Vodonick v. Federal Home Loan Mortgage Association, Inc.

Filing 70

ORDER signed by District Judge John A. Mendez on 6/2/2020 DENYING Plaintiff's 59 Motion to Amend the Complaint and GRANTING Defendant's 60 Motion for Summary Judgment. The Clerk of the Court is directed to close the case. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN VODONICK,

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2:15-cv-00539-JAM-EFB

Plaintiff,

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No.

v.
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, INC., a
federally chartered
corporation, all persons
claiming any right, title, or
interest in certain real
property; and DOES 1 through
50, inclusive,

ORDER DENYING PLAINTIFF’S MOTION
TO AMEND AND GRANTING
DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT

Defendants.

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John Vodonick (“Plaintiff”) moves for leave to file a second

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amended complaint.

See Pl. Mot. to Am. (“Pl. Mot.”), ECF No. 59.

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Federal National Mortgage Association (“Defendant”) moves for

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summary judgment on Plaintiff’s first claim for declaratory

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relief, parts (A) and (B), as well as Plaintiff’s second claim

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for quiet title easement by implication.

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J. (“Def. Mot.”), ECF No. 60.

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See Def. Mot. for Summ.

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For the reasons set forth below, the Court DENIES

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Plaintiff’s Motion to Amend the First Amended Complaint and

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GRANTS Defendant’s Motion for Summary Judgment.1

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

On March 10, 2015, Plaintiff filed a complaint against

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Defendant.

Compl., ECF No. 1.

Plaintiff amended the complaint a

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few days later to add additional facts but made no changes to the

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claims for relief.

See First Am. Compl. (“FAC”), ECF No. 4.

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Plaintiff owns and resides at 15240 Willow Ridge Court in Nevada

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City, California.

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Facts (“SUF”) ¶ 1.

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promissory note to the neighboring property, which was declared

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to be in default.

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Plaintiff has an easement over a portion of the property.

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¶ 3.

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sale—to take place on November 26, 2014, at 12:30 p.m.—at the

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main entrance of the Nevada County, California, Superior

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Courthouse.

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Defendant’s Statement of Undisputed Material
In August 2014, Defendant was assigned the

SUF ¶ 4.

In addition to being neighbors,
SUF

Defendant posted a copy of the notice of the foreclosure

SUF ¶ 5.

Plaintiff was out of town on November 26, 2014, and

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dispatched an agent, Michael Nudelman, to appear at the auction.

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SUF at ¶ 7.

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¶ 13.

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waited at the courthouse for approximately one and a half hours,

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but the auction did not take place, nor did anyone announce a

Nudelman showed up for the scheduled sale.

What follows is in dispute.

SUF at

Plaintiff alleges Nudelman

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for May 5, 2020.
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continuance of the auction date and time.

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Defendant alleges the foreclosure sale auctioneer, Dana Haemmig,

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appeared at the courthouse’s main entrance, at the time and date

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set for the sale, and announced it was postponed to December 1,

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2014.

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the property was sold “at public auction on 12/01/2014 at the

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place named in the Notice of Sale[.]”

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Jud. Notice (“Def. RJN”) at 2, ECF No. 61.

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SUF at ¶ 10.

FAC ¶ 19.

Meanwhile,

According to the “Trustees Deed Upon Sale,”

Ex. 8 to Def. Req. for

On March 2, 2016, the Court granted Defendant’s Motion for

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Judgment on the Pleadings with respect to claims three, four, and

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five, and part of the first claim.

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denied Defendant’s motion with respect to the part of the first

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claim seeking a declaration that the deed to Defendant is null

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and void.

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first Motion for Summary Judgment, which only sought judgment as

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to the first part (part A) of Plaintiff’s declaratory relief

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claim.

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first seeks declarations that the purported deed is null, void,

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and of no effect and that Plaintiff is vested in title and

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interest to the easement.

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to the easement by implication.

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Id.

See ECF No. 18.

The Court

On March 31, 2017, the Court denied Defendant’s

See ECF No. 36.

For the surviving claims, Plaintiff

Second, Plaintiff seeks to quiet title
See FAC.

Currently before this Court is Plaintiff’s request to amend

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his complaint for a second time, to add claims of private and

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public nuisance and unfair business practices.

