Consuelo Gonzalez LaBrada v. Deutsche Bank National Trust Company et al

Filing 65

MINUTES (IN CHAMBERS) by Judge Christina A. Snyder: The Court hereby DENIES Plaintiff's Motion to Set Aside the Judgment 61 . Court Reporter: Laura Elias. (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7373-CAS(FMOx)

Title

CONSUELO GONZALEZ LABRADA V. DEUTSCHE BANK
NATIONAL TRUST COMPANY, ET AL.

Present: The Honorable

Date

November 16, 2011

CHRISTINA A. SNYDER, U.S. DISTRICT JUDGE

RITA SANCHEZ
Deputy Clerk

LAURA ELIAS
Court Reporter / Recorder

N/A
Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

N/A

N/A

Proceedings:
I.

(In chambers:) PLAINTIFF’S MOTION TO SET ASIDE THE
JUDGMENT(filed October 10, 2011)

INTRODUCTION AND BACKGROUND

The Court finds this motion appropriate for decision without oral argument. Fed.
R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing date of November 21, 2011, is
hereby vacated, and the matter is taken under submission.
On October 1, 2010, plaintiff Consuelo Gonzalez LaBrada (“plaintiff”) filed the
instant action against defendants Deutsche Bank National Trust Company; Home Loan
Funding, Inc., IndyMac Bank, FSB; OneWest Bank, FSB; Orange Coast Title Company;
Mortgage Electronic Registration System, Inc. (“MERS”); Quality Loan Service
Corporation; LSI Title Company; Wells Fargo Bank, N.A. (“Wells Fargo”); American
Securities Company; and Does 1-10. The complaint included a request for injunctive
relief and a temporary restraining order and alleges claims for (1) declaratory relief; (2)
TILA violations pursuant to 15 U.S.C. §§ 1631-34, 1640(a); (3) violations of the FDCPA
15 U.S.C. § 1692(e); (4) violations of the FDCPA 15 U.S.C. § 1692(f); (5) civil RICO;
(6) RICO conspiracy; (7) RICO extortion; (8) breach of fiduciary duty; (9) common law
fraud–inducement; (10) constructive fraud; (11) conspiracy; and (12) quiet title.
On October 4, 2010, the Court denied plaintiff’s request for a temporary
restraining order. On April 6, 2011, the Court granted defendants’ motions to dismiss
plaintiff’s federal claims and deferred ruling on plaintiff’s state law claims. On May 31,
2011, plaintiff filed a first amended complaint (“FAC”). Plaintiff’s first amended
complaint alleged claims for: (1) declaratory relief; (2) violations of Business and
Professions Code § 17200; (3) negligence; (4) violations of the FDCPA, 15 U.S.C. §
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7373-CAS(FMOx)

Date

November 16, 2011

Title

CONSUELO GONZALEZ LABRADA V. DEUTSCHE BANK
NATIONAL TRUST COMPANY, ET AL.

1692F(6); (5) breach of fiduciary duty; (6) common law fraud–inducement; (7)
constructive fraud; (8) conspiracy; (9) quiet title; (10) violation of civil code § 1572; (11)
negligence; (12) tortious violation of the Real Estate Settlement Procedures Act
(“RESPA”) , 12 U.S.C. § 2607(B); (13) intentional misrepresentation; (14) violation of §
Cal. Civ. Code § 1788.17; (15) to set aside a defective and wrongful foreclosure; (16)
cancellation of a voidable contract under Cal. Rev. & Tax Code §§ 23304.1, 23305(A)
and violations of Cal. Corp. Code §191(C)(7).
On June 17, 2011, defendants MERS, Deutsche Bank National Trust Company,
and One West Bank, FSB filed a motion to dismiss plaintiff’s FAC. On June 20, 2011,
defendant Wells Fargo Bank, N.A. filed a motion to dismiss plaintiff’s FAC and a motion
to strike portions of plaintiff’s FAC. Plaintiff did not file an opposition to any of
defendants’ motions. A hearing was held on July 18, 2011. Plaintiff did not appear at the
hearing.
The Court found that no good reason had been provided for plaintiff’s failure to
oppose defendants’ motions or to appear at the hearing. Pursuant to Local Rule 7-12, the
Court granted defendants’ motions to dismiss with prejudice with respect to plaintiff’s
federal claims for violations of the FDCPA (plaintiff’s fourth claim) and violation of
REPSA (plaintiff’s twelfth claim). The Court declined to exercise supplemental
jurisdiction over the remainder of plaintiff’s claims and therefore dismissed plaintiff’s
state claims without prejudice to her renewing those claims in state court.
On October 20, 2011, plaintiff filed the instant motion to set aside the judgment.
Defendants Deutsche Bank National Trust Company, MERS, One West Bank, and FSB
opposed the motion on October 31, 2011. Defendant Wells Fargo also filed an
opposition on October 31, 2011. After carefully considering the parties’ arguments, the
Court finds and concludes as follows.
II.

