Demurrer to Amended Complaint
2. 30-2023-01351700 1. Case Management Conference 2. Demurrer to Amended Complaint Do vs. International City Mortgage Defendant GenWay Home Mortgage dba Doorway Home Loan, fka International City Mortgage (“GenWay”) demurs to the Second Amended Complaint (SAC) of plaintiffs HienThu T. Do, MaiThao Thi Do, and Thong H. Do.
GenWay’s unopposed request for judicial notice is GRANTED. (Evid. Code, § 452(d), (h).)
This action arises out of a home loan previously serviced by GenWay. Plaintiffs allege that a $30,000.00 overpayment was made in September 2013 by HienThu T. Do to GenWay but the overpayment was never applied to the principal of the loan and the maturity date remained the same. Plaintiffs further allege that GenWay failed to produce or transfer records of the payment made prior to April 2014, violating their statutory right to know their personal information, in a deliberate attempt to conceal the overpayment.
They further allege that GenWay’s documents reflect false escrow overcharges where the monthly payment was increased under false pretenses and multiple “Escrow Refunds” and “Disbursement to Mortgagor” recordings that Plaintiffs never actually received. Plaintiffs seek restitution of the $30,000.00 overpayment and subsequent fraudulent overcharges and punitive damages as a result of GenWay’s willful misrepresentations.
Failure to Join an Indispensable Party GenWay argues the SAC fails because Plaintiffs still have not joined the current owner and/or servicer of the loan and that entity is an indispensable party. GenWay contends that complete relief cannot be accorded among the parties in the absence of the current owner and/or servicer.
Plaintiffs are seeking restitution of the $30,000.00 from GenWay. If their claim is successful, there will be no impact on the loan that is currently owned and/or being serviced by another entity. Thus, complete relief between Plaintiffs and GenWay can be accorded without joining the current owner and/or servicer. The Demurrer based on failure to join an indispensable party is OVERRULED.
Standing of HienThu T. Do GenWay next argues that HienThu T. Do lacks standing because the Deed of Trust shows that only MaiThao Thi Do and Thong H. Do were borrowers on the loan. GenWay argues that HienThu T. Do is not a real party in interest.
“A person who invokes the judicial process lacks standing if he, or those whom he properly represents, ‘does not have a real interest in the ultimate adjudication because [he] has neither suffered nor is about to suffer any injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented.’ [Citation.]” (
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First Cause of Action for Unjust Enrichment Next, GenWay argues that the unjust enrichment cause of action fails because unjust enrichment is not a cause of action and Plaintiffs cannot allege that GenWay unjustly retained any benefit to
Plaintiffs’ detriment, as Plaintiffs concede that they were required to make payments under the loan.
There is a split of authority, as to whether “unjust enrichment” is an independent cause of action. (Levine v. Blue Shield of California (2010) 189 Cal.App.4th 1117, 1138 [“Although some California courts have suggested the existence of a separate cause of action for unjust enrichment [citation], this court has recently held that ‘[t]here is no cause of action in California for unjust enrichment.’”].) The Court will follow Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, which treats unjust enrichment as a separate claim. Pursuant to Peterson, “[t]he elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another.’” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.)
Plaintiffs have adequately alleged that GenWay has unjustly retained their overpayment to their detriment. While Plaintiffs were required to make payments under the loan, their allegations do not concern those required payments. Instead, they relate to a one-time overpayment that was allegedly never applied. These allegations, which must be accepted as true at the demurrer stage, are sufficient to demonstrate unjust retention. Moreover, Plaintiffs’ claims also relate to allegedly false escrow overcharges and refunds/disbursements that are reflected in GenWay’s records but never actually received by Plaintiffs. These allegations also support Plaintiffs’ claim of unjust retention. Therefore, the Demurrer to the unjust enrichment cause of action is OVERRULED.
Second Cause of Action for Fraudulent Misrepresentation GenWay argues this cause of action fails because it is barred by the applicable three-year statute of limitations and also does not plead facts with sufficient specificity.
Code of Civil Procedure section 338(d) provides that an action for fraud must be brought within three years. It further states: “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.” “This section effectively codifies the delayed discovery rule in connection with actions for fraud[.]” (Britton v. Girardi (2015) 235 Cal.App.4th 721, 733-734.) The delayed discovery rule tolls the accrual of a cause of action until the plaintiff discovers or has reason to discover the cause of action. (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806-807.)
Here, Plaintiffs allege that GenWay destroyed records and entered false accounting entries. They further allege that GenWay failed to produce or transfer records of their overpayment. There are no allegations in the SAC as to when Plaintiffs actually obtained any records which gave them notice that the overpayment was not applied or that there were false escrow overcharges and refunds/disbursements that they never received. Because the SAC alleges sufficient facts to invoke the delayed discovery rule and the SAC on its face does not show that the cause of action is time-barred, the Demurrer based on statute of limitations grounds fails. (E-Fab, Inc. v.
Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315-1316 [“ ‘In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.’ ”].)
As to the sufficiency of the allegations, Plaintiffs are alleging that GenWay either did not provide records or falsified records to include overcharges that should not have been applied or refunds/disbursements that were not actually paid out. Under such allegations of concealment, the heightened pleading standard is harder to apply. (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384.) “One of the purposes of the specificity requirement is ‘notice to the defendant, to furnish the defendant with certain definite
charges which can be intelligently met.’” (Ibid.) “Less specificity should be required of fraud claims ‘when “it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,” [citation]; “[e]ven 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 . . . .” ’ ” (Ibid.)
Here, GenWay must necessarily possess the full facts regarding GenWay’s own records regarding the loan, as well as the calculations of overcharges and refunds/disbursements. Therefore, less specificity is required of Plaintiffs’ pleading. Plaintiffs allege the time of the alleged concealment (documents starting in April 2014), the nature of the concealment, and the damages being claimed as a result of that concealment. Thus, the Court finds that the allegations are sufficient and the Demurrer as to the fraud cause of action is OVERRULED.
GenWay is ordered to file an answer to the SAC within 20 days.
Moving party to give notice.
4. 30-2025-01455873 1. Case Management Conference 2. Motion to Be Relieved as Counsel of Record Silva vs. Ford Motor Company The unopposed motion of Strategic Legal Practices, APC to be relieved as counsel for Plaintiff Enrique Silva is DENIED WITHOUT PREJUDICE.
On 05/07/2026, the Court continued the hearing on this motion to 06/18/2026 because Moving Counsel did not show that the moving papers were timely served on the client and all other parties who have appeared in the case at least 16 court days before the hearing pursuant to code. (ROA 104.) The Court continued the hearing and ordered Moving Counsel to file “proof of service of the moving papers no later than 16 court days before the continued hearing.” (Ibid.)
Based on the Court’s order and code, the proof of service needed to be filed by 05/27/2026. Moving Counsel again did not file a timely proof of service and did not establish timely service of the moving papers on the client and appearing parties. (See Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rule 3.1362, subd. (d).)
The Motion is DENIED WITHOUT PREJUDICE.
Moving counsel to give notice.
6. 30-2024-01448151 1. Motion to Be Relieved as Counsel of Record
Conley vs. Kang The unopposed motion of attorney Jessica Williams of Sweet James LLP to be relieved as counsel for Plaintiff DaVon James Conley is CONTINUED.
Moving counsel did not show proof of service of the moving papers on the client. (See Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rule 3.1362, subd. (d).) While the declaration filed in support of the motion states that the client was served by mail, there is no proof that the client was timely served with the papers.
The hearing on the Motion is CONTINUED to July 30, 2026 at 1:30 pm in C34.