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This case was last updated from Los Angeles County Superior Courts on 04/29/2021 at 10:10:55 (UTC).

MANUEL BOROBIA VS COUNTRYWIDE HOME LOANS, INC., (A "LENDER"), ET AL.

Case Summary

On 06/17/2020 MANUEL BOROBIA filed a Property - Foreclosure lawsuit against COUNTRYWIDE HOME LOANS, INC , A LENDER . This case was filed in Los Angeles County Superior Courts, Chatsworth Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN P. PFAHLER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0362

  • Filing Date:

    06/17/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Foreclosure

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Chatsworth Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN P. PFAHLER

 

Party Details

Plaintiff

BOROBIA MANUEL

Defendants

THE WOLF FIRM

PARTO PARNAZ

ALONZO RONALD

THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK LENDER AS TRUSTEE FOR THE BENEFIT OF THE CERTIFICATE HOLDERS OF THE CWABS INC. ASSET-BACKED CERTIFICATES SERIES 2006-8

EISERT VERONICA

CWABS INC. AN INVESTOR IN THE BANK OF NEW YORK MELLON'S REAL ESTATE INVESTMENT PORTFOLIO

QUALITY LOAN SERVICE CORPORATION

COUNTRYWIDE HOME LOANS INC. A "LENDER"

CWABS INC. AN INVESTOR IN THE BANK OF NEW YORK MELLON'S REAL ESTATE INVESTMENT PORTFOLIO FKA THE BANK OF NEW YORK AS TRUSTEE FOR CWABS INC. ASSET-BACKED CERTIFICATES SERIES 2006-8

Not Classified By Court

PFAHLER JUDGE STEPHEN SUPERIOR COURT

Attorney/Law Firm Details

Defendant Attorneys

DAILEY STEVE

GOULDING DANIEL JOSEPH

PALMER MICHAEL SCOTT

SUMMERFIELD ADAM FREDERICK

CHAFFIN DAVID LEE

 

Court Documents

Judgment - JUDGMENT [PROPOSED] JUDGMENT OF DISMISSAL

3/3/2021: Judgment - JUDGMENT [PROPOSED] JUDGMENT OF DISMISSAL

Judgment - JUDGMENT PROPOSED

3/16/2021: Judgment - JUDGMENT PROPOSED

Proof of Service by Mail

3/2/2021: Proof of Service by Mail

Notice - NOTICE TO FURTHER ESTABLISH PLAINTIFF'S JURY TRIAL DEMAND

1/28/2021: Notice - NOTICE TO FURTHER ESTABLISH PLAINTIFF'S JURY TRIAL DEMAND

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...) OF 01/29/2021

1/29/2021: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (HEARING ON SPECIAL MOTION TO STRIKE UNDER CCP SECTION 425.16 ...) OF 01/29/2021

Case Management Statement

1/14/2021: Case Management Statement

Notice - NOTICE OF CONTINUANCE OF HEARINGS ON DEMURRER, MOTION TO STRIKE AND CMC

11/17/2020: Notice - NOTICE OF CONTINUANCE OF HEARINGS ON DEMURRER, MOTION TO STRIKE AND CMC

Notice - NOTICE OF CONTINUED HEARING

10/13/2020: Notice - NOTICE OF CONTINUED HEARING

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION NOTICE OF MOTION AND MOTION T...)

10/1/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION NOTICE OF MOTION AND MOTION T...)

Reply - REPLY REPLY TO OPPOSITION TO SPECIAL MOTION TO STRIKE (ANTI-SLAPP MOTION) AS TO THE ENTIRETY OF THE COMPLAINT

9/3/2020: Reply - REPLY REPLY TO OPPOSITION TO SPECIAL MOTION TO STRIKE (ANTI-SLAPP MOTION) AS TO THE ENTIRETY OF THE COMPLAINT

Joinder to Motion - DEFENDANT'S RONALD ALONZO'S AND VERONICA EISERT'S JOINDER IN DEFENDANT THE BANK OF NEW YORK MELLON DEMURRER TO PLAINTIFF'S COMPLAINT

8/21/2020: Joinder to Motion - DEFENDANT'S RONALD ALONZO'S AND VERONICA EISERT'S JOINDER IN DEFENDANT THE BANK OF NEW YORK MELLON DEMURRER TO PLAINTIFF'S COMPLAINT

Joinder to Motion - DEFENDANT'S RONALD ALONZO'S AND VERONICA EISERT'S JOINDER IN DEFENDANT THE BANK OF NEW YORK MELLON MOTION TO STRIKE PLAINTIFF'S COMPLAINT

8/21/2020: Joinder to Motion - DEFENDANT'S RONALD ALONZO'S AND VERONICA EISERT'S JOINDER IN DEFENDANT THE BANK OF NEW YORK MELLON MOTION TO STRIKE PLAINTIFF'S COMPLAINT

Proof of Service by Mail

8/3/2020: Proof of Service by Mail

Motion to Strike (not initial pleading)

7/27/2020: Motion to Strike (not initial pleading)

Request for Judicial Notice

7/27/2020: Request for Judicial Notice

Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

7/16/2020: Special Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion)

Summons - SUMMONS ON COMPLAINT

6/17/2020: Summons - SUMMONS ON COMPLAINT

Notice of Case Assignment - Unlimited Civil Case

6/17/2020: Notice of Case Assignment - Unlimited Civil Case

67 More Documents Available

 

Docket Entries

  • 05/20/2021
  • Hearing05/20/2021 at 08:30 AM in Department F49 at 9425 Penfield Ave., Chatsworth, CA 91311; Case Management Conference

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  • 03/17/2021
  • DocketNotice (of Entry of Judgment of Dismissal); Filed by THE BANK OF NEW YORK MELLON AS TRUSTEE FOR CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-8 Erroneously Sued As The Bank of New York Mellon (Defendant)

