosenthal Act cause of action. Again, plaintiff has made no effort to describe how she could improve her complaint in this regard. The court will sustain the demurrer without leave to amend. Expungement of Lis Pendens. In a single paragraph, BOA states that plaintiff recorded a lis pendens on the property. Since there is no probable validity of plaintiff prevailing on her claims, BOA says that the lis pendens must be expunged pursuant to CCP 405.30 & 405.31.

First, the court is unaware of any such notice. If one was recorded, it was not immediately thereafter filed with the court as required in CCP 405.22. Second, BOA noticed a demurrer, not a motion to expunge, and there is no prayer for expungement in the demurrer. Besides, the cursory reference to the lis pendens is insufficient for even a properly noticed motion under CCP 405.30. The court will not order any lis pendens expunged. * TENTATIVE RULING: * This is a demurrer to a complaint for damages following foreclosure of a residence. Plaintiff, as trustee of a Living Trust under declaration of trust dated July 14, 1999 (Plaintiff) was the owner of real property in Santa Barbara, California (the Property). (Complaint, at p. 2 [Note: Plaintiff does not use the usual practice of numbering all paragraphs, making more specific citation cumbersome.].) Plaintiff resided at the Property for about 40 years. (Complaint, at p. 5.) The Property secured two loans obtained from Washington Mutual Bank, whose successor in interest to both loans is defendant JPMorgan Chase Bank, N.A. (Chase). (Complaint, at p. 2.) The first loan, secured by a first deed of trust, had a balance of approximately $581,695; the second loan, secured by a second deed of trust, had a balance of approximately $151,011.00. (Ibid.) In May 2009, Ottoboni was required to evacuate the Property for about one week because of fire raging nearby. (Complaint, at p. 7.) In the resulting confusion, Plaintiff missed the payment on the first loan for May. (Ibid.) At the same time, Plaintiffs income changed following the death of Plaintiffs domestic partner and the exhaustion of the life nsurance policy he left. (Ibid.) Plaintiff missed the July 2009 payment and half of the August 2009 payment. (Ibid.) In August 2009, Chases Loss Mitigation Department contacted Plaintiff and inquired whether Plaintiff wished to modify the first loan. (Complaint, at p. 9.) Plaintiff responded affirmatively and agreed to submit required documentation. (Ibid.) In late August or early September 2009, Chases Loss Mitigation Department telephoned Plaintiff, advising her not to make any payments during the negotiation and documentation process and stating that Chase would not accept any payments during this process. (Ibid.) Relying on these instructions, and for that reason alone, Plaintiff stopped making payments after September 2, 2009. (Ibid.) By October 2009, Plaintiff had received no formal response to her loan modification paperwork and telephoned Chases Loan Mitigation Department to inquire concerning the status of the process. (Complaint, at pp. 9-10.) Chase represented that they had been overwhelmed with loan modification requests and would be working on it. (Complaint, at p. 10.) In November

2009, Ottoboni still had received no formal response; she followed up by telephone and received the same response. (Ibid.) On December 1, 2009, Chases Loss Mitigation Department notified Plaintiff by telephone that they again needed the same forms already submitted by her; Plaintiff promptly faxed the forms to the same Chase telephone number she had been instructed in the past. (Ibid.) Within several days after providing the fax, Chases Loan Mitigation Department telephoned Plaintiff, advising her that Chase had not received the fax; Plaintiff responded by again faxing the documents. (Ibid.) In February 2010, Chases Loss Mitigation Department telephoned Plaintiff and informed her that they were working on modifications and that everything was OK. (Complaint, at pp. 10-11.) On February 17, 2010, without notice to Plaintiff, Chase recorded its Notice of Trustees Sale, scheduling the sale of the Property based upon a default in the first loan for May 19, 2010 (the NOTS). (Complaint, at p. 11.) In or after February or March 2010, Plaintiff learned of the NOTS from a neighbor who saw a notice in the newspaper. (Ibid.) Plaintiff immediately telephoned Chases Loss Mitigation Department; the person who purported to be knowledgeable about the transaction stated that Ottoboni did not need to worry about the NOTS because Plaintiffs application was being processed. (Ibid.) On February 26, 2010, Ottoboni and Chase executed a forbearance agreement concerning the second loan. (Complaint, at p. 11.) Following the instructions from Chases Loss Mitigation Department, Ottoboni wired $1,500 on to Chase as required for the loan modification process. (Ibid.) While this payment related to the second loan, at about the same time, Plaintiff was told by Chases Loss Mitigation Department that all necessary documentation was being prepared for the first loan modification. (Ibid.) During all of this time, Chases Loss Mitigation Department was aware that Ottoboni had substantial equity in the Property and intended to keep the Property. (Ibid.) In fact, Plaintiff had substantial funds available in a retirement account available to cure the default. (Complaint, at p. 7.) In February and March 2010, Plaintiff made several telephone calls to Chases Loss Mitigation Department during which she was unable to locate or communicate with any person in charge of her file for the first loan. (Complaint, at pp. 11-12.) Chase incorrectly informed her that she had provided an incorrect social security number; however, Chase itself had misentered the social security number and the number provided by Plaintiff was correct. (Complaint, at p. 12.) In March 2010, a Chase representative named Johnny telephoned Plaintiff to notify her that Chase was working on the modification for the first loan. (Ibid.) On April 16, 2010, Plaintiff and Chase executed and delivered a forbearance agreement as to the second loan, by the terms of which Plaintiff wired $3,137.49 to Chase and was to make regular monthly payments thereafter. (Ibid.) Plaintiff made the

payments required and otherwise performed under the forbearance agreement. (Complaint, at p. 13.) On May 3, 2010, a Chase representative telephoned Plaintiff to request an update on her expense information to further process the modification of the first loan. Complaint, at p.14.) On May 11, 2010, without notice to Plaintiff, Chase conducted a trustees sale foreclosing on the Property based upon the default in the first loan. (Ibid.) The Property was purchased by a third party at the trustees sale for $880,000. (Complaint, at p. 20 & exhibit I.) The Property was later resold in the amount of $1,390,000. (Complaint, at p. 20.) On June 20, 2011, Plaintiff filed this complaint, asserting six causes of action: (1) combination of negligent misrepresentation of facts, concealment, breaches of fiduciary duty; (2) concealment; (3) affirmative misrepresentation; (4) negligent disclosure by fiduciary; (5) financial elder abuse; and (6) promissory estoppel. Defendant Chase generally demurs to each of the causes of action of the complaint. Chase argues that the fraud claims (including negligent misrepresentation) all fail because the claims have not been pleaded with requisite specificity, in particular, by not identifying the names of the people with whom Plaintiff spoke and their authority to speak. Chase argues that an oral agreement not to foreclose is not enforceable under the statute of frauds, and that Chase, as a lender, does not owe Plaintiff a fiduciary duty. Chase further asserts that the cause of action for financial elder abuse fails because collecting a debt actually owed cannot be construed as taking property for a wrongful purpose and constitutes privileged action. Chase also argues that the promissory estoppel cause of action fails because Plaintiff has not pleaded a promise clear and unambiguous in its terms. Chase points out that the promissory estoppel claim is also entitled a claim for declaratory relief and declaratory relief is unavailable. Plaintiff opposes the demurrer. Plaintiff argues that incidents have been pleaded in detail and are sufficient. Plaintiff emphasizes that at all times she was financially able, willing and interested in curing the default and preventing the foreclosure sale, but relied upon Chases representations that the loan was being modified and that the sale would not take place during the modification process. In reply, Chase argues that Plaintiff does not effectively respond to the lack of specificity in the complaint. We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)

