This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 09:06:41 (UTC).

ESTEBAN MONTENEGRO VS FEDERAL NATIONAL MORTGAGE ASSOCIATION

Case Summary

On 01/04/2013 ESTEBAN MONTENEGRO filed a Property - Foreclosure lawsuit against FEDERAL NATIONAL MORTGAGE ASSOCIATION. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID S. MILTON, JOHN P. DOYLE and RALPH C. HOFER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****0050

  • Filing Date:

    01/04/2013

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Burbank Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID S. MILTON

JOHN P. DOYLE

RALPH C. HOFER

 

Party Details

Plaintiffs and Cross Defendants

MONTENEGRO ESTEBAN

MIREYA MONTENEGRO

MONTENEGRO MIREYA

Defendants

BANK OF AMERICA N.A.

FEDERAL HOUSING FINANCE AGENCY

FEDERAL NATIONAL MORTGAGE ASSOCIATION

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS

NORTH HILLS ESCROW CORP.

REAL TIME RESOLUTIONS INC.

RECONSTRUCT COMPANY N.A.

Cross Plaintiff and Intervenor

EVERYDAY RICH LLC

Attorney/Law Firm Details

Plaintiff Attorneys

GHADA HELENA PHILIPS

SMITH STEVEN EARL

JULIUS JOHNSON

WIECHERT DAVID WILLIAM

JOHNSON JULIUS

Defendant Attorneys

PRENOVOST NORMANDIN BERGH & DAWE APC

BRYAN CAVE MCPHEETERS & MCROBERTS

DAVIS & DAVIS LAW GROUP APC

BLOOM DAVID BRUCE

FRANCO NANCY

Intervenor Attorneys

ANDERSON MCPHARLIN & CONNERS

FRANKLIN JEFFRIES

Other Attorneys

BURCH CARLETON R.

 

Court Documents

Civil Case Cover Sheet

1/4/2013: Civil Case Cover Sheet

Proof of Service (not Summons and Complaint)

3/20/2013: Proof of Service (not Summons and Complaint)

Minute Order

4/24/2013: Minute Order

Legacy Document

8/19/2013: Legacy Document

Minute Order

7/8/2015: Minute Order

Legacy Document

8/25/2015: Legacy Document

Substitution of Attorney

9/28/2015: Substitution of Attorney

Minute Order

12/11/2015: Minute Order

Legacy Document

8/15/2016: Legacy Document

Legacy Document

1/12/2018: Legacy Document

Legacy Document

2/7/2018: Legacy Document

Notice of Ruling

2/13/2018: Notice of Ruling

Legacy Document

2/13/2018: Legacy Document

Request for Judicial Notice

2/16/2018: Request for Judicial Notice

Legacy Document

3/15/2018: Legacy Document

Minute Order

4/27/2018: Minute Order

Request for Judicial Notice

4/2/2019: Request for Judicial Notice

Opposition

6/26/2019: Opposition

186 More Documents Available

 

Docket Entries

  • 07/26/2019
  • Docketat 09:00 AM in Department D; Hearing on Demurrer - without Motion to Strike (To Plaintiff's First Amended Cross-Complaint filedon behalf of Defendants Bank of America, N.A., et al.) - Not Held - Rescheduled by Party

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  • 07/26/2019
  • Docketat 09:00 AM in Department D; Case Management Conference - Not Held - Vacated by Court

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  • 07/26/2019
  • Docketat 08:30 AM in Department D; Hearing on Demurrer - without Motion to Strike (To First Amended Cross-Complaint of Mireya Montenegro, Personal Rep of the Estate of Esteban Montenegro, Decedent filed on behalf of Plaintiff-In-Intervention/Cross-Defendant Everyday Rich, LLC) - Held - Motion Granted

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  • 07/26/2019
  • DocketMinute Order ( (Hearing on Demurrer - without Motion to Strike To First Amend...)); Filed by Clerk

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  • 07/19/2019
  • DocketObjection (to Declaration of Julius Johnson Filed in Support of Opposition to Demurrer of Everyday Rich, LLC); Filed by EVERYDAY RICH, LLC (Cross-Complainant)

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  • 07/19/2019
  • DocketReply (Brief of Everyday Rich, LLC in Support of Demurrer to First Amended Cross-Complaint); Filed by EVERYDAY RICH, LLC (Cross-Complainant)

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  • 07/15/2019
  • DocketOpposition (Opposition to Cross-Complaintant Mireya Canete To The Demurrer of Cross Defendant Everyday Rich); Filed by MIREYA MONTENEGRO (Plaintiff)

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  • 07/15/2019
  • DocketRequest for Judicial Notice; Filed by MIREYA MONTENEGRO (Plaintiff)

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  • 06/28/2019
  • Docketat 09:00 AM in Department D; Case Management Conference - Not Held - Continued - Court's Motion