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  • 03/16/2021
  • DocketJudgment (of Dismissal); Filed by THE BANK OF NEW YORK MELLON AS TRUSTEE FOR CWABS, INC. ASSET-BACKED CERTIFICATES, SERIES 2006-8 Erroneously Sued As The Bank of New York Mellon (Defendant)

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  • 03/16/2021
  • DocketJudgment (OF DISMISSAL); Filed by Countrywide Home Loans, INC., (a "Lender") (Defendant)

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  • 03/03/2021
  • DocketJudgment of Dismissal; Filed by Ronald Alonzo (Defendant); Veronica Eisert (Defendant)

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  • 03/02/2021
  • DocketProof of Service by Mail; Filed by Ronald Alonzo (Defendant); Veronica Eisert (Defendant)

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  • 03/01/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by Ronald Alonzo (Defendant)

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  • 02/04/2021
  • DocketNotice of Change of Address or Other Contact Information; Filed by The Wolf Firm (Defendant)

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  • 01/29/2021
  • Docketat 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Hearing - Other (Joinder of Countrywide Home Loans Inc. to Demurrer) - Held

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  • 01/29/2021
  • Docketat 08:30 AM in Department F49, Stephen P. Pfahler, Presiding; Hearing on Ex Parte Application (to Dismiss Defendant David Lee Chaffin) - Held

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82 More Docket Entries
  • 07/16/2020
  • DocketRequest for Judicial Notice; Filed by The Wolf Firm (Defendant); Parnaz Parto (Defendant)

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  • 07/16/2020
  • DocketProof of Service (not Summons and Complaint); Filed by The Wolf Firm (Defendant); Parnaz Parto (Defendant)

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  • 07/16/2020
  • DocketDeclaration (of Parnaz Parto Esq. in Support of Defendants' Special Motion to Strike (Anti-Slapp Motion) as to The Entirety of the Complaint); Filed by The Wolf Firm (Defendant); Parnaz Parto (Defendant)

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  • 07/16/2020
  • DocketSpecial Motion to Strike under CCP Section 425.16 (Anti-SLAPP motion); Filed by The Wolf Firm (Defendant); Parnaz Parto (Defendant)

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  • 06/17/2020
  • DocketComplaint; Filed by Manuel Borobia (Plaintiff)

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  • 06/17/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 06/17/2020
  • DocketCase Management Statement; Filed by Manuel Borobia (Plaintiff)

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  • 06/17/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 06/17/2020
  • DocketCivil Case Cover Sheet; Filed by Manuel Borobia (Plaintiff)

    Read MoreRead Less
  • 06/17/2020
  • DocketSummons (on Complaint); Filed by Clerk

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Tentative Rulings

Case Number: 20CHCV00362    Hearing Date: January 29, 2021    Dept: F49

Dept. F-49

Calendar # 3

Date: 1-29-21 c/f 11-16-20

Case #20CHCV00362

DEMURRER

MOVING PARTY: Defendant, Bank of New York Mellon

RESPONDING PARTY: Unopposed/Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Demurrer to the Verified Complaint

· Joinder Countrywide Home Loans

· Joinder Ronald Alonzo & Veronica Eisert

Motion to Strike Allegations in Support of, and Claim for, Punitive Damages

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Sustained without Leave to Amend.

Request for Judicial Notice: Granted.

Defendant Bank of New York Mellon submits the subject demurrer to the complaint on multiple grounds, including claim preclusion, statute of limitations, and failure to state any cause of action against moving defendant.

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights.

Claim Preclusion

Defendant first addresses the claim preclusion based on prior lawsuits filed by Plaintiff Borobia, including Superior Court action Borobia v. Bank of New York Mellon, et al. (BC657853), a Chapter 13 Bankruptcy petition, and a complaint in the United States District Court, Borobia v. Countrywide Home Loans, et al. The Superior Court action was dismissed without prejudice on October 11, 2017. [Req. Jud. Not., Ex. 15.] The Bankruptcy was dismissed on September 11, 2019 following Plaintiff’s failure to follow the payment plan. [Req. Jud. Not., Exs. 16, 20, 21.] On June 17, 2019, the Central District dismissed the action without leave to amend. [Req. Jud. Not., Exs. 22-23, 25-26.]

The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) “Res Judicata is not a bar to claims arising after the filing of the initial complaint.” A party may assert new claims in an amended pleading, “but if no such pleading is filed, a plaintiff is not foreclosed. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]’.” (Allied Fire Protection v. Diede Const., Inc. (2005) 127 Cal.App.4th 150, 155; Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.)

“In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding. (Citations.) ‘Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Citation.)’”

(Gikas v. Zolin (1993) 6 Cal.4th 841, 848–849.)

Collateral estoppel Smith v. Exxon Mobil Oil Corp.

On April 14, 2017, Plaintiff filed an eight cause of action complaint arising from the alleged wrongful foreclosure of the home. [Req. Jud. Not., Ex. 14.] The action was voluntarily dismissed without prejudice on October 11, 2017 before any substantive rulings occurred on the action. [Req. Jud. Not., Ex. 15.] Although Defendant notes the dismissal, the lack of a dismissal on the merits precludes the application of res judicata and/or collateral estoppel.

Defendant instead emphasizes the district court action. On March 28, 2019, Plaintiff in pro per filed a complaint arising from the alleged wrongful foreclosure of the home. [Req. Jud. Not., Ex. 23.] Moving Defendant was not a named defendant. [Ibid.] On June 18, 2019, the district court granted a dismissal without leave to amend after consideration of the substantive merits of the action. [Req. Jud. Not., Exs. 25-26.] While the dismissal was not to the exact causes of action as the first action or the instant action, the claims still arose from the same course of alleged conduct raised in the prior superior court claim.

In the DiTech Financial, et al. motion to dismiss, the District Court ruling specifically noted the lack of any allegation regarding the foreclosure sale of the property and/or recording of a Trustee’s Deed Upon Sale. [Req. Jud. Not., Ex. 25.] In the motion by Countrywide Home Loans, Inc., et al. the court acknowledged the substitution of trustee by Bank of New York Mellon. [Req. Jud. Not., Ex. 26.]

