Case Number: KC069327 Hearing Date: March 13, 2018 Dept: J

Re: Carlos Zuniga v. Olivia Nava, et al. (KC069327)

MOTION TO AMEND COMPLAINT

Moving Party: Plaintiff Carlos Zuniga

Respondents: Defendants, Jose Mares; Provident Title Company; and Ocwen Loan Servicing, LLC

POS: Moving not OK[1]; oppositions OK

Plaintiff alleges that on/about 10/2/07, he entered into a contract with his former landlord, Olivia Nava (“Nava”), in which Nava agreed plaintiff would take over ownership of the property located at 13637 Moccasin St. in La Puente (“subject property”) after he paid $10,000.00 and made all remaining monthly mortgage payments. Nava added plaintiff to the deed, and plaintiff made all mortgage payments from 10/2/07-6/14. During the time plaintiff was making payments, he obtained several loan modifications on the home with Nava’s permission. On/around June 2014, Nava went to the lender, Defendant Ocwen Loan Servicing, LLC (“Ocwen”), and told Ocwen to stop accepting payments from plaintiff. The loan subsequently went into default. On/about 1/17/17, Nava transferred plaintiff’s interest in the subject property to herself by forging plaintiff’s signature. Nava then executed a second quitclaim deed that day, in which she transferred the subject property to Defendant Jose Mares (“Mares”). Plaintiff claims that Nava’s purported sale of the subject property to Mares was done while plaintiff’s bankruptcy action was pending. The complaint was filed on 5/18/17. The First Amended Complaint was filed 5/23/17. On 6/19/17, plaintiff filed an “Amendment to Complaint,” wherein Merchant Bonding Company was named in lieu of Doe 1.

The Second Amended Complaint, filed 8/24/17, asserts causes of action against Nava, Mares, Luz Maria Aguilar, Barnaby S. Ly, Ocwen, Provident Title Company, Inc. (“Provident”), All Persons Unknown Claiming and Legal or Equitable Right, Title, Estate, Lien, or Interest in the Property Described in the Complaint Adverse to Plaintiff’s Title, or Clouding Plaintiff’s Title Thereto and Does 1-100 for:

1. Cancellation of Deed—Civil Code § 3412

2. Quiet Title—CCP § 761.020

3. Ouster

4. Trespass

5. Breach of Written Contract

6. Breach of the Covenant of Good Faith and Fair Dealing

7. Interference with Prospective Economic Advantage

8. Breach of Fiduciary Duty

9. Constructive Trust—Civil Code §§ 2223-2224

10. Resulting Trust

11. Money Had and Received

12. Violation of Government Code §§ 8206, 8202, 8211, 8214, et al.;

13. Violation of Business & Professions Code §§ 17200, et seq.

14. Injunction and Declaratory Relief

On 11/7/17, the court sustained Ocwen’s and Provident’s respective demurrers to the SAC without leave to amend. On 11/28/17, Nava’s default was entered. On 12/8/17, the court sustained Mares’ demurrer to the SAC without leave to amend.

A Case Management Conference is set for 3/13/18.

Plaintiff Carlos Zuniga (“plaintiff”) moves the court for an order granting him leave to file his proposed Third Amended Complaint (“TAC”) to add Merchant Bonding Company, Barringer Escrow and Daniel Wallace in as defendants and to add causes of action for aiding and abetting, unjust enrichment, civil theft pursuant to Penal Code § 496(c) and injunctive and declaratory relief.

CCP § 1005 NOTICE:

At the outset, the motion was filed 2/13/18 and mail-served 2/12/18. CCP § 1005(b) requires “all moving and supporting papers…[to] be served and filed at least 16 court days before the hearing…if the notice if served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California…”

The court notes that, while the motion was timely filed, it should have been mail-served no later than 2/11/18. Regardless, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion. [Citations.]” Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930. The court elects to rule on the merits of the motion.

REQUEST FOR JUDICIAL NOTICE:

Defendant Ocwen Loan Servicing, LLC’s (“Ocwen”) request for judicial notice (“RJN”) is granted in full.