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  • 06/28/2019
  • Docketat 08:30 AM in Department D; Hearing on Demurrer - without Motion to Strike (To Plaintiff's First Amended Cross-Complaint filedon behalf of Defendants Bank of America, N.A., et al.) - Not Held - Continued - Court's Motion

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376 More Docket Entries
  • 03/20/2013
  • DocketProof of Service; Filed by Attorney for Plaintiff

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  • 03/20/2013
  • DocketProof of Service (not Summons and Complaint); Filed by ESTEBAN MONTENEGRO (Plaintiff)

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  • 01/04/2013
  • DocketNotice (of OSC)

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  • 01/04/2013
  • DocketNotice of Case Management Conference

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  • 01/04/2013
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 01/04/2013
  • DocketSummons Filed

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  • 01/04/2013
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 01/04/2013
  • DocketSummons; Filed by null

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  • 01/04/2013
  • DocketComplaint filed-Summons Issued

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  • 01/04/2013
  • DocketCivil Case Cover Sheet

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Tentative Rulings

Case Number: EC060050    Hearing Date: January 24, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 12

Date: 1/24/20

Case No: EC 060050 Trial Date: None Set

Case Name: Montenegro v. Federal National Mortgage Association, et al.

DISCOVERY MOTIONS (5 Motions)

(CCP § 2030.290, 2031.300, 2033.280, 2023.010 et seq)

Moving Party: Cross-Defendant Every Day Rich, LLC

Defendant Bank of America

Responding Party: Defendant in Intervention/Cross-Complainant Mireya Montenegro

(No Opposition)

RELIEF REQUESTED:

Responses to Form Interrogatories, Set No. One

Responses to Special Interrogatories, Set No. One

Responses to Request for Production, Set No. One

Order Deeming First Set of Requests for Admissions Admitted

Order Deeming the matters specified in Bank of America’s Request for Admissions (Set One) to Plaintiff as Admitted

CHRONOLOGY

Date Discovery served: July 19, 2019

Extensions of time to respond until: September 5, 2019 (Ex. B)

Date Responses served: NO RESPONSES SERVED

Date Motion served: November 1, 2019, October 2, 2019 Timely

OPPOSITION:

No opposition.

ANALYSIS:

Interrogatories and Documents

Under CCP § 2030.290, “If a party to whom interrogatories are directed fails to serve a timely response,” that party “waives any legal right to exercise the option to produce writings...as well as any objection to the interrogatories, including one based on privilege or on the protection for work product...” Under subdivision (b), “The party propounding the interrogatories may move for an order compelling response to the interrogatories.” CCP §2031.300 contains similar provisions with respect to requests to produce documents.

In this case, interrogatories and document production demands have been directed to Mireya Montenegro, Administrator of the Estate, and responding party has failed to serve timely responses. Propounding party has appropriately moved for orders to compel. Accordingly, responding party has waived the option to produce writings, as well as all objections, and should be ordered to respond.

Requests for Admissions

Under CCP § 2033.280, a party who fails to serve a timely response to requests for admissions “waives any objection to the requests….” In addition, the requesting party may move for an order that “the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction....” CCP § 2033.280(b). The Code specifies that “The court shall make this order, unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Section 2033.220.” CCP § 2033.280(c).

In this case, requests for admissions were served on Mireya Montenegro, as administrator, by each moving party, Everyday Rich, LLC, and Bank of America, N.A. Responding party has failed to serve timely responses, and when no responses were served, propounding parties filed these motions. Responding party has failed to serve timely responses and has therefore waived all objections. Propounding parties have filed noticed motions requesting an order that the requests be deemed admitted as truth. Unless satisfactory responses are served before the hearing, the court must grant the motions.

Sanctions

With respect to Requests for Admissions, CCP § 2033.280(c) provides:

“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion.”

With respect to interrogatories, under CCP § 2030.290(c), “The court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” A similar provision applies to document demands. See CCP § 2031.300(c).

CCP § 2023.010 provides that misuse of the discovery process includes “(d) Failing to respond or to submit to an authorized method of discovery.” Where there has been such conduct, under CCP § 2023.030(a), “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct....If a monetary sanction is authorized” by the statute, “ the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that the other circumstances make the imposition of the sanction unjust.” CCP § 2023.030(a).

Under CRC Rule 3.1348(a): “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.”

The burden is on the party subject to sanctions to show substantial justification or injustice. Mattco Forge, Inc. v. Arthur Young & Co. (1990, 2nd Dist.) 223 Cal.App.3d 1429, 1436.

In this case, responding party has failed to respond to authorized methods of discovery and propounding parties have submitted evidence that propounding parties have incurred expenses as a result of the conduct. Since the motions are unopposed, there is no evidence that the imposition of sanctions would be unjust. Cross-defendant Everyday Rich requests $430 for each of four motions, which appears reasonable. Bank of America requests $2,436, which is very high for a motion of this nature at the $400 per hour billing rate. The court reduces the billing rate to $300.00 per hour for 2 hours for Bank of America’s Motion. Court awards 2 hours for attendance at hearing for $1,200.00 to be awarded on the motion with only 2 hours preparation the motion.

