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Tentative Rulings, Truckee - Law and Motion

>Egan v. Nationstar Mtg. Case No. TCU14-5814
>Li v. Georgiou Case No. NCU14-0001

Egan v. Nationstar Mtg. Case No. TCU14-5814 

(1) Nationstar’s Demurrer to First Amended Complaint

The demurrer to the cause of action for promissory estoppel is overruled. Promissory estoppel is permitted under the facts of this case. The allegation of a TPP contract, through which a permanent modification was to be offered if certain conditions were met, satisfied the promissory estoppel element of a clear and unambiguous promise. See Bushell v. JPMorgan Chase Bank, N.A. (2013) 220 Cal. App. 4th 915, 930. All terms of the promise are included in the complaint so it does not need to be attached. Plaintiffs have also pled detrimental reliance on the Notice of the change in payment because Plaintiffs allege they made a payment of $1,885.13 to Nationstar.

The demurrer to the cause of action for breach of the implied covenant is likewise overruled. Plaintiffs allege that they relied on the 12/4/13 correspondence regarding the changes in rate and payments and did not make their third TPP payment based on this letter. Further, Plaintiffs allege that Defendants unfairly interfered with Plaintiffs’ right to receive the benefits of the HAMP loan modification due to Defendant’s faulty notices.

The demurrer to the Homeowners’ Bill of Rights claims based on unconstitutionality is overruled. The acts and omissions after January 1, 2013 are subject to the Civil Code requirements and such requirements are not being applied retroactively.

The demurrer to the cause of action for Civil Code §2923.55 is overruled. Plaintiffs’ complaint relies on that portion of the statute that states a NOD cannot be recorded if the borrower has requested proof of Defendants’ right to foreclose. Plaintiffs have alleged that on 5/23/14, Plaintiffs made a written request to Defendants for the documents and did not receive a response. Such allegations are sufficiently pled.

The demurrer to the cause of action for Civil Code §2923.6 is overruled. Plaintiffs have alleged that Defendants recorded a NOTS on 6/7/13 when the loan application submitted prior to June 2013 was pending. Such allegations constitute dual tracking in violation of the statute.

The demurrer to the cause of action for Civil Code § 2923.7 is overruled. The statute does not state that the borrower has to request a single point of contact. Rather, it states, “Upon request from a borrower who requests a foreclosure prevention alternative, the mortgage servicers shall promptly establish a single point of contact….” Plaintiffs have alleged that they requested a foreclosure alternative and were not provided with a single point of contact. The allegations are sufficient.

The demurrer to the cause of action for Civil Code § 2924.12 is overruled. Because the other claims are adequately pled, so, too, is this claim.

The demurrer to the cause of action for B&P §17200 is overruled. Plaintiffs have alleged the loss of a permanent modification, back dues and interest. This is sufficient to allege standing. Because the claims above are adequately pled, so, too, are the unfair/unlawful conduct allegations.

(2) Nationstar’s Motion to Strike Portions of First Amended Complaint

Defendant’s motion to strike various paragraphs that allege a sale occurred is denied. Plaintiffs do not allege that a sale occurred. Rather, the allegations state only that defendant “moved forward with the non-judicial foreclosure sale proceedings.”

Defendant’s motion to strike punitive damages is granted. Fraud has not been alleged. Breach of the implied covenant of good faith and fair dealing sounds in contract, not tort.

Defendant’s motion to strike damages under HBOR is granted. Only injunctive relief is available prior to foreclosure. See Civil Code §2923.12.

Defendant’s motion to strike damages and attorney’s fees under B&P §17200. A UCL claim is equitable in nature and damages cannot be recovered. Madrid v. Perot Sys. Corp. (2005) 130 Cal.App.4th 440, 452. Moreover, a claim under B&P 17200 does not grant a right to attorney’s fees. Cel-Tech Comm. v. Los Angeles Cellular (1999) 20 Cal.4th 163, 179. Plaintiff has not alleged the necessary criterial under CCP §1021.5.

However, Plaintiffs are granted leave to amend. Any amended complaint shall be served and filed by November 6, 2014. If Plaintiffs fail to file an amended complaint by such date, then Defendant’s Answer shall be served and filed by November 16, 2014.

(3) Quality Loan’s Demurrer

Quality Loan’s Demurrer is dropped pursuant to the Stipulation and Order dated October 16, 2014.

Plaintiff’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.


Li v. Georgiou Case No. NCU14-0001 

Plaintiff’s Motion to Compel Answers to Deposition Questions is denied.

As stated in 2 Witkin, Cal. Evid. 5th (2012) Witnesses, §518, p. 916: “There may also be an implied or constructive waiver from partial disclosure of incriminating facts. By voluntarily answering questions as to some of the facts of a transaction involving criminal conduct, the witness is held to have waived the privilege not only as to those, but as to all other facts connected with that transaction. (See People v. Freshour (1880) 55 C. 375, 376; Regents of Univ. of Calif. v. Superior Court (1962) 200 C.A.2d 787, 791, 19 C.R. 568; 1 McCormick 6th, §133; 8 Wigmore (McNaughton Rev.) §2276; 38 Cal. L. Rev. 930; 70 Harv. L. Rev. 1459; 92 Harv. L. Rev. 1752; 72 A.L.R.2d 830 [testifying in civil proceeding as waiver of privilege against self-incrimination]; 4 A.L.R.3d 545 [dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question].)”

Further, in the case of Rogers v. United States (1951) 340 US 367, “Where a witness has voluntarily answered as to materially criminating facts… he cannot then stop short and refuse further explanation, but must disclose fully what he has attempted to relate.”

In the present case, Defendant answered questions relating to whether or not he had driven in the snow before and that he had been traveling east at the time of the accident in question. The Court finds that such statements are not ‘materially criminating’ statements.

Moreover, waiver of a person’s Fifth Amendment privilege is not “to be lightly inferred,” and courts should indulge every reasonable presumption against finding a waiver. Emspak v. United States (1955) 249 US 190, 196.

Based upon the foregoing, the motion to compel is denied. Additionally, the request for sanctions is likewise denied.

Plaintiff’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.