Aug 23, 2017

TENTATIVE RULINGS                                         

LAW & MOTION CALENDAR                             

Wednesday, August 23, 2017, 3:00 p.m.                 

Courtroom 17 – Hon. Peter Ottenweller

3035 Cleveland Avenue, Suite 200, Santa Rosa

 

CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, YOU MUST notify Judge Ottenweller’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, August 22, 2017.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

PLEASE NOTE:  The court no longer provides court reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained certified shorthand reporter to serve in the matter.

 

 

1.     SCV 256168 Matteri v. Shear Builders:

            The hearing on Plaintiff’s Motion for Protective Order has been dropped from calendar by the moving party.

 

2.     MCV 232641 Kings Credit v. Warren:

Appearances are required.

 

3.     SCV 254714 Mott v. Ryan Associates:

Cross-Defendant Elementia USA, LLC’s Motion to Quash Service is Granted.

When a Defendant moves to quash a summons for lack of personal jurisdiction, the Plaintiff has the burden of proving personal jurisdiction by the preponderance of the evidence.  Mihlon v. Sup. Ct. (Murkey) (1985) 169 Cal.App.3d 703, 710; Ziller Electronic Lab. GmbH v. Sup.Ct. (Grosh Scenic Studios) (1988) 206 Cal.App.3d 1222, 1232; Weil&Brown, Cal. Prac. Guide: Civ. Pro. Before Trial §§3:384-3:385.  An unverified pleading has no evidentiary value for determining personal jurisdiction, but may be used for determining whether the cause of action arises out of Defendant’s alleged local activities. Mihlon v. Sup.Ct., supra.   Plaintiffs are entitled to conduct discovery on the issue of jurisdiction before the hearing on the motion to quash.  Mihlon, supra, 446.

Cross-complainant Ryan does not oppose the Motion.

Elementia shows that its only contacts with California were that some of its employees provided recruiting assistance to Cross-defendant Plycem and it maintains no offices, agent, property, employees, etc., in this state. Andina Dec.

Specific Jurisdiction over Elementia

            Elementia also shows that its contacts, providing some hiring and recruiting functions for Plycem, appear to have no connection to the allegations or events at issue in this case and that Elementia in fact did not exist at the time of the events at issue and is not a successor entity to any party to this action.  Andina Dec.

            The Motion is Granted.  The moving party shall prepare a proposed order consistent with this tentative ruling and deliver it directly to Department 17 chambers within ten (10) days.  They shall serve it upon all parties within five (5) days of the filing of the Order.

 

4.     SCV 257542 Breazeale v. Schottelkorb:
The Motions are Denied.

Preliminarily, the Motion to Vacate Judgment is timely under CCP section 663a because the 15-day deadline applies to the filing of the notice of the intent to move to vacate judgment and Plaintiff filed that before service of the notice of entry of judgment. 

Plaintiff argues that “after trial” she “found out” that the cross-complaint was barred by the applicable statute of limitations and the judge “did not mention about this” but fails to demonstrate that this is a proper basis for vacating the judgment and entering a new or different one. 

Plaintiff has waived the right to raise the statute of limitations or timeliness of the claims in the cross-complaint.  She, as her motion admits, did not raise the statute of limitations or timeliness of the claims in the cross-complaint at any point in these proceedings until after judgment.  She did not plead it, mention it in her trial brief, or raise it at trial.  Plaintiff also at no point prior to judgment presented any evidence or argument that could support her position.  Plaintiff has therefore waived this.  The assertion that an action is untimely because brought after the statute of limitations has expired is a defense which the defendant must plead in the action or it is waived.  Mitchell v. County Sanitation Dist. No. One of Los Angeles County (1957) 150 Cal.App.2d 366, 371; Travelers Indem. Co. of Hartford, Connecticut v. Bell (1963) 213 C.A.2d 541, 547; see 3 Witkin, Cal.Proc. (5th Ed.2008) Actions, sections 432, 440.  A statute of limitations affects only the remedy, not the underlying right and it is personal rather than jurisdictional.  Union Sugar Co. v. Holister Estate (1935) 3 Cal.2d 740, 744; Mitchell; Travelers Indem. Co..  As the court explained in Travelers Indem. Co.,