RULING:

[No opposition]

Motions are granted.

Motion to Compel Responses of Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, to Form Interrogatories is GRANTED.

Defendant-in-Intervention/Cross-Complainant is ordered to serve responses to Form Interrogatories, Set No. One, without objection, within 10 days.

Monetary sanctions in the amount of $430.00 [$430 requested] are awarded against Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, and her attorney of record, jointly and severally, payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a).

Motion to Compel Responses of Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, to Special Interrogatories is GRANTED.

Defendant-in-Intervention/Cross-Complainant is ordered to serve responses to Plaintiff-In-Intervention and Cross-Defendant Everyday Rich, LLC’s First Set of Special Interrogatories, without objection, within 10 days.

Monetary sanctions in the amount of $430.00 [$430 requested] are awarded against Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, and her attorney of record, jointly and severally, payable within 30 days. CCP §§ 2030.290(c), 2023.010(d), 2023.030(a).

Motion to Compel Responses of Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, to Requests for Production of Documents is GRANTED.

Defendant-in-Intervention/Cross-Complainant is ordered to serve responses to Plaintiff-in-Intervention and Cross-Defendant Everyday Rich, LLC’s First Set of Requests for Production, without objection, and to permit inspection and copying, within 10 days.

Monetary sanctions in the amount of $430.00 [$430 requested] are awarded against Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, and her attorney of record, jointly and severally, payable within 30 days. CCP §§ 2031.300(c), 2023.010(d), 2023.030(a).

Motion to Deem Requests for Admission Admitted is GRANTED.

Defendant-in-Intervention/Cross-Complainant Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The Court therefore orders that all matters specified in Plaintiff-in-Intervention and Cross-Defendant Everyday Rich, LLC’s First Set of Requests for Admission to Defendant-In-Intervention/Cross-Complainant Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent are deemed admitted as true, pursuant to CCP § 2033.280(c).

Monetary sanctions in the amount of $430.00 [$430 requested] are awarded against Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, and her attorney of record, jointly and severally, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Or, if substantially compliant responses served prior to hearing:

Motion to Deem Requests for Admission Admitted is DENIED.

The court finds that Defendant-in-Intervention/Cross-Complainant Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent has served responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. However, mandatory monetary sanctions are awarded against Defendant-in-Intervention/Cross-Complainant Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent pursuant to CCP § 2033.280(c) (“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion”). Monetary sanctions in the amount of $430.00 [$430 requested] are awarded against Defendant-in-Intervention/Cross-Complainant Mireya Montenegro, Administrator of the Estate of Esteban Montenegro, Decedent, and her attorney of record, jointly and severally, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

The Bank of America motion is moot because the court on January 17, 2019 sustained its demurrer without leave to amend.

Bank of America, N.A.’s Motion to Deem Requests for Admissions (Set One) Admitted is GRANTED.

Plaintiff Mireya Caneta has failed to serve timely responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. The Court therefore orders that all matters specified in Defendant Bank of America, N.A.’s Requests for Admission of Plaintiff (Set One) are deemed admitted as true, pursuant to CCP § 2033.280(c).

Monetary sanctions in the amount of $1,200.00 [$2,436.00 requested] are awarded against Plaintiff Mireya Caneta, and plaintiff’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Or, if substantially compliant responses served prior to hearing:

Bank of America, N.A.’s Motion to Deem Requests for Admissions (Set One) Admitted is DENIED.

The court finds that Plaintiff Mireya Caneta has served responses substantially complying with the provisions of CCP § 2033.220 prior to the hearing on this motion. However, mandatory monetary sanctions are awarded against Plaintiff Mireya Caneta pursuant to CCP § 2033.280(c) (“It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admissions necessitated this motion”). Monetary sanctions in the amount of $1,200.00 [$2,436.00 requested] are awarded against Plaintiff Mireya Caneta, and plaintiff’s attorney of record, jointly and severally, payable within 30 days. CCP §§ 2033.280(c), 2023.010(d), 2023.030(a).

Case Number: EC060050    Hearing Date: January 17, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 24

Date: 1/17/20

Case No: EC 060050 Trial Date: None Set

Case Name: Montenegro v. Federal National Mortgage Association, et al.

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Defendant and Cross-Defendant Bank of America, N.A.

Responding Party: Cross-complainant Mireya Canete, Administrator of the Estate of

Esteban Montenegro

RELIEF REQUESTED:

Sustain demurrer to Second Amended Cross-Complaint

Strike Attorneys’ Fees, Punitive Damages

CAUSES OF ACTION: from Second Amended Cross- Complaint

1) Violation of California Civil Code § 2924.17

2) Wrongful Foreclosure

3) Slander of Title

FACTUAL AND PROCEDURAL BACKGROUND:

This is a wrongful foreclosure action originally brought by plaintiff Esteban Montenegro.

