This case was last updated from Los Angeles County Superior Courts on 09/10/2020 at 10:05:11 (UTC).

JOSE R SOLANO VS MAGNUM PROPERTIES INVESTMENTS LLC

Case Summary

On 06/01/2018 JOSE R SOLANO filed a Property - Other Real Property lawsuit against MAGNUM PROPERTIES INVESTMENTS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MONICA BACHNER. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8445

  • Filing Date:

    06/01/2018

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Plaintiff

SOLANO JOSE R.

Defendants and Respondents

MAGNUM PROPERTIES INVESTMENTS LLC

DOES 1 TO X

GOERISCH SARINA

ALL PERSONS CLAIMING ANY LEGAL OR EQUITABLE RIGHT TITLE ESTATE LIEN OR INTEREST IN THE PROPERTY DESCRIBED IN THE COMPLAINT ADVERSE TO PLAINTIFF'S TITLE OR ANY CLOUD ON PLAINTIFF'S TITLED THERETO

Attorney/Law Firm Details

Defendant and Respondent Attorneys

NUSSBAUM LANE M. ESQ.

NUSSBAUM LANE MICHAEL ESQ.

NUSSBAUM LANE

 

Court Documents

Motion to Set Aside/Vacate Judgment

8/3/2020: Motion to Set Aside/Vacate Judgment

Minute Order - MINUTE ORDER (MOTION OF PLAINTIFF, JOSE SOLANO, TO SET ASIDE AND VACATE AND...)

7/31/2020: Minute Order - MINUTE ORDER (MOTION OF PLAINTIFF, JOSE SOLANO, TO SET ASIDE AND VACATE AND...)

Order - RULING

7/20/2020: Order - RULING

Minute Order - MINUTE ORDER (MOTION OF DEFENDANTS, MAGNUM PROPERTY INVESTMENTS, LLC AND SA...)

7/20/2020: Minute Order - MINUTE ORDER (MOTION OF DEFENDANTS, MAGNUM PROPERTY INVESTMENTS, LLC AND SA...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 07/20/2020

7/20/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NUNC PRO TUNC ORDER) OF 07/20/2020

Notice Re: Continuance of Hearing and Order

5/1/2020: Notice Re: Continuance of Hearing and Order

Notice - NOTICE OF ERRATTA

3/3/2020: Notice - NOTICE OF ERRATTA

Answer

3/2/2020: Answer

Other - - TRANSMITTAL LETTER

2/20/2020: Other - - TRANSMITTAL LETTER

Memorandum - MEMORANDUM ON MORION FOR TRUSTEE TO ABANDON PROPERTY FROM BANKRUPTCY ESTATE

1/17/2020: Memorandum - MEMORANDUM ON MORION FOR TRUSTEE TO ABANDON PROPERTY FROM BANKRUPTCY ESTATE

Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE REGARDING WHETHER THE TRUSTEE IS PURSUIN...)

1/31/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE REGARDING WHETHER THE TRUSTEE IS PURSUIN...)

Minute Order - MINUTE ORDER (COURT ORDER)

9/23/2019: Minute Order - MINUTE ORDER (COURT ORDER)

Case Management Statement

5/17/2019: Case Management Statement

Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)

1/3/2019: Minute Order - Minute Order (CASE MANAGEMENT CONFERENCE)

CASE MANAGEMENT STATEMENT -

9/25/2018: CASE MANAGEMENT STATEMENT -

Amended Complaint -

10/10/2018: Amended Complaint -

REQUEST FOR ENTRY OF DEFAULT

7/5/2018: REQUEST FOR ENTRY OF DEFAULT

DEFENDANTS MAGNUM PROPERY INVESTMENTS, LLC AND SARINA GOERISCH'S REQUEST FOR JUDICIAL NOTICE

7/6/2018: DEFENDANTS MAGNUM PROPERY INVESTMENTS, LLC AND SARINA GOERISCH'S REQUEST FOR JUDICIAL NOTICE

74 More Documents Available

 

Docket Entries

  • 10/29/2020
  • Hearing10/29/2020 at 10:30 AM in Department 71 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Set Aside/Vacate Judgment (CCP 473)

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  • 09/08/2020
  • Docketat 09:29 AM in Department 71, Monica Bachner, Presiding; Court Order