Although Defendant was not directly named in the underlying District Court action, both decisions involved the “wrongful foreclosure” claims, which directly implicates Bank of New York as both the trustee and purchaser of the property at the foreclosure sale. “In the context of a res judicata determination, privity ‘“refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the doctrine of collateral estoppel.’”’” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 689.) The circumstances placing Bank of New York as both a trustee and purchaser of the property constitutes a basis of privity.

The court therefore finds privity between the parties. [Req. Jud. Not., Ex. 13.]

Again, given the underlying complaint district challenges at least part of the foreclosure process, Plaintiff was obliged to raise all arguments in the complaint. Res judicata directly bars claim splitting and piecemeal litigation, as presented in the instant action. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 897; Gikas v. Zolin, supra, 6 Cal.4th at pp. 848–849; Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) The adjudication of the action in the District Court constitutes a complete decision on the issues now presented in the instant action, and therefore bars the instant action on grounds of res judicata. A federal judgment “has the same effect in the courts of this state as it would have in a federal court.” (Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230.) “Full faith and credit must be given to a final order or judgment of a federal court. (Citations.) Such an order or judgment has the same effect in the courts of this state as it would have in a federal court. (Citations.) In the federal jurisdiction, the doctrine of res judicata prevents the readjudication of all matters (including jurisdiction) which were, or might have been, litigated in a prior proceeding between the same parties.” (Levy v. Cohen (1977) 19 Cal.3d 165, 172–173.)

On the joinder of Countrywide Home Loans, Inc. the court finds, as a prior party involved in the underlying District Court action that successfully moved for dismissal on the merits, the claims are also barred under the doctrine of res judicata. [Req. Jud. Not., Ex. 26.] For Ronald Alonzo, it appears they were also named defendants in the underlying District Court action: Ronald Alonzo as Assistant Secretary for Quality Loan Servicer. [Req. Jud. Not., Ex. 23.]

Veronica Eisert was not a named defendant in the underlying District Court complaint, but contends in joinder that because she was an employee of Quality Loan Service, the doctrine of collateral estoppel bars the complaint as well. The operative complaint in fact identified Veronica Eisert in fact identifies Veronica Eisert as Assistant Secretary for Quality Loan Service Corporation [Comp., ¶31.] Given the bar of the action as to the other defendants, and the naming of Eisert for conduct allegedly associated with the wrongful foreclosure, the doctrine of res judicata also bars the claims as to this defendant.

The court therefore sustains the unopposed demurrer without leave to amend as to both moving defendant Bank of New York Mellon and joining parties, Countrywide Home Loans, Inc., Ronald Alonzo, and Veronica Eisert.

Bank of New York Mellon submits additional argument on grounds of statute of limitations, and the failure to comply with certain substantive requirements to avoid foreclosure. Defendant also addresses the RICO claim, fraud, bad faith, embezzlement, regulatory violations, Fair Debt and Collection Practices Act, Truth In Lending Act, and emotional distress claims on the merits. Given none of the subject claims constitute new claims after the filing of the District Court complaint, the court declines to consider the merits of the argument and affirms the demurrer on grounds of res judicata. (Allied Fire Protection v. Diede Const., Inc., supra, 127 Cal.App.4th at p. 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 226.)

The motion to strike is moot.

Defendant to give notice.

Dept. F-49

Calendar # 3

Date: 1-29-21 c/f 11-13-20 c/f 10-1-20 c/f 9-11-20

Case #20CHCV00362

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendants, The Wolf Firm, et al.

RESPONDING PARTY: Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Special Motion to Strike the Verified Complaint for Malicious Prosecution

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Granted.

Request for Judicial Notice: Granted.

Defendants The Wolf Firm and individual attorney Parnaz Parto move for a special motion to strike any and all claims against them arising from their representation of Bank of New York Mellon in the unlawful detainer proceeding against Plaintiff (20CHUD00310). Moving Defendants are only named in the fifteenth cause of action for intentional infliction of emotional distress.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."  Code Civ. Proc. § 425.16, subd. (b).  Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ."   (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes ": (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."  (Code Civ. Proc., § 425.16.)

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281; 1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1480.) The termination of a tenancy is not an action “in furtherance of the constitutional rights of free speech,” but if the “termination notice is a legal prerequisite to bringing an unlawful detainer action…service of such notice does constitute an activity in further of the constitutionally protected right to petition.” (Birkner v. Lam, supra, 156 Cal.App.4th  281-282.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.)

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) Attorney made statements on behalf of a client in connection with a judicial proceeding has standing to bring a SLAPP motion. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff alleges in the complaint that the underlying communications related to the unlawful detainer action violated Plaintiff’s right of redemption, and therefore caused emotional distress.

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation.] ‘Conduct, to be “‘outrageous’” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’”

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights. It’s not clear how the argument applies to the intentional infliction of emotional distress cause of action—the only cause of action against The Wolf Firm.

Nothing in the proceeding with the unlawful detainer action constitutes outrageous conduct. The complaint lacks any showing that the unlawful detainer somehow improperly deprived Plaintiff of his right of redemption whether he was dispossessed from the property or not. Whether Plaintiff was entitled to seek redemption or not, the prosecution of the unlawful detainer lacks any showing of a known improper action, and therefore a showing of outrageous conduct. Plaintiff therefore lacks support for the intentional infliction of emotional distress action.

Moving party is also secondarily immune under the litigation privilege. “The litigation privilege in section 47 applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)

As discussed above, the filing and prosecution of the unlawful detainer action as counsel of record constitutes an action protected by the litigation privilege.

The special motion to strike is granted.

Defendants may not seek attorney fees. A prevailing law firm party appearing pro se may not recover attorney’s fees for its work on the special motion.  (White v. Kaufman (2006) 141 Cal.App.4th 1201, 1210-11.) This pro se rule includes not just partners, but all attorneys who work at the firm. (Ibid.)

