Case Name:??? B Repollo, et al. v. Nationstar Mortgage, LLC, et al.?????? ?????????????
Case No.:??????? 2016-CV-300236
Motion for Reconsideration by Plaintiffs B Repollo and Rodolfo Repollo
Factual and Procedural Background
This is a wrongful foreclosure action.? Plaintiffs B Repollo and Rodolfo Repollo (collectively, ?Plaintiffs?) (self-represented) were owners of real property located at 3814 Meadowlands Lane in San Jose, California (?Subject Property?).? (First Amended Complaint [?FAC?] at ? 1.)? On November 15, 2013, defendant Nationstar Mortgage, LLC (?Nationstar?) became the successor in interest of the Note and Deed of Trust for the Subject Property.? (Id. at ? 4.)? On January 14, 2015, without notice to Plaintiffs, Bank of New York Mellon received an assignment of the Deed of Trust on the Subject Property.? (Ibid.)
On August 21, 2014, defendants served Plaintiffs with a Notice of Default with respect to the Subject Property.? (FAC at ? 7.)? Plaintiffs allege that defendants never contacted or communicated with them to discuss options to avoid foreclosure.? (Id. at ?? 7, 8, 16, 17.)? Furthermore, defendants, without publication of a Notice of Trustee Sale, secretly and improperly conducted a trustee?s sale on the Subject Property.? (Id. at ? 9.)
On September 22, 2016, Plaintiffs filed a Complaint against defendants setting forth causes of action for: (1) violation of Civil Code section 2923.5; (2) violation of Civil Code section 2924f; (3) violation of Business and Professions Code section 17200; and (4) declaratory relief/injunctive relief.
On December 19, 2016, Nationstar filed an answer to the Complaint alleging various affirmative defenses.
On February 10, 2017, Nationstar filed a motion for judgment on the pleadings to the Complaint on the ground that each claim fails to state a cause of action.? (Code Civ. Proc., ? 438.)? The Court granted the motion to the first cause of action without further leave to amend.? The motion was granted as to the remaining claims with leave to amend.
On June 16, 2017, Plaintiffs filed the operative FAC alleging causes of action for: (1) vacate and set aside the trustee sale; (2) violation of Civil Code section 2924f; (3) violation of Business and Professions Code section 17200; and (4) declaratory relief/injunctive relief.
On July 17, 2017, Nationstar filed an answer to the FAC alleging various affirmative defenses.
On July 17, 2017, Nationstar filed a motion for judgment on the pleadings to the FAC on the ground that each claim fails to state a cause of action.? The Court, on its own motion, struck the first cause of action on the ground that Plaintiffs did not have permission to amend and file a claim to vacate and set aside the trustee sale.? The Court granted the motion without leave to amend with respect to the remaining claims.? Nationstar filed a Notice of Entry of Order on September 25, 2017.
Motion for Reconsideration ?
Currently before the Court is Plaintiffs? motion to reconsider the Order granting the motion for judgment on the pleadings without further leave to amend.? (Code Civ. Proc., ? 1008, subd. (a).)? Nationstar filed written opposition along with a request for judicial notice.? Plaintiffs filed reply papers.
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Request for Judicial Notice
Nationstar?s request for judicial notice is GRANTED.? (See Evid. Code, ? 452, subd. (d); Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [court may take judicial notice of its own file].)
Legal Standard
Code of Civil Procedure section 1008 represents the Legislature?s attempt to regulate what the Supreme Court has referred to as ?repetitive motions.?? (See Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 885.) Motions for reconsideration are regulated by section 1008, subdivision (a), which requires that any such motion be (1) filed within 10 days after service upon the party of written notice of entry of the order of which reconsideration is sought, (2) supported by new or additional facts, circumstances or law, and (3) accompanied by an affidavit detailing the circumstances of the first motion and the respects in which the new motion differs from it.? (Ibid.)