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  • 09/08/2020
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Hearing - Other (Regarding Proposed Judgment of Dismissal) - Held

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  • 09/08/2020
  • DocketRuling; Filed by Clerk

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  • 09/08/2020
  • DocketMinute Order ( (Hearing Regarding Proposed Judgment of Dismissal)); Filed by Clerk

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  • 09/08/2020
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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  • 09/08/2020
  • DocketJudgment (Proposed); Filed by Magnum Property Investments, LLC Erroneously Sued As Magnum Properties Investments, LLC (Defendant); Sarina Goerisch (Defendant)

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  • 09/08/2020
  • DocketCertificate of Mailing for ((Court Order) of 09/08/2020); Filed by Clerk

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  • 08/19/2020
  • Docketat 08:30 AM in Department 71, Monica Bachner, Presiding; Post-Mediation Status Conference - Not Held - Advanced and Vacated

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  • 08/07/2020
  • Docketat 3:55 PM in Department 71, Monica Bachner, Presiding; Court Order

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124 More Docket Entries
  • 07/05/2018
  • DocketNOTICE OF PENDENCY OF ACTION

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  • 07/05/2018
  • DocketNotice of Lis Pendens; Filed by Jose R. Solano (Plaintiff)

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  • 07/05/2018
  • DocketREQUEST FOR ENTRY OF DEFAULT

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  • 06/08/2018
  • DocketPROOF OF SERVICE BY MAIL

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  • 06/08/2018
  • DocketProof of Service by Mail; Filed by Jose R. Solano (Plaintiff)

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  • 06/06/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/06/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/01/2018
  • DocketSUMMONS

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  • 06/01/2018
  • DocketComplaint; Filed by Jose R. Solano (Plaintiff)

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  • 06/01/2018
  • DocketVERIFIED COMPLAINT TO QUIET TITLE TO REAL PROPERTY

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Tentative Rulings

Case Number: BC708445    Hearing Date: August 21, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

AUSTIN BAUL,

vs.

FERNANDO GONONG, JR., et al.

Case No.: BC708445

Hearing Date: August 21, 2020

Defendants Pex Aves and Dionesio Grava’s motion for judgment on the pleadings is granted with 20 days leave to amend as to Pex Aves and denied as to Dionesio Grava.

Defendants Pex Aves (“Aves”) and Dionesio Grava (“Grava”) (collectively “Defendants”) move for judgment on the pleadings as to the single cause of action for libel per se in the complaint of Plaintiff Austin Baul (“Plaintiff”). (Notice of Motion, pgs. 1-2.) While not indicated in the Notice of Motion, a review of the motion indicates Defendants move on the grounds that Plaintiff failed to allege sufficient facts to constitute the cause of action due to the cause of action being barred by the applicable statute of limitations, the failure to sufficiently allege facts, and/or the defense of the truth of the statement(s).

Background

On May 29, 2019, Plaintiff filed the instant action for libel against Defendants and Defendants Fernandico Q. Gonong, Jr. (“Fernandico”), Grace Gonong (“Grace”), Rosalinda Nery (“Nery”), Alfonso Aquino (“Aquino”), and Ferdinand Espinosa Gallardo (“Gallardo”). On October 22, 2019, the Court found the instant action related to BC651987, Austin Baul vs. Fernandico Gonong, et al. (“Prior Action”). On May 6, 2019, the Court granted Fernandico, Grace, and Nery’s motion for judicial confirmation of the dismissal of the Prior Action. (See Court’s 5/6/19 Ruling in Prior Action.) The Court granted the motion on the grounds that on March 7, 2018, Plaintiff had filed a request for dismissal of his entire case, without prejudice, and more than six months had passed since the dismissal such that Plaintiff could no longer seek relief under C.C.P. §473(b) for an inadvertent dismissal. On June 26, 2019, Defendants, in pro per, filed their joint answer to Plaintiff’s complaint. On July 3, 2019, Defendants, in pro per, filed a second joint answer, which the Court ordered stricken on November 22, 2019. On September 25, 2019, Aves, still in pro per, filed an Amended Answer. On November 19, 2019, Mariano A. Alvarez (“Alvarez”) filed substitutions of attorney for Defendants indicating that he would be representing them. On November 22, 2019, the Court dismissed Aquino with prejudice, pursuant to an oral request made by Plaintiff. On June 4, 2020, Defendants filed the instant motion.

