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This case was last updated from Los Angeles County Superior Courts on 06/26/2019 at 16:33:58 (UTC).

ZULA TUCKER LIVING TRUST VS PNC MORTGAGE

Case Summary

On 04/17/2015 ZULA TUCKER LIVING TRUST filed a Contract - Other Contract lawsuit against PNC MORTGAGE. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is STUART M. RICE. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0538

  • Filing Date:

    04/17/2015

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STUART M. RICE

 

Party Details

Plaintiffs

ZULA TUCKER LIVING TRUST

ZULA TUCKER LTVING TRUST

Defendants

DOES 1-50

PNC MORTGAGE

Attorney/Law Firm Details

Plaintiff Attorneys

ZULA TUCKER LTVING TRUST

STANLEY D. BOWMAN

Defendant Attorney

WOLFE & WYMAN LLP

 

Court Documents

Unknown

3/18/2019: Unknown

 

Docket Entries

  • 03/18/2019
  • Reversed and remanded with directions. B281921; Filed by Clerk

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  • 08/11/2017
  • Ntc to Prty re fee Clk's Transcpt; Filed by Clerk

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  • 08/01/2017
  • Notice of Designation of Record; Filed by PNC MORTGAGE (Defendant)

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  • 07/17/2017
  • Notice of Designation of Record; Filed by Appellant

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  • 04/20/2017
  • Designation of Record on Appeal; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 04/13/2017
  • Ntc to Attorney re Notice of Appeal; Filed by Clerk

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  • 04/10/2017
  • Notice of Appeal; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 03/09/2017
  • Notice; Filed by PNC MORTGAGE (Defendant)

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  • 02/28/2017
  • at 08:29 AM in Department B; Hearing on Motion for Reconsideration (Motion for Reconsideration; Motion Denied) -

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  • 02/28/2017
  • Minute order entered: 2017-02-28 00:00:00; Filed by Clerk

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53 More Docket Entries
  • 07/23/2015
  • at 08:30 AM in Department B; Ex-Parte Proceedings (Ex Parte Motion; TRO is granted) -

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  • 07/23/2015
  • Ex-Parte Application; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 07/23/2015
  • Minute order entered: 2015-07-23 00:00:00; Filed by Clerk

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  • 07/23/2015
  • Declaration; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 07/23/2015
  • Declaration; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 07/02/2015
  • Default Entered; Filed by Clerk

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  • 06/11/2015
  • Proof-Service/Summons; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 06/11/2015
  • Proof-Service/Summons; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 04/17/2015
  • Complaint; Filed by ZULA TUCKER LTVING TRUST DATED 9/12/06 (Plaintiff)

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  • 04/17/2015
  • Summons; Filed by null

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Tentative Rulings

Case Number: YC070538    Hearing Date: March 26, 2021    Dept: M

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

ZULA TUCKER LIVING TRUST DATED SEPTEMBER 15, 2006, FRED TUCKER, TRUSTEE,

Plaintiff,

Case No.:

YC070538

vs.

[Tentative] RULING

PNC MORTGAGE,

Defendants.

Hearing Date: March 26, 2021

Moving Parties: Defendant PNC Bank, N.A.

Responding Party: Plaintiff Fred Tucker, trustee

Demurrer to Fifth Amended Complaint

The court considered the moving, opposition, and reply papers.

RULING

The demurrer is OVERRULED. The motion is strike is GRANTED WITHOUT LEAVE TO AMEND. Defendant PNC is ordered to file an answer within ten days.

BACKGROUND

On September 23, 2015, plaintiff (self-represented) filed a FAC for (1) financial elder abuse, (2) breach of the implied covenant of good faith and fair dealing, (3) fraud, and (4) injunction relief.

On January 15, 2016, the court sustained a demurrer to the FAC with leave to amend as to the 1st through 3rd causes of action and without leave to amend as to the 4th cause of action.

On February 4, 2016, plaintiff (now represented) filed a SAC for (1) breach of written contract, (2) wrongful foreclosure, (3) declaratory relief, (4) accounting, and (5) financial elder abuse.

On June 15, 2016, the court sustained a demurrer to the SAC with leave to amend as to the 1st and 5th causes of action and sustained without leave to amend as to the 2nd through 4th causes of action because they were improperly added without obtaining leave to amend.

On June 29, 2016, plaintiff filed a Third Amended Complaint for breach of written contract.

On January 18, 2017, the court sustained a demurrer to the TAC without leave to amend.

Plaintiff appealed and on January 14, 2019, the appellate court issued an opinion that reversed and remanded with directions to the trial court to give plaintiff leave to amend to allege, if he can, a breach of contract cause of action based on breaches within four years of the commencement of this action.