On February 7, 2014, the court sustained a demurrer to the Third Amended Complaint without leave to amend and entered judgment in favor of defendants.

Plaintiff appealed the judgment, and on June 22, 2015, the court of appeal issued its remittitur, and its decision reversing the judgment of dismissal and ordering the trial court to enter a new order overruling the demurrer to a cause of action for violation of section 2924.17 and sustaining the demurrer to the cause of action for violation of Business and Professions Code § 17200. The court issued such an order on July 8, 2015 and set the matter for a Status Conference/Trial Setting Conference on July 29, 2015. The clerk gave notice.

On July 29, 2015, there was no appearance by or for plaintiff, and the case was set for an OSC re dismissal and the Trial Setting Conference was continued to August 25, 2015. Counsel for defendant was ordered to give notice, and notice was served by counsel by mail the same date.

On August 25, 2015, former counsel for plaintiff appeared via Courtcall but indicated he was no longer entitled to practice law. The court noted that no substitution of attorney had been

filed for plaintiff and continued the OSC re Dismissal to September 30, 2015. Counsel for defendant was again ordered to give notice, and notice was served by mail the same date.

On September 28, 2015, a Substitution of Attorney was filed with the court, substituting new counsel for plaintiff.

On September 30, 2015, at the OSC re Dismissal, there was again no appearance by or for plaintiff and by order of the court, the case was dismissed without prejudice.

On December 11, 2015, the court heard plaintiff’s motion to be relieved of the order dismissing the action, which was granted, and the dismissal set aside.

Plaintiff Montenegro has since died, and his estate on August 15, 2016 filed with the court Notice of Special Letters of Administration, attaching letters of special administration appointing Mireya Montegegro and Mireya Canete as special administrators of the Estate of Esteban Montenegro. The Letters state that they will expire on 9/7/2016.

On June 24, 2016, plaintiff filed a Notice of Pendency of Action (Lis Pendens).

On February 9, 2018, the court granted a motion brought by Everyday Rich, LLC, for leave to intervene in order to file a motion to expunge the lis pendens, as it is the entity which purchased the subject property at a foreclosure sale. The motion was granted.

The parties then stipulated to permit the special administrators to continue in the stead of Esteban Montenegro in this action.

On April 20, 2018, the administrator filed a cross-complaint against Everyday Rich.

On April 27, 2018, the court granted a motion to expunge the lis pendens in this matter.

On June 27, 2018, defendants filed a Joint Stipulation agreeing to stay the lawsuit for thirty-five days from the entry of the order. The Stipulation states:

“If the Parties do not reach a resolution of the litigation prior to the expiration of the Stay, Plaintiff shall either dismiss the Cross-Complaint with prejudice or serve an amended Cross-Complaint within l5 days of the expiration of the Stay, and if Plaintiff fails to dismiss or amend the Cross Complaint within 15 days as aforementioned, the Cross-Complaint will be deemed dismissed with prejudice without further order from the Court….”

On August 29, 2018, the court ordered, pursuant to the Stipulation, that the Cross-Complaint was dismissed with prejudice.

Plaintiff then brought a motion to set aside the dismissal of the Cross-Complaint in intervention, which was heard on April 12, 2019, and granted.

The copy of the FACC attached to the motion to set aside set forth three causes of action, for Violation of California Civil Code § 2624.17, Wrongful Foreclosure, and Slander of Title. The FACC efiled with the court and served on the parties added a fourth cause of action for quiet title and fifth cause of action for declaratory relief.

On July 26, 2019, the court heard demurrers to the FACC filed by cross-defendant Everyday Rich and moving cross-defendants Bank of America, N.A. and Recontrust Co., N.A. The demurrer was sustained without leave to amend as to the fourth and fifth causes of action on the ground cross-complainant did not seek or obtain advance permission of the court to add those causes of action to the FACC which the court permitted cross-complainant to file in this action. The demurrer was sustained with leave to amend to the first through third causes of action, “on the grounds the claims appear to be barred by the statute of limitations.”

On October 25, 2019, the court heard a demurrer to the SACC filed by cross-defendants Bank of America and Recontrust. Plaintiff did not file opposition to the demurrer, and the court’s Tentative Ruling, published the evening before the hearing, was to sustain the demurrer without leave to amend, on the ground the claims were barred by the statute of limitations. At the hearing, the hearing on the demurrer was continued to January 17, 2020, “for Cross-complainant Mireya Canete, Administrator of the Estate of Esteban Montenegro’s opposition.”

On December 6, 2019, the court sustained an unopposed demurrer to the SACC brought by cross-defendant Everyday Rich, LLC, and the SACC was ordered dismissed with prejudice as to that party.

Plaintiff has now filed untimely opposition to the demurrer by moving cross-defendants, which the court in its discretion has considered, only because moving cross-defendants have filed a timely reply, which the court has also considered.

