This case was last updated from Los Angeles County Superior Courts on 12/28/2020 at 05:03:15 (UTC).

LISA O'RRELL VS. WILMINGTON SAVINGS FUND SOCIETY ET AL

Case Summary

On 05/15/2017 LISA O'RRELL filed a Property - Foreclosure lawsuit against WILMINGTON SAVINGS FUND SOCIETY. This case was filed in Los Angeles County Superior Courts, Burbank Courthouse located in Los Angeles, California. The Judges overseeing this case are RALPH C. HOFER and LAURA A. MATZ. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6736

  • Filing Date:

    05/15/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RALPH C. HOFER

LAURA A. MATZ

 

Party Details

Plaintiffs, Cross Defendants, Not Classified By Court and Appellants

O'RRELL LISA

MORLAN DEJA

Defendants, Respondents and Not Classified By Court

CLEAR RECON CORP.

WILMINGTON SAVINGS FUND SOCIETY/FSB

CHRISTIANA TRUST

DLI PROPERTIES LLC

CLEAR RECON SAVINGS FUNDS SOCIETY

Defendant, Cross Plaintiff, Not Classified By Court and Respondent

DLI PROPERTIES LLC

Defendants, Not Classified By Court, Respondents and Appellants

CHRISTIANA TRUST

DLI PROPERTIES LLC

O'RRELL LISA

TEST PARTY FOR TRUST CONVERSION

Attorney/Law Firm Details

Respondent, Plaintiff and Appellant Attorneys

FRESHMAN RONALD HENRY

FRESHMAN RONALD H.

RONALD H. FRESHMAN LAW OFFICES OF

Defendant Attorneys

LANE NUSSBAUM SBN 264200

ALDRIDGE PITE LLP

SALMON PETER JOSEPH

NUSSBAUM LANE MICHAEL

Cross Plaintiff Attorney

NUSSBAUM APC

 

Court Documents

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMM...)

8/21/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMM...)

Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO DECLARATIONS OF MICHAEL BENNETT AND TAMMY LAIRD

8/7/2020: Objection - OBJECTION PLAINTIFF'S OBJECTIONS TO DECLARATIONS OF MICHAEL BENNETT AND TAMMY LAIRD

Notice of Change of Address or Other Contact Information

8/7/2020: Notice of Change of Address or Other Contact Information

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS

8/7/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO SEPARATE STATEMENT OF UNDISPUTED FACTS

Declaration - DECLARATION DECLARATION OF LISA O'RRELL IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

8/7/2020: Declaration - DECLARATION DECLARATION OF LISA O'RRELL IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

8/7/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO REQUEST FOR JUDICIAL NOTICE

8/7/2020: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO REQUEST FOR JUDICIAL NOTICE

Objection - OBJECTION TO THE DECLARATION OF LISA O'RRELL IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES

8/14/2020: Objection - OBJECTION TO THE DECLARATION OF LISA O'RRELL IN SUPPORT OF OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES

Memorandum of Points & Authorities

8/14/2020: Memorandum of Points & Authorities

Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)

4/28/2020: Minute Order - MINUTE ORDER (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...) OF 04/28/2020

4/28/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (NON-APPEARANCE CASE REVIEW COURT ORDER CONTINUING CIVIL, TRIA...) OF 04/28/2020

Appeal - Ntc Designating Record of Appeal APP-003/010/103

5/4/2020: Appeal - Ntc Designating Record of Appeal APP-003/010/103

Appellate Order Dismissing Appeal - APPELLATE ORDER DISMISSING APPEAL NOA: 10/04/18 B303821

4/9/2020: Appellate Order Dismissing Appeal - APPELLATE ORDER DISMISSING APPEAL NOA: 10/04/18 B303821

Notice of Ruling - ON CLEAR RECON CORP.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

10/9/2018: Notice of Ruling - ON CLEAR RECON CORP.'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR JUDGMENT ON THE PLEADINGS

Appeal - Notice of Non-Compliance - APPEAL - NOTICE OF NON-COMPLIANCE NOA:10/04/18 B303821

3/10/2020: Appeal - Notice of Non-Compliance - APPEAL - NOTICE OF NON-COMPLIANCE NOA:10/04/18 B303821

Notice - NOTICE NOTICE DESIGNATING RECORD ON APPEAL

3/3/2020: Notice - NOTICE NOTICE DESIGNATING RECORD ON APPEAL

Appeal - Notice of Default Issued

2/13/2020: Appeal - Notice of Default Issued

Appeal - Notice of Appeal/Cross Appeal Filed

10/4/2019: Appeal - Notice of Appeal/Cross Appeal Filed

189 More Documents Available

 

Docket Entries

  • 08/21/2020
  • Docketat 09:00 AM in Department D; Trial Setting Conference - Not Held - Continued - Court's Motion

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  • 08/21/2020
  • Docketat 09:00 AM in Department D; Hearing on Motion for Summary Judgment (or alternatively, Summary Adjudication of Issues filed on behalf of Defendants Wilmington Savings Funds Society, FSB, et al.) - Held

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  • 08/21/2020
  • DocketMinute Order ( (Hearing on Motion for Summary Judgment or alternatively, Summ...)); Filed by Clerk

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  • 08/14/2020
  • DocketMemorandum of Points & Authorities; Filed by WILMINGTON SAVINGS FUND SOCIETY/FSB (Defendant); CLEAR RECON CORP. (Defendant)

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  • 08/14/2020
  • DocketObjection (to the Declaration of Lisa O'Rrell in Support of Opposition to Defendant's Motion for Summary Judgment or Alternatively, Summary Adjudication of Issues); Filed by WILMINGTON SAVINGS FUND SOCIETY/FSB (Defendant); CLEAR RECON CORP. (Defendant)

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  • 08/07/2020
  • DocketObjection (Plaintiff's Objections to Declarations of Michael Bennett and Tammy Laird); Filed by LISA O'RRELL (Plaintiff)

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  • 08/07/2020
  • DocketNotice of Change of Address or Other Contact Information; Filed by LISA O'RRELL (Plaintiff)

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  • 08/07/2020
  • DocketOpposition (Plaintiff's Opposition to Request for Judicial Notice); Filed by LISA O'RRELL (Plaintiff)

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  • 08/07/2020
  • DocketOpposition (Plaintiff's Opposition to Separate Statement of Undisputed Facts); Filed by LISA O'RRELL (Plaintiff)

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  • 08/07/2020
  • DocketDeclaration (Declaration of Lisa O'rrell in Support of Opposition to Motion for Summary Judgment); Filed by LISA O'RRELL (Plaintiff)

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378 More Docket Entries
  • 05/16/2017
  • DocketExParte Application (TO SHORTEN TIME TO HEAR MOTION FOR CONSOLIDATION AND A TRO RESTRAIN- ING TO STAY THE UD UNTIL MOTION FOR CONSOLIDATION OR STAY IS HEARD ); Filed by Attorney for Plaintiff

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  • 05/16/2017
  • DocketOrder ((TEMPORARY RESTRAINING ORDER) ); Filed by Attorney for Plaintiff

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  • 05/15/2017
  • DocketCivil Case Cover Sheet

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  • 05/15/2017
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 05/15/2017
  • DocketNotice of Case Management Conference

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  • 05/15/2017
  • DocketNotice (of OSC)

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  • 05/15/2017
  • DocketComplaint filed-Summons Issued

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  • 05/15/2017
  • DocketSummons Filed

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  • 05/15/2017
  • DocketComplaint filed-Summons Issued; Filed by null

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  • 05/15/2017
  • DocketSummons; Filed by null

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Tentative Rulings

Case Number: ****6736 Hearing Date: March 18, 2022 Dept: A

O'rrell v. Wilmington Savings Fund Society (****6736)

Motion for Summary Judgment

RELIEF REQUESTED:

Pretium Defendants move for summary judgment as to the SAC; or, in the alternative, summary adjudication as to the first, second, and third causes of action of the SAC.

ANALYSIS:

Standard of Review – A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc., 437c, subd. (a).) To prevail on a motion for summary judgment, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c).) In other words, the opposing party cannot present contrary admissible evidence to raise a triable factual dispute.

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., 437c, subd. (p)(2).)

When ruling on a summary judgment motion, the trial court must consider all inferences from the evidence, even those contradicted by the moving party’s evidence. The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal. App. 4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, "the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal. App. 4th 171, 179.)

