Ali Djowharzadeh vs. Bank of New York Mellon

Motion to Consolidate Cases

Cal. Super. - 4th Dist.August 3, 2017

OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo Mark Gomez, Esq. (SBN 289164) EL EE THERESA FILED Ashlie Fox, Esq. (SBN 294407) Superior Court of California, GOMEZ & SIMONE, APLC County of Orange 3055 Wilshire Blvd., Suite 1200 08/22/2017 at 11:06:00 Au Los Angeles, CA 90010 Clerk of the Superior Court Telephone (855) 219-3333 By Danielle Jurado, Deputy Clerk Facsimile (818) 574-6730 info@gomezsimonelaw.com Attorneys for Plaintiffs, ALI DIOWHARZADEH and MAHRAZ DJOWHARZADEH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER ALI DJOWHARZADEH, an individual; and | Case No: 30-2017-00935580-CU-OR-CJC MAHRAZ DJOWHARZADEH, an individual Assigned for all purposes to: Hon. Mary F. Schulte Plaintiffs, NOTICE OF MOTION AND MOTION VS. TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL BANK OF NEW YORK MELLON FKA DETAINER PROCEEDINGS; THE BANK OF NEW YORK as Trustee for the Certificate Holders of the CWALT, INC. ALTERNATIVE LOAN TRUST2007-0A6 MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-0A6; SHELLPOINT MORTGAGE SERVICING; MTC FINANCIAL INC. dba TRUSTEE CORPS; and DOES 1 through 20, inclusive, MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER. Date: September 28, 2017 Time: 1:30 pm Dept.: C-21 Defendants. Reservation #: 72647670 [Complaint Filed: August 03, 2017] -1- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Plaintiffs ALI DJOWHARZADEH and MAHRAZ DJOWHARADEH (“Plaintiffs”), by and through their counsel, submit this MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS, which is set for September 28, 2017, or as soon thereafter as the matter may be heard in Dept. C21 at 1:30 pm, of the above entitled court located at 700 W. Civic Center Drive, Santa Ana, CA 92701. A notice of related cases was filed in Orange County Superior Court on August 21, 2017, and now Plaintiffs (“Moving Parties”) seek to consolidate the two related cases: (1) THE BANK OF NY MELLON vs. ALI DJJOWHARZADEH et al. Case No. 30-2017-00930920-CL-UD-HNB, limited civil action for Unlawful Detainer, (hereinafter “UD Case”) composed of parties including Plaintiff, The Bank of NY Mellon FKA, the Bank of New York, as Trustee, its Assignees and/or Successors, and Defendants Ali Djowharzadeh and Mahraz Djowharzadeh; Plaintiff’s counsel of record is Rebecca L. Lang, Esq., whereas Defendant's counsel of record is Peter Roble, Esq. (2) ALI DJOWHARZADEH et al. vs. THE BANK OF NY MELLON, Case No. 30-2017-00935580-CU-OR-CJC, unlimited civil action sounding in Quiet Title, Wrongful Foreclosure, and Intentional Misrepresentation, among other things, (hereinafter “Civil Case”) composed of parties including Defendants The Bank of NY Mellon, as trustee; Shellpoint Mortgage Servicing, MTC Financial Inc. dba Trustee Corps., and Plaintiffs Ali Djowharzadeh and Mahraz Djowharzadeh; Plaintiffs’ counsel of record is Ashlie Fox, Esq. Defendants’ counsels are unknown at this time. This Motion to Consolidate is made because consolidation of the UD CASE and Civil Case would (1) avoid repetitive trials of the same common issues and thus avoid 2- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS O© © NN ON wn A Ww N e N O N N N N = 2 R E 8d 8B H E E E R E B E B E D R D E E E N N 0 unnecessary costs and delays to the court and the parties, and (2) avoid the substantial risk of inconsistent adjudications and irreparable harm to the Moving Parties, as further detailed in the attached Memorandum of Points and Authorities below. This motion is further made on the grounds that the unlawful detainer (limited action) court has no jurisdiction to hear or determine the issues of title which exist in this case (unlimited civil) pursuant to CCP §§ 85 and 86, and which are critical to reach a just outcome in the Unlawful Detainer action. Moving Parties hereby also request that, in the alternative, this court stay proceedings in the UD Case pending the outcome of the instant Civil Action. The allegations and evidence submitted in the present case shows that tifle to the Subject Property is directly at issue in both cases. The UD Case must be either consolidated with the Civil Case or stayed to avoid gross injustice and irreparable harm to the Moving Parties, as Moving Parties would be evicted from their hist as the result of an illegal foreclosure sale and while the Civil