Motion,Ex Parte: MARTIN ENG VS. JP MORGAN CHASE BANK, N.A. ET AL (Pltf 170.6 Challenge Judge Quidachay)

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                                DE CLUE LAW GROUP, PC

2372 SE Bristol Street
Newport Beach, CA 92660

Tel. (949) 596-7145 / Fax (949) 258-5899

Con DAH F&F WN

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Joseph L. De Clue, Esq. (SBN 163954)

DE CLUE LAW GROUP, PC
2372 SE Bristol Street
Newport Beach, CA 92660 CeO
Telephone: (949) 596-7145 FILED
Facsimile: (949) 258-5899 Superior Court of California,
County of San Francisco
Biehcet hha cour
Attorneys for Plaintiff, MARTIN ENG eva male oul
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
MARTIN ENG
Plaintiff, CASE NO.: CGC-15-546377
vs. EX PARTE
JP MORGAN CHASE BANK, N.A; APPLICATION/DECLARATION OF

QUALITY LOAN SERVICES: LENDER —_| JOSEPH L. DE CLUE FOR ORDER
PROCESSING SERVICES, INC., DOES 1— ' SHORTENING TIME ON MOTION TO
STRIKE DEMURRER FOR UNTIMELY
Defendants. SERVICE OR ALTERNATIVELY TO
CONTINUE DEMURRER HEARING

Date: March 18, 2016
Time: 11:00 a.m.
Dept.: 302

APPLICATION
I, Joseph L. De Clue, declare as follows:

1. Iam anattorney of record for plaintiff, MARTIN ENG (“Plaintiff”). I have
personal knowledge of the facts stated herein, except as to those matters stated
upon information and belief, which I believe to be true, and if called to testify
thereon, can competently do so.

2. Plaintiff submits this application for order shortening time to hear Plaintiff's

motion to strike demurrer or alternatively to continue defendant JPMorgan
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EX PARTE APPLICATION/DECLARATION OF JOSEPH L. DE CLUE FOR ORDER SHORTENING

TIME ON MOTION TO STRIKE DEMURRER FOR UNTIMELY SERVICE OR ALTERNATIVELY TO}
CONTINUE DEMURRER HEARINGDE CLUE LAW GROUP, PC

2372 SE Bristol Street
Newport Beach, CA 92660

Tel. (949) 596-7145 / Fax (949) 258-5899

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Chase Bank, N.A.’s (“JPM” or “Chase”) demurrer currently scheduled for March
21, 2016 at 9:30a.m. in department 501. Defendant Quality Loan Service
Corporation (“QLS”) filed and served a joinder to Chase’s demurrer on or about

March 4, 2016.

. Plaintiff previously filed a timely peremptory challenge to Hon. Judge

Quidachay of department 501 to which the matter was previously transferred to

department 302.

. While it appears that Chase filed its demurrer on February 18, 2016 and

erroneously noticed for hearing in department 501 alleging service on the same
day, the notice does not appear that it was actually mailed on that day as alleged

by the proof of service.

. On Thursday February 25, 2016 at 9:37a.m., my office contacted Chase’ counsel

Goli Mahdavi via electronic mail (e-mail) indicating that a review of the court’s
register of actions showed a demurrer filed on the 18" but that we had not
received it, and inquiring whether it had been served. I was copied in that e-

mail. (See Declaration of Edmond Goubran in support of motion).

. Shortly after the communication on Thursday the 25 of February, we received

service of the demurrer and supporting documents on Monday the 29" (3 mail

days later).

. Service by U.S. Mail from Ms. Mahdavi's office typically takes 3 days as

evidenced by the last demurrer served on December 4, 2015 and being received

on December 7".

. Ms. Mahdavi had responded on the 25" via e-mail shortly after that we should

have it by the close of business the same day. However, we did not receive

anything that day.

. Defendant QLS’ joinder was also untimely in that it was served less than the

statutorily required timelines set forth in CCP §§1005 and 1013. Decker v. U.D.
Registry, Inc. (2003) 105 Cal.App.4th 1382, 1390-91 (addressing anti-SLAPP

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EX PARTE APPLICATION/DECLARATION OF JOSEPH L. DE CLUE FOR ORDER SHORTENING
TIME ON MOTION TO STRIKE DEMURRER FOR UNTIMELY SERVICE OR ALTERNATIVELY TO}

CONTINUE DEMURRER HEARINGDE CLUE LAW GROUP, PC

2372 SE Bristol Street
Newport Beach, CA 92660

Tel. (949) 596-7145 / Fax (949) 258-5899

Con DAH F&F WN

10

10.