RULING:

Demurrer of Cross-Defendants Bank of America, N.A., and Recontrust Company N.A. to Plaintiff’s Second Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND on the ground all three causes of action are barred by the applicable statute of limitations.

The court on July 26, 2019 sustained a demurrer brought by moving cross-defendants to the First Amended Cross-Complaint, “on the grounds the claims appear to be barred by the statute of limitations.”

Moving cross-defendants again argue that the claims are barred by the statute of limitations. Cross-defendants argue that the causes of action alleged against them are based on their alleged wrongdoing related to recorded documents and foreclosure in 2009 and 2013. [SACC ¶¶ 9-25]. Under CCP § 338, the statute of limitations for “(a) [a]n action upon a liability created by statute…” or “(b) [a]n action for trespass upon or injury to real property,” is “[w]ithin three years.” These limitations appear to apply to the statutory cause of action for violation of Civil Code § 2924.17, and the causes of action for wrongful foreclosure and slander of title. The cross-complaint was filed on April 20, 2018. The claims were accordingly not brought within three years. Moving cross-defendants argue that the SACC has not been amended to add any factual allegations to demonstrate that the causes of action are not time-barred, despite cross-complainant being permitted leave expressly to address the issue. The court has compared the pleadings, and notes that the SACC now alleges that the sale to Everyday Rich, on some unspecified date, was part of a “scheme by Bank of America to complete their wrongful foreclosure and to further slander the Title of Plaintiffs interest to the subject real property.” [SACC ¶¶ 31]. There are no further details alleged in the SACC or in the causes of action themselves which would sufficiently allege such a scheme or wrongdoing in connection with the sale to Everyday Rich on the part of the moving cross-defendants, and insufficient facts are alleged to support a theory of conspiracy or aiding and abetting on the part of the moving cross-defendants to hold them responsible for some alleged conduct of cross-defendant Everyday Rich. The causes of action themselves, in fact, continue to refer to the actionable conduct of Bank of America and their agents as using a robo-signer, recording documents such as the declaration supporting the Notice of Trustee Sale, and wrongfully foreclosing on the property. [SACC ¶¶ 34, 35, 39, 40-43, 47, 48]. As discussed above, this conduct is all alleged to have occurred between 2009 and 2013, and any claims based on that conduct are time-barred.

The opposition argues that the allegations of the SACC relate back. However, the court’s analysis is based on the date of the filing of the original cross-complaint, not the date of filing of the SACC. The cases cited in the opposition involve the relation back of amended complaints to original complaints, which is comparable to the analysis being performed here. See, e.g., Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 939 (“we conclude in the present case that plaintiff's amended complaint relates back to the filing of the original complaint.”)

The opposition does not provide sufficient legal argument to establish an exception to the statute of limitations bar here, and cross-complainant has failed to sufficiently amend the cross-complaint despite being permitted leave to amend to do so on this specific ground. The opposition does not offer any further facts which can be alleged to meet cross-complainant’s burden of showing how the defects could be remedied on further amendment. The demurrer is now SUSTAINED WITHOUT LEAVE TO AMEND.

Request for Judicial Notice is DENIED, as the matters sought to be judicially noticed are immaterial to the ground for sustaining the demurrer.

Cross-defendants to file an appropriate request for dismissal.

Case Number: EC060050    Hearing Date: December 06, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 4

Date: 12/6/19

Case No: EC 060050 Trial Date: None Set

Case Name: Montenegro v. Federal National Mortgage Association, et al.

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Plaintiff-in-Intervention and Cross-Defendant Everyday Rich, LLC

Responding Party: Cross-complainant Mireya Montenegro, Administrator of the

Estate of Esteban Montenegro (No Opposition)

RELIEF REQUESTED:

Sustain demurrer to Second Amended Cross-Complaint

CAUSES OF ACTION: from Second Amended Cross- Complaint

  1. Violation of California Civil Code § 2924.17

  2. Wrongful Foreclosure

  3. Slander of Title

    FACTUAL AND PROCEDURAL BACKGROUND:

    This is a wrongful foreclosure action originally brought by plaintiff Esteban Montenegro.

    On February 7, 2014, the court sustained demurrer to the Third Amended Complaint without leave to amend and entered judgment in favor of defendants.

    Plaintiff appealed the judgment, and on June 22, 2015, the court of appeal issued its remittitur, and its decision reversing the judgment of dismissal and ordering the trial court to enter a new order overruling the demurrer to a cause of action for violation of section 2924.17 and sustaining the demurrer to the cause of action for violation of Business and Professions Code § 17200. The court issued such an order on July 8, 2015 and set the matter for a Status Conference/Trial Setting Conference on July 29, 2015. The clerk gave notice.

    On July 29, 2015, there was no appearance by or for plaintiff, and the case was set for an OSC re dismissal and the Trial Setting Conference was continued to August 25, 2015. Counsel for defendant was ordered to give notice, and notice was served by counsel by mail the same date.