A demurrer and motion to strike filed by The Bank of New York Mellon, et al. is set for hearing on November 16, 2020. The court notes that Defendants Ronald Alonzo and Veronica Eisert filed a joinder with The Bank of New York Mellon demurer and motion to strike. Joining defendants are not seeking relief within the instant special motion to strike. The court will therefore consider the joinder at the November 16, 2020 hearing date.

Defendants to give notice.

Dept. F-49

Calendar # 3

Date: 1-29-21 c/f 11-13-20 c/f 10-1-20 c/f 9-11-20

Case #20CHCV00362

DISMISS

MOVING PARTY: Plaintiff, Manuel Borobia, pro per

RESPONDING PARTY: Defendants, The Wolf Firm, et al.

RELIEF REQUESTED

Motion to Dismiss Attorney David Chaffin of The Wolf Firm

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Denied.

Plaintiff in pro per Manuel Borobia moves to dismiss attorney David Chaffin of The Wolf Firm from representing The Wolf Firm in the action. Plaintiff accuses Chaffin of “un-ethical” and conducting court business in a “not-normal” manner. Defendants in opposition challenge the lack of any authority in support of the requested relief.

Although Plaintiff moves to “dismiss” attorney Chaffin, Plaintiff actually seeks to disqualify attorney Chaffin from appearing on the action. The basis of the requested relief lacks articulated support under the standard for disqualification.

As a threshold issue, Plaintiff fails to raise a basis of standing to challenge The Wolf Firm’s choice of its own representation. “Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. (Citation.) A ‘standing’ requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) A confidential relationship must exist for any party to make an argument for disqualification. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 357.) Nevertheless, a basis for disqualification may arise from “from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed.” (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832; See Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 219 [“mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification”].)

The motion lacks legal or evidentiary support to even establish standing, including any argument of any prior relationship between attorney Chaffin and Plaintiff. Without any evidence, the court lacks any basis for the determination of a potential basis of disqualification. The motion is therefore denied.

Plaintiff to give notice.

Case Number: 20CHCV00362    Hearing Date: November 16, 2020    Dept: F49

Dept. F-49

Calendar # 4

Date: 11-16-20

Case #20CHCV00362

DEMURRER

MOVING PARTY: Defendant, Bank of New York Mellon

RESPONDING PARTY: Unopposed/Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Demurrer to the Verified Complaint

· Joinder Countrywide Home Loans

· Joinder Ronald Alonzo & Veronica Eisert

Motion to Strike Allegations in Support of, and Claim for, Punitive Damages

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Sustained without Leave to Amend.

Request for Judicial Notice: Granted.

Defendant Bank of New York Mellon submits the subject demurrer to the complaint on multiple grounds, including claim preclusion, statute of limitations, and failure to state any cause of action against moving defendant.

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights.

Claim Preclusion

Defendant first addresses the claim preclusion based on prior lawsuits filed by Plaintiff Borobia, including Superior Court action Borobia v. Bank of New York Mellon, et al. (BC657853), a Chapter 13 Bankruptcy petition, and a complaint in the United States District Court, Borobia v. Countrywide Home Loans, et al. The Superior Court action was dismissed without prejudice on October 11, 2017. [Req. Jud. Not., Ex. 15.] The Bankruptcy was dismissed on September 11, 2019 following Plaintiff’s failure to follow the payment plan. [Req. Jud. Not., Exs. 16, 20, 21.] On June 17, 2019, the Central District dismissed the action without leave to amend. [Req. Jud. Not., Exs. 22-23, 25-26.]

The doctrine of res judicata gives certain conclusive effect to a former judgment in subsequent litigation involving the same controversy. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit. All claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory or for different relief. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) “Res Judicata is not a bar to claims arising after the filing of the initial complaint.” A party may assert new claims in an amended pleading, “but if no such pleading is filed, a plaintiff is not foreclosed. [Citation.] The general rule that a judgment is conclusive as to matters that could have been litigated ‘does not apply to new rights acquired pending the action which might have been, but which were not, required to be litigated [Citation]’.” (Allied Fire Protection v. Diede Const., Inc. (2005) 127 Cal.App.4th 150, 155; Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226.)

“In general, collateral estoppel precludes a party from relitigating issues litigated and decided in a prior proceeding. (Citations.) ‘Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. (Citation.)’”

(Gikas v. Zolin (1993) 6 Cal.4th 841, 848–849.)

Collateral estoppel Smith v. Exxon Mobil Oil Corp.

On April 14, 2017, Plaintiff filed an eight cause of action complaint arising from the alleged wrongful foreclosure of the home. [Req. Jud. Not., Ex. 14.] The action was voluntarily dismissed without prejudice on October 11, 2017 before any substantive rulings occurred on the action. [Req. Jud. Not., Ex. 15.] Although Defendant notes the dismissal, the lack of a dismissal on the merits precludes the application of res judicata and/or collateral estoppel.

Defendant instead emphasizes the district court action. On March 28, 2019, Plaintiff in pro per filed a complaint arising from the alleged wrongful foreclosure of the home. [Req. Jud. Not., Ex. 23.] Moving Defendant was not a named defendant. [Ibid.] On June 18, 2019, the district court granted a dismissal without leave to amend after consideration of the substantive merits of the action. [Req. Jud. Not., Exs. 25-26.] While the dismissal was not to the exact causes of action as the first action or the instant action, the claims still arose from the same course of alleged conduct raised in the prior superior court claim.

In the DiTech Financial, et al. motion to dismiss, the District Court ruling specifically noted the lack of any allegation regarding the foreclosure sale of the property and/or recording of a Trustee’s Deed Upon Sale. [Req. Jud. Not., Ex. 25.] In the motion by Countrywide Home Loans, Inc., et al. the court acknowledged the substitution of trustee by Bank of New York Mellon. [Req. Jud. Not., Ex. 26.]

