Hamilton vs. 712 Financial Services LLC

which the District employees were aware and that the employees did nothing. This cause of action is sufficiently pled. (C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 865–66 [“If a supervisory or administrative employee of the school district is proven to have breached that duty by negligently exposing plaintiff to a foreseeable danger of molestation by his guidance counselor, resulting in his injuries, and assuming no immunity provision applies, liability falls on the school district under section 815.2.”].)

Accordingly, the motion is DENIED.

Plaintiff shall give notice.

204 Hamilton vs. The demurrer of defendants 712 Financial Services 712 Financial LLC, Richard D. Niemi, Kathleen N. Niemi, Bruce Services LLC Hammett, Judith Hammett, Michael Jones, Darcy Cohen Jones, the Lighthouse II LLC, Shawn Reynolds, Janelle Reynolds, Richard W. Merritt Jr., and Britian L. Merritt (collectively, Moving Defendants) directed to the complaint of plaintiff Scott Peter Hamilton (Plaintiff) is SUSTAINED IN PART with 20 days leave to amend and OVERRULED IN PART, as set forth below.

First Cause of Action for Wrongful Foreclosure

“The elements of the tort of wrongful foreclosure are: ‘ “(1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering” ’; and (4) ‘ “no breach of condition or

failure of performance existed on the mortgagor’s or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.” ’ ” (Majd v. Bank of America, N.A. (2015) 243 Cal.App.4th 1293, 1306–1307.)

Moving Defendants are correct Plaintiff has not alleged he tendered the amount of the secured indebtedness or sufficient facts showing he was excused from tendering. The Complaint also fails to plead facts showing no breach of condition or failure of performance by Plaintiff. The Complaint essentially admits Plaintiff was in breach of the loan. Moving Defendants are also correct the pleading is uncertain because it does not identify the security clause which is alleged to have been “embedded in the April 21, 2022 Deed of Trust” and which Plaintiff alleges “expressly prohibited Plaintiff from obtaining additional financing.” (See Compl., ¶ 22.)

The demurrer to the first cause of action is SUSTAINED with 20 days leave to amend.

Second Cause of Action for Breach of Covenant of Good Faith

Moving Defendants appear to simply contend they properly asserted their rights under the Deed of Trust and California’s foreclosure law. However, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) In addition, the question of the plaintiff’s ability to prove the allegations in the complaint, or possible difficulties in making such proof, is of no concern in ruling on a demurrer. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213- 214.)

The allegations of the Complaint appear sufficient to plead breach of the implied covenant. (See Compl., ¶ 53; Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1394-1395.)

The demurrer to the second cause of action is OVERRULED.

Third Cause of Action for Fraud

Moving Defendants are correct the fraud claim is not pled with the requisite specificity. There are no facts pled showing the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

The demurrer to the third cause of action is SUSTAINED with 20 days leave to amend.

Fourth Cause of Action for Intentional Interference With Prospective Advantage

Moving Defendants cite to authority setting forth the elements of a claim for intentional interference with prospective economic advantage and then state simply: “None of the elements of a legally viable interference claim are pled because they cannot be pled.” Moving Defendants failed to provide any reasoned argument to support this contention. Points that are raised that are not supported by reasoned argument may be disregarded. (See City of Palo Alto v. Public Employment Relations Board (2016) 5 Cal.App.5th 1271, 1318; Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.)

The demurrer to the fourth cause of action is OVERRULED.

Fifth Cause of Action for Unjust Enrichment

There is a split in authority as to whether “unjust enrichment” is a separate cause of action. (Compare Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793; McBride v. Boughton (2004) 123 Cal.App.4th 379, 387; and Castillo v. Toll Bros., Inc. (2011) 197 Cal.App.4th 1172, 1209-1210 with Ghirardo v. Antonioli (1996) 14 Cal.4th 39, 43-44 and Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593.) Due to this split in authority, the court will allow the claim to proceed.

The demurrer to the fifth cause of action is OVERRULED.

Sixth Cause of Action for Conversion

“ ‘Conversion is the wrongful exercise of dominion over the property of another.” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 451– 452.)

This claim is based on allegations that Moving Defendants wrongfully took possession of and disposed of Plaintiff’s personal property located within the Subject Property after the foreclosure and eviction. (Compl., ¶ 84-86.) Moving Defendants contend there is no wrongful act alleged because this matter involved an unlawful detainer, “not a home robbery.” However, the Complaint alleges the foreclosure and resulting eviction themselves were wrongful.

The demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action for Infliction of Emotional Distress

The allegations Moving Defendants intentionally hindered repayment of the loan with the intent to oust Plaintiff from his home in order to obtain the Subject Property’s significant equity for themselves appear sufficient to plead outrageous conduct by Moving Defendants. (See Compl., ¶¶ 22, 30, 53, 93; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-51.)

The demurrer to the seventh cause of action is OVERRULED.

Eighth Cause of Action for Quiet Title

Moving Defendants argue “[t]here simply is no legitimate dispute about title” because Plaintiff lost ownership of the Subject Property following a routine foreclosure sale. However, the entire basis for Plaintiff’s Complaint is that the foreclosure sale was improper.

The demurrer to the eighth cause of action is OVERRULED.

Ninth Cause of Action for Rescission

“Rescission is not a cause of action; it is a remedy.” (Nakash v. Superior Court (1987) 196 Cal.App.3d 59, 70, emphasis in original.) The demurrer to the ninth cause of action is SUSTAINED with 20 days leave to amend.

Moving Defendants shall give notice.

205 Hilbert Group, Court withholds a tentative ruling. LLC vs. Nano Banc, Inc. 206 James vs. The court withholds a tentative ruling. Parties Paired Up LLC should come to oral argument ready to discuss the