David Fee v. Select Portfolio Servicing, Inc., et al.
Case No: 18CV01224
Hearing Date: Tue May 22, 2018 9:30

Nature of Proceedings: Motion Strike Portions of Plaintiff’s Complaint

Demurrer

(1) Demurrer of Defendants to Complaint

(2) Motion of Defendants to Strike Portions of Complaint

Attorneys:

For Plaintiff David Fee: In pro. per.

For Defendants Select Portfolio Servicing, Inc., and U.S. Bank National Association, as trustee for WaMu Mortgage Pass Through Certificate for WMALT Series 2007-OA3: Steven M. Daily, Rebecca L. Wilson, Kutak Rock LLP

Ruling

The Court continues the hearing on the demurrer and motion to strike of defendants to June 26, 2018.

Background

On March 9, 2018, plaintiff David Fee, then represented by counsel, filed his original complaint in this action against defendants Select Portfolio Servicing, Inc., (erroneously sued as Select Portfolio Services) and U.S. Bank National Association, as trustee for WaMu Mortgage Pass Through Certificate for WMALT Series 2007-OA3 (erroneously sued as U.S. Bank N.A.) (collectively herein, defendants) asserting five causes of action: (1) declaratory relief; (2) injunction; (3) quiet title to real property; (4) negligence; and (5) wrongful foreclosure.

On April 9, 2018, defendants filed their demurrer to the causes of action of the complaint and motion to strike portions of the complaint. In support of the demurrer and motion to strike, defendants also filed a request for judicial notice comprising 38 exhibits and 563 pages. This motion is now scheduled for hearing on May 22, with opposition due on May 9. (See Code Civ. Proc., § 1005, subd. (b).)

On May 1, 2018, this Court issued its order relating this case to Fee v. Washington Mutual Bank NA, Santa Barbara County Superior Court case number 1379769, one of the cases upon which defendants rely with respect to assertions of the bar of res judicata. Also on May 1, plaintiff filed a defective substitution of counsel by which plaintiff Fee would represent himself. The substitution was defective because it did not contain plaintiff Fee’s signature consenting to the substitution.

On May 8, 2018, the Court on its own motion ordered the substitution of attorney set aside as defective.

On May 9, 2018, plaintiff Fee filed a fully-executed substitution of attorney form by which Fee became self-represented. Also on May 9, Fee filed a request for a thirty-day extension of time to file opposition on the basis of his loss of counsel.

On May 16, 2018, plaintiff Fee filed another request for extension of time to file opposition essentially repeating the earlier request, with the proposed new hearing date of June 22 and opposition due on June 10.

Both requests for opposition refer to a notice and motion for sanctions in the amount of $10,500 against Fee and/or his counsel. Neither request refers specifically to the demurrer or to the motion to strike.

No motion for sanctions is now pending before the Court and the Court has no knowledge of this motion. No opposition has been filed to the pending demurrer or to the pending motion to strike, both set for this hearing on May 22.

The demurrer and motion to strike raise substantial issues for which plaintiff Fee should be permitted a reasonable opportunity to respond. The substitution of counsel when opposition was due is a sufficient impediment to filing timely opposition to warrant continuing these motions. The Court strongly advises that plaintiff Fee obtain legal advice in responding to these motions. The Court will continue the hearing on the demurrer and motion to strike to June 26, 2018. Opposition must be filed and served on or before June 13, 2018.