Mitcham vs. West Coast Servicing, Inc.

The Court orders that discovery to moving party is STAYED, due to pending criminal proceedings. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885; Pacers, Inc. v. Superior Court (1984) 16 Cal.App.3d 686, 689.) The request to stay this action entirely, and/or to stay all discovery, is DENIED. (Avant! Corp. v. Superior Court, supra at 886 [“Clearly, because a corporation has no right against self-incrimination, it has no Fifth Amendment interests to protect”]; see also id. at 887 [Fifth Amendment privilege was personal to individual employees, not employer].)

An Order to Show Cause re: Status of Criminal Proceedings is set for June 7, 2027 at 9 AM.

The Case Management Conference set for September 28, 2026 is also continued to June 7, 2027 at 9 AM.

Moving party shall give notice of all the above.

11 Mitcham vs. West Coast Servicing, Inc.

2025-01504740 Demurrer to Amended Complaint

Defendant West Coast Servicing, Inc.’s demurrer to the First Amended Complaint [FAC] is SUSTAINED as to the 1st and 2nd causes of action, with leave to amend, on grounds of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The remainder of the demurrer is OVERRULED.

Moving defendant’s request for judicial notice is (1) GRANTED as to Exs. A-D, limited to the fact that the documents were recorded, but not of the truth of their contents (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117 [“the fact a court may take judicial notice of a recorded deed, or similar document, does not mean it may take judicial notice of factual matters stated therein”]); (2) GRANTED as to

Exs. H, J, and O (Evid. Code 452, subd. (d) [court records]; (3) GRANTED as to Exs. F, G, I, and K-N, limited to the fact that the documents were filed, but not of the truth of their contents (In re Vicks (2013) 56 Cal.4th 274, 314 [“while courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files”]; Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, FN 7 [judicial notice of court records ordinarily limited to orders, statements of decision, and judgments]); and (4) DENIED as to Ex. E.

Plaintiff is granted 15 days leave to amend.

Moving party shall give notice.

1st cause of action for breach of contract - loan modification agreement.

This cause of action fails to state sufficient facts. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [elements].) This cause of action alleges that defendant breached a loan modification agreement which combined a senior loan and deed of trust [DOT] with the junior loan and DOT now held by moving defendant. (FAC, ¶¶ 11, 12, 38, 41.) However, the “Modification Agreement” (Ex. 3 to FAC) only refers to a single loan, i.e. the first loan. (See Holland v. Morse Diesel International (2001) 86 Cal.App.4th 1443, 1447 [exhibits attached to the FAC given precedence over inconsistent allegations in the FAC].)

The FAC also fails to allege sufficient facts to show how the claim and/or amended claim filed by defendant’s predecessor during plaintiff’s Chapter 13 bankruptcy proceedings modified the original terms of the junior loan/DOT. (Civ. Code, § 1624, subd. (a)(3) [an agreement “for the sale of real property, or of an interest therein” is subject to the statute of frauds, requiring a writing]; Civ. Code, § 2922 (“A mortgage can be created, renewed, or extended, only by writing, executed with the formalities required in the

case of a grant of real property”]; Secrest v. Security National Mortgage Loan Trust 2002- 2 (2008) 167 Cal.App.4th 544, 553 [“An agreement to modify a contract that is subject to the statute of frauds is also subject to the statute of frauds”].)

The FAC now alleges plaintiff’s performance under the second DOT currently held by defendant (FAC, ¶ 40), as well as facts that at least some of the accrued interest on the second DOT was discharged in bankruptcy (FAC, ¶¶ 23, 26, 27, 29). Leave to amend is granted to allege breach of the second DOT, if available.

Demurrer to 2nd cause of action: breach of implied covenant of good faith and fair dealing.

A claim for breach of the implied covenant of good faith and fair dealing requires the existence and breach of an underlying contract. (Love v. Fire Insurance Exchange (1990) 221 Cal.App.3d 1136, 1153.) Thus, since the 1st cause of action fails, the 2nd cause of action fails as well.

Demurrer to 3rd cause of action: declaratory relief.

This cause of action states sufficient facts. (Code Civ. Proc., § 1060 [authorizing declaratory relief]; Ludgate Ins. Co. v. Lockheed Martin Corp. (2002) 82 Cal.App.4th 592 [elements].) Even if the “Modification Agreement” attached as Ex. 3 to the FAC did not include the loan/DOT now held by moving party, the FAC alleges other facts disputing the amount owed, which is sufficient. (FAC, ¶¶ 17-19, 23, 27, 29-33, 60-65, 67.)

Demurrer to 4th cause of action: violation of Bus. & Prof. Code, §§ 17200 et. seq.

This cause of action states sufficient facts. (Bus. & Prof. Code, §§ 17200, 17203, 17204, 17206; FAC, ¶¶ 70, 71.) The 6th cause of action, discussed below, supports this cause of action under the “unlawful” prong of Bus. & Prof. Code, § 17200.

Demurrer to 6th cause of action: violation of the Rosenthal Fair Debt Collection Practices Act.

This cause of action states sufficient facts. Moving party contends that this cause of action fails because the “Modification Agreement” does not include the junior loan. However, as discussed above in connection with the 3rd cause of action, plaintiff states sufficient facts to dispute the amounts claimed by defendant, on other grounds.

Moving Party shall give notice.

12 Brown vs. Buwalda

2025-01516756 1. Demurrer to Amended Complaint 2. Motion to Strike Portions Of Complaint 3. Demurrer to Amended Complaint 4. Motion to Strike Complaint

Demurrer

Sixth Cause of Action for Intentional Infliction of Emotional Distress

Belmont defendants

Belmont argues plaintiffs have not alleged Belmont’s conduct was extreme or outrageous. Belmont further alleges plaintiff haven’t set forth sufficient facts establishing they have experienced emotional distress. Finally, Belmont contends it is alleged plaintiffs discovered the presence of toxic mold on September 3, 2024, when Belmont was no longer a property manager.

Buwalda

Buwalda argues the FAC is devoid of specific allegations regarding the nature and extent of the alleged severe emotional distress Plaintiffs claim they suffered due to Defendant’s conduct. Plaintiffs make general and conclusory allegations that they “suffered severe mental anguish and emotional