Plaintiff’s complaint in this action is based on his February 27, 2017 complaint and April 20, 2017 first amended complaint (“FAC”) in the Prior Action. (Complaint ¶10.) As in his FAC in the Prior Action, Plaintiff’s libel cause of action alleges that he, a long-time member, officer, and director of the Filipino-American Community of Los Angeles, Inc. (“FACLA”), has been defamed by Defendants. (Complaint ¶¶11, 16-19.)

Procedural Issues

Defendants’ Meet and Confer Declaration does not indicate how Alvarez met and conferred with Plaintiff, either by telephone or in person, as neither box is checked.

Defendants’ motion improperly introduces exhibits as evidence without a declaration or request for judicial notice in support of those exhibits. The exhibits, which includes deposition testimony from a separate matter that Defendants reference in their motion, are not properly before the Court and the Court will not consider them or the testimony contained therein in ruling on the motion. (See Motion, Exhs. 1-7.)

Motion for Judgment on the Pleadings – Libel (1st COA)

A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198.) Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

Any defects must either appear on the face of the pleading, or else be taken by judicial notice. (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-22.) The parties’ ability to prove their respective claims is of no concern. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999.)

“Libel is a ‘false and unprivileged publication by writing, printing… or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’ ‘The sine qua non of recovery for defamation… is the existence of falsehood.’ A statement is libel on its face if it ‘is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact.’” (Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456, 1470-1471 (Citations Omitted).)

C.C.P. §340(c) provides that the statute of limitations for an action for libel is one year. “In a claim for defamation, as with other tort claims, the period of limitations commences when the cause of action accrues… [A] cause of action for

defamation accrues at the time the defamatory statement is ‘published’ (using the term ‘published’ in its technical sense). [¶] [I]n defamation actions the

general rule is that publication occurs when the defendant communicates the

defamatory statement to a person other than the person being defamed. As also

has been noted, with respect to books and newspapers, publication occurs (and

the cause of action accrues) when the book or newspaper is ¿rst generally

distributed to the public.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1246–1247.)

Plaintiff’s libel cause of action against Defendants is based on the following allegations: (1) on June 9, 2016, Grava posted on Facebook that “[Plaintiff] committed felony embezzlement of FACLA funds”; (2) on June 14, 2016, Aves emailed several people stating that Plaintiff was “a hoodlum and committed criminal acts at FACLA” by “manipulating and transferring FACLA into [his] [name], i.e., criminal acts” and that “the lender is now initiating possession of the FACLA property because of these two hoodlums, [Plaintiff] and Santos”; (3) on April 23, 2019, Grava publicized to several people by Messenger that Plaintiff converted FACLA to a sole proprietorship; (4) on May 7, 2019, Grava emailed several persons calling Plaintiff a demon horse and accusing Plaintiff of perpetrating the worst kind of irregularities at FACLA; (Complaint ¶¶18e, 18f, 18i, 18j.) The Court notes Plaintiff’s complaint includes allegations against other named Defendants, not discussed herein.

Plaintiff’s libel cause of action against Aves is barred by the applicable statute of limitations. Since Plaintiff filed his action on May 29, 2019, the statute expired one year prior, on May 29, 2018. As such, absent allegations that a tolling doctrine applies, Plaintiff’s libel cause of action must be based on publications that occurred and thereby accrued after May 29, 2018. However, Plaintiff’s only allegations as to conduct by Aves involves an email Aves sent on June 14, 2016, and for which Plaintiff would have had until June 14, 2017 to file an action for libel. In opposition, Plaintiff asserts that the statute of limitations should be tolled given Aves’s alleged conduct in 2019; specifically, Plaintiff asserts on October 22, 2019, Aves taunted and defamed Plaintiff by telling him because FACLA has more funds, he “yelled at him to go to the FACLA and embezzle such funds.” (Opposition, pg. 7.) However, this allegation exceeds the scope of the pleadings and is not properly before the Court in ruling on Defendants’ motion. Moreover, the Court notes, Plaintiff’s allegations of Aves’s October 22, 2019 statements do not allege a publication but instead words spoken, and as such would not support the libel cause of action.