LEGAL STANDARD
A.

Federal Rule of Civil Procedure 60(b)

Under Rule 60(b), the court may grant reconsideration of a final judgment and any
order based on: “(1) mistake, surprise, or excusable neglect; (2) newly discovered
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7373-CAS(FMOx)

Date

November 16, 2011

Title

CONSUELO GONZALEZ LABRADA V. DEUTSCHE BANK
NATIONAL TRUST COMPANY, ET AL.

evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6)
extraordinary circumstances which would justify relief.” School Dist. No. 1J,
Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Under Rule
60(b)(6), the so-called catch-all provision, the party seeking relief “must demonstrate
both injury and circumstances beyond his control that prevented him from proceeding
with the action in a proper fashion.” Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d
1097, 1103 (9th Cir. 2006). In addition, the Ninth Circuit recently confirmed that “[t]o
receive relief under Rule 60(b)(6), a party must demonstrate extraordinary circumstances
which prevented or rendered him unable to prosecute his case.” Lal v. California, 610
F.3d 518, 524 (9th Cir. 2010). This Rule must be “used sparingly as an equitable remedy
to prevent manifest injustice and is to be utilized only where extraordinary circumstances
prevented a party from taking timely action to prevent or correct an erroneous judgment.”
Id. (quoting United States v. Washington, 394 F.3d 1152, 1157 (9th Cir. 2005)). Any
Rule 60(b) motion must be brought within a reasonable time and no later than one year
after entry of judgment or the order being challenged. See Fed. R. Civ. P. 60(c)(1).
B.

Local Rule 7-18

Local Rule 7-18 sets forth the bases upon which this Court may reconsider the
decision on any motion:
A motion for reconsideration of the decision on any motion may be made
only on the grounds of: (a) a material difference in fact or law from that
presented to the Court before such decision that in the exercise of reasonable
diligence could not have been known to the party moving for reconsideration
at the time of such decision, or (b) the emergence of new material facts or a
change of law occurring after the time of such decision, or (c) a manifest
showing of a failure to consider material facts presented to the Court before
such decision. No motion for reconsideration shall in any manner repeat any
oral or written argument made in support of or in opposition to the original
motion.
L.R. 7-18.
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

CV 10-7373-CAS(FMOx)

Date

November 16, 2011

Title

CONSUELO GONZALEZ LABRADA V. DEUTSCHE BANK
NATIONAL TRUST COMPANY, ET AL.

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III.

DISCUSSION

Plaintiff contends that the Court should set aside the judgment because plaintiff’s
former attorney, Sherri-Marie Jones, had a medical condition which prevented her from
being able to oppose or respond to defendants’ motions to dismiss.
A “court is not obligated to vacate the judgment . . . if doing so would be an
‘empty exercise.’” James v. United States, 215 F.R.D. 590, 594 (E.D. Cal. 2002). “A
precondition to relief from a judgment is that the movant show that he or she has a
meritorious claim or defense.” City of Colton v. Am. Promotional Events, Inc., No. CV
05-1479 JFW (SSx), 2006 WL 5939685, at *1 (C.D. Cal. December 13, 2006).
The Court, while mindful of former counsel’s ill health, finds that plaintiff has not
set forth a valid basis for setting aside the judgment. In reaching this determination, the
Court notes that plaintiff has failed to address why his underlying federal claims were
potentially meritorious. In support of their motions to dismiss, defendants argued that
plaintiff’s claims for violations of the FDCPA and of RESPA are time-barred as a matter
of law. Plaintiff offers no analysis as to why this is not so. In light of the foregoing, the
Court concludes that there is no legal basis to justify setting aside the judgment.
IV.

CONCLUSION

In accordance with the foregoing, the Court hereby DENIES plaintiff’s motion to
set aside the judgment.
IT IS SO ORDERED.
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Initials of
Preparer

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