Case is still pending. This Motion shall be supported by the Memorandum of Points and Authorities, declaration of Ashlie Fox, Esq., as well as all argument and supporting evidence presented at the time of hearing. Dated: August 21, 2017 GOMEZ & SIMONE, APLC Ashlie E. Fox, Esq. Attorneys for Plaintiffs, Ali Djowharzadeh and Mabhraz Djowharzadeh 3 NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The instant dispute involves the right to possession and title to the property located at, 26201 Mount Diablo Rd., Laguna Hills, CA 92653 (“Subject Property”). Moving Parties have resided there since October of 2002, when they purchased the Subject Property as their principal residence. Moving Parties now request that this court transfer and consolidate the related Unlawful Detainer Action (“UD Case’), with the instant Civil Action (“Civil Case”) as there are common questions of law and fact present in both cases, common parties, and the issue of the right to title and possession is so critical to both cases that they can only be determined in the present Civil Case. A notice of related cases was filed in both the UD Case and Civil Case on August 21, 2017. Specifically, the fundamental issue of Moving Parties’ right to title and possession of the Subject Property is also an essential element of Moving Parties’ defense in the UD Case. Likewise, title to the Subject Property is directly at issue in the instant Unlimited Civil Action. Moving Parties’ Civil Action alleges causes of action for 1.) Quiet Title, 2.) Wrongful Foreclosure, 3.) Violations of the Homeowner Bill of Rights, 4.) Unfair Competition Laws, 5.) Promissory Estoppel, 6.) Intentional Infliction of Emotional Distress, 7.) Negligence, 8.) Intentional Misrepresentation, and 9.) Slander of Title. The complaint in the Civil Case alleges that Defendants, Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificate Holders of the CWALT, INC. Alternative Loan Trust 2007-0A6 Mortgage Pass-Through Certificats, Series 2007-0A6 (“NY Mellon” or “Defendant”), ShellPoint Mortgage Servicing (“ShellPoint”), and MTC Financial Inc. dba Trustee Corps (“MTC”) engaged in a fraudulent scheme designed to induce Plaintiffs to believe that they would be given a good-faith loan modification review with the overall purpose that the home would be sold 4- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo at foreclosure proceedings. See Compliant (“Compl.”) {1-3. In addition, Plaintiffs further alleged that the foreclosure sale that occurred on May 05, 2017was initiated by the wrong trustee in violation of Civil Code § 2934a, rending the foreclosure sale void and likewise, Defendant, NY Mellon's title to the Subject Property void. See Cal. Civil Code § 2934a; Dimock v. Emerald Props. LLC (2000), 81 Cal. App4th 868,876; Pro Value Properties, Inc. v Quality Loan Servicing Corp. (2009), 170 Cal. App.4" 579, 583. Thus, should moving parties be successful in the instant Civil Case, Defendant, NY Mellon’s alleged rights to the Subject Property would be extinguished. However, due to the Summary Nature of Unlawful Detainer proceedings, the UD Case will be concluded long before the trial will be heard in the Civil Case. In other words, Plaintiffs would be forcibly removed from the Subject Property even if they prevail on the merits; a result that is patently unjust. Additionally, a judgment in the UD Case may preclude Defendants’ claims of title and ownership in the related Civil Action. See Malkosie v. Option One Mortg. Corp., 188 Cal. App.4th 968, 974 (2010); Seidell v. Anglo-California Trust Co., 55 Cal.App.2d 913, 921-22 (1942). Currently, a trial for the UD Case has been scheduled for August 30, 2017 at 9:00 am in Dept. H10 of the Harbor Justice Center. See Declaration of Ashlie Fox, Esq. In the alternative should this court find that a consolidation of the actions is not warranted, this court has the authority to stay proceedings pursuant to CCP § 526 because both the UD Case and the instant Civil Case have common questions of law and fact that are directly related to the ownership of the Subject Property. It would be in the interest of justice if this court stayed proceedings because Plaintiffs would be precluded from fully litigating their substantial claims of Quiet Title, Wrongful foreclosure, Intentional Misrepresentation, among others, in the UD Case, all of which would render Defendant’s title void. It has