This case was last updated from Los Angeles County Superior Courts on 01/23/2021 at 02:17:57 (UTC).

ZULA TUCKER LIVING TRUST DATED SEPTEMBER 15, 2006, FRED TUCKER, TRUSTEE VS DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, ET AL.

Case Summary

On 04/24/2020 ZULA TUCKER LIVING TRUST DATED SEPTEMBER 15, 2006, FRED TUCKER, TRUSTEE filed a Property - Foreclosure lawsuit against DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******3595

  • Filing Date:

    04/24/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Spring Street Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

ZULA TUCKER LIVING TRUST DATED SEPTEMBER 15 2006 FRED TUCKER TRUSTEE

Defendants

WESTERN PROGRESSIVE LLC

OCWEN LOAN SERVICING LLC

DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS

Attorney/Law Firm Details

Defendant Attorney

MINA ANDREW EHAB

 

Court Documents

Opposition (name extension) - Opposition Plaintiff Opposition To Demurred by Defendants

1/12/2021: Opposition (name extension) - Opposition Plaintiff Opposition To Demurred by Defendants

Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 01/21/2021

1/21/2021: Certificate of Mailing for - Certificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 01/21/2021

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

1/21/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Request for Judicial Notice - Request for Judicial Notice

8/17/2020: Request for Judicial Notice - Request for Judicial Notice

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

8/17/2020: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Proof of Personal Service - Proof of Personal Service

6/29/2020: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

6/29/2020: Proof of Personal Service - Proof of Personal Service

Proof of Personal Service - Proof of Personal Service

6/29/2020: Proof of Personal Service - Proof of Personal Service

Declaration (name extension) - Declaration of Demurring or Moving Party in Support of Automatic Extension

7/13/2020: Declaration (name extension) - Declaration of Demurring or Moving Party in Support of Automatic Extension

First Amended Standing Order - First Amended Standing Order

4/24/2020: First Amended Standing Order - First Amended Standing Order

Certificate of Mailing for - Certificate of Mailing for [First Amended Standing Order, Notice of Case Assignment - Limited Civil Case]

5/14/2020: Certificate of Mailing for - Certificate of Mailing for [First Amended Standing Order, Notice of Case Assignment - Limited Civil Case]

Complaint - Complaint

4/24/2020: Complaint - Complaint

Summons - Summons on Complaint

4/24/2020: Summons - Summons on Complaint

Civil Case Cover Sheet - Civil Case Cover Sheet

4/24/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

4/24/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

4 More Documents Available

 

Docket Entries

  • 04/28/2023
  • Hearing04/28/2023 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 10/22/2021
  • Hearing10/22/2021 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 01/21/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 01/21/2021
  • DocketCertificate of Mailing for (Hearing on Demurrer - without Motion to Strike) of 01/21/2021; Filed by: Clerk

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  • 01/21/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 01/21/2021 at 10:30 AM in Spring Street Courthouse at Department 25 updated: Result Date to 01/21/2021; Result Type to Held

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  • 01/12/2021
  • DocketOpposition Plaintiff Opposition To Demurred by Defendants; Filed by: Zula Tucker Living Trust Dated September 15, 2006, Fred Tucker, Trustee (Plaintiff)

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  • 08/18/2020
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 01/21/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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  • 08/17/2020
  • DocketDemurrer - without Motion to Strike; Filed by: Deutsche Bank National Trust Company Americas (Defendant); Western Progressive, LLC (Defendant); Ocwen Loan Servicing, LLC (Defendant)

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  • 08/17/2020
  • DocketRequest for Judicial Notice; Filed by: Deutsche Bank National Trust Company Americas (Defendant); Western Progressive, LLC (Defendant); Ocwen Loan Servicing, LLC (Defendant)

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  • 07/13/2020
  • DocketDeclaration of Demurring or Moving Party in Support of Automatic Extension; Filed by: Deutsche Bank National Trust Company Americas (Defendant); Western Progressive, LLC (Defendant); Ocwen Loan Servicing, LLC (Defendant)

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3 More Docket Entries
  • 05/14/2020
  • DocketCertificate of Mailing for [First Amended Standing Order, Notice of Case Assignment - Limited Civil Case]; Filed by: Clerk

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  • 05/14/2020
  • DocketUpdated -- First Amended Standing Order: As To Parties: removed

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  • 05/08/2020
  • DocketNon-Jury Trial scheduled for 10/22/2021 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 05/08/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 04/28/2023 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 04/24/2020
  • DocketComplaint; Filed by: Zula Tucker Living Trust Dated September 15, 2006, Fred Tucker, Trustee (Plaintiff); As to: Deutsche Bank National Trust Company Americas (Defendant); Western Progressive, LLC (Defendant); Ocwen Loan Servicing, LLC (Defendant)