    On August 25, 2015, former counsel for plaintiff appeared via Courtcall but indicated he was no longer entitled to practice law. The court noted that no substitution of attorney had been filed for plaintiff and continued the OSC re Dismissal to September 30, 2015. Counsel for defendant was again ordered to give notice, and notice was served by mail the same date.

    On September 28, 2015, a Substitution of Attorney was filed with the court, substituting new counsel for plaintiff.

    On September 30, 2015, at the OSC re Dismissal, there was again no appearance by or for plaintiff and by order of the court, the case was dismissed without prejudice.

    On December 11, 2015, the court heard plaintiff’s motion to be relieved of the order dismissing the action, which was granted, and the dismissal set aside.

    Plaintiff Montenegro has since died, and his estate on August 15, 2016 filed with the court Notice of Special Letters of Administration, attaching letters of special administration appointing Mireya Montenegro and Mireya Canete as special administrators of the Estate of Esteban Montenegro. The Letters state that they will expire on 9/7/2016.

    On June 24, 2016, plaintiff filed a Notice of Pendency of Action (Lis Pendens).

    On February 9, 2018, the court granted a motion brought by Everyday Rich, LLC, for leave to intervene in order to file a motion to expunge the lis pendens, as it is the entity which purchased the subject property at a foreclosure sale. The motion was granted.

    The parties then stipulated to permit the special administrators to continue in the stead of Esteban Montenegro in this action.

    On April 20, 2018, the administrator filed a cross-complaint against Everyday Rich.

    On April 27, 2018, the court granted a motion to expunge the lis pendens in this matter.

    On June 27, 2018, defendants filed a Joint Stipulation agreeing to stay the lawsuit for thirty-five days from the entry of the order. The Stipulation states:

    “If the Parties do not reach a resolution of the litigation prior to the expiration of the Stay, Plaintiff shall either dismiss the Cross-Complaint with prejudice or serve an amended Cross-Complaint within l5 days of the expiration of the Stay, and if Plaintiff fails to dismiss or amend the Cross Complaint within 15 days as aforementioned, the Cross-Complaint will be deemed dismissed with prejudice without further order from the Court….”

    On August 29, 2018, the court ordered, pursuant to the Stipulation, that the Cross-Complaint was dismissed with prejudice.

    Plaintiff then brought a motion to set aside the dismissal of the Cross-Complaint in intervention, which was heard on April 12, 2019, and granted.

    The copy of the FACC attached to the motion to set aside set forth three causes of action, for Violation of California Civil Code § 2624.17, Wrongful Foreclosure, and Slander of Title. The FACC efiled with the court and served on the parties added a fourth cause of action for quiet title and fifth cause of action for declaratory relief.

    On July 26, 2019, the court heard demurrers to the FACC filed by moving cross-defendant Everyday Rich and cross-defendants Bank of America, N.A. and Recontrust Co., N.A.

    The demurrer of Everyday Rich was sustained without leave to amend to the first cause of action for violation of Civil Code § 2924.17, “for the reasons stated in the moving papers, and not disputed in the opposition.” The demurrer to the second cause of action for wrongful foreclosure and third cause of action for slander of title were sustained with leave to amend, “on the grounds stated in the moving papers.” The demurrer to the fourth and fifth causes of action was sustained without leave to amend on the ground cross-complainant had not sought or obtained advance permission of the court to add those causes of action to the FACC which the court permitted cross-complainant to file in this action.

    The demurrer of Bank of America and Recontrust was also sustained without leave to amend as to the fourth and fifth causes of action on the ground cross-complainant did not seek or obtain advance permission of the court to add those causes of action to the FACC which the court permitted cross-complainant to file in this action. The demurrer was sustained with leave to amend to the first through third causes of action, “on the grounds the claims appear to be barred by the statute of limitations.”

    On October 25, 2019, the court heard a demurrer to the SACC filed by cross-defendants Bank of America and Recontrust. Plaintiff did not file opposition to the demurrer, and the court’s Tentative Ruling, published the evening before the hearing, was to sustain the demurrer without leave to amend, on the ground the claims were barred by the statute of limitations. At the hearing, the hearing on the demurrer was continued to January 17, 2020, “for Cross-complainant Mireya CAnete, Administrator of the Estate of Esteban Montenegro’s opposition.”

    There has been no timely opposition filed to this demurrer.

    RULING:

    [No Opposition].

    Plaintiff-in-Intervention Everyday Rich, LLC’s UNOPPOSED Demurrer to Second Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND.