On August 21, 2019, plaintiff (now self-represented) filed a Fourth Amended Complaint against PNC Bank, N.A. and Quality Loan Service Corp. for (1) breach of contract, (2) accounting, and (3) quiet title.

On October 22, 2019, the court sustained defendant PNC’s demurrer to the 1st cause of action with leave to amend. The 2nd and 3rd causes of action were stricken.

On November 12, 2019, plaintiff filed a Fifth Amended Complaint for breach of contract.

LEGAL AUTHORITY

When considering demurrers, courts read the allegations liberally and in context. Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal. App. 4th 1216, 1228. “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905. “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” Hahn v. Mirda (2007) 147 Cal. App. 4th 740, 747.

DISCUSSION

Defendant PNC Bank, N.A. demurs to the Fifth Amended Complaint and the 1st cause of action for breach of contract on the grounds that they fail to state sufficient facts to constitute a cause of action, are barred by the statute of limitations, and are uncertain.

In the Fifth Amended Complaint, plaintiff alleges that on January 21, 1988, Zula Tucker purchased the property at 1232 Via Landeta, Palos Verdes Estate. FAC, ¶7. As part of the purchase price, Zula Tucker borrowed $375,000 from the Florida Group and executed a promissory note, which provided for the loan to be paid with an adjustable rate of interest amortized over a 30-year period. At the time of executing the promissory note, plaintiff also executed a deed of trust that secured the loan against the property, naming the Florida Group as the beneficiary. Pursuant to the terms of the note, Zula Tucker made monthly amortized monthly payments. Id., ¶8. In 2006, PNC and Quality informed plaintiff that PNC was the successor in interest of the 1988 note and deed of trust. Plaintiff was also informed that Quality services the loan for defendant PNC and is the trustee under the Deed of Trust securing the promissory note. Thereafter, defendants accepted payment from plaintiffs for the Florida Group promissory note. Id., ¶9. In 2006, plaintiff deeded all of her interest to the subject property to the Zula Tucker Living Trust. Id., ¶10. Zula Tucker passed away in March 2012. Prior to her death, she was declared legally blind for decades and was unable to read Id., ¶11.

Plaintiff further alleges that thereafter, Fred Tucker, as trustee, with a background in finance, made several attempts to obtain an accounting on the loan but was unsuccessful. Id., ¶12. On April 24, 2015, plaintiff filed an action in small claims court to obtain an accounting but the court dismissed the complaint. On January 28, 2015, plaintiff filed another complaint in small claims court to obtain an accounting from PNC, but the case was dismissed. Id., ¶13.

Plaintiff further alleges that shortly after the death of Zula Tucker, the property went into default for non-payment on the Florida Group promissory note due to uncertain financial difficulties. Id., ¶14. On January 29, 2015, the foreclosure trustee, Quality Loan Service Corp., provided plaintiff with a reinstatement quote of $65,086 (without an accounting), which expired on February 5, 2014. On February 3, 2014, plaintiff reinstated the loan and the notice of default was rescinded. Id., ¶15. On September 23, 2015, Fred Tucker, trustee, conducted the first full audit of the payments that were made on the Florida Group promissory note by Zula Tucker and the Zula Tucker Trust after discovering cancelled check and other important items that she had stored away at another location, which Fred Tucker, trustee, was unaware of until it was brought to his attention by a close friend of Zula Tucker. Plaintiff discovered that not all the loan payments had been fully credited, which resulted in a shortage of approximately $22,000 and as a result, interest was overcharged by defendants. Id., ¶16. On April 15, 2016, plaintiff obtained the services of a CPA to examine the cancelled cashier’s checks and other related items and on May 8, 2016, he issued his finding. Id., ¶17.

1st cause of action for breach of contract by wrongful foreclosure

Plaintiff alleges that this cause of action is for wrongful foreclosure (Miles v. Deutsche Bank National Trust Company (2015) 236 Cal. App. 4th 394) under a breach of contract. On April 30, 2015, defendants in breach of the terms of the promissory note, stated that plaintiff was in default on the loan payments and recorded with the LA County Recorder a notice of default and election to sell under the deed of trust, that stated defendant Quality was appointed substitute trustee of the 1988 deed of trust and that defendant PNC was beneficiary. The notice of default wrongfully stated that plaintiff was delinquent in loan payments to beneficiary of the promissory note in the amount of $39,314.51, as of April 28, 2015. Id., ¶19. The loan was paid in full and a balance of approximately $44,993.98 is due plaintiff. Id., ¶20. According to the CPA’s letter dated May 8, 2016, as of April 2015, there is a discrepancy in the amount of approximately $148,711.69. Per PNC monthly mortgage statement dated April 16, 2015, the outstanding principal balance on the loan was $103,717,71. Using these documents, the loan would be paid in full, with a balance due plaintiff of approximately $44,993.98. Id., ¶21. Plaintiff has performed each and everything required to be performed pursuant to the terms of the promissory note. Id., ¶22.

