JUDITH NEHER-FOSTER VS. YOSEMITE CAPITAL LLC, ET AL

08/20/2026 – Law and Motion Calendar Judge: Honorable Mark A. McCannon – Department 2 Page 6 of 12

2:00 PM LINE 3 25-CIV-04881 JUDITH NEHER-FOSTER VS. YOSEMITE CAPITAL LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, ET AL

JUDITH NEHER-FOSTER PRO SE YOSEMITE CAPITAL LLC, A CALIFORNIA LIMITED LIABILITY COMPANY DANIEL S. CORNELL

Plaintiff’s Motion to Consolidate, or in the Alternative, to Stay Unlawful Detainer Proceeding

TENTATIVE RULING: __________________________________________________________________________________________________

For the reasons stated below, Plaintiff Judith Neher-Foster’s Motion to Consolidate or, in the Alternative, to Stay Unlawful Detainer Proceeding is GRANTED.

As a preliminary matter, Defendants Yosemite Capital, LLC (“Yosemite”), Tom Malgesini, and California TD Specialists (“Trustee”) failed to electronically bookmark the exhibits submitted in opposition, as required by California Rules of Court, rule 3.1110(f)(4). The parties are advised that future violations of the California Rules of Court may subject the offending party to sanctions. (Cal. Rules of Court, rule 2.30.)

Plaintiff Judith Neher-Foster (“Plaintiff”) seeks to consolidate this action with the pending unlawful detainer proceeding filed against her by Yosemite, Yosemite Capital, LLC v. Neher-Foster, San Mateo County Superior Court case No. 25UDL01769. In the alternative, Plaintiff requests that the unlawful detainer proceeding be stayed pending resolution of this civil action.

Code of Civil Procedure section 1048, subdivision (a), provides that when actions involving a common question of law or fact are pending before the court, the court may order the actions consolidated and may make such orders concerning the proceedings as may tend to avoid unnecessary costs or delay. (Code Civ. Proc., § 1048, subd. (a).) Consolidation is intended to promote efficiency and avoid unnecessary duplication in the proof and determination of issues common to multiple actions. (McClure v. Donovan (1949) 33 Cal.2d 717, 721–722.)

Here, the two actions concern the same real property and substantially overlapping issues concerning Yosemite’s asserted title and right to possession following the May 14, 2025 foreclosure sale. Plaintiff alleges in this action, among other things, that the underlying loan transaction and deed of trust were procured through fraud or otherwise invalid, that the foreclosure sale was improperly conducted, and that Yosemite obtained title as a result of that foreclosure. Plaintiff seeks, among other relief, to set aside or otherwise invalidate instruments affecting title to the property. Yosemite’s unlawful detainer action, in turn, seeks possession based upon the title acquired through the foreclosure sale. Accordingly, the validity and effect of the foreclosure and the parties’ competing rights to title and possession substantially overlap in the two proceedings.

A post-foreclosure unlawful detainer action under Code of Civil Procedure section 1161a differs from an ordinary unlawful detainer proceeding because it permits a limited inquiry into title. Under section 1161a, subdivision (b)(3), the purchaser must establish that the property was sold in accordance with Civil Code section 2924 and that title under the sale was duly perfected. The resulting inquiry into title, however,

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remains “narrow and sharply focused” on the formal validity of the trustee’s sale. (Asuncion v. Superior Court (1980) 108 Cal.App.3d 141, 144; see Code Civ. Proc., § 1161a, subd. (b)(3).)

Plaintiff’s civil action presents substantially broader issues. Her claims encompass alleged fraud in connection with the underlying loan transaction, the validity and enforceability of the deed of trust, wrongful foreclosure, financial elder abuse, quiet title, cancellation of instruments, and related statutory and equitable relief. Those issues bear directly upon the parties’ competing claims to ownership and possession but extend beyond the limited title inquiry ordinarily contemplated in a summary proceeding under section 1161a.

“When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions.” (Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385.) Where the court does neither and instead attempts to resolve complex title issues within the abbreviated procedures governing unlawful detainer, the parties’ ability to obtain a full adjudication of those issues may be improperly restricted. (Ibid.; see Asuncion v. Superior Court, supra, 108 Cal.App.3d at pp. 146–147.)

The circumstances here warrant consolidation. The validity and effect of the foreclosure sale bear directly upon Yosemite’s asserted right to possession, while Plaintiff’s civil action places the underlying transaction, foreclosure, and title directly at issue. Resolving the matters separately would create substantial duplication and a risk of inconsistent determinations concerning the same property.

The Court is not persuaded otherwise by Defendants’ contention that Plaintiff has failed to prosecute the civil action diligently or has been uncooperative in discovery. Defendants remain free to pursue appropriate discovery remedies after satisfying the applicable meet-and-confer requirements. Any discovery deficiencies can be addressed through the procedures provided by the Civil Discovery Act; they do not justify resolving the parties’ overlapping title and possession disputes through separate proceedings where consolidation is otherwise warranted.

Nor does the fact that the unlawful detainer action is designed to provide an expedited determination of possession require a different result. Complete consolidation necessarily affects the summary nature of the unlawful detainer proceeding. When an unlawful detainer action is consolidated for all purposes with an unlimited civil action, the consolidated matters are treated as a single civil action for purposes of further proceedings. (See Martin-Bragg v. Moore, supra, 219 Cal.App.4th at pp. 388–389; Villa Zinfandel, LLC v. Bearman (2025) 116 Cal.App.5th 848, 865) That consequence is appropriate here because the broader issues affecting title and possession should be determined in a proceeding that permits full adjudication of those claims.

Accordingly, Plaintiff’s Motion is GRANTED. San Mateo County Superior Court case Nos. 25CIV04881 and 25UDL01769 are CONSOLIDATED FOR ALL PURPOSES, INCLUDING TRIAL.

Case No. 25CIV04881, Neher-Foster v. Yosemite Capital, LLC, et al., is designated as the lead case. For purposes of all further proceedings, the consolidated actions shall be treated as a single action, and subsequent filings shall be made in the lead case as provided by California Rules of Court, rule 3.350.

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The order granting consolidation shall be filed in each case pursuant to California Rules of Court, rule 3.350.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for Plaintiff Judith Neher-Foster shall prepare, for the Court’s signature, a written order consistent with this ruling pursuant to California Rules of Court, rules 3.350 and 3.1312, and shall provide written notice of the ruling to all parties who have appeared in the actions, as required by law. The parties are directed to revised Local Rule 3.403(b)(iv), effective January 1, 2024, concerning the wording of proposed orders.