been well settled that litigation of title is outside the scope of unlawful detainer proceedings, yet Moving Parties would be precluded from litigating these title -5- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo issues in the Civil Case should the court in the UD Case rule in favor of WELLS. See Malkoskie v. Option One Mortg. Corp., (2010) 188 Cal. App.4th 968, 974; Seidell v. Anglo-California Trust co., (1942) 55 Cal.App.2d 913, 921-922; See Also Vella vs. Hudgens (1977), 20 Cal.3d. 251, 256 [the Supreme Court acknowledge the decisional law holding that subsequent fraud or quiet title suits founded upon allegations of void trustee’s sale are barred by the prior unlawful detainer judgment] [emphasis added]. Therefore, good cause exists to grant Moving Parties’ motion to Consolidate and/or Stay Unlawful Detainer Proceedings because Movants will otherwise not have an opportunity to rightfully defend their title interest in the UD Case. Whereas, consolidating the actions, or staying the UD Case, would allow this court to determine Moving Parties right to title before a judgment is summarily rendered against them in the UD Case. II. STATEMENT OF FACTS Plaintiffs purchased the Subject Property from William and Susan K. Schanz on October 14, 2002. Compl., 9 & Ex. A. On or around March 22, 2007, Plaintiffs executed a deed of trust with lender Countrywide Bank FSB, which listed ReconTrust Company, N.A as trustee for the instrument. Compl., {10 & Ex. B. On or about April 25,2011, an Assignment of Deed of Trust was recorded, transferring the interest in the Deed of Trust to BNY. Compl., {11 & Ex. C. On or about October 31, 2011, Defendants caused a Notice of Default to be recorded against the Subject Property. Compl., 12 & Ex. D. On or about November 2, 2016, Defendants caused a Notice of Trustee’s Sale to be recorded against the Subject Property. Compl., 13 & Ex. E. The Notice of Trustee’s Sale was prepared by Defendant MTC as Trustee. Id. -6- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo After facing health issues, Plaintiffs applied for a loan modification to help make the mortgage payments. Compl., J 14. Plaintiffs submitted their complete loan modification application prior to February 13, 2017. Id. On or about February 13, 2017, ShellPoint sent Plaintiffs a letter confirming its receipt of Plaintiffs’ complete loan modification application. Compl., 15 & Ex. F. ShellPoint also promised not to foreclose while the review process was pending. Id. According to the letter: “ShellPoint Mortgage Servicing (“ShellPoint”) has received your complete request for a loss mitigation program. We are currently reviewing the package to determine if the referenced loan qualifies for one of our programs. We will contact you if we need additional information or, if during the evaluation process, we determine your package to be incomplete. The evaluation process will not be able to proceed until we receive the required information.” Compl. Ex. F. Plaintiffs never received a written determination to their complete loan modification submitted on or around February 13, 2017. Compl., 16. However, in or around April 2017, while the review process was still underway, Defendant ShellPoint requested that Plaintiffs submit another loan modification application. /d. Up through May 2017, ShellPoint, by and through its representative Michael Osgood (“Mr. Osgood”), asked Plaintiffs for more documents in support of their loan modification application. Compl., 17. On April 29, 2017, Plaintiffs complied with all of the requests for information that ShellPoint propounded. Compl., { 18. This included a Request for Transcript of Tax Return, also known as form 4506-T, a Social Security Benefit Statement, a Homeowners Association Quarterly Statement, and a Dodd-Frank Certification. Id. These documents were received prior to the foreclosure date, as requested. Id. On May 3, 2017 at approximately 9:05 a.m., Plaintiff Ali Djowharzadeh called Mr. Osgood at ShellPoint. Compl., 19. Mr. Osgood advised that “if he needed anything else, he would let them know.” Id. Mr. Osgood never advised that any -7- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo additional documents were needed and as such, Plaintiffs’ application was complete as of May 3, 2017. Id. Mr. Osgood represented to Plaintiffs that the foreclosure sale would be postponed because the loan modification process