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Defendant filed an opposition top this motion, ECF No. 62, and

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Plaintiff replied, ECF No. 65. Defendant seeks summary judgment,

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but on different grounds and for additional claims than its

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previous motion.

See Def. Mot.

See Pl. Mot.

Defendant contends there are no
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triable issues of material fact that would allow for Plaintiff to

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obtain judgment on either his first or second claims.

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opposed this motion, ECF No. 63, and Defendant filed a reply, ECF

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No. 66.

Plaintiff

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II.
A.

OPINION

Plaintiff’s Motion to Amend
1.

Legal Standard

After the Court has filed a pretrial scheduling order, a

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party’s motion to amend must satisfy Rule 16(b)’s “good cause”

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requirement.

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604, 607-08 (9th Cir. 1992).

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to “the diligence of the party seeking the amendment.”

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975 F.2d at 609.

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party opposing the modification might supply additional reasons

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to deny a motion.”

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focus of the inquiry is upon the moving party’s reasons for

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seeking modification [of the schedule].”

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party was not diligent, the inquiry should end.”

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2.

Johnson v. Mammoth Recreations, Inc., 975 F.2d
This requirement primarily looks
Johnson,

“[T]he existence or degree of prejudice to the

Id.

But, unlike Rule 15’s analysis, “the

Id.

If the “[moving]
Id.

Judicial Notice

Plaintiff suggests the Court “can” take judicial notice

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that “the foothills and other areas of Northern California have

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become more and more prone to wildfires.”

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Plaintiff then mentions the Nevada County Hazardous Vegetation

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Ordinance and refers to his “request to take judicial notice

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filed concurrently herewith.”

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include a request for judicial notice with his motion.

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Plaintiff’s request for judicial notice—or lack thereof—is,

Id.

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Pl. Mot at 5.

However, Plaintiff failed to

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therefore DENIED.

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3.

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Analysis
a.

Rule 16(b)

Rule 16(b)’s “good cause” requirement is typically not met

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“where the party seeking to modify the pretrial scheduling order

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has been aware of the facts and theories supporting amendment

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since the inception of the action.”

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Wholesale Natural Gas (“Western States”), 715 F.3d 716, 737 (9th

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Cir. 2013).

In re Western States

Indeed, “carelessness is not compatible with a

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finding of diligence and offers no reason for a grant of

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relief.”

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Johnson, 975 F.2d at 610.

Plaintiff’s motion to amend raises issues similar to those

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before the Ninth Circuit in Western States.

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plaintiffs knew for two years that they had potentially viable

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federal antitrust claims.

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move to amend their complaint to include these claims until

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seven months after the scheduling order’s deadline.

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result, the Ninth Circuit held that “the district court [had]

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not abuse[d] its discretion in concluding that the Plaintiffs

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were not diligent.”

715 F.3d at 737.

In Western States,

Yet, they did not

Id.

As a

Id. at 737-38.

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Plaintiff seeks to add claims that are related to an

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increased risk of wildfire in the area since the Court’s March

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1, 2016 Order on Defendant’s Motion for Judgment on the

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Pleadings.

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Plaintiff has been aware of potential claims related to this

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increased risk as he, admittedly, has had “concerns regarding

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the [wildfire] prone nature of the maintenance of [the

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neighboring] property” since “the inception of the litigation.”

See Pl. Mot. at 2.

However, as in Western States,

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Pl. Mot. at 4.

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complaint in a timely manner.

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five years ago, Plaintiff states that a portion of the

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neighboring property has “historically been used by the dominant

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tenement to . . . maintain a fire safe perimeter and for

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purposes of drawing emergency water in the event of fire.”

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¶ 8.

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“defensible fire protection perimeter and [] an emergency water

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source” repeatedly thereafter.

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Nonetheless, Plaintiff failed to amend his
In Plaintiff’s FAC, filed over

FAC

Plaintiff goes on to mention his use of the property as a

See FAC ¶¶ 10, 12, 13, 14, 24.

In his motion, Plaintiff points to a Nevada County

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Hazardous Vegetation Ordinance as evidence that the area is at

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increased risk of wildfire.

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last updated on March 29, 2019—one year before Plaintiff filed

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the instant motion.