Plaintiff also argues equitable tolling should apply to extend the statute of limitations. (Opposition, pgs. 6-7.) Specifically, Plaintiff argues that since his complaint in the Prior Action was dismissed due to technical errors, without prejudice, the statutory bar should be extended. (Opposition, pg. 7.) However, Plaintiff’s complaint does not allege facts supporting equitable tolling, and as such, based on the face of the pleadings, the statute of limitations cannot be tolled. Similarly, Plaintiff’s opposition asserts that the discovery rule should toll the statute of limitations. However, the Plaintiff bears the burden of pleading and proving delayed discovery, and here, Plaintiff’s complaint alleges no facts suggesting his discovery of the alleged defamatory statements by Aves or Grava was delayed. (See McKelvey v. Boeing North Am. Inc. (1999) 74 Cal.App.4th 151, 160.)

Plaintiff’s libel cause of action as to Grava is not barred by the applicable statute of limitations on the face of the complaint. Plaintiff alleged Grava made defamatory statements about Plaintiff in April and May of 2019, and therefore Plaintiff filed his complaint prior to the running of the statute for those publications, which would have been one year from their date of publication. The Court notes that, for the same reasons as discussed above with respect to Aves, the allegations relating to Grava’s June 2016 Facebook post are barred by the applicable statute of limitations on the face of the complaint, absent allegations of equitable tolling or delayed discovery, which Plaintiff has not alleged.

Defendants assert that Plaintiff’s allegations of Grava’s written statements in 2019 cannot be used to support a libel cause of action because they only amount to rhetorical hyperbole that is nonactionable. (Motion, pgs. 6-9.) However, at the pleadings stage, Grava’s alleged statement that Plaintiff perpetrated the worst kind of irregularities at the FACLA is sufficient to state a cause of action for libel. The allegations are taken as true, and if Grava’s statement is false, could constitute the kind of statement that would expose Plaintiff to to hatred, contempt, ridicule, or obloquy, or which could cause Plaintiff to be shunned or avoided, or which could have a tendency to injure Plaintiff in his occupation.

Defendants also argue Grava’s 2019 written statements are truthful, and as such, Plaintiff’s cause of action based on those written statements should fail. (Motion, pgs. 9-13.) However, this argument relies on evidence not properly subject to judicial notice and not properly before the Court. As such, this argument is unsupported and without merit.

Based on the foregoing, Defendants’ motion for judgment on the pleadings is granted with 20 days leave to amend as to Aves and denied as to Grava.

Case Number: BC708445    Hearing Date: July 20, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

JOSE R. SOLANO,

vs.

MAGNUM PROPERTIES INVESTMENTS, LLC, et al.

Case No.: BC708445

Hearing Date: July 20, 2020

Defendants Magnum Property Investments, LLC and Sarina Goerisch’s motion for judgment on the pleadings as to the 5th, 6th, 7th, 8th, 9th, 10th, 11th, 12th, 13th, and 14th COAs in Plaintiff’s first amended complaint is granted without leave to amend.

Defendants Magnum Property Investments, LLC (“MPI”) and Sarina Goerisch (“Goerisch”) (collectively “Defendants”) move for judgment on the pleadings as to all remaining causes of action in the first amended complaint (“FAC”) of Plaintiff Jose R. Solano (“Plaintiff”). Specifically, Defendants move as to the 5th (cancellation of written instruments), 6th (illegal foreclosure), 7th (slander of title), 8th (illegal eviction), 9th (unjust enrichment), 10th (violation of the HBOR), 11th (violations for California Business & Professions Code – deceptive acts), 12th (invasion of privacy), 13th (declaratory judgment), and 14th (extreme and outrageous conduct) causes of action.