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  • 04/24/2020
  • DocketSummons on Complaint; Issued and Filed by: Zula Tucker Living Trust Dated September 15, 2006, Fred Tucker, Trustee (Plaintiff); As to: Deutsche Bank National Trust Company Americas (Defendant); Western Progressive, LLC (Defendant); Ocwen Loan Servicing, LLC (Defendant)

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  • 04/24/2020
  • DocketCivil Case Cover Sheet; Filed by: Zula Tucker Living Trust Dated September 15, 2006, Fred Tucker, Trustee (Plaintiff); As to: Deutsche Bank National Trust Company Americas (Defendant); Western Progressive, LLC (Defendant); Ocwen Loan Servicing, LLC (Defendant)

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  • 04/24/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 04/24/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 04/24/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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Tentative Rulings

Case Number: 20STLC03595    Hearing Date: January 21, 2021    Dept: 25

HEARING DATE: Thu., January 21, 2021 JUDGE /DEPT: Blancarte/25

CASE NAME: Zula Tucker Living Trust v. Deutsche Bank National Co. Americas, et al.

CASE NUMBER: 20STLC03595 COMPL. FILED: 04-24-20

NOTICE: OK DISC. C/O: 09-22-21

DISC. MOT. C/O: 10-07-21

TRIAL DATE: 10-22-21

PROCEEDINGS: DEMURRER TO PLAINTIFF’S COMPLAINT

MOVING PARTY: Defendants Deutsche Bank National Trust Company, Ocwen Loan Servicing, LLC, and Western Progressive Trustee

RESP. PARTY: Plaintiff Fred Tucker as trustee of the Zula Tucker Living Trust Dated September 15, 2006, in pro per

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants’ Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the first and second causes of action and SUSTAINED WITH LEAVE TO AMEND as to the third and fourth causes of action. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: Filed on January 12, 2021 [ ] Late [ ] None

REPLY: None filed as of January 19, 2021 [ ] Late [X] None

ANALYSIS:

I. Background

On April 24, 2020, Plaintiff Fred Tucker, as trustee of the Zula Tucker Living Trust dated September 15, 2006 (“Plaintiff”), in pro per, filed an action alleging wrongful foreclosure, elderly financial abuse, breach of the implied covenant of good faith and fair dealing, and fraud against Defendants Deutsche Bank National Trust Company Americas (“Deutsche”), Western Progressive, LLC (“Western”), and PHH Mortgage Corporation, successor-by-merger to Ocwen Loan Servicing, LLC (“Ocwen”) (collectively, “Defendants”).

Defendants filed the instant Demurrer to Plaintiff’s Complaint (the “Demurrer”) on August 17, 2020. Plaintiff filed an Opposition on January 12, 2021. To date, no reply brief has been filed.

II. Legal Standard

“The primary function of a pleading is to give the other party notice so that it may prepare its

case [citation], and a defect in a pleading that otherwise properly notifies a party cannot be said to

affect substantial rights.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240.)

“A demurrer tests the legal sufficiency of the factual allegations in a complaint.” (Ivanoff v. Bank of

America, N.A. (2017) 9 Cal.App.5th 719, 725.) The Court looks to whether “the complaint alleges

facts sufficient to state a cause of action or discloses a complete defense.” (Id.) The Court does not

“read passages from a complaint in isolation; in reviewing a ruling on a demurrer, we read the

complaint ‘as a whole and its parts in their context.’ [Citation.]” (West v. JPMorgan Chase Bank,

N.A. (2013) 214 Cal.App.4th 780, 804.) The Court “assume[s] 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.” (Harris, supra, 56 Cal.4th p. 240.) “The court does not,

however, assume the truth of contentions, deductions or conclusions of law. [Citation.]” (Durell v.

Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.)

A general demurrer may be brought under Code of Civil Procedure section 430.10, subdivision (e) if insufficient facts are stated to support the cause of action asserted or under section 430.10, subdivision (a), where the court has no jurisdiction of the subject of the cause of action alleged in the pleading. All other grounds listed in Section 430.10, including uncertainty under subdivision (f), are special demurrers. Special demurrers are not allowed in limited jurisdiction courts. (Code Civ. Proc., § 92, subd. (c).)

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Id.)

Finally, Code of Civil Procedure section 430.41 requires that “[b]efore filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) The parties are to meet and confer at least five days before the date the responsive pleading is due. (Code Civ. Proc., § 430.41, subd. (a)(2).) Thereafter, the demurring party shall file and serve a declaration detailing their meet and confer efforts. (Code Civ. Proc., § 430.41, subd. (a)(3).)