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a letter to Defendant’s attorney as evidence that he requested

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Defendant take steps to reduce the fuel load on the neighboring

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property.

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the ways in which “the hazard of forest fires has been building

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lately” and informs Defendant’s attorney that he is “intensely

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worried about [his] own safety and the security of [his]

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property due to the increased fire risk posed by the deplorable

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and unsafe condition of [Defendant’s] property.”

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at 3–4, ECF No. 65–1.

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one year before Plaintiff filed this motion.

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justification for an amended complaint, both the ordinance and

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the letter are, instead, evidence that this request to amend is

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untimely.

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Id.

Pl. Mot. at 5.

That ordinance was

And in his reply, Plaintiff references

Pl. Mot at 4–5.

In this letter, Defendant discusses

Vodonick Decl.

This letter also dates from approximately

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Presented as

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Plaintiff has had concerns over wildfires since he

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commenced this action over five years ago and for at least the

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past year, Plaintiff has been aware of an increase in the

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frequency and severity of wildfires in the area.

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Plaintiff waited until well after this Court’s June 25, 2019

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pretrial scheduling order, see ECF No. 49, and just before the

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deadline to file dispositive motions, see ECF No. 57, to file

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this motion to amend his complaint for the second time.

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result of this significant delay, the Court finds that

Nevertheless,

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Plaintiff has failed to satisfy Rule 16(b)’s “good cause”

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requirement.

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As a

amendment to the complaint is proper under Rule 15.

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Accordingly, the Court DENIES Defendant’s Motion to Amend
the First Amended Complaint.
B.

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The Court therefore need not address whether the

Defendant’s Motion for Summary Judgment
1.

Legal Standard

A court must grant a party’s motion for summary judgment

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“if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter

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of law.”

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initial burden of “informing the district court of the basis for

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its motion, and identifying [the documents] which it believes

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demonstrate the absence of a genuine issue of a material fact.”

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Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

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material if it “might affect the outcome of the suit under the

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governing law.”

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248 (1986).

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burden rests upon the nonmoving party to “set forth specific

Fed. R. Civ. Proc. 56(a).

The movant bears the

A fact is

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

Once the movant makes this initial showing, the

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facts showing that there is a genuine issue for trial.”

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issue of fact is genuine if “the evidence is such that a

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reasonable jury could return a verdict for the nonmoving party.”

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Id.

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2.

Id.

An

Evidentiary Objections

Plaintiff raises evidentiary objections to the declaration

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of Dana Haemmig and the documents attached to her declaration,

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provided in support of Defendant’s Motion for Summary Judgment.

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See Obj. to Haemmig Decl., ECF No. 63–1.

Regarding the Haemmig

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declaration, Plaintiff argues it is inadmissible because the date

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of execution is incomplete and the declaration provides it is

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governed by California law, not the laws of the United States of

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America.

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judgment stage, courts focus on the admissibility of the

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evidence’s content, not the admissibility of its form.

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Goodale, 342 F.3d 1032, 1036 (9th Cir. 2011); see also Burch v.

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Regents of the University of California, 433 F.Supp.2d 1110, 1119

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(E.D. Cal. 2006).

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objection at this time.

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Obj. to Haemmig Decl. at 1–3.

However, at the summary

Fraser v.

Accordingly, the Court overrules this

Plaintiff also contends the documents attached to Haemmig’s

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declaration are inadmissible because they were not produced by

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Defendant during discovery.

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documents attached to Haemmig’s declaration are: (1) the

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auctioneer’s script for the postponement of the foreclosure sale

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of Plaintiff’s neighboring property; and (2) the postponement

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script of another foreclosure sale that was postponed at the same

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date, time, and location of the neighboring property’s

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postponement.

Obj. to Haemmig Decl. at 3–4.

See Exs. 1–2 to Haemmig Decl., ECF 60–1.
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The

These

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documents are business records of Summit Ridge Services, Inc.,

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the independent contractor foreclosure auctioneer.

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¶¶ 2–3, ECF 60-1.

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custody, or control.

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produce these documents in its initial disclosures.

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Civ. Pro. 26(1)(a)(ii).

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is overruled.

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3.

Haemmig Decl.

Thus, they were not in Defendant’s possession,
Defendant had no ability or obligation to
See Fed. R.