was still underway. Id. However, on May 5, 2017, the Subject Property was sold at auction back to the beneficiary, BNY. Compl., {20 & Ex. G. To make matters worse, the Notice of Trustee’s Sale and Trustee’s Deed Upon Sale was executed by Defendant, MTC who was not the duly appointed trustee under the Deed of Trust, rending said documents void. Compl, {38-41 & Ex. B. III. ARGUMENT A. The Court Has Authority To Consolidate And/Or Relate The Actions. A case 1s related to another case if the actions both “involve claims against, title to, possession of, or damages to the same property.” California Rules of Court, Rule 3.300(a). Furthermore, “[a] judge may, on motion, transfer an action or actions from another court to that judge’s court for coordination with an action involving a common question of fact or law within the meaning of Section 404...The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.” CCP § 403. The courts have the authority to deem cases pending in “one” superior court related, “If all the related cases have been filed in one superior court, the court, on notice to all parties, may order that the cases, including probate and family law cases, be related and may assign them to a single judge or department.” CRC 3.300 (h)(1). Further, Courts may consolidate related actions according to California Code of Civil Procedure section 1048: When action involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters at issue in the actions; -8- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. Where a tenant's independent civil suit raises title issues, courts may order it consolidated with a simultaneously pending unlawful detainer. See, Wilson v Gentile (1992) 8 Cal. App. 4th 759, 761. This is because, if the tenant prevails on a claim of title, it will defeat the landlords right to recover possession of the premises. Freidman, Garcia & Hagarty Landlord Tenant 8:409.1 (The Rutter Group (2002). A full trial should be allowed where complex issues of title or possession cannot be fairly litigated in a summary proceeding. See, Greenhut v. Wooden (1982) 129 Cal App. 3d 64, discussed in detain infra. The UD Case and the instant Civil Case are both pending in the Superior Court of for the county of Orange and therefore are pending in ‘one’ superior court pursuant to CRC 3.300 (h)(1). The cases are also related under the California Rules of Court because both actions involve claims to title and possession the same Subject Property (26201 Mount Diablo Rd., Laguna Hills, CA 92653). Indeed a Notice of Related cases has already been filed and served to all parties. This court has the authority to deem both the WF and UD Cases related and consolidate the actions. The instant case is ripe for consolidation with the UD Case as the criteria for consolidation are clearly met pursuant to CRC 3.3000(a) and CCP § 403. The Moving Parties are in imminent danger of being forcibly removed from the Subject Property without the opportunity to bring forth their claims of the invalidity of NY Mellons title in the related Unlawful Detainer Action because complicated issues of title cannot be litigated in unlawful detainer proceedings. Thus, Moving Parties request would not only avoid a grave injustice upon the, but also avoid the very real possibility of inconsistent rulings between UD Case and the instant Civil Case. B. Complex Issues Of Title Are Not Appropriately Tried In An Unlawful Detainer Proceeding And Should Be Tried In The Instant Case First. 9. NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo In J. W. Greenhut v. Wooden (1982) 129 Cal. App. 3d 64, the Appellate Court - Second District, in reversing a trial court's determination to disallow an issue of title in an unlawful detainer action, noted: "[A]lthough it is rare that title can be tried in such an action, there are a few exceptions." Id. at 787. The court in Greenhut, took judicial notice of two (2) superior court cases apparently pending in two different courts, involving title to the property from which the alleged "owner" sought to evict tenants in possession. Those cases dealt with claims of title, option agreements, rights to purchase, claims for rescission, conversion, breach of contract, unjust enrichment and constructive trust. Notwithstanding the pendency of those actions, upon motion of the "landlord," the trial court prevented any evidence asserting claims to title. By doing