Although Defendant was not directly named in the underlying District Court action, both decisions involved the “wrongful foreclosure” claims, which directly implicates Bank of New York as both the trustee and purchaser of the property at the foreclosure sale. “In the context of a res judicata determination, privity ‘“refers ‘to a mutual or successive relationship to the same rights of property, or to such an identification in interest of one person with another as to represent the same legal rights [citations] and, more recently, to a relationship between the party to be estopped and the unsuccessful party in the prior litigation which is “sufficiently close” so as to justify application of the doctrine of collateral estoppel.’”’” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 689.) The circumstances placing Bank of New York as both a trustee and purchaser of the property constitutes a basis of privity.

The court therefore finds privity between the parties. [Req. Jud. Not., Ex. 13.]

Again, given the underlying complaint district challenges at least part of the foreclosure process, Plaintiff was obliged to raise all arguments in the complaint. Res judicata directly bars claim splitting and piecemeal litigation, as presented in the instant action. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 897; Gikas v. Zolin, supra, 6 Cal.4th at pp. 848–849; Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 914.) The adjudication of the action in the District Court constitutes a complete decision on the issues now presented in the instant action, and therefore bars the instant action on grounds of res judicata. A federal judgment “has the same effect in the courts of this state as it would have in a federal court.” (Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230.) “Full faith and credit must be given to a final order or judgment of a federal court. (Citations.) Such an order or judgment has the same effect in the courts of this state as it would have in a federal court. (Citations.) In the federal jurisdiction, the doctrine of res judicata prevents the readjudication of all matters (including jurisdiction) which were, or might have been, litigated in a prior proceeding between the same parties.” (Levy v. Cohen (1977) 19 Cal.3d 165, 172–173.)

On the joinder of Countrywide Home Loans, Inc. the court finds, as a prior party involved in the underlying District Court action that successfully moved for dismissal on the merits, the claims are also barred under the doctrine of res judicata. [Req. Jud. Not., Ex. 26.] For Ronald Alonzo, it appears they were also named defendants in the underlying District Court action: Ronald Alonzo as Assistant Secretary for Quality Loan Servicer. [Req. Jud. Not., Ex. 23.]

Veronica Eisert was not a named defendant in the underlying District Court complaint, but contends in joinder that because she was an employee of Quality Loan Service, the doctrine of collateral estoppel bars the complaint as well. The operative complaint in fact identified Veronica Eisert in fact identifies Veronica Eisert as Assistant Secretary for Quality Loan Service Corporation [Comp., ¶31.] Given the bar of the action as to the other defendants, and the naming of Eisert for conduct allegedly associated with the wrongful foreclosure, the doctrine of res judicata also bars the claims as to this defendant.

The court therefore sustains the unopposed demurrer without leave to amend as to both moving defendant Bank of New York Mellon and joining parties, Countrywide Home Loans, Inc., Ronald Alonzo, and Veronica Eisert.

Bank of New York Mellon submits additional argument on grounds of statute of limitations, and the failure to comply with certain substantive requirements to avoid foreclosure. Defendant also addresses the RICO claim, fraud, bad faith, embezzlement, regulatory violations, Fair Debt and Collection Practices Act, Truth In Lending Act, and emotional distress claims on the merits. Given none of the subject claims constitute new claims after the filing of the District Court complaint, the court declines to consider the merits of the argument and affirms the demurrer on grounds of res judicata. (Allied Fire Protection v. Diede Const., Inc., supra, 127 Cal.App.4th at p. 155; Planning and Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 226.)

The motion to strike is moot.

Defendant to give notice.

Case Number: 20CHCV00362    Hearing Date: November 13, 2020    Dept: F49

Dept. F-49

Calendar # 9

Date: 11-13-20 c/f 10-1-20 c/f 9-11-20

Case #20CHCV00362

DISMISS

MOVING PARTY: Plaintiff, Manuel Borobia, pro per

RESPONDING PARTY: Defendants, The Wolf Firm, et al.

RELIEF REQUESTED

Motion to Dismiss Attorney David Chaffin of The Wolf Firm

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Denied.

Plaintiff in pro per Manuel Borobia moves to dismiss attorney David Chaffin of The Wolf Firm from representing The Wolf Firm in the action. Plaintiff accuses Chaffin of “un-ethical” and conducting court business in a “not-normal” manner. Defendants in opposition challenge the lack of any authority in support of the requested relief.

Although Plaintiff moves to “dismiss” attorney Chaffin, Plaintiff actually seeks to disqualify attorney Chaffin from appearing on the action. The basis of the requested relief lacks articulated support under the standard for disqualification.

As a threshold issue, Plaintiff fails to raise a basis of standing to challenge The Wolf Firm’s choice of its own representation. “Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. (Citation.) A ‘standing’ requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) A confidential relationship must exist for any party to make an argument for disqualification. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 357.) Nevertheless, a basis for disqualification may arise from “from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed.” (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832; See Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 219 [“mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification”].)

The motion lacks legal or evidentiary support to even establish standing, including any argument of any prior relationship between attorney Chaffin and Plaintiff. Without any evidence, the court lacks any basis for the determination of a potential basis of disqualification. The motion is therefore denied.

Defendant to give notice.

Dept. F-49

Calendar # 9

Date: 11-13-20 c/f 10-1-20 c/f 9-11-20

Case #20CHCV00362

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendants, The Wolf Firm, et al.

RESPONDING PARTY: Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Special Motion to Strike the Verified Complaint for Malicious Prosecution

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Granted.

Request for Judicial Notice: Granted.

Defendants The Wolf Firm and individual attorney Parnaz Parto move for a special motion to strike any and all claims against them arising from their representation of Bank of New York Mellon in the unlawful detainer proceeding against Plaintiff (20CHUD00310). Moving Defendants are only named in the fifteenth cause of action for intentional infliction of emotional distress.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."  Code Civ. Proc. § 425.16, subd. (b).  Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ."   (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes ": (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."  (Code Civ. Proc., § 425.16.)