Fraud Claims The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or scienter); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] (Id. at p. 645.) This particularity requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. [Citation.] (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73, emphasis omitted.) The idea seems to be that allegations of fraud involve a serious attack on character, and fairness to the defendant demands that he should receive the fullest possible details of the charge in order to prepare his defense. (Committee on Childrens Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) Here, Plaintiff alleges numerous communications with Chase. Chase argues that the allegations are not specific because Plaintiff has not alleged the exact names of the persons with whom she communicated or other details. In the complaint, Plaintiff has alleged that Chase contacted her to discuss and to offer a loan modification application process. This is consistent with Chases obligation under Civil Code section 2923.5, subdivision (a)(2). Plaintiff further alleges that documentation for loan modifications to both the first and second loans were submitted as requested and required by Chase. Plaintiff alleges that in late August or early September someone from Chases Loss Mitigation Department telephoned Ottoboni and instructed her not to make payments while the loan modification was being processed. Plaintiff followed the instructions. Plaintiff alleges several telephone calls to and from Chases Loss Mitigation Department to discuss the loan modifications. Then, just a few days prior to the trustees sale, and only a few days after the loan modification was completed on the second loan, Chases Loss Mitigation Department requested updated information to complete the loan modification on the first loan. During each of these communications, it is alleged that Chase either affirmatively represented that the loan modification was being processed and not to worry about the trustees sale, or failed to tell Plaintiff that the trustees sale was actually going forward despite the continuing process to resolve the loan modification on the first loan. We observe certain exceptions which mitigate the rigor of the rule requiring specific pleading of fraud. Less specificity is required when it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy, [citation]; [even] under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party . [Citation.] (Committee on Childrens

Television, Inc. v. General Foods Corp., supra, at p. 217.) Surely defendants have records of their dealings with the plaintiffs. Those details are properly the subject of discovery, not demurrer. [Citations.] (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385.) The allegations provided by Plaintiff are sufficient to allege intentional or negligent misrepresentations (first loan modification was being processed and not to worry about the NOTS while that loan modification was being processed) or concealments / nondisclosure where facts are necessary to make representations not misleading (trustees sale was going forward notwithstanding representations that the first loan modification was being processed). These are adequate allegations of the elements of misrepresentation or concealment. Hence, while it seems sound to require specific pleading of the facts of fraud rather than general conclusions, the courts should not look askance at the complaint, and seek to absolve the defendant from liability on highly technical requirements of form in pleading. (Committee on Childrens Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 216, fn. 17.) Chase also argues that to the extent Plaintiff asserts that there was an oral agreement not to foreclose, such a claim falls under the statute of frauds. In the absence of consideration, a gratuitous oral promise to postpone a sale of property pursuant to the terms of a trust deed ordinarily would be unenforceable under section 1698 [the statute of frauds]. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 444, quoting Raedeke v. Gibraltar Sav. & Loan Assn. (1974) 10 Cal.3d 665, 673.) However, the trustee shall postpone the sale in accordance with any of the following: (C) By mutual agreement, whether oral or in writing, of any trustor and any beneficiary or any mortgagor and any mortgagee. (Civ. Code, 2924g, subd. (c)(1)(C).) Plaintiff has alleged justifiable reliance by not curing the default, as Plaintiff intended to do, by use of her available retirement funds.(Complaint, at p. 2.) Justifiable reliance constitutes sufficient consideration to make enforceable a postponement of a trustees sale. (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1041.) Thus, as against the arguments asserted by Chase in this demurrer, plaintiffs have adequately pleaded actions sounding in fraud. Chases demurrer to the first, second and third causes of action will be overruled. Nondisclosure by Fiduciary Plaintiff ambiguously pleads breach of fiduciary duties in the first three causes of action. Because those actions are sufficiently pleaded notwithstanding the existence or absence of a fiduciary duty, there is no basis for sustaining the demurrer to that part of the cause of action relating to the allegations of fiduciary duty. (See Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.)

Chase argues that the fourth cause of action, for negligent nondisclosure by a fiduciary, is barred because no fiduciary duty exists between a lender and the debtor. In order to plead a cause of action for breach of fiduciary duty, a plaintiff must show the existence of a fiduciary relationship, its breach, and damage caused by the breach. (Apollo Capital Fund LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 244.) A debt is not a trust and there is not a fiduciary relation between debtor and creditor as such. (Downey v. Humphreys (1951) 102 Cal.App.2d 323, 332.) Here, Plaintiff has alleged only a debtor- creditor relationship between her and Chase. Plaintiff argues that a fiduciary duty should exist in this situation based upon Ottobonis repose of trust and confidence in Chase and Chases assertions of Chases business credo. Plaintiff confuses reposing trust and confidence in a party so as to give rise to a fiduciary duty and relying upon the implied contractual covenant of good faith and fair dealing. A contracting party may rely upon the good faith and fair dealing of the other contracting party without creating a fiduciary duty. It is established as a matter of law that no fiduciary duty exists between a bank and its loan customers. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 476.) All of the allegations of the complaint assert actions by and with Chase only within the lender-debtor relationship. Plaintiff has not explained, and the court does not see, how she could truthfully amend the complaint to allege a fiduciary duty by Chase. The court will sustain Chases demurrer to the fourth cause of action of the complaint without leave to amend. Financial Elder Abuse Plaintiffs fifth cause of action is for financial elder abuse. Financial abuse of an elder or dependent adult occurs when a person or entity does any of the following: (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code. (Welf. & Inst. Code, 15610.30, subd. (a).) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer,