With a summary judgment motion, a three-step analysis is required of the trial court. (AARTS Productions, Inc. v. Crocker Nat’l Bank (1986) 179 Cal. App. 3d 1061, 1064–65.) First, the trial court must identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. (Ibid.) Secondly, the court must determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. (Ibid.) When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. (Ibid.)

Pretium Defendants' Request for Judicial Notice – Judicial notice may not be taken of any matter, unless authorized or required by law. (Evid. Code, 450.) Matters that are subject to judicial notice are listed in Evid. Code 451 and 452. The Court cannot take judicial notice of the truth of matters contained in judicially noticeable documents if those matters are reasonably subject to dispute. (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal. App. 4th 1047, 1057.) Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably disputable. (StorMedia Inc. v. Superior Court (1999) 20 Cal. 4th 449, 457, fn. 9.)

The Court will take judicial notice of Exhibits A through P.

Plaintiff's Objections – The Court overrules each of Plaintiff's objections to the Bennett Declaration and Laird Declaration.

Pretium Defendants' Objections – The Court overrules each of Pretium Defendants' objections to the O'rrell Declaration.

Merits – On February 23, 2018, the Court sustained Pretium's Demurrer as to the fourth and fifth causes of action, without leave to amend. On September 21, 2018, the Court granted CRC's Motion for Judgment on the Pleadings as to the fourth and fifth causes of action, without leave to amend. The remaining claims in controversy alleged against Pretium Defendants consist of the first, second, and third causes of action.

Second Cause of Action (Breach of Contract/Estoppel) – To plead breach of contract, the Plaintiff must allege (1) the existence of a contract, (2) Plaintiff’s performance or excuse for non-performance, (3) Defendant’s breach, and (4) resulting damage to Plaintiff. (Lortz v. Connell (1969) 273 Cal. App. 2d 286, 290.)

Pretium Defendants argue that Plaintiff cannot support her allegation that Pretium breached the terms of the deed of trust with admissible evidence. Pretium Defendants cite to the acceleration provision of the deed of trust, which provides in relevant part:

Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale. If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand . . . .

(Pretium Defendants' RJN, Ex. A, p. 13, 22.)

Pretium Defendants argue that the Note was already in default at the time that servicing was transferred from Chase to Rushmore and cites to evidence that Rushmore sent a Notice of Intent to Foreclose to Plaintiff, as well as Plaintiff's response to discovery admitting receipt of this Notice of Intent to Foreclose. (Pretium Defendants' Separate Statement of Undisputed Material Facts ("DSSUMF"), 33-35 [referencing Defendants' Evidence No. 1 of 3, Decl. Bennett, 23, Ex. N; also referencing Defendants' Evidence No. 3 of 3, Ex. B, p. 9, No. 54].) On review of the evidence, the Court finds that the referenced Notice of Intent to Foreclose sufficiently specifies the information required by the acceleration provision of the deed of trust; and that Plaintiff does admit to receiving this Notice of Intent. Pretium Defendants thus satisfy their prima facie burden to show that Plaintiff cannot establish her breach of contract claim, and Plaintiff now bears the burden to show a triable issue of material fact.

In opposition, Plaintiff cites to the Bennett Declaration and argues that there remains a dispute as to the true parties to the contract, and further, that Pretium breached the contract when it did not notify Plaintiff of her right to bring an action, and when it failed to cure the accounting issues. (Plaintiff's Separate Statement of Undisputed Material Facts ("PSSUMF"), 2-6 [referencing Defendants' Evidence No. 1 of 3, Decl. Bennett, 3, 7-9; also referencing Pretium Defendants' RJN, Exs. A, B, G, K, L].)[1] Plaintiff cites to the O'rrell Declaration to argue that there were accounting issues as a result of servicer errors (Decl. O'rrell, 7, 10); Plaintiff then cites specifically to Civil Code 2924.17 and 2923.55(B) to argue that a correct accounting is a "condition precedent" to a lender's ability to invoke a trustee sale.

Civil Code 2924.17 provides that a mortgage servicer engaging in "multiple and repeated uncorrected violations" of its obligation to "ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose" is liable for a civil penalty. (Civil Code, 2924.17, subds. (b) & (c).)

Civil Code 2923.55(B) provides that a mortgage servicer shall not record a notice of default pursuant to Section 2924 unless it has sent a statement that the borrower may request "[a] copy of the borrower's promissory note or other evidence of indebtedness"; "[a] copy of the borrower's deed of trust or mortgage"; "[a] copy of the assignment, if applicable, of the borrower's mortgage or deed of trust required to demonstrate the right of the mortgage servicer to foreclose"; and "[a] copy of the borrower's payment history since the borrower was last less than 60 days past due". (Civil Code, 2923.55, subd. (B).)

Plaintiff contentions do not create triable issues of material fact. First, Plaintiff does not explain how the citation to the Bennett Declaration, associated exhibits, and Pretium Defendants' Request for Judicial Notice raises a triable issue as to the breach of contract claim, and the Court does not find that such evidence raises a triable issue. Second, As to the condition precedent argument, neither Civil Code 2924.17 or 2923.55(B) appear to support the contention that an accounting is a "condition precedent" to a lender's ability to invoke a trustee sale. Nor has Plaintiff provided any legal authority to support this contention. Third, even assuming that there were accounting issues due to servicer errors by Chase, Plaintiff fails to demonstrate how this constitutes a breach by Defendants of a term of the underlying contract or a basis to excuse Plaintiff from fulfilling its obligations under the contract. In sum, Plaintiff cannot raise a triable issue of material fact as to the breach of contract claim against Pretium Defendants regarding the deed of trust.

As such, the Court will thus grant summary adjudication as to the second cause of action sounding in breach of contract.

Third Cause of Action (Violation of California Homeowner Bill of Rights) – The California Homeowner Bill of Rights ("HBOR") provides certain procedural protections to homeowners facing foreclosure. Civil Code 2923.5 provides that a mortgage servicer shall not record a notice of default until 30 days have passed after the servicer contacts the borrower in person or by telephone to assess the borrower's financial situation and explore options to avoid foreclosure. (Civ. Code, 2923.5, subd. (a).)

Pretium Defendants argue that Pretium and Rushmore complied with the due diligence requirements of Civil Code 2923.5, citing to DSSUMF 22-26, 28-31, 32, 33, 35, 36, 39-44, and 50. Pretium Defendants also argue that they complied with Civil Code 2923.55(B), citing to DSSUMF 30-31. Pretium Defendants do not specifically address the SAC's allegation that Pretium Defendants violated Civil Code 2924.17 in the moving papers, but they argue in reply that the argument that the notice of default was not based on competent or reliable evidence was not raised in the pleadings; and further, that Plaintiff did not state a material violation of the statute.

In opposition, Plaintiff again argues that Pretium Defendants violated Civil Code 2923.5 because there remains a dispute as to the true parties to the contract; that Pretium Defendants violated Civil Code 2923.55(B) because Rushmore failed to validate Plaintiff's debt in response to Plaintiff having disputed the debt and associated accounting; and that Pretium Defendants violated Civil Code 2924.17 because the Notice of Default was not based on competent or reliable evidence.

Concerning the Civil Code 2924.17 claim, Pretium Defendants failed to raise the issue in their moving papers and so by necessity raised new arguments on reply. Nonetheless, the Court still considers the issue on its merits and finds that Plaintiff raises a triable and material issue as to whether Rushmore ensured that it reviewed competent and reliable evidence to substantiate Plaintiff's default prior to filing a Notice of Default. As to the argument that this issue was not raised in the pleadings, the Court refers the parties to paragraphs 36, 43-45, and 91 of the SAC, which provide "Plaintiff alleges the NOD was not based on competent or reliable evidence in violation of Civil Code 2924.17"; "Plaintiff again complained of accounting errors in 2016 and 2017, in which Chase did not resolve the accounting errors but rather alleged to transfer the servicing problems to Rushmore Loan Servicing"; and "Plaintiff alleges that PMAT has materially violated Civil Code 2924.17 on the basis that PMAT is taking acts based on assignments that contain false statements and misrepresent the beneficial holder of the debt, which is a material violation of CBHOR". Plaintiff cites to evidence showing that there were multiple discrepancies on multiple instances regarding the amount of debt presented to Plaintiff, specifically concerning whether a previous Chase credit was applied to the amount. (Decl. O'rrell, 7-19, Exs. 1-2.) Plaintiff further cites to the Bennett Declaration to show that Plaintiff disputed the debt and explained such discrepancies to Rushmore through the Consumer Financial Protection Bureau, and that Rushmore subsequently acknowledged this dispute. (Defendants' Evidence No. 1 of 3, Ex. 1, 37-38, Exs. T & U.) Finally, Plaintiff overcomes Pretium Defendants' argument that any such violation is not shown to be material through the O'rrell Declaration, which asserts that Plaintiff could have resolved the arrears on the loan had it not been for the original Chase accounting errors. (Decl. O'rrell, 16.) In sum triable issues of fact remain on whether the NOD was based upon competent and reliable evidence and, therefore, was not accurate and complete as required by Civil Code 2923.17.