so, the court limited the trial to a straight unlawful detainer action, finding, among other things, that a "lease" had expired and that the "landlord" was entitled to damages and possession. Greenhut, at 788. The court went on to note that, given the pendency of an action challenging the "landlord's" title, the most judicious approach by the court would have been a consolidation of the cases, so that the issues could be properly tried. The court found that the "danger" in not permitting the tenant to raise the issue of title is that his claim might "be adversely and finally determined without a hearing." The appellate court reversed the trial court and found that the trial court erred and that trying title in the unlawful detainer action would have prolonged the trial, but nonetheless the "law as well as equity demanded such a trial in view of the trial court's refusal to consolidate." Herein, by the action of Plaintiffs in their Civil Case, the issue of ownership is appropriately at issue before this court, and ought not be summarily determined in the UD Case, where, as a general rule, issues of "ownership" are not ordinarily addressed. As a footnote in Greenhut, (fn. 3), the court specially noted that, although the appellate court had previously denied appellants’ writ of supersedeas, the court dismissed the landlord's claims that the appellants should have sought an injunction of the unlawful -10- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo detainer action. Nonetheless, they reversed the trial court and noted that appellants "still educated the court sufficiently on the law so that they were entitled to raise the issue of title." Plaintiffs respectfully submit that, if the issues of title were to be brought before the court in the unlawful detainer action, days of testimony would be required, dozens if of exhibits would be presented, witnesses other than Plaintiff and Defendant, respectively, would be called, and there would be a terrible waste of judicial time and attention that would still not afford Plaintiffs "day in court" on the issues raised in their Verified Complaint. Lastly, the court in reversing the trial court's decisions, noted that it was error for the trial court to deny a motion to consolidate the unlawful detainer proceeding with the proceeding wherein causes of action were proffered by appellants, which said causes of action are strikingly similar to those in Movants’ Verified Complaint. In sum, this court is the place to adjudicate Movants’ claims the right to title and possession. Considering that the UD Case is already proceeding to trial, the only viable option in the interests of justice is to relate the cases and stay the UD Case. C. The Instant Action And Unlawful Detainer Action Are Related, And The Unlawful Detainer Action May Be Consolidated Or Stayed. 1. Both cases meet the standards specified under Code of Civil Procedure section 1048 A court may order a joint hearing or trial of any or all the matters at issue in the actions when those actions involve a common question of law or fact. Cal.Code Civ. Proc. § 1048. In determining what would be sufficient for a motion to stay or a consolidation of cases, the appellate court in Mehr v. Superior Court, 139 Cal. App.3d 1044, 1050 (1983), determined that because the petitioners had shown substantial issues would be raised in both the unlawful detainer action and related civil matter, the lower court’s denial of the motion was “made in error." -11- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo Also, the court in Old National Financial Services, Inc. v. Richard W. Seibert 194 Cal.App.3d 460, 466-67 (1987), in explaining Mehr, stated that the sufficiency of a motion to stay or consolidate was based on whether the relatedness of the unlawful detainer action and the civil action bear directly on "the manner in which the unlawful detainer plaintiff had obtained title to the property." Here, there are undoubtedly common questions of law and fact in both the UD Case and the related Civil Case that are fundamental in determining the validity of NY Mellon’s title to the Subject Property and its right to proceed in the UD Case. Plaintiffs’ claims are essentially one of a Wrongful Foreclosure and a request to rescind the trustee’s sale. If this court finds in favor of Plaintiffs, this would necessarily result in the determination that NY Mellon’s right to