Gass v. Western Progressive LLC, et al.

Case No.: 25STCV19214 Matter: Demurrer Moving Party: Defendants Robert S. Mochamuk and Erin L. Foley as Trustees of Mocharnuk Foley 2019 Living Trust, Dated November 12, 2019

Responding Party: Plaintiff Ingrid J. Aliet Gass Tentative Ruling: Defendants Robert S. Mochamuk and Erin L. Foley as Trustees of Mocharnuk Foley 2019 Living Trust, Dated November 12, 2019's demurrer is overruled.

Plaintiff Ingrid J. Aliet Gass, in propria per ("Plaintiff"), filed this action against Western Progressive LLC, Deutsche Bank National Trust Company, as Trustee for Argent Securities Inc., Asset Backed-Pass-Through Certificates, Series 2004-W 11, Evelyn French, Jason Bavara, all persons claiming property located at 168 Highland Place, Monrovia, California 91016, APN 8504-012-035 ("Subject Property"), and Does 1 to 50. The Second Amended Complaint ("SAC") alleged two causes of action for: (1) wrongful foreclosure; and (2) quiet title.

On March 6, 2026, Plaintiff named Defendants Robert S. Mochamuk and Erin L. Foley as Trustees of Mocharnuk Foley 2019 Living Trust, Dated November 12, 2019 ("Trustees") in this action. On March 9, 2026, the Court sustained Deutsche Bank National Trust Company as Trustee for Argent Securities Inc., Asset Backed-Pass-Through Certificates, Series 2004-W11's ("Deutsche") demurrer without leave to amend. On May 20, 2026, the Court sustained Trustees demurrer to the SAC with leave to amend. On June 9, 2026, Plaintiff filed a Third Amended Complaint ("TAC") alleging four causes of action for: (1) to set aside sale dated 8/21/2025; (2) cancellation of trustee's deed upon sale dated 8/21/2025; (3) wrongful foreclosure; and (4) quiet title.

Trustees demur to Plaintiff's TAC for failure to allege sufficient facts, uncertainty, failure to attach the alleged contract, and failure to allege whether the alleged contract was written, or implied. Plaintiff opposes.

Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.¿(Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law.¿(Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)¿"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ.

Proc., Sec. 452.)¿The court " ' "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . ." ' "¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.¿(Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

Untimely Opposition

"[A]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days. . . before the hearing. (Code Civ. Proc., Sec. 1005, subd. (b).) "If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate." (Cal. Rules of Court, rule 3.1300 (d).) Plaintiff submitted an untimely opposition. Trustees request that the Court not consider the opposition. The Court will exercise its discretion to consider the untimely opposition. Plaintiff is reminded that she must comply with all procedural requirements.

Meet and Confer

Pursuant to Code of Civil Procedure section 430.41, "a demurring party is required to meet and confer in person, by telephone, or video conference with the party that filed the pleading. . . ." (Code Civ. Proc. Sec. 430.41, subd. (a).) Trustees did not file a declaration to declare that the parties met and conferred in compliance with Code of Civil Procedure section 430.41, subdivision (a). In the interests of judicial efficiency, the Court will address the merits of Trustees' demurrer.

Demurrer

Trustees demur to Plaintiff's TAC on the grounds of uncertainty, failure to allege sufficient facts, failure to attach a contract, and failure to allege whether the contract was written, oral, or implied. As an initial matter, while Trustees demurs on the grounds that Plaintiff did not attach a contract, and failed to allege whether a contract was written, oral, or implied as permissible under Code of Civil Procedure, section 430.10, subdivision (g), Trustees did not make arguments on this basis in the moving papers. Similarly, Trustees demur on the basis of uncertainty, but do not provide legal arguments. Thus, the Court overrules Trustees' demurrer on these bases.

May 20 Court Order

"The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend." (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) While Plaintiff exceeded the scope of the Court order, a demurrer on that basis is not procedurally proper. Thus, Trustee's argument is inapplicable for purposes of demurrer.

Failure to Allege Sufficient Facts

Trustees demur to Plaintiff's TAC for failure to allege sufficient facts to allege viable causes of action. "The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced." (Cal. Rules of Court, rule 3.1113(b).) Trustees do not provide the Court with any legal authority to support the arguments they bring forth. The burden is on Trustees to argue that Plaintiff's TAC does not allege sufficient facts. Trustees attempt to rely on the Court's previous rulings; however, they have not presented any authority to establish that the previous outcomes replace their burden for their demurrer. Thus, the Court overrules Trustees' demurrer on this basis.

Conclusion

Defendants Robert S. Mochamuk and Erin L. Foley, as Trustees of Mocharnuk Foley 2019 Living Trust, Dated November 12, 2019's demurrer is overruled.

Case Number: 26STCV02203 Hearing Date: August 31, 2026 Dept: 516 Judge James I. Montgomery Department 516 Hearing Date: August 31, 2026 Case Name: Salcedo, et al. v. Select Portfolio Servicing, Inc., et al.