III. Request for Judicial Notice

Defendant’s request judicial notice of (1) a copy of a Deed of Trust, Instrument No. 2006-0652258 recorded in Riverside County on September 1, 2006; (2) copy of an Assignment of a Deed of Trust, Instrument No. 2008-0662708, recorded in Riverside County on December 19, 2008; (3) copy of an Assignment of a Deed of Trust, Instrument No. 2011-0564531, recorded in Riverside County on December 21, 2011; (4) copy of a Substitution of Trustee, Instrument No. 2015-0094903, recorded in Riverside County on March 10, 2015; (5) copy of a Deed of Trust, Instrument No. 2010-0113139, recorded in Riverside County on March 11, 2010; (6) copy of a Substitution of Trustee, Instrument No. 2012-0576941, recorded in Riverside County on November 29, 2012; (7) copy of an Assignment of Deed of Trust, Instrument No. 2013-0105071, recorded in Riverside County on March 4, 2013; (8) copy of a Notice of Default, Instrument No. 2013-0593171, recorded in Riverside County on December 24, 2013; (9) a copy of a Notice of Trustee’s Sale, Instrument No 2014-0140535, recorded in Riverside County on April 17, 2014; (10) a copy of a Trustee’s Deed Upon Sale, Instrument No. 2014-0190418, recorded in Riverside County on May 23, 2014; (11) a copy of a Notice of Default, Instrument No. 2015-0200456, recorded in Riverside County on May 13, 2015; (12) a copy of a Notice of Trustee’s Sale, Instrument No. 2015-0430461, recorded in Riverside County on September 29, 2015; and (13) a copy of a Trustee’s Deed Upon Sale, Instrument No. 2016-0028654, recorded in Riverside County on January 26, 2016.

Defendant’s request is GRANTED. (Evid. Code, § 452, subd. (h).) Although judicial notice of these public records is granted, the Court does not take judicial notice of the truth of the matters stated therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.)

IV. Discussion

The Demurrer is accompanied by a meet and confer declaration. (Dem., Mina Decl., ¶¶ 4-10.)

Defendants demur to the Complaint on the basis that it fails to state facts sufficient to constitute any cause of action. (Dem., p. 2:10-26.) The Court notes that Plaintiff’s Opposition does not include a proof of service demonstrating it was served on Defendants. However, based on the issues presented in the Demurrer and in the interest of judicial economy, unless Defendants voice an objection at the hearing, the Court proceeds to make a ruling.

A. First Cause of Action – Wrongful Foreclosure

“ ‘The elements of a wrongful foreclosure cause of action are: “ ‘(1) [T]he 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.’ ” ’ [Citation.]” (Citrus El Dorado, LLC v. Chicago Title Co. (2019) 32 Cal.App.5th 943, 948.) The statute of limitations for a wrongful foreclosure cause of action is generally three years. (Code Civ. Proc., § 338, subd. (a), (d).)

Plaintiff’s allegations demonstrate that this cause of action is barred by the statute of limitations. Specifically, Plaintiff alleges (1) that on or about January 16, 2016, Defendants foreclosed on the property located at 23726 Blackbird Circle, Moreno Valley, Ca 92557 (the “Property”); (2) that Plaintiff made several attempts to obtain a balance on the loan for the Property but was given at least three different balances; (3) that Defendants should have given Plaintiff an accurate payoff balance and an opportunity to prevent the foreclosure; and (4) that Defendants should not have foreclosed the property because the payoff balance was uncertain and/or in dispute. (Compl., ¶¶ 16-18, 22.) However, statute of limitations began to run on the date of the foreclosure, that is on or about January 16, 2016. Thus, this action should have been filed no later than January 16, 2019. As it was not filed until April 24, 2020, it is time-barred.

The Demurrer as to the first cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

B. Second Cause of Action – Elderly Financial Abuse

“Under the Elder Abuse and Dependent Adult Civil Protection Act…an elder is ‘any person residing in this state, 65 years or older.’ (Welf. & Inst. Code, § 15610.27.) Section 15610.30 broadly defines financial abuse of an elder as occurring when a person or entity ‘[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder’ for ‘a wrongful use or with intent to defraud or both’ as well as ‘by undue influence….’ [Citation.]” (Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 656.) “A person or entity shall be deemed to have taken, secreted, appropriated obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Welf. & Inst. Code., § 15610.30, subd. (b).) “[A] person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” (Welf. & Inst. Code., § 15610.30, subd. (c).)