The Court will thus deny summary adjudication as to the third cause of action sounding in violation of HBOR.

First Cause of Action (Declaratory Relief/Judgment) – To state a declaratory relief claim, the plaintiff must allege a proper subject of declaratory relief and an actual controversy involving justiciable questions relating to the party’s rights or obligations. (See Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.)

As there the Court denies summary adjudication as to the third cause of action, and as there remains an actual controversy regarding HBOR claims, it is inappropriate for the Court to grant summary adjudication to the declaratory relief claim at this time. The Court will thus deny summary adjudication as to the first cause of action sounding in declaratory relief/judgment.

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TENTATIVE RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records.

ORDER

Defendants Wilmington Savings Fund Society, FSB, d.b.a. Christiana Trust, Not Individually, But As Trustee For Pretium Mortgage Acquisition Trust and Clear Recon Corp's Motion for Summary Judgment came on regularly for hearing on March 18, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE MOTION FOR SUMMARY JUDGMENT IS DENIED.

THE MOTION FOR SUMMARY ADJUDICATION IS GRANTED AS TO THE SECOND CAUSE OF ACTION.

THE MOTION FOR SUMMARY ADJUDICATION IS DENIED AS TO THE FIRST AND THIRD CAUSES OF ACTION.

IT IS SO ORDERED.

MOVING PARTY TO GIVE NOTICE.

DATE: March 18, 2022

Upinder S. Kalra

Judge of the Superior Court


[1] Plaintiff's Separate Statement is mislabeled as "Opposition Plaintiff's Opposition to Request for Judicial Notice", filed on August 07, 2020. Plaintiff's actual opposition to Defendants' Request for Judicial Notice appears to be switched with the first document and is correspondingly titled "Opposition Plaintiff's Opposition to Separate Statement of Undisputed Facts".