 

The fact that the statute of limitations may have run on appellant's claim against Muehlmann at the time she filed suit against him does not affect the substantive right or the validity of the judgment upon which it is based where defendant waived his right to assert the bar of the statute as a defense. It is too well established to require citation of authority that the statute of limitations is procedural. It affects the remedy only, it does not impair the substantive right or obligation [Citation]; but it gives to the party entitled to rely upon it a ‘special defense, personal in its nature.’ [Citation.] And since the statute is a ‘personal privilege’ to be asserted or waived at the option of the one entitled to assert it the statute must be affirmatively invoked by him by appropriate pleading or its benefits to him are waived.

 

The Supreme Court explained in Union Sugar, supra, that “[u]nquestionably there is a general rule, long established in this state, that the statute of limitations is a special defense, personal in its nature, which may be waived or asserted, and that the party relying on its must affirmatively set it up in his pleading either by demurrer or answer, or it will be deemed to have been waived.”    The court added “it has been held that unless the adverse party invokes the plea of the statute at the trial, and brings to the attention of the trial court his purpose to offer evidence in support of such plea, the court cannot assume that the desires to make any such defense, and he cannot invoke the plea for the first time on appeal.” 

Plaintiff, moreover, fails to demonstrate that the evidence or facts adduced at trial demonstrate that the claims could be untimely, much less that they are as a matter of law that would render a judgment in favor of cross-complainant erroneous or not supported by the facts.  Plaintiff’s motion refers only to allegations in the cross-complaint and these do not show that any cause of action was untimely.  In fact, the allegations on their face expressly show that the claims in the cross-complaint, specifically the cause of action for defamation, were timely since they state that the wrongful conduct had been continuing since September 2014 right up to the date of filing the cross-complaint.

            With respect to the argument that this court improperly excluded some evidence, Plaintiff’s motion fails to pinpoint the evidence clearly, fails to demonstrate why it was improperly excluded, and fails to demonstrate that had the evidence not been excluded, it would have compelled a different judgment or would require the court to vacate the judgment and enter a different one. 

ANALYSIS:

According to CCP section 918, the “court may stay the enforcement of any judgment or order” in accord with, and subject to, the limitations set forth in subdivision (b) and regardless of whether an appeal will be taken or a notice of appeal has been filed.  According to subdivision (b),

[i]f the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof pursuant to this section for a period which extends for more than 10 days beyond the last date on which a notice of appeal could be filed.

 

Moreover, under CCP sections 128 and 187, courts have broad powers to control the proceedings before them to conform to law and justice, and to effect their orders.  See In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1087.  Courts in general do have some authority for staying actions for reasons other than those set forth in statute.  See Thomson v. Continental Ins. Co. (1967) 66 Cal.2d 738; Avant! Corp. v. Sup.Ct. (2000) 79 Cal.App.4th 876. 

Aside from seeking a new trial, a party may ask the court to vacate the judgment and enter a different judgment.  CCP section 663.  CCP section 663 allows a party to move the court to vacate a judgment and enter another, different judgment because either an “[i]ncorrect or erroneous legal basis… not consistent with or not supported by the facts” or a “judgment or decree not consistent with or not supported by the special verdict” has “materially” affected the party’s “substantial rights.”

            However, in such a motion, the court has no power to reconsider the facts and it may only determine if it applied the law correctly.  See Alameda v. Carleson (1971) 5 Cal.3d 730, 738; see also 8 Witkin, Cal.Proc. (5th Ed.2008) Attack on Judgment in Trial Court, section 140.