title and possession of the Subject Property is extinguished. However, this would happen long after the trial in the UD Action is heard (currently scheduled for August 30, 2017) and Moving Parties are forcibly removed from the Subject Property. On the other hand, the related UD Case seeks to remove Plaintiffs from the Subject Property, notwithstanding Plaintiffs’ very serious allegations that NY Mellon does not have the right to title and possession. There is no question that NY Mellon currently has some form of title to the Subject Property, but its title is subordinate to Plaintiffs’ claim. Thus, title is most certainly at issue in both cases and therefore, the Civil Case and the UD Case are related. 2. Both cases meet the standards specified under Code of Civil Procedure section 404.1 The California Code of Civil Procedure § 404.1 lays the standards for determining whether separate actions may be heard together: Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of -12- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied. As set forth in the Declaration of Ashlie Fox, Esq. and discussed supra, common questions of law and fact predominate over both actions to be consolidated. Without consolidation, several parties and witnesses will undoubtedly be required to testify in both actions, as both are related to issues of title and possession to the Subject Property. Further, the risk of inconsistent rulings hovers: a ruling in the Civil Case in favor of Plaintiffs, would render the UD action moot, as Plaintiffs would have title and possession of the Subject Property. D. Moving Parties Will Be Irreparable Harmed If This Motion Is Not Granted, Whereas The Harm To The UD Plaintiff Will Be Minimal. The court in Old National Financial Services, Inc., in discussing Mehr, reiterated that an irreparable injury would ensue where an eviction occurs from “their home prior to the determination” of the related matter on appeal. Id. Further, an irreparable injury is one for which pecuniary compensation will not give adequate relief or the item is so unique its loss cannot be replaced by “money or in kind”. Jessen v. Keystone Savings & Loan Assn., 142 Cal.App.3d 454 (1983). Clearly, since the title issues cannot be fully litigated in the UD Case, the likelihood that Plaintiffs would be forcibly removed from their home is great. As stated, the loss of one’s home constitutes a “great irreparable injury” as contemplated by Code of Civil Procedure section 526. Moving Parties are prevented from fully litigating the very serious claims of Quiet Title, Wrongful Foreclosure, and Intentional Misrepresentation affecting NY Mellon’s -13- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo claim of title in the UD Case, yet a Judgment in favor of NY Mellon in that case would permanently preclude Moving Parties claim to title and possession of the Subject Property in the related Civil Case. This result would be utterly and completely unjust. In contrast, the harm to NY Mellon will be minimal should the cases be consolidated and/or the UD Case stayed. First and foremost, Plaintiff NY Mellon as, is not an individual looking to reside at the Subject Property nor a third party buyer looking to immediately sell the Subject Property for profit. Rather it was the beneficiary under the Deed of Trust and its interest will not be extinguished with the granting of a stay and/or consolidation. Further, NY Mellon is a financial institution who has substantially more assets than Plaintiffs and the temporary delay in the UD proceedings that a stay or consolidation may cause with have minimal pecuniary damage. Lastly, NY Mellon’s sole interest in the Subject Property is purely pecuniary. However, this pecuniary interest could be offset by Plaintiffs’ willingness to pay a bond to this court in the amount of the fair market rental value of the Subject Property while the case is pending. Thus, it is quite clear that the granting of the instant motion will have minimal harm to Defendant NY Mellon while the harm to Moving Parties will be substantial should the motion not be granted. E. Consolidation Or Stay Of The UD Proceedings Is Necessary Because Litigation Of Title Is Outside The Scope Of An Unlawful Detainer Action And May Preclude Later Litigation Of Title. As the court stated in Old National Financial Services, Inc., an unlawful detainer action is not the proper proceeding to raise