Case Number: ****6736 Hearing Date: January 14, 2022 Dept: D

TENTATIVE RULING
Calendar: 7
Date: 1/14/2022
Case Number: ****6736 Trial date: June 6, 2022
Case Name: O’rrell v. Wilmington Savings Fund Society, FSB, etc., et al.
MOTION FOR SUMMARY JUDGMENT
(OR, in the Alternative, Summary Adjudication)
[CCP 437c; CRC 3.1350 et seq.]
Moving Party: Defendants Wilmington Savings Funds Society, FSB dba Christiana Trust,
as Trustee for Pretium Mortgage Acquisition Trust and Clear Recon Corp.
Responding Party: Plaintiff Lisa O’rrell
Relief Requested:
Summary judgment in favor of defendants Wilmington Savings Funds Society, FSB dba Christiana Trust, as Trustee for Pretium Mortgage Acquisition Trust and Clear Recon Corp.
In the alternative, summary adjudication of the first, second and/or third causes of action.
Causes of Action from Second Amended Complaint
1) Declaratory Relief/Judgment v. All Defendants
2) Breach of Contract/Estoppel v. PMAT
3) Violation of Calif. Homeowner Bill of Rights v. PMAT, Clear Recon
4) Cancellation of Instruments v. All Defendants*
5) Wrongful Foreclosure v. All Defendants*
*Demurrer sustained without leave to amend as to PMAT on 2/23/18. JOP granted without leave to amend as to Clear Recon on 9/21/18
SUMMARY OF COMPLAINT:
Plaintiff Lisa O’rrell alleges that defendants Wilmington Savings Fund Society dba Christiana Trust, as Trustee for Pretium Mortgage Acquisition Trust (“Pretium” or “PMAT”) and Clear Recon Corporation (“Clear Recon” or “CRC”) have wrongfully foreclosed on her primary residence in Studio City, which was purchased at foreclosure sale by defendant DLI Properties, LLC (“DLI”).
Plaintiff alleges that the original loan transaction in connection with the property with JPMorgan Chase Bank as lender, resulted in plaintiff disputing accounting amounts and unauthorized charges. Chase recognized it had overcharged plaintiff and refunded $17,000. Plaintiff again complained of accounting errors in 2016 and 2017, but Chase did not resolve the errors, but allegedly transferred the servicing problems to Rushmore Loan Servicing. Plaintiff alleges that Chase also purported to transfer interest in the deed of trust to US Bank but did not transfer interest in the debt or note, and that the loan was then purchased by Freddie Mac, not NRZ Trust, but NRZ then purported to sell an interest in the loan and deed of trust to defendant PMAT, which held no interest or rights in the debt or deed of trust. Plaintiff alleges that she was accordingly not obligated to tender payment to PMAT.
The complaint alleges that PMAT and its agents failed to provide notice of plaintiff’s right to bring an action in defense of plaintiff’s default or acceleration of the loan, which was a condition precedent, and that PMAT failed to provide plaintiff with notice of her right to demand a copy of the note, evidence of ownership and accounting of her debt as required under Civil Code 2923.5(B), and also failed to contact plaintiff to discuss pre-foreclosure alternatives as required by Civil Code 2923.5(a)(1), and that the declaration attached to the Notice of Default is false.
Plaintiff alleges that defendant DLI is not a bona fide purchaser, as it had a legal responsibility to inquire of plaintiff’s interest in the property, but it failed to do so even though plaintiff was in possession of the property.
On May 16, 2017, the court heard an ex parte application filed on behalf of plaintiff to stay an unlawful detainer trial set in an unlawful detainer action concerning the subject property. The court issued a temporary stay pursuant to a temporary restraining order, which was to expire at midnight May 24, 2017.
On May 22, 2017, the court heard an ex parte application filed on behalf of plaintiff to deem the cases related and stay the UD until a motion for consolidation could be heard. The court found that the cases fall within the meaning of related case, and denied the request for continuance of the TRO.
On May 24, 2017, the court heard an ex parte application filed on behalf of plaintiff to continue the UD trial until a motion to consolidate was heard, which was granted, and the UD trial was continued to July 3, 2017. O’rrell, as the defendant in the UD case, was ordered to pay rent in the sum of $4,000 each month pursuant to CCP 1170.5(c). On June 2, 2017, O’rrell deposited the sum of $4,000 with the court.
On June 23, 2017, the court heard a motion to consolidate this action with the pending UD action, which was granted, and the cases were ordered consolidated upon receipt of proof of payment of the reclassification fee by plaintiff. The fee was ordered paid within five court days. Evidently, no reclassification fee was timely paid.
On September 22, 2017, the court sustained a demurrer brought by DLI, the purchaser of the subject property at the trustee’s sale, to the First Amended Complaint without leave to amend, so that DLI is no longer a party to the unlimited civil action.
DLI, as plaintiff in the UD case, then brought a motion for summary judgment on the UD case against the two UD defendants O’rrell and Morlan.
The UD file shows that on April 25, 2017, the default of defendant Morlan was entered.
On May 3, 2017, plaintiff DLI filed motions to have matters in Requests for Admissions served on O’rrell and Morlan deemed admitted. On May 15, 2017, the court granted the motions and awarded sanctions against each defendant in the sum of $500.
On April 13, 2018, the court heard DLI’s motion for summary judgment in the UD action, which was granted as to defendant O’rrell, based primarily on the material deemed admitted.
On October 4, 2018, O’rrell filed a notice of appeal of the UD judgment.
On November 28, 2018, this motion was filed on behalf of defendants PMAT and Clear Recon.
This motion has been continued several times, including by stipulation at a hearing on a status conference regarding the appeal and the lifting of the automatic stay to hear the motion for summary judgment, as well as by this court’s order of August 21, 2020, finding this motion was stayed pending resolution of the appeal.
On January 24, 2020, the court of appeal filed an order deeming the appeal of the UD matter to have been filed in this unlimited case, as the matters had been consolidated, although no reclassification fee had been paid. The court of appeal ordered the superior court to collect the reclassification fee and comply with the notification duties of CRC Rule 8.100. The appeal had been dismissed, but on April 29, 2020, the court of appeal granted a motion to vacate the dismissal.
On June 10, 2021, the remittitur was filed with the superior court. The court of appeal, in an unpublished opinion filed on April 2, 2021, reversed the judgment in the UD matter and remanded for further proceedings.
The court of appeal found that defendant DLI had obtained a discovery order deeming requests for admissions admitted by plaintiff through deception and in violation of the statutory requirements, as the discovery motion was prematurely filed, timely responses were subsequently received, but nothing suggests DLI informed the trial court DLI had admittedly received timely responses by the time of the hearing on the motion. The court of appeal found that the trial court had no independent way to learn about DLI’s overly aggressive motion practice, and had granted the motion, including DLI’s request for sanctions. The court of appeal concluded that the trial court, through no fault of its own, granted DLI’s motion and ordered plaintiff’s admissions deemed true, “even though DLI’s motion violated the statute.” [Opinion, p. 4]. The court of appeal found the discovery order was invalid, and vacated it, and also concluded that because the foundation of the motion for summary judgment was the deemed admissions, which order was invalid, the order granting summary judgment must also fall. [Opinion, p. 5].
The Disposition states, “We reverse the judgment, remand for further proceedings, and award costs to O’rrell.” [Opinion, p. 7].
On November 16, 2021, the trial court, at a Status Conference Re Remittitur, lifted the stay and set the hearing on this motion for this date.
ANALYSIS:
Under CCP 437c(p)(2) a defendant “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant... has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”
CCP 437c(f)(1) provides that “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”
Defendants PMAT and Clear Recon seek to establish that plaintiff will be unable to establish one or more elements of each of her remaining causes of action against these defendants. The issues on summary adjudication will be addressed in the order they are addressed in the moving papers, not in numerical order.
ISSUE No. 2: Plaintiff’s second cause of action for Breach of Contract/Estoppel is without merit as to PMAT in that Plaintiff is unable to prove or establish one or more elements of the cause of action.
To establish a cause of action for breach of contract, plaintiff must plead and prove the following elements: The existence of a contract; plaintiff’s performance or excuse for nonperformance; defendant’s breach; and damage to plaintiff. Walsh v. Standart (1917) 174 Cal. 807.
Defendant PMAT, the defendant against which this cause of action is brought, argues that plaintiff will be unable to establish the requisite element that defendant breached the Deed of Trust.
Specifically, defendant indicates that plaintiff’s second cause of action contends that the Deed of Trust, at paragraph 22, requires the beneficial holder and its agents to give notice to the borrower of the borrower’s right to bring a legal action in defense of any default or acceleration of the loan and sale of the property, and that defendant failed to notify plaintiff of her right to bring a legal action. [SAC, paras. 78, 79].
The Deed of Trust provides, at paragraph 22:
“Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise). The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non—existence of a default or any other defense of Borrower to acceleration and sale.”
[RFJN, Ex. A, Deed of Trust, para. 22].
Defendants submit evidence that plaintiff’s loan was in default at the time servicing transferred to Rushmore, and that on July 19, 2016, Rushmore sent plaintiff a Notice of Intent to Foreclose by certified mail, return receipt requested, which satisfied all requirements of notice under paragraph 22 of the Deed of Trust. [UMF Nos. 17-19, 33, 34, and evidence cited]. The Notice included notice that (a) plaintiff’s loan was in default, (b) the amount of plaintiff’s regular monthly payment, $3,039.15, and that she must pay all past due payments, due at the time she cured the default, (c) the amount required to cure plaintiff’s default, (d) that plaintiff’s loan balance would be accelerated and foreclosure proceedings initiated if she did not cure the default by August 23, 2016, and (e) if plaintiff’s loan was accelerated, plaintiff had the right to reinstate her loan, the right to assert in the foreclosure proceeding or in a court action the non-existence of a default of other defense she might have to the acceleration and foreclosure or sale. [UMF No. 33, and evidence cited, Bennett Decl., Ex. N]. The letter indicates the total amount due was $18,647.22. [Ex. N]. The letter specifically states:
“(f) If we do accelerate the balance due, you have the right to reinstate your mortgage loan. You will also have the right to assert in the foreclosure proceeding or in a court action the non—existence of a default or any other defense which you may have to the acceleration and foreclosure or sale.”
[Ex. N, July 19, 2016 Letter, para. (f)]
Defendant also relies on plaintiff’s responses to Requests for Admissions, in which she admits receiving the notice of intent to foreclose. [UMF No. 35, and evidence cited].
This appears sufficient to establish that plaintiff will be unable to prove a breach of paragraph 22 of the Deed of Trust, as alleged in the SAC, so that the burden shifts to plaintiff to raise triable issues of material fact.
Plaintiff in opposition argues that what remains at issue with respect to this cause of action is who the true parties to the contract are and argues that based on the documents submitted with the motion, this remains a disputed material fact. The opposition relies on UMF Nos. 2-6, which establish the chain of title, and the assignment of the beneficial interest under the Deed of Trust from JP Morgan Chase Bank to NRZ Pass-Through Trust to Pretium Mortgage Credit Partners I Loan Acquisitions, and then to PMAT. [UMF Nos. 2-5, and evidence cited]. Plaintiff appears to argue that assignment of the Deed of Trust does not assign the underlying note and right to be paid, and that defendants fail to provide evidence of the assignment or physical transfer of the Note as required by law.
However, as noted in the moving papers and reply, this Court has already rejected this argument in sustaining PMAT’s demurrer to the SAC and CRC’s motion for judgment on the pleadings with respect to the SAC without leave to amend in connection with the wrongful foreclosure and cancellation of instruments causes of action.
Specifically, under Civil Code section 2924j, indebtedness may be proven by producing the “original promissory note,” but this is not a requirement of the statutory remedy. The Second District recognizes that the foreclosure statute is intended to be a “comprehensive” scheme governing such procedures. Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 433. Since there is no express requirement to produce an original note, it has been reasoned by federal courts interpreting California law that this cannot be the basis for a wrongful foreclosure claim. See Putkkuri v. Recon Trust Co. (2009, S.D. Cal.) 2009 WL 32567, at *2 (“Pursuant to section 2924(a)(1) of the California Civil Code, the trustee of a Deed of Trust has the right to initiate the foreclosure process….Production of the original note is not required to proceed with a non-judicial foreclosure.”) The reply also cites Debrunner v. Deutsche Bank Nat. Trust Co. (2012) 204 Cal.App.4th 433, in which the court of appeal affirmed the trial court’s order sustaining a demurrer without leave to amend, concluding:
“”There is no stated requirement in California's non-judicial foreclosure scheme that requires a beneficial interest in the Note to foreclose. Rather, the statute broadly allows a trustee, mortgagee, beneficiary, or any of their agents to initiate non-judicial foreclosure. Accordingly, the statute does not require a beneficial interest in both the Note and the Deed of Trust to commence a non-judicial foreclosure sale.’ (Lane v. Vitek Real Estate Indus. Group, supra, 713 F.Supp.2d at p. 1099.) Likewise, we are not convinced that the cited sections of the California Uniform Commercial Code (particularly section 3301) displace the detailed, specific, and comprehensive set of legislative procedures the Legislature has established for nonjudicial foreclosures.)”
