Motion for Judgment on the Pleadings
The Court finds the SAC’s allegations sufficient at the pleading stage. “[W]hen benefits are due an insured, delayed payment based on inadequate or tardy investigations, oppressive conduct by claims adjusters seeking to reduce the amounts legitimately payable and numerous other tactics may breach the implied covenant because it frustrates the insured's primary right to receive the benefits of his contract—i.e., prompt compensation for losses.” (Love v. Fire Ins. Exch. (1990) 221 Cal.App.3d 1136, 1153 (emphasis in original).
The demurrer to the second cause of action is OVERRULED.
Motion 2: Motion to Strike
Pursuant to Code of Civil Procedure section 436, the court may “strike out any irrelevant, false or improper matter inserted in any pleading” and “strike out all or any part of any pleading not drawn or filed in conformity with the laws of the state, a court rule, or an order of the court.”
The allegations appear insufficient to the Court to support entitlement to punitive damages. The allegations that Defendant undervalued the loss and wrongfully withheld benefits without proper investigation are insufficient to demonstrate that Defendant intended to cause injury to Plaintiffs or that Defendant engaged in despicable conduct. (See Civ. Code, § 3294(a), (c); Pac. Gas & Elec. Co. v. Superior Court (2018) 24 Cal.App.5th 1150, 1159.) The SAC also fails to plead facts showing that an officer, director, or managing agent of Defendant knew or ratified the alleged wrongful conduct. (Civ. Code, § 3294(b).)
Based on the foregoing, the motion to strike is GRANTED WITH 20 DAYS LEAVE TO AMEND.
Counsel for Defendant shall give notice.
12. Casco v. Bank of America, Before the Court is a Motion for Judgment on the Pleadings by Bank N.A. America N.A. (BANA) as to the entire complaint filed by plaintiff Franklin 23-1335287 Casco, Jr. For the reasons set forth herein, the motion is DENIED.
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Request for Judicial Notice
BANA requests the Court take judicial notice of four recorded documents. (ROA 74) The Court will take judicial notice of the facts and propositions within the four recorded documents. (Evid. Code §452(h).)
Motion for Judgment on the Pleadings
A motion for judgment on the pleadings may be made, and granted, on the same grounds as a general demurrer. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650; Code Civ. Proc., §438(c)(1)(B)(ii).) As with a demurrer, the grounds for judgment on the pleadings must appear on the face of the complaint or be based on facts that the court may judicially notice. (Code Civ. Proc., §438(d); see, Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1063 [subject to certain
exceptions, extrinsic evidence should not be considered in a motion for judgment on the pleadings].)
Here, BANA seeks judgment on the pleadings as to the entire complaint pursuant to Code of Civil Procedure §438(c)(1)(B)(ii) and (d) (Notice of Motion at 2:4-8)
In the first cause of action, plaintiff alleges a violation of Civil Code § 2923.6(c) states: “If a borrower submits a complete application for a first lien loan modification offered by, or through, the borrower's mortgage servicer at least five business days before a scheduled foreclosure sale, a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending. A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale or conduct a trustee's sale until any of the following occurs: (1) The mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification, and any appeal period pursuant to subdivision (d) has expired. (2) The borrower does not accept an offered first lien loan modification within 14 days of the offer. (3) The borrower accepts a written first lien loan modification, but defaults on, or otherwise breaches the borrower's obligations under, the first lien loan modification.”
In paragraphs 33-35, plaintiff alleges he submitted the loan modification package provided by BANA, did not get a response to the application, and then BANA recorded a Notice of Trustee’s sale. Plaintiff then alleges that because BANA intended to go forward with the sale, he was forced to file a bankruptcy at the last minute. (Complaint ¶46) The complaint was filed on 7/10/23, at which time the Trustee’s Sale was scheduled for August 7, 2023.” (Complaint ¶52)
In opposition, BANA argues the sale did not go forward and that therefore the violation was not material. That is not pled in the complaint. While BANA asserts the copy of the 2012 Grant Deed shows plaintiff’s “continued ownership of the Property,” (See RJN at 2:19) the Grant Deed does not establish there is no material violation alleged in the complaint.
As currently pled and based only on the complaint and evidence attached to the Request for Judicial notice, the Court finds the 1st cause of action is sufficiently pled. As the complaint is sufficiently pled a cause of action against BANA, the motion is DENIED. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39 - A complaint is good against a general demurrer so long as the essential facts of some valid cause of action are alleged.)
Plaintiff is ordered to give notice.