issues “affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff’s title." Old National Financial Services, Inc., supra, 194 Cal. App.3d at 465. That court declared that issues regarding fraud in a title dispute are “beyond that phase of title which may be litigated in an unlawful detainer proceeding." Id. When "issues of title are involved, the parties’ constitutional rights to due process in the litigation of those issues cannot be subordinated -14- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo to the summary procedures of unlawful detainer." Lindsey v. Normet, 405 U.S. 56, 64-66 (1972). Failure to consolidate the actions may preclude Moving Parties from litigating their claims in the instant action. Indeed, the California Supreme Court found, "subsequent fraud or quiet title suits are barred by the prior unlawful detainer judgment." Vella v. Hudgins, 20 Cal.3d 251, 256 (1977). In the interests of justice, Movants should be afforded the right to litigate their meritorious claims of fraudulent misrepresentation in the Civil Case without having the claims prematurely precluded in a summary UD Case. In sum, a recent California Court of Appeals case discussing Asuncion noted that "due process precluded the homeowners' eviction without having the opportunity to adjudicate the affirmative defenses of fraud, which, if proved, would demonstrate their right to ownership and possession." Martin-Bragg v. Moore, 219 Cal. App.4th 367, 390 (2013). Here, too, due process means that Moving Parties should be able to adjudicate their claims of Quiet Title, Wrongful Foreclosure, and Intentional Misrepresentation before they are evicted from the home that they purchased. Because Plaintiffs’ claims and allegations of the invalidity of NY Mellon's title may not properly be litigated in the UD Case and because the UD Case may prematurely bar those pending claims, consolidation, or at least of stay of the unlawful detainer case pending the outcome of the instant matter, is therefore necessary. 11 11 11 11 IV. CONCLUSION For the foregoing reasons, Plaintiffs’ respectfully request that this Court Consolidate the Unlawful Detainer Action with the instant Unlimited Civil Case and/or find that these cases are related and the issues ought to be heard and decided by a single -15- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS o t OW 0 O N oy wn o h Ww N O N N O N N R mm mm mm he m m m h d e m ee em t ed IV. CONCLUSION For the foregoing reasons, Plaintiffs’ respectfully request that this Court Cons olidate the Unlawful Detainer Action with the instant Unlimited Civil Case and/or 2a al. — Hips 3 syd se Asin Pan aoc Bod 4a Ts 5 as . find that these cases are related and the issues ought to be heard and decided by 4 single court. In the alternative, the court may deem the cases related and then stay the unlawful detainer proceeding pending the outcome of the present Civil Case, Dated: August 21, 2017 GOMEZ & SIMONE, APLC By: im Lh, Ashlie Fox, Esq. Attorneys for Plaintiffs, Ali Djowharzadeh and Mahraz Djowharzadeh -16- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS OO 00 9 NN Ln BA W N = N N N N N N N N ND m m e m e m e m e m e m e m e m co N N Wn RA W N Y D = O O 0 0 N D N R E W D = Oo DECLARATION OF ASHLIE FOX, ESQ. I, Ashlie Fox, Esq., declare and state as follows: 1. Iam an attorney at law, duly licensed to practice before all courts of the State of California and an associate at Gomez & Simone, APLC, attorneys for Plaintiffs and Moving Parties, Ali Djowharzadeh and Mahraz Djowharzadeh, in the instant Civil Case. Peter Roble, Esq. of Gomez & Simone, APLC is the attorney of record for Moving Parties in the related Unlawful Detainer action, Bank of NY Mellon vs Ali Djowharzadeh, et al., filed with the Orange County Superior Court, Harbor Justice Center (CSN: 30- 2017-00930920-CL-UD-HNB). Both cases involve the right to title and possession of Plaintiffs’ home located at 26201 Mount Diablo Rd., Laguna Hills, CA 92653 (“Subject Property”). 2. Recognizing the summary nature of Unlawful Detainer proceedings and the issues of title that needed to be litigated, a Notice of Related Cases was filed on August 21, 2017 and served on all parties. 