Debrunner, at 441.
Plaintiff argues that the claim for breach of contract is that PMAT did not honor paragraph 22 of the Deed of Trust in that it did not notice plaintiff of her right to bring forth an action, and that plaintiff also alleges that PMAT was estopped to exercise the power of sale until it cured the accounting issues, which were arguably a breach of the contract. Plaintiff does not dispute that she received the July 19, 2016 letter from Rushmore, which, as noted above, expressly notified plaintiff of her right to bring a legal action. [See Response to UMF No. 35, “Undisputed”]. In response to the Separate Statement, plaintiff indicates that the content of that letter is disputed in part, and undisputed in part, with plaintiff arguing, “The accounting carried over the improper accounting charges from Chase which Rushmore had not resolved. The amounts claimed in arrears were incorrect.” [Response to UMF No. 33].
However, plaintiff points to nothing in the Deed of Trust, in paragraph 22 or otherwise, which imposes a duty to provide an accounting or a correct accounting. Plaintiff instead relies on statutory provisions, without citing any legal authority under which such provisions impose a contractual duty on defendant which is not set forth in the agreement itself.
Plaintiff also makes a vague argument that PMAT failed to meet a condition precedent, without providing clear legal authority under which a condition precedent can be created outside the terms of the actual agreement setting forth such a condition precedent. Without a clearly valid argument on this point, plaintiff is left in a position where defendant fulfilled its duties under paragraph 22 by the servicer sending plaintiff the July 19, 2016 letter, and plaintiff is unable to establish some other breach or failure of an express condition precedent, which would excuse plaintiff’s admitted failure to perform under the agreement by falling in arrears. [See UMF No. 17, and evidence cited, Response to UMF No. 17, “Plaintiff missed payments…”]. Plaintiff’s declaration concedes that had it not been for “accounting errors,” plaintiff “could have resolved the arrears on my loan…” [O’rrell Decl., para. 16]. Plaintiff has failed to raise triable issues of material fact with respect to whether defendant breached a term of the subject contract, or which would show any excuse for plaintiff’s admitted failure to fully perform her obligations under the contract. Plaintiff accordingly is unable to establish her cause of action for breach of contract. The motion for summary adjudication of the cause of action is granted.
ISSUE No. 3: Plaintiff’s third cause of action for Violation of California Homeowner Bill of Rights is without merit as to PMAT and CRC in that Plaintiff is unable to prove or establish one or more elements of the cause of action.
Defendants argue that the cause of action lacks merit because defendants complied with the statutory sections upon which plaintiff relies.
The pleading alleges that PMAT and its agents failed to meet the requirements of Civil Code 2923.5 (a)(1), as defendant and its agents “did not, in fact, reach out to Plaintiff.” [SAC, paras. 57, 86], and that defendant failed to provide plaintiff with notice of her right to demand a copy of the note, evidence of ownership and accounting of her debt as required by Civil Code 2923.5(B), and also failed to “provide a debt validation including accounting records five days prior to the trustee’s sale.” [SAC, paras. 54, 57, 86, 89].
Under the version of Civil Code 2923.5 in effect at the time the NOD was recorded, on October 31, 2016, a “mortgage servicer, mortgagee, trustee, beneficiary or authorized agent may not file a notice of default” until “30 days after initial contact is made” as required under the statute, or “30 days after satisfying the due diligence requirements” described in the statute.
Defendants submit evidence that the Beneficiary Declaration of Compliance attached to the NOD provided that compliance was made by due diligence. [RFJN, Ex. N]. Defendants argue that PMAT, through its mortgage servicer, Rushmore, complied with the due diligence requirements of section 2923.5, as Rushmore attempted to contact plaintiff by telephone at least 27 times between the time of the service transfer on August 23, 2016, and also sent plaintiff at least seven letters from March 23, 2016 to July 19, 2016, providing information about loss mitigation options that may be available to plaintiff to avoid foreclosure, contact information for plaintiff’s point of contract and HUD, and notice of error resolution and information request procedures. [UMF Nos. 22-33, 35, 36, and evidence cited]. Defendants also provide evidence that Rushmore made contact with plaintiff by telephone and discussed plaintiff’s financial situation, options to avoid foreclosure, and provided contact information on August 23, 2016. [UMF Nos. 39-43, and evidence cited]. Rushmore then sent plaintiff a Home Retention package to complete to be considered for loss mitigation options, but plaintiff did not complete the package. [UMF Nos. 44, 50]. Rushmore nevertheless continued to reach out to plaintiff by telephone and written correspondence, even sending plaintiff a second Home Retention package after the recording of the NOD. [UMF Nos. 55-57, and evidence cited].
With respect to Civil Code 2923.55 (b)(1)(B), plaintiff alleges that PMAT and its agents violated this section by failing to provide accounting records, and a debt validation, despite plaintiff’s request for this information. [SAC, paras. 88, 89].
Civil Code 2923.55 provided that a mortgage servicer “shall send” certain information to the borrower before recording a NOD, including a statement that the borrower may request certain information, such as “evidence of indebtedness,” and a copy of the borrower’s payment history. Civil Code 2923.55(b)(1)(B). Defendants argue that the statute does not require an accounting or debt validation, but provides that the NOD may not be recorded, “until,” among other things, the mortgage servicer sends,
“the following information in writing to the borrower:
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.”
Defendants argue that Rushmore fully complied with the requirements here, as on June 24, 2016, Rushmore sent plaintiff correspondence that advised:
“Please note that you may request certain documents from Rushmore, including the following: a copy of your promissory note; a copy of your deed of trust or mortgage; a copy of any assignment, if applicable; a copy of your payment history since you were last less than 60 days past due.”
[UMF No. 30, and evidence cited, Ex. M].
See CC 2923.55(b)(1)(B)
Plaintiff in response to requests for admissions has admitted receiving this correspondence. [UMF No. 31, and evidence cited].
This showing appears sufficient to shift the burden to plaintiff to raise triable issues of material fact.
Plaintiff in opposition first argues that triable issues of fact remain with respect to whether PMAT was the valid, legal creditor demanding payment, and that the NOD improperly identifies the wrong beneficiary.
As discussed above, this issue was previously decided against plaintiff in connection with a previous demurrer and motion for judgment on the pleadings in connection with the causes of action for cancellation of instrument and wrongful foreclosure, and plaintiff concedes that those causes of action have been dismissed.
Plaintiff again cites, without significant discussion, Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, in which the California Supreme Court indicated it was prepared to recognize as actionable challenges to chain of title where facts suggest a void assignment: “a wrongful foreclosure plaintiff has standing to claim the foreclosing entity’s purported authority to order a trustee’s sale was based on a void assignment of the note and trust.” Yvanova, at 939.
As noted above, the Assignments and other recorded documents submitted do not show any irregularities in the chain of title being passed through these documents, and there are no facts showing how some suspected unrecorded transfer placed a third party in a position that any such transfer or assignment was thereby rendered void, rather than voidable. Case law applying Yvanova, has found that allegations concerning irregularities in the securitization procedure have been found to render a transaction voidable, not void. See Yhudai v. Impac Funding Corp. (2016, 2nd Dist.) 1 Cal.App.5th 1252, (holding that failure to timely transfer promissory note in violation of a pooling and service agreement gives rise to a voidable, not void transaction); Mendoza v. JP Morgan Chase Bank (2016) 6 Cal.App.5th 802 (holding that failure to timely transfer promissory note and allegations of assignment being robo-signed establish only voidable, not void, transactions, based in part on theory that where defects in the securitization of loans can be ratified by the beneficiaries of the trusts established to hold the mortgage-backed securities, transactions would be merely voidable). Plaintiff has pointed to no irregularity with the documentation which would be other than in the nature of a transaction which the third-party transferors of the beneficial interest could ratify.
The court of appeal in Mendoza summarized the effect of Yvanova as follows:
“Plaintiff maintains that her allegation that the assignment is void is sufficient to survive a demurrer, particularly in light of the Supreme Court's holding in Yvanova. Not so. We are required to assume the truth of plaintiff's factual allegations, not her legal conclusions. (Yhudai, supra, 1 Cal.App.5th at p. 1257, 205 Cal.Rptr.3d 680.) An examination of her legal conclusion that the assignment is void, and therefore she has standing to challenge it, must begin with what our Supreme Court did and did not say in Yvanova.
By the Supreme Court's own characterization, its holding in Yvanova is a narrow one. “Our ruling in this case is a narrow one. We hold only that a borrower who has suffered a nonjudicial foreclosure does not lack standing to sue for wrongful foreclosure based on an allegedly void assignment merely because he or she was in default on the loan and was not a party to the challenged assignment. We do not hold or suggest that a borrower may attempt to preempt a threatened nonjudicial foreclosure by a suit questioning the foreclosing party's right to proceed. Nor do we hold or suggest that plaintiff in this case has alleged facts showing the assignment is void or that, to the extent she has, she will be able to prove those facts. Nor, finally, in rejecting defendant's arguments on standing do we address any of the substantive elements of the wrongful foreclosure tort or the factual showing necessary to meet those elements.” (Yvanova, supra, 62 Cal.4th at p. 924, 199 Cal.Rptr.3d 66, 365 P.3d 845.) The court considered and resolved a single issue: “[U]nder what circumstances, if any, may the borrower challenge a nonjudicial foreclosure on the *811 ground that the foreclosing party is not a valid assignee of the original lender? Put another way, does the borrower have standing to challenge the validity of an assignment to which he was or she was not a party?” (Yvanova, at p. 928, 199 Cal.Rptr.3d 66, 365 P.3d 845.) The court offered a simple answer. A borrower has standing if the alleged assignment is void, but not if, the assignment is merely voidable. (Id. at p. 923, 199 Cal.Rptr.3d 66, 365 P.3d 845.)
The court explained that “only the entity holding the beneficial interest under the deed of trust—the original lender, its assignee, or an agent of one of these—may instruct the trustee to commence and complete a nonjudicial foreclosure. [Citations.] If a purported assignment necessary to the chain by which the foreclosing entity claims that power is absolutely void, meaning of no legal force or effect whatsoever [citations], the foreclosing entity has acted without legal authority by pursuing a trustee's sale, and such an unauthorized sale constitutes a wrongful foreclosure.” (Yvanova, supra, 62 Cal.4th at p. 935, 199 Cal.Rptr.3d 66, 365 P.3d 845.) Because the assignment is without any effect, it can never be ratified or validated by the parties to it.
By contrast, a voidable contract or assignment is one that the parties to it may ratify and thereby give it legal force and effect or extinguish at their election. (Yvanova, supra, 62 Cal.4th at pp. 929–930, 199 Cal.Rptr.3d 66, 365 P.3d 845.) Only the parties to the agreement have the power to ratify or extinguish; consequently, allowing a borrower to challenge an assignment based on a defect that only renders it voidable would allow the borrower to exercise rights belonging exclusively to the parties to the assignment. “A borrower who challenges a foreclosure on the ground that an assignment to the foreclosing party bore defects rendering it voidable could thus be said to assert an interest belonging solely to the parties to the assignment rather than to herself.” (Id. at p. 936, 199 Cal.Rptr.3d 66, 365 P.3d 845.)
Mendoza, at 810-811.
Plaintiff has failed to establish any void transaction in this matter, and this argument again is rejected.
Plaintiff also argues that defendants failed to adhere to Civil Code section 2924.17, because the NOD misstated the amounts owed, and so was not based on competent and reliable evidence.
Civil Code section 2923.17 provides, in pertinent part:
“(a) A declaration recorded pursuant to Section 2923.5 or, until January 1, 2018, pursuant to Section 2923.55, a notice of default, notice of sale, assignment of a deed of trust, or substitution of trustee recorded by or on behalf of a mortgage servicer in connection with a foreclosure subject to the requirements of Section 2924, or a declaration or affidavit filed in any court relative to a foreclosure proceeding shall be accurate and complete and supported by competent and reliable evidence.
“(b) Before recording or filing any of the documents described in subdivision (a), a mortgage servicer shall ensure that it has reviewed competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information.”
Plaintiff here submits evidence that she had consistent and repeated accounting issues with Chase, that previous NODs had been recorded based on alleged arrears that were not actually due and payable, that plaintiff disputed the validity of the debt with CRC, that plaintiff explained the situation to Rushmore, but the errors did not stop, and she was referred by Rushmore back to Chase, who refused to provide accounting records, and that had it not been for the accounting errors plaintiff experienced with Chase, and then Nationstar and Rushmore, plaintiff could have resolved the arrears and maintained ownership of her property. [O’rrell Decl., paras. 5-11, 16].
