Judge Cherol J. Nellon, Case Number: 21STCV37165, Date: 2024-02-06 Tentative Ruling

Judge: Cherol J. Nellon, Case: 21STCV37165, Date: 2024-02-06 Tentative Ruling

Case Number: 21STCV37165 Hearing Date: February 6, 2024 Dept: 14

Shaposhnik v. Select Portfolio Servicing

Case Background

Plaintiff Shaposhnik alleges that Defendants are improperly attempting to foreclose on her home.

On October 26, 2021, Plaintiff Orna Shaposhnik (“Shaposhnik”), filed her Second Amended Complaint (“SAC”) for (1) Violation of Civil Code § 2923.5; (2) Violation of Civil Code § 2924(a)(1); (3) Violation of Civil Code § 2923.6; (4) Violation of Civil Code § 2923.7; (5) Violation of Civil Code § 2923.9; (6) Violation of Civil Code § 2923.10; (7) Unfair Competition; (8) Cancellation of Instruments; (9) Wrongful Foreclosure; and (10) Quiet Title against Defendants Select Portfolio Servicing, Inc. (“SPS”); US Bank, N.A. as Trustee for WaMu Mortgage Pass-Through Certificates Series 2006-AR11 (“US Bank”); Quality Loan Service Corporation (“Quality Loan”); and DOES 1-10.

On December 17, 2021, Plaintiff filed an “Amendment to Complaint” substituting Defendant Redwood Holdings, LLC (“Redwood”) in lieu of DOE 1.

On February 10, 2022, this court sustained the demurrer of Defendants SPS and US Bank to the second, fourth, and fifth causes of action, with 30 days leave to amend. No amendment was made.

On March 29, 2022, Defendant Quality Loan filed its Answer. On April 19, 2022, Defendants SPS and US Bank filed their joint Answer.

On June 17, 2022, this case was stayed pending bankruptcy proceedings. On October 19, 2022, the stay was lifted pursuant to an order issued by Judge Martin Barash in Bankruptcy Court.

On February 23, 2023, Plaintiff voluntarily dismissed Defendants SPS and US Bank, without prejudice.

On April 7, 2023, Plaintiff filed her Third Amended Complaint (“TAC”) for (1) Violation of Civil Code § 2923.5; (2) Violation of Civil Code § 2924(a)(1); (3) Violation of Civil Code § 2923.6; (4) Violation of Civil Code § 2923.7; (5) Violation of Civil Code § 2923.9; (6) Violation of Civil Code § 2923.10; (7) Unfair Competition; (8) Cancellation of Instruments; (9) Wrongful Foreclosure; and (10) Quiet Title against Defendants SPS, US Bank, Quality Loan, Redwood, and DOES 2-10. Only the second, seventh, eighth, ninth, and tenth causes of action are asserted against Defendant Quality Loan. Only the tenth cause of action is asserted against Defendant Redwood.

Because of the prior proceedings, set forth above, Defendants SPS and US Bank remain dismissed without prejudice. The case proceeds only against Defendants Quality Loan and Redwood.

On June 15, 2023, Defendant Redwood filed its Answer.

On August 10, 2023, this court granted judgment on the pleadings in favor of Defendant Quality Loan as to the second, seventh, and tenth causes of action. The court granted 10 days leave to amend as to the seventh cause of action, but Plaintiff elected to appeal instead. The appeal was dismissed on January 4, 2024.

On January 12, 2024, Defendant Redwood filed its First Amended Answer.

On February 5, 2024, Plaintff’s ex parte application to Continue Trial was Granted.

Jury Trial is currently set for April 8, 2024.

(1) Motion to Consolidate

Defendant Redwood now moves this court for an order consolidating this case with Case No. 23 STCV 15231.

Decision

Defendant Redwood’s Request for Judicial Notice is GRANTED.

The motion is DENIED.