Plaintiff’s objection to these documents

Judicial Notice

Rule 201 of the Federal Rules of Evidence allows a court to

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take judicial notice of an adjudicative fact that is “not

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subject to reasonable dispute,” because it (1) “is generally

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known within the trial court’s territorial jurisdiction”; or

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(2) “can be accurately and readily determined from sources whose

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accuracy cannot reasonably be questioned.”

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201(a)–(b).

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public record.

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Colleges, 655 F.3d 984, 999 (9th Cir. 2011).

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record include “documents on file in federal or state courts.”

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Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012).

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Fed. R. Evid.

A Court may take judicial notice of matters of
United States ex rel. Lee v. Corinthian
Matters of public

Defendant requests that the Court take judicial notice of

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eight exhibits.

See Exs. 1–8 to Def. RJN, ECF No. 61.

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exhibits are: (1) the Grant Deed, dated August 18, 1987 and

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recorded in the Nevada County Official Records on October 29,

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1987 as Document No. 87 30610; (2) the First Amended Complaint

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in this matter, filed by Plaintiff on March 18, 2015; (3) the

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Grant and Reservation of Easement for Access & Recreation,

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recorded in the Nevada County Official Records on July 12, 1988

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as Document No. 88 17719; (4) the Easement Deed, recorded in the
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Those

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Nevada County Official Records on September 27, 1988 as Document

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No. 88 26119; (5) the Corporation Assignment of Deed of Trust,

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dated July 14, 2014 and recorded in the Nevada County Official

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Records as Document No. 20140013517; (6) Notice of Default,

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recorded in the Nevada County Official Records on August 5, 2014

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as Document No. 20140014719; (7) the Notice of Trustee’s Sale,

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dated December 2, 2014 and recorded in the Nevada County

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Official Records on December 8, 2014 as Document No.

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20140023981; and (8) the Trustee’s Deed Upon Sale, dated October

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29, 2014 and recorded in the Nevada County Official Records as

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Document No. 20140021214.

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the Court take judicial notice of “the Court’s files, records[,]

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and documents in this case,” notably, the Court’s Order on

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Defendant’s Motion for Judgment on the Pleadings.

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for Jud. Notice (“Pl. RJN”), ECF No. 63-2.

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Id.

Meanwhile, Plaintiff requests

See Pl. Req.

All the above are matters of public record, and therefore,

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proper subjects of judicial notice.

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and Plaintiff’s requests for judicial notice.

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4.

The Court GRANTS Defendant

Analysis

Defendant argues the Court should grant summary judgment

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with respect to Plaintiff’s first and second claims.

See Def.

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Mot. at 2.

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the Court for: (A) a declaration that Defendant’s interest in the

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neighboring property is void due to procedural defects in the

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notice of sale; and (B) a declaration that that Plaintiff is

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vested in title and interest in an easement over the neighboring

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property to access Mosquito Creek and Deer Creek for purposes of

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recreation, to maintain a defensible fire protection perimeter,

The remaining portions of Plaintiff’s first claim ask

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and as an emergency water source.

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second claim requests that the Court determine Defendant has no

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right, title, or interest in the neighboring property that is

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adverse or superior to Plaintiff’s.

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FAC ¶ 24(A)–(B).

Plaintiff’s

FAC ¶¶ 27–31.

For the reasons set forth below, the Court GRANTS

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Defendant’s motion for summary judgment as to all the remaining

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claims against it in this case.

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a.

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Declaratory Relief
i.

Validity of the Sale

Plaintiff alleges that Defendant’s deed over the neighboring

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property is void because Plaintiff never received notice of the

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foreclosure sale’s postponement.

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that notice of the postponement was given in accordance with

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California Civil Code § 2924g and that there is no requirement

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that Plaintiff receive actual notice of the postponement.

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Mot. at 4.

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must be preceded by an official notice of sale.

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§ 2924f.

A sale may be postponed at the discretion of the

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trustee.

Cal Civ. Code § 2924g(c)(1)(D).

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be publicly announced in accordance with the following

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requirements:

FAC ¶ 20.

Defendant argues

Def.

Under California law, a non-judicial foreclosure sale
Cal. Civ. Code

Each postponement must

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The notice of each postponement and the reason therefor

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shall be given by public declaration by the trustee at

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the time and place last appointed for sale.

