18-CIV-00560 ACER PARCO, ET AL. VS. BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP, ET AL.
ACER PARCO BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP
PRO/PER
HEARING ON DEMURRER TENTATIVE RULING:
The Demurrer of Defendant Bank of America, N.A. (“Defendant”) to the Second Amended Complaint (“SAC”) of Plaintiffs Acer Parco and Mildred R. Parco (“Plaintiffs”) is SUSTAINED WITHOUT LEAVE TO AMEND based on failure to allege facts sufficient to support a valid cause of action against Defendant. Plaintiffs’ claims are based on the allegations that: (1) Defendant’s lacked standing to record or transfer and convey any interest in Plaintiffs’ property because the original lender, SCME Mortgage Bankers, Inc., did not assign any rights or interest in Plaintiffs’ note and Deed of Trust, (2) Defendant failed to contact Plaintiffs to explore options to avoiding foreclosure 30 days prior to recording the October 2014 Notice of Default, and (3) the Notice of Trustee’s Sale recorded on May 18, 2018 and Trustee’s Deed Upon Sale recorded on June 27, 2018 are void and unlawful.
As to Plaintiffs’ claims based on Defendant’s lack of standing, such claims are barred by res judicata. (See Defendant’s Request for Judicial Notice Exhs. 20-23.) Res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 797.) Claim preclusion operates as a bar to a second lawsuit between the same parties on the same cause of action. (Id.) The elements for claim preclusion are: (1) a claim raised in the present action is identical to a claim litigated in the prior proceeding; (2) the prior proceeding resulted in a final judgment on the merits; and (3) the party against whom the doctrine is being asserted was a party or in privity with a party to the prior proceeding. (Id.) California courts apply a “primary rights theory,” meaning a cause of action is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. (Id. at 797-798.) Thus, a judgment for a defendant is a bar to a subsequent action by the plaintiff based on the same injury to the same right, even though the plaintiff presents a different legal ground for relief. (Id. at 798.) Prior judgment is res judicata on matters which were raised or could have been raised. (Busick v. Workmen’s Compensation Appeals Bd. (1972) 7 Cal.3d 967, 975.)
Here, Plaintiff Acer Parco brought a prior wrongful foreclosure action against Defendant alleging Defendant’s lack of standing to record or transfer and convey any interest in the property (“Parco II action”), and the court sustained Defendant’s demurrer without leave to amend and entered a judgment of dismissal in favor of Defendant. (See Defendant’s Request for Judicial Notice, Exhs. 20-23.) Thus, this same primary right formed the basis of the claims in the Parco II action and this action, resulted in a final judgment on the merits, and involved the same parties, i.e. Plaintiff Acer Parco and Defendant.
Further, although Plaintiff Mildred Parco was not a party in the Parco II action, she was in privity with Plaintiff Acer Parco. (See DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 825; see also Defendant’s Request for Judicial Notice, Exh. 1 [2005 Deed of Trust showing Plaintiffs hold title as husband and wife as joint tenants].) Thus, res judicata also applies to her claims as well based on Defendant’s lack of standing.
As to Plaintiff’s claims based on Defendant’s failure to timely contact Plaintiffs to explore foreclosure options prior to recording the October 2014 Notice of Default, a Notice of Rescission of this Notice of Default was recorded on February 6, 2018. (See Defendant’s Request for Judicial Notice, Exh. 18.) Accordingly, Plaintiffs fail to allege facts sufficient to support any claim based on this October 2014 Notice of Default.
Further, Plaintiffs have not alleged facts sufficient to support any claims against Defendant based on the recording of the 2018 Notice of Trustee’s Sale and Trustee’s Deed Upon Sale. The 2018 Notice of Trustee’s Sale and Trustee’s Deed Upon Sale are based on a Notice of Default recorded on February 21, 2018. (See Defendant’s Request for Judicial Notice, Exhs. 25, 28 & 29.) Defendant transferred all interest in the property though, such that Defendant was not the servicer and did not hold any beneficial interest under the Deed of Trust. (See Defendant’s Request for Judicial Notice, Exhs. 10, 11, 25, 26 and 27.)
The Court notes that Plaintiffs filed a late opposition, only three days before the hearing instead of the nine court days as required under Code of Civil Procedure section 1005(b). The Court has exercised its discretion to still consider this opposition, but Plaintiffs are cautioned in the future to timely file and serve any papers or else the Court is inclined to disregard them.
While Plaintiffs ask for leave to amend if this demurrer is sustained, Plaintiffs have not explained how they will be able to amend to allege facts to support a claim against Defendant.
Defendant’s Request for Judicial Notice is GRANTED.
If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendant shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court.