Timeliness

            The Motion to Vacate Judgment is timely.  Although Defendant is correct that the extensions of CCP section 1013 do not apply to motions to vacate judgment and enter different judgment, as set forth in CCP section 663a, the motion is timely.  Section 663a requires that the notice of intent to move to vacate judgment must be filed before entry of judgment or within 15 days of service of the notice of entry of judgment.  Here, Plaintiff filed that notice of intent before service of the notice of entry of judgment. 

Statute of Limitations

Plaintiff first argues that “after trial” she “found out” that the cross-complaint was barred by the applicable Statute Of Limitations and the judge “did not mention about this.” 

The assertion that an action is untimely because brought after the statute of limitations has expired is a defense which the defendant must plead in the action or it is waived.  Mitchell v. County Sanitation Dist. No. One of Los Angeles County (1957) 150 Cal.App.2d 366, 371; Travelers Indem. Co. of Hartford, Connecticut v. Bell (1963) 213 C.A.2d 541, 547; see 3 Witkin, Cal.Proc. (5th Ed.2008) Actions, sections 432, 440.  A statute of limitations affects only the remedy, not the underlying right and it is personal rather than jurisdictional.  Union Sugar Co. v. Holister Estate (1935) 3 Cal.2d 740, 744; Mitchell; Travelers Indem. Co..  As the court explained in Travelers Indem. Co.,

 

The fact that the statute of limitations may have run on appellant's claim against Muehlmann at the time she filed suit against him does not affect the substantive right or the validity of the judgment upon which it is based where defendant waived his right to assert the bar of the statute as a defense. It is too well established to require citation of authority that the statute of limitations is procedural. It affects the remedy only, it does not impair the substantive right or obligation [Citation]; but it gives to the party entitled to rely upon it a ‘special defense, personal in its nature.’ [Citation.] And since the statute is a ‘personal privilege’ to be asserted or waived at the option of the one entitled to assert it the statute must be affirmatively invoked by him by appropriate pleading or its benefits to him are waived.

 

The Supreme Court explained in Union Sugar, supra, that “[u]nquestionably there is a general rule, long established in this state, that the statute of limitations is a special defense, personal in its nature, which may be waived or asserted, and that the party relying on its must affirmatively set it up in his pleading either by demurrer or answer, or it will be deemed to have been waived.”    The court added “it has been held that unless the adverse party invokes the plea of the statute at the trial, and brings to the attention of the trial court his purpose to offer evidence in support of such plea, the court cannot assume that the desires to make any such defense, and he cannot invoke the plea for the first time on appeal.”  The court found in the case before it that appellant had raised the defense at trial and therefore did not waive it. 

            Plaintiff never raised the defense at any stage before or during trial and did not bring it up until after trial had concluded and judgment had been entered.

Evidentiary Support

            Plaintiff fails to point to any evidentiary support from the trial.  As noted above, the court may not reconsider the evidence or factual findings but may only determine if the judgment is based on an “[i]ncorrect or erroneous legal basis… not consistent with or not supported by the facts.”   

Plaintiff cites to no evidence from the trial, much less any facts or factual findings, that would even allow a finding that the Cause of Action is untimely, much less that the evidence is such that it would compel the court to find the Cause of Action untimely as a matter of law.

Plaintiff cites to the cross-complaint allegations stating that the defamation and harassment has been continuing since September 2014 is unavailing. First, it is not evidence but merely a part of the allegations. Secondly, the allegations do not show that the Cause of Action is untimely.  In fact, the allegations on their face expressly show that the Cause of Action is timely since they state that the wrongful conduct has been continuing since September 2014 right up to the date of filing the cross-complaint.

Exclusion of Evidence

Plaintiff next contends that the court erroneously excluded Plaintiff’s “transcripts prepared from… recordings” on the ground that they do not violate “section 632” and are admissible for impeachment. The Court properly excluded the transcripts.  Moreover, their admissibility would not have altered the outcome.

Defendant shall prepare a proposed order consistent with this tentative ruling and deliver it directly to Department 17 chambers within five (5) days.  Defendant shall serve it upon Plaintiff within five (5) days of the filing of the Order.