or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult. (Welf. & Inst. Code, 15610.30, subd. (c).) Chase argues first that this claim fails because the fraud claims fail. As discussed above, Plaintiff has set forth claims sounding in fraud. Chase next argues that collecting a debt owed cannot be construed as taking property for a wrongful purpose. The problem with Chases argument is time. Simply because Ottoboni had an obligation to repay Chase the principal and interest for the first loan does not mean that Plaintiffs present property rights (see Civ. Code, 689) could be taken at any time, and, as here alleged, as a result of Chases fraudulent representations and nondisclosures. Chase also argues that there are no allegations of Chases fraudulent intent. However, [f]raud consists in intention, and that intention is a fact. (Woodroof v. Howes (1891) 88 Cal. 184, 190.) Ottoboni has averred the fact of Chases intent. (Complaint, at pp. 16, 21.) Chase further argues that its conduct is privileged. All of the following shall constitute privileged communications pursuant to [Civil Code] Section 47: (1) The mailing, publication, and delivery of notices as required by this section. (2) Performance of the procedures set forth in this article. (3) Performance of the functions and procedures set forth in this article if those functions and procedures are necessary to carry out the duties described in Sections 729.040, 729.050, and 729.080 of the Code of Civil Procedure. (Civ. Code, 2924, subd. (d).) The applicable Civil Code section 47 privilege is the qualified common interest privilege of section 47, subdivision (c)(1) rather than the absolute privilege of section 47, subdivision (b). (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 341.) The qualified common interest privilege of Civil Code section 47, subdivision (c) applies to a communication, without malice, to a person interested therein. The malice necessary to defeat a qualified privilege is actual malice which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiffs rights . (Noel v. River Hills Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1370.) Plaintiff has alleged that Chase acted intentionally to her injury and knowing that Chase had misled Ottoboni into believing that the trustees sale would not go forward. Plaintiff has thus sufficiently alleged malice within the meaning of the qualified privilege. So, whether or not the qualified privilege applies as to all of Chases conduct, Plaintiff has adequately alleged malice. [I]f malice is shown, the privilege is not merely overcome; it never arises in the first instance. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723, fn. 7.)

Defendant Chases demurrer to the fifth cause of action, for financial elder abuse, will be overruled. Promissory Estoppel Plaintiffs sixth cause of action is entitled Promissory Estoppel-Declaratory Relief. (Complaint, at p. 26.) The doctrine of promissory estoppel make[s] a promise binding, under certain circumstances, without consideration in the usual sense of something bargained for and given in exchange. [Citations.] Under this doctrine a promisor is bound when he should reasonably expect a substantial change of position, either by act or forbearance, in reliance on his promise, if injustice can be avoided only by its enforcement. [Citation.] The vital principle is that he who by his language or conduct leads another to do what he would not otherwise have done shall not subject such person to loss or injury by disappointing the expectations upon which he acted. [Citations.] In such a case, although no consideration or benefit accrues to the person making the promise, he is the author or promoter of the very condition of affairs which stands in his way; and when this plainly appears, it is most equitable that the court should say that they shall so stand. [Citations.] [Citation.] (Garcia v. World Savings, FSB, supra, 183 Cal.App.4th at pp. 1040-1041.) Chase argues that Plaintiff has not alleged the promise in clear and unambiguous terms. (See Thomson v. International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators (1965) 232 Cal.App.2d 446, 454.) However, [t]o be enforceable, a promise need only be definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages. [Citation.] (Garcia v. World Savings, FSB, supra, 183 Cal.App.4th at p. 1045.) The promise alleged here is that the foreclosure would not take place while the loan modification was in process. Chase argues that a promise not to foreclose is unenforceable because it is not in writing. However, as discussed above, promissory estoppel itself provides the consideration that makes the promise not to foreclose enforceable. As a result, the elements of promissory estoppel are adequately pleaded for the same reasons that Plaintiffs claims for fraud have been pleaded. Plaintiff has therefore adequately pleaded an action for damages based upon promissory estoppel because of the promise not to foreclose. A further issue is the availability of declaratory relief. The title of the cause of action includes declaratory relief. Chase argues that declaratory relief is improper because there is no issue affecting future rights between the parties. Whether or not this is so, the court notes that Plaintiff does not request a declaration of rights in the sixth cause of action or in the prayer to the complaint, but seeks only damages. If the complaint states a cause of action under any theory, regardless of the title under which the factual basis

for relief is stated, that aspect of the complaint is good against a demurrer. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.) Moreover, a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy. (Kong v. City of Hawaiian Gardens Redevelopment Agency, supra, 108 Cal.App.4th at p. 1047.) Consequently, Chases demurrer to the sixth cause of action will be overruled. Request for Judicial Notice and Procedural Matters Chase requests that the court take judicial notice of nine documents recorded in the Santa Barbara real estate records regarding the Property, including the deeds of trust, notice of default and NOTS. The court will take judicial notice of these documents, but judicial notice does not extend to the truth of the matters stated therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) The demurrer of defendant JPMorgan Chase Bank, N.A., is overruled as to the first, second, third, fifth and sixth causes of action and is sustained without leave to amend as to the fourth cause of action of the complaint. Defendant shall file and serve its answer to the remaining causes of action in the complaint on or before October 31, 2011. * TENTATIVE RULING: * First Amended Complaint (FAC): Plaintiff owns real property located in Lompoc. On April 25, 2005, plaintiff executed a promissory note in the amount of $600,000 in favor of Countrywide Home Loans, Inc. and a deed of trust (DOT) on the property. Plaintiff alleges: Countrywide caused defendant Mortgage Electronic Registration Systems, Inc. (MERS) to go on title as nominee beneficiary in order to hide the true identity of successive beneficiaries. [FAC 14] On August 25, 2010, ReconTrust Company, N.A., on behalf of defendants BAC Home Loans Servicing, LP, and Bank of New York Mellon (BNY), recorded a notice of default and election to sell (NOD). [FAC 16] On September 3, 2010, MERS recorded a corporate assignment of DOT to BNY. [FAC 17] On December 6, 2010, ReconTrust recorded a notice of trustees sale (NOS). [FAC 18] 1. Wrongful Foreclosure (BNY, Recontrust, BAC and MERS): When Recontrust initiated foreclosure on August 25, 2010, BNY had no interest in the DOT as the assignment was not executed before a notary until September 1, 2010. [FAC 20-21] On August 25, 2010, MERS was the beneficiary, as nominee for Countrywide, not BNY. Therefore, the foreclosure process is defective. [FAC 22-23] Recontrust, BAC, BNY and MERS backdated the assignment by stamping August 25, 2010 on it. [FAC 25] BAC did not comply with Civil Code 2923.5(b). [FAC 26-28] 2. Fraud (BNY, Recontrust, BAC and MERS): The recording of the NOD constitutes an affirmative representation of BNYs authority/interest in the