    The court on July 26, 2019 sustained a demurrer brought by moving cross-defendant to the first cause of action for violation of Civil Code § 2924.17 “WITHOUT LEAVE TO AMEND.” The Second Amended Cross-Complaint nevertheless confusingly brings the cause of action “Against all Cross Defendants…” The demurrer is again SUSTAINED WITHOUT LEAVE TO AMEND. Civil Code § 2924.17 imposes obligations on a mortgage servicer with respect to the filing or recording of documents. The document allegedly at issue here, a Notice of Trustee Sale, is not a document the moving party is alleged to have had any responsibility for. [See SACC ¶¶ 23-38, 34]. To the extent the SACC now alleges that Bank of America and Everyday Rich “worked together to wrongfully deprive Cross Plaintiff of his title to the subject property,” sufficient facts are not alleged to establish the responsibility of moving party for the acts of Bank of America, which acts appear to have in any case taken place at a time barred by the applicable statute of limitations. [See SACC ¶ 34-36].

    Demurrer to the second cause of action for wrongful foreclosure and third cause of action for slander of title is SUSTAINED WITHOUT LEAVE TO AMEND on the ground the conduct alleged, in effect, misrepresentations concerning a loan modification, and the recording of a notice of default and notice of trustee sale, were engaged in by other parties, and not by the moving cross-defendant. [SACC ¶¶ 38-43, 47-49]. To the extent there is an allegation that Everyday Rich took title to the property after being informed about the conflict between cross-complainant and Bank of America, it is not clear how Everyday Rich engaged in slander of title by conduct which was without privilege. [See SACC ¶ 50].

    As cross-complainant has failed to sufficiently amend the cross-complaint despite being permitted leave to amend to do so on these specific grounds and has failed to oppose the demurrer and meet cross-complainant’s burden of showing how the defects could be remedied on further amendment, the demurrer is now SUSTAINED IN ITS ENTIRETY WITHOUT LEAVE TO AMEND.

    Request for Judicial Notice is DENIED, as the matters sought to be judicially noticed are immaterial to the grounds for sustaining the demurrer.

    Cross-defendant to file an appropriate request for dismissal.

Case Number: EC060050    Hearing Date: October 25, 2019    Dept: NCD

TENTATIVE RULING

Calendar: 11

Date: 10/25/19

Case No: EC 060050 Trial Date: None Set

Case Name: Montenegro v. Federal National Mortgage Association, et al.

DEMURRER

[CCP §430.10 et. seq.]

Moving Party: Defendant and Cross-Defendant Bank of America, N.A.

Responding Party: Cross-complainant Mireya Canete, Administrator of the

Estate of Esteban Montenegro (No Opposition)

RELIEF REQUESTED:

Sustain demurrer to Second Amended Cross-Complaint

Strike Attorneys’ Fees, Punitive Damages

CAUSES OF ACTION: from Second Amended Cross- Complaint

  1. Violation of California Civil Code § 2924.17

  2. Wrongful Foreclosure

  3. Slander of Title

    FACTUAL AND PROCEDURAL BACKGROUND:

    This is a wrongful foreclosure action originally brought by plaintiff Esteban Montenegro.

    On February 7, 2014, the court sustained demurrer to the Third Amended Complaint without leave to amend and entered judgment in favor of defendants.

    Plaintiff appealed the judgment, and on June 22, 2015, the court of appeal issued its remittitur, and its decision reversing the judgment of dismissal and ordering the trial court to enter a new order overruling the demurrer to a cause of action for violation of section 2924.17 and sustaining the demurrer to the cause of action for violation of Business and Professions Code § 17200. The court issued such an order on July 8, 2015 and set the matter for a Status Conference/Trial Setting Conference on July 29, 2015. The clerk gave notice.

    On July 29, 2015, there was no appearance by or for plaintiff, and the case was set for an OSC re dismissal and the Trial Setting Conference was continued to August 25, 2015. Counsel for defendant was ordered to give notice, and notice was served by counsel by mail the same date.

    On August 25, 2015, former counsel for plaintiff appeared via CourtCall but indicated he was no longer entitled to practice law. The court noted that no substitution of attorney had been filed for plaintiff and continued the OSC re Dismissal to September 30, 2015. Counsel for defendant was again ordered to give notice, and notice was served by mail the same date.

    On September 28, 2015, a Substitution of Attorney was filed with the court, substituting new counsel for plaintiff.

    On September 30, 2015, at the OSC re Dismissal, there was again no appearance by or for plaintiff and by order of the court, the case was dismissed without prejudice.

    On December 11, 2015, the court heard plaintiff’s motion to be relieved of the order dismissing the action, which was granted, and the dismissal set aside.

    Plaintiff Montenegro has since died, and his estate on August 15, 2016 filed with the court Notice of Special Letters of Administration, attaching letters of special administration appointing Mireya Montenegro and Mireya Canete as special administrators of the Estate of Esteban Montenegro. The Letters state that they will expire on 9/7/2016.

    On June 24, 2016, plaintiff filed a Notice of Pendency of Action (Lis Pendens).

    On February 9, 2018, the court granted a motion brought by Everyday Rich, LLC, for leave to intervene in order to file a motion to expunge the lis pendens, as it is the entity which purchased the subject property at a foreclosure sale. The motion was granted.