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declaration of postponement shall also set forth the

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new date, time, and place of sale and the place of sale

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shall be the same place as originally fixed by the

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trustee for the sale.

A public

No other notice of postponement
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need be given.

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Ca. Civ. Code § 2924g(d).

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notice is not required “so long as notice is provided . . . in

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compliance with the statute.”

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4th 76, 88 (2004).

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Including actual notice.

Actual

Knapp v. Doherty, 123 Cal. App.

Defendant has submitted evidence establishing that notice of

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the oral postponement was given in accordance with § 2924g(d).

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As noted above, in a sworn declaration, auctioneer Dana Haemmig

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attests that, on November 26, 2014, at the entrance to the Nevada

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County courthouse, she announced that the foreclosure sale would

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be postponed until December 1, 2014.

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testimony is corroborated by the auctioneer’s script for the

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postponement of the foreclosure sale that she created on November

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26, 2014, concurrently with postponing the sale of the

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neighboring property.

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maintained by her employer, Summit Ridge Services, Inc., as part

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of its records on the foreclosed property.

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Decl.

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2014, specifies that two people were present when she made the

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announcement, and explains that trustee discretion was the reason

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for postponement.

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Haemmig Decl. ¶ 7.

Haemmig Decl. ¶ 8.

Her

This document was

See Ex. 1 to Haemmig

Haemmig’s script postpones the sale until December 1,

Id.

Meanwhile, Plaintiff has not submitted any evidence that

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directly refutes or contradicts Haemmig’s declaration or the

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auctioneer’s script.

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Nudelman, appeared at the Nevada County courthouse in time for

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the November 26, 2014 sale, but that he did not hear Haemmig’s

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announcement.

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Haemmig did not, in fact, announce the postponement.

Plaintiff alleges that his agent, Michael

Opp’n to Def. Mot. at 7.

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It is not alleged that
Plaintiff

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makes reference in his opposition to a declaration from Mr.

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Nudelman, Opp’n to Def. Mot. At 6-7; but Plaintiff failed to file

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this declaration along with his opposition.

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Nudelman’s deposition testimony are however attached to

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Defendant’s motion.

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testimony does Nudelman directly contend that Haemmig did not

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make an announcement.

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Portions of

The Court notes that nowhere in this

See Nudelman Dep. Tr., ECF No. 60-2.

The Court cannot rely on conclusory or speculative testimony
from a declaration that was not filed or on unsupported

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allegations in opposing papers to find genuine issues of material

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fact.

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(9th Cir. 1979) (citing Fed. R. of Civ. Pro. 56(e)); see

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Crescenzo v. Wells Fargo Bank NA, Case No. 11-CV-02507, WL 510045

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at *4 (C.D. Cal. 2013) (finding evidence of a supposed

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cancellation of a foreclosure sale insufficient to create a

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genuine issue of material fact as to whether the auctioneer

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publicly announced the postponement of the sale). Plaintiff has

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failed to make a sufficient showing to establish that Defendant

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did not comply with the requirements of § 2924g.

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SunTrust Mortg., Inc., Case No. 10-CV-1508, WL 5884258 at *4

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(E.D. Cal. 2011) (plaintiffs declaration stating he never

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received or saw notices of a foreclosure sale was insufficient

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to: (1) overcome the common law presumption that a nonjudicial

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foreclosure sale is properly conducted; (2) dispute defendant’s

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claim that it complied with nonjudicial foreclosure procedures;

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and, thus, failed to raise a triable issue of material fact).

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///

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///

Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738

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See Reynolds v.

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Defendant, by contrast, has shown, as a matter of law, that

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the postponement complied with the notice requirements and the

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foreclosure sale was therefore valid.

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GRANTS Defendant’s Motion for Summary Judgment on part (A) of

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Plaintiff’s first claim for declaratory relief.

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ii.

Accordingly, the Court

Plaintiff’s Easement

Plaintiff asks the Court to declare he is vested in title

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and interest in an easement over the neighboring property “to

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access Mosquito Creek and Deer Creek for purposes of

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recreation[,] to maintain a defensible fire protection

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perimeter[,] and as an emergency water source.”