property that was known not to be true. [FAC 31] The assignment of the DOT was excecuted by a T. Sevillano, who is not an assistant secretary for MERS and is not otherwise an employee or agent of MERS. [FAC 32] The misrepresentations by defendants induced plaintiff into believing that a proper foreclosure was commenced and that was a substantial consideration in her decision not to utilize the property as her permanent California residence or to secure a long-term tenant. [FAC 33 & 37] Defendants knew that they did not have authority or an interest in the property when they caused recordation of the NOD. [FAC 34] Defendants intended to induce plaintiff into believing their actions were lawful so she would not challenge those actions. [FAC 35] 3. Negligent Misrepresentation (BAC): BAC employees and agents (most of whom are not known to plaintiff but the conversations were recorded by BAC) represented: a) In November 2010, plaintiff was told she was eligible for the Making Home Affordable government loan modification program even though she was not utilizing the property as her primary residence but then, on May 21, 2010 (these are the dates stated in the FAC), plaintiff was told her application was being denied because the property was not her primary residence. b) In June 2010, BAC induced plaintiff to pursue a short sale only to tell her in July 2010 that she does not qualify for a short sale under the Home Affordable Foreclosure Alternative government program. c) On September 7, 2010, BAC employee Damien asked plaintiff to provide information regarding her financial status and told plaintiff she was prequalified for a loan modification. She was induced to apply for a loan modification but BAC declined the application. [FAC 39 & 40] BAC had no reasonable grounds that would support a good faith belief in its representations because it knew the property was not owner occupied and the statement that she was prequalified for a loan modification was without merit. [FAC 41] BAC intended to induce plaintiffs reliance and she relied on the representations to her detriment by investing her time, labor and money in pursuing each alternative BAC offered her. [FAC 42 & 43] 4. Breach of Contract (BNY): Pursuant to the DOT, BNY was bound to act in accordance with California law when initiating and conducting a non-judicial foreclosure. [FAC 47-50] BNY breached the contract by pursuing a nonjudicial foreclosure without a valid NOD and by failing to give the notices required in Civil Code 2923.5. [FAC 51-53] 5. Violation of B&P Code 17200 (BNY, Recontrust, BAC and MERS): Plaintiff bases this cause of action on the unauthorized NOD, the backdated assignment and the fraudulent declaration of due diligence regarding the mandates of Civil Code 2923.5. [FAC 47-59] Defendants performed these acts for the purpose of injuring plaintiff and to facilitate the loss of her home to foreclosure. [FAC 60]

6. Promissory Estoppel (BAC and BNY): Based on Damiens statement that she was prequalified for a loan modification, plaintiff, who had the ability to cure her accrued arrearages, abandoned her intent to pursue a cure of her arrearages and a potential bankruptcy filing to pursue the loan modification. [FAC 62-67] The prequalification statement was absolute and led plaintiff to believe that all she had to do was go through a formal application. [FAC 68] BAC did not return a decision on the loan modification application until March 2011. The delay caused plaintiff to incur further arrearages, foreclosing plaintiffs ability to cure and the likelihood of favorable relief in the bankruptcy courts. [FAC 69] 7. Declaratory Relief (Bank of America): Defendant Bank of America (BOA) succeeded as the servicer of the loan on July 1, 2011. [FAC 73] Plaintiff anticipates that BOA will engage in similar conduct against her and continue to seek to foreclose on plaintiffs property. [FAC 74] The existence of a past controversy and reasonably foreseeable/anticipated continuation of a controversy entitles plaintiff to a declaration as to the rights and obligations owed by BOA, whether BOA is equally liable for the damages caused by BACs conduct and whether BOA is equally estopped from pursuing the foreclosure. [FAC 75] On August 4, 2011, the court entered an order for a temporary restraining order staying the foreclosure. Through stipulations, this TRO has been continued through the date of the present hearing. Demurrer: Defendants BOA, BAC, BNY, Recontrust and MERS demur to all causes of action because plaintiff has failed to state facts sufficient to constitute the causes of action. (BOA is now the successor by merger to BAC.) BOA demurs to the wrongful foreclosure cause of action for failure to tender, no basis to challenge the assignment, and plaintiffs inability to obtain relief under Civil Code 2923.5, with which defendants complied. The causes of action for fraud and negligent misrepresentation fail because plaintiff has failed to plead the claims with sufficient particularity, a misrepresentation of material fact or damages. There is no action for a negligent false promise. In the breach of contract cause of action, plaintiff pleads failure to follow California statutes but she had failed to plead failure to follow foreclosure statutes. Also, BNY is not a party to the contract. Plaintiffs UCL claims fail because she has pled no underlying statutory violations or wrongful conduct. Plaintiff has failed to plead an unambiguous promise or justifiable reliance sufficient to support a cause of action for promissory estoppel. The claim for declaratory relief fails because it is based on the foregoing causes of action, all of which fail. Opposition: Plaintiffs opposition to the demurrer exceeds the 15 page limit set forth in CRC 3.1113(d) and does not include a table of contents or table of authorities are required in CRC 3.1113(f). Plaintiff contends: Tender is not required in a pre-sale challenge to a foreclosure. Plaintiff has standing to challenge the assignment. BNY did not

acquire a beneficial interest in the DOT until after the August 25, 2010 NOD and defendants used the backdating scheme to fake the validity of the NOD. The NOD is not valid as it indicates that BNY is the beneficiary before any assignment and, therefore, Recontrust had no authority to act as agent for the beneficiary. Plaintiff has alleged violations of Civil Code 2923.5 in that she received no mailing and the automated calls were made after the NOD was recorded. The representation that BNY was the beneficiary constitutes a fraudulent misrepresentation and the representation that she was prequalified for a loan is an actionable representation. Plaintiff had the ability to cause a cure of her default but lost that opportunity because of the prequalification representation. Plaintiff pleads that BNY succeeded to and assumed all interests and obligations in the note and DOT. Plaintiff suffered an injury in fact because she now is not able to save her residence and because she did not pursue long term leases for the property that would have provided her with additional income. The requalification promise was clear and unambiguous and BOA must modify plaintiffs loan. Plaintiff pleads justifiable reliance her change in position. Plaintiff has sufficiently pled the existence of an actual controversy because she has plead that BOA will deny any liability, rights and obligations. Reply: Defendants reiterate arguments from the demurrer and also argue: Plaintiffs own authority establishes that she must plead no valid assignment, not just a defective recorded assignment. Plaintiff was not prejudiced by any defective assignment because she was in default no matter who the creditor was. The certification in the NOD is positive proof of compliance with Civil Code 2923.5. 1. Wrongful Foreclosure: A. Tender: To maintain any cause of action for irregularity in a foreclosure sale procedure, a plaintiff must allege tender of the amount of the secured indebtedness. Abdallah v. United Savings Bank, 43 Cal.App.4th 1101, 1109 (1996). [O]nce the trustor fails to effectively exercise his right to redeem, the sale becomes valid and proper. A cause of action implicitly integrated with the irregular sale fails unless the trustor can allege and establish a valid tender. Arnolds Management Corp. v. Eischen, 158 Cal.App.3d 575, 579 (1984). [Nothing] short of the full amount due the creditor is sufficient to constitute a valid tender, and the debtor must at his peril offer the full amount. Gaffney v. Downey Sav. & Loan Ass'n, 200 Cal.App.3d 1154, 1165 (1988). At issue is the debtors ability to tender the amount of the indebtedness or cure the default. Fpci Re-Hab 01 v. E & G Invs., 207 Cal.App.3d 1018, 1022 (1989). The doctrine of tender is strictly construed. Nguyen v. Calhoun, 105 Cal.App.4th 428, 439 (2003). Plaintiffs maintains that she is not required to comply with the tender rule because the trustee sale has not yet occurred, citing Vissuet v. Indymac Mortg. Servs., 2010 U.S.Dist.LEXIS 26241 (2010). That court noted that the creditor had failed to cite a case that would establish a similar bright-line