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281; 1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1480.) The termination of a tenancy is not an action “in furtherance of the constitutional rights of free speech,” but if the “termination notice is a legal prerequisite to bringing an unlawful detainer action…service of such notice does constitute an activity in further of the constitutionally protected right to petition.” (Birkner v. Lam, supra, 156 Cal.App.4th  281-282.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.)

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) Attorney made statements on behalf of a client in connection with a judicial proceeding has standing to bring a SLAPP motion. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff alleges in the complaint that the underlying communications related to the unlawful detainer action violated Plaintiff’s right of redemption, and therefore caused emotional distress.

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation.] ‘Conduct, to be “‘outrageous’” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’”

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights. It’s not clear how the argument applies to the intentional infliction of emotional distress cause of action—the only cause of action against The Wolf Firm.

Nothing in the proceeding with the unlawful detainer action constitutes outrageous conduct. The complaint lacks any showing that the unlawful detainer somehow improperly deprived Plaintiff of his right of redemption whether he was dispossessed from the property or not. Whether Plaintiff was entitled to seek redemption or not, the prosecution of the unlawful detainer lacks any showing of a known improper action, and therefore a showing of outrageous conduct. Plaintiff therefore lacks support for the intentional infliction of emotional distress action.

Moving party is also secondarily immune under the litigation privilege. “The litigation privilege in section 47 applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)

As discussed above, the filing and prosecution of the unlawful detainer action as counsel of record constitutes an action protected by the litigation privilege.

The special motion to strike is granted.

Defendants may not seek attorney fees. A prevailing law firm party appearing pro se may not recover attorney’s fees for its work on the special motion.  (White v. Kaufman (2006) 141 Cal.App.4th 1201, 1210-11.) This pro se rule includes not just partners, but all attorneys who work at the firm. (Ibid.)

A demurrer and motion to strike filed by The Bank of New York Mellon, et al. is set for hearing on November 16, 2020. The court notes that Defendants Ronald Alonzo and Veronica Eisert filed a joinder with The Bank of New York Mellon demurer and motion to strike. Joining defendants are not seeking relief within the instant special motion to strike. The court will therefore consider the joinder at the November 16, 2020 hearing date.

Defendants to give notice.

Case Number: 20CHCV00362    Hearing Date: October 01, 2020    Dept: F49

Dept. F-49

Calendar # 9

Date: 10-1-20 c/f 9-11-20

Case #20CHCV00362

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendants, The Wolf Firm, et al.

RESPONDING PARTY: Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Special Motion to Strike the Verified Complaint for Malicious Prosecution

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Granted.

Request for Judicial Notice: Granted.

Defendants The Wolf Firm and individual attorney Parnaz Parto move for a special motion to strike any and all claims against them arising from their representation of Bank of New York Mellon in the unlawful detainer proceeding against Plaintiff (20CHUD00310). Moving Defendants are only named in the fifteenth cause of action for intentional infliction of emotional distress.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under

the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Code Civ. Proc. § 425.16, subd. (b). Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . ." (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes ": (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Code Civ. Proc., § 425.16.)

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281; 1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1480.) The termination of a tenancy is not an action “in furtherance of the constitutional rights of free speech,” but if the “termination notice is a legal prerequisite to bringing an unlawful detainer action…service of such notice does constitute an activity in further of the constitutionally protected right to petition.” (Birkner v. Lam, supra, 156 Cal.App.4th 281-282.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.)

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) Attorney made statements on behalf of a client in connection with a judicial proceeding has standing to bring a SLAPP motion. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the

evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff alleges in the complaint that the underlying communications related to the unlawful detainer action violated Plaintiff’s right of redemption, and therefore caused emotional distress.

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation.] ‘Conduct, to be “‘outrageous’” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’”

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights. It’s not clear how the argument applies to the intentional infliction of emotional distress cause of action—the only cause of action against The Wolf Firm.

Nothing in the proceeding with the unlawful detainer action constitutes outrageous conduct. The complaint lacks any showing that the unlawful detainer somehow improperly deprived Plaintiff of his right of redemption whether he was dispossessed from the property or not. Whether Plaintiff was entitled to seek redemption or not, the prosecution of the unlawful detainer lacks any showing of a known improper action, and therefore a showing of outrageous conduct. Plaintiff therefore lacks support for the intentional infliction of emotional distress action.

Moving party is also secondarily immune under the litigation privilege. “The litigation privilege in section 47 applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)

As discussed above, the filing and prosecution of the unlawful detainer action as counsel of record constitutes an action protected by the litigation privilege.

The special motion to strike is granted.

Defendants may not seek attorney fees. A prevailing law firm party appearing pro se may not recover attorney’s fees for its work on the special motion. (White v. Kaufman (2006) 141 Cal.App.4th 1201, 1210-11.) This pro se rule includes not just partners, but all attorneys who work at the firm. (Ibid.)

A demurrer and motion to strike filed by The Bank of New York Mellon, et al. is set for hearing on November 16, 2020. The court notes that Defendants Ronald Alonzo and Veronica Eisert filed a joinder with The Bank of New York Mellon demurer and motion to strike. Joining defendants are not seeking relief within the instant special motion to strike. The court will therefore consider the joinder at the November 16, 2020 hearing date.

Defendants to give notice.

Dept. F-49

Calendar # 9

Date: 10-1-20 c/f 9-11-20

Case #20CHCV00362

DISMISS

MOVING PARTY: Plaintiff, Manuel Borobia, pro per

RESPONDING PARTY: Defendants, The Wolf Firm, et al.

RELIEF REQUESTED

Motion to Dismiss Attorney David Chaffin of The Wolf Firm

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Denied.

Plaintiff in pro per Manuel Borobia moves to dismiss attorney David Chaffin of The Wolf Firm from representing The Wolf Firm in the action. Plaintiff accuses Chaffin of “un-ethical” and conducting court business in a “not-normal” manner. Defendants in opposition challenge the lack of any authority in support of the requested relief.