Plaintiff alleges (1) that Zula Tucker is over 65 years old; (2) that Plaintiff was the legal owner of the Property; (3) that Defendants held a note secured by a deed of trust on the Property; (4) that Plaintiff made several attempts to obtain an accurate loan balance to pay off the loan, but was given at least three different balances; (5) that on or about January 26, 2016, the property was sold or was converted back to Defendant Deutsche; and (6) that Defendants made a calculated decision not to provide Plaintiff with an accurate loan balance to deceive and deprive Plaintiff of its money and/or equity and enjoyment of the Property. (Compl., ¶¶ 19-24.)

As Defendants point out, Plaintiff brings this action on behalf of a Trust. The Trust is an entity, not an elderly person as defined by Welfare and Institutions Code section 15610.27. Zula Tucker, as an individual, is not a party to this action nor an alleged individual owner of the Property so her age is not relevant. As elderly financial abuse cannot be asserted by an entity, the Demurrer as to the second cause of action is SUSTAINED WITHOUT LEAVE TO AMEND.

C. Third Cause of Action Breach of the Implied Covenant of Good Faith and Fair Dealing

“ ‘The [implied] covenant of good faith and fair dealing [is] implied by law in every contract.’ [Citation.] The covenant is read into contracts and functions ‘as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party’s rights to the benefits of the contract.’ [Citation.] The covenant also requires each party to do everything the contract presupposes the party will do to accomplish the agreement’s purposes. [Citation.] A breach of the implied covenant of good faith is a breach of the contract [citation], and ‘breach of a specific provision of the contract is not…necessary’ to a claim for breach of the implied covenant of good faith and fair dealing [citation].” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) (Emphasis in original.) Plaintiff’s allegations must show “that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement. Just what conduct will meet this criteria will depend on the contractual purposes and reasonably justified expectations of the parties.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395.) Actions for breach of the implied covenant of good faith and fair dealing based on a written contract have a four-year statute of limitations, while actions based on an oral contract have a two-year statute of limitations. (Code Civ. Proc., § 337, subd. (a); Code Civ. Proc., § 339.)

Plaintiff alleges (1) that parties to a contract have a duty not to unfairly interfere with the right of any other party to receive the benefits of a contract and (2) that Defendants interfered with Plaintiff’s rights by “appropriating, obtaining and/or retaining money due plaintiff without good faith and fair dealing.” (Compl., ¶¶ 25-27.)

However, Plaintiff has not alleged that a contract existed between Plaintiff and Defendants. Without a contract between the parties, Plaintiff cannot allege a breach of the implied covenant of good faith and fair dealing. Plaintiff has also failed to allege any specific facts regarding which Defendant allegedly breached the covenant or any facts regarding what the specific wrongful acts committed were. Furthermore, without any allegations regarding the date of an alleged contract or date of the alleged breach, the Court is unable to determine whether any statute of limitations issue exists.

For these reasons, the Demurrer as to the third cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

D. Fourth Cause of Action – Fraud

“The elements fraud A cause of action for fraud must be alleged with specificity such that Plaintiff pleads facts that “show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Furthermore, when “asserting a fraud claim against a corporate employer…the plaintiff must ‘allege 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. [Citation].” (Id.) The statute of limitations for fraud causes of action is three years. (Code Civ. Proc., § 338, subd. (d).)

Plaintiff alleges (1) that Defendants made a calculated decision to not provide Plaintiff with an accurate payoff loan balance in an effort to deceive and deprive Plaintiff of its funds, to harass Plaintiff, and to defraud Plaintiff with malice; (2) that Plaintiff was injured by the loss of use of funds; and (3) that Defendants’ acts were “malicious, fraudulent, and oppressive, justifying an award of punitive damages.” (Compl., ¶¶ 28-31.)

Plaintiff’s allegations lack the required specificity to state a fraud cause of action. It is unclear what misrepresentations were made, which defendant or defendants made the misrepresentations, or where, when, and by what means the misrepresentations were tendered. It is also unclear what damages were sustained as a result of the alleged misrepresentation. Because Plaintiff’s allegations regarding the alleged misrepresentations are so vague, the Court is also unable to determine whether a statute of limitations issue exists. Thus, the Demurrer as to the fourth cause of action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND.

V. Conclusion & Order

For the foregoing reasons, Defendants’ Demurrer to Plaintiff’s Complaint is SUSTAINED WITHOUT LEAVE TO AMEND as to the first and second causes of action and SUSTAINED WITH LEAVE TO AMEND as to the third and fourth causes of action. Plaintiff is GRANTED 20 DAYS’ LEAVE TO AMEND THE COMPLAINT.

Moving party is ordered to give notice.