Plaintiff points out that this evidence is supported by the Exhibits submitted by defendants in support of the motion, including Exhibits T and U of RFA Exhibits to the Benbow Declaration, which consist of a letter written by plaintiff to CRC, dated October 28, 2016, in which plaintiff states, “Please be advised that I, Lisa O’rrell, dispute the validity of the stated $886,636.84 debt, or a portion thereof, purchased from Nationstar Mortgage by your client…,” and a detailed statement describing the accounting irregularities to CRC.
Plaintiff also submits documents in which Chase notified plaintiff in October 2015 that Chase was holding unclaimed funds of $16,445.36 which it was believed belonged to plaintiff, which plaintiff claims is reimbursement for significant overcharges which were not credited in the sum set forth in the NOD, and in which Chase in March of 2017 sent a check to plaintiff for $1,780.36, stating, “We recently discovered that we owe you a check for corporate advance fees we charged to your account while we serviced your mortgage loan….We sincerely apologize for not providing you with the level of service you expect from us.” [O’rrell Decl., paras. 7-10; Exs. 1, 2].
This showing is sufficient to support a reasonable inference that the servicer was aware that there had been accounting errors in the past and should have been alerted to review reliable information concerning the status of the loan, and the sum due, and that the sum set forth in the recorded NOD was not based on a review of competent and reliable evidence and was not accurate and complete, in violation of the HBOR.
Defendants in reply argue that plaintiff did not allege this purported violation in the SAC and cannot now assert this alleged violation in response to the motion for summary judgment/adjudication. The cause of action in the SAC alleges that PMAT violated Civil Code section 2924.17 by “taking acts based on assignments that contain false statements and misrepresent the beneficial holder of the debt…” [SAC, para. 91]. The cause of action also alleges that PMAT was required to provide accounting records of the loan, which it failed to provide. [SAC, para. 88]. The cause of action also incorporates allegations that plaintiff “disputed accounting amounts in which Chase improperly assessed late fees and unauthorized charges that Chase refused to identify or remove from plaintiff’s account,” and which describe the improper accountings and Chase’s refund, in addition to allegations that defendants “refused to validate the debt or address the accounting discrepancies,” and refused to “validate whether the entity asking it to foreclose had the legal right to make such demands in violation of Civil Code section 2924.17.” [SAC, paras. 43-45, 62, 63]. These allegations are sufficient to place moving parties on notice that plaintiff is alleging that defendants had failed to comply with Civil Code section 2924.17 with respect to their statutory duty to review “competent and reliable evidence to substantiate the borrower's default and the right to foreclose, including the borrower's loan status and loan information.”
Defendants argue in reply that even if the claim is proper, plaintiff has failed to state a material violation of section 2924.17, as the allegations that there were accounting errors and refusal to provide an accounting is contradicted by plaintiff’s admissions that she received accountings of her loan from Rushmore and her prior servicer, including payment histories. This argument acknowledges that there remain triable issues concerning the reliability of the basis for the sums stated in the NOD. Defendants have failed to submit any evidence concerning the records relied upon or the method of preparing the sum which was ultimately claimed to be due in the NOD.
Defendants also argue that any violation of this section was not material. As noted above, plaintiff’s declaration indicates that she was given the run-around by Chase, and then by Nationstar and Rushmore, that she disputed the validity of the debt, as supported by documentation, and that had it not been for the accounting errors, she could have resolved the arrears and retained ownership of her property. [O’rrell Decl., paras. 5-11, 16]. Given that there are triable issues with respect to whether the previously acknowledged Chase credit was in fact accounted for in the sum set forth in the NOD, and in the sum under consideration by the servicer in indicating to plaintiff her unlikelihood of qualifying for a foreclosure alternative, it would appear that the alleged violation would have been material, and effected plaintiff’s ability to adequately protect her interests under the circumstances. Triable issues of fact remain, and the motion on this cause of action is denied.
ISSUE No. 1: Plaintiff’s first cause of action for declaratory relief is without merit as to PMAT and CRC in that Plaintiff is unable to prove or establish one or more elements of the cause of action.
Defendants argue that this cause of action fails as there is no actual, present controversy relating to the legal rights and duties of the respective parties, that plaintiff has failed to allege facts entitling her to an accounting, and the claim merely replicates other substantive causes of action which are unsupported by admissible evidence. As discussed above, to the extent the argument is that the claim is duplicative of other failed causes of action, the cause of action for alleged violations of the HBOR survives, so is not a failed cause of action.
CCP 1060 provides with respect to declaratory relief:
“Any person interested under a written instrument,…or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property... , may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”
Defendants argue that to the extent the declaratory relief claim alleges a controversy as to the validity of the transfer of plaintiff’s loan to PMAT, that issue has been resolved previously by the court when it sustained a demurrer without leave to amend to the causes of action for cancellation of instruments and wrongful foreclosure, and also granted a motion for judgment on the pleadings without leave to amend.
The court in those rulings overruled and denied the challenges to the declaratory relief claim only to the extent it sought “a determination of the actual amounts due on the Loan Which [sic] Plaintiff alleges has accounting errors that have prejudiced and harmed Plaintiff in clearing arrears or securing a modification.” [SAC, para. 74].
Defendants argue that there is no entitlement to an accounting which would give rise to the remedy of declaratory relief here, as plaintiff has not stated a claim for an accounting, which generally requires that plaintiff plead a fiduciary relationship or other circumstances appropriate to the remedy and a balance due from defendant to plaintiff that can only be ascertained by an accounting. See San Pedro Lumber Co. v. Reynolds (1896) 111 Cal. 588, 595-596; Witkin, 5 Cal.Proc. 5th Ed. Pleading 820. Defendants argue that no such relationship or circumstances exist here, and it is undisputed that there is no money owed by PMAT to plaintiff, but that plaintiff is in arrears and owes some sum of money to defendant.
Plaintiff in opposition again argues that there is a controversy concerning the validity of PMAT’s claims that it is the beneficiary of the DOT, entitled to collect the debt from plaintiff, which, as discussed above, has already been resolved against plaintiff, and remains an invalid argument due to plaintiff’s inability to show that any assignment or other transaction concerning this loan obligation was void, as opposed to voidable.
However, as discussed above, there is a remaining controversy concerning the alleged statutory obligation of defendants to have established the amount in arrears as stated in the NOD, if any, only after reviewing competent evidence, and triable issues of fact remain with respect to whether this accounting occurred. It may well be that after the trier of fact makes such a factual determination, the court will want to exercise its equitable authority to fashion an appropriate remedy through a declaration of rights and obligations. The motion accordingly is denied.
RULING:
CCP 437c(g): Material facts which do or do not create a triable issue of controversy:
Motion for Summary Judgment or Alternatively, Summary Adjudication of Issues:
Motion for Summary Judgment is DENIED.
Motion for Summary Adjudication: GRANTED a to Second Cause of Action; DENIED as to First and Third Causes of Action.
ISSUE No. 2: Plaintiff’s second cause of action for Breach of Contract/Estoppel is without merit as to PMAT in that Plaintiff is unable to prove or establish one or more elements of the cause of action.
Motion is GRANTED.
Defendant has established that plaintiff will be unable to establish one or more essential element of plaintiff’s cause of action based on alleged breach of paragraph 22 of the Deed of Trust, as defendants have submitted evidence, which is largely undisputed by plaintiff, that plaintiff was timely mailed and received a Notice which satisfies the provision of the Deed of Trust, including its requirement that the notice shall “inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non—existence of a default or any other defense of Borrower to acceleration and sale.” Specifically, on July 19, 2016, the servicer sent plaintiff a Notice of Intent to Foreclose by certified mail, return receipt requested, which satisfied all requirements of notice under paragraph 22 of the Deed of Trust, as it included notice that (a) plaintiff’s loan was in default, (b) the amount of plaintiff’s regular monthly payment, $3,039.15, and that she must pay all past due payments, due at the time she cured the default, (c) the amount required to cure plaintiff’s default, (d) that plaintiff’s loan balance would be accelerated and foreclosure proceedings initiated if she did not cure the default by August 23, 2016, and specifically stated, “If we do accelerate the balance due, you have the right to reinstate your mortgage loan. You will also have the right to assert in the foreclosure proceeding or in a court action the non—existence of a default or any other defense which you may have to the acceleration and foreclosure or sale.” [See RFJN, Ex. A, Deed of Trust, para. 22; UMF Nos. 17-19, 33, 34, 35, and evidence cited; Bennett Decl., Ex. N, July 19, 2016 Letter, paras. (a)-(f)]. This showing shifts the burden to plaintiff to raise triable issues of material fact.
Plaintiff in opposition has failed to raise triable issues, as plaintiff has failed to present evidence which would support a reasonable inference that defendants are not the true parties to the subject Deed of Trust, entitled to enforce its obligations, which argument has been repeatedly and consistently rejected by this Court, and which plaintiff has again failed to support. [See UMF Nos. 2-5, and evidence cited]. Plaintiff has also failed to show any other conduct which would constitute a breach of paragraph 22, or to point to any other provision of the Deed of Trust which was allegedly breached and has failed to establish that defendant failed to satisfy a condition precedent, so has also failed to establish that this is not a circumstance where plaintiff will be unable to establish plaintiff’s own performance or excuse for non-performance. [See Response to UMF No. 35, “Undisputed,” UMF No. 33, and evidence cited; Response to UMF No. 33; UMF No. 17, and evidence cited, Response to UMF No. 17, “Plaintiff missed payments…”; O’rrell Decl., para. 16, conceding existence of arrears].
ISSUE No. 3: Plaintiff’s third cause of action for Violation of California Homeowner Bill of Rights is without merit as to PMAT and CRC in that Plaintiff is unable to prove or establish one or more elements of the cause of action.
Motion is DENIED. Plaintiff has raised triable issues of material fact with respect to whether defendants failed to adhere to Civil Code section 2924.17 (a) and (b), because the NOD misstated the amounts owed, and was not accurate and complete or based on competent and reliable evidence.
Specifically, plaintiff here relies on evidence that she had consistent and repeated accounting issues with Chase, that a previous NOD had been recorded based on alleged arrears that were not actually due and payable, that plaintiff disputed the validity of the debt with CRC, that plaintiff explained the situation to Rushmore, but the errors did not stop, and she was referred by Rushmore back to Chase, who refused to provide accounting records, and that had it not been for the accounting errors plaintiff experienced with Chase, and then Nationstar and Rushmore, plaintiff could have resolved the arrears and maintained ownership of her property. [O’rrell Decl., paras. 5-11, 16]. The evidence includes plaintiff’s declaration, as well as Exhibits submitted with the moving papers, and correspondence from Chase concerning refunds being made to plaintiff. [O’rrell Decl., paras. 7-10; Exs. 1, 2; Benbow Decl., Exs. T, U].
ISSUE No. 1: Plaintiff’s first cause of action for declaratory relief is without merit as to PMAT and CRC in that Plaintiff is unable to prove or establish one or more elements of the cause of action.
Motion is DENIED. As discussed above, plaintiff has raised triable issues of material fact with respect to whether an actual controversy exists with respect to the accuracy of the evaluation and accounting of the sums owing, and that there may be a basis for reliance on an equitable remedy in this matter.
Plaintiff’s Objections to the Declarations of Michael Bennett and Tammy Laird are OVERRULED.
Defendants’ Objections to the Declaration of Lisa O’rrell are OVERRULED.
Request for Judicial Notice is GRANTED in part. The Court has taken notice only of the fact of each recorded document’s recording, the date each document was recorded and executed, the parties to the transaction reflected in the recorded document, the document’s legally operative language, and any legal effect of the document which is clear from its face. See Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App.4th 256, 265.
GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES
Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance. Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear. Anyone who appears in person for the hearing, regardless of vaccination status, must wear a face mask over both the nose and mouth. If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.