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motion under Code Civ. Proc. § 425.16); see also Village Nurseries, L.P. v.
Greenbaum (2002) 101 Cal.App.4th 26, 46-47 (addressing motion for summary
judgment); Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637 (same).

On March 17, 2016 at approximately 9:42a.m., I called and spoke with QLS’
counsel Leticia Tia Butler to ask if she would stipulate to a continuance, to which
she was very open and agreed assuming Chase’s counsel would also. While
speaking to Ms. Butler, I also gave notice of this ex parte application to be heard
at 11:00a.m. Ms. Butler does not oppose a continuance.

On March 17, 2016 at approximately 9:30a.m., I called Ms. Mahdavi to also see if
she would stipulate and in the alternative give notice. She did not answer her
direct line (415-675-3448) and I left a message of the same. She did later reach out
via e-mail to inquire as to the nature of the request and ex parte. We noted the
untimely service, reviewed previous correspondence on the matter and offered
to stipulate to a continuance of two weeks to April 4, 2016 rather than moving to
strike the demurrer. Ms. Mahdavi however declined to stipulate and intends to
oppose this application.

My legal assistant did call and give notice of this hearing after I did not get
through. She spoke with Ms. Mahdavi’s assistant, Robert Novak. (See Decl. of
Melissa Alvarez).

On February 18, 2016 (same day as the filing of the Chase demurrer), the
California Supreme Court published a landmark decision directly affecting
standing arguments raised by Chase’s demurrer in Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919. The ruling is discussed in our opposition to
Chase’s demurrer which is electronically filed concurrently with this application.
A proof of service is invalid if mailing is not done within one day of the date
alleged. (See CCP §1013a). Notice of the demurrer is required 16 court days
prior to the date of the hearing plus five days for service by mail. (See CCP
§§1005 & 1013). Although the proof of service filed with the Court alleges

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EX PARTE APPLICATION/DECLARATION OF JOSEPH L. DE CLUE FOR ORDER SHORTENING

TIME ON MOTION TO STRIKE DEMURRER FOR UNTIMELY SERVICE OR ALTERNATIVELY TO}

CONTINUE DEMURRER HEARINGDE CLUE LAW GROUP, PC

2372 SE Bristol Street
Newport Beach, CA 92660

Tel. (949) 596-7145 / Fax (949) 258-5899

Con DAH F&F WN

10

15.

16.

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19.

February 18, 2016, actual service by mail does not appear to have occurred until
February 25, 2016 which arrived after notice of the lack of service within the
typical, standard 3 mailing days on February 29, 2016.

As noted previously, QLS served their notice on March 4, 2016 by mail and it wag
received on March 7, 2016.

I attempted to stipulate with opposing counsel of both defendants to continue
the matter to April 4, 2016 which would alleviate the service timing for both
parties, allow time for Chase to reply and address their standing arguments in
light of the newly published Supreme Court decision in Yvanova, allow the
parties and the Court to also address notice to the wrong department (501 as
opposed to 302 given the peremptory challenge to Judge Quidachay previously
granted), and was the most judicially economical means of addressing the
problems without having to involve the Court. Ms. Butler on behalf of QLS was
perfectly amenable to that solution, but Ms. Mahdavi on behalf of Chase was not.
Additionally, given the state of the instant matter, I would also like to be
personally present to orally argue the issues in Yvanova as they pertain to Chase’s|
demurrer, which I could do on April 4, 2016, as opposed to appearing
telephonically.

. In light of the problem where Chase will not stipulate, we must now bring this ex|

parte application to involve the Court to address the issue of untimely actual
service, notice to the wrong department, short notice on QLS’ joinder, and the
fact that the newly published Supreme Court decision of Yvanova has direct
impact on the instant matter and should be fully briefed by the parties so the
Court can address the issue on the merits.

It is Plaintiff’s position that the simplest solution is a continuance of the hearing
on the demurrer to April 4, 2016 in department 302, or as soon thereafter as the
matter may be heard, and that Plaintiff would agree to waive issues surrounding

the untimely service of notice of the defendants.

