Demurrer
May 8, 2026 Dept. 9 Tentative Rulings
2. 24CV0053 NICHOLAS JAMES LEE GRAY vs. ZBS LAW LLP Demurrer
This is a dispute surrounding the foreclosure of Plaintiff's residential real property following Plaintiff's default on the loan. Defendants demur to Plaintiff's Third Amended Complaint ("TAC").
Requests for Judicial Notice Defendant requests the court to take judicial notice of several documents that are recorded with El Dorado County. Judicial notice is a mechanism which allows the court to take into consideration matters which are presumed to be indisputably true. California Evidence Code Sections 451, 452, and 453 collectively govern the circumstances in which judicial notice of a matter may be taken. While Section 451 provides a comprehensive list of matters that must be judicially noticed, Section 452 sets forth matters which may be judicially noticed.
A trial court is required to take judicial notice of any matter listed in section 452 if a party requests it and gives the other party sufficient notice to prepare to meet the request. Evidence Code § 453. Evidence Code § 452(c) allows the court to take judicial notice of "official acts of the legislative, executive and judicial departments of the United States and of any state of the United States." Defendants' request for judicial notice is granted.
Meet and Confer Requirement Code of Civil Procedure §430.41(a) provides: Before 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 of Civil Procedure §430.41(a)(3): The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer. (B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.
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May 8, 2026 Dept. 9 Tentative Rulings
Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal. App. 5th 348 (“If, upon review of a declaration under section 430.41, subdivision (a)(3), a court learns no meet and confer has taken place, or concludes further conferences between counsel would likely be productive, it retains discretion to order counsel to meaningfully discuss the pleadings with an eye toward reducing the number of issues or eliminating the need for a demurrer, and to continue the hearing date to facilitate that effort”). Based on the Declaration of Brendan D. Gonzalez, counsel attempted to meet and confer with Plaintiff prior to filing, but the dispute could not be resolved.
Standard of Review - Demurrer A demurrer tests the sufficiency of a complaint by raising questions of law. Rader Co. v. Stone (1986) 178 Cal.App.3d 10, 20. In determining the merits of a demurrer, all material facts pleaded in the complaint and those that arise by reasonable implication, but not conclusions of fact or law, are deemed admitted by the demurring party. (Moore v. Conliffe, 7 Cal.4th 634, 638; Interinsurance Exchange v. Narula, 33 Cal.App.4th 1140, 1143. The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded. Flynn v. Higham (1983) 149 Cal.App.3d 677, 679. Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 517.
The TAC alleges 1) wrongful foreclosure, 2) negligence/statutory duty/breach of fiduciary duty, 3) violation of Business and Professions Code § 17200 Unfair Business Practices, and 4) Accounting/Equitable Relief/Monetary Recovery. Defendant demurs to all causes of action on the grounds that the TAC fails to state facts sufficient to constitute a cause of action.
Defendant argues that the first cause of action fails because the TAC does not establish the essential elements, which are: “(1) the 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.” (Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408.) The Court agrees that the TAC lacks the factual allegations necessary to establish a cause of action for wrongful foreclosure.
Defendant argues that the second cause of action fails because the TAC does not establish that Defendant owed a duty to Plaintiff. The Court agrees and notes that the TAC continues to merely include conclusory statements that a duty was owed and is devoid of factual allegations establishing one.
Defendant argues that the third cause of action fails because Plaintiff lacks standing and fails to allege any wrongful conduct. Standing under the UCL is established only where the
May 8, 2026 Dept. 9 Tentative Rulings
plaintiff “has suffered injury in fact and has lost money or property” as a result of the alleged unfair practices. (Bus. & Prof. Code § 17204.) Here, the default occurred before any alleged wrongdoing. (See RJN, Ex. F, p. 2; TAC, p. 8). Since Plaintiff’s own default led to the foreclosure and any related damage, and not Defendant’s conduct, the Court agrees that Plaintiff lacks standing to bring this cause of action.
Defendant argues that the fourth cause of action fails because the TAC fails to establish entitlement to an accounting and the other “causes” are actually remedies. The Court agrees that the TAC does not include any allegations leading to an entitlement to accounting. There is no opposition.
In terms of leave to amend, California Code of Civil Procedure § 430.41(e)(1) limits amendments, providing that "a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” The Complaint has already been amended three times and there is no opposition establishing a reasonable possibility the defect can be cured. Therefore, the demurrer is sustained without leave to amend.
TENTATIVE RULING #2: DEMURRER SUSTAINED WITHOUT LEAVE TO AMEND. NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999).
NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING.
LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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