Judge: Michelle Williams Court, Case: 23STCV19020, Date: 2024-06-20 Tentative Ruling

Case Number: 23STCV19020    Hearing Date: June 20, 2024    Dept: 1

23STCV19020           ALEX FOXMAN vs RUSSELL M. FRANDSEN

Plaintiffs’ Amended Motion to Relate Cases

TENTATIVE RULING:  The motion is DENIED.  Counsel for Defendants Russell M. Frandsen, Christine Frandsen, Andre Berger, Tracy Berger and Westside Pacific Estates, Inc. to give notice. 

Background of 23STCV19020 Foxman v. Frandsen

On August 9, 2023, Plaintiffs Alex Foxman and Michal Morey-Foxman filed this action against Russell M. Frandsen, Christie Frandsen, Andre Berger, Tracy Berger, and Westside Pacific Estates, Inc.

On November 14, 2023, the court issued an order relating this case with 19STCV00723 Berger v. Foxman.

On May 13, 2024, Plaintiffs filed the Second Amended Complaint against Russell M. Frandsen, Christie Frandsen, Andre Berger, Tracy Berger, Westside Pacific Estates, Inc., Wells Fargo Bank N.A., U.S. Bank, Specialized Loan Servicing, and Seabreeze Management Company asserting causes of action for: (1) wrongful foreclosure (home); (2)) wrongful foreclosure (condo); (3) set aside trustee’s sale; (4) cancellation of instruments; (5) quiet title; and (6) declaratory relief.

The SAC alleged Plaintiffs are the trustors to two deeds of trusts recorded on a home located at 14606 Sutton Street, Sherman Oaks, CA 91403 and a condo located at 321 S. San Vicente Blvd. #407, Los Angeles, CA 90048. Defendants Russell M. Frandsen, Christie Frandsen, Andre Berger, and Tracy Berger are the beneficiaries under the deeds of trust. The SAC alleged the deeds of trust were created pursuant to a settlement agreement in 19STCV00723 and Defendants, in foreclosing on the deeds of trust, failed to account for Plaintiffs’ alleged set off claims and conducted the foreclosure sale of the home and condo in a procedurally improper manner.

On June 12, 2024, the court sustained the demurrer filed by Christie Frandsen, Andre Berger, Tracy Berger, Russell M. Framdsen, Westside Pacific Estates, Inc. with 10 days leave to amend.

This case is currently pending in Department 16 of the Stanley Mosk Courthouse with the case management conference set for July 23, 2024.

Background of 24VECV00579 Frandsen v. Foxman

On February 9, 2024, Russell M. Frandsen, Christine H. Frandsen, Andre Berger, and Tracy Berger filed 24VECV00579 against Alex Foxman and Michal Janel Morey Foxman for unlawful detainer of real property located at 14606 Sutton Street, Sherman Oaks, CA 91403.

On February 26, 2024, Alex Forman, et al filed a Notice of Filing of Notice of Related Case involving 24VECV00579 and 19STCV00723.

On March 1, 2024, Judge Steve Cochran issued an order in 19STCV00723 finding 19STCV00723 and 24VECV00579 were not related within the meaning of California Rules of Court, rule 3.300(a).

On April 10, 2024, the court in 24VECV00579 issued an order continuing trial pending the hearing and ruling on the motion to relate in Department 1 conditioned on defendants posting $16,000.00 rent in 24VECV00579. On May 17, 2024, the court issued an order requiring the deposit of an additional $4,000.00.

This case is currently pending in Department T of the Van Nuys Courthouse. 

Motion

On May 28, 2024, Plaintiffs Alex Foxman and Michal Morey-Foxman filed the instant motion seeking to relate 23STCV19020 and 24VECV00579.   In opposition, Defendants Russell M. Frandsen, Christine Frandsen, Andre Berger, Tracy Berger and Westside Pacific Estates, Inc. argue the merits of the underlying litigation and contend the motion must be denied because Plaintiffs failed to file the Notice of Related Case in 23STCV19020.  In a separately filed opposition, Russell Frandsen and Christie Frandsen, as plaintiffs, contend the cases are not related under any of the grounds enumerated in California Rules of Court, rule 3.300(a).

Judicial Notice

The requests for judicial notice of various court documents, recorded documents, as well as the settlement agreement and promissory note by the opposing parties are GRANTED. (Evid. Code §§ 452(c); 452(d).)

Motion to Relate Cases

Standard

In the event that the pertinent judge under California Rules of Court, rule 3.300(h)(1) does not relate any of the cases set forth in a Notice of Related Case, Department 1 may relate the matters on noticed motion. (Cal. R. Ct., rule 3.300(h)(1)(D); LASC Local Rules, rule 3.3(f)(3).)

The Motion is Procedurally Improper

While the opposing parties’ arguments regarding the merits of Plaintiffs’ “offset theory” are immaterial to the issue of relation, (Def. Opp. at 5:4-15:2; Pltf Opp. at 7:22-16:25), Defendants also note the “Foxmans never filed a Notice of Related Case in the present action, Case No 23STCV19020.” (Def. Opp. at 15:5-6.)

A motion to relate in Department 1 is only procedurally proper “[i]n the event that the judge designated under California Rules of Court, rule 3.300(h)(1)(A)(B)(C) to make the decision, does not order related any of the cases set forth in the Notice of Related Cases . . .” (LASC Local Rules, rule 3.3(f)(3). See also Cal. R. Ct., rule 3.300(h)(1)(D).) Plaintiffs did not file a Notice of Related Case in 23STCV19020. Plaintiffs also did not include 23STCV19020 as a case to be related in Sections 1, 2, or 3 of the Notice of Related Case which was filed on February 26, 2024 in 19STCV00723 and 24VECV00579. Consistent with this omission, the March 1, 2024 order on the Notice entered in 19STCV00723 made no reference to 23STCV19020.

Plaintiffs have not properly filed a Notice of Related Case involving 23STCV19020 and 24VECV00579 in 23STCV19020 and have not provided the designated judicial officer a proper opportunity to consider a Notice of Related Case involving these two cases. Accordingly, Plaintiffs’ motion to relate is DENIED as procedurally improper.