Procedural Grounds
A motion for reconsideration must be accompanied by a declaration from the moving party stating: (1) what application was made previously; (2) when and what judge the application was made; (3) what order or decisions were made; and (4) what new or different facts, circumstances or law are claimed to be shown.? (Code Civ. Proc., ? 1008, subd. (a); see Branner v. Regents of Univ. of Calif. (2009) 175 Cal.App.4th 1043, 1048 [motion filed and served without supporting affidavit was invalid].)
Here, Plaintiffs submit a signed declaration in support of the motion.? As a threshold matter, the declaration is not admissible as it is not signed under penalty of perjury.? (See Code Civ. Proc., ? 2015.5 [stating that a declaration submitted in a law and motion matter must be signed under penalty of perjury]; Kulshrestha v. First Union Comm. Corp. (2004) 33 Cal.4th 601, 611-612 [stating that failure to comply with section 2015.5 renders a declaration inadmissible].)? In addition, the declaration does not identify the previous application, the judge who heard the previous application, or the final decision rendered by the court.? Finally, Plaintiffs? declaration provides the following facts:? (1) on or about April 14, 2011, there was only the assignment of deed of trust/mortgage on the Subject Property; and (2) on or about August 26, 2014, a Notice of Default was issued by an unknown and improper entity.? (See Plaintiffs? Declaration at ?? 2-3.)? Plaintiffs however fail to demonstrate whether these statements constitute new and different facts to support their motion for reconsideration.? Accordingly, Plaintiffs? declaration does not meet the statutory requirements for reconsideration under Code of Civil Procedure section 1008.
New and Different Facts
The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.? (Gilbred v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Super. Ct. (1992) 2 Cal.App.4th 1338, 1342.)
The burden under section 1008 ?is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.? ?(New York Times Co. v. Super. Ct. (2005) 135 Cal.App.4th 206, 212-213.) ?The moving party must present ?a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.?? (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)
Here, Plaintiffs fail to provide any new facts, circumstances, or law to support a motion for reconsideration.? Instead, Plaintiffs argue that the FAC has been properly pled and, to the extent that there are any pleading deficiencies, that they be given further leave to amend.? The Court however has already considered and rejected Plaintiffs? previous contentions made in opposition to the motion for judgment on the pleadings.? Such arguments do not constitute new and different facts and thus cannot support a motion for reconsideration.
Court?s Inherent Authority
Plaintiffs also request that the Court exercise its inherent authority to reconsider its order.? The statute governing reconsideration generally allows courts to act sua sponte to enter a different order ?at any time? when there has been a change in the law. ?(Code Civ. Proc., ? 1008, subd. (c).)? Moreover, even in the absence of a change in the law, the court has inherent power to reconsider its own interim orders at any time on its own motion (sua sponte).? (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 (Le Francois); Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.)? As the Le Francois court stated:
?We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling?We agree that it should not matter whether the ?judge has an unprovoked flash of understanding in the middle of the night? or acts in response to a party?s suggestion. ?If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.?
(Id. at p. 1108.)
Here, Plaintiffs have not presented any arguments that would require the Court, on its own authority, to reconsider its order on the motion for judgment on the pleadings. For example, Plaintiffs argue that sufficient facts have been pled to support the first cause of action.? The Court however disposed of the first cause of action on the motion for judgment on the pleadings to the Complaint on the ground of res judicata.? (See Request for Judicial Notice at Exhibit 3.)? Plaintiffs fail to address the res judicata argument and thus the Court is not inclined to reconsider its ruling on that issue.? Finally, Plaintiffs urge this Court to allow for further amendment and thus have included a proposed Second Amended Complaint (?SAC?).? (See Plaintiffs? Amended Declaration at Exhibit 3.)? However, the proposed SAC is almost identical to the FAC which has been considered and rejected by the Court.? Therefore, Plaintiffs do not state any valid cause of action in support of the SAC.
Accordingly, the Court declines to exercise its inherent authority to reconsider its order on the motion for judgment on the pleadings to the FAC.
Disposition
The motion for reconsideration is DENIED.
The Court will prepare the Order.