    The parties then stipulated to permit the special administrators to continue in the stead of Esteban Montenegro in this action.

    On April 20, 2018, the administrator filed a cross-complaint against Everyday Rich.

    On April 27, 2018, the court granted a motion to expunge the lis pendens in this matter.

    On June 27, 2018, defendants filed a Joint Stipulation agreeing to stay the lawsuit for thirty-five days from the entry of the order. The Stipulation states:

    “If the Parties do not reach a resolution of the litigation prior to the expiration of the Stay, Plaintiff shall either dismiss the Cross-Complaint with prejudice or serve an amended Cross-Complaint within l5 days of the expiration of the Stay, and if Plaintiff fails to dismiss or amend the Cross Complaint within 15 days as aforementioned, the Cross-Complaint will be deemed dismissed with prejudice without further order from the Court….”

    On August 29, 2018, the court ordered, pursuant to the Stipulation, that the Cross-Complaint was dismissed with prejudice.

    Plaintiff then brought a motion to set aside the dismissal of the Cross-Complaint in intervention, which was heard on April 12, 2019, and granted.

    The copy of the FACC attached to the motion to set aside set forth three causes of action, for Violation of California Civil Code § 2624.17, Wrongful Foreclosure, and Slander of Title. The FACC efiled with the court and served on the parties added a fourth cause of action for quiet title and fifth cause of action for declaratory relief.

    On July 26, 2019, the court heard demurrers to the FACC filed by cross-defendant Everyday Rich and moving cross-defendants Bank of America, N.A. and Recontrust Co., N.A. The demurrer was sustained without leave to amend as to the fourth and fifth causes of action on the ground cross-complainant did not seek or obtain advance permission of the court to add those causes of action to the FACC which the court permitted cross-complainant to file in this action. The demurrer was sustained with leave to amend to the first through third causes of action, “on the grounds the claims appear to be barred by the statute of limitations.”

    There has been no timely opposition filed to the demurrer.

    RULING:

    [No Opposition].

    UNOPPOSED Demurrer of Defendant Bank of America, N.A., and Recontrust Company N.A. to Plaintiff’s Second Amended Cross-Complaint is SUSTAINED WITHOUT LEAVE TO AMEND on the ground all three causes of action are barred by the applicable statute of limitations.

    The court on July 26, 2019 sustained a demurrer brought by moving defendants to the First Amended Cross-Complaint, “on the grounds the claims appear to be barred by the statute of limitations.”

    Moving defendants again argue that the claims are barred by the statute of limitations. Defendants argue that the causes of action alleged against them are based on their alleged wrongdoing related to recorded documents and foreclosure in 2009 and 2013. [SACC ¶¶ 9-25]. Under CCP § 338, the statute of limitations for “(a) [a]n action upon a liability created by statute…” or “(b) [a]n action for trespass upon or injury to real property,” is “[w]ithin three years.” These limitations appear to apply to the statutory cause of action for violation of Civil Code § 2924.17, and the causes of action for wrongful foreclosure and slander of title. The cross-complaint was filed on April 20, 2018. The claims were accordingly not brought within three years. Moving defendants argue that the SACC has not been amended to add any factual allegations to demonstrate that the causes of action are not time-barred, despite cross-complainant being permitted leave expressly to address the issue. The court has compared the pleadings, and notes that the SACC now alleges that the sale to Everyday Rich, on some unspecified date, was part of a “scheme by Bank of America to complete their wrongful foreclosure and to further slander the Title of Plaintiffs interest to the subject real property.” [SACC ¶¶ 31]. There are no further details alleged in the SACC or in the causes of action themselves which would sufficiently allege such a scheme or wrongdoing in connection with the sale to Everyday Rich on the part of the moving defendants, and insufficient facts are alleged to support a theory of conspiracy or aiding and abetting on the part of the moving defendants to hold them responsible for some alleged conduct of cross-defendant Everyday Rich. The causes of action themselves, in fact, continue to refer to the actionable conduct of Bank of America and their agents as using a robo-signer, recording documents such as the declaration supporting the Notice of Trustee Sale, and wrongfully foreclosing on the property. [SACC ¶¶ 34, 35, 39, 40-43, 47, 48]. As discussed above, this conduct is all alleged to have occurred between 2009 and 2013, and any claims based on that conduct are time-barred. As cross-complainant has failed to sufficiently amend the cross-complaint despite being permitted leave to amend to do so on this specific ground and has failed to oppose the demurrer and meet cross-complainant’s burden of showing how the defects could be remedied on further amendment, the demurrer is now SUSTAINED WITHOUT LEAVE TO AMEND.

    Request for Judicial Notice is DENIED, as the matters sought to be judicially noticed are immaterial to the ground for sustaining the demurrer.

    Cross-defendants to file an appropriate request for dismissal.