Governing Standard

Code of Civil Procedure § 1048(a) provides that:

“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

California Rules of Court Rule 3.350 provides:

“(a) Requirements of motion

(1) A notice of motion to consolidate must:

(A) List all named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record;

(B) Contain the captions of all the cases sought to be consolidated, with the lowest numbered case shown first; and

(2) The motion to consolidate:

(A) Is deemed a single motion for the purpose of determining the appropriate filing fee, but memorandums, declarations, and other supporting papers must be filed only in the lowest numbered case;

(B) Must be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated; and

(b) Lead case

Unless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case is the lead case.

(c) Order

An order granting or denying all or part of a motion to consolidate must be filed in each case sought to be consolidated. If the motion is granted for all purposes including trial, any subsequent document must be filed only in the lead case.

(d) Caption and case number

All documents filed in the consolidated case must include the caption and case number of the lead case, followed by the case numbers of all of the other consolidated cases.”

Local Rule 3.3(g) provides in relevant part:

“(1) Cases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.

(2) Upon consolidation of cases, the first filed case will be the lead case, unless otherwise ordered by the court. After consolidation, all future papers to be filed in the consolidated case must be filed only in the case designated as the lead case.”

Discussion

Code of Civil Procedure § 1048 gives courts discretion to consolidate cases where that would serve two related purposes: avoiding unnecessary cost and avoiding delay. Neither purpose would be served by consolidation of these cases.

The two cases were related because the issues in each are virtually identical, although the defendants are different. The lead case, bearing Case No. 21 STCV 37165, has been pending for more than two years. It has been through a series of dispositive motions and is now on the eve of trial. In fact, trial documents have already been filed. The second case, bearing Case No. 23 STCV 15231, is only a few months old and not yet at issue. It has never had a trial date.

Consolidating these cases would mean that the defendants to the lead case would have to wait months, maybe years, before they could get to the trial for which they have already prepared. And the result is going to be a trial on the same issues, just with more defendants. Trying the lead case on schedule, by contrast, will give full resolution to the defendants present in that case, while also resolving most of the issues that would be tried in the second case. The parties to the second case could then use the result in the first case to help them settle or otherwise reach an early resolution in their dispute.

Conclusion

It is time to resolve at least one of these cases. Consolidation will result in unnecessary delay for the first case. It may well result in unnecessary cost for the parties in the second case, as they proceed to litigate issues that could have been resolved by a trial in the first case. Therefore, the motion to consolidate is DENIED.

(2) Motion to Compel Deposition

Defendant Redwood now moves this court for orders directing Plaintiff to sit for her deposition and pay $1,416.50 in monetary sanctions.

Decision

The motion is GRANTED. Plaintiff is to sit for her deposition on or before February 13, 2024.

Plaintiff is also ORDERED to pay sanctions of $1,416.50 to Defendant Redwood’s counsel within 30 days.

Discussion

According to the moving papers, Defendant Redwood noticed Plaintiff’s deposition for Monday, January 15, 2024. Plaintiff did not serve an objection. On the afternoon of Friday, January 12, 2024, Plaintiff’s counsel called Defendant Redwood’s counsel to tell him that Plaintiff would not appear. At that point, it was too late for Defendant Redwood to cancel the court reporter without incurring cancellation fees. Plaintiff’s counsel did not offer an alternative date for deposition.

On January 24, 2024, this court advanced this motion to be heard on this date. Plaintiff was instructed to file her opposition, if any, on or before January 29, 2024. No opposition has been received. The lack of an opposition operates as a concession that the motion has merit. See California Rules of Court Rule 3.1113(a); see also Rule 3.1320(f); Herzberg v. County of Plumas (2005) 133 Cal.App.4^th 1, 20.

Therefore, the motion is GRANTED. Plaintiff is to sit for her deposition on or before March 18, 2024. Plaintiff is also to pay sanctions of $1,416.50 to Defendant Redwood’s counsel within 30 days.