Judge Walter P. Schwarm, Case 30-2021-01210293 2022-08-09 Tentative Ruling

Judge: Walter P. Schwarm, Case: 30-2021-01210293, Date: 2022-08-09 Tentative Ruling

Defendant’s (The Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc. Alternative Loan Trust 2006-39CB, Mortgage Pass-Through Certificates, Series 2006-39CB) Demurrer to Plaintiff’s First Amended Complaint (Demurrer), filed on 2-14-22 under ROA 39, is SUSTAINED with leave to amend. The Notice of Demurrer (Notice) was filed on 2-14-22 under ROA No. 38.

“A demurrer tests the pleading alone, and not the evidence or the facts alleged. . . . To the extent there are factual issues in dispute, however, this court must assume the truth not only of all facts properly pled, but also of those facts that may be implied or inferred from those expressly alleged in the complaint.[Citations.]” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) Code of Civil Procedure section 452, states, “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” Perez v. Golden Empire Transportation Transit District (2012) 209 Cal.App.4th 1228, 1238, provides, “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant. [Citations.]” C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 (C.A.), provides, “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged. [Citation.]”

First the court notes that Plaintiff (Jack R. Finnegan) has not complied with the court’s 6-14-22 Minute Order requiring Plaintiff to file the amended complaint that is the subject of this Demurrer with the court. On 6-27-22 under ROA No. 68, Plaintiff filed an Objection to Hearing Set for August 9, 2022 (Objection) that attaches a “Notice of Amendment and New Amended Complaint for Damages” (Amended Complaint). This Amended Complaint, however, was not separately filed with the court. The court orders Plaintiff to file this Amended Complaint (without any changes, modifications, or amendments) before or at the hearing on 8-9-22. Since Defendant’s Reply (Reply), filed on 8-2-22 under ROA No. 70, does not appear to dispute that the Amended Complaint is the operative complaint that is the subject of the Demurrer, the court will address the Demurrer on the merits.

The Demurrer challenges all of the causes of action in the Amended Complaint pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). (Notice; 1:23-3:3.)

The Demurrer states, “The gravamen of Plaintiff's Complaint appears to center around the Motion for Relief and Proof of Claim filed in the Bankruptcy Case. As discussed above, the Motion for Relief and Proof of Claim were warranted as it appeared that Plaintiff had obtained an interest in the Property via the 2018 Grant Deed. Furthermore, filing of those documents are protected by the litigation priviledge [sic]. Additionally, BONY withdrew the Proof of Claim once the trustee confirmed the Plaintiff had no interest in the Property. Any challenge to these documents and filings should have been addressed in the Bankruptcy Court. Further, these filings are protected by the litigation priviledge [sic].” (Demurrer; 17-24.)

Code of Civil Procedure section 430.10 states in part, “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: . . . [¶] (f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.” “ ‘ “[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” ’ [Citations.] ‘ “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” ’ [Citations.]” (A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.) Although demurrers based on uncertainty are disfavored, Plaintiff’s Amended Complaint is so uncertain as to prevent Defendant from providing an informed response. The Amended Complaint does not sufficiently advise Defendant of the issues for Defendant to provide an informed response. Therefore, the court SUSTAINS the Demurrer pursuant to Code of Civil Procedure section 430.10, subdivision (f).

Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912-913 (Kashian), states, “ Civil Code section 47, subdivision (b) defines what is commonly known as the ‘litigation privilege.’ ‘The usual formulation is that the privilege 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.’ [Citation.] [¶] The litigation privilege is absolute; it applies, if at all, regardless whether the communication was made with malice or the intent to harm. [Citation.] Put another way, application of the privilege does not depend on the publisher's ‘motives, morals, ethics or intent.’ [Citation.] Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution. [Citations.] Moreover, ‘[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. [Citation.] The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [Citation.] [¶] . . . [¶] ‘[The] absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. [Citation.] The privilege is based on “[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.” [Citation.]’ [Citation.] [¶] If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law. [Citation.] Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]”

The Amended Complaints asserts causes of action for (1) Malice, Constitution, Vested Rights, (2) Malice, Fraud, and Deceit, (3) Malice and Negligence, (4) Malicious Slander of Title, (5) Malicious Probable Cause, (6) Malicious Abuse of Process, and (7) Libel. It appear that all of the causes of action are based on the filing of a Proof of Claim and Motion for Stay by Defendant in bankruptcy court. (For example, see Amended Complaint at ¶¶ 13, 26-28, 63, 66, 77, 80, 86, 94.) Defendant’s Motion for Relief from the Automatic Stay and the Bankruptcy Court’s Granting of the Automatic Stay are protected under the litigation privilege and, therefore, Plaintiff has failed to state facts sufficient to support any of his causes of action. (Code Civ. Proc., § 430.10(e).)

Based on the above, the court SUSTAINS Defendant’s (The Bank of New York Mellon FKA The Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc. Alternative Loan Trust 2006-39CB, Mortgage Pass-Through Certificates, Series 2006-39CB) Demurrer to Plaintiff’s First Amended Complaint, filed on 2-14-22 under ROA 39, with 14-days leave to amend from the date of service of the notice of the court’s order. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.)

Defendant is to give notice.