Case Number: ****6736    Hearing Date: August 21, 2020    Dept: NCD

TENTATIVE RULING

Calendar: 10

Date: 8/21/20

Case Number: EC 066736 Trial date: None Set

Case Name: O’Rrell v. Wilmington Savings Fund Society, FSB, etc., et al.

MOTION FOR SUMMARY JUDGMENT

(OR, in the Alternative, Summary Adjudication)

[CCP ; 437c; CRC 3.1350 et seq.]

Moving Party: Defendants Wilmington Savings Funds Society, FSB and Clear Recon Corp.

Responding Party: Plaintiff Lisa O’Rrell

Relief Requested:

Summary judgment in favor of defendants Wilmington Savings Funds Society, FSB

and Clear Recon Corp.

In the alternative, summary adjudication of the first, second and/or third causes of action.

Causes of Action from Second Amended Complaint

1) Declaratory Relief/Judgment v. All Defendants

2) Breach of Contract/Estoppel v. PMAT

3) Violation of Calif. Homeowner Bill of Rights v. PMAT, Clear Recon

4) Cancellation of Instruments v. All Defendants*

5) Wrongful Foreclosure v. All Defendants*

*Demurrer sustained without leave to amend as to PMAT on 2/23/28. JOP granted without leave to amend as to Clear Recon on 9/21/18

SUMMARY OF COMPLAINT:

Plaintiff Lisa O’Rrell alleges that defendants Wilmington Savings Fund Society (“Premium” or “PMAT”) and Clear Recon Corporation (Clear Recon) have wrongfully foreclosed on her primary residence in Studio City, which was purchased at foreclosure sale by defendant DLI Properties, LLC.