By way of background, on September 13, 2018, the Court sustained Defendants’ demurrer to Plaintiff’s complaint, with leave to amend. (Court’s 9/13/18 Minute Order & Ruling.) On October 10, 2018, Plaintiff filed his FAC and on November 21, 2018, Defendants filed a demurrer to the FAC. The demurrer was noticed for hearing on February 8, 2019. On February 5, 2019, Plaintiff filed a notice of stay due to bankruptcy and on February 8, 2019, the Court stayed instant action in its entirety. On February 20, 2020, the hearing on the demurrer was held and the Court sustained Defendants’ demurrer to the 1st (quiet title), 2nd (fraud), 3rd (illegal foreclosure – violation of Civil Code §2923.5), and 4th (illegal racketeering) causes of action of Plaintiff’s FAC without leave to amend. (Court’s 2/20/20 Ruling.) On March 3, 2020, Defendants filed the instant motion for judgment on the pleadings as to the remaining causes of action.

Cancellation of Written Instruments (5th COA)

Civil Code §3412 provides that, “[a] written instrument, in respect to which there is a reasonable apprehension that if left outstanding it may cause serious injury to a person against whom it is void or voidable, may, upon his application, be so adjudged, and ordered to be delivered up or cancelled.”

“To prevail on a claim to cancel an instrument, a plaintiff must prove (1) the instrument is void or voidable due to, for example, fraud; and (2) there is a reasonable apprehension of serious injury including pecuniary loss or the prejudicial alteration of one’s position.” (U.S. Bank National Assn. v. Naifeh (2016) 1 Cal.App.5th 767, 778.)

Plaintiff’s cancellation of instruments cause of action seeks to cancel, “the Note, Deed of Trust, Notice of Default and Sale, [and] the Trustee deed Upon Sale.” (FAC ¶149.) The cause of action incorporates the allegations set forth in Exhibit F, the Fraud Complaint, which alleges that Defendants engaged in a scheme to defraud Plaintiff of his real property located at 1330 Bentley Court, West Covina, CA 91791 (“the Property”), via a forged Trustee Deed Upon Sale recorded on February 23, 2018. (FAC ¶148, Exh. F, pg. 1.)

Plaintiff failed to allege sufficient facts to constitute a cause of action for cancellation of instruments. Plaintiff did not allege facts suggesting the instruments Plaintiff seeks to cancel are void or voidable due to fraud. Rather, the documents attached to the FAC suggest that MPI purchased the subject property at a Trustee’s Sale. Plaintiff did not allege facts that would rebut the presumption of the validity of MPI’s title. Plaintiff’s conclusory allegations regarding a civil conspiracy and/or fraudulent scheme are insufficient. Plaintiff’s opposition fails to address how he has sufficiently alleged the cause of action.

Based on the foregoing, Defendants’ motion for judgment on the pleadings is granted.

Illegal Foreclosure (6th COA)

“A nonjudicial foreclosure sale is accompanied by a common law presumption that it ‘was conducted regularly and fairly.’ [Citations] This presumption may only be rebutted by substantial evidence of prejudicial procedural irregularity. [Citation] The ‘mere inadequacy of price, absent some procedural irregularity that contributed to the inadequacy of price or otherwise injured the trustor, is insufficient to set aside a nonjudicial foreclosure sale. [Citations.]’ It is the burden of the party challenging the trustee’s sale to prove such irregularity and thereby overcome the presumption of the sale’s regularity. [Citation]” (Melendrez v. D&I Investment, Inc. (2005) 127 Cal.App.4th 1238, 1258.)

Plaintiff’s illegal foreclosure cause of action is based on the fraud allegations set forth in in Exhibit F and on Plaintiff’s allegations that the Trustee Deed upon Sale and Defendants’ purchase of the Property were fraudulent, making the foreclosure unenforceable. (FAC ¶¶154-156, Exh. F.) Plaintiff failed to allege sufficient facts to constitute a cause of action for illegal foreclosure. The Court previously ruled Plaintiff’s fraud allegations conclusory and insufficient and that Plaintiff failed to allege facts establishing the requisite elements of fraud. In addition, Plaintiff’s allegations that the Deed and sale were fraudulent are conclusory. Plaintiff has the burden of alleging facts to overcome the presumption of the sale’s regularity and the FAC fails to meet that burden. Also, Plaintiff’s allegations regarding the Homeowner’s Bill of Rights (“HBOR”) are vague and conclusory. (FAC, ¶ 157.) In opposition, Plaintiff argues that the FAC is sufficiently alleged and that the motion should be denied; however, Plaintiff does not address the causes of action at issue, the arguments raised by Defendants, or the allegations of the FAC that set forth the causes of action. (Opposition, pgs. 3-6.) Finally, while Plaintiff requests leave to amend, he does not address how the allegations could be amended to sufficiently state a cause of action. (Opposition, pgs. 6-7.)

