Case Number: BC588746 Hearing Date: June 16, 2016 Dept: 34

SUBJECT: Motion for summary judgment / adjudication

Moving Party: Defendant Select Portfolio Servicing (“defendant” or “SPS”)

Resp. Party: None

Defendant’s Motion for Summary Judgment is GRANTED.

PRELIMINARY COMMENTS:

This wrongful foreclosure actions was filed by a pro per plaintiff. The Court understands the difficulties a self-represented plaintiff has with the intricacies of litigation. Nonetheless, it appears to the Court that plaintiff has abandoned her action. Plaintiff failed to appear at the CMC on November 3, 2015. On January 15, 2106, the Court granted defendant’s demurrer to the third cause of action with leave to amend; plaintiff chose not to file a First Amended Complaint. Plaintiff did not appear, or otherwise oppose defendant’s January 29, 2016 ex parte to continue the trial date. And as indicated above, this Motion for Summary Judgment is unopposed.

Nonetheless, because this motion was not timely served, the Court is required to take the motion off-calendar.

BACKGROUND:

Plaintiff commenced this action on 7/21/15 against defendants for: (1) violation of Civil Code section 2923.5; (2) declaratory relief; and (3) quiet title. Plaintiff alleges that in March 2006 she executed and delivered to SPS a written promissory note in the amount of $1,036,000.00. (Compl., ¶ 3.) Plaintiff also delivered a deed of trust. (Id., ¶ 6.) On 4/4/15, defendants recorded a notice of default. (Id., ¶ 7.) Defendants recorded a notice of trustee’s sale on 7/17/15. (Id., ¶ 8.) Plaintiff alleges that defendants failed to contact plaintiff to explore options to avoid foreclosure. (Id., ¶¶ 8-11.)

On 1/15/16, the Court sustained defendant’s demurrer to plaintiff’s third cause of action. Though the Court granted leave to amend, plaintiff has not filed an amended complaint.

ANALYSIS:

Defendant’s motion was not timely served. “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. . . .” (Code Civ. Proc., § 437c(a)(1).) “The court may not shorten the 75-day notice period without the parties’ consent.” (Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2015) ¶ 10:80.5 [italics in original].) “Where the moving party notices the hearing in less than the required time, notice must begin anew. The court cannot cure this defect by continuing the hearing for the missing number of days.” (Id., ¶ 10:80.6 [italics in original].)

The hearing on this motion is set for 6/16/16. Therefore, service by mail had to have been made by 3/28/16. The instant motion was served by mail on 4/1/16 – 76 days before the hearing date. Therefore, the Court takes the motion OFF CALENDAR.