3. Plaintiffs in the instant case now respectfully request that this court grant the instant motion to consolidate the cases, or in the alternative, stay the unlawful detainer proceeding pending the outcome of the present case. 4. This is because an Unlawful Detainer Action is a summary proceeding where complicated issues of title cannot be heard at trial. Old National Financial Services, Inc. v. Richard W. Seibert 194 Cal.App.3d 460 at 465. Here, there are serious issues with respect to the validity of the trustee’s sale from which NY Mellon took title and is the basis of its claim for unlawful detainer in the related UD Case. 5. However, due to the summary nature of UD Actions, Plaintiffs are barred from fully litigating these claims in the related UD Case, let alone, properly bringing these defenses at trial. 6. To make matters worse, a Judgment in favor of NY Mellon in the UD Case will affect Plaintiffs’ claims in the instant unlimited Civil Case. Courts have held that a -17- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS © 0 NN o N wn Be W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 a 26 27 28 judgment in an unlawful detainer action where defendant raised issues regarding the trustee sale in his answer is determinative on those issues of law affecting the legality of title. See, e.g., Malkosie v. Option One Mortg. Corp., 188 Cal. App.4th 968, 974 (2010); Seidell v. Anglo-California Trust Co., 55 Cal. App.2d 913, 921-22 (1942). 1. Thus, Plaintiffs are currently in an untenable situation which would almost surely yield a substantially prejudiced result. On the one hand, Plaintiffs will be precluded from asserting their claims of Quiet Title, Wrongful Foreclosure, and Intentional Misrepresentation in the soon-to-be heard unlawful detainer trial, yet on the other hand, a Judgment from the UD court is determinative upon NY Mellon’s right to title and ownership. This would be manifestly unjust to Plaintiffs, who are the victims of egregious conduct perpetrated by the Defendants. 8. Therefore, Plaintiffs are seeking relief from the instant court to avoid the unjust result of being forcibly removed from the Subject Property without the full and fair opportunity to present their defense at the UD trial. 9. Lastly, Moving Parties are ready and willing to mitigate any harm to Defendants, by offering to deposit a bond to the court in the amount of the fair market rental value per month that the instant case is pending. 10. Thus, good cause exists to grant the instant motion to consolidate and/or stay the Unlawful Detainer proceedings so that the very serious claims affecting Defendants title and right to possession may be fully litigated before Plaintiffs are forcibly removed from the Subject Property. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Los Angeles, California on August 21, 2017 Oli ne Ashlie Fox, Esq. -18- NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS ~~ o o OU I B= Ww oo OW o o 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 3055 Wilshire Blvd., Suite 1200, Los Angeles CA, 90010. On August 22, 2017, I served the foregoing documents described as “NOTICE OF MOTION AND MOTION TO CONSOLIDATE ACTIONS AND/OR STAY UNLAWFUL DETAINER PROCEEDINGS; MEMORANDUM OF POINTS AND AUTHORITIES; [PROPOSED] ORDER” on the interested parties in this action: X] by placing: [] the original IX] a true copy thereof enclosed in sealed envelope with first class postage affixed thereto and addressed as follows: Mathew E. Pdmenik, Esq. Gladys Aguilera, Agent for Service of Rebecca L. Lang, Esq. Process — CT Corporation System McCARTHY & HOLTHUS, LLP 818 W. 7" Street, Suite 930 1770 Fourth Ave., Los Angeles, CA 90017 San Diego, CA 92101 Defendant in Unlimited Civil Action, The Tel: (619) 243-3960 Bank of NY Mellon Fax: (619) 785-3253 Attorney for Plaintiff in Unlawful Detainer Erin Guillian, Authorized Person for Action, The Bank of NY Mellon Service of Process 17100 Gillette Ave. 75 Beattie Place, #300 Irvine CA, 92614 Greenville, SC 29601 Defendant in Unlimited Civil Action, MTC Tel: 800-365-7107 Financial Fax: 86-467-1184 Defendant, Shellpoint Mortgage Servicing XI BY MAIL I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on the same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. DX] STATE I declare under penalty of perjury that the foregoing is true and correct. DX] BY FACSIMILE SERVICE: I personally faxed the document(s) listed above to the fax number/s belonging to party being served. I declare under penalty of perjury that the foregoing is true and correct. Executed on August 21, 2017, in Los Angeles, CA. /s/ Jeffrey Loong