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 6th cause of action is granted.

Slander of Title (7th COA)

The elements of a cause of action for slander of title are “(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss.” (Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051.)

Plaintiff failed to allege facts to establish a cause of action for slander of title. Plaintiff failed to allege facts showing his title or interest in the Property or facts rebutting the presumption of the validity of MPI’s title. As such, Plaintiff has not alleged facts suggesting the disputed Deed of Trust was false and/or made without privilege or justification.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 7th cause of action is granted.

Illegal Eviction (8th COA)

Plaintiff’s illegal eviction cause of action is based on allegations that Plaintiff’s eviction resulted from recording and publishing false information against the title of the Property to make it appear that Defendants own the property when they in fact did not. (FAC ¶167.) Plaintiff also incorporates his allegations of fraud against Defendants and alleges that the Trustee Deed Upon Trust recorded by MPI was fraudulent. (FAC ¶¶166, 168, Exh. F.)

Plaintiff failed to allege facts sufficient to state a cause of action of illegal eviction against Defendants. Plaintiff’s illegal eviction cause of action is based on the same underlying allegations of Defendants’ fraud; which are insufficient, conclusory, and lack specificity. Plaintiff has not alleged facts suggesting any eviction of Plaintiff by Defendants was illegal or wrongful or that Plaintiff had title or interest in the Property.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 8th cause of action is granted.

Unjust Enrichment & Restitution (9th COA)

The only essential allegations of a common count are: (1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460.)

“The elements of an unjust enrichment claim are the ‘receipt of a benefit and [the] unjust retention of the benefit at the expense of another’… [T]he ‘mere fact that a person benefits another is not of itself sufficient to require the other to make restitution therefor.’’ ‘There is no equitable reason for invoking restitution when the plaintiff gets the exchange which he expected.’” (Peterson v. Cellco Partnership (2008) 164 Cal.App.4th 1583, 1593 (Citations Omitted).)

Plaintiff has not alleged facts sufficient to establish a cause of action for unjust enrichment and restitution. The cause of action is based on allegations that Defendants engaged in fraud against Plaintiff, that in so doing have been unjustly enriched, and that defendants must pay restitution for such fraud. (FAC ¶¶170, 171, 176, 177, Exh. F.) However, Plaintiff’s allegations of Defendants’ fraud are conclusory and unsupported. In addition, Plaintiff has not alleged facts suggesting he is entitled to a restitution.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 9th cause of action is granted.

Violation of Homeowner Bill of Rights (10th COA)

Plaintiff fails to allege sufficient facts to constitute a cause of action for violation of the California HBOR as to Defendants. The cause of action is based on the fraud allegations of Exhibit F and alleged conduct of those not party to this action including the bank, the mortgage servicer and/or another entity that held the Deed of Trust to the Property. (FAC ¶¶178, 180-184, Exh. F.) Moreover, Plaintiff fails to allege what sections of the HBOR Defendants violated or what conduct constituted a violation. Plaintiff’s specific allegation that MPI’s recording and filing of certain documents subjects it to a civil penalty of up to $7,500 per loan (FAC ¶ 183) appears to be based on a violation of Civil Code §2924.17(c), which imposes a civil penalty of up to $7,500 against a mortgage servicer that engages in improper recording of documents relative to a foreclosure proceeding. However, Plaintiff has not alleged MPI is a mortgage servicer, and has in fact alleged MPI is the purchaser of the Property. Moreover, as an individual, Plaintiff is not authorized to bring a cause of action for violation of Civil Code §2924.17(c), which may only be brought by certain government entities specified in the statute. Finally, given that it appears the allegations are based on Defendants’ alleged fraud, which the Court found to be insufficiently pled in ruling on the demurrer, the allegation that Defendants violated the HBOR is conclusory.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 10th cause of action is granted.

Violation of Business & Professional Code (Deceptive Acts) (11th COA)

Business & Professions Code §17200 provides, as follows: “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.