 

5.     SCV 258776 Isetta v. Garcia:

            Motion Granted in part.  The motion is granted as to Defendant.  The motion is denied without prejudice as to Josephine Garcia (Josephine) and Wine Country Garden Center, LLC (WCGC).  Sanctions awarded against Defendant in the amount of $2,376.

Plaintiffs did not properly serve the subpoena on Mrs. Garcia or WCGC, stating only that Defendant Garcia himself “accepted service” on their behalf which, without more information, is insufficient. This is especially true with respect to WCGC, an entity whose relationship to Defendant is as yet wholly unclear.

Plaintiffs shall prepare a proposed order consistent with this tentative ruling and deliver it directly to Department 17 chambers within five (5) days.  They shall serve it upon Defendant within five (5) days of the filing of the Order.

Defendant is to provide discovery within twenty (20) days of the filing of the Order.

Defendant shall pay plaintiffs sanctions in the amount of $2,430 (6 hours @$395/hr plus $60 costs) within thirty-five (35) days of the filing of the Order.

 

6.     SCV 259950 Rosson v. Flitner:

The Demurrer to the Second Cause of Action is Overruled.

According to CCP section 430.10(g), a party must allege, “in an action upon a contract,” whether the contract is written, oral, or implied.  The demurrer is designed to identify defenses based on the Statute Of Limitations or statute of frauds.  See Weil&Brown, section 7:91.

            Plaintiff now alleges that he never received written contract documents and does not know if they existed while Defendant himself testified under oath that he does not remember if the contract was written.  FAC, ¶30.  This is sufficient. 

Defendant requests that this court revisit its previous ruling overruling defendant’s demurrers.  The court declines to do so.

Plaintiff shall prepare a proposed order consistent with this tentative ruling and deliver it directly to Department 17 chambers within five (5) days.

Defendant shall answer the First Amended Complaint within twenty-five (25) days of the signed order.

 

7.     SCV 260382 Fischer v. Oakmont Senior Living:

            Motion Denied.  Plaintiff shows that all the unlawful actions, the decisions to discriminate against, harass, and terminate her, were made by Oakmont’s officers and Kasulka in Sonoma County since those responsible were located in Windsor.  Fischer Dec.  Plaintiff also shows that contrary to Oakmont’s assertion, she never maintained her own personnel file in her own office in Chino Hills.  Ibid.  Moreover, Defendants reside in this county, also making venue proper under the standard venue provisions and the fall-back basis for venue under Govt. Code section 12965(b).

Venue in transitory actions generally is properly in the county where the defendant resides, but with certain exceptions.  CCP section 395(a).   Specifically, venue is proper in “the superior court in the county where the defendants or some of them reside at the commencement of the action….”  Ibid.

However, Govt. Code section 12965(b) sets forth a more specific venue provision that applies to claims under FEHA, stating

 

An action may be brought in any county in the state in which the unlawful practice is alleged to have been committed, in the county in which the records relevant to the practice are maintained and administered, or in the county in which the aggrieved person would have worked or would have had access to the public accommodation but for the alleged unlawful practice, but if the defendant is not found within any of these counties, an action may be brought within the county of the defendant's residence or principal office.

 

The purpose is to give plaintiffs, who may be financially stressed, to have greater venue options for locations that may be easier.  Richfield Hotel Management, Inc. v. Sup.Ct. (1994) 22 Cal.App.4th 222, 225.

            Plaintiff here shows that all the unlawful actions, the decisions to discriminate against, harass, and terminate her, were made by Oakmont’s officers and Kasulka in Sonoma County since those responsible were located in Windsor.  Fischer Dec.  Plaintiff also shows that, contrary to Oakmont’s assertion, she never maintained her own personnel file in her own office in Chino Hills.  Ibid. 

