Case Number: BC529821 Hearing Date: June 09, 2014 Dept: 34

Moving Party: Plaintiff Anthony Caldwell

Resp. Party: None

Plaintiffs’ motion to consolidate BC529821 and 13F10299 is DENIED.

PRELIMINARY COMMENTS:

As indicated below, this motion seems to lack virtually every indicia of a proper motion:

· it does not include a proper notice of motion;
· the declaration is unsigned;
· plaintiff has presented no admissible evidence;
· the proof of service is unsigned;
· and plaintiff has failed to comply with the California Rules of Court

The Court also notes that the address listed for plaintiff’s counsel on the pleading is not the address listed for counsel with the State Bar.

Given the above, the Court would like to hear from plaintiff’s counsel why it should not, on its own motion, impose sanctions against plaintiff’s counsel.

BACKGROUND:

Plaintiff commenced this action on 12/9/13 against defendants (1) to vacate foreclosure sale; (2) for violation of Bus. & Prof. Code § 17200; and (3) for violation of duty of reasonable care regarding modification. Plaintiff obtained a loan in 2005 but fell behind on his mortgage payments in 2009. (Compl., ¶ 6.) Plaintiff began a loan modification program in 2011 with BAC Loan Servicing Inc. (Ibid.) Despite this, Bank of America proceeded with foreclosure in August 2012. (Ibid.) Plaintiff alleges that, during the modification process with BAC, their personnel deliberately destroyed documents or claimed they did not receive them as part of a plan to deny the modification and seize plaintiff’s home. (Id., ¶ 7.)

On 4/2/14, the Court found that this action and 13F10299 are related cases.

ANALYSIS:

A noticed motion to consolidate must: (1) list all of the named parties in each case, the names of those who have appeared, and the names of their respective attorneys of record; (2) contain the captions of all the cases sought to be consolidated, with the lowest numbered case first; and (3) be served on all attorneys of record and all nonrepresented parties in all of the cases sought to be consolidated, and a proof of service must be filed as part of the motion. (Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2013) ¶ 12:355 [citing Cal. Rules of Court, rule 3.350(a)].)

The instant motion does not include a proper notice of motion. (See Code Civ. Proc., § 1010; Cal. Rules of Court, rule 3.1110.) The motion may be denied for this reason alone.

The motion does not provide the names of the attorneys of record for all parties.

The motion does not include proper proof of service showing that all attorneys of record were served. Proof of service by mail or facsimile must be shown by an affidavit or certificate. (Code Civ. Proc., §1013a.) The attached proof of service fails to provide the name of the person making the service and is not signed under penalty of perjury. Therefore, it cannot be determined whether all parties were served with the instant motion. Because no responsive papers have been filed, it may be assumed that the other parties were not properly served with this motion. The motion may be denied for this reason.

Plaintiff fails to provide admissible evidence in support of the instant motion. The Caldwell declaration is not signed under penalty of perjury. There is no showing as to whether the consolidation will delay the trial or make it too confusing, or whether it would adversely affect the rights of any party. No responsive documents have been filed. Since it is not clear whether the motion has been properly served, the court cannot determine whether defendants’ silence is because of lack of opposition, or lack of knowledge of this motion.

Lastly, the Court notes that plaintiff has failed to comply with CRC 3.1110(f).

Plaintiff’s motion to consolidate is DENIED.