Case Number: KC069027 Hearing Date: May 24, 2018 Dept: J

Re: Tina M. Arellano v. Select Portfolio Servicing, Inc., et al. (KC069027)

MOTION FOR LEAVE TO FILE SECOND AMENDED CLASS ACTION COMPLAINT

Moving Party: Plaintiff Tina M. Arellano

Respondent: Defendant Select Portfolio Servicing, Inc.

POS: Moving OK; Opposing OK

This is a wrongful foreclosure action involving plaintiff’s residential property located at 4805 North Darfield Avenue in Covina. The complaint was filed on 1/23/17. The First Amended Complaint, filed 7/24/17, asserts causes of action against Defendants Select Portfolio Servicing, Inc., Quality Loan Service Corporation and Does 1-50 for:

Violation of § 2923.7

Wrongful Foreclosure

On 2/24/17, the court related this case to Case No. KC067552. On 6/13/17, the court granted Defendant Select Portfolio Servicing, Inc.’s motion for judgment on the pleadings as to the first, third and fourth causes of action, without leave. A court trial is set for 8/7/18.

Plaintiff Tina M. Arellano (“plaintiff”) moves the court, per Rules of Court (“CRC”) Rule 3.1324, for leave to file her proposed Second Amended Class Action Complaint. Plaintiff seeks to eliminate a defendant (i.e., Quality Loan Servicing Corporation) and to include class action allegations.

REQUEST FOR JUDICIAL NOTICE:

At the outset, the court notes that Defendant Select Portfolio Servicing, Inc.’s (“SPS”) opposition references an “RJN.” The court, however, is not in receipt of a request for judicial notice, nor is there any indication in the court’s records that this document was ever filed.

“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. 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).

“While a motion to permit an amendment to a pleading to be filed is one addressed to the discretion of the court, the exercise of this discretion must be sound and reasonable and not arbitrary or capricious. Richter v. Adams [(1941)] 43 Cal.App.2d 184, 187; Eckert v. Graham [(1933)] 131 Cal.App. 718, 721. And it is a rare case in which ‘a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.’ Guidery v. Green [(1892)] 95 Cal. 630, 633; Marr v. Rhodes [(1900)] 131 Cal. 267, 270. If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. Nelson v. Superior Court [(1950)] 97 Cal.App.2d 78; In re Estate of Herbst [(1938)] 26 Cal.App.2d 249; Norton v. Bassett [(1910)] 158 Cal. 425, 427.” Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.

“Of course, if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend. (5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 1125, p. 541.)” Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.

First, it is unclear to the court how defendant’s mere identification of Sherry Benight as its person most knowledgeable resulted in plaintiff’s counsel, Sanford Parke’s, learning that there were “numerous cases filed against SPS alleging violations of California Civil Code section 2923.7” such that a class action was warranted. (Parke Decl., ¶ 6). The deposition of SPS’ person most knowledgeable apparently has not been taken, to date. (Opposition, 3:17-19).

Additionally, it would appear that the proposed amendment would be futile on ascertainability (i.e., for a class defined as “[a]ll persons residing in the State of California who requested and were not provided with a Single Point of Contract in connection with a foreclosure prevention alternative by Select Portfolio Servicing, Inc. in connection with residential real property that resulted in foreclosure”) and manageability grounds.

The granting of this motion, moreover, would be prejudicial to SPS. Plaintiff previously filed a mortgage foreclosure action in Case No. KC067552 against SPS on 3/30/15, which she dismissed without prejudice on 3/30/16. This instant case has been pending since 1/23/17. SPS represents that in 3/17, both parties propounded written discovery, and that in 11/17, plaintiff propounded her last set of discovery, responses to which were served in 1/18. (Opposition, 3:12-15). Trial is set for 8/7/18.

The motion is denied.