Although Plaintiff moves to “dismiss” attorney Chaffin, Plaintiff actually seeks to disqualify attorney Chaffin from appearing on the action. The basis of the requested relief lacks articulated support under the standard for disqualification.

As a threshold issue, Plaintiff fails to raise a basis of standing to challenge The Wolf Firm’s choice of its own representation. “Standing generally requires that the plaintiff be able to allege injury, that is, an invasion of a legally protected interest. (Citation.) A ‘standing’ requirement is implicit in disqualification motions. Generally, before the disqualification of an attorney is proper, the complaining party must have or must have had an attorney-client relationship with that attorney.” (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356.) A confidential relationship must exist for any party to make an argument for disqualification. (Dino v. Pelayo (2006) 145 Cal.App.4th 347, 357.) Nevertheless, a basis for disqualification may arise from “from a breach of the duty of confidentiality owed to the complaining party, regardless of whether a lawyer-client relationship existed.” (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832; See Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 219 [“mere exposure to the confidences of an adversary does not, standing alone, warrant disqualification”].)

The motion lacks legal or evidentiary support to even establish standing, including any argument of any prior relationship between attorney Chaffin and Plaintiff. Without any evidence, the court lacks any basis for the determination of a potential basis of disqualification. The motion is therefore denied.

Plaintiff to give notice.

Case Number: 20CHCV00362    Hearing Date: September 11, 2020    Dept: F49

Dept. F-49

Calendar # 8

Date: 9-11-20

Case #20CHCV00362

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendants, The Wolf Firm, et al.

RESPONDING PARTY: Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Special Motion to Strike the Verified Complaint for Malicious Prosecution

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Granted.

Request for Judicial Notice: Granted.

Defendants The Wolf Firm and individual attorney Parnaz Parto move for a special motion to strike any and all claims against them arising from their representation of Bank of New York Mellon in the unlawful detainer proceeding against Plaintiff (20CHUD00310). Moving Defendants are only named in the fifteenth cause of action for intentional infliction of emotional distress.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Code Civ. Proc. § 425.16, subd. (b). Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . " (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes ": (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Code Civ. Proc., § 425.16.)

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281; 1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1480.) The termination of a tenancy is not an action “in furtherance of the constitutional rights of free speech,” but if the “termination notice is a legal prerequisite to bringing an unlawful detainer action…service of such notice does constitute an activity in further of the constitutionally protected right to petition.” (Birkner v. Lam, supra, 156 Cal.App.4th 281-282.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.)

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) Attorney made statements on behalf of a client in connection with a judicial proceeding has standing to bring a SLAPP motion. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff alleges in the complaint that the underlying communications related to the unlawful detainer action violated Plaintiff’s right of redemption, and therefore caused emotional distress.

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation.] ‘Conduct, to be “‘outrageous’” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’”

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights. It’s not clear how the argument applies to the intentional infliction of emotional distress cause of action—the only cause of action against The Wolf Firm.

Nothing in the proceeding with the unlawful detainer action constitutes outrageous conduct. The complaint lacks any showing that the unlawful detainer somehow improperly deprived Plaintiff of his right of redemption whether he was dispossessed from the property or not. Whether Plaintiff was entitled to seek redemption or not, the prosecution of the unlawful detainer lacks any showing of a known improper action, and therefore a showing of outrageous conduct. Plaintiff therefore lacks support for the intentional infliction of emotional distress action.

Moving party is also secondarily immune under the litigation privilege. “The litigation privilege in section 47 applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)

As discussed above, the filing and prosecution of the unlawful detainer action as counsel of record constitutes an action protected by the litigation privilege.

The special motion to strike is granted.

Defendants may not seek attorney fees. A prevailing law firm party appearing pro se may not recover attorney’s fees for its work on the special motion. (White v. Kaufman (2006) 141 Cal.App.4th 1201, 1210-11.) This pro se rule includes not just partners, but all attorneys who work at the firm. (Ibid.)

A demurrer and motion to strike filed by The Bank of New York Mellon, et al. is set for hearing on November 16, 2020. The court notes that Defendants Ronald Alonzo and Veronica Eisert filed a joinder to The Bank of New York Mellon demurer and motion to strike with a hearing date of September 11, 2020. Joining defendants are not seeking relief within the instant special motion to strike. The court will therefore consider the joinder at the November 16, 2020.

Defendants to give notice.

Case Number: 20CHCV00362    Hearing Date: September 10, 2020    Dept: F49

Dept. F-49

Calendar # 8

Date: 9-11-20

Case #20CHCV00362

SPECIAL MOTION TO STRIKE

MOVING PARTY: Defendants, The Wolf Firm, et al.

RESPONDING PARTY: Plaintiff, Manuel Borobia, pro per

RELIEF REQUESTED

Special Motion to Strike the Verified Complaint for Malicious Prosecution

SUMMARY OF ACTION

On May 17, 2006, Plaintiff Manuel Borobia executed a promissory note agreement with (defendant) Countrywide Home Loans for $550,000 as either part of a purchase transaction or refinance of certain real property located at 13216 Norris Ave., Sylmar. The note was secured by a deed of trust on the property. The deed of trust was subsequently assigned to Defendant Bank of New York Mellon on March 14, 2016.

On November 5, 2019, Plaintiff was declared to be in arrears for $893,301.12. A foreclosure sale occurred on this date, with Bank of New Mellon acquiring the property. Defendant, The Wolf Firm, subsequently initiated an unlawful detainer action.

Plaintiff alleges that Countrywide committed fraud and violated certain banking regulations in the execution of the note. Plaintiff additionally alleges that the unlawful detainer proceeding improperly succeeded despite Plaintiff’s exercise of his right of redemption.