            Defendants rely on Ford Motor Credit Co. v. S. Ct. (1996) 50 Cal.App.4th 306 for the proposition that only if all three of Gov’t. Code section 129665(b) requirements are not applicable can the court look to defendant’s residency.  This misreads Ford.  Ford found that a plaintiff has three alternatives for venue before looking to residency.  Plaintiff has shown that two of three FEHA requirements show venue in Sonoma County.

Given that Defendants are in this county, making it thus an ordinarily favorable county for the defendants, and given the policy behind the FEHA venue of making it easier, not more difficult, for plaintiffs to bring actions, the balance of the evidence, venue propriety, and policy considerations warrants denying this motion.

Plaintiff shall prepare a proposed order consistent with this tentative ruling and will deliver it directly to Department 17 chambers within ten (10) days.

 

8.     SCV 260892 Kerston v. Wells Fargo:

            The Motion for Preliminary Injunction is Granted. No undertaking is required as Defendant has waived this requirement by not opposing the Request for Preliminary Injunction.

            Alleging that he owns and lives in residential real property at 818 Monroe St, Santa Rosa (the Property), encumbered with the debt for a mortgage loan (the Loan),  Plaintiff complains that Defendants “wrongfully recorded” a notice of default (NOD) on the Loan on 12 Aug.2016 and notice of trustee’s sale (NOS) on 21 Feb.2017.  PPP contends that after obtaining the Loan in 2004, he “experienced a financial hardship” which made it more difficult to pay the Loan so he contacted Defendant Wells Fargo Bank, N.A. (WF) to obtain a loan modification but WF did not assign a single person or team so it kept demanding the same documents repeatedly even though Plaintiff provided them every time; nobody was available to respond to Plaintiff’s concerns or requests; “certain of Plaintiff’s applications were… denied” because WF claimed that Plaintiff could afford his payments while WF denied other application because it felt that he did not make enough money for them.  Then, in “early August” 2016, when Plaintiff’s “financial packet was under review,” WF recorded the NOD and it then recorded the NOS in February 2017 even though Plaintiff “was again in loan modification review, with a complete financial packet pending,” at the time.

The ultimate purpose of a preliminary injunction is to preserve the status quo.  Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.  The court may only grant such a preliminary injunction where the Plaintiff has a right to equitable relief if the case goes to trial.  Voorhies v. Greene (1983) 139 Cal.App.3d 989, 995-998.  CCP §526 lists the specific circumstances where an injunction would be appropriate.  These grounds include whether Plaintiff appears entitled to the requested relief, whether the requested relief includes a prayer to restrain the actions at issue, whether continued activity would create waste or great or irreparable injury to a party, and whether a party is about to do something regarding the subject matter of the action and tending to render judgment ineffectual, among others.  CCP §526(a). 

As is usual with all injunctions, a preliminary injunction will issue only if there is no adequate legal remedy.  CCP § 526.   The party seeking the injunction must show an imminent threat of irreparable injury, often equated with an “inadequate legal remedy.”  CCP section 526(a)(2); Korean Philadelphia Presbyterian Church v. Cal. Presbytery (2000) 77 Cal.App.4th 1069, 1084. 

The requirement that the injury be “imminent” simply means that the party to be enjoined is, or realistically is likely to, engage in the prohibited action.  Korean Philadelphia Presbyterian Church, supra.  The court should not grant the injunction if the conduct or injury complained of is not occurring.  Cisneros v. U.D. Registry, Inc. (1995) 39 Cal.App.4th 548, 574.   The irreparable injury will exist if the party seeking the injunction will be seriously injured in a way that later cannot be repaired.  People ex rel. Gow v. Mitchell Bros., Etc. (1981) 118 Cal.App.3d 863, 870-871.

The party seeking a preliminary injunction must also demonstrate a reasonable probability of success.  See CCP section 526(a)(1); San Francisco Newspaper Printing Co., Inc. v. Sup.Ct. (Miller) (1985) 170 Cal.App.3d 438, 442.   Plaintiff must make a prima facie showing that he is entitled to relief under these standards, but need not rise to the requirements for a final determination.  Triple A Machine Shop, Inc. v. State of California (1989) 213 Cal.App.3d 131, 138.