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EX PARTE APPLICATION/DECLARATION OF JOSEPH L. DE CLUE FOR ORDER SHORTENING

TIME ON MOTION TO STRIKE DEMURRER FOR UNTIMELY SERVICE OR ALTERNATIVELY TO}

CONTINUE DEMURRER HEARINGDE CLUE LAW GROUP, PC

2372 SE Bristol Street
Newport Beach, CA 92660

Tel. (949) 596-7145 / Fax (949) 258-5899

Con DAH F&F WN

10

20. The Court should also be aware that the two newly named DOE defendants in
the First Amended Complaint, Sotheby’s International Realty and Mary Lou
Castellanos of Sotheby’s in her individual capacity, who were acting on
instructions of Chase and named as part of the negligence cause of action and
others with Chase, are set to appear by April 4"* and 18" respectively.

21. California Appellate Courts and the Supreme Court have long held that “the
denial of a continuance which has the practical effect of denying the applicant a
fair hearing is often held reversible error. [citing Jaffe v. Lilienthal, 101 Cal. 175,
178, 35 P. 636; Swayne & Hoyt v. Wells Russell & Co., 169 Cal. 204, 207-208, 146
P. 686; Luse v. Peters, 219 Cal. 625, 628-629, 28 P.2d 357; People v. Sarazzawski,
27 Cal.2d 7, 17, 161 P.2d 934; Schlothan v. Rusalem, 41 Cal.2d 414, 417-418, 260
P.2d 68; Dunlap v. Plummer, 1 Cal.App. 426, 427, 82 P. 445; Betts Spring Co. v.
Jardine Mach. Co., 23 Cal.App. 705, 706-707, 139 P. 657; Pacific Gas & Electric Co,
v. Taylor, 52 Cal.App. 307, 310, 198 P. 651; Robinson v. El Centro Grain Co., 133
Cal.App. 567, 573, 24 P.2d 554; People v. Simpson, 31 Cal.App.2d 267, 272, 88
P.2d 175; Winkler v. Winkler, 54 Cal.App.2d 398, 404, 129 P.2d 43; Broadwell v.
Ryerson, 85 Cal.App.2d 352, 357, 192 P.2d 797; Ingold v. Municipal Court of City
and County of San Francisco, 85 Cal.App.2d 651, 652-653, 193 P.2d 808; Miller v.
Republic Grocery, Inc., 110 Cal.App.2d 187, 190-191, 242 P.2d 396; Hays v.
Viscome, 122 Cal.App.2d 135, 140, 264 P.2d 173, 39 A.L.R.2d 1435; Crosby v.
Martinez, 159 Cal.App.2d 534, 539-540, 324 P.2d 26; 2 Witkin, California
Procedure, 1747.]” Cohen v. Herbert (1960) 186 Cal. App. 2d 488, 494, 8 Cal. Rptr.
922, 926.

WHEREFORE, it is respectfully requested that this Court grant Plaintiff an order

shortening time on his motion to strike defendant’s demurrer, or in the preferred
alternative and in the interests of substantial justice, judicial economy and that the

matter to be heard on the merits that the defendants’ demurrer be continued to April 4,

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EX PARTE APPLICATION/DECLARATION OF JOSEPH L. DE CLUE FOR ORDER SHORTENING
TIME ON MOTION TO STRIKE DEMURRER FOR UNTIMELY SERVICE OR ALTERNATIVELY TO}
CONTINUE DEMURRER HEARINGDE CLUE LAW GROUP, PC

2372 SE Bristol Street
Newport Beach, CA 92660

Tel. (949) 596-7145 / Fax (949) 258-5899

Con DAH F&F WN

10

2016 at 9:30a.m. or as soon thereafter as the matter may be heard in department 302.
The alternative would allow time for the defendants to address the Yvanova decision,
and for the matter to be heard on the merits in the correct department wherein the
Plaintiff would be willing to waive objections to untimely service.

I declare under penalty of perjury under the laws of the State of California that

the foregoing is true and correct to the best of my knowledge.

By: \ prieg th Z 2 shee

Date: March 17, 2016

: Joseph L. De Clue, Declarant

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EX PARTE APPLICATION/DECLARATION OF JOSEPH L. DE CLUE FOR ORDER SHORTENING

TIME ON MOTION TO STRIKE DEMURRER FOR UNTIMELY SERVICE OR ALTERNATIVELY TO}
CONTINUE DEMURRER HEARING