rule requiring tender where the plaintiff is merely attempting to prevent a trustee sale from proceeding. Id. at *7. But there is such authority. This argument, however, suffers from two fatal flaws. First, it finds no support in the case law. To the contrary, courts have consistently held that plaintiffs bringing claims for wrongful foreclosure must offer to tender the full amount owed to sustain a cause of action regarding any aspect of the foreclosure sale procedure. See, e.g., Fammilop v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 3249, at *8 (C.D. Cal. Jan. 4, 2011). Second, taking as true Plaintiffs' allegation that no sale has been completed, their claim for wrongful foreclosure fails on the additional ground that it is not yet ripe for review. See Boles v. Merscorp., Inc., U.S. Dist. LEXIS 129655, 2009 WL 734133, at *6 (C.D. Cal. Mar. 18, 2009). Hollins v. Recontrust, N.A., 2011 U.S.Dist.LEXIS 52513, * 12 (C.D. Cal. 2011). When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure. Alicea v. GE Money Bank, 2009 U.S.Dist.LEXIS 60813, *7-*8 (N.D. Cal. 2009). The court finds that tender is necessary and plaintiff has failed to plead the present ability to cure even the arrearage. In fact, she pleads that she is no longer capable of doing so. Plaintiff contends that tender may not be required where it would be inequitable to do so, citing Onofrio v. Rice, 55 Cal.App.4th 413, 424 (1997). Plaintiff has not alleged facts that would justify dispensing with the tender requirement. B. Assignment: The NOD lists BNY in the portion where the form indicates the beneficiary is to go. The NOD is executed on August 25, 2010, by Recontrust as agent for beneficiary. MERS was the beneficiary under the DOT. There is an assignment of the DOT bearing a date of August 25, 2010 and executed by an assistant secretary of MERS with a notary acknowledgement indicating it was executed on September 1, 2010. Plaintiff alleges the assignment was backdated and, because BNY had no interest in the DOT on August 25, the NOD is void. Defendants argue that plaintiff cannot assert a claim based on the lack of assignment because it cannot be assumed that the assignee desires to avoid it, quoting a C.J.S. treatise. But that does not appear to address compliance with California nonjudicial foreclosure statutes. (Defendants did not provide a copy of the treatise.) However, the assignment issue does not appear to afford plaintiff relief. There is a further, overriding basis for rejecting a claim based solely on the alleged invalidity of the MERS assignment. Plaintiff's cause of action ultimately seeks to demonstrate that the nonjudicial foreclosure sale was invalid because HSBC lacked authority to foreclose, never having received a proper assignment of the debt. In order to allege such a claim, it was not enough for plaintiff to allege that MERS's purported assignment of the note

in the assignment of deed of trust was ineffective. Instead, plaintiff was required to allege that HSBC did not receive a valid assignment of the debt in any manner. Plaintiff rests her argument on the documents in the public record, but assignments of debt, as opposed to assignments of the security interest incident to the debt, are commonly not recorded. The lender could readily have assigned the promissory note to HSBC in an unrecorded document that was not disclosed to plaintiff. To state a claim, plaintiff was required to allege not only that the purported MERS assignment was invalid, but also that HSBC did not receive an assignment of the debt in any other manner. There is no such allegation. Fontenot v. Wells Fargo Bank, N.A., 198 Cal.App.4th 256, 271-272 (2011). Also, even the assignment of a DOT need not be recorded. Civil Code 2932.5 applies to mortgages, not deeds of trust. Stockwell v. Barnum, 7 Cal.App. 413, 417 (1908), construing former Civil Code 858, which reads substantially the same as current Civil Code 2932.5. A bankruptcy court recently determined that Stockwell no longer applies as the historical distinctions between mortgages and deeds of trust are obsolete. U.S. Bank N.A. v. Skelton (In re Salazar), 448 B.R. 814, 822 (Bankr. S.D. Cal. 2011). However, a panel of the Second District Court of Appeal (Div. 8) recently rejected the analysis in Salazar. Calvo v. HSBC Bank USA, N.A., 2011 Cal.App.LEXIS 1184, *8-*9 n2 (2011). The holding of Stockwell has never been reversed or modified in any reported California decision in the more than 100 years since the case was decided. The rule that section 2932.5 does not apply to deeds of trust is part of the law of real property in California. After 1908, only the federal courts have addressed the question whether section 2932.5 applies to deeds of trust, and only very recently. Every federal district court to consider the question has followed Stockwell. Id. at *7-*8, citing Roque v. SunTrust Mortgage, Inc., 2010 U.S.Dist.LEXIS 11546, *8 (N.D. Cal. 2010); Parcray v. Shea Mortgage, Inc., 2010 U.S.Dist.LEXIS 40377, *31-*32; Caballero v. Bank of America, 2010 U.S.Dist.LEXIS 122847, *8 (N.D. Cal. 2010). Federal district courts, too, have expressly rejected the holding in Salazar. Pedersen v. Greenpoint Mortg. Funding, Inc., 2011 U.S.Dist.LEXIS 96397, *47-54 (E.D. Cal. 2011). Further, plaintiff has not alleged that any irregularity in the assignment prejudiced her. We also note a plaintiff in a suit for wrongful foreclosure has generally been required to demonstrate the alleged imperfection in the foreclosure process was prejudicial to the plaintiff's interests. .. Even if MERS lacked authority to transfer the note, it is difficult to conceive how plaintiff was prejudiced by MERS's purported assignment, and there is no allegation to this effect. Because a promissory note is a negotiable instrument, a borrower must anticipate it can and might be transferred to another creditor. As to plaintiff, an assignment merely substituted one creditor for another, without changing