Plaintiff alleges that the original loan transaction in connection with the property with JPMorgan Chase Bank as lender, resulted in plaintiff disputing accounting amounts and unauthorized charges. Chase recognized it had overcharged plaintiff and refunded $17,000. Plaintiff again complained of accounting errors in 2016 and 2017, but Chase did not resolve the errors, but allegedly transferred the servicing problems to Rushmore Loan Servicing. Plaintiff alleges that Chase also purported to transfer interest in the deed of trust to US Bank, but did not transfer interest in the debt or note, and that the loan was then purchased by Freddie Mac, not NRZ Trust, but NRZ then purported to sell an interest in the loan and deed of trust to defendant Premium, which held no interest or rights in the debt or deed of trust. Plaintiff alleges that she was accordingly not obligated to tender payment to Premium.

The complaint alleges that Premium and its agents failed to provide notice of plaintiff’s right to bring an action in defense of plaintiff’s default or acceleration of the loan, which was a condition precedent, and that Premium failed to provide plaintiff with notice of her right to demand a copy of the note, evidence of ownership

and accounting of her debt as required under Civil Code ; 2923.55(B), and also failed to contact plaintiff to discuss pre-foreclosure alternatives as required by Civil Code ; 2923.5(a)(1), and that the declaration attached to the Notice of Default is false.

Plaintiff alleges that defendant DLI Properties is not a bona fide purchaser, as it had a legal responsibility to inquire of plaintiff’s interest in the property but failed to do so even though plaintiff was in possession of the property.

On May 16, 2017, the court heard an ex parte application filed on behalf of plaintiff to stay an unlawful detainer trial set in an unlawful detainer action concerning the subject property. The court issued a temporary stay pursuant to a temporary restraining order, which was to expire at midnight May 24, 2017.

On May 22, 2017, the court heard an ex parte application filed on behalf of plaintiff to deem the cases related and stay the UD until a motion for consolidation could be heard. The court found that the cases fall within the meaning of related case, and denied the request for continuance of the TRO.

On May 24, 2017, the court heard an ex parte application filed on behalf of plaintiff to continue the UD trial until a motion to consolidate was heard, which was granted, and the UD trial continued to July 3, 2017. O’Rrell, as the defendant in the UD case, was ordered to pay rent in the sum of $4,000 each month pursuant to CCP ; 1170.5(c). On June 2, 2017, O’Rrell deposited the sum of $4,000 with the court.

On June 23, 2017, the court heard a motion to consolidate this action with the pending UD action, which was granted, and the cases ordered consolidated upon receipt of proof of payment of the reclassification fee by plaintiff. The fee was ordered paid within five court days. Evidently, no reclassification fee was timely paid.

On September 22, 2017, the court sustained a demurrer brought by DLI, the purchaser of the subject property at the trustee’s sale, to the First Amended Complaint without leave to amend, so that DLI is no longer a party to the unlimited civil action.

DLI, as plaintiff in the UD case, then brought a motion for summary judgment on the UD case against the two UD defendants O’Rrell and Morlan.

The UD file shows that on April 25, 2017, the default of defendant Morlan was entered.

On May 3, 2017, plaintiff DLI filed motions to have matters in Requests for Admissions served on O’Rrell and Morlan on April 24, 2017 deemed admitted. On May 15, 2017, the court granted the motions and awarded sanctions against each defendant in the sum of $500.

On April 13, 2018, the court heard DLI’s motion for summary judgment in the UD action, which was granted as to defendant O’Rrell, based primarily on the material deemed admitted.

On October 4, 2018, O’Rrell filed a notice of appeal of the UD judgment.

On November 28, 2018, this motion was filed on behalf of defendants Premium and Clear Recon.

The motion has been continued several times, including by stipulation at a hearing on a status conference regarding the appeal and the lifting of the automatic stay to hear the motion for summary judgment.

The file shows that in this matter, a Notice Designating Record on Appeal was filed on May 4, 2020. On June 11, 2020, the clerk filed an appeal appendix pursuant to CRC Rule 8.124, which document has evidently not yet been scanned.

The court of appeal docket shows that on January 24, 2020, the court of appeal filed an order deeming the appeal of the UD matter to have been filed in this unlimited case, as the matters had been consolidated, although no reclassification fee had been paid. The court of appeal ordered the superior court to collect the reclassification fee and comply with the notification duties of CRC Rule 8.100. The docket also shows that the appeal had been dismissed but on April 29, 2020, the court of appeal granted a motion to vacate the dismissal, ordered appellant to take immediate action to cure the default, such action to occur within 15 days. The court of appeal docket notes the receipt of the designation that appellant is proceeding by CRC Rules 8.121, 8.130 - no reporter’s transcript, on May 4, 2020, and that appellant’s opening brief and appendix were filed on July 10, 2020. Respondent’s brief is due August 10, 2020.

ANALYSIS:

As noted above, plaintiff has appealed this court’s most recent rulings pursuant to which this court imposed issue and evidence sanctions. The motion for summary judgment relies in part on arguments that plaintiff will be unable to establish each of plaintiff’s remaining causes of action due to the court’s orders prohibiting plaintiff from introducing certain evidence necessary to support those claims.

CCP ; 916 (a) provides that the perfecting of an appeal stays proceedings in the trial court, in effect, that with certain exceptions, not applicable here:

“the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”

It appears that the motion for summary judgment currently before this court would be subject to a stay.

In Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, the California Supreme Court addressed the issue of whether an appeal from the denial of a special motion to strike under the anti-SLAPP statute effects an automatic stay of the trial court proceedings. The Court concluded that the automatic stay applied to stay all further trial court proceedings on causes of action affected by the anti-SLAPP motion, and that the trial court had accordingly lacked subject matter jurisdiction during the pendency of appeal, so that a judgment for plaintiffs was void.

The Court explained the general rationale and application of CCP ; 916:

“ Subject to certain exceptions not relevant here, “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.”5 (; 916, subd. (a).) The purpose of the automatic stay provision of section 916, subdivision (a) “is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, 5 Cal.Rptr.2d 742 (Elsea ).)

To accomplish this purpose, section 916, subdivision (a) stays all further trial court proceedings “upon the matters embraced” in or “affected” by the appeal. In determining whether a proceeding is embraced in or affected by the appeal, we must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. “[W]hether a matter is ‘embraced’ in or ‘affected’ by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the ‘effectiveness' of the appeal.” (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381, 205 Cal.Rptr. 880 (Horowitz ).) “If so, the proceedings are stayed; if not, the proceedings are permitted.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938, 20 Cal.Rptr.2d 841 (Betz ).)

Varian, at 189.

Here, the matter is proceeding to appeal, the outcome of which could affect a ruling the trial court would be making in connection with the motion for summary judgment in this matter, which concerns the legitimacy of the underlying unlawful detainer matter. The motion is accordingly be subject to stay, to avoid interfering with the effectiveness of the court of appeal’s rulings on the appeal. The court stays this motion for summary judgment pending the outcome of the appeal.

RULING:

CCP 437c(g): Material facts which do or do not create a triable issue of controversy:

Motion for Summary Judgment or Alternatively, Summary Adjudication of Issues is STAYED pending resolution of the pending appeal, 2nd Appellate District Case Number B303821.

GIVEN THE CORONAVIRUS CRISIS, AND TO PROMOTE APPROPRIATE SOCIAL DISTANCING, UNTIL FURTHER ORDERED, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangements in advance if you wish to appear via LACourtConnect by visiting www.lacourt.org, and scheduling a remote appearance. Please note that LACourtConnect offers an audio-only appearance option at a current cost of $15.00 and a video appearance option at a cost of $23.00. Counsel and parties (including self-represented litigants) are encouraged not to personally appear, unless they have obtained advance permission of the Court. Anyone who appears in person for the hearing will be required to comply with strict social distancing measures, including, but not limited to, assigned seating, capacity limitations in the courtroom, designated waiting areas, and strictly enforced spacing in line to communicate with court staff. If no appearance is set up through LACourtConnect, or otherwise, then the Court will assume the parties are submitting on the tentative.



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