2017-00223865-CU-OR

Ndile George Njenge vs. Bank of America

Nature of Proceeding: Motion to Dismiss

Filed By: Gifford, Kaelee M.

This matter is continued on the Court’s own motion to 10/29/2018 at 02:00PM in this

department. If this date is not convenient that parties may meet and confer on a later
date and inform the court clerk of the new date before 4:00 p.m. on October 15, 2018.

Defendants Fay Servicing, LLC and PROF-2013-S3 Legal Title Trust, by U.S. Bank National Association, as Legal Title Trustee, erroneously sued as U.S. Bank, NA’s haas filed a Motion to Dismiss for failure to amend complaint within time permitted by the court. CCP 581(f)(2)

This matter was set on an order shortening time. The opposition was due October 11, 2018. On October 12, 2018, the opposition was filed. The opposition is not accompanied by any declaration. The opposition states that due to counsel’s mistake, inadvertence, surprise and excusable neglect, counsel failed to understand that “the option to file a Second Amended Complaint was the Court’s final ruling.”

On September 4, 2018, the Court’s tentative ruling was to sustain Defendants’ Demurrer without leave to amend. However at the hearing Plaintiff had retained an attorney who requested one additional chance to amend the causes of action. The Court Ruling plainly granted Plaintiff’s request, and required that plaintiff file and serve the Second Amended Complaint no later than September 14, 2018. (Gifford Decl. ¶ 2). According to CCMS, as of October 15 plaintiff has not filed a Second Amended Complaint, nor has he requested any extension from Defendant (Gifford Decl. ¶4-5)

The matter is being continued to allow the filing of counsel’s declaration under penalty of perjury setting forth the facts to support a finding of neglect for not having filed the SAC by September 14, 2018. Counsel shall file and serve his declaration on or before October 19, 2018. Opposition may be filed and served on or before October 24, 2018. The opposition may set forth any fees and expenses incurred in connection with the continuance of this motion and other expenses incurred by defendant in the event the court determines that relief should be granted based on the mandatory relief provisions of CCP 473(b), rather than excusable neglect. CCP 473(b) provides that the court shall order reasonable compensatory legal fees to be paid to opposing counsel upon granting of relief based on non-excusable attorney fault.

The minute order is effective immediately.