her obligations under the note. Plaintiff effectively concedes she was in default, and she does not allege that the transfer to HSBC interfered in any manner with her payment of the note [citation], nor that the original lender would have refrained from foreclosure under the circumstances presented. Fontenot v. Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at 272. This lack of prejudice is even more obvious in this instance because it is undisputed that Recontrust was, at all times relevant, the trustee under the DOT. Under Civil Code section 2924(a)(1), a trustee, mortgagee or beneficiary or any of their authorized agents may conduct the foreclosure process. Under California Civil Code section 2924b(b)(4), a person authorized to record the notice of default or the notice of sale includes an agent for the mortgagee or beneficiary, an agent of the named trustee, any person designated in an executed substitution of trustee, or an agent of that substituted trustee. Recontrust had authority as trustee to issue the NOD. C. Civil Code 2923.5: Civil Code 2923.5(a)(1) provides that a trustee, beneficiary, or authorized agent may not file a NOD until 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (g). Paragraph 2 provides: A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. Although her chronology is a little confusing, it appears that plaintiff alleges that BAC contacted plaintiff well in advance of the 30 days prior to the NOD. Plaintiff alleges that, in November 2010, plaintiff was told she was eligible for the Making Home Affordable government loan modification program and then, on May 21, 2010, plaintiff was told her application was being denied. [FAC 39.a.] The May 21, 2010 date appears to be accurate, since the events appear to be in chronological order and the next event is June 2010. So the November date must be 2009. Plaintiff alleges that, in June 2010, BAC induced plaintiff to pursue a short sale only to tell her in July 2010 that she does not qualify for a short sale under the Home Affordable Foreclosure Alternative government program. [FAC 39.b.] So plaintiffs own allegations establish that she was contacted at least by May 21, 2010, which is more than 30 days before the NOD was recorded. Even if BAC, BNY or Recontrust had not complied with Civil Code 2923.5, the right of action is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with section 2923.5. Mabry v. Superior Court, 185 Cal.App.4th 208, 214 (2010). In addition to the discussions regarding modification and short sale in November 2009 to July 2010, plaintiff alleges that further discussions took place in September 2010 and the exploration of a loan modification lasted until March 2011. Plaintiffs allegations demonstrate that the trustees sale has been postponed and the lender has complied with Civil Code 2923.5. Plaintiff does not like the

results of the contact to assess her financial situation and explore her options to avoid foreclosure, but she has alleged that the contact happened. The court finds that plaintiff has not stated a cause of action for wrongful foreclosure. Although plaintiff requests leave to amend, she has not demonstrated how she could do so, particularly in light of her present allegations. If there is a reasonable possibility that the defect in a complaint can be cured by amendment, it is an abuse of discretion to sustain a demurrer without leave to amend. [Citation.] The burden is on the plaintiff, however, to demonstrate the manner in which the complaint might be amended. [Citation.] Hendy v. Losse, 54 Cal.3d 723, 742 (1991). The burden is on the plaintiff to demonstrate how he or she can amend the complaint. It is not up to the judge to figure that out. Lee v. Los Angeles County Metropolitan Transportation Authority, 107 Cal.App.4th 848, 854 (2003). The court will sustain the demurrer to the first cause of action without leave to amend. 2. Fraud: A party must plead fraud specifically; general and conclusory allegations do not suffice. Lazar v. Superior Court, 12 Cal.4th 631, 645 (1996). This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered. Id. The elements of fraud are: (1) a misrepresentation (false representation, concealment, or nondisclosure) of material fact; (2) knowledge of falsity (or scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5) resulting damage. Robinson Helicopter Co., Inc. v. Dana Corp., 34 Cal.4th 979, 990 (2004). Plaintiff bases her fraud allegation on representations in the NOD that BNY was authority to foreclose and interest in the property. As discussed above, plaintiff has not sufficiently alleged that the NOD was not accurate. Also, although plaintiff refers to the statutorily mandated NOD form indicating that BNY was placed in the portion of the form calling for the name of the beneficiary, BNY is not identified as the beneficiary in the NOD. In any event plaintiff does not allege reliance on this particular representation. She does not state that she contacted BNY to find out the amount she must pay or to arrange for payment to stop the foreclosure and BNY was unable to provide that information. Recontrust is designated at the agent of the beneficiary but there is no affirmative representation of who that beneficiary is. Plaintiffs alleged reliance on the NOD in not occupying the property as her residence and not leasing it is unjustifiable. Plaintiff knew she was in default and an NOD could be filed at any time and start the foreclosure process. The court will sustain the demurrer to the fraud cause of action without leave to amend. 3. Negligent Misrepresentation: Negligent misrepresentation is a form of deceit, the

elements of which consist of (1) a misrepresentation of a past or existing material fact, (2) without reasonable grounds for believing it to be true, (3) with intent to induce anothers reliance on the fact misrepresented, (4) ignorance of the truth and justifiable reliance thereon by the party to whom the misrepresentation was directed, and (5) damages. Fox v. Pollack, 181 Cal.App.3d 954, 962 (1986). The tort requires a positive assertion. Diediker v. Peelle Fin. Corp., 60 Cal.App.4th 288, 297 (1997). [A]n omission or an implied assertion or representation is not sufficient. Apollo Capital Fund LLC v. Roth Capital Partners, LLC, 158 Cal.App.4th 226, 243 (2007). Each element in a cause of action for fraud or negligent misrepresentation must be factually and specifically alleged. Cadlo v. Owens-Illinois, Inc., 125 Cal.App.4th 513, 519 (2004). The only specific allegation of a representation in this cause of action is the statement on September 7, 2010 by Damien of BAC, who told plaintiff that she was prequalified for a loan modification. But plaintiff does not allege how this was an untrue statement. In her opposition, plaintiff further confuses the issue by stating that Damien said she was qualified for a loan modification. [Opp. 14:7-9] Even assuming that qualified for a loan modification is tantamount to approved for a loan modification and logic and common usage indicate that it is not prequalified is even less of an assurance. The prefix pre means: a (1) earlier than; prior to; before ; (2) preparatory or prerequisite to . http://www.merriamwebster.com/dictionary/pre. In the FHA mortgage context: While prequalifying for a loan doesn't necessarily guarantee that you will be able to purchase the home of your dreams, it does help you and potential lenders know your borrowing power and what you can afford in terms of a monthly mortgage payment. Prequalifying for a loan simply means that you have taken an inventory of your income and assets and submitted them to your potential lender. Based on that information you should be able to qualify for a home mortgage loan. http://www.fha.com/prequalify.cfm. At best, prequalification is a promise to consider plaintiff for a loan modification. Plaintiff does not allege that defendants did not consider her for a loan modification. In any event, there is no cause of action for negligent representation of a promise to perform. Tarmann v. State Farm Mut. Auto. Ins. Co., 2 Cal.App.4th 153, 159 (1991). The court will sustain the demurrer to the third cause of action for negligent misrepresentation without leave to amend. 4. Breach of Contract: Plaintiff alleges that, pursuant to the DOT, BNY was bound to act in accordance with California law when initiating and conducting a non-judicial foreclosure. [FAC 47-50] BNY breached the contract by pursuing a non-judicial foreclosure without a valid NOD and by failing to give the notices required in Civil Code 2923.5. [FAC 51-53]

