Tentative Rulings
Civil Tentative Rulings and Probate Examiner Recommendations are available below. All attempts possible are made to have the information on these pages updated by 3:00pm the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.
Civil Tentative Rulings: The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial. Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court and other parties by 4:00 p.m. today of their intention to appear for oral argument. The court's notice must be made by facsimile (fax) to 559-733-6774.
Probate Examiner Recommendations: For further information regarding a probate matter listed below you may contact the Probate Document Examiner at 559-730-5000 ext #1305; the Document Examiner (South County Justice Center ) at 559-782-3700 ext #2342. The Probate Calendar Clerk may be reached at 559-730-5000 Option 4, then Option 6.
Civil Tentative Rulings & Probate Examiner Recommendations
The Tentative Rulings for Tuesday November 23, 2021 are:
Re: Landin, Chris et al vs. Visalia Unified School District et al
Case No.: VCU 284264
Date: November 23, 2021
Time: 8:30 A.M.
Dept. 7-The Honorable Bret D. Hillman
Motions: Plaintiff’s Motion to Compel Further Responses to Interrogatories (Reserved Only)
Tentative Rulings: No documents have been filed with respect to this reserved date. The hearing will come off calendar.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Re: Gonzalez, Joel vs. First American National LLC
Case No.: VCU 288737
Date: November 23, 2021
Time: 8:30 A.M.
Dept. 7-The Honorable Bret D. Hillman
Motions: Plaintiffs’ Motion to Set Aside / Vacate Trustee Sale
Tentative Rulings: To deny Plaintiffs’ motion to set aside the trustee sale
Facts
Plaintiffs filed this lawsuit alleging a number of violations of state and federal statues relating to the foreclosure and sale of 1299 Lampe Street, Tulare, CA. (“Subject Property.”) Plaintiffs name Defendant First American National LLC as the current loan servicer and beneficiary of the loan and Defendant Mortgage Lender Services, Inc. as the current trustee of the loan.
Plaintiffs obtained two deeds of trust on the Subject Property simultaneously in 2006. In April 2021, a Notice of Default and Election to Sell was recorded in Tulare County. Thereafter, in July 2021, a Notice of Trustee Sale was recorded. On October 8, 2021, the property was foreclosed.
Plaintiff’s, in their complaint, pray for damages, civil penalties, an injunction regarding foreclosure activity, disgorgement, rescission, cancellation and other various forms of relief relating to the foreclosure and sale.
Plaintiffs, prior to Defendants’ first responsive pleading to this lawsuit, have now filed a “Motion to Set Aside the October 8, 2021 Trustee’s Sale and to Rescind/Vacate Any Trustee’s Deed Upon Sale Recorded.” Declarations of counsel and an “advocate representative” at counsel’s office have been filed in support of the motion. Documents attached to the complaint have been attached to the motion, without a declaration indicating they are true and correct copies or under judicial notice.
Analysis
The Court notes no proof of service of the complaint has been filed with the Court and the Court presumes, based on this, that service has not yet been perfected upon the Defendants.
The Court is unable to locate, and Plaintiff has provided no case or statute authorizing the filing of a motion prior to service of the complaint. The Court notes that CCP section 1013 subsections (a) and (c) reference the proper way for a party to serve documents. In both sections, the Code states that the papers shall be deposited in a post office (and the like) and must include the following:
(1) “addressed to the person on whom it is to be served,”
(2) “at the office address as last given by that person on any document filed in the cause,” and
(3) “served on the party making service by mail.”
In reviewing the plain language in (2) as mentioned above, if a party has not yet appeared in the case, there is technically no “office address as last given by that person” nor is there “any document filed [by that party] in the cause.”
Further, as a general rule, if a party has an attorney in the action or proceeding, notices and papers must be served on the attorney instead of on the party. See CCP section 1015; Cal Rules Ct, Rule 1.21(a). Here, as noted in Plaintiffs’ complaint, the two individual served with this motion, Marsha Townsend and Robert Van Sant, Jr. are alleged to be the agents for service of process. It is presently unknown if they are counsel and served properly with this Motion.
Plaintiff admits the lack of authority by stating “This motion will be made pursuant to the common law and this court’s inherent authority.” The motion is not filed as a preliminary injunction or temporary restraining order.
The motion, from the court’s perspective, seeks the relief sought in the complaint, but without a full trial on the merits. The motion seeks relief that the court may grant only upon summary judgment in favor of Plaintiffs. The motion seeks to show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
However, this motion does not conform to the procedural requirements of a motion for summary judgment, including the filing of a separate statement and noticing the motion 75 days before the hearing.
Additionally, a motion for summary judgment cannot be made until “after 60 days have elapsed since the general appearance in the action or proceeding against whom the motion is directed” absent permission of the Court. CCP section 437c(a)(1). As no general appearance has been made, the motion is untimely for this reason as well. No leave of court to file the motion was sought.
For these reasons, Plaintiff’s Motion to set aside the sale is denied.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.
Re: Flores, Gonzalo Zamora vs. Murillo, Alfonso Diaz
Case No.: VCL 187825
Date: November 23, 2021
Time: 8:30 A.M.
Dept. 7-The Honorable Bret D. Hillman
Motions: Attorney Rafael Carrillo’s Motion to be Relieved as Counsel for Plaintiff
Tentative Rulings: To deny, without prejudice, the motion to be relieved as counsel.
The Court notes the following documents filed:
- MC-051 Notice of Motion and Motion to Be Relieved as Counsel-Civil
- MC-025 – Attachment
- Exhibit A – text messages with translation
Counsel is directed to California Rule of Court 3.1362 which requires strict adherence to be relieved from counsel. Strict adherence did not occur based on what the Court has reviewed.
California Rule of Court 3.1362(b) requires that the motion to be relieved as counsel must be accompanied by a declaration on the Judicial Council’s Declaration in Support of Attorney’s Motion to be Relieved as Counsel- Civil Form MC-052. The MC-025 “declaration” is insufficient to comply with this rule.
An attempt to obtain a signed substitution of attorney as per CCP §284(1), and the indication in the moving attorney’s declaration that the client refused to so stipulate is a prerequisite under California Rule of Court 3.1362(c) before the Court can grant an attorney’s motion to be relieved as the attorney of record for a party. It is not clear from Exhibit A or the “declaration” that a signed substitution of attorney form was offered to Plaintiff.
Additionally, the declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). (italics added)
Next, there is no proof of service compliant with California Rule of Court 3.1362(d) and no declaration with respect to the current or last known residence or electronic mail address.
Last, the proposed order relieving counsel must be prepared on the Judicial Council’s Order Granting Attorney’s Motion to be Relieved as Council-Civil Form MC-053 and must be lodged with the court with the moving papers. See California Rule of Court 3.1362(e). No proposed order has been lodged.
Based on attorney Carrillo’s failure to comply with the requirements of California Rule of Court 3.1362(b), (d), and (e), his motion to be relieved as counsel for Plaintiff is denied without prejudice.
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.