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Defendant argues Plaintiff already holds a recorded easement that

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allows him “access and recreation over the westerly five feet and

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the northerly fifty feet” of the neighboring property.

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at 9 (citing Easement Deed, Ex. 4 to Def. RJN, ECF No. 61).

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result, there is no present controversy and Plaintiff has not

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stated a claim for declaratory relief.

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FAC ¶ 24(B).

Def. Mot.
As a

Id.

Article III limits judicial adjudication to actual cases or

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controversies.

Thus, “[w]hen presented with a claim for a

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declaratory judgment, [] federal courts must take care to ensure

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the presence of an actual case or controversy, such that the

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judgment does not become an unconstitutional advisory opinion.”

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Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1157 (9th Cir.

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2007).

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presents a justiciable case or controversy, courts consider

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“whether the facts alleged, under all the circumstances, show

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that there is a substantial controversy, between parties having

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adverse legal interests, or sufficient immediacy and reality to

“To determine whether a declaratory judgment action

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warrant the issuance of a declaratory judgment.”

2

Mexico, Inc. v. Center for Biological Diversity, Inc., 771 F.3d

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632, 635 (9th Cir. 2014) (internal quotation marks and citation

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omitted).

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Shell Gulf of

It is undisputed that Plaintiff holds an express easement

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“for access and recreation” over a portion of the neighboring

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property.

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easement gives him access to the westerly five feet and the

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northerly fifty feet of the neighboring property.

See Easement Deed, Ex. 4 to Def. RJN.

Plaintiff’s

Id.

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Nonetheless, Plaintiff requests a declaratory judgment that he is

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vested in title and interest in an easement over the neighboring

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property.

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July 12, 1988, he became vested in title with an easement over

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the neighboring property and then, on September 27, 1988, he

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became vested with a further easement over the property.

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¶ 11. These allegations are uncontroverted.

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is no substantial controversy or need for declaratory relief.

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See FAC ¶ 24(B).

Plaintiff’s FAC describes how, on

FAC

As a result, there

To the extent that Plaintiff seeks an expansion of this

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easement—to give him the ability to “maintain a defensible fire

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protection perimeter,” see FAC ¶ 24(B)—the Court declines to do

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so.

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claim, the same relief he requests in his second claim, i.e., an

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easement by implication.

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under certain specific circumstances, the law implies an intent

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on the part of the parties to a property transaction to create or

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transfer an easement even though there is no written document

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indicating such an intent.”

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334, 357 (1991).

In effect, Plaintiff requests, in part (B) of his first

“An implied easement may arise when,

Mikels v. Rager, 232 Cal. App. 3d

Here, there is a written document setting forth
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the grantor’s intent.

See Easement Deed, Ex. 4 to Def. RJN.

2

Moreover, Defendant admits the grantor “wanted [him] to stop

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removing the dangerous brush, underwood and trees.”

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Decl. ¶ 5, ECF No. 64.

Vodonick

Thus, the grantor’s intent is clear.

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The existence of the express easement detailing the scope of

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Plaintiff’s access to the neighboring property therefore obviates

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the need for the Court to declare Plaintiff is vested in title

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and interest in an easement over the neighboring property.

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Moreover, the express easement precludes the Court from expanding

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its scope by way of granting an easement by implication.

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Accordingly, the Court GRANTS Defendant’s Motion for Summary

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Judgment on part (B) of Plaintiff’s first claim for declaratory

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relief.

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b.

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Quiet Title Easement by Implication

For the reasons set forth above, the Court does not, as a

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matter of law, find there exists an easement by implication.

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Hansen v. Danielson, 136 Cal. App. 2d 653, 656 (1955) (“[A]

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judgment quieting title cannot enlarge the grant made by the

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parties.”)

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Summary Judgment on Plaintiff’s second claim for quiet title

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easement by implication.

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///

See

Accordingly, the Court GRANTS Defendant’s Motion for

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1
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III.

ORDER

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For the reasons set forth above, the Court DENIES

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Plaintiff’s Motion to Amend the First Amended Complaint and

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GRANTS Defendant’s Motion for Summary Judgment on Plaintiff’s

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remaining claims.

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to close the case.

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The Clerk of the Court is therefore directed

IT IS SO ORDERED.
Dated: June 2, 2020

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