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Tentative Rulings, Truckee - Law and Motion

>Maguire v. Cole Case No. TCU14-5738
>Arndell Family Trust v. Generation Mortgage Case No. TCU14-5809

Maguire v. Cole Case No. TCU14-5738 

Defendants’ unopposed Motion to Compel Plaintiff’s Responses to Form Interrogatories is granted.

Defendants are directed to serve a copy of the Form Interrogatories along with a copy of the signed Order After Hearing on Plaintiff on or before December 29, 2014.

Plaintiff shall serve responses and responsive documents, without objections, by January 13, 2015.

Defendants’ request for sanctions is denied. First, the Form Interrogatories were sent to Plaintiff’s attorney at the time and there is no showing that Plaintiff, after he became in pro per, ever received a copy of the Interrogatories. Additionally, the declaration in support of the motion did not seek a specific amount of sanctions. No hourly rate or number of hours are set forth in the declaration.

Moving Party’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 582-7835 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.


Arndell Family Trust v. Generation Mortgage Case No. TCU14-5809 

The demurrers are sustained without leave to amend in part and overruled in part.

Both Requests for Judicial Notice are granted in their entirety.

The demurrer to the first cause of action for breach of contract as against all Defendants is sustained without leave to amend. As to this cause of action, Plaintiffs allege that the defendants violated various HUD and FHA regulations. However, Plaintiffs have provided no authority that such regulations permit a private right of action. Moreover, in the absence of some special relationship, a person has no duty to take affirmative steps to protect another from harm arising out of the unlawful conduct of a third person. Schaud v. Southern California Edison Co. (1966) 243 Cal.App.2d 450.

The demurrer to the second cause of action against Generation is overruled. By this cause of action, Plaintiffs allege an oral contract by Generation to pay taxes until the home was sold due on the allegations of embezzlement. A borrower may allege the equitable estoppel exception to the Statute of Frauds as to a loan modification agreement when compliance with the agreement and detrimental reliance. See Chavez v. Indymac Mortgage Services (2013) 219 Cal. App. 4th 1052, 1060-61. Here, Plaintiffs have sufficiently alleged partial performance, equitable estoppel, and reliance which would place the oral agreement outside the Statute of Frauds.

The demurrer to the third cause of action against RMS is sustained without leave to amend as to the allegations relating to a “sham refinance.” A lender has no obligation to refinance. However, the demurrer is overruled as to the allegations that RMS entered into an oral agreement to pay the taxes until the house sold. Plaintiffs have alleged partial performance, equitable estoppel, and reliance which would place the oral agreement outside the Statute of Frauds.

The demurrer to the fourth cause of action is overruled as to Defendants Waterfall Asset and Waterfall Victoria. Plaintiffs have alleged that these moving defendants are successors in interest to the note and deed of trust, and as successors, stand in the shoes of Generation, who purportedly entered into an oral agreement to pay the taxes. The demurrer is sustained without leave to amend as to Defendant NDex, as such Defendant is not a successor, but is only the trustee as alleged by Plaintiffs.

The demurrer to the fifth cause of action for breach of the covenant is sustained without leave to amend as to NDex and RMS. They are not in privity to any contract. However, the demurrer is overruled as to Defendants Generation, Waterfall Asset, and Waterfall Victoria. Plaintiffs have alleged a contract with these defendants and/or these defendants are successors in interest to such contract.

The demurrer to the sixth cause of action against all Defendants for declaratory relief is sustained without leave to amend. Such cause of action is duplicative. The very issues that are raised in this cause of action will be resolved by other causes of action so this request for declaratory relief is unnecessary and serves no purpose. California Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1623.

The demurrer to the seventh and eighth causes of action against Defendant Generation for negligent misrepresentation and fraudulent misrepresentation is overruled. The causes of action are adequately pled, with the required specificity.

The demurrer to the ninth and tenth causes of action against Defendant RMS for negligent misrepresentation and fraudulent misrepresentation is overruled. The causes of action are adequately pled, with the required specificity.

The motions to strike the punitive and exemplary damages paragraphs are granted without leave to amend, except for the paragraphs that relate to the seventh, eighth, ninth, and tenth causes of action. Because those claims adequately allege fraud, oppression or malice, punitive damages are permissible.

Any Answers must be served and filed by December 18, 2014.

Plaintiff’s attorney is to submit a formal order that sets out verbatim the tentative ruling for all matters herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s law and motion secretary at (530) 582-7835 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense. Local Rule 10.00.3B.