The court must conduct a two-prong equitable balancing test, weighing the probability of prevailing on the merits against the determination as to who is likely to suffer greater harm.  Robbins v. Sup.Ct. (1985) 38 Cal.3d 199, 206.  Shoemaker v. County of Los Angeles (1995) 37 Cal.App.4th 618, 633.  This determination involves a mix of the two elements, and the greater the Plaintiff’s showing on one element, the weaker it may be on the other.  Butt v. State of Calif. (1992) 4 Cal.4th 668, 678. 

Irreparable Injury

There is a threat of irreparable harm where there is an “inadequate legal remedy” or where the injury cannot be readily repaired or undone.  CCP § 526(a)(2); see People ex rel. Gow v. Mitchell Brothers’ Santa Ana Theater (1981) 118 Cal.App.3d 863, 870-871. 

Real property is generally considered unique so that damages cannot readily make up for any loss or injury.  See CC section 3387.  However, this is not necessarily true where the real property is solely for investment, in which case damages can be an adequate remedy, rendering an injunction unnecessary.  Jessen v. Keystone Sav. & Loan Ass’n (1983) 142 Cal.App.3d 454, 458.  

Plaintiff shows in both his complaint allegations and his declaration submitted with this motion that he owns the Property, it is his home and primary residence where he lives, and Defendants are moving forward with foreclosure proceedings, attempting to sell the Property.  Kerston Dec.  This demonstrates an imminent threat of irreparable injury.

Likelihood of Success on the Merits

Plaintiff also demonstrates a likelihood of success on the merits.  In addition to showing that he owns the Property, his evidence supports his allegations that he was engaged in modification proceedings, with a pending, completed modification application under review, at the time that Defendants recorded the NOD and at the time that they recorded the NOS, conduct which, as explained below, violates the applicable statutes and is sufficient basis to stop the foreclosure proceedings.  He also demonstrates that he was never provided a single point of contact despite asking for one, another violation which supports an order to stop foreclosure proceedings.  As further noted, in fact, stopping foreclosure proceedings and requiring Defendants to cure these defects before again issuing an NOD or NOS and proceeding with foreclosure is exactly the one type of remedy which is available to address these violations.

CC section 2924 governs the power of sale and notice of default on “mortgages.”  It requires, before exercising a power of sale, that the party with the power first record a notice of default (NOD) that must include certain listed elements, and that the party must wait at least 3 months after filing the NOD.  It lists other required information and recitals.  

Plaintiff’s claims are based in part on alleged violation of the requirement of “personal” contact set forth in sections 2923.5 and 2923.55(b)(2).  Section 2923.55 governs recording a notice of default and the requirements to be completed beforehand.  Subdivision (b)(1)(B) states that the servicer shall send to the borrower, in writing,

 

A statement that the borrower may request the following:

(i) A copy of the borrower's promissory note or other evidence of indebtedness.

(ii) A copy of the borrower's deed of trust or mortgage.

(iii) A copy of any assignment, if applicable, of the borrower's mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose.

(iv) A copy of the borrower's payment history since the borrower was last less than 60 days past due.

 

Subdivision (b)(2) states that prior to recording the notice of default:

[a] mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within 14 days.

 

CC section 2923.55 governs recording a notice of default and the requirements to be completed beforehand.  Subdivision (b)(1)(B) states that the servicer shall send to the borrower, in writing,

 

 A statement that the borrower may request the following:

(i) A copy of the borrower's promissory note or other evidence of indebtedness.

(ii) A copy of the borrower's deed of trust or mortgage.

(iii) A copy of any assignment, if applicable, of the borrower's mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose.

(iv) A copy of the borrower's payment history since the borrower was last less than 60 days past due.

 

            Section 2923.5 also sets forth a personal-contact requirement.  This states, in pertinent part and with emphasis added,

 

(a)(1) A mortgagee, trustee, beneficiary, or authorized agent may not file a notice of default pursuant to Section 2924 until 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (g).