Plaintiff further alleges that for the entire four year period before April 15, 2015, and continuing to the present, defendants breached the promissory note by continuously assessing, demanding, and sending monthly billing statements to plaintiffs for payment of loan installment for sums that plaintiff did not owe under the promissory note and by collecting said payments from plaintiff that were not due and owing. Id., ¶23. On and continuously after April 30, 2015, defendants have been and continue to be in breach of the promissory note and deed of trust by knowingly and falsely claiming that plaintiff is and has been in breach of the promissory note such that defendants have asserted that they are entitled to pursue a foreclosure and/or foreclosure sale of the property. Plaintiff is not in breach of the promissory note or deed of trust and has paid defendants at least $44,993 more than plaintiff owed defendants. Defendants wrongfully persist in their attempt to foreclose on and sell the property under the terms of the deed of trust. Plaintiff resides in the property. Id., ¶24. Defendants have illegally, fraudulently, or with willful oppression instituted the process of a foreclosure and/or foreclosure sale of the property pursuant to the power of sale provision in the deed of trust to the prejudice and harm of plaintiff. Id., ¶25. If the threatened foreclosure sale of the property is allowed to proceed, plaintiff will suffer damage. Id., ¶26.

Defendants argue that plaintiff has not alleged the elements of a cause of action for breach of contract. Further, defendants argue that plaintiff’s claim is barred by the four-year statute of limitations under CCP §337 because the assertion of the continuous accrual doctrine is conclusory and offers no facts describing a breach of contract occurring within four years of the date of filing of the lawsuit. Defendants contend that plaintiff’s “wrongful foreclosure” allegation does not give rise to a breach of contract claim.

The court notes that in the appellate court decision dated January 14, 2019, the appellate court determined that plaintiff had sufficiently alleged the elements for breach of contract, including that they performed or that their performance was excused.

As for whether the claim is barred by the statute of limitations, the appellate court stated that

[plaintiff] can under the continuous accrual doctrine seek to recover any overpayments or losses due to accounting errors by PNC within four years of the date he filed this action. “Under the continuous accrual theory, ‘a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period. [Citation.]’ [Citation.] The kinds of cases in which the continuous accrual theory have been applied . . . include a variety of instances in which the plaintiff asserted a right to, or challenged the assessment of, periodic payments under contract . . . .” (Baxter v. State Teachers’ Retirement System (2017) 18 Cal. App. 5th 340, 378-379; see Abbott Laboratories v. Superior Court (2018) 24 Cal. App. 5th 1, 14 fn. 4 [under the continuous accrual doctrine, a “series of wrongs may be viewed as each triggering its own limitations period”] . . . .

The appellate court stated that “Tucker, as trustee, “is entitled to amend to ‘challenge all payments within the preceding four years.’”

Plaintiff alleges that for the entire four year period before April 15, 2015, and continuing to the present, defendants breached the promissory note by continuously assessing, demanding, and sending monthly billing statements to plaintiffs for payment of loan installment for sums that plaintiff did not owe under the promissory note and by collecting said payments from plaintiff that were not due and owing. FAC, ¶23. See also paras. 19-21. The allegations are sufficient to state a cause of action within the April 17, 2011 to April 17, 2015 accrual period. Plaintiff has pled the ultimate facts to meet the elements of a breach during the accrual period.

The demurer is thus OVERRULED.

Motion to Strike

Defendant request that the court strike para. 28 (“In taking the actions alleged herein, defendants are guilty of oppression, fraud, or malice as defined in Civil Code 3294(a) and plaintiff is entitled to an award of punitive damages.” and prayer at para. 5 for punitive damages.

Civil Code § 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” The Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-95, found that “[s]omething more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.” “Malice is defined in the statute as conduct intended by the defendant to cause injury to the plaintiff or despicable conduct which is caried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Coll. Hosp., Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.

Civil Code §3294(b) states: “An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” “[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal. App. 3d 31, 36. “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” Cruz v. Home Base (2000) 83 Cal. App. 4th 160, 167 (citation and internal quotations omitted).

The allegations do not support a claim for punitive damages. Plaintiff is alleging a breach of contract; thus, the case is not a “non-contract” case. Further, the allegations do not show malice, fraud, or oppression.

The motion is GRANTED WITHOUT LEAVE TO AMEND.

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