As discussed above, these allegations do not reflect breaches of the contract as the NOD was not invalid and defendants complied with Civil Code 2923.5. 5. B&P Code 17200, et seq.: A cause of action under the unfair competition law (UCL) must allege a business practice that is unlawful, unfair or fraudulent. This rule does not prohibit an action under the unfair competition law merely because some other statute on the subject does not, itself, provide for the action or prohibit the challenged conduct. Smith v. State Farm Mutual Automobile Ins. Co., 93 Cal.App.4th 700, 720 (2001). The statute is interpreted broadly because unfair or fraudulent business practices may run the gamut of human ingenuity and chicanery. Motors, Inc. v. Times Mirror Co., 102 Cal.App.3d 735, 740 (1980). The test under section 17200 is that a practice merely be unfair. Allied Grape Growers v. Bronco Wine Co., 203 Cal.App.3d 432, 452 (1988). Again, for reasons discussed above, plaintiff has not alleged business practices that are unlawful, unfair or fraudulent. Further, Plaintiff has not alleged damage in support of her UCL claim. A UCL claim can be prosecuted by a person who has suffered injury in fact and has lost money or property as a result of the unfair competition. B&P Code 17204. Therefore, to have standing to assert a claim under the UCL, a plaintiff must have suffered injury in fact and [have] lost money or property as a result of such unfair competition. Aron v. U-Haul Co. of California, 143 Cal.App.4th 796, 802 (2006). Plaintiff has not lost her home to foreclosure and has alleged no monetary damages. The court will sustain the demurrer to the fifth cause of action under the UCL without leave to amend. 6. Promissory Estoppel: The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) [the] reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. US Ecology, Inc. v. State of California, 129 Cal.App.4th 887, 901 (2005) [citation omitted]. Plaintiff bases this cause of action on Damiens statement that she was prequalified for a loan modification. She calls this statement absolute. But, as discussed above, the statement is not absolute. It is not a clear and unambiguous promise to do anything other than to submit the loan modification application to the next step in the process, which Damien, BAC and/or BOA did. The court will sustain the demurrer to the sixth cause of action for promissory estoppel without leave to amend. 7. Declaratory Relief (Bank of America): CCP 1060 provides that any person may ask the court for a declaration of its rights or duties in cases of actual controversy relating to the legal rights and duties of the respective

parties. Plaintiff contends there is an actual controversy based on the allegations of the foregoing causes of action. However, a cause of action for declaratory relief must fail as a matter of law if it depends upon other causes of action and those causes of action fail. Ratcliff Architects v. Vanir Construction Management, Inc., 88 Cal.App.4th 595, 607 (2001). Therefore, the court will sustain the demurrer to the seventh cause of action for declaratory relief without leave to amend. Preliminary Injunction: Plaintiff seeks a preliminary injunction prohibiting defendants from proceeding with the foreclosure. The court may grant a preliminary injunction when it appears by the complaint that the plaintiff is entitled to the relief demanded or the commission or continuance of some act during the litigation would produce great or irreparable injury to a party to the action. CCP 526(a). The court has determined that it does not appear by the complaint that plaintiff is entitled to the relief demanded. The court denies the request for a preliminary injunction and dissolves the temporary restraining order issued on August 4, 2011, as continued by stipulation. The court sustains the demurrer of defendants Recontrust Company, N.A.; BAC Home Loans Servicing, LP; Bank of New York Mellon; Bank of America, N.A.; and Mortgage Electronic Registration Systems, Inc. to the first amended complaint of Plaintiff without leave to amend. The court denies plaintiffs request for a preliminary injunction and dissolves the temporary restraining order issued on August 4, 2011, as continued by stipulation. * TENTATIVE RULING: * OSC/TRO Plaintiff is the owner of real property located at 336 Magna Vista Street in Santa Barbara. The property is subject to a note and deed of trust in favor of defendant BAC Home Loans Servicing, LP (BAC), as beneficiary, and defendant Recon Trust Company, N.A. (Recon), as trustee. According to the complaint, in November 2009, after the note went into default, BAC and plaintiff entered into an oral loan modification greement whereby plaintiff agreed to make three consecutive trial payments of $3,600 per month and supply specified financial information to BAC, and BAC agreed that plaintiffs application would be processed under one of the loan modification programs and a loan modification would be made. Plaintiff made the trial payments until October 2010, at which time he complained to BAC that he had not received a permanent loan modification as promised. In response, a BAC representative told plaintiff that the loan modification was being processed, but in the meantime plaintiff should pay what he could. Since then, plaintiff has continued to send $1,000 per month to BAC, along with additional financial documents requested by BAC.

On April 21, 2011, Recon recorded a notice of default and election to sell under the deed of trust and three months later, on July 20, 2011, it recorded a notice of trustees sale. On August 9, 2011, BAC informed plaintiff that his application for a loan modification was being denied and that a foreclosure sale was going forward on August 12, 2011. On August 12, 2011, plaintiff filed suit against BAC and Recon for (1) breach of loan modification agreement, (2) breach of forbearance agreement, (3) equitable and promissory estoppel, (4) negligent misrepresentation, and (5) declaratory relief. At the same time, plaintiff made an ex parte application for temporary restraining order (TRO) to enjoin a foreclosure sale of the property. The court granted the TRO and ordered BAC and Recon to appear on August 24, 2011 to show cause why a preliminary injunction should not issue. By stipulation and order, the hearing on the OSC re Preliminary Injunction was continued to October 19, 2011. Under Code of Civil Procedure Section 526(a)(1), a preliminary injunction may be granted when it appears from the complaint and any supporting affidavits or declarations that the plaintiff is entitled to the relief requested, and the relief consists of restraining the commission or continuance of the act complained of, either for a limited period or perpetually. In determining whether to grant a preliminary injunction, the court must consider the likelihood that the plaintiff will prevail on the merits of his case at trial. IT Corporation v. County of Imperial (1983) 35 Cal.3d 63, 69-70. The court must also consider the interim harm that the plaintiff is likely to sustain if the injunction is denied as compared to the harm that the defendant is likely to suffer if the court grants the injunction. King v. Meese (1987) 43 Cal.3d 1217, 1226; Abrams v. St. Johns Hospital & Health Center (1994) 25 Cal.App.4th 628, 635-636. The determination whether to grant a preliminary injunction generally rests in the sound discretion of the trial court. Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286. Defendants oppose plaintiffs application for preliminary injunction, claiming that plaintiff lacks standing to challenge the foreclosure sale because he has not alleged that he is able to pay the full amount due under the loan. In support of their argument, defendants point to the decisions in U.S. Cold Storage of California v. Great Western Savings & Loan Association (1985) 165 Cal.App.3d 1214 and Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, as well as the decision in Pantoja v. Countrywide Home Loans (N.D. Cal. 2009) 640 F.Supp.2d 1177. However, all three cases are distinguishable from the present case. In U.S. Cold Storage and in Abdallah, the foreclosure sale had already taken place and the plaintiff was seeking to set aside the sale based on procedural irregularities. In Pantoja, the court stated that [u]nder California law, in an action to set aside a trustees sale, a plaintiff must demonstrate that he had made a valid and viable tender [offer] of payment of the indebtedness, quoting Karlsen v. American Savings & Loan Association (1971) 15 Cal.App.3d 112. Here, plaintiff has