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” CCP § 473(a)(1); and see § 576. A motion for leave to amend must (1) include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments, (2) state what allegations in the previous pleading are proposed to be deleted, if any, and where (by page, paragraph and line number) the deleted allegations are located, and (3) state what allegations are proposed to be added to the previous pleading, if any, and where (by page, paragraph, and line number) the additional allegations are located. California Rules of Court (“CRC”) Rule 3.1324(a). Additionally, a separate declaration must accompany the motion and must specify (1) the effect of the amendment, (2) the reason why the amendment is necessary and proper, (3) the time when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier. CRC Rule 3.1324(b).

The motion reflects insufficient compliance with CRC Rule 3.1324(a)(2)&(3). Counsel Phillip Myer’s (“Myer”) declaration also reflects non-compliance with subsection (b). Myer vaguely explains that “[t]he facts giving rise to the need for the amendment became known upon the filing of defendants’ demurrers and motion to strike the Second Amended Complaint, with requests for judicial notice, which provided documents and information previously unknown to Plaintiff” and that “[t]he request for this amendment could not be made earlier because Plaintiff never had an opportunity for any discovery. Plaintiff was not present when the documents stealing his house from him were forged. Plaintiff first learned that his house was stolen when he was served with papers demanding eviction. Plaintiff has no documents or witnesses in his possession or control disclosing any facts as to how the theft was accomplished.” (Myer Decl., ¶¶ 3 & 4). It is unclear what “documents and information” plaintiff is referencing; presumably, these are publicly recorded title documents which have been readily available to him.

Plaintiff also skirts over the fact that he seeks to assert causes of action against defendants that have already been dismissed (i.e., Ocwen and Provident Title Company [“Provident”] in the 7th and 13th causes of action and Jose Mares [“Mares”] in the 8th, 10th and 13th causes of action). On 11/7/17, the court sustained Defendants Ocwen’s and Provident’s respective demurrers to the Second Amended Complaint (“SAC”) without leave to amend. On 11/27/17, judgment was entered in favor of Ocwen. On 11/28/17, judgment was entered in favor of Provident. On 12/5/17, Ocwen filed and mail-served its “Notice of Entry of Judgment.” On 12/8/17, the court sustained Mares’ demurrer to the SAC without leave to amend. On 12/12/17, judgment was entered in favor of Mares. On 12/13/17, Provident filed its “Notice of Entry of Judgment;” it had been mail-served on 12/12/17. On 12/21/17, Mares filed his “Notice of Entry of Judgment;” it had been mail-served on 12/20/17. “Under CCP § 904.1(a), an appeal…may be taken ‘from a judgment.’” 13 Witkin, Cal. Proc. (2016) Appeal, § 95. While an order sustaining a demurrer as to all causes of action without leave to amend is not directly appealable, the judgment of dismissal that follows is immediately appealable. 5 Witkin, Cal. Proc. (2016) Pleading, § 997, citing Berri v. Superior Court (1955) 43 Cal.2d 856, 860. A trial court’s order dismissing an action is a final judgment. Chase v. Superior Court of Los Angeles County (1962) 210 Cal.App.2d 872.

Plaintiff’s jurisdictional deadline to file an appeal of the aforesaid judgments was “60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service,” as per CRC Rule 8.104(a)(1)(B), and these deadlines have since run.

A trial court has power to allow amendment of pleadings at any time before entry of judgment. Bank of America v. Superior Court (1942) 20 Cal.2d 697, 702. CCP § 1049 provides that “[a]n action is deemed to be pending from the time of its commencement until its final determination upon appeal or until the time for appeal has passed, unless the judgment is sooner satisfied.” “When, by lapse of time for appeal or other direct attack on the judgment (e.g., motion for new trial, motion to vacate) it becomes final, the cause is no longer pending and the court has no further jurisdiction of the subject matter.” 3 Witkin, Cal. Proc. (2016), Jurisdiction, § 328, citing Mason & Associates, Inc. v. Guarantee Savings & Loan Assn. of Livermore Valley (1969) 269 Cal.App.2d 132, 133.

The motion, then, is denied.

[1] The motion was filed 2/13/18 and mail-served 2/12/18; the motion was timely filed, but should have been mail-served no later than 2/11/18.