On June 17, 2020, Plaintiff in pro per filed a 15 cause of action complaint for breach of real estate agreement/contract and impaired covenant of good faith and fair dealing, fraud in factum, usury and misrepresentation, theft and embezzlement of promissory note deposit money, theft of real property, violation of GAAP and GAAS, violation of notice law, violation of disclosure law, violation of fair debt collection practices act, violation of administrative procedures act, violation of truth in lending act (regulation z), violation to provide the right to adequate assurance of due performance, violation of Federal Deposit Insurance (FDIC) rules of practices and procedures, wrongful foreclosure process and trustee sale of real estate property, and intentional infliction of emotional distress.

RULING: Granted.

Request for Judicial Notice: Granted.

Defendants The Wolf Firm and individual attorney Parnaz Parto move for a special motion to strike any and all claims against them arising from their representation of Bank of New York Mellon in the unlawful detainer proceeding against Plaintiff (20CHUD00310). Moving Defendants are only named in the fifteenth cause of action for intentional infliction of emotional distress.

Code of Civil Procedure section 425.16 provides that "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Code Civ. Proc. § 425.16, subd. (b). Such a motion involves a two step analysis, in which the court must first determine whether a movant "has made a threshold showing that the challenged cause of action is one arising from protected activity . . . " (Taus v. Loftus (2007) 40 Cal.4th 683, 712, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the court so finds, it must then examine whether the respondent has demonstrated a probability of prevailing on the claim. (Taus v. Loftus, supra, 40 Cal.4th at p. 712.)

An act in furtherance of a person's right to petition or free speech under the United States Constitution or California Constitution includes ": (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (Code Civ. Proc., § 425.16.)

“The prosecution of an unlawful detainer action indisputably is protected activity within the meaning of section 425.16.” (Birkner v. Lam (2007) 156 Cal.App.4th 275, 281; 1100 Park Lane Associates v. Feldman (2008) 160 Cal.App.4th 1467, 1480.) The termination of a tenancy is not an action “in furtherance of the constitutional rights of free speech,” but if the “termination notice is a legal prerequisite to bringing an unlawful detainer action…service of such notice does constitute an activity in further of the constitutionally protected right to petition.” (Birkner v. Lam, supra, 156 Cal.App.4th 281-282.) “Courts distinguish a cause of action based on the service of a notice in connection with the termination of a tenancy or filing of an unlawful detainer complaint from a cause of action based on the decision to terminate or other conduct in connection with the termination.” (Ulkarim v. Westfield LLC (2014) 227 Cal.App.4th 1266, 1276.)

The Court may look to the litigation privilege as an aid in determining the first step of the anti-SLAPP inquiry. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322-323.) Attorney made statements on behalf of a client in connection with a judicial proceeding has standing to bring a SLAPP motion. (Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1266 [“[A] statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2) if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation”].)

The burden now shifts to the plaintiff to demonstrate a “probability” of success on the merits. (Code Civ. Proc., § 425.16(b); Equilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.). “[A] plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) “[A]n action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant.” (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) “In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38.) A verified complaint does not constitute sufficient evidence for establishing a probability of success on the merits. (Comstock v. Aber, supra, 212 Cal.App.4th at p. 950; Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App.4th 141, 160.)

Plaintiff alleges in the complaint that the underlying communications related to the unlawful detainer action violated Plaintiff’s right of redemption, and therefore caused emotional distress.

“‘[T]o state a cause of action for intentional infliction of emotional distress a plaintiff must show: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.’ [Citation.] ‘Conduct, to be “‘outrageous’” must be so extreme as to exceed all bounds of that usually tolerated in a civilized society.’ [Citation.] In order to avoid a demurrer, the plaintiff must allege with ‘great [ ] specificity’ the acts which he or she believes are so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.]’”

(Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160–161.)

Plaintiff in opposition presents extensive legal citation and argument regarding fraud, embezzlement, conspiracy, the Federal Truth in Lending Act, and due process trial rights. It’s not clear how the argument applies to the intentional infliction of emotional distress cause of action—the only cause of action against The Wolf Firm.

Nothing in the proceeding with the unlawful detainer action constitutes outrageous conduct. The complaint lacks any showing that the unlawful detainer somehow improperly deprived Plaintiff of his right of redemption whether he was dispossessed from the property or not. Whether Plaintiff was entitled to seek redemption or not, the prosecution of the unlawful detainer lacks any showing of a known improper action, and therefore a showing of outrageous conduct. Plaintiff therefore lacks support for the intentional infliction of emotional distress action.

Moving party is also secondarily immune under the litigation privilege. “The litigation privilege in section 47 applies to ‘any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]’ [Citation.]” (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.) The litigation privilege applies to any and all causes of action except malicious prosecution. (Hagberg v. California Federal Bank FSB (2004) 32 Cal.4th 350, 375.) “A plaintiff cannot establish a probability of prevailing if the litigation privilege precludes the defendant's liability on the claim.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 888.) Whether the privilege applies is “a factual question that will require evaluation of plaintiffs’ proffered evidence to determine whether they have made a prima facie showing of their ability to negate these factors.” (Birkner v. Lam, supra, 156 Cal.App.4th at p. 286.)

As discussed above, the filing and prosecution of the unlawful detainer action as counsel of record constitutes an action protected by the litigation privilege.

The special motion to strike is granted.

Defendants may not seek attorney fees. A prevailing law firm party appearing pro se may not recover attorney’s fees for its work on the special motion. (White v. Kaufman (2006) 141 Cal.App.4th 1201, 1210-11.) This pro se rule includes not just partners, but all attorneys who work at the firm. (Ibid.)

A demurrer and motion to strike filed by The Bank of New York Mellon, et al. is set for hearing on November 16, 2020. The court notes that Defendants Ronald Alonzo and Veronica Eisert filed a joinder to The Bank of New York Mellon demurer and motion to strike with a hearing date of September 11, 2020. Joining defendants are not seeking relief within the instant special motion to strike. The court will therefore consider the joinder at the November 16, 2020.

Defendants to give notice.

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