not asserted a claim for wrongful foreclosure and he is not seeking to set aside a trustees sale. Accordingly, there is no requirement that he give proof of his ability to pay the full amount of the debt. Defendants also challenge plaintiffs preliminary injunction request on the ground that plaintiff has failed to allege facts sufficient to state a cause of action against BAC or Recon. Specifically, defendants contend that plaintiffs breach of contract causes of action fail because plaintiffs allegations fall short of alleging (1) the existence of an actual agreement between the parties to modify plaintiffs loan, (2) that plaintiff performed his obligations under the agreement, (3) that defendants breached the agreement, and (4) that plaintiff has suffered actual harm as a result of defendants breach. See, Wall Street Network, Ltd. v. New York Times Company (2008) 164 Cal.App.4th 1171, 1178. In addition, defendants argue that the statute of frauds requires mortgages and loan modifications to be in writing and because the loan modification agreement alleged in the complaint was oral it is invalid. Under Civil Code Section 1624(a)(6), an agreement by a purchaser of real property to pay an indebtedness secured by a mortgage or deed of trust upon the property purchased must be in writing. Likewise, under Civil Code Section 2922, a mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the case of a grant of real property. The court is not persuaded by defendants arguments for several reasons. First, Civil Code Section 2924g, subdivision (c)(1)(C), specifically provides that there may be a postponement of a trustees sale [b]y mutual agreement, whether oral or in writing, of any trustor and any beneficiary or any mortgagor and any mortgagee. (Emphasis added.) Thus, Section 2924g creates an exception to the statute of frauds where the parties wish to postpone the sale proceedings. Second, plaintiff has alleged each of the elements of his breach of contract claims. Looking at the complaint, plaintiff alleges that in November 2009 it was orally agreed that if plaintiff made all of the trial payments in a timely fashion and provided all of the requested documents to BAC, defendant would execute a loan modification agreement. (Complaint, 12; Salcedo Declaration, 3.) Additionally, plaintiff alleges that he performed all of his obligations under the agreement by making all of the required trial payments, including the $1,000 per month payments that BAC later agreed to. (Complaint, 17; Salcedo Declaration, 3.) Plaintiff further alleges that BAC breached the agreement by refusing to deliver a permanent loan modification agreement and by instituting an improper foreclosure sale of the property. (Complaint, 22 and 24; Salcedo Declaration, 5.) Finally, plaintiff alleges that he was damaged by defendants sudden decision not to honor the loan modification

agreement because he did not have enough time to reinstate the loan or to take other action prior to the scheduled trustees sale, including filing for bankruptcy, which would have forced BAC to accept a payment plan, leasing the property, or conducting a short sale of the property. (Complaint, 19 and 20; Salcedo Declaration, 5.) Defendants next challenge plaintiffs third cause of action for promissory estoppel. Promissory estoppel is an equitable doctrine which employs equitable principles to satisfy the requirement that consideration must be given in exchange for the promise sought to be enforced. C&K Engineering Contractors v. Amber Steel Company (1978) 23 Cal.3d 1, 6. To prevail on a promissory estoppel cause of action, the plaintiff must prove (1) a promise clear and unambiguous in its terms, (2) reliance by the party to whom the promise is made, (3) the reliance must be both reasonable and foreseeable, and (4) the party asserting the estoppel must be injured by his reliance. U. S. Ecology, Inc. v. State of California (2005) 129 Cal.App.4th 887, 901. Defendants claim that plaintiff has not alleged a clear and unambiguous promise by BAC, nor has he alleged that he was damaged by his alleged reliance. The court again disagrees. Plaintiff alleges that BAC promised that if plaintiff made all of the trial payments, BAC would not conduct a trustees sale of the property and BAC would agree to a permanent loan modification. (Complaint, 12; Salcedo Declaration, 3.) In addition, plaintiff alleges that the promises by BAC induced him not to reinstate the loan or to take other action to protect his interest in the property, including filing for bankruptcy or conducting a short sale. (Complaint, 19 and 28; Salcedo Declaration, 5.) If proven, these allegations are sufficient to state a claim for promissory estoppel. Lastly, defendants argue that plaintiffs fourth cause of action for negligent misrepresentation is unsupported by any factual allegations. However, defendants are mistaken. The elements of a claim for negligent misrepresentation are (1) the defendantmade a representation regarding a material fact, (2) the representation was untrue, (3) the defendant made the representation without any reasonable ground for believing it to be true, (4) the defendant intended that the plaintiff rely on the representation, (5) the plaintiff reasonably relied on the representation, and (6) the plaintiff was harmed. Bily v. Arthur Young & Company (1992) 3 Cal.4th 370, 407408. Here, plaintiff has alleged that BAC made the promises set forth above without any reasonable grounds for believing them to be true and that as a result of BACs misrepresentations he was induced not to take any action to protect his property from foreclosure. (Complaint, 18, 32-33; Salcedo Declaration, 3 and 5.) These are sufficient allegations to support a claim for negligent misrepresentation. A balancing of the hardships in the case also weighs in favor of plaintiff and againstdefendants. The property at issue is plaintiffs home. (Complaint,

8; Salcedo Declaration, 1.) A denial of plaintiffs application for preliminary injunction would result in great harm to plaintiff as he would be forced to vacate the property following the foreclosure sale. Conversely, defendants will suffer little permanent harm if a preliminary injunction is issued since plaintiff has continued to make the $1,000 modified payment to BAC each month. (Salcedo Declaration, 3.) Further, plaintiff has pledged to make and to tender to BAC the regular trial payment of $3,600 per month during the pendency of the litigation. (Salcedo Declaration, 5.) Thus, granting the proposed injunction would not afford a boon to plaintiff by allowing him to hold onto his property obligation-free for an indeterminate period, as defendants allege in their opposition papers. Based on the foregoing, plaintiffs application for preliminary injunction is granted. Defendants are prohibited from selling, transferring, assigning, or conveying the subject property, or any interest therein, pending trial of the action. The preliminary injunction isgranted on two conditions, however. First, plaintiff must continue making the regular trial payment of $3,600 per month to BAC. Second, plaintiff must post a bond. Code of Civil Procedure Section 529 provides that in all cases where a preliminary injunction is granted, the court must require a bond. See, Federal Automotive Services v. Lane Buick Company (1962) 204 Cal.App.2d 689, 695 (an order granting a preliminary injunction that does not provide for a bond is inoperative and of no effect). The purpose of a bond is to compensate the defendant for any damages that may be sustained by reason of the injunction if the court finally decides that the plaintiff was not entitled to injunctive relief. Abba Rubber Company v. Seaquist (1991) 235 Cal.App.3d 1, 14. The amount of the bond shall be $50,000. Plaintiffs application for preliminary injunction is granted. Plaintiff is ordered to post a bond in the amount of $50,000.