Mejia vs. Hernandez

“The element of intent is narrow. ‘[T]he intent sufficient to support the judgment [of usury] does not require a conscious attempt, with knowledge of the law, to evade it. The conscious and voluntary taking of more than the legal rate of interest constitutes usury and the only intent necessary on the part of the lender is to take the amount of interest which he receives; if that amount is more than the law allows, the offense is complete.’ ” (Korchemny v. Piterman (2021) 68 Cal.App.5th 1032, 1043, quoting Ghirardo, supra, 8 Cal.4th at p. 798.)

“ ‘In determining whether usurious interest has been charged or collected under a particular contract it is not permissible to consider only a portion of the term. The test is: Did the lender under his contract charge or receive a profit on his investment in excess of the maximum rate for the full period of the loan? If he has, there is usury; otherwise not.’ ” (Sharp v. Mortgage Sec. Corp. of America (1932) 215 Cal. 287, 290 [citation omitted].) Additionally, “the contract must in its inception require a payment of usury ....” (Id.)

The first cause of action for usury alleges Defendant lent Plaintiff $150,000 in May 2015. (FAC ¶ 15.) Plaintiff repaid the loan in full, discharging the obligation in June 2022, and paying $91,000 in interest as rental income (a rate of 8.6 percent per annum). (Ibid.) The FAC alleges Defendant’s demand of an additional $165,000 from Plaintiff is a conscious intent to charge an interest rate of 24.4 percent per year. (Id. at ¶¶ 13, 16.) The FAC further alleges that while Defendant did not express to Plaintiff her intent that the loan also entitled her to a permanent joint interest in the Property at the time the loan was made, she subsequently represented that this had been her intent from the inception of the loan. (Id. at ¶ 8.)

Furthermore, the FAC alleges that Defendant demanded $256,500 in interest on her seven-year $150,000 loan, or 24.4 percent per annum. (Id. at ¶ 13.) The above allegations are sufficient to survive demurrer and thus the instant Demurrer is OVERRULED.

Defendant to file an Answer to the FAC within 20 days’ notice of this ruling.

Plaintiff to give notice.

58 Mejia vs. Motion for Leave to File Cross Complaint Hernandez Defendant Victor Hugo Hernandez’s unopposed motion for leave to file a 25-01529994 cross-complaint is GRANTED. (Code of Civ. Proc. § 26.50.)

Defendant to file the Cross-Complaint within 10 days of this ruling.

Moving Party is to give notice.