 

(2) A mortgagee, beneficiary, or authorized agent shall contact the borrower in person or by telephone in order to assess the borrower's financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days. The assessment of the borrower's financial situation and discussion of options may occur during the first contact, or at the subsequent meeting scheduled for that purpose. In either case, the borrower shall be provided the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. Any meeting may occur telephonically.

(b) A notice of default filed pursuant to Section 2924 shall include a declaration that the mortgagee, beneficiary, or authorized agent has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required pursuant to subdivision (h).[1]

(g) A notice of default may be filed pursuant to Section 2924 when a mortgagee, beneficiary, or authorized agent has not contacted a borrower as required by paragraph (2) of subdivision (a) provided that the failure to contact the borrower occurred despite the due diligence of the mortgagee, beneficiary, or authorized agent. For purposes of this section, “due diligence” shall require and mean all of the following:

(1) A mortgagee, beneficiary, or authorized agent shall first attempt to contact a borrower by sending a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.

(2)(A) After the letter has been sent, the mortgagee, beneficiary, or authorized agent shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.

(B) A mortgagee, beneficiary, or authorized agent may attempt to contact a borrower using an automated system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live representative of the mortgagee, beneficiary, or authorized agent.

(C) A mortgagee, beneficiary, or authorized agent satisfies the telephone contact requirements of this paragraph if it determines, after attempting contact pursuant to this paragraph, that the borrower's primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected.

(3) If the borrower does not respond within two weeks after the telephone call requirements of paragraph (2) have been satisfied, the mortgagee, beneficiary, or authorized agent shall then send a certified letter, with return receipt requested.

(4) The mortgagee, beneficiary, or authorized agent shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours.

(5) The mortgagee, beneficiary, or authorized agent has posted a prominent link on the homepage of its Internet Web site, if any, to the following information:

(A) Options that may be available to borrowers who are unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options.

(B) A list of financial documents borrowers should collect and be prepared to present to the mortgagee, beneficiary, or authorized agent when discussing options for avoiding foreclosure.

(C) A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with their mortgagee, beneficiary, or authorized agent.

(D) The toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.

 

Mabry v. Sup.Ct. (2010) 185 Cal.App.4th 208, at 214 and 223, ruled that a party may enforce CC section 2923.5 by private right of action and that “if section 2923.5 is not complied with, then there is no valid notice of default, and without a valid notice of default, a foreclosure sale cannot proceed.” A declaration of compliance under section 2923.5(b) may simply track the statutory language and need not specify the details and methods of contact used. (Id. at p.214.)

Moreover, it is clear that a party may seek to set aside a trustee’s sale where the trustee failed to comply with procedural requirements, the defect was material, and this prejudiced the party seeking to set aside the sale.  Knapp v. Doherty (2004) 123 Cal.App.4th 76, 96-99.  (Id. at p.235.)

Balancing Test

Both factors support the injunction here.  The likelihood of injury to Defendants from the injunction seems insignificant by comparison to Plaintiff’s injuries without it, and much less irreparable.

Status Quo

Finally. the injunction would mostly preserve the status quo. 

Undertaking

If the court grants a preliminary injunction, it must require an undertaking or a cash deposit. CCP section 529.  However, the court may find that the party to be enjoined has waived the right to an undertaking if substantial evidence indicates that it has consciously and knowingly failed or refused to argue the point, at least as a result of a tactical decision.  Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 740.

There is no opposition and thus Defendants have waived the right to an undertaking.

Plaintiff shall prepare a proposed order consistent with this tentative ruling and deliver it directly to Department 17 chambers within five (5) days.  They shall serve it upon Defendant within five (5) days of the filing of the Order.





[1] Subdivision (h) is inapplicable here and no party contends otherwise.  It applies to situations such as those where the borrower has relinquished the property or to loans made outside the time frame at issue in this action.

 

© 2017 Superior Court of Sonoma County