Judge: Robert S. Draper, Case: 20STCV05566, Date: 2023-04-07 Tentative Ruling

Case Number: 20STCV05566    Hearing Date: April 7, 2023    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

The hearing on Plaintiff Trina Allen’s Motion to Set Aside/Vacate Default is CONTINUED for 14 days as the Court is not in possession of Plaintiff’s Reply.

Plaintiff is to file her Reply with the Court within five court days.

FACTUAL BACKGROUND  

This is a wrongful foreclosure action concerning residential property located at 810 E. 76^th Place, Los Angeles, California (the “Property”). (TAC ¶ 1.) The operative Third Amended Complaint alleges as follows.

Plaintiff Trina Allen’s (“Plaintiff”) mother (“Decedent”) passed away in 2014; Plaintiff served as Executor of Decedent’s estate. (TAC ¶ 8.) There were four heirs to Decedent’s estate. (TAC ¶ 9.) Two of the heirs wished to receive cash for their interest in the estate. (Ibid.) Plaintiff’s sister, Donna Allen (“Donna”), agreed to take certain real estate properties. (Ibid.)

Prior to Decedent’s death, Decedent created intervivos trust to hold real property, including real property located at 810 E. 76^th St., Los Angeles (the “Subject Property”). (TAC ¶ 10.) Plaintiff resided in the Subject Property to care for Decedent prior to Decedent’s death and continued to reside there after her death. (Ibid.)

To raise cash for the two sisters who wished to be bought out of the estate, Plaintiff saw defendant loan broker Lou Brown (“Brown”). (TAC ¶ 11.) Plaintiff completed a loan application with accurate information for Brown, who did not provide Plaintiff with a copy of the application. (Ibid.) Shortly thereafter, Brown contacted Plaintiff to inform her that Brown needed to restructure the loan application to show that Plaintiff was not residing at the Subject Property and asked her to fill in a different address; Plaintiff refused. (TAC ¶ 12.) Then, Brown’s notary provided Plaintiff with a loan application with many blank spaces and informed Plaintiff that Brown would complete it. (Ibid.) As Plaintiff was in a rush to receive a loan for an upcoming court hearing, she agreed to sign the incomplete application, and to sign a blank promissory note and deed of trust. (Ibid.) Brown informed Plaintiff that he had obtained a loan based on the latter application, but did not provide Plaintiff a copy of the note, deed of trust, and loan application when she requested it. (TAC ¶ 13.)

After the loan was funded, Plaintiff was unable to find or contact Brown. (TAC ¶ 14.) Plaintiff hired an attorney, who was able to obtain a copy of the loan application and relevant paperwork. (Ibid.) In reviewing the loan application and relevant paperwork, Plaintiff discovered that Brown had lied repeatedly on the application and had lied to Plaintiff about the material terms of the loan. (TAC ¶¶ 15-20.)

When Plaintiff attempted to refinance this loan with defendant Matthew Shepherd (“Shepherd”) through defendant Superior Loan Financing (“Superior” and with Shepherd, the “Superior Defendants”), Plaintiff discovered that contrary to Brown’s representations, title to the Subject Property was not transferred from Decedent to Plaintiff. (TAC ¶ 22.) Plaintiff, through the probate court, transferred title to the Subject Property from Decedent to Decedent’s intervivos trust, of which Donna was trustee. (TAC ¶ 23.)

Donna and Plaintiff attempted to refinance the loan to pay off Shepherd, but could not because the Superior Defendants had filed a notice of default without sending such notice to Plaintiff. (TAC ¶ 25.) Harari told Plaintiff that the default was due to an illegal transfer of title on the Subject Property, while the notice of default stated that default was due to failure to pay. (TAC ¶ 26.)

Plaintiff alleges that Harari and Shepherd worked together to prevent Plaintiff from obtaining refinancing of the Superior Defendants’ loan. (TAC ¶ 28.) Defendants foreclosed on the Subject Property based on these fraudulent notices of default. (TAC ¶ 44.) 

PROCEDURAL HISTORY 

On February 13, 2020, Plaintiff filed the Complaint against Matthew Shepherd, Superior Loan Servicing, and Does 1-10 asserting seven causes of action:

1.    Declaratory Relief;

2.    Contractual Breach of Good Faith and Fair Dealing;

3.    Accounting;

4.    Unfair Business Practices;

5.    Recission;

6.    Breach of Fiduciary Duty; and,

7.    Injunctive Relief.

On May 20, 2020, Plaintiff filed the First Amended Complaint against Shepherd, Superior Loan Servicing, Lou Brown, and Barry Harari asserting four causes of action:

1.    Wrongful Foreclosure;

2.    Breach of Good Faith and Fair Dealing;

3.    Unfair Business Practices; and,

4.    Declaratory Relief.

On December 29, 2020, Plaintiff filed the Second Amended Complaint against Shepherd, Superior, Brown, Harari, and Catamount Properties 2018, LLC (“Catamount”), asserting three causes of action:

1.    Fraud and Misrepresentation;

2.    Breach of Good Faith and Fair Dealing; and,

3.    Unfair Business Practices.

On June 8, 2021, Plaintiff filed the operative Third Amended Complaint against same Defendants asserting two causes of action:

1.    Fraud and Misrepresentation; and,

2.    Unfair Business Practices.

On December 1, 2021, Shepherd filed a Cross-Complaint against Plaintiff asserting ten causes of action:

1.    Fraud;

2.    Negligent Misrepresentation;

3.    Breach of Contract;

4.    Breach of Covenant of Good Faith and Fair Dealing;

5.    Breach of Fiduciary Duty;

6.    Negligence;

7.    Negligence Per Se;

8.    Indemnity;

9.    Contribution; and,

10.                   Declaratory Relief.

On September 21, 2022, default was entered against Plaintiff as to the Cross-Complaint.

On March 13, 2023, Plaintiff filed the instant Motion to Set Aside/Vacate Default.

On March 15, 2023, the Superior Defendants filed an Opposition.

On March 30, 2023, Plaintiff filed a Proof of Service as to the Reply. However, the Reply was not filed with the Court.

DISCUSSION 

                          I. CONTINUANCE

Plaintiff moves to set aside/vacate default. In their Opposition, the Superior Defendants raise concerns about the timeliness of the instant motion, as Plaintiff’s Counsel attests that she became aware of the default in October but failed to file the instant motion until five months later.

While the Court anticipates that Plaintiff addresses this argument in her Reply, the Court is not in possession of that Reply. The Court notes that a proof of service has been filed stating that the Reply was served on the Superior Defendants on March 30, 2023, but no Reply was filed with the Court at that time.

As the Reply is necessary for the Court’s consideration of this matter, the hearing on Plaintiff’s Motion to Set Aside/Vacate Default is CONTINUED for 14 days.

Plaintiff is to file the Reply with the Court within five days.

DATED: April 5, 2023

________________________________ 

Hon. John P. Doyle 

Judge of the Superior Court