Plaintiff failed to allege sufficient facts to constitute the cause of action. The allegations are directed at the conduct of those responsible for the foreclosure sale including the bank and/or the mortgage servicer. (FAC ¶¶186-191.) However, Plaintiff has alleged that MPI was the purchaser of the property, and as such, played no role in the acts or omissions that took place prior to the foreclosure sale or conducting the foreclosure sale. In addition, to the extent the cause of action is based on Defendants’ alleged fraud (FAC ¶190, Exh. F), the Court found these allegations to be insufficient in sustaining Defendants’ demurrer. Plaintiff’s opposition does not address this cause of action or set forth how the pleadings could be amended to state a cause of action against Defendants.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 11th cause of action is granted.

Invasion of Privacy (12th COA)

“To state a claim for violation of the constitutional right of privacy, a party must establish (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) a serious invasion of the privacy interest. [Citation.] Four distinct kinds of activities have been found to violate this privacy protection and give rise to tort liability. These activities are: (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person's name or likeness.” (Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129.)

Plaintiff’s invasion of privacy cause of action appears to be a cause of action for intrusion into private matters. To allege a cause of action for intrusion into private matters, Plaintiff must allege: (1) intrusion into a private place, conversation, or matter; and (2) in a manner highly offensive to a reasonable person. (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 431.)

Plaintiff failed to allege facts sufficient to state a cause of action of invasion of privacy. Plaintiff’s invasion of privacy cause of action is based on allegations supporting the 8th (illegal eviction) cause of action. Specifically, Plaintiff alleges that his right of privacy was invaded by being evicted from the Property and by “Defendant” entering the property without permission to take photographs of the Property. (FAC ¶¶192-198.) However, Plaintiff fails to allege facts rebutting the presumption that MPI’s title to the Property is valid and, accordingly, that Plaintiff did not have a reasonable privacy interest in the property. Plaintiff’s allegations of Defendants’ fraud are conclusory and unsupported. Plaintiff has not alleged facts suggesting any eviction of Plaintiff by Defendants was illegal or wrongful or that Plaintiff had title or interest in the Property. As such, Plaintiff’s allegations that Defendants invaded his privacy, based on his eviction from the Property, are also insufficient. Plaintiff’s opposition does not address this cause of action or set forth allegations that would be sufficient to state the cause of action.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 12th cause of action is granted.

Declaratory Judgment (13th COA)

Plaintiff failed to allege sufficient facts to constitute a cause of action for declaratory judgment against Defendants. Plaintiff’s declaratory judgment cause of action requests the Court to declare that Defendant has no title in the Property and title is vested in Plaintiff, that Plaintiff was illegally evicted from the Property, that the foreclosure proceeding was unlawful, that Defendants violated the HBOR, and that Defendants committed fraud. (FAC ¶¶200-205.) As such, Plaintiff’s declaratory judgment cause of action seeks the Court’s declaration that he prevails on each of the causes of action asserted in the FAC. However, as discussed above, Plaintiff has failed to allege facts sufficient to constitute the cause of action. Plaintiff’s opposition does not address this cause of action or set forth allegations that would be sufficient to state the cause of action.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 13th cause of action is granted.

Extreme and Outrageous Conduct (14th COA)

Plaintiff’s extreme and outrageous conduct cause of action is uncertain as it is unclear what cause of action Plaintiff is asserting against Defendants. However, to the extent that the cause of action is for intentional infliction of emotional distress (“IIED”), which requires that Defendants engaged in extreme and outrageous conduct against Plaintiff, Plaintiff failed to allege sufficient facts to establish the cause of action. (FAC ¶¶210-213; see Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.4th 819, 832.) The cause of action is based on Defendants’ alleged fraud, which Plaintiff has not sufficiently alleged. In addition, Plaintiff fails to allege how MPI’s purchase of the Property at a foreclosure sale and subsequent recording of the Trustee’s Deed upon Sale would constitute extreme or outrageous conduct intended to cause Plaintiff emotional distress. Plaintiff’s opposition does not address this cause of action or set forth allegations that would be sufficient to state the cause of action.

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to the 14th cause of action is granted.

Conclusion

Based on the foregoing, Defendants’ motion for judgment on the pleadings as to remaining causes of action in Plaintiff’s FAC is granted without leave to amend.