Castro v. Newrez, LLC, et al.

A general demurrer, “admits the truth of all material factual allegations in the complaint;” the plaintiff’s “ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court ....” (Alcorn v. Anbro 6

Engineering, Inc. (1970) 2 Cal.3d 493, 496; Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 190 [“We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken.”].)

Tender

“It is settled that an action to set aside a trustee's sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.” (Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578; see also Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 87 [“full tender of the indebtedness must be made to set aside a foreclosure sale based on irregularities in the foreclosure procedure.”.) “The tender requirement ‘is based on the theory that one who is relying upon equity in overcoming a voidable sale must show that [he] is able to perform [his] obligations under the contract so that equity will not have been employed for an idle purpose.’ [Citation.]” (Ibid.)

“It would be futile to set aside a foreclosure sale on the technical ground that notice was improper, if the party making the challenge did not first make full tender and thereby establish [his] ability to purchase the property. Thus, it is sensible to require that a trustor, whose default to begin with resulted in the foreclosure, give proof before the sale is set aside that he now can redeem the property.” (United States Cold Storage v. Great Western Savings & Loan Assn. (1985) 165 Cal.App.3d 1214, 1225.)

Recognized exceptions to the tender rule include when: (1) the underlying debt is void, (2) the foreclosure sale or trustee's deed is void on its face, (3) a counterclaim offsets the amount due, (4) specific circumstances make it inequitable to enforce the debt against the party challenging the sale, or (5) the foreclosure sale has not yet occurred. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 112–113,; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1280–1281, [recognizing the fifth exception].)

Here, defendants argue that plaintiffs’ causes of action fail because Plaintiffs do not allege tender.

Plaintiffs do not allege tender, nor does the FAC plead an exception to the tender rule. Plaintiffs argue that a tender is unnecessary because no trustee’s sale has occurred in this case and their alleged statutory violations of the Homeowner’s Bill of Rights (“HBOR”) include no such requirement. (Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1273-1274.) Plaintiffs are correct that the allegation of tender is unnecessary where the trustee’s sale has not yet occurred, however there is no clear allegation that the sale has not occurred for the exception to apply.

Neither are there causes of action for violations of the HBOR alleged in the complaint. Rather, plaintiffs have listed provisions of the HBOR and alleged the conclusion that defendants have violated these sections of the Civil Code in Attachment 9 of the FAC and within the breach of contract cause of action. This is inadequate to overcome defendants’ demurrer.

First Cause of Action: Breach of Contract

The FAC alleges defendant Newrez, LLC is breach of the Deed of Trust by failing to perform its servicing duties. The FAC alleges violations of the HBOR as breaches under the contract. Defendants demur to the cause of action as there is no contract alleged between plaintiff Flor Sequeria and the loan servicing company, Newrez, LLC or bank. Although the complaint includes allegations that Flor Sequeria is an owner of the home this is not the equivalent of her being a party to the loan contract. The demurrer as to plaintiff Flor Sequeria on this basis is sustained.

Defendants additionally argue the cause of action is inadequately pled as there are no allegations as to what provision of the contract have been breached. As alleged, the breaches are not terms of the contract but references to the HBOR. As such, no cause of action is stated as there is no breach of the terms of the contract alleged.

To the extent the cause of action could be understood to be alleging violations of the HBOR, no cause of action is stated. Allegations consisting of conclusions that provisions of the HBOR were violated is not sufficient to allege a violation of the statute. Plaintiffs’ opposition argues the documents attached to the FAC adequately demonstrate the breaches alleged and plaintiffs describe what actions are violations of which provisions of the HBOR. Attaching documents to the complaint does not relieve the plaintiffs of the requirement to allege facts to demonstrate what defendants have violated what provision of a statute or contract.

Second Cause of Action: Fraud

Each element of a fraud cause of action must be pleaded with particularity so as to apprise the defendant of the specific grounds for the charge and enable the court to determine whether there is any basis for the cause of action. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216–217.) In particular, the plaintiff must allege with particularity “ ‘ “facts which show how, when, where, to whom, and by what means the representations were tendered.” ’ ” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Against a corporate defendant, the pleading must allege the name of the person who made the representation, his or her authority to speak, to whom he or she spoke, and how the representation was communicated. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

Here, defendants claim the misrepresentations have not been pled with specificity as to who on behalf of the corporation made the misrepresentations alleged and the elements generally are insufficiently pleaded.

Against Newrez, LLC, plaintiffs allege misrepresentations were made repeatedly and specifically during an October 17, 2025 phone call regarding the status of plaintiffs’ loan modification and forbearance process. Plaintiffs have not met the exacting pleading standards imposed by law. Although there is sufficient factual information alleged to determine the identification of the representative on the phone, there are not allegations as to the person’s position or authority to speak on behalf of the company.

With respect to U.S. Bank Trust National Association, in contrast with the allegations identifying a specific date and phone call, the allegations include no information as to

who on behalf of the entity made the general representations that the foreclosure would not proceed, when, or this person’s authority to speak. This is insufficient.

Accordingly, the general demurrer to the first cause of action is sustained with leave to amend.

Uncertainty

Defendants additionally demur specially one the ground the complaint is uncertain as to against whom the allegations found in Attachment 9 or the second form complaint cover page alleging general negligence and negligent infliction of emotional distress are alleged. Section 430.10, subdivision (f) authorizes a party against whom a complaint has been filed to object by special demurrer to the pleading on the ground that “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.”

Demurrers for uncertainty are disfavored. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may be sustained when the complaint is drafted in a manner that is so vague or uncertain that the defendant cannot reasonably respond, e.g., the defendant cannot determine what issues must be admitted or denied, or what causes of action are directed against the defendant. (Ibid.) Demurrers for uncertainty are appropriately overruled where “ambiguities can reasonably be clarified under modern rules of discovery.” (Ibid.)

There are no cause of action attachments for the general negligence or negligent infliction of emotional distress causes of action. Further, the conclusory allegations with respect to violations of the HBOR are not clearly plead as a cause of action against any defendant. It is unclear whether the plaintiffs intend to allege the additional causes of action identified and the basis for those causes of action against a given defendant. Accordingly, the special demurrer is sustained with leave to amend.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: